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CLAUSE NOTES
Law Officers (Miscellaneous Amendments) Bill 2015
Clause 1: Short title
This clause provides that the Bill will be cited as the Law Officers (Miscellaneous
Amendments) Bill 2015.
Clause 2: Commencement
This clause provides for the Bill to commence on the day on which it receives the Royal
Assent.
Clause 3: Principal Act
Director of Public Prosecutions Act 1973 Amended
This clause provides that in relation to the clauses contained in Part 2 of the Bill the
Principal Act to which the amendments apply is the Director of Public Prosecutions Act
1973.
Clause 4: Section 4 amended
Appointment of Director
This clause amends the provisions in relation to appointment to the office of Director
of Public Prosecutions by providing that a person of not less than seven years standing
may be appointed for a term of 10 years and reappointed immediately after the term
for a term up to 10 years and precluding any further appointment. Therefore, a person
cannot be reappointed to the office of Director of Public Prosecutions once the 10 year
term and any additional term beginning immediately after the term of the first
appointment ends.
The clause operates in conjunction with clause 5.
Clause 5: Section 5 substituted
Section 5 Tenure of office and terms and conditions of
appointment as Director
This clause repeals section 5 of the Principal Act and substitutes a new section 5.
The substituted new section 5 provides for appointment of a Director for a period of
10 years on such terms and conditions as determined by the Governor.
The new section 5 also provides that a Director of Public Prosecutions may be
appointed for another period of up to 10 years to commence immediately after the
end of the term of his or her previous appointment.
Clause 6: Section 9 and 10 substituted
This clause repeals sections 9 and 10 of the Principal Act.
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New section 9 - Vacation of office of Director
The clause inserts new section 9 to provide for vacation of office of the Director of
Public Prosecutions.
Under the new section 9(1) a Director of Public Prosecutions vacates the office at the
end of his or her term of appointment; upon resignation; or revocation of his or her
appointment under the new section 9F(2)(b) by resolution of both Houses of
Parliament.
The new section 9(2) provides that the resignation of a Director of Public Prosecutions
must be by notice in writing to the Governor.
New section 9A - Suspension from office
The clause inserts new section 9A to provide for suspension from office of the Director
of Public Prosecutions.
Under the new section 9A, the Governor may suspend a Director of Public
Prosecutions if he or she is –
by reason of disability or infirmity, incapable of performing the functions of the
office (except if illness is temporary) (new section 9A(1)(a));
bankrupt (new section 9A(1)(b));
convicted in Tasmania of a crime or an offence punishable by 12 months
imprisonment or more (new section 9A(1)(c));
convicted elsewhere of a crime or offence that if committed in Tasmania would
be a crime or an offence punishable by imprisonment for 12 months or more
(new section 9A(1)(c));
charged in Tasmania with a crime or an offence punishable by 12 months
imprisonment or more (new section 9A(2)(a) and (b));
charged elsewhere with a crime or offence that if committed in Tasmania would
be a crime or an offence punishable by imprisonment for 12 months or more
(new section 9A(2)(c));
engaged in misconduct in office, including by engaging in private practice (new
section 9A(3)(a));
engaged in misbehaviour that brings the office into disrepute (new section
9A(3)(b));
New section 9B - Minister to lay statement in relation to suspension to
be laid before each House of Parliament
The clause inserts new section 9B to provide for the Minister to lay a statement in
relation to suspension under the new section 9A before each House of Parliament.
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The new section 9B requires a statement setting out the grounds of the suspension to
be laid by the Minister before both Houses of Parliament within 7 sitting-days of the
suspension of the Director of Public Prosecutions.
New Section 9C - House of Parliament may confirm or revoke
suspension for misconduct or misbehaviour
The clause inserts new section 9C to provide that a House of Parliament may confirm
or revoke suspension for misconduct or misbehaviour.
The new section 9C provides that if a person has been suspended for misconduct or
misbehaviour (under the new section 9A(3)) a House of Parliament may pass a
resolution confirming or revoking the suspension. If a resolution is passed by both
Houses of Parliament revoking a suspension of the Director of Public Prosecutions, that
suspension is revoked from the day the resolution is passed by both Houses of
Parliament (new section 9C(2).
New section 9D Governor may revoke or vary suspension of Director
from office
The clause inserts new section 9D to provide that the Governor may revoke or vary
suspension of a Director of Public Prosecutions from office.
The new section 9D(1) provides that the Governor may revoke or vary a suspension
imposed under new section 9A.
the new section 9D(2) provides that where the Governor has revoked or varied a
suspension of the Director of Public Prosecutions, the Minister must lay a statement
before each House of Parliament setting out the grounds of revocation or variation
within 7 sittings days.
Under new section 9D(3) a House of Parliament may pass a resolution either
confirming or revoking the suspension or variation of suspension of the Director of
Public Prosecutions. If such a resolution is passed by both Houses of Parliament the
suspension is revoked or varied from the day the resolution is passed (new section
9D(4)).
New section 9E Request for Revocation of appointment
The clause inserts new section 9E to provide that the Governor may request the
revocation of appointment of a Director of Public Prosecutions.
The new section 9E provides that the Governor may cause a statement to be laid
before both Houses of Parliament requesting the revocation of appointment of a
Director of Public Prosecutions on the same grounds laid for suspension if the
Governor is satisfied that –
a Director of Public Prosecutions may be suspended on the grounds in new
section 9A(1) or (3); and
the Governor has suspended the person from office under any grounds in new
section 9A whether or not they are the same as the statement; and
the statement required by new section 9B has been laid before each House of
Parliament; and
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where the Director of Public Prosecutions has been suspended for misconduct
in office or misbehaviour (new section 9A(3)) that suspension has been
confirmed under new section 9C(1)(a)).
New Section 9F House of Parliament may revoke appointment or
suspension
The clause inserts new section 9F to provide a House of Parliament may revoke
appointment or suspension.
The new section 9F provides a House of Parliament may resolve to refuse a request to
revoke appointment of a Director of Public Prosecutions and revoke any suspension
from office if that suspension has not already been revoked or may resolve to revoke
the appointment of a Director of Public Prosecutions.
The new section 9F(2) provides that if both Houses of Parliament resolve to revoke the
suspension of a Director of Public Prosecutions
then the suspension is revoked on and from the day the resolution is passed by both
Houses.
The new section also provides that if both Houses of Parliament resolve to revoke the
appointment of a Director of Public Prosecutions the appointment is revoked on and
from the day that the resolution is passed in both Houses of Parliament.
New section 9G Payment of person suspended from office
The clause inserts new section 9G to provide for the instrument of suspension to
specify the proportion of payment of a salary of a person suspended from office.
The new section 9G provides that the Governor specifies in the instrument of
suspension the proportion of salary, if any, the Director of Public Prosecutions receives
during the period of suspension. This allows for no, full or part payment of salary during
the period of suspension from office.
Clause 7: Section 12 amended
Functions of Director
This clause provides that the Director of Public Prosecutions has additional functions
which include –
to issue guidelines to prosecutors, the Commissioner of Police and others in
relation to the conduct and referral of prosecutions (new section 12(1)(ea));
to grant indemnities from prosecution (new section 12(1)(eb));
to give undertakings in relation to use of disclosures (new section 12(1)(ec))
Clause 8: Section 13A inserted
Deputy Director of Public Prosecutions
This clause creates the position of Deputy Director of Public Prosecutions and provides
criteria for eligibility for appointment (new section 13A(1)).
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This clause provides that the Deputy Director of Public Prosecutions is to perform such
functions as directed by the Director of Public Prosecutions (new section 13A(2)).
The clause also provides that the Deputy Director of Public Prosecutions acts as
Director of Public Prosecutions with all the powers, immunities and independence of
that office during any period of illness, suspension, absence or vacancy (new section
13A(3), (4) and (5)).
Clause 9: Section 21 inserted
Application of amendments made by Law Officers (Miscellaneous
Amendments) Act 2015
This clause provides that the amendments to the Principal Act do not apply to a person
who held the office of Director of Public Prosecutions prior to the date of
commencement of the Law Officers (Miscellaneous Amendments) Act 2015.
Clause 10: Principal Act
Solicitor-General Act 1983 Amended
This clause provides that in relation to the clauses contained in Part 3 of the Bill the
Principal Act to which the amendments apply is the Solicitor-General Act 1983.
Clause 11: Section 4 amended
Office of the Solicitor-General; appointment of Solicitor-General
This clause amends the provisions in relation to appointment to the office of Solicitor-
General by providing that a person of not less than seven years standing may be
appointed for a term of 10 years and reappointed immediately after the term for a
term up to 10 years and precludes any further appointment. Therefore, a person
cannot be reappointed to the office of Solicitor-General once the 10 year term and any
additional term beginning immediately after the term of the first appointment ends.
Clause 12: Section 6 substituted
This clause repeals section 6 of the Principal Act and substitutes a new section 6 to
provide for the vacation of office of the Solicitor-General.
New section 6 – Vacation of office of Solicitor General
Under the new section 6(1) a Solicitor-General vacates the office at the end of his or
her term; upon resignation; or revocation of his or her appointment by resolution of
both Houses of Parliament.
New section 6A to provide for the suspension of office of the
Solicitor-General.
The Governor may suspend a Solicitor-General if he or she is –
by reason of disability or infirmity, incapable of performing the functions of the
office (except if illness is temporary) (new section 6A(1)(a));
Page 5 of 8
bankrupt (new section 6A(1)(b));
convicted in Tasmania of a crime or an offence punishable by 12 months
imprisonment or more (new section 6A(1)(c));
convicted elsewhere of a crime or offence that if committed in Tasmania would
be a crime or an offence punishable by imprisonment for 12 months or more
(new section 6A(1)(c));
charged in Tasmania with a crime or an offence punishable by 12 months
imprisonment or more (new section 6A(2)(a) and (b));
charged elsewhere with a crime or offence that if committed in Tasmania would
be a crime or an offence punishable by imprisonment for 12 months or more
(new section 6A(2)(c));
engaged in misconduct in office, including by engaging in private practice (new
section 6A(3)(a));
engaged in misbehaviour that brings the office into disrepute (new section
6A(3)(b)).
New section 6B - Minister to lay statement in relation to suspension to
be laid before each House of Parliament
The clause inserts new section 6B to provide for the Minister to lay a statement in
relation to suspension of a Solicitor-General before each House of Parliament.
New section 6B requires a statement setting out the grounds of the suspension to be
laid by the Minister before both Houses of Parliament within 7 sitting-days of the
suspension of a Solicitor-General.
New section 6C – House of Parliament may confirm or revoke
suspension for misconduct or misbehaviour
The clause inserts new section 6C to provide that a House of Parliament may confirm
or revoke suspension for misconduct or misbehaviour.
The new section 6C provides that if a Solicitor-General has been suspended for
misconduct or misbehaviour (new section 6A(3)) a House of Parliament may pass a
resolution confirming or revoking the suspension. If a resolution is passed by both
Houses of Parliament revoking a suspension of a Solicitor-General, that suspension is
revoked from the day the resolution is passed by both Houses of Parliament (new
section 6C(2).
New section 6D – Governor may revoke or vary suspension of
Solicitor-General from office
The clause inserts new section 6D to provide that the Governor may revoke or vary
suspension of a Solicitor-General from office.
Page 6 of 8
The new section 6D(1) provides that the Governor may revoke or vary a suspension
imposed under the new section 6A.
The new sub-section 6D(2) provides that where the Governor has revoked or varied a
suspension of a Solicitor-General, the Minister must lay a statement before each House
of Parliament setting out the grounds of revocation or variation within 7 sittings-days.
Under new sub-section 6D(3) a House of Parliament may pass a resolution either
confirming or revoking the suspension or variation of suspension of a Solicitor-General.
If such a resolution is passed by both Houses of Parliament the suspension is revoked
or varied from the day the resolution is passed (new section 6D(4)).
New section 6E - Request of revocation of appointment
The clause inserts new section 6E to provide that the Governor may request the
revocation of appointment of a Solicitor-General.
The new section 6E provides that the Governor may cause a statement to be laid
before both Houses of Parliament requesting the revocation of appointment of a
Solicitor-General on the grounds for suspension in section 6A(1) or (3) laid for
suspension if the Governor is satisfied that –
a Solicitor-General may be suspended on the grounds in new section 6A(1) or
(3); and
the Governor has suspended the person from office under any grounds in new
section 6A whether or not they are the same as the statement; and
the statement required by new section 6B has been laid before each House of
Parliament; and
where the Solicitor-General has been suspended for misconduct in office or
misbehaviour (new section 6A(3)) that suspension has been confirmed under
new section 6C(1)(a)).
New section 6F – House of Parliament may revoke appointment or
suspension
The clause inserts new section 6F to provide a House of Parliament may revoke
appointment or suspension.
The new section 6F provides a House of Parliament may resolve to refuse a request to
revoke appointment of a Solicitor-General and revoke any suspension from office if that
suspension has not already been revoked or may resolve to revoke the appointment of
a Solicitor-General.
The new section 6F(2) provides that if both Houses of Parliament resolve to revoke the
suspension of the Solicitor-General then the suspension is revoked on and from the day
the resolution of passed by both Houses.
The new section 6F(2) also provides that if both Houses of Parliament resolve to
revoke the appointment of the Solicitor-General the appointment is revoked on and
from the day that the resolution is passed in both Houses of Parliament.
Page 7 of 8
New section 6G – Payment of person suspended from office
The clause inserts new section 6G to provide for the payment of a person suspended
from office.
The new section 6G provides that the Governor specifies in the instrument of
suspension the proportion of salary, if any, the Solicitor-General receives during the
period of suspension. This allows for no, full or part payment of salary during the
period of suspension from office.
Clause 13: Section 7 amended
Functions of Solicitor-General
This clause removes references to “counsel” and substitutes “legal practitioners” in
section 7 of the Principal Act. Note the term legal practitioner is defined in the Legal
Profession Act 2007.
Clause 14: Section 14 inserted
This clause inserts a new section 14 in the Solicitor-General Act 1983
New section 14 – Application of amendments made by the Law
Officers (miscellaneous Amendments) Act 2015
The new section 14 provides that the amendments to the Principal Act do not apply to
the person who immediately before the commencement of the Law Officers
(Miscellaneous Amendments) Act 2015 held the office of Solicitor-General.
Clause 15: Repeal of Act
This clause provides for the repeal of this amending Act after the amendments have
been incorporated into the Principal Acts.
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