Crown Prosecutors Act 1986

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.

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)).

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.

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.

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.

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).

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.

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.