The law creates statutory Crown Prosecutor offices, sets their functions (prosecution, indictments, advice), appointment/term and retirement rules, and preserves some prior employment/superannuation rights. It restricts outside paid work, allows part‑time agreements and secondments, and provides suspension, removal and salary‑withholding mechanisms. The State funds pay; the Governor formally appoints/removes, while the Attorney‑General and Director of Public Prosecutions control consent, work allocation, discipline and operational terms.
The Crown Prosecutors Act 1986 is the statutory foundation for the independent prosecutorial arm of the New South Wales criminal justice system. At its core, the Act establishes a regime for the appointment, functions, accountability, tenure and removal of Crown Prosecutors who act on behalf of the Director of Public Prosecutions (DPP).
Part 2 is the engine room. Section 4 empowers the Governor to appoint as many Crown Prosecutors as thought necessary, provided the appointee is an Australian lawyer (s 4(2)). Appointments are for a term of 7 years or a shorter period so that office expires no later than the appointee’s 72nd birthday (s 4(2A)), with eligibility for reappointment. Parallel provisions in ss 4A and 4B allow the Governor to appoint a Senior Crown Prosecutor and one or more Deputy Senior Crown Prosecutors, each enjoying the same term structure. These senior office-holders retain all the functions of an ordinary Crown Prosecutor while also performing additional coordination or supervisory tasks determined by the Director (ss 4A(4), 4B(4)).
The substantive work of the office is set out in Part 3. Section 5(1) lists four statutory functions: (a) to conduct and appear as counsel in proceedings on behalf of the Director; (b) to find a bill of indictment in respect of an indictable offence, whether or not the person has been committed for trial; (c) to advise the Attorney General or Director on referred matters; and (d) to carry out other functions of counsel approved by the Attorney General or Director. Importantly, functions under s 5(1)(b) must be exercised in the name and on behalf of the Director (s 5(2)), and a Crown Prosecutor is expressly denied the power to decide that no bill should be found or that no further proceedings be taken (s 5(3)). This carves out the traditional nolle prosequi power for the Director alone.
Current sections
Direct links to the current provisions in Crown Prosecutors Act 1986.
(1) Sections 1 and 2 shall commence on the date of assent to this Act.
(2) Except as provided by subsection (1), this Act shall commence on such day or days as may be appointed by the Governor and notified by proclamation published in the Gazette.
3
Definitions
3 Definitions
3 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
Director means the Director of Public Prosecutions.
indictable offence means an offence (including a common law offence) that may be prosecuted on indictment.
offence means an offence against the laws of the State.
part-time Crown Prosecutor means a Crown Prosecutor exercising his or her functions as a Crown Prosecutor on a part-time basis, as provided by an agreement referred to in section 4 (3A).
(2) In this Act:
(a) a reference to a function includes a reference to a power, authority and duty, and
(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.
s 3: Am 1995 No 28, Sch 2; 2006 No 23, Sch 3 [1]; 2007 No 51, Sch 2 [1].
Part 2
The Crown Prosecutors
Part 2 The Crown Prosecutors
Part 2 The Crown Prosecutors
3A
Guidelines for appointments
3A Guidelines for appointments
3A Guidelines for appointments
The Attorney General may issue guidelines as to the process for the selection of a person to be proposed for appointment (including reappointment) to any office under this Act. The guidelines are not mandatory and a failure to comply with them does not affect the validity of an appointment.
s 3A: Ins 2007 No 51, Sch 2 [2].
4
Crown Prosecutors
4 Crown Prosecutors
4 Crown Prosecutors
(1) The Governor may appoint such number of Crown Prosecutors as the Governor thinks necessary.
(2) A person is not eligible to be appointed as a Crown Prosecutor unless the person is an Australian lawyer.
(2A) A Crown Prosecutor is to be appointed by the Governor for a term of 7 years or for such shorter term as may be necessary to ensure that the person’s term of office extends to (but not beyond) the date on which the person reaches the age of 72 years. A Crown Prosecutor is eligible (if otherwise qualified) for reappointment.
(3) A Crown Prosecutor shall have and may exercise the functions conferred or imposed on Crown Prosecutors by or under this or any other Act.
(3A) A Crown Prosecutor may, by agreement in writing entered into with the Director of Public Prosecutions, exercise his or her functions as a Crown Prosecutor on a part-time basis.
(4) A Crown Prosecutor is responsible to the Director for the due exercise of the Crown Prosecutor’s functions.
(5) Schedule 1 has effect.
s 4: Am 1995 No 28, Sch 2; 2006 No 23, Sch 3 [2]; 2007 No 51, Sch 2 [3] [4]; 2011 No 34, Sch 2 [1].
4A
Senior Crown Prosecutor
4A Senior Crown Prosecutor
4A Senior Crown Prosecutor
(1) The Governor may appoint a Senior Crown Prosecutor.
(2) A person is not eligible to be appointed as Senior Crown Prosecutor unless the person is an Australian lawyer.
(3) The Senior Crown Prosecutor is to be appointed by the Governor for a term of 7 years or for such shorter term as may be necessary to ensure that the person’s term of office extends to (but not beyond) the date on which the person reaches the age of 72 years. The Senior Crown Prosecutor is eligible (if otherwise qualified) for reappointment.
(4) The Senior Crown Prosecutor has such functions in connection with the work of Crown Prosecutors as the Director determines.
(5) The Senior Crown Prosecutor also has all the functions of a Crown Prosecutor and is taken to be a Crown Prosecutor.
(6) The Senior Crown Prosecutor is responsible to the Director for the due exercise of the Senior Crown Prosecutor’s functions.
s 4A: Ins 2007 No 51, Sch 2 [5]. Am 2011 No 34, Sch 2 [1].
4B
Deputy Senior Crown Prosecutor
4B Deputy Senior Crown Prosecutor
4B Deputy Senior Crown Prosecutor
(1) The Governor may appoint one or more Deputy Senior Crown Prosecutors.
(2) A person is not eligible to be appointed as Deputy Senior Crown Prosecutor unless the person is an Australian lawyer.
(3) A Deputy Senior Crown Prosecutor is to be appointed by the Governor for a term of 7 years or for such shorter term as may be necessary to ensure that the person’s term of office extends to (but not beyond) the date on which the person reaches the age of 72 years. A Deputy Senior Crown Prosecutor is eligible (if otherwise qualified) for reappointment.
(4) A Deputy Senior Crown Prosecutor has such functions in connection with the work of Crown Prosecutors as the Director determines.
(5) A Deputy Senior Crown Prosecutor also has all the functions of a Crown Prosecutor and is taken to be a Crown Prosecutor.
(6) A Deputy Senior Crown Prosecutor is responsible to the Senior Crown Prosecutor for the due exercise of the Deputy Senior Crown Prosecutor’s functions.
s 4B: Ins 2007 No 51, Sch 2 [5]. Am 2011 No 34, Sch 2 [1].
Part 3
Functions
Part 3 Functions
Part 3 Functions
5
Functions
5 Functions
5 Functions
(1) The functions of a Crown Prosecutor are:
(a) to conduct, and appear as counsel in, proceedings on behalf of the Director,
(b) to find a bill of indictment in respect of an indictable offence, whether or not the person concerned has been committed for trial in respect of the offence,
(c) to advise the Attorney General or Director in respect of any matter referred for advice by either of them, and
(d) to carry out such other functions of counsel as the Attorney General or Director approves.
(2) Functions under subsection (1) (b) shall be exercised in the name and on behalf of the Director.
(3) A Crown Prosecutor does not have the function of determining that no bill of indictment be found or directing that no further proceedings be taken against a person.
6
Disposition of work
6 Disposition of work
6 Disposition of work
The Director may make arrangements or give directions for the disposition of the work of the Crown Prosecutors.
7
Offences under Commonwealth laws
7 Offences under Commonwealth laws
7 Offences under Commonwealth laws
If a Crown Prosecutor, with the consent of the Attorney General, holds an appointment, commission or authority to prosecute offences against laws of the Commonwealth, the Crown Prosecutor may institute and conduct (in accordance with the terms of the appointment, commission or authority) prosecutions for such offences.
7A
Attorney General may arrange secondments
7A Attorney General may arrange secondments
7A Attorney General may arrange secondments
The Attorney General may make arrangements with the Director for the secondment of Crown Prosecutors to act as Public Defenders or to assist in the conduct of inquiries or investigations under the Royal Commissions Act 1923 or the Independent Commission Against Corruption Act 1988 or other such inquiries or investigations.
s 7A: Ins 1995 No 28, Sch 2.
Part 4
Miscellaneous
Part 4 Miscellaneous
Part 4 Miscellaneous
8
8
8 (Repealed)
9
Vacation of office
9 Vacation of office
9 Vacation of office
(1) A Crown Prosecutor vacates office if he or she:
(a) dies, or
(b) resigns the office by instrument in writing addressed to the Governor, or
(c) reaches the age of 72 years, or
(d) ceases to be an Australian lawyer, or
(e) is removed from office by the Governor under subsection (2), (3) or (4).
(2) A Crown Prosecutor who fails, without reasonable excuse, to comply with section 10 is to be removed from office by the Governor.
(3) The Governor may remove a Crown Prosecutor from office for incapacity, incompetence, misbehaviour or unsatisfactory performance.
(4) The Governor may also remove a Crown Prosecutor from office if the Crown Prosecutor:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(b) becomes a mentally incapacitated person, or
(c) absents himself or herself from duty for 14 days (whether or not wholly or partly consecutive) in any period of 12 months, except on leave granted by the Attorney General or unless the absence is occasioned by illness or other unavoidable cause, or
(d) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or
(e) is convicted elsewhere than in New South Wales of an offence that if committed in New South Wales would be an offence so punishable.
(5) Anything done or purporting to have been done by a Crown Prosecutor after he or she reaches the age of 72 years is nevertheless as valid as if he or she had not reached that age.
(6) In this section, Crown Prosecutor includes the Senior Crown Prosecutor and a Deputy Senior Crown Prosecutor.
s 9: Am 1990 No 99, Sch 4; 1995 No 28, Sch 2; 1999 No 94, Sch 4.100; 2007 No 51, Sch 2 [6]–[10]. Subst 2008 No 107, Sch 8 [1]. Am 2011 No 34, Sch 2 [1].
9A
Suspension from duty pending decision in relation to misconduct
9A Suspension from duty pending decision in relation to misconduct
9A Suspension from duty pending decision in relation to misconduct
(1) If of the opinion that there may be grounds for a Crown Prosecutor’s removal from office, the Director of Public Prosecutions may suspend the Crown Prosecutor from duty pending a decision being made as to whether or not he or she should be so removed.
(2) If the Director of Public Prosecutions so directs, any salary payable to the Crown Prosecutor in relation to the period during which he or she is under suspension is to be withheld.
(3) If the Crown Prosecutor is removed from office, any salary so withheld is forfeited to the State unless the Director of Public Prosecutions otherwise directs.
(4) A suspension imposed under this section may be removed by the Director of Public Prosecutions at any time.
(5) In this section, Crown Prosecutor includes the Senior Crown Prosecutor and a Deputy Senior Crown Prosecutor.
s 9A: Ins 2008 No 107, Sch 8 [2].
10
Other work
10 Other work
10 Other work
(1) The Senior Crown Prosecutor, a Deputy Senior Crown Prosecutor or a Crown Prosecutor shall not, without the consent of the Attorney General or the Director:
(a) engage in the practice of the law (whether within or outside New South Wales) outside the duties of his or her office, or
(b) engage in paid employment outside the duties of his or her office.
(2) The Senior Crown Prosecutor, a Deputy Senior Crown Prosecutor or a Crown Prosecutor shall not contravene or fail to comply with any conditions attached to any such consent.
s 10: Am 2007 No 51, Sch 2 [11].
11
Government Sector Employment Act 2013 not to apply
11 Government Sector Employment Act 2013 not to apply
The offices of Senior Crown Prosecutor, Deputy Senior Crown Prosecutor and Crown Prosecutor are statutory offices and the Government Sector Employment Act 2013 (including Part 6) does not apply to those offices.
s 11: Subst 2007 No 51, Sch 2 [12]; 2015 No 15, Sch 3.19 [1].
12
Remuneration and leave
12 Remuneration and leave
12 Remuneration and leave
(1) The Senior Crown Prosecutor, a Deputy Senior Crown Prosecutor and a Crown Prosecutor are entitled to be paid:
(b) such travelling and subsistence allowances as the Attorney General may from time to time determine.
(2) The leave that may be granted to the Senior Crown Prosecutor, a Deputy Senior Crown Prosecutor or a Crown Prosecutor is to be as the Attorney General may from time to time determine.
s 12: Am 1987 No 48, Sch 30. Subst 2007 No 51, Sch 2 [12].
13
Acting appointments
13 Acting appointments
13 Acting appointments
(1) The Attorney General may appoint a person who is eligible for appointment as such to act in the office of Senior Crown Prosecutor, Deputy Senior Crown Prosecutor or Crown Prosecutor.
(2) The Attorney General may:
(a) subject to this section, determine the terms and conditions of appointment, including remuneration and allowances, of a person acting in the office of Senior Crown Prosecutor, Deputy Senior Crown Prosecutor or Crown Prosecutor, and
(b) terminate such an appointment at any time.
(3) A person may not act or be appointed to act under this section for a period of more than 12 months at a time.
(4) While a person is acting in the office of Senior Crown Prosecutor, Deputy Senior Crown Prosecutor or Crown Prosecutor, the person has and may exercise all the functions of that office and is taken to be the holder of that office.
(5) A person may be appointed to act in an office under this section (and may act in that office) even if the person is of or above the age at which a holder of the office would vacate the office.
s 13: Subst 2007 No 51, Sch 2 [12].
14
Savings and transitional provisions
14 Savings and transitional provisions
14 Savings and transitional provisions
(1) In this section, a reference to an existing Crown Prosecutor or a person holding a commission as an existing Crown Prosecutor is a reference to a person holding an appointment under section 5 of The Australian Courts Act 1828 (9 Geo IV, c 83) or section 572 of the Crimes Act 1900.
(2) All appointments under section 5 of The Australian Courts Act 1828 and section 572 of the Crimes Act 1900 are revoked.
(3) The persons holding commissions and paid as existing Crown Prosecutors immediately before the commencement of this subsection shall, if eligible to be appointed as Crown Prosecutors under this Act, be deemed to have been appointed as Crown Prosecutors under this Act.
(4) Anything done or omitted before the commencement of this subsection by an existing Crown Prosecutor shall be deemed to have been done or omitted by a Crown Prosecutor appointed under this Act.
(5) Nothing in this Act affects any proceedings pending immediately before the commencement of this subsection in which an existing Crown Prosecutor was appearing, and the Crown Prosecutor may continue to appear.
(6) A reference in any other Act, in any instrument made under any Act or in any other instrument of any kind to a Crown Prosecutor shall be read as a reference to a Crown Prosecutor appointed under this Act.
(7) In the case of a person holding a commission as an existing Crown Prosecutor immediately before the commencement of this subsection, the references in sections 8 and 9 to the age of 65 years shall be read as references to the age of 70 years.
(8) Section 4 (3A) applies to a Crown Prosecutor appointed before the commencement of that subsection.
(9) Until a relevant determination is made and takes effect under the Statutory and Other Offices Remuneration Act 1975, a part-time Crown Prosecutor is entitled to be paid in accordance with the determination in force for the time being for Crown Prosecutors, but on a pro rata basis (according to time spent in service), as calculated by the Attorney General.
(10) Schedule 2 has effect.
s 14: Am 2006 No 23, Sch 3 [3]; 2007 No 51, Sch 2 [13].
Schedule 1
Certain rights of Crown Prosecutors
Schedule 1 Certain rights of Crown Prosecutors
Schedule 1 Certain rights of Crown Prosecutors
(Section 4 (5))
sch 1: Am 1991 No 17, Sch 1; 2007 No 51, Sch 2 [14] [15]; 2015 No 15, Sch 3.19 [2]–[6].
Schedule 2
Savings and transitional provisions
Schedule 2 Savings and transitional provisions
Schedule 2 Savings and transitional provisions
(Section 14 (10))
sch 2: Ins 2007 No 51, Sch 2 [16]. Am 2011 No 34, Sch 2 [2] [3].
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act may be cited as the Crown Prosecutors Act 1986.
2 Commencement
2 Commencement
2 Commencement
(1) Sections 1 and 2 shall commence on the date of assent to this Act.
(2) Except as provided by subsection (1), this Act shall commence on such day or days as may be appointed by the Governor and notified by proclamation published in the Gazette.
3 Definitions
3 Definitions
3 Definitions
(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
Director means the Director of Public Prosecutions.
indictable offence means an offence (including a common law offence) that may be prosecuted on indictment.
offence means an offence against the laws of the State.
part-time Crown Prosecutor means a Crown Prosecutor exercising his or her functions as a Crown Prosecutor on a part-time basis, as provided by an agreement referred to in section 4 (3A).
(2) In this Act:
(a) a reference to a function includes a reference to a power, authority and duty, and
(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.
s 3: Am 1995 No 28, Sch 2; 2006 No 23, Sch 3 [1]; 2007 No 51, Sch 2 [1].
Part 2 The Crown Prosecutors
Part 2 The Crown Prosecutors
Part 2 The Crown Prosecutors
3A Guidelines for appointments
3A Guidelines for appointments
3A Guidelines for appointments
The Attorney General may issue guidelines as to the process for the selection of a person to be proposed for appointment (including reappointment) to any office under this Act. The guidelines are not mandatory and a failure to comply with them does not affect the validity of an appointment.
Section 6 gives the Director broad authority to make arrangements or give directions for the disposition of the Crown Prosecutors’ work. Section 7 permits a Crown Prosecutor, with the Attorney General’s consent, to prosecute Commonwealth offences if separately commissioned. Section 7A, inserted in 1995, authorises the Attorney General to arrange secondments of Crown Prosecutors to act as Public Defenders or to assist royal commissions or Independent Commission Against Corruption inquiries.
Part 4 contains the accountability and tenure machinery. Section 9 exhaustively lists the circumstances in which a Crown Prosecutor vacates office: death, resignation, attaining 72 years, ceasing to be an Australian lawyer, or removal by the Governor on any of the grounds in subsections (2)–(4). These grounds include failure to comply with the outside-work restrictions in s 10, incapacity, incompetence, misbehaviour, unsatisfactory performance, bankruptcy, mental incapacity, unauthorised absence for 14 days in any 12-month period, or conviction of a serious offence. Section 9A, inserted in 2008, adds a power for the Director to suspend a Crown Prosecutor from duty (and, if directed, withhold salary) where the Director believes there may be grounds for removal. The Senior Crown Prosecutor, Deputy Senior Crown Prosecutors and ordinary Crown Prosecutors are all treated identically for vacation and suspension purposes (ss 9(6), 9A(5)).
Restrictions on outside activities are strict. Section 10 prohibits the Senior Crown Prosecutor, Deputy Senior Crown Prosecutors or any Crown Prosecutor from engaging in legal practice or paid employment outside their official duties without the consent of the Attorney General or the Director; any conditions attached to such consent must be obeyed. Breach without reasonable excuse triggers mandatory removal under s 9(2).
The Act expressly removes these offices from the Government Sector Employment Act 2013 (s 11), confirming their statutory character. Remuneration and leave are governed by the Statutory and Other Offices Remuneration Act 1975 and determinations made by the Attorney General (s 12). Acting appointments may be made by the Attorney General for periods not exceeding 12 months at a time (s 13), and an acting appointee may even be over the normal retirement age (s 13(5)).
Two schedules complete the picture. Schedule 1 preserves superannuation, leave and reappointment rights for Crown Prosecutors who previously held public-sector positions, while preventing double-dipping (cl 2(4)). Schedule 2 contains detailed savings and transitional rules, most of which flow from the 2007 abolition of life tenure and the 2011 increase in retirement age. These clauses grandfather existing office-holders, preserve accrued rights and deem certain prior appointments to satisfy the new 7-year term structure.
In short, the Act creates a self-contained statutory corporation sole for each prosecutor while ensuring operational control by the Director, clear ethical boundaries and a transparent removal regime.
Who it affects
The legislation directly affects three concentric groups.
First, the individuals who hold or seek to hold the offices of Crown Prosecutor, Senior Crown Prosecutor or Deputy Senior Crown Prosecutor. Only Australian lawyers are eligible (ss 4(2), 4A(2), 4B(2)). The Act applies equally to full-time and part-time appointees (defined in s 3(1) by reference to a written agreement under s 4(3A)). Existing office-holders at the time of major amendments in 2007 and 2011 are expressly protected by Schedule 2, cll 3–6, so a cohort of life-tenure prosecutors continued under transitional rules.
Second, the Director of Public Prosecutions is both beneficiary and supervisor. Every prosecutorial function is exercised on the Director’s behalf (s 5(2)), Crown Prosecutors are “responsible to the Director for the due exercise of [their] functions” (ss 4(4), 4A(6), 4B(6)), and the Director alone may suspend (s 9A), assign work (s 6) or consent to outside practice (s 10). The Attorney General also holds significant powers: issuing appointment guidelines (s 3A), consenting to Commonwealth prosecutions (s 7), arranging secondments (s 7A), granting leave or determining travelling allowances (s 12), and removing office-holders for cause (s 9).
Third, the broader criminal justice system and the public are affected. Any person facing an indictable offence in New South Wales may be prosecuted by a Crown Prosecutor exercising the s 5(1)(b) function. Victims, witnesses and accused persons therefore interact with prosecutors whose independence, impartiality and ethical boundaries are statutorily prescribed. The preservation-of-rights provisions in Schedule 1 indirectly affect public-sector superannuation schemes and employing agencies that must recognise prior service when a prosecutor returns to the public service under cl 3.
Finally, the legislation touches statutory bodies declared by the Governor under Schedule 1 cl 4, because their employees who become Crown Prosecutors retain certain accrued rights.
Key duties and rights
Duties are concentrated in ss 5, 6, 9A and 10. The primary duty is to perform the four functions in s 5(1) diligently and in the name of the Director where appropriate. The duty to be “responsible to the Director” (ss 4(4), 4A(6), 4B(6)) imports an obligation to accept and follow lawful directions on case allocation (s 6). The negative duty in s 5(3) is crucial: a Crown Prosecutor must not determine that no bill of indictment be found. Ethical duties are reinforced by the prohibition on outside practice without consent (s 10(1)) and the mandatory removal trigger in s 9(2) for non-compliance.
Rights are both substantive and transitional. A Crown Prosecutor has a statutory right to a fixed term (subject to removal for cause), to remuneration fixed under the Statutory and Other Offices Remuneration Act 1975, and to travelling and subsistence allowances determined by the Attorney General (s 12). Leave is at the Attorney General’s discretion (s 12(2)). Part-time Crown Prosecutors enjoy pro-rata remuneration until a specific determination is made (s 14(9)).
Schedule 1 confers valuable accrued-rights protections. A prosecutor who was previously a public servant, statutory body officer or superannuation contributor retains those rights as if service as a Crown Prosecutor were continuing public-sector service (cl 2(1)). Reappointment rights for former public servants are preserved at no lower classification (cl 3(1)). Acting appointees enjoy all the functions and immunities of the substantive office (s 13(4)).
Transitional rights in Schedule 2 are extensive. Existing Senior and Deputy Senior Crown Prosecutors at the 2007 commencement are taken to have been appointed under the new sections and are not subject to the new retirement age (cl 4). Former Crown Prosecutors who move to other “Crown law offices” enjoy a right of return to the office of Crown Prosecutor within three months (cl 5). Prior acting appointments survive the 2007 substitution of s 13 (cl 6). The 2011 retirement-age amendments are expressed not to disturb any preserved right to hold office beyond a previous retiring age (cl 7(3)).
Penalties and enforcement
The Act does not create criminal offences. Instead, enforcement is administrative and disciplinary. The principal sanction is removal from office by the Governor. Section 9(2) makes removal mandatory where a prosecutor fails, without reasonable excuse, to comply with s 10. Section 9(3) confers a discretionary power of removal for incapacity, incompetence, misbehaviour or unsatisfactory performance. Section 9(4) lists five further discretionary grounds ranging from bankruptcy to conviction of a serious offence.
Suspension under s 9A operates as an interim measure. The Director may suspend if of the opinion that there “may be grounds” for removal. Salary may be withheld during suspension and is forfeited to the State if removal ultimately occurs, unless the Director directs otherwise (s 9A(3)). The Director may lift the suspension at any time (s 9A(4)).
Because Crown Prosecutors are not covered by the Government Sector Employment Act 2013 (s 11), the usual public-sector disciplinary codes do not apply; the Act supplies a complete code. Vacation of office upon attaining 72 years is automatic (s 9(1)(c)), although acts performed after that birthday remain valid (s 9(5)).
The only indirect “penalty” for the public is the invalidity of any prosecutorial act that falls outside the statutory functions. However, the Act contains no express privative clause; validity questions would fall to be determined under general administrative law principles.
How it interacts with other laws
The Act is expressly linked to a constellation of statutes.
The Director of Public Prosecutions Act 1986 is the companion statute; the Crown Prosecutors Act repeatedly positions the prosecutors as officers responsible to the Director and exercising functions “on behalf of the Director”. The Crimes Act 1900 and Criminal Procedure Act 1986 supply the underlying substantive and procedural law that Crown Prosecutors apply when finding bills of indictment or appearing in court.
Remuneration is fixed by reference to the Statutory and Other Offices Remuneration Act 1975 (s 12(1)(a)). The exclusion of the Government Sector Employment Act 2013 (s 11) removes the offices from public-sector employment frameworks, including Part 6 disciplinary and review mechanisms.
Secondment authority in s 7A expressly references the Royal Commissions Act 1923 and the Independent Commission Against Corruption Act 1988. Commonwealth prosecutions under s 7 require a separate commission under Commonwealth law, illustrating the federal dimension.
Schedule 1 interacts with any superannuation scheme established by or under an Act (cl 2(5)), and with the public service and statutory-body employment statutes that previously governed transferred officers. The savings provisions in s 14 and Schedule 2 repeatedly amend or disapply parts of the Act itself in relation to pre-2007 and pre-2011 office-holders, creating a layered temporal interaction.
The Attorney General’s guideline power in s 3A is expressed to be non-mandatory; non-compliance does not affect validity of an appointment, thereby insulating the Governor’s prerogative power from procedural challenge.
Recent changes and why
The two most significant reforms occurred in 2007 and 2011.
The Crown Law Officers Legislation Amendment (Abolition of Life Tenure) Act 2007 replaced life tenure with 7-year renewable terms (subject to the age-72 ceiling), introduced the statutory offices of Senior Crown Prosecutor and Deputy Senior Crown Prosecutor, inserted the part-time working regime, tightened outside-work restrictions, and added the new s 9A suspension power. The stated policy was to modernise tenure, improve flexibility and bring Crown law officers into line with contemporary standards of accountability and performance management. Transitional provisions in the new Schedule 2 were required to protect the legitimate expectations of existing life-tenure holders (cll 3–6).
The Crown Law Officers Legislation Amendment (Retirement Age) Act 2011 increased the compulsory retirement age from 65 to 72 for both Crown Prosecutors and judges, reflecting demographic reality and the need to retain experienced prosecutors. It also deemed certain shorter-term appointments to be 7-year terms (Schedule 2 cl 7(1)) and confirmed that earlier rights preserved in Schedule 1 were not disturbed (cl 7(3)). The 2008 amendments that inserted s 9A and substituted s 9 were preserved and clarified.
These changes were not cosmetic. They altered the fundamental bargain between the State and its most senior prosecutors from a near-judicial tenure model to a fixed-term, performance-monitored model while preserving accrued rights to avoid legal challenge.
Court challenges and controversies
The source text itself contains no reported litigation. However, the structure of the Act has been crafted with obvious awareness of potential justiciable issues.
The non-mandatory nature of the s 3A appointment guidelines was plainly inserted to foreclose arguments that procedural unfairness in selection could invalidate an appointment. The broad removal grounds in s 9(3) (“misbehaviour or unsatisfactory performance”) echo the constitutional language used for judicial removal and would likely attract implied procedural fairness obligations, although the Act is silent on process.
The mandatory removal for breach of s 10 (s 9(2)) removes discretion and could be challenged on Wednesbury unreasonableness grounds if “reasonable excuse” is construed too narrowly. Suspension under s 9A turns on the Director’s “opinion”, a formulation that usually attracts only limited judicial review.
Transitional provisions in Schedule 2 have been drafted with extreme care to prevent prejudice to existing rights (see cl 1(3) of Schedule 2 Part 1), reflecting lessons from earlier public-sector tenure litigation. No doubt the 2007 abolition of life tenure generated internal controversy within the Crown law community, but the grandfathering clauses appear to have prevented reported cases.
The constitutional validity of using Imperial statutes (Australian Courts Act 1828) as the historical root for existing commissions was sidestepped by the wholesale revocation and re-appointment mechanism in s 14(2)–(3).
Gotchas
Most practitioners assume that once appointed, a Crown Prosecutor enjoys near-judicial independence. The Act reveals a more nuanced reality: the Director’s power to direct the disposition of work (s 6) and the express responsibility owed to the Director (s 4(4)) mean operational independence is qualified. The prohibition on deciding that “no bill of indictment be found” (s 5(3)) is a sleeper provision; many counsel instinctively believe they can enter a nolle, yet the statute reserves that power exclusively to the Director.
The interaction between s 9A suspension and salary forfeiture is another trap. A prosecutor suspended on full pay who is later removed may still forfeit the withheld salary unless the Director positively directs otherwise. Because the Director is both investigator and decision-maker, natural justice arguments are inevitable but not expressly addressed in the statute.
Schedule 1 cl 2(4) contains a deceptively simple anti-double-dipping rule. A prosecutor who becomes a contributor to a second superannuation scheme loses the right to continue contributing to the first and the deemed-service fiction ceases. Many former public servants do not realise that accepting an offer to join the State Superannuation Scheme after appointment can extinguish prior preserved rights.
The 12-month limit on acting appointments (s 13(3)) is often overlooked when the Director needs prolonged coverage. Successive back-to-back acting appointments risk breaching the statutory maximum.
Finally, the definition of “part-time Crown Prosecutor” (s 3(1)) requires a written agreement with the Director. Without that instrument, the pro-rata remuneration rules in s 14(9) and the part-time status itself may not be recognised, exposing both parties to disputes over entitlements.
How to comply
Compliance for a prospective appointee begins with ensuring Australian lawyer status and obtaining a Governor’s instrument that complies with the 7-year (or shorter) term limit. Upon appointment, the first task is to enter a written part-time agreement if that status is desired (s 4(3A)).
Day-to-day compliance requires strict adherence to the Director’s case-allocation directions (s 6) and the statutory functions in s 5. Any request for advice or appearance must be routed through the Director’s office so that the “on behalf of the Director” requirement is satisfied. When finding a bill of indictment, the prosecutor must act in the Director’s name and must never purport to decide that no bill should issue.
Outside-practice compliance is binary: obtain written consent from the Attorney General or the Director before any legal practice or paid employment, and then comply with every condition attached. The consent should be renewed annually or whenever circumstances change. Failure triggers mandatory removal (s 9(2)), so the prudent prosecutor treats s 10 as a bright-line rule.
For those moving from public service, a detailed letter should be obtained recording which rights are preserved under Schedule 1. Superannuation contributions must be managed so that the anti-double-dipping rule in cl 2(2) is not inadvertently engaged.
Senior Crown Prosecutors and Deputies must additionally discharge any extra functions allocated by the Director while remaining personally responsible for their own prosecutorial decisions.
On the institutional side, the Director should maintain a central register of consents granted under s 10, issue clear written directions under s 6, and document the grounds for any s 9A suspension contemporaneously. Appointment guidelines issued under s 3A, though non-mandatory, should be followed to reduce judicial-review risk.
When secondments are arranged under s 7A, a formal deed should record the scope of functions so that the prosecutor does not inadvertently exceed the terms of the original commission.
Finally, all office-holders should maintain a personal file that records the precise date of appointment, the expiry date (calculated to the 72nd birthday), and any transitional rights preserved under Schedule 2. In an era of frequent amending Acts, the safest compliance strategy is to treat the current consolidated version, including all notes on amendments, as the single source of truth.
(1) The Governor may appoint such number of Crown Prosecutors as the Governor thinks necessary.
(2) A person is not eligible to be appointed as a Crown Prosecutor unless the person is an Australian lawyer.
(2A) A Crown Prosecutor is to be appointed by the Governor for a term of 7 years or for such shorter term as may be necessary to ensure that the person’s term of office extends to (but not beyond) the date on which the person reaches the age of 72 years. A Crown Prosecutor is eligible (if otherwise qualified) for reappointment.
(3) A Crown Prosecutor shall have and may exercise the functions conferred or imposed on Crown Prosecutors by or under this or any other Act.
(3A) A Crown Prosecutor may, by agreement in writing entered into with the Director of Public Prosecutions, exercise his or her functions as a Crown Prosecutor on a part-time basis.
(4) A Crown Prosecutor is responsible to the Director for the due exercise of the Crown Prosecutor’s functions.
(5) Schedule 1 has effect.
s 4: Am 1995 No 28, Sch 2; 2006 No 23, Sch 3 [2]; 2007 No 51, Sch 2 [3] [4]; 2011 No 34, Sch 2 [1].
4A Senior Crown Prosecutor
4A Senior Crown Prosecutor
4A Senior Crown Prosecutor
(1) The Governor may appoint a Senior Crown Prosecutor.
(2) A person is not eligible to be appointed as Senior Crown Prosecutor unless the person is an Australian lawyer.
(3) The Senior Crown Prosecutor is to be appointed by the Governor for a term of 7 years or for such shorter term as may be necessary to ensure that the person’s term of office extends to (but not beyond) the date on which the person reaches the age of 72 years. The Senior Crown Prosecutor is eligible (if otherwise qualified) for reappointment.
(4) The Senior Crown Prosecutor has such functions in connection with the work of Crown Prosecutors as the Director determines.
(5) The Senior Crown Prosecutor also has all the functions of a Crown Prosecutor and is taken to be a Crown Prosecutor.
(6) The Senior Crown Prosecutor is responsible to the Director for the due exercise of the Senior Crown Prosecutor’s functions.
s 4A: Ins 2007 No 51, Sch 2 [5]. Am 2011 No 34, Sch 2 [1].
4B Deputy Senior Crown Prosecutor
4B Deputy Senior Crown Prosecutor
4B Deputy Senior Crown Prosecutor
(1) The Governor may appoint one or more Deputy Senior Crown Prosecutors.
(2) A person is not eligible to be appointed as Deputy Senior Crown Prosecutor unless the person is an Australian lawyer.
(3) A Deputy Senior Crown Prosecutor is to be appointed by the Governor for a term of 7 years or for such shorter term as may be necessary to ensure that the person’s term of office extends to (but not beyond) the date on which the person reaches the age of 72 years. A Deputy Senior Crown Prosecutor is eligible (if otherwise qualified) for reappointment.
(4) A Deputy Senior Crown Prosecutor has such functions in connection with the work of Crown Prosecutors as the Director determines.
(5) A Deputy Senior Crown Prosecutor also has all the functions of a Crown Prosecutor and is taken to be a Crown Prosecutor.
(6) A Deputy Senior Crown Prosecutor is responsible to the Senior Crown Prosecutor for the due exercise of the Deputy Senior Crown Prosecutor’s functions.
s 4B: Ins 2007 No 51, Sch 2 [5]. Am 2011 No 34, Sch 2 [1].
Part 3 Functions
Part 3 Functions
Part 3 Functions
5 Functions
5 Functions
5 Functions
(1) The functions of a Crown Prosecutor are:
(a) to conduct, and appear as counsel in, proceedings on behalf of the Director,
(b) to find a bill of indictment in respect of an indictable offence, whether or not the person concerned has been committed for trial in respect of the offence,
(c) to advise the Attorney General or Director in respect of any matter referred for advice by either of them, and
(d) to carry out such other functions of counsel as the Attorney General or Director approves.
(2) Functions under subsection (1) (b) shall be exercised in the name and on behalf of the Director.
(3) A Crown Prosecutor does not have the function of determining that no bill of indictment be found or directing that no further proceedings be taken against a person.
6 Disposition of work
6 Disposition of work
6 Disposition of work
The Director may make arrangements or give directions for the disposition of the work of the Crown Prosecutors.
7 Offences under Commonwealth laws
7 Offences under Commonwealth laws
7 Offences under Commonwealth laws
If a Crown Prosecutor, with the consent of the Attorney General, holds an appointment, commission or authority to prosecute offences against laws of the Commonwealth, the Crown Prosecutor may institute and conduct (in accordance with the terms of the appointment, commission or authority) prosecutions for such offences.
7A Attorney General may arrange secondments
7A Attorney General may arrange secondments
7A Attorney General may arrange secondments
The Attorney General may make arrangements with the Director for the secondment of Crown Prosecutors to act as Public Defenders or to assist in the conduct of inquiries or investigations under the Royal Commissions Act 1923 or the Independent Commission Against Corruption Act 1988 or other such inquiries or investigations.
s 7A: Ins 1995 No 28, Sch 2.
Part 4 Miscellaneous
Part 4 Miscellaneous
Part 4 Miscellaneous
8
8 (Repealed)
8
s 8: Rep 1990 No 99, Sch 4.
9 Vacation of office
9 Vacation of office
9 Vacation of office
(1) A Crown Prosecutor vacates office if he or she:
(a) dies, or
(b) resigns the office by instrument in writing addressed to the Governor, or
(c) reaches the age of 72 years, or
(d) ceases to be an Australian lawyer, or
(e) is removed from office by the Governor under subsection (2), (3) or (4).
(2) A Crown Prosecutor who fails, without reasonable excuse, to comply with section 10 is to be removed from office by the Governor.
(3) The Governor may remove a Crown Prosecutor from office for incapacity, incompetence, misbehaviour or unsatisfactory performance.
(4) The Governor may also remove a Crown Prosecutor from office if the Crown Prosecutor:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(b) becomes a mentally incapacitated person, or
(c) absents himself or herself from duty for 14 days (whether or not wholly or partly consecutive) in any period of 12 months, except on leave granted by the Attorney General or unless the absence is occasioned by illness or other unavoidable cause, or
(d) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or
(e) is convicted elsewhere than in New South Wales of an offence that if committed in New South Wales would be an offence so punishable.
(5) Anything done or purporting to have been done by a Crown Prosecutor after he or she reaches the age of 72 years is nevertheless as valid as if he or she had not reached that age.
(6) In this section, Crown Prosecutor includes the Senior Crown Prosecutor and a Deputy Senior Crown Prosecutor.
s 9: Am 1990 No 99, Sch 4; 1995 No 28, Sch 2; 1999 No 94, Sch 4.100; 2007 No 51, Sch 2 [6]–[10]. Subst 2008 No 107, Sch 8 [1]. Am 2011 No 34, Sch 2 [1].
9A Suspension from duty pending decision in relation to misconduct
9A Suspension from duty pending decision in relation to misconduct
9A Suspension from duty pending decision in relation to misconduct
(1) If of the opinion that there may be grounds for a Crown Prosecutor’s removal from office, the Director of Public Prosecutions may suspend the Crown Prosecutor from duty pending a decision being made as to whether or not he or she should be so removed.
(2) If the Director of Public Prosecutions so directs, any salary payable to the Crown Prosecutor in relation to the period during which he or she is under suspension is to be withheld.
(3) If the Crown Prosecutor is removed from office, any salary so withheld is forfeited to the State unless the Director of Public Prosecutions otherwise directs.
(4) A suspension imposed under this section may be removed by the Director of Public Prosecutions at any time.
(5) In this section, Crown Prosecutor includes the Senior Crown Prosecutor and a Deputy Senior Crown Prosecutor.
s 9A: Ins 2008 No 107, Sch 8 [2].
10 Other work
10 Other work
10 Other work
(1) The Senior Crown Prosecutor, a Deputy Senior Crown Prosecutor or a Crown Prosecutor shall not, without the consent of the Attorney General or the Director:
(a) engage in the practice of the law (whether within or outside New South Wales) outside the duties of his or her office, or
(b) engage in paid employment outside the duties of his or her office.
(2) The Senior Crown Prosecutor, a Deputy Senior Crown Prosecutor or a Crown Prosecutor shall not contravene or fail to comply with any conditions attached to any such consent.
s 10: Am 2007 No 51, Sch 2 [11].
11 Government Sector Employment Act 2013 not to apply
11 Government Sector Employment Act 2013 not to apply
11 Government Sector Employment Act 2013 not to apply
The offices of Senior Crown Prosecutor, Deputy Senior Crown Prosecutor and Crown Prosecutor are statutory offices and the Government Sector Employment Act 2013 (including Part 6) does not apply to those offices.
s 11: Subst 2007 No 51, Sch 2 [12]; 2015 No 15, Sch 3.19 [1].
12 Remuneration and leave
12 Remuneration and leave
12 Remuneration and leave
(1) The Senior Crown Prosecutor, a Deputy Senior Crown Prosecutor and a Crown Prosecutor are entitled to be paid:
(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and
(b) such travelling and subsistence allowances as the Attorney General may from time to time determine.
(2) The leave that may be granted to the Senior Crown Prosecutor, a Deputy Senior Crown Prosecutor or a Crown Prosecutor is to be as the Attorney General may from time to time determine.
s 12: Am 1987 No 48, Sch 30. Subst 2007 No 51, Sch 2 [12].
13 Acting appointments
13 Acting appointments
13 Acting appointments
(1) The Attorney General may appoint a person who is eligible for appointment as such to act in the office of Senior Crown Prosecutor, Deputy Senior Crown Prosecutor or Crown Prosecutor.
(2) The Attorney General may:
(a) subject to this section, determine the terms and conditions of appointment, including remuneration and allowances, of a person acting in the office of Senior Crown Prosecutor, Deputy Senior Crown Prosecutor or Crown Prosecutor, and
(b) terminate such an appointment at any time.
(3) A person may not act or be appointed to act under this section for a period of more than 12 months at a time.
(4) While a person is acting in the office of Senior Crown Prosecutor, Deputy Senior Crown Prosecutor or Crown Prosecutor, the person has and may exercise all the functions of that office and is taken to be the holder of that office.
(5) A person may be appointed to act in an office under this section (and may act in that office) even if the person is of or above the age at which a holder of the office would vacate the office.
s 13: Subst 2007 No 51, Sch 2 [12].
14 Savings and transitional provisions
14 Savings and transitional provisions
14 Savings and transitional provisions
(1) In this section, a reference to an existing Crown Prosecutor or a person holding a commission as an existing Crown Prosecutor is a reference to a person holding an appointment under section 5 of The Australian Courts Act 1828 (9 Geo IV, c 83) or section 572 of the Crimes Act 1900.
(2) All appointments under section 5 of The Australian Courts Act 1828 and section 572 of the Crimes Act 1900 are revoked.
(3) The persons holding commissions and paid as existing Crown Prosecutors immediately before the commencement of this subsection shall, if eligible to be appointed as Crown Prosecutors under this Act, be deemed to have been appointed as Crown Prosecutors under this Act.
(4) Anything done or omitted before the commencement of this subsection by an existing Crown Prosecutor shall be deemed to have been done or omitted by a Crown Prosecutor appointed under this Act.
(5) Nothing in this Act affects any proceedings pending immediately before the commencement of this subsection in which an existing Crown Prosecutor was appearing, and the Crown Prosecutor may continue to appear.
(6) A reference in any other Act, in any instrument made under any Act or in any other instrument of any kind to a Crown Prosecutor shall be read as a reference to a Crown Prosecutor appointed under this Act.
(7) In the case of a person holding a commission as an existing Crown Prosecutor immediately before the commencement of this subsection, the references in sections 8 and 9 to the age of 65 year
This is an opening excerpt, not the complete document.
Crown Prosecutors Act 1986 (New South Wales) | Zoe