Director of Public Prosecutions Act 1986

The Act directly constitutes and regulates three statutory offices: the Director, one or more Deputy Directors, and the Solicitor for Public Prosecutions (collectively “Senior Officers” and, together with staff, “Officers”). These individuals exercise the prosecutorial powers.

It profoundly affects law enforcement and investigating officers (defined by reference to s 3 and the Criminal Procedure Act 1986), who are subject to mandatory disclosure duties (s 15A), referral directions (s 16), requests for further investigation (s 18), and guidelines (s 14). The Commissioner of Police is the most prominent recipient of such directions and guidelines.

Crown Prosecutors, private legal practitioners instructed by the Director, and staff employed under the Government Sector Employment Act 2013 to assist the Director and Solicitor are subject to the Director’s guidelines (s 13) and delegation (s 33).

Accused persons and defendants in summary proceedings benefit from the disclosure regime and from the structural independence of the prosecutor, but are also subject to the exercise of the Director’s powers to commence, take over, or discontinue proceedings.

Victims and applicants for apprehended violence orders are affected by the Director’s power under s 20A to conduct such proceedings and related appeals on their behalf.

The Attorney General retains residual constitutional powers and oversight, and is the recipient of reports, guidelines, and consultation. Parliament receives annual reports and tables Attorney General guidelines.

The judiciary is affected indirectly through the conduct of matters by the DPP and through the notification obligations in s 10 when the Director takes over or hands back proceedings.

Finally, the general public has an interest in the proper administration of criminal justice; the Act’s objects are implemented through the independent yet accountable prosecutorial model it creates.

Duties of the Director and Officers

• To exercise the principal prosecutorial functions in s 7 and the ancillary functions in ss 8–9, 20–20A.
• To comply with Attorney General guidelines of general application (s 26) and not to act inconsistently with prior exercises of Attorney General power (s 28).
• To notify courts and original prosecutors when taking over or handing back matters (s 10).
• To furnish copies of guidelines to the Attorney General and include them in annual reports (s 15).
• To consult with the Attorney General on request (s 25(1)).
• Senior Officers must disclose pecuniary interests (s 5 of Sch 1), refrain from unauthorised outside legal practice or paid employment (s 6 of Sch 1), and comply with the vacation-of-office and acting-appointment rules.

Duties of law enforcement and investigating officers

• The continuing, positive duty of disclosure in s 15A(1)–(3), including retention of material.
• Duty to refer classes of matters specified in directions under s 16(3).
• Duty to comply, so far as practicable, with requests for further investigation (s 18(2)).
• Duty to supply full reports and material when the Director is considering or has taken over a prosecution (s 17).

Rights and protections

• The Director possesses independent authority in the conduct of individual proceedings notwithstanding responsibility to the Attorney General (s 4(3)).
• Immunity from personal liability for good-faith acts or omissions in the execution of relevant laws (s 35(2)), plus an indemnity for costs awarded against an Officer (s 35(3)).
• The Director and Senior Officers enjoy statutory terms of office, remuneration determined under the Statutory and Other Offices Remuneration Act 1975, specific pension rights (cl 10 of Sch 1), and preservation of prior public-sector rights (cll 9 and 11 of Sch 1).
• The Director may delegate most functions (subject to the carve-outs in s 33(2)) and may appear personally or by counsel (s 21).

The Act itself contains no criminal offence provisions or monetary penalty units. Enforcement is primarily through constitutional and administrative mechanisms.

Failure by a person to whom a direction is given under s 16 to comply is not visited with a statutory penalty; rather, the Director’s ultimate remedy is to take over the prosecution personally or to seek political or administrative accountability through the Attorney General. Similarly, non-compliance with a request under s 18 is couched in directory language (“shall, so far as practicable, comply”).

The disclosure duty in s 15A is expressed as a “duty” rather than a strict liability offence. However, wilful breach could found disciplinary action under the Police Act 1990 or Government Sector Employment Act 2013, or could constitute contempt or misconduct in public office at common law. The regulations contemplated by s 15A(4) may create record-keeping obligations whose breach could attract administrative sanctions.

Removal of a Senior Officer is governed by cl 4 of Sch 1. The Governor may remove for bankruptcy, mental incapacity, prolonged unauthorised absence, failure to disclose interests or comply with outside-work rules, or for incapacity, incompetence, or misbehaviour. Conviction of an offence punishable by 12 months’ imprisonment (in NSW) or its equivalent also triggers removal. These are not “penalties” in the criminal sense but constitute the enforcement mechanism for the integrity of the office.

The annual reporting obligation (s 34) and the requirement to table Attorney General guidelines (s 26(4)) provide parliamentary and public accountability. Failure to report could be criticised in Parliament but carries no direct legal sanction.

The Act is deliberately embedded in a web of criminal justice legislation. The definition of “appeal” in s 3(1) expressly incorporates Parts 3, 4 and 5 of the Crimes (Appeal and Review) Act 2001 and s 69 Supreme Court proceedings. “Committal proceedings”, “indictable offence”, “summary offence”, and “law enforcement or investigating officer” all cross-reference the Criminal Procedure Act 1986. The disclosure regime in s 15A operates in addition to existing obligations under that Act and the common-law Mallard / Grey disclosure principles.

Section 7(2) equates the Director’s powers to those of the Attorney General under the Criminal Procedure Act 1986 (ss 126–130, 142) concerning ex officio indictments and nolles. Section 20A treats proceedings under the Crimes (Domestic and Personal Violence) Act 2007 as if they were criminal proceedings for the purposes of the Act.

The Director’s pension rights are grafted onto the Judges’ Pensions Act 1953 with detailed adaptations (cl 10 of Sch 1). Appointment and tenure provisions interact with the Ombudsman Act 1974 (s 4A veto process) and the Government Sector Employment Act 2013 (which is expressly disapplied to Senior Officers by cl 7 of Sch 1, while staff are employed under it).

Interaction with Commonwealth law occurs via s 24: an Officer holding an appropriate commission may prosecute Commonwealth offences. This dovetails with the Director of Public Prosecutions Act 1983 (Cth) and the Judiciary Act 1903 (Cth) s 69.

The Act’s immunity provision (s 35) operates alongside the Civil Liability Act 2002 and common-law judicial and quasi-judicial immunities. The savings provisions in s 36 and Sch 2 ensure continuity with pre-1986 Attorney General decisions and validate past disclosures that would have complied with the later-inserted s 15A(6).

Recent amendments have aligned the Act with the Law Enforcement Conduct Commission Act 2016, Crime Commission Act 2012, and Independent Commission Against Corruption Act 1988 in respect of statutory publication restrictions (s 15A(9)).

The legislation has been amended more than 25 times. Key recent changes illustrate legislative responses to practical and policy problems.

The insertion of s 15A in 2001 (and its substantial overhaul in 2011 by the Director of Public Prosecutions Amendment (Disclosures) Act 2011 and again in 2012) was a direct response to high-profile miscarriages of justice and the recognition that police and investigators were not always providing exculpatory material. The 2012 amendments extended the duty to proceedings commenced before the amendment and validated prior actions (s 36(10)–(11) and Sch 2). Further refinements in 2016–2022 aligned the statutory publication restrictions with the new integrity commissions.

The addition of s 9A in 2008 (via the Justice Legislation Amendment Act 2008) addressed the administrative inconvenience of the DPP retaining carriage of relatively minor matters that had been remitted to the Local Court. The 2015 amendments to s 9A and s 32 updated terminology to reflect the creation of the NSW Police Force and the Government Sector Employment Act 2013.

Retirement ages were increased in 2018 (via the Justice Legislation Amendment Act (No 3) 2018) to align with changes to judicial officers (Director now 75, others 72). The “increased retirement age day” concept in Sch 1 ensures differential treatment of pre- and post-amendment appointees. The non-renewable 10-year term for the Director was introduced in 2007 to reinforce independence.

The Courts and Crimes Legislation Amendment Act 2012 extended the new retirement and term provisions to the incumbent Director, illustrating Parliament’s willingness to legislate with specific individuals in mind while providing transitional fairness.

Section 3A (guidelines for Senior Officer appointments) was inserted in 2007 to promote transparency and merit selection after controversy over perceived politicisation of appointments. The parliamentary veto mechanism in s 4A dates from 1992.

These changes reflect a legislative trend toward greater transparency, mandatory disclosure, structural independence, and alignment with modern public-sector employment and integrity frameworks.

Although the Act itself has rarely been the subject of direct constitutional attack, its operation has generated significant litigation and political controversy.

The independence of the DPP was tested in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (High Court) and subsequent implied freedom of political communication cases, but more directly in NSW matters concerning the validity of ex officio indictments filed after a magistrate declined to commit (R v McConnell [1993] NSWCCA). The courts have consistently upheld the Director’s statutory powers.

The non-reviewability of prosecutorial discretion has been affirmed in cases such as Maxwell v The Queen (1996) 184 CLR 501 and Likiardopoulos v The Queen (2012) 247 CLR 265. Section 28’s constraints on the Director when the Attorney General has previously entered a nolle have not been judicially tested at appellate level, but would likely be construed strictly given the “interests of justice” gateway.

Disclosure obligations under s 15A have produced satellite litigation. Failure to disclose has led to stays of proceedings (R v O’Connell (unreported, NSWSC)) and appeals against conviction on fresh-evidence grounds. The interaction between s 15A and claims of public interest immunity or statutory secrecy (e.g., under the Independent Commission Against Corruption Act 1988) has required careful balancing, with the legislation providing a clear “notify but do not produce unless requested” regime.

Political controversy has surrounded the appointment process. The 1992 insertion of the Ombudsman Committee veto (s 4A) followed allegations of political appointments. The 2007 reforms abolishing life tenure and the 2012 extension of those reforms to the incumbent Director attracted criticism from civil-liberties groups concerned about executive influence.

In Director of Public Prosecutions (NSW) v Hamzy [2010] NSWSC 269 and related matters, the courts examined the Director’s power to take over and then discontinue private prosecutions. The legislation was held to authorise such action provided the statutory notification steps were followed.

The pension provisions in cl 10 of Sch 1 have been the subject of internal Crown Solicitor advice but not reported litigation. The interaction between the Director’s non-renewable term and the pension qualification (requiring 10 years’ service or age-based vacation) has been carefully drafted to avoid constitutional challenges under the Judicial Officers Act 1986 model.

Most practitioners assume the DPP must take over every serious prosecution; in fact the Director has no duty to prosecute any particular matter and may decline to proceed after taking over (s 9(4)(b)). The decision is unreviewable except on Wednesbury unreasonableness grounds in extreme cases.

The disclosure duty in s 15A is triggered only once the Director “exercises any function” under the Act or the Criminal Procedure Act 1986. Investigators who delay seeking DPP advice can inadvertently postpone the formal duty, but the common-law duty remains. Many police officers do not realise that the duty to retain material continues even after the Director decides not to prosecute, until any appeal rights expire.

Section 28(2) contains a little-known power for the Director to reopen a pre-1986 nolle or no-bill if “significant fresh evidence” exists. The phrase is not statutorily defined and has never been the subject of reported authority, creating uncertainty for cold-case reviews.

The prohibition on the Director granting indemnities (s 19(2)) is absolute; any immunity must be sought from the Attorney General. Yet the Director may request it, and in practice the Attorney General almost always acts on the Director’s advice. The statutory language can mislead junior practitioners into believing the DPP possesses the power.

Hand-back under s 9A is available only after remission to the Local Court. Once a matter has been committed for trial, the original prosecutor cannot reclaim it. This has caused logistical difficulties in large multi-accused committals where some defendants plead guilty early.

The definition of “Officer” in s 3 includes “a member of the staff referred to in section 32”. Those staff members therefore attract the s 35 immunity, but only when performing functions “for the purpose of executing any relevant law”. Over-enthusiastic administrative decisions have on occasion been challenged as falling outside the indemnity.

Finally, the annual report de-identification requirement (s 34(3)) is stricter than many realise: even if an accused’s identity is notorious through media coverage, the report must not name them unless they have appeared in court in relation to the alleged offence. Breaches have led to embarrassing corrections.

For investigators and police

• Err on the side of disclosure. Once the DPP has become involved, adopt a continuing “give everything” approach subject only to legitimate privilege or statutory publication claims. Document the date and content of all disclosures.
• Use the Director’s Guidelines (published on the DPP website) and the Prosecution Guidelines to determine which matters must be referred. When in doubt, refer.
• Retain all material until finalisation of any appeal or expiry of appeal rights. Implement robust exhibit-handling protocols that survive officer transfers or retirements.

For the Office of the Director of Public Prosecutions (ODPP)

• Maintain a central register of all s 15A notifications and ensure verification processes required by the Director of Public Prosecutions Regulation 2010 are followed.
• Issue guidelines under ss 13 and 14 only in writing and of general application. Keep meticulous records of Gazette publication and parliamentary tabling.
• When taking over or handing back, use the exact statutory language in notices to courts and original prosecutors to engage the deeming provisions in ss 9(4) and 9A(2).
• For Senior Officer appointments, comply with any Attorney General guidelines issued under s 3A even though they are not mandatory; non-compliance can still create political risk.

For defence practitioners

• Make formal written requests for disclosure citing s 15A and the common law. If material is withheld on privilege grounds, require the investigator to comply with s 15A(7) notification obligations and consider seeking a court ruling on the claim.
• When a private prosecution is taken over, request written confirmation of the s 10(1) notice so that the deeming provision applies and any subsequent discontinuance is unambiguously that of the DPP.

For the Attorney General and Cabinet

• Consult the Director before issuing guidelines under s 26. Ensure Gazette publication and tabling occur within the statutory timelines.
• Exercise the power to grant indemnities only on the Director’s request and after independent assessment; the statutory scheme is designed to maintain the appearance of independence.

Corporate and regulatory prosecutors

• If conducting a summary prosecution that may become complex, obtain the Director’s written consent before proceeding if the matter is not a prescribed summary offence. Once consent is given, the Director may still take over under s 9.

Compliance is best achieved through training that emphasises the continuing and positive nature of the disclosure obligation, the strict separation between policy guidelines and particular-case decisions, and meticulous record-keeping that can withstand judicial scrutiny years later. The Act rewards early engagement with the ODPP and transparent decision-making.