9Powers of Director

#### 9 Powers of Director (1) For the purposes of the performance of his or her functions, the Director may prosecute by indictment in his or her official name indictable offences against the laws of the Commonwealth, but nothing in this subsection prevents the Director from prosecuting an offence against a law of the Commonwealth in any other manner. (2) Where the Director institutes a prosecution on indictment for an offence against a law of the Commonwealth, the indictment shall be signed: (a) by the Director; or (b) for and on behalf of the Director, by a person authorized by the Director, by instrument in writing, to sign indictments. (3) For the purposes of the performance of his or her functions, the Director may take over a prosecution on indictment for an offence against a law of the Commonwealth, being a prosecution instituted by another person (other than the Attorney‑General or a Special Prosecutor). (3A) Where a person holding office as a Special Prosecutor under the Special Prosecutors Act 1982 dies, or ceases for any reason so to hold office and is not forthwith re‑appointed, the Director may, for the purposes of the performance of the Director’s functions, take over a prosecution on indictment for an offence against a law of the Commonwealth, being a prosecution that: (a) was instituted; or (b) was, at the time when the person died or ceased so to hold office, being carried on; by the person, or by a person acting as a Special Prosecutor under that Act in the place of the first‑mentioned person. (4) Where: (a) a person is under commitment, or has been indicted, on a charge of an indictable offence against a law of the Commonwealth; and (b) the prosecution for the offence was instituted, has been taken over or is being carried on by the Director; the Director may decline to proceed further in the prosecution and may, if the person is in custody, by warrant signed by the Director, direct the discharge of the person from custody, and where such a direction is given, the person shall be discharged accordingly. (5) For the purposes of the performance of his or her functions, the Director may take over a proceeding that was instituted or is being carried on by another person, being a proceeding: (a) for the commitment of a person for trial in respect of an indictable offence against a law of the Commonwealth; or (b) for the summary conviction of a person in respect of an offence against a law of the Commonwealth; and where the Director takes over such a proceeding, he or she may decline to carry it on further. (5A) Where the Director is carrying on a proceeding instituted by another person, being a proceeding of the kind mentioned in paragraph (5)(a) or (b), the Director may decline to carry it on further even if the Director has not taken it over under subsection (5). (6) The Director may, if he or she considers it appropriate to do so, give to a person an undertaking that: (a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in specified proceedings; (b) the fact that the person discloses or produces a document or other thing in specified proceedings; or (ba) any information, document or other thing that is obtained as a direct or indirect consequence of an answer that is given, a statement or disclosure that is made, or a document or other thing that is disclosed or produced, in specified proceedings; will not be used in evidence against the person, and where the Director gives such an undertaking: (c) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in the specified proceedings; (d) the fact that the person discloses or produces a document or other thing in the specified proceedings; or (e) any information, document or other thing that is obtained as mentioned in paragraph (ba); as the case may be, is not admissible in evidence against the person in any civil or criminal proceedings in a federal court or in a court of a State or Territory, other than proceedings in respect of the falsity of evidence given by the person. (6A) In subsection (6): > specified proceedings means: (a) proceedings for an offence against, or for the imposition of or the recovery of a pecuniary penalty under, a law of the Commonwealth; (aa) proceedings (including inquiries) under the Crimes (Aviation) Act 1991; (b) proceedings in Australia under the Extradition Act 1988, the International War Crimes Tribunals Act 1995 or the Mutual Assistance in Criminal Matters Act 1987; (c) proceedings by way of a coronial inquest or inquiry conducted under the laws of the Commonwealth; or (d) proceedings under, connected with or arising out of the Proceeds of Crime Act 2002, the Proceeds of Crime Act 1987, Division 3 of Part XIII of the Customs Act 1901 or the forfeiture of goods under the Customs Act 1901. (6B) The Director may, if the Director considers it appropriate to do so, give to a person an undertaking that: (a) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in State or Territory proceedings; (b) the fact that the person discloses or produces a document or other thing in State or Territory proceedings; or (c) any information, document or other thing that is obtained as a direct or indirect consequence of an answer that is given, a statement or disclosure that is made, or a document or other thing that is disclosed or produced in State or Territory proceedings; will not be used in evidence against the person in any civil or criminal proceedings under a law of the Commonwealth, and where the Director gives such an undertaking: (d) an answer that is given, or a statement or disclosure that is made, by the person in the course of giving evidence in the State or Territory proceedings; (e) the fact that the person discloses or produces a document or other thing in the State or Territory proceedings; or (f) any information, document or other thing that is obtained as mentioned in paragraph (c); as the case may be, is not admissible in evidence against the person in any civil or criminal proceedings under a law of the Commonwealth in a federal court or in a court of a State or Territory, other than proceedings in respect of the falsity of evidence given by the person. (6C) In subsection (6B): > State or Territory proceedings means: (a) proceedings in a State or Territory: (i) for an offence against, or for the recovery of a pecuniary penalty under, a law of that State or Territory; or (ii) in respect of a forfeiture order under a law of that State or Territory; or (b) proceedings in a State or Territory by way of a coronial inquest or inquiry under a law of that State or Territory; or (c) proceedings in a State or Territory before a prescribed authority or a prescribed body established under a law of that State or Territory. (6D) The Director may, if the Director considers it appropriate to do so, give to a person an undertaking that the person will not be prosecuted (whether on indictment or summarily): (a) for a specified offence against a law of the Commonwealth; or (b) in respect of specified acts or omissions that constitute, or may constitute, an offence against a law of the Commonwealth. (6E) Where the Director gives to a person an undertaking under subsection (6D), no criminal proceedings shall be instituted in a federal court or in a court of a State or Territory against the person in respect of such an offence or in respect of such acts or omissions. (6F) An undertaking under subsection (6D) may be subject to such conditions (if any) as the Director considers appropriate. (7) Where the Director has instituted or taken over, or is carrying on, a prosecution for an offence against a law of the Commonwealth, the Director may exercise in respect of that prosecution, in addition to such rights of appeal (if any) as are exercisable by him or her otherwise than under this subsection, such rights of appeal (if any) as are exercisable by the Attorney‑General in respect of that prosecution. (8) Nothing in subsection (7) prevents the exercise by the Attorney‑General of a right of appeal that, but for that subsection, would be exercisable by the Attorney‑General. (8A) If: (a) proceedings for the summary conviction of a person in respect of an offence against a law of the Commonwealth were instituted by a person (the relevant person) other than the Director; and (b) the Director subsequently carried on the proceedings; then: (c) in addition to any other rights of appeal the Director has, the Director may exercise, in respect of the proceedings, such rights of appeal as (disregarding the effect of paragraph (d)) are exercisable by the relevant person; and (d) except where the Attorney‑General is the relevant person—the relevant person cannot exercise those rights of appeal. (8B) If: (a) proceedings for the summary conviction of a person in respect of an offence against a law of the Commonwealth were instituted by a person (the relevant person) other than the Director; and (b) the proceedings were not carried on by the Director; then: (c) if the relevant person institutes an appeal in respect of the proceedings, the Director may carry on that appeal on behalf of the relevant person; and (d) if the defendant in the proceedings institutes an appeal in respect of the proceedings, the Director may act on behalf of the respondent in the appeal. (9) For the purposes of the performance of the function referred to in paragraph 6(1)(g), the Director may institute, in the name of the Commonwealth or of an authority of the Commonwealth, proceedings for the recovery of a pecuniary penalty under a law of the Commonwealth. (10) For the purposes of the performance of a function referred to in paragraph 6(1)(fa) or (h), the Director may take, in the name of the Commonwealth or of an authority of the Commonwealth, civil remedies on behalf of the Commonwealth or of that authority, as the case may be. (11) Where an authority of the Commonwealth is a party to a proceeding in respect of a matter: (a) that has arisen out of or is connected with the performance of any of the functions of the Director; or (b) that may result in the performance by the Director of such a function; the Director, or a person who is entitled to represent the Director in proceedings referred to in subsection 15(1), may act as counsel or solicitor for that authority.