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Public Prosecutions Amendment Bill
2011
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill which are to amend the
Public Prosecutions Act 1994--
to confer new functions of the Director of Public
Prosecutions as the head of the public prosecutions
service;
to improve the organisational structure of the public
prosecutions service;
to provide for the Director of Public Prosecutions to
appoint the Solicitor for Public Prosecutions and
Associate Crown Prosecutors;
to establish a new standing Director's Committee and set
out its functions and powers and to abolish the
Committee for Public Prosecutions.
The purpose of the Bill is also to amend the Public
Administration Act 2004 to--
provide that the Director's Committee is an exempt body
for the purpose of the Public Administration Act 2004;
to confer on the Solicitor for Public Prosecutions the
functions of a public service body Head in respect of
newly appointed Associate Crown Prosecutors;
571177 1 BILL LA INTRODUCTION 26/10/2011
to provide for the Public Administration Act 2004 to
apply to the Director of Public Prosecutions in relation
to the appointment of the Solicitor for Public
Prosecutions and Associate Crown Prosecutors.
Clause 2 provides for the commencement of the Bill. The Bill comes into
operation on a day or days to be proclaimed. A provision of the
Bill will come into operation on 1 July 2012 if not proclaimed
before that date.
Clause 3 states that the Public Prosecutions Act 1994 is called the
Principal Act for the purposes of the Bill.
PART 2--AMENDMENT OF PUBLIC PROSECUTIONS ACT
1994
Clause 4 repeals a redundant reference in the purposes of the Principal
Act. Section 1(c) of the Principal Act currently provides that one
of the purposes of the Principal Act is to make fresh provision
with respect to the manner of dealing with certain contempts of
court. The Principal Act originally provided that only the
Attorney-General could initiate proceedings in relation to
contempt. The relevant section was repealed by the Public
Prosecutions (Amendment) Act 1999. Therefore the remaining
reference in section 1(c) of the Principal Act is now redundant
and will be removed by the Bill. This clause also amends
section 1(e) of the Principal Act to replace a reference to the
Committee for Public Prosecutions, which the Bill abolishes,
with a reference to the Director's Committee.
Clause 5 amends definitions in the Principal Act as a consequence of
changes made by the Bill. Clause 5 also inserts a new definition
of public prosecutions service into the Principal Act. This is
defined to mean the service consisting of the Director of Public
Prosecutions, the Chief Crown Prosecutor, Crown Prosecutors,
Associate Crown Prosecutors, the Solicitor for Public
Prosecutions and the Office of Public Prosecutions. It does not
include other prosecutorial agencies.
Clause 6 inserts a note after the heading to Part 2 of the Principal Act that
refers to the appointment of the Director of Public Prosecutions
under Part IIIA of the Constitution Act 1975. The purpose of
this note is to improve clarity in relation to the appointment
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arrangements for the Director of Public Prosecutions by directing
attention to the provisions of the Constitution Act 1975.
Clause 7 inserts a note at the foot of section 9(1) of the Principal Act.
Section 9 of the Principal Act provides for the appointment of an
Acting Director of Public Prosecutions by the Governor in
Council.
Clause 10 of the Bill will insert a new section 19B into the
Principal Act. New section 19B of the Act will provide that the
Chief Crown Prosecutor or the Acting Chief Crown Prosecutor
may act as the Director of Public Prosecutions in certain
circumstances.
The note inserted by clause 7 sets out that section 19B of the
Principal Act also provides that the Chief Crown Prosecutor may
act as Director if the Governor in Council has not appointed an
Acting Director under section 9 of the Principal Act.
Clause 8 amends the cross references in section 12 of the Principal Act to
reflect changes made by the Bill to the arrangements for the
Director's Committee.
Section 12 of the Principal Act sets out the annual reporting
requirements of the Director of Public Prosecutions.
The Director of Public Prosecutions must prepare an annual
report on his or her operations and submit the report to the
Attorney-General.
Section 12(2) of the Principal Act requires the Director of Public
Prosecutions to include a copy of any statement submitted to the
Attorney-General under section 23(6) of the Principal Act in his
or her annual report. Section 23 of the Principal Act currently
requires the Director of Public Prosecutions to convene a
Director's Committee prior to making a special decision
(as defined by section 3 of the Principal Act). Where the
Director of Public Prosecutions makes a special decision contrary
to the advice of the other two members of the Director's
Committee, section 23(6) of the Principal Act requires him or her
to submit a statement to the Attorney-General setting out that
decision and the reason or reasons for it.
The Bill will alter the existing arrangements for the Director's
Committee and establish the Director's Committee as a standing
committee in a separate Part of the Principal Act.
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The amendments made by clause 8 are consequential
amendments to the cross references in section 12 as a result of
these changes and will update the reference in section 12 to refer
to new section 45F which will be inserted by clause 21 of the
Bill. New section 45F reproduces in similar terms the existing
requirement under section 23(6) of the Principal Act.
Clause 9 amends section 14 of the Principal Act.
Section 14 of the Principal Act sets out the role of the Chief
Crown Prosecutor. The Chief Crown Prosecutor has day to day
management of the Crown Prosecutors and Associate Crown
Prosecutors, subject to the general direction and control of the
Director of Public Prosecutions. The Chief Crown Prosecutor's
role is currently expressed as ensuring that the Crown
Prosecutors and Associate Crown Prosecutors function as a group
in an effective and efficient manner. The Bill will amend
paragraph (a) to omit the reference to the Crown Prosecutors and
Associate Crown Prosecutors functioning as a group.
This amendment gives effect to the intention that the Chief
Crown Prosecutor be able to manage the individual performance
of Crown Prosecutors and Associate Crown Prosecutors.
The Bill also amends paragraph (a) to provide that, in addition to
ensuring the Crown Prosecutors and Associate Crown
Prosecutors function in an effective and efficient manner, the
Chief Crown Prosecutor also ensures that they function in an
economic manner. This aligns section 14 of the Principal Act
with the matters to which the Director of Public Prosecutions
must have regard under section 24 of the Principal Act and new
functions conferred on the Director of Public Prosecutions by
clause 13 of the Bill.
Clause 10 inserts a new section into the Principal Act that provides that the
Chief Crown Prosecutor or Acting Chief Crown Prosecutor may
act as Director of Public Prosecutions during any period when the
office of Director of Public Prosecutions is vacant or the Director
of Public Prosecutions is absent from duty or is, for any reason,
unable to carry out the duties of the office. This does not apply if
the Governor in Council has appointed an Acting Director of
Public Prosecutions under section 9 of the Principal Act.
While acting as Director of Public Prosecutions the Chief Crown
Prosecutor or Acting Chief Crown Prosecutor has the same
powers and duties of the Director of Public Prosecutions and may
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perform any of the functions of the Director of Public
Prosecutions.
Clause 11 amends section 20 of the Principal Act. Section 20 of the
Principal Act provides that the Chief Crown Prosecutor is
responsible to the Director of Public Prosecutions for the due
performance of his or her functions and exercise of his or her
powers under this or any other Act. Section 20(2) qualifies
subsection (1) by setting out the circumstances where the
Director of Public Prosecutions cannot direct the Chief Crown
Prosecutor.
The Bill will amend section 20(2) to insert a reference to new
section 23(f) of the Principal Act which will be inserted by
clause 13 of the Bill. New section 23(f) will give the Director of
Public Prosecutions the function of giving directions to the Chief
Crown Prosecutor, Crown Prosecutors, Associate Crown
Prosecutors and the Solicitor for Public Prosecutions in
accordance with the Principal Act. The amendment gives effect
to the intention that the Director of Public Prosecutions cannot
give directions to the Chief Crown Prosecutor under new
section 23(f) in relation to those functions specified in
section 20(2) of the Principal Act.
Clause 11 also amends section 20(2)(b) of the Principal Act to
omit the reference to the Chief Crown Prosecutor's functions in
relation to the Committee for Public Prosecutions as it will be
abolished by the Bill and also updates the reference to a
Director's Committee with a reference to the standing Director's
Committee established by new section 45, which is inserted by
clause 21 of the Bill.
Clause 12 amends the Principal Act to include new functions for the
Director of Public Prosecutions in relation to the public
prosecutions service which will be inserted by clause 13 of the
Bill.
Clause 12 also updates the reference to a Director's Committee
with a reference to the standing Director's Committee established
by new section 45, which is inserted by clause 21 of the Bill.
Clause 13 substitutes section 23 of the Principal Act with a new section that
sets out the functions of the Director of Public Prosecutions in
relation to the public prosecutions service. A definition of public
prosecutions service will be inserted into section 3 of the
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Principal Act by clause 5 of the Bill. The new functions of the
Director of Public Prosecutions in relation to the public
prosecutions service are--
to be the head of the public prosecutions service;
to ensure that the public prosecutions service functions
in an efficient, economic and effective manner;
to recommend to the Attorney-General after consulting
with the Director's Committee, the appointment,
re-appointment or removal from office of Crown
Prosecutors;
after consulting with the Director's Committee, to
appoint Associate Crown Prosecutors in accordance
with Part 6;
to appoint or remove a Solicitor for Public Prosecutions
in accordance with Part 7;
to give directions to the following persons in accordance
with the Principal Act--
the Chief Crown Prosecutor;
Crown Prosecutors;
Associate Crown Prosecutors;
the Solicitor for Public Prosecutions.
These amendments give effect to the intention that the Director
of Public Prosecutions be the head of the public prosecutions
service and that the Director of Public Prosecutions has the
functions and powers necessary to support him or her in the
performance of this role.
Clause 14 inserts a new section 25A into the Principal Act. This section
sets out that the Director of Public Prosecutions may establish
guidelines on the classes of proceedings in which he or she is to
be consulted before legal practitioners other than Crown
Prosecutors or Associate Crown Prosecutors are briefed to appear
on behalf of the Director of Public Prosecutions. The Solicitor
for Public Prosecutions must consult with the Director of Public
Prosecutions before briefing a legal practitioner other than a
Crown Prosecutor or Associate Crown Prosecutor to appear on
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behalf of the Director of Public Prosecutions in a proceeding to
which guidelines apply.
This function is an existing function of the Director of Public
Prosecutions under section 38(1A) of the Principal Act. The Bill
will relocate this provision to Part 4 of the Principal Act which
sets out the functions and powers of the Director of Public
Prosecutions and makes some minor amendments to the form of
the section.
Clause 15 makes minor amendments to the form of section 26 of the
Principal Act, including the insertion of a new heading to
differentiate the guidelines under this section from the guidelines
under new section 25A and to make the language of this section
consistent with new section 25A.
Clause 16 substitutes the reference to the Committee for Public
Prosecutions in section 27(1)(a) of the Principal Act with a
reference to the standing Director's Committee established by
new section 45, which is inserted by clause 21 of the Bill.
Under section 43(1)(c) of the Principal Act, the Committee for
Public Prosecutions has the function of giving directions to
members of the police force and other persons in respect to the
offences or classes of offence which are to be referred to the
Director of Public Prosecutions for the institution and conduct of
proceedings.
The Bill will transfer this function of the Committee for Public
Prosecutions to the Director's Committee established by new
section 45. The Committee for Public Prosecutions will be
abolished.
Clause 17 substitutes section 30(1)(c) of the Principal Act with new
paragraphs (c) and (ca) to provide that the Director of Public
Prosecutions cannot delegate any function or power the Director
of Public Prosecutions has a member of the Director's Committee
in relation to special decisions, as provided by new Division 2 of
Part 8 of the Principal Act and also cannot delegate a power in
relation to the appointment of the Solicitor for Public
Prosecutions or Associate Crown Prosecutors.
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Clause 18 amends section 32 of the Principal Act to enable a Senior Crown
Prosecutor to be re-appointed for a period not exceeding 10 years
if the Senior Crown Prosecutor is entitled at the re-appointment
date to a pension if the Senior Crown Prosecutor resigns or
retires.
Clause 19 amends section 34 of the Principal Act as a consequence of
changes to process for recommending the removal of a Crown
Prosecutor.
Section 34(e) of the Principal Act currently provides that the
Governor in Council may remove a Crown Prosecutor from
office if the Committee for Public Prosecutions recommends to
the Attorney-General that he or she be removed from office.
Clause 13 of the Bill will insert new section 23(c) in the Principal
Act which will provide that the Director of Public Prosecutions,
after consulting with the Director's Committee, may recommend
the appointment, reappointment or removal from office of Crown
Prosecutors.
New section 45A (to be inserted by clause 21 of the Bill) gives
the Director's Committee the corresponding function of
consulting with the Director of Public Prosecutions in relation to
the removal of a Crown Prosecutor from office.
Clause 19 will substitute paragraph (e) of section 34 to reflect the
revised arrangements. It provides that a Crown Prosecutor may
be removed from office by the Governor in Council if the
Director of Public Prosecutions, after consulting with the
Director's Committee, recommends to the Attorney-General that
the Crown Prosecutor may be removed from office.
Clause 20 substitutes section 36(4) of the Principal Act.
Section 36(4) provides that a Crown Prosecutor is responsible to
the Director of Public Prosecutions for the due exercise of the
Crown Prosecutor's functions.
Clause 20 will substitute this subsection to provide that a Crown
Prosecutor is subject to the general direction and control of the
Director of Public Prosecutions in the performance of the Crown
Prosecutor's functions and is responsible to the Director of Public
Prosecutions for the due performance of the Crown Prosecutor's
functions.
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This amendment corresponds with the new functions of the
Director of Public Prosecutions in relation to the public
prosecutions service. In particular, it complements the new
function of the Director of Public Prosecutions to give directions
to Crown Prosecutors.
The scope of this power to give directions is limited by
section 36(5) of the Act (as amended by clause 20 of the Bill)
which provides that nothing in the Principal Act empowers the
Director of Public Prosecutions or the Chief Crown Prosecutor
the power to give any direction to a Crown Prosecutor with
respect to--
filing an indictment against any person for any offence
in the performance of the function under section
36(1)(a) of the Principal Act;
the functions and powers a Crown Prosecutor has as a
member of the Director's Committee in relation to
special decisions, as provided by Division 2 of Part 8;
the performance of a function or the exercise of a power
by a Crown Prosecutor under section 29 of the Principal
Act.
This clause also substitutes section 36(5)(b) of the Principal Act
as a consequence of amendments made by the Bill to the
Director's Committee. The effect of the provision is not altered
by the Bill.
Clause 21 amends the Principal Act to substitute new Parts 6, 7 and 8 for
Parts 5A, 6, 7 and 8 of the Principal Act.
New Part 6 establishes revised processes for the appointment of
Associate Crown Prosecutors.
New section 37 provides that the Director, after consulting with
the Director's Committee, may, on behalf of the Crown, appoint
as an Associate Crown Prosecutor a person who is an Australian
lawyer and who has practised as such for not less than 3 years.
It provides that the appointment is to be made under Part 3 of the
Public Administration Act 2004. New section 37 also provides
that the designation of the Solicitor for Public Prosecutions under
the Public Administration Act 2004 as having the functions of a
public service body Head in relation to the Associate Crown
Prosecutors does not affect this function of the Director of Public
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Prosecutions. New section 37(4) provides that the Director of
Public Prosecutions has no power to remove an Associate Crown
Prosecutor. This function will be exercised by the Solicitor for
Public Prosecutions in accordance with Division 8 of Part 3 of
the Public Administration Act 2004 as clause 27 of the Bill will
confer on the Solicitor for Public Prosecutions the functions of a
public service body Head in relation to Associate Crown
Prosecutors.
New section 38 sets out the functions of Associate Crown
Prosecutors. New section 38 substantially reproduces the content
of section 36E of the Principal Act which will be repealed by the
Bill.
The functions of an Associate Crown Prosecutor are to conduct,
and appear in, proceedings on behalf of the Director of Public
Prosecutions and any other functions that are given to Associate
Crown Prosecutors by or under the Principal Act or any other Act
or by the Director of Public Prosecutions. In the performance of
these functions, an Associate Crown Prosecutor must have regard
to the need to ensure that the prosecutorial system gives
appropriate consideration to the concerns of the victims of crime.
The content of new section 38(3) departs from the existing
equivalent provision in section 36E(3). New section 38(3) sets
out the reporting arrangements for Associate Crown Prosecutors.
It provides that an Associate Crown Prosecutor is subject to the
general direction and control of the Director of Public
Prosecutions and responsible to the Director of Public
Prosecutions for the due performance of the Associate Crown
Prosecutor's functions. Paragraph (c) provides that an Associate
Crown Prosecutor is under the day to day management of the
Chief Crown Prosecutor. This represents a continuation of the
existing management of Associate Crown Prosecutors by the
Chief Crown Prosecutor as set out in section 14(a) of the
Principal Act.
A note included at the end of new section 38(3) sets out that the
Solicitor for Public Prosecutions has the functions of a public
service body Head under the Public Administration Act 2004 in
relation to Associate Crown Prosecutors. This function is
conferred on the Solicitor for Public Prosecutions by clause 27 of
the Bill.
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New section 38(4) provides that nothing in the Principal Act
gives the Director of Public Prosecutions or the Chief Crown
Prosecutor the power to give any direction to an Associate Crown
Prosecutor with respect to the functions and powers an Associate
Crown Prosecutor has as a member of the Director's Committee
in relation to special decisions, as provided by Division 2 of
Part 8.
New Part 7 provides for the continuation of the Office of Public
Prosecutions.
New section 39 provides that there continues to be established an
Office of Public Prosecutions. The Office of Public Prosecutions
consists of the Solicitor for Public Prosecutions and as many
other members of staff as are necessary to enable the Office of
Public Prosecutions to do its work.
New section 40 provides that staff of the Office of Public
Prosecutions are to be employed under Part 3 of the Public
Administration Act 2004.
New section 41 sets out the functions of the Office of Public
Prosecutions. The functions of the Office of Public Prosecutions
are--
to prepare and conduct proceedings and other matters
effectively, economically and efficiently on behalf of
the Director of Public Prosecutions;
to provide for the appearance of members of staff of the
Office of Public Prosecutions in proceedings on behalf
of the Director of Public Prosecutions in accordance
with guidelines established by the Director's
Committee under section 45A(1)(c) of the Principal
Act (as amended by the Bill).
Division 2 of new Part 7 provides for the appointment of a
Solicitor for Public Prosecutions.
New section 42 provides that the Director of Public Prosecutions
may appoint a person as the Solicitor for Public Prosecutions.
This appointment is to be an executive appointment under Part 3
of the Public Administration Act 2004. This alters the existing
arrangements for the appointment of the Solicitor for Public
Prosecutions by the Governor in Council. Clause 24 of the Bill
includes transitional arrangements that preserve the appointment
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of the current Governor in Council appointee for the remainder of
the term of appointment under section 37 of the Principal Act.
New section 43 sets out the functions of the Solicitor for Public
Prosecutions. These functions are--
to manage the Office of Public Prosecutions on behalf
of the Director of Public Prosecutions;
to brief Crown Prosecutors or Associate Crown
Prosecutors to appear in proceedings on behalf of the
Director or, subject to any guidelines issued by the
Director of Public Prosecutions under section 25A, legal
practitioners other than Crown Prosecutors or Associate
Crown Prosecutors;
the functions conferred on the Solicitor for Public
Prosecutions as a member of the Director's Committee;
any other functions that are given to the Solicitor for
Public Prosecutions by or under the Principal Act or any
other Act or by the Director of Public Prosecutions.
These functions reflect the existing functions of the Solicitor for
Public Prosecutions under section 38 of the Principal Act.
However, new section 43(1)(a) provides that the Solicitor for
Public Prosecutions manages the Office of Public Prosecutions
on behalf of the Director of Public Prosecutions. The Principal
Act is currently silent in this regard.
New section 43(2) clarifies that the Solicitor for Public
Prosecutions' function of briefing Crown Prosecutors or
Associate Crown Prosecutors to appear in proceedings on behalf
of the Director of Public Prosecutions does not affect or take
away from the authority of the Chief Crown Prosecutor under
section 14(a) of the Principal Act which provides that the Chief
Crown Prosecutor is responsible for the day to day management
of Crown Prosecutors and Associate Crown Prosecutors.
New section 43(3) provides that the Solicitor for Public
Prosecutions must have regard to the need to ensure that the
prosecutorial system gives appropriate consideration to the
concerns of the victims of crime in the performance of his or her
functions.
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New section 43(4) provides that the Solicitor for Public
Prosecutions is subject to the general direction and control of the
Director of Public Prosecutions in the performance of the
Solicitor's functions and is responsible to the Director for the due
performance of those functions.
New section 43(5) clarifies that the nothing in new section 34 or
section 31A of the Public Administration Act 2004 affects or
takes away from the role of the Chief Crown Prosecutor in
controlling the day to day management of Associate Crown
Prosecutors as set out in section 14(a) of the Principal Act.
New section 44 provides that the Solicitor for Public
Prosecutions may delegate to any member of staff employed in
the Office of Public Prosecutions any function or power of the
Solicitor for Public Prosecutions under the Principal Act, other
than the power of delegation. This provision mirrors existing
section 39 of the Principal Act.
New Part 8 establishes a standing Director's Committee
comprising the Director of Public Prosecutions, Chief Crown
Prosecutor and the Solicitor for Public Prosecutions.
The membership of the Director's Committee is set out in new
section 45(2).
New section 45A provides for the functions of the standing
Director's Committee. These are--
to give directions to members of the police force and
other persons in relation to offences or classes of
offences that are to be referred to the Director of Public
Prosecutions for the institution and conduct of
proceedings;
to establish guidelines in accordance with section 45B
of the Principal Act (as amended by clause 20 of the
Bill) on the circumstances in which a decision of a kind
referred to in paragraph (b) of the definition of special
decision is not to be treated as a special decision for the
purpose of the Principal Act;
to establish guidelines on the circumstances in which
members of staff of the Office of Public Prosecutions
may appear in court;
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the functions in relation to special decisions set out in
new Division 2 of new Part 8 of the Principal Act
(as inserted by clause 21 of the Bill);
to consult with the Director of Public Prosecutions in
relation to the appointment or reappointment of a Crown
Prosecutor or Associate Crown Prosecutor;
to consult with the Director of Public Prosecutions in
relation to the removal of a Crown Prosecutor from
office;
to provide advice to the Director of Public Prosecutions
in relation to the public prosecutions service.
Subsection (2) provides that the Director's Committee cannot
give directions to the Director of Public Prosecutions, the Chief
Crown Prosecutor or the Solicitor for Public Prosecutions with
respect to the performance or exercise of his or her functions or
powers.
New section 45B substantially reproduces existing section 43(2)
of the Principal Act and provides that in establishing guidelines
under new section 45A the Director's Committee must have
regard to the need to ensure that the decision-making process is
not unnecessarily protracted in circumstances specified in new
section 45B.
Division 2 of new Part 8 sets out the process to be followed
before the Director of Public Prosecutions makes a special
decision. Special decision is defined by section 3 of the
Principal Act. Division 2 substantially reproduces the content of
existing section 23 of the Principal Act.
New section 45C provides that before making a special decision,
the Director of Public Prosecutions must hold a meeting of the
Director's Committee to consider the decision. Subsection (2)
provides that the purpose of the meeting is to provide advice to
the Director of Public Prosecutions on the special decision in
relation to which the meeting is held.
New section 45D sets out the membership of the Director's
Committee for a meeting on special decisions. For the purposes
of a meeting under new section 45C, the Director's Committee
comprises the Director of Public Prosecutions who is the
chairperson and the Chief Crown Prosecutor. New section 45D
also makes provision for a Crown Prosecutor, Associate Crown
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Prosecutor or other Australian lawyer responsible for providing
advice to the Director of Public Prosecutions in relation to filing
an indictment or discontinuing a prosecution to be a member of
the Director's Committee for the purpose of a meeting on special
decisions. The Solicitor for Public Prosecutions is not a member
of the Director's Committee for the purpose of a meeting on a
special decision.
New section 45E sets out the circumstances where a meeting of
the Director's Committee for the purpose of a special decision is
not required.
New section 45F requires the Director of Public Prosecutions to
provide a report to the Attorney-General if the Director of
Public Prosecutions makes a special decision contrary to the
advice of the other two members of the Director's Committee.
Subsection (2) provides that the Director of Public Prosecutions
may inform the Attorney-General in writing that in his or her
opinion the interests of justice require that the statement not be
laid before Parliament until all proceedings in relation to the
matter are determined or discontinued. Subsection (3) provides
that the Director of Public Prosecutions must inform the
Attorney-General in writing within 7 days of proceedings in
relation to that matter being determined or discontinued.
New section 45G provides that the Attorney-General must cause
a statement submitted to him or her under new section 45F to be
laid before both Houses of Parliament within 7 sitting days of the
Legislative Council or the Legislative Assembly, as the case may
be, after receiving the statement or being informed by the
Director of Public Prosecutions under new section 45F(3) of the
determination or discontinuance of all relevant matters.
New section 45H provides arrangements for the delegation of
functions in relation to special decisions in substantially similar
terms as section 23(10), (11), (12) and (13) of the Principal Act.
Clause 22 amends the immunity in section 46 of the Principal Act as a
consequence of changes to the nature of employment of the
Associate Crown Prosecutors and Solicitor for Public
Prosecutions. The effect of this amendment is to preserve the
operation of the immunity for Associate Crown Prosecutors and
the Solicitor for Public Prosecutions appointed under
sections 36A and 37 of the Principal Act as in force before the
commencement of clause 21 of the Bill. Clause 22 also preserves
15
the immunity for members of the Committee for Public
Prosecutions appointed under section 42(2)(d) of the Principal
Act as in force before the commencement of clause 21 of the Bill.
Clause 23 substitutes section 48(a) of the Principal Act. Section 48(a)
provides that all courts must take judicial notice of the signature
of the Director of Public Prosecutions or an Acting Director of
Public Prosecutions, the Chief Crown Prosecutor or an Acting
Chief Crown Prosecutor or a Crown Prosecutor or an Associate
Crown Prosecutor where that signature purports to be on any
official document. The effect of the amendment is alter the form
of this subsection and confine the operation of the judicial notice
provision to Associate Crown Prosecutors appointed before the
commencement of clause 21 of the Bill. This is to confine the
operation of the judicial notice provisions to those with the status
of a Governor in Council appointment.
Clause 24 amends section 48A of the Principal Act to omit references to the
annual report of the Committee for Public Prosecutions as a
consequence of the abolition of the Committee for Public
Prosecutions.
Clause 25 inserts a new section 56 to the Principal Act containing
transitional provisions. The transitional provisions provide that
the transfer of functions from the Committee for Public
Prosecutions to the Director's Committee does not affect the
validity of guidelines and directions issued by the Committee for
Public Prosecutions under the Principal Act as in force
immediately before the relevant commencement day.
The provision also allows for the continuation of the Solicitor for
Public Prosecutions and the Associate Crown Prosecutors as
Governor in Council appointees until the expiration of the term
of their existing appointments.
Clause 26 amends the definition of exempt body in section 4 of the Public
Administration Act 2004 to substitute the reference to the
Committee for Public Prosecutions with a reference to the
Director's Committee which will assume certain functions of the
Committee for Public Prosecutions.
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Clause 27 amends section 16 of the Pubic Administration Act 2004 to
confer on the Solicitor for Public Prosecutions the functions of a
public service body Head in relation to Associate Crown
Prosecutors appointed under section 37 of the Principal Act
(as amended by the Bill).
Clause 28 amends section 24 of the Public Administration Act 2004 to
provide that the Director of Public Prosecutions is the employer
of the Solicitor for Public Prosecutions for the purposes of
Division 5 of Part 3 of that Act.
Clause 29 amends section 34 of the Public Administration Act 2004 to
provide that the Director of Public Prosecutions has the function
of removing the Solicitor for Public Prosecutions under that Act.
Clause 30 amends section 106 of the Public Administration Act 2004.
Section 106 of the Public Administration Act 2004 provides
that the Public Administration Act 2004 does not apply to
certain persons. Clause 30 of the Bill will omit the reference to
Associate Crown Prosecutor in section 106(1)(h) as a
consequence of the amendments made by the Bill.
Clause 30 also inserts a new subclause after section 106(2) of the
Public Administration Act 2004 to apply the provisions of the
Public Administration Act 2004 to the Director of Public
Prosecutions in relation to the employment of the Solicitor for
Public Prosecutions and Associate Crown Prosecutors.
This amendment gives effect to the intention that the Director of
Public Prosecutions is required to follow principles of merit and
equity in relation to these appointment processes.
Clause 31 inserts new clause 15 in Schedule 2 of the Public
Administration Act 2004 containing transitional provisions for
amendments to the Public Administration Act 2004.
Clause 32 provides for the automatic repeal of this amending Bill on 1 July
2013. The repeal of this Act does not affect in any way the
operation of the amendments made by this Act (see section 15(1)
of the Interpretation of Legislation Act 1984).
17