Director of Public Prosecutions Act 1984

The Act defines key terms in section 4. “Criminal proceedings” means proceedings on indictment for an offence defined in the Criminal Code, other proceedings on indictment, and proceedings in the Supreme Court commenced by a person charged with an indictable offence in connection with the offence before the presentation of an indictment. “Director” means the Director of Public Prosecutions appointed under the Act. “Australian lawyer” has the meaning given in schedule 2 of the Legal Profession Act 2007, and “lawyer” means an Australian lawyer who, under that Act, may engage in legal practice in Queensland. The creation of the office of director is provided for by section 4A, which states there is to be a Director of Public Prosecutions and an office called the Office of the Director of Public Prosecutions. The director is appointed by the Governor in Council and must be an Australian lawyer admitted to practise for not less than 10 years (section 5). The director holds office for a term determined by the Governor in Council, is paid salary and allowances determined on the Minister’s recommendation, and is eligible for reappointment. Importantly, the director is appointed under the Act and not under the Public Sector Act 2022 (section 5(3)). Deputy directors are appointed by the Governor in Council from among Australian lawyers and hold office for a term not exceeding 5 years (sections 17, 19). A deputy director is also appointed under the Act, not under the Public Sector Act 2022 (section 19(2)). Crown prosecutors are Australian lawyers appointed under the Public Sector Act 2022 to assist the director (section 23). The Act also establishes the concept of “confidential information” for the purposes of the prohibition on disclosure (section 24A). The director may issue guidelines to crown prosecutors, the police commissioner or other persons with respect to prosecutions, and may give directions about which offences must be referred to the director (section 11). Guidelines may not relate to a particular case (section 11(1A)).

The Act directly affects the director of public prosecutions, deputy directors, crown prosecutors, other officers appointed to assist the director, and the Office of the Director of Public Prosecutions itself. It also imposes duties on the commissioner of the police service, police officers, the chief executive of the department administering the Animal Care and Protection Act 2001, the chief executive officer under the Crime and Corruption Act 2001, and persons requested to assist under section 13. The Minister is affected, as the director is responsible to the Minister and must report annually by 31 October (section 16) and provide copies of guidelines and directions (section 11(2)). The Attorney-General may issue guidelines regarding the director’s functions under the Criminal Proceeds Confiscation Act 2002, limited to examinations under examination orders, and must gazette and table those guidelines (section 10A). The Governor in Council appoints and may terminate the director (sections 5, 6) and deputy directors (sections 17, 21, 22). Police officers investigating alleged offences are directly affected by the duty of disclosure in section 24C: where the director is deciding whether to institute or consent to a proceeding or is conducting a proceeding, investigating police officers must disclose all relevant information, documents or other things that might tend to help the case for the prosecution or the accused. That duty continues until the director decides not to prosecute or the prosecution ends (section 24C(3)). Any police officer must disclose an “exculpatory thing” (reliable evidence that could cause a jury to entertain reasonable doubt) until discharge, acquittal or death of the accused (section 24C(4)). Persons employed for the purposes of the Act are affected by the prohibition on disclosing confidential information (section 24A), with a maximum penalty of 100 penalty units. The Act also affects persons applying for or holding employment in the Office of the Director of Public Prosecutions, as the director may request a criminal history check from the police commissioner, who must comply (section 24B). Former public servants appointed under the Act retain entitlements to rights accrued in the public service, including long service leave, and may elect to cash out annual recreation leave (section 28). Upon termination of tenure by resignation or expiry, such persons are entitled to be appointed to an equivalent office under the Crown, subject to certain conditions (section 29).

The director’s primary duty is to prepare, institute and conduct criminal proceedings as set out in section 10. The director has the right to appear in person or by a lawyer, whether from the director’s own office or in private practice (section 10(4)). The director may delegate functions and powers to an appropriately qualified person (section 23A). A key right is the authority to furnish guidelines in writing to crown prosecutors, the police commissioner, or any other person with respect to prosecutions, and to give directions to the police commissioner and others about which offences or classes of offences must be referred to the director for the institution and conduct of proceedings (section 11(1)). The director may also give guidelines stating that specified information is confidential for the purposes of section 24A (section 11(1)(c)). The director must give the Minister a copy of each guideline or direction and must include them in the annual report (section 11(2)). Where a person has been charged with an offence and the offence is one for which a direction has been given, or the director directs referral, or the complainant considers the matter should be referred, the complainant or person bringing the charge must provide a full report of the circumstances, witness statements, material documents and other information the director requires (section 12). When a criminal proceeding under consideration by the director requires further investigation, the director may ask in writing for the assistance of police officers, inspectors under the Animal Care and Protection Act 2001, or commission officers under the Crime and Corruption Act 2001; the recipient must comply as far as possible (section 13). Police officers have a duty to disclose relevant information and exculpatory things to the director (section 24C). The director has the right to request a criminal history report from the police commissioner about employees or applicants in the Office of the Director of Public Prosecutions, and the commissioner must comply (section 24B). The director is protected from liability: no act or thing done or omission made by the Minister, the director or any person assisting for the purpose of giving effect to the Act shall subject the Crown, the Minister, the director or any person to liability at law (section 25). The director is not prevented from discharging functions because of prior professional involvement in a matter not finally determined, but must not disclose confidential information received before appointment except to the client, that client’s legal representative, or a person authorised by them, and must not act personally in that matter; a deputy director then performs the function (section 27).

The Act contains one explicit penalty provision. Section 24A imposes a prohibition on disclosure of confidential information. A person who is or was employed for the purposes of the Act must not disclose confidential information that came to the person’s knowledge because of the employment, directly or incidentally, or because of an opportunity given by the employment. The maximum penalty is 100 penalty units. The prohibition applies even if the person knew the information before it came to their knowledge through the employment, or if the information later stops being confidential (section 24A(4)). The offence does not apply to disclosures under this or another Act, or under a requirement of a court or tribunal; the Act gives as a non-exhaustive example a witness statement disclosed for the purposes of a trial (section 24A(3)). “Confidential information” for a person to whom subsection (1) applies includes information stated to be confidential under a guideline given under section 11(1)(c) (section 24A(5)). The definition of “employed” includes appointed, engaged, and requested to assist under section 13 (section 24A(5)). This means that police officers, inspectors or commission officers seconded to assist the director under section 13 are caught by the prohibition. The Act does not provide for any other criminal penalties. For disciplinary enforcement regarding deputy directors, sections 21 and 22 establish a detailed process: a deputy director may be suspended without pay for breach of conditions of employment; the Minister must within 14 days notify the Governor in Council of the suspension and provide a statement of grounds, and give the deputy director a copy and an opportunity to show cause in writing within 14 days (or such longer period as the Minister allows). The Governor in Council, after considering the grounds and any cause shown, may direct removal from office, or penalty (salary reduction, a fine not exceeding $1000 payable by deduction from salary or otherwise, or reprimand or caution) or termination of suspension with no further action (section 22). Where suspension is terminated otherwise than by removal, continuity of service is unbroken and the person is entitled to all salary and allowances that would have been payable had they not been suspended, subject to any penalty direction (section 22(3)). The Act does not set out enforcement mechanisms for failures by police or others to comply with disclosure duties under section 24C, but those duties are statutory and may be relevant in criminal proceedings or disciplinary contexts.

The Act expressly interacts with several other pieces of Queensland legislation. The director’s functions under the Criminal Proceeds Confiscation Act 2002 are subject to guidelines issued by the Attorney-General in relation to examinations under examination orders, and those guidelines must be gazetted and tabled in the Legislative Assembly (section 10A). The definition of “criminal proceedings” in section 4 incorporates proceedings on indictment for an offence defined in the Criminal Code. Section 11(3) provides that a guideline furnished under subsection (1) shall not prevent or hinder the discharge of any function or the exercise of any power by a crown prosecutor pursuant to the Criminal Code. The Act accommodates Commonwealth prosecutions: with the Minister’s consent, the director may hold an appointment, commission or authority to prosecute Commonwealth offences, and may then conduct criminal proceedings and related appeals under those terms (section 10(2)). The director may seek assistance for investigations from the commissioner of the police service, the chief executive of the department administering the Animal Care and Protection Act 2001 (for inspectors appointed under section 114 of that Act), and the chief executive officer under the Crime and Corruption Act 2001 (for commission officers) (section 13). That section was substituted by the 2014 amendment (2014 No. 39 s 45). The prohibition on disclosure (section 24A) does not apply to disclosures under this or another Act or under a requirement of a court or tribunal. The criminal history check power (section 24B) uses the definition of “criminal history” from the Criminal Law (Rehabilitation of Offenders) Act 1986. The director’s appointment and that of deputy directors are expressly made under the Act and not under the Public Sector Act 2022 (sections 5(3), 19(2)). However, crown prosecutors and other officers appointed under section 23 are appointed under the Public Sector Act 2022. The chief executive under the Public Sector Act 2022 is the chief executive for administrative matters and for officers appointed under section 23 (section 32(1)). For the Financial Accountability Act 2009, the chief executive is the accountable officer in respect of the discharge of the director’s functions, and the director must do all things the chief executive requires for that Act (section 32(2), (3)). Superannuation provisions for former public service officers are preserved under the State Service Superannuation Act 1972 and the Public Service Superannuation Act 1958 (section 31). The Act also contains transitional and interpretative provisions: references in other Acts or documents to “director of prosecutions”, “acting director of prosecutions” or “deputy director of prosecutions” are taken to be references to the corresponding office under this Act (section 34). A reference to the “Director of Prosecutions Act 1984” is a reference to this Act (section 35). The Act includes a general regulation-making power (section 33).

The Act as provided includes extensive amendment history notes. The short title was amended by 1994 No. 87 s 3 sch 1. Section 2 was omitted by 1995 No. 58 s 4 sch 1. Section 3 was omitted by 1990 No. 82 s 4. Section 4 definitions have been amended multiple times: the definition of “Australian lawyer” was inserted by 2004 No. 11 s 596 sch 1 and amended by 2007 No. 24 s 770 sch 1; “director” was amended by 1994 No. 87 s 3 sch 1; “Director-General” was inserted by 1990 No. 80 s 3 sch 1 and omitted on 1 January 1991; “lawyer” inserted by 2004 No. 11 s 596 sch 1 and amended by 2007 No. 24 s 770 sch 1; “Minister” was substituted by 1990 No. 80 s 3 sch 1 and omitted on 1 January 1991; “Public Service Board” omitted by 1988 No. 52 s 44 sch 3; “Under Secretary” amended by 1988 No. 52 s 44 sch 3 and omitted by 1990 No. 80 s 3 sch 1; section 4 also amended by 1995 No. 58 s 4 sch 1. Section 4A was inserted by 1994 No. 87 s 3 sch 1. Section 5 was amended by 1988 No. 52 s 44 sch 3, 1994 No. 87 s 3 sch 1, 1996 No. 37 s 147 sch 2, 2004 No. 11 s 596 sch 1, 2009 No. 25 s 83 sch, and 2022 No. 34 s 365 sch 3. Section 6 was amended by 1985 No. 25 s 5. Section 8 was omitted by 2004 No. 11 s 596 sch 1. Section 9 omitted by 1994 No. 87 s 3 sch 1. Section 10 was amended by 1994 No. 87 s 3 sch 1, 2003 No. 13 s 106 sch 1, 2003 No. 55 s 50, 2004 No. 11 s 596 sch 1, and 2010 No. 42 s 214 sch. Section 10A was inserted by 2002 No. 68 s 312. Section 11 was amended by 1997 No. 82 s 27. Section 13 was substituted by 2014 No. 39 s 45 and amended by 2018 No. 29 s 62. Section 14 omitted by 1994 No. 87 s 3 sch 1. Section 15 amended by 1994 No. 87 s 3 sch 1. Section 16 amended by 1994 No. 87 s 3 sch 1, with subsections (2)-(3) expiring 1 November 1995. Section 17 was substituted by 1994 No. 87 s 3 sch 1 and amended by 2004 No. 11 s 596 sch 1. Section 18 omitted by 1990 No. 82 s 5. Section 19 amended by 1988 No. 52 s 44 sch 3, 1990 No. 82 s 8 sch, 1996 No. 37 s 147 sch 2, 2009 No. 25 s 83 sch, 2022 No. 34 s 365 sch 3. Section 20 amended by 1990 No. 82 s 8 sch, 1996 No. 37 s 147 sch 2, 2009 No. 25 s 83 sch, 2022 No. 34 s 365 sch 3. Section 21 amended by 1985 No. 25 s 6, 1986 No. 9 s 3, 1990 No. 82 s 8 sch. Section 22 amended by 1986 No. 9 s 4, 1990 No. 82 s 8 sch. Section 23 substituted by 1990 No. 82 s 6 and amended by 1996 No. 37 s 147 sch 2, 2004 No. 11 s 596 sch 1, 2009 No. 25 s 83 sch, 2022 No. 34 s 365 sch 3. Section 23A inserted by 2017 No. 6 s 25. Section 24A inserted by 1997 No. 82 s 28. Section 24B inserted by 2000 No. 58 s 2 sch. Section 24C inserted by 2003 No. 55 s 51. Section 26 omitted by 1995 No. 58 s 4 sch 1. Section 27 amended by 2010 No. 42 s 214 sch. Section 28 amended by 1986 No. 9 s 5. Section 29 amended by 1986 No. 9 s 6, 1988 No. 52 s 44 sch 3, 1990 No. 80 s 3 sch 1, 2010 No. 42 s 214 sch. Section 30 amended by 1996 No. 37 s 147 sch 2, 2009 No. 25 s 83 sch, 2022 No. 34 s 365 sch 3. Section 31 amended by 2000 No. 52 s 48 sch. Section 32 amended by 1990 No. 80 s 3 sch 1, 1990 No. 82 s 7, 1996 No. 37 s 147 sch 2, 2009 No. 9 s 136 sch 1, 2009 No. 25 s 83 sch, 2022 No. 34 s 365 sch 3. Section 33 substituted by 1995 No. 58 s 4 sch 1. Section 34 (previous version amended by 1985 No. 25 s 7) was replaced by a new section 34 inserted by 1994 No. 87 s 3 sch 1 and amended by 1995 No. 58 s 4 sch 1. Section 35 inserted by 1995 No. 58 s 4 sch 1.

The Act as provided does not reference any litigation or court decisions. The only provision that directly engages judicial procedure is section 15, which requires all courts, judges and persons acting judicially to take judicial notice of the signature of any person who is or has been the director of public prosecutions or an acting director of public prosecutions on any document, and of the fact that such person holds or held that office. This provision facilitates proof of documents in proceedings without formal evidence of appointment or signature. Section 24 provides that a person appointed to the office of director, deputy director or crown prosecutor is taken to be, by virtue of that appointment and for so long as the person holds that office, an officer appointed by the Governor in Council to present indictments in any court of criminal jurisdiction. This section clarifies the authority of these officers to lay indictments and is likely to be relevant in practice to the validity of indictments. Section 24C imposes a duty on police officers to disclose exculpatory things to the director, and that duty is expressed to continue until discharge, acquittal or death of the accused. While the Act does not specify consequences for breach, such statutory duties may be relevant in applications for a stay of proceedings or in appeals based on non-disclosure. The protection from liability in section 25 provides that no act or thing done or omission made by the Minister, the director or any person assisting the director for the purpose of giving effect to the Act shall subject the Crown, the Minister, the director or any person to liability at law. This section would likely be raised in any civil proceedings against the director or the office for actions taken in the course of prosecutorial functions. Section 27 deals with the director’s prior professional involvement and prohibits the director from acting personally in matters in which they were involved before appointment that were not finally determined. This section may be relevant in challenges to the director’s involvement in particular proceedings. The Act itself does not cite any case law, and there are no references to judicial decisions within the text. Any litigation history would therefore need to be sourced externally; the Act on its face provides no such information.

Several provisions in the Act contain potential traps for those who interact with the office of the director. The prohibition on disclosure of confidential information in section 24A applies to “a person who is or was employed for the purposes of this Act” and defines “employed” to include appointed, engaged, and requested to assist under section 13. This means police officers, animal care inspectors or Crime and Corruption Commission officers who are seconded to assist the director are caught by this offence provision, even if such assistance is temporary. The maximum penalty is 100 penalty units. The offence is committed even if the person knew the confidential information before their employment, and even if the information later ceases to be confidential (section 24A(4)). The director can expand the scope of confidential information by giving a guideline under section 11(1)(c) stating that specified information is confidential for section 24A purposes. This allows the director to unilaterally designate categories of information as confidential, and the recipient of the guideline must treat it as such. Another gotcha is the duty of police officers under section 24C. The duty to disclose all relevant information that might tend to help the case for the prosecution or the accused is broad and continues until the director decides not to prosecute or the prosecution ends. However, the duty to disclose an “exculpatory thing” to the director continues until the accused is discharged or acquitted, or dies. This means that even if the director decides to proceed, any police officer who comes into possession of exculpatory material during the investigation must keep disclosing it to the director until the case finally ends. Failure to do so could have significant consequences for the prosecution’s fairness, but the Act does not specify a penalty for breach of this duty. The director’s power to give directions to the commissioner of the police service and other persons with respect to the offences or classes of offences that are to be referred to the director (section 11(1)(b)) can have practical significance: a police officer who charges a person with an offence that falls within such a direction must refer the matter to the director and provide a full report, witness statements, material documents and other information as required (section 12). The officer does not have discretion to proceed independently. Section 27(2) imposes a continuing duty of confidentiality on the director personally regarding matters in which the director was involved in practice before appointment that were not finally determined. The director must not disclose that information except to the former client, their legal representative or a person authorised by them, and must not act personally in the matter. If a case arises, a deputy director must step in. This could create practical difficulties if the director’s prior involvement is not immediately apparent. Section 25 provides broad immunity to the Crown, Minister, director and persons assisting, but the immunity is for acts or omissions “done ... for the purpose of giving effect to this Act or discharging, exercising or performing any function, power, authority or duty under this Act”. That immunity may not extend to actions outside the scope of the Act, such as conduct that is malicious or ultra vires. The Act does not define “assisting”, leaving scope for uncertainty. Finally, the annual report must be provided by 31 October each year (section 16), and must include all guidelines and directions issued by the director during the period, as well as those in force at the end of the period. Failure to include a guideline may not invalidate it, but the reporting obligation is mandatory.

Compliance with the Director of Public Prosecutions Act 1984 primarily concerns persons employed within the Office of the Director of Public Prosecutions, police officers, and other officials requested to assist the director. For those employed or formerly employed for the purposes of the Act, the critical obligation is the prohibition on disclosing confidential information (section 24A). Such persons must treat as confidential any information that came to their knowledge because of their employment, directly or incidentally, or because of an opportunity given by the employment. They must not disclose it unless the disclosure is authorised under this Act or another Act, or is required by a court or tribunal. The fact that the information was already known to the employee before the employment, or later becomes public, does not lift the prohibition. The director may issue guidelines under section 11(1)(c) identifying specific information as confidential; employees must treat that information accordingly. To comply, the Office of the Director of Public Prosecutions should provide training on the scope of section 24A and maintain clear policies on handling sensitive information. Police officers who investigate alleged offences must comply with the disclosure duty in section 24C when the director is either deciding whether to institute or consent to a proceeding, or is conducting a proceeding. They must disclose all relevant information, documents or other things that might tend to help the case for the prosecution or for the accused. This duty continues until the director decides not to prosecute, or the prosecution ends. Additionally, any police officer in possession of an “exculpatory thing” , defined as reliable evidence of a nature to cause a jury to entertain a reasonable doubt as to guilt , must disclose it to the director until the accused is discharged, acquitted or dies. Practically, police services should establish systems to ensure that all material gathered in an investigation is captured, reviewed for relevance and exculpatory potential, and transmitted to the Office of the Director of Public Prosecutions in a timely manner. Breach of this duty may have implications for the fairness of the prosecution and could be raised in court, although the Act does not prescribe a specific penalty. Where a person has been charged with an offence and the offence falls within a direction given under section 11(1), or the director directs referral, or the charging police officer or complainant considers referral appropriate, the complainant or person bringing the charge must provide a full report, copies of witness statements, material documents, and any other information or material the director requires (section 12). This is a mandatory procedural step. Police officers and complainants should be familiar with any current directions issued by the director under section 11(1)(b). When the director requests assistance for an investigation under section 13, the recipient , whether the police commissioner, the chief executive of the department administering the Animal Care and Protection Act 2001, or the chief executive officer under the Crime and Corruption Act 2001 , must comply with the written request as far as possible. The Act imposes a duty to comply, not merely a power to do so. For the Office of the Director of Public Prosecutions itself, compliance includes preparing and delivering the annual report by 31 October each year, with copies of all guidelines and directions (section 16), and the director must also give the Minister a copy of each guideline or direction when issued (section 11(2)). The Office should maintain a register of all guidelines and directions. If the director wishes to delegate functions, section 23A allows delegation to an appropriately qualified person; the delegate should be formally appointed in writing. Crown prosecutors and other officers appointed under the Public Sector Act 2022 must comply with the director’s guidelines (section 11) and must not be hindered in exercising powers under the Criminal Code (section 11(3)). The director and deputy directors should ensure that they do not act personally in any matter in which they had professional involvement before appointment that was not finally determined, and that confidential information from such prior matters is safeguarded (section 27). The chief executive, as the accountable officer under the Financial Accountability Act 2009, must ensure that the director complies with financial management requirements (section 32).