Director of Public Prosecutions Regulation 1991

The Regulation revolves around three core concepts: “prescribed functions”, “appeal, application or review (including administrative review)” and the “facts or circumstances” nexus for Commonwealth prosecutions.

“Prescribed functions” are the additional tasks that the DPP is authorised to perform by virtue of the Regulation, beyond those listed in the Act itself. The Act, section 6(1), sets out a list of the DPP’s core functions - instituting and conducting prosecutions for indictable and summary offences, conducting committal proceedings, appearing in appeals from those proceedings, and related tasks. Section 6(1)(q) then creates a gap-filling power: “any other function prescribed by regulation”. The Regulation fills that gap with two discrete categories. Because these are functions of the office, they must be exercised in accordance with the general duties and independence conferred by the Act, including the DPP’s duty to act independently of the executive (Act, s 22). The prescribed functions do not override that independence; they simply expand the scope of matters the DPP may take on.

The concept of “appeal, application or review (including administrative review)” in paragraph (a) is deliberately broad. It covers not only conventional judicial appeals from a court’s decision (e.g., an appeal against conviction or sentence from the Magistrates Court) but also applications for prerogative relief (e.g., certiorari to quash a committal decision) and merits reviews by administrative tribunals (e.g., review of a costs determination under a costs assessment scheme). The key limiting factor is that the appeal, application or review must “aris[e] out of” proceedings mentioned in Act s 6(1)(b). Those proceedings are defined in the Act as proceedings for the commitment of a person for trial (committal hearings), proceedings for the punishment of contempt of a court of summary jurisdiction, and other proceedings for the hearing and determination of any matter by a court of summary jurisdiction. This means the DPP cannot use paragraph (a) to intervene in civil appeals or reviews not connected to criminal proceedings in inferior courts. For instance, a merits review of a bail condition imposed by the Supreme Court would not fall under paragraph (a) because it does not arise from a court of summary jurisdiction proceeding under s 6(1)(b).

The “facts or circumstances” nexus in paragraph (b) is the most important structural limitation. It ensures that the DPP’s authority to handle Commonwealth offences is parasitic on an existing ACT criminal matter. If the ACT matter - whether an indictable prosecution (s 6(1)(a)), a summary or contempt proceeding (s 6(1)(b)), or a committal proceeding (s 6(1)(c)) - has already been finalised, the DPP cannot use the Regulation to start fresh Commonwealth proceedings. The Commonwealth charges must be so factually intertwined with the ACT matter that they arise from the same factual matrix. This prevents the DPP from using the Regulation as a general licence to conduct Commonwealth prosecutions unrelated to any ACT matter. The requirement that the ACT matter be “not completed or otherwise determined” before the Commonwealth prosecution is instituted also imposes a temporal order: the DPP cannot wait until the ACT case is over and then revive it through a Commonwealth charge. The provision therefore encourages the DPP to co-ordinate charging across jurisdictions early in the investigative process.

The Regulation directly affects the ACT Director of Public Prosecutions, the staff of the DPP’s office, the ACT Attorney-General, Commonwealth prosecuting authorities, accused persons, and legal practitioners involved in criminal matters with cross-jurisdictional elements.

The DPP and the office’s lawyers are the primary addressees. The Regulation grants them authority to act in Commonwealth prosecutions that would otherwise be outside their statutory powers, but only if the conditions are satisfied. This imposes an administrative burden on the DPP: before instituting a Commonwealth prosecution, the DPP must verify that (1) an appropriate appointment or commission has been obtained with the Attorney-General’s consent; (2) the Commonwealth charges arise from the same facts or circumstances as an existing ACT matter; and (3) that ACT matter has not yet been completed or determined. The DPP’s office may need to implement internal processes to track the status of ACT matters and to maintain records of the factual overlap to justify the Commonwealth proceedings.

The ACT Attorney-General is a gatekeeper. Under paragraph (b), the DPP may only hold a Commonwealth appointment or commission “with the consent of the Attorney-General”. This gives the Attorney-General a direct role in defining the scope of the DPP’s Commonwealth prosecutorial capacity. The Attorney-General may choose to consent selectively, perhaps limiting appointments to certain types of offences (e.g., drug trafficking or fraud) or to particular matters. This creates a potential political oversight point, though the Act’s independence provisions (s 22) constrain the Attorney-General from directing the DPP in individual cases. The consent requirement applies to the appointment or authorisation itself, not to each individual prosecution, so once a consent is given and an appointment made, the DPP can within that framework decide which cases to bring.

Accused persons are affected because they may face a single prosecutorial team handling both ACT and Commonwealth charges from the same set of facts. This can streamline proceedings and reduce duplication, but it also means the defendant deals with one office that has a comprehensive view of all allegations. For defendants who might otherwise have relied on jurisdictional gaps or slower co-ordination between separate ACT and Commonwealth prosecutors, the Regulation reduces those opportunities. It also means that any legal argument about the DPP’s authority to bring the Commonwealth charges will turn on the factual nexus and the completion status of the underlying ACT matter.

Legal practitioners, particularly defence lawyers and criminal barristers, need to be alert to the Regulation’s limitations. If a client faces both ACT and Commonwealth charges, the defence should examine whether the DPP’s Commonwealth appointment was properly consented to by the Attorney-General and whether the ACT matter was still on foot when the Commonwealth proceedings were instituted. A failure to satisfy these conditions could provide grounds for a stay of the Commonwealth proceedings or for an application to have them declared invalid.

Commonwealth prosecuting authorities (e.g., the Commonwealth DPP) are indirectly affected. The Regulation enables the ACT DPP to conduct Commonwealth prosecutions that would otherwise be handled by the Commonwealth office. This may reduce workload for the Commonwealth DPP, but it also creates a potential for inconsistency in charging practices across jurisdictions, because the ACT DPP applies ACT policies and priorities. The Regulation does not require the ACT DPP to obtain the consent of the Commonwealth DPP or the Commonwealth Attorney-General before instituting proceedings; the only Commonwealth-level authorisation needed is the DPP’s appointment or commission from the Commonwealth under its own laws (e.g., under the Director of Public Prosecutions Act 1983 (Cth) s 6, which allows the Commonwealth DPP to authorise others to conduct prosecutions).

The Regulation does not impose direct duties on the DPP or any other person; it is permissive. It grants the DPP a power or authority to perform additional functions. However, this permissive power carries with it indirect duties sourced from the Act and from general principles of criminal procedure and public law.

First, the DPP has a duty to act within the limits of the prescribed functions. If the DPP purports to institute a Commonwealth prosecution without a valid appointment or without the Attorney-General’s consent, or when the ACT matter has already been completed, the proceedings may be ultra vires and liable to be stayed. This duty of lawful authority is inherent in the concept of a statutory office. The DPP must maintain records of the Attorney-General’s consent, the Commonwealth appointment or commission, and the factual basis for the nexus to the ACT matter. The Regulation itself does not specify record-keeping requirements, but good administrative practice and the risk of legal challenge impose an effective duty.

Second, the DPP has a duty to consider whether exercising the prescribed functions is appropriate in the circumstances. Under the Act, the DPP must have regard to the public interest in deciding whether to institute or continue a prosecution (Act s 10). That duty applies to any prosecution conducted under the Regulation. For Commonwealth cases, the DPP may also need to consider any policies or guidelines issued by the Commonwealth DPP, depending on the terms of the appointment.

Third, the DPP has a duty not to act inconsistently with any conditions attached to the Commonwealth appointment or commission. The Regulation says the functions are to be performed “in accordance with the terms of the appointment, commission or authorisation”. If the Commonwealth appointment limits the DPP to certain types of offences, or requires consultation with the Commonwealth DPP, those conditions become binding. Failure to comply could render the proceedings unlawful and might expose the DPP to contempt or to a claim for damages for trespass to the person if a defendant is arrested on invalid charges.

Fourth, the rights of accused persons are affected. A defendant facing Commonwealth proceedings brought by the ACT DPP has the right to challenge the DPP’s authority at any stage of the proceedings. If the defendant can show that one of the conditions in paragraph (b) was not satisfied - for example, that the ACT matter had been determined before the Commonwealth charges were laid - the court may stay the prosecution, quash the indictment, or exclude evidence obtained under the invalid authority. The defendant also retains all ordinary rights under criminal procedure: the right to a fair trial, the right to legal representation, the right to cross-examine, and the right to appeal against conviction or sentence. The Regulation does not modify any of those rights.

Fifth, the Attorney-General has a right (but not a duty) to grant or withhold consent to the DPP holding a Commonwealth appointment. This consent is a statutory precondition, but it is not subject to any criteria in the Regulation. The Attorney-General could refuse consent for any reason, including political ones, subject only to general public law constraints such as not acting for an improper purpose. The exercise of this power is not reviewable on its merits, though it may be judicially reviewed for legal error.

The Regulation contains no offence provisions and does not create any penalties. Enforcement of the DPP’s compliance with the Regulation occurs indirectly through the criminal justice process. If the DPP acts outside the prescribed functions, the proceedings may be invalid, and a court can stay them or dismiss charges. This is the primary enforcement mechanism: the supervisory jurisdiction of the courts over prosecutorial authority.

A person who is prosecuted under Commonwealth law by the ACT DPP can raise the issue of the DPP’s authority as a preliminary point. If the court finds that the DPP lacked the necessary appointment or authorisation, or that the factual nexus with an ACT matter was absent, it may decline to proceed. This can happen at any stage: at committal, at arraignment, or even on appeal. The burden of proof on such a challenge likely falls on the defendant making the assertion, at least to the civil standard of a prima facie case, after which the DPP would need to show lawful authority. No specific penalty or sanction is prescribed for the DPP personally; the sanction is the loss of the prosecution itself.

There is also a potential for civil liability. If the DPP institutes a Commonwealth prosecution without lawful authority and the defendant is arrested or detained, the defendant may have a claim for false imprisonment or trespass to the person. Similarly, if the prosecution proceeds and the defendant incurs legal costs to defend invalid charges, the defendant might seek costs from the DPP or the Territory. The likelihood of such claims is low because courts typically stay proceedings rather than award damages, but the risk exists.

The Regulation does not provide for any administrative enforcement, such as a power for the Attorney-General to revoke the DPP’s appointment or to direct the DPP to cease a particular prosecution. The Attorney-General’s control is limited to the initial consent to the Commonwealth appointment. Once the appointment is made, the DPP’s independence under the Act (s 22) prevents the Attorney-General from interfering in individual cases. Therefore, the only effective check on an overreach by the DPP is judicial review.

For the Commonwealth, if the DPP acts outside the scope of the appointment, the Commonwealth DPP could presumably withdraw the appointment or authorisation, but that would not retroactively invalidate proceedings already instituted. The Commonwealth might also seek an injunction to prevent the ACT DPP from continuing unauthorised prosecutions, though that would be an unusual step.

In summary, the Regulation relies on the courts as the primary enforcement mechanism, with no direct penalties for non-compliance. The practical risk for the DPP is reputational and financial: having a prosecution struck out for lack of authority damages the office’s credibility and may expose the Territory to costs orders.

The Regulation operates within the framework of the Director of Public Prosecutions Act 1990 (ACT). It is expressly made under s 6(1)(q) of that Act, so its validity depends on that empowering provision. The Act itself sets out the DPP’s core functions, independence, and accountability. The Regulation does not amend the Act; it merely fills a gap that the Act left open.

The Regulation interacts with Commonwealth law in a significant way. Paragraph (b) allows the ACT DPP to prosecute Commonwealth offences, but only if the DPP holds “an appointment or commission or is otherwise authorised to prosecute offences against the laws of the Commonwealth”. That external authorisation must come from a source outside the ACT legal system. Typically, the Commonwealth Director of Public Prosecutions Act 1983 (Cth) s 6 allows the Commonwealth DPP to authorise other persons to conduct prosecutions under Commonwealth law. Alternatively, the Commonwealth Attorney-General might issue a commission under the Commonwealth’s executive power, though that is less common. The Regulation therefore does not itself confer any Commonwealth authority; it only allows the ACT DPP to use an existing Commonwealth authorisation. If the Commonwealth authorisation is revoked or lapses, the ACT DPP loses the capacity to act under paragraph (b), even if the Regulation remains in force.

The Regulation also interacts with the cross-vesting arrangements between ACT and Commonwealth courts. Australian Capital Territory courts are invested with federal jurisdiction in respect of Commonwealth offences (Judiciary Act 1903 (Cth) s 68). This means that when the ACT DPP prosecutes a Commonwealth offence, the proceeding is conducted in an ACT court but under Commonwealth law. The Regulation does not change the venue or the applicable procedural rules; it only determines who may conduct the prosecution.

A further interaction arises with administrative law. Paragraph (a) of s 3 expressly includes “administrative review” arising out of inferior court criminal proceedings. This potentially allows the DPP to participate in merits reviews before the ACT Civil and Administrative Tribunal (ACAT) or other review bodies, if the review concerns a decision made in the course of a committal or summary proceeding (e.g., a decision about bail conditions, costs, or the issuing of a warrant). The Regulation does not override any statutory limits on who may seek review; it only permits the DPP to act as a party. For example, if a defendant seeks review of a bail condition in ACAT, the DPP may appear as the respondent. However, if the relevant Act restricts who can be a party to such a review (e.g., only the decision-maker), the DPP cannot use the Regulation to circumvent that limit.

The Regulation does not directly affect private rights, contract law, property law, or commercial regulation. Its interaction with other laws is confined to the criminal justice system and the division of prosecutorial responsibilities between the ACT and the Commonwealth. It does not confer any new investigative powers on police or other agencies; the DPP only becomes involved once charges are laid.

The Regulation has a sparse amendment history. Originally made in 1991 as the Director of Public Prosecutions Regulations, it was renamed under the Legislation Act 2001. The first substantive amendment came from the Legislation (Consequential Amendments) Act 2001 (A2001-44), which amended the Regulation to remove section 2 (Interpretation). The reason was that the Legislation Act 2001 standardised definitions across all ACT subordinate laws, making a bespoke interpretation provision unnecessary. Section 2 was simply omitted; the Regulation now relies on the definitions in the Legislation Act 2001 for terms such as “Director” and “function”.

The only other amendment occurred through the Statute Law Amendment Act 2025 (A2025-29), which made two changes to section 3. First, the heading of section 3 was substituted from “Prescribed functions - Act, s 6(1)(q)” to “Prescribed functions,Act, s 6 (1) (q)”. This is a purely formal change to align with current drafting practice (spacing around brackets). Second, section 3 itself was amended by A2025-29 amdt 3.86, which adjusted the text. Unfortunately, the republication does not reproduce the precise change; the amendment history note says “s 3 am A2025-29 amdt 3.86”. Given that no new text appears in the current version, the amendment likely involved minor wording changes - possibly updating a cross-reference or clarifying that the prescribed functions include “administrative review” as now appears in the text. The republication as at 16 November 2025 incorporates that amendment, so the current wording is authoritative.

The Regulation has been republished four times (Republication No 4, effective 16 November 2025). Earlier republications occurred on 30 November 1991 (R1, unamended), 23 April 2002 (R2, after the 2001 amendment), and 1 November 2004 (R3). The current republication includes the 2025 amendment.

Notably, the Regulation has never been amended to add any extra prescribed functions beyond those in the original 1991 version. The two categories in s 3 - appeals from inferior court proceedings and Commonwealth prosecutions - have been the full extent of the prescription for over three decades. This stability suggests either that the DPP has not required additional prescribed functions, or that the political will to expand the DPP’s role via regulation has been absent. The narrow scope of the instrument is itself a feature: the ACT Parliament has left the Executive with only a very small power to add functions, and that power has been exercised sparingly.

The source text does not cite any litigation history, and the endnotes contain no references to court cases. This is not surprising given the Regulation’s narrow scope and the fact that it simply expands the DPP’s permissible functions. Litigation concerning the DPP’s authority to bring Commonwealth prosecutions would more likely involve the underlying DPP Act or the Commonwealth appointment, rather than the Regulation itself. However, we can infer some potential scenarios from the Regulation’s text.

If cases have been litigated, they would have centred on the “facts or circumstances” nexus condition in paragraph (b). A defendant might argue that the Commonwealth charges do not arise out of the same factual matrix as the ACT matter. For example, if the ACT charges relate to a burglary and the Commonwealth charges relate to later drug offences discovered during the same investigation, the court would need to determine whether the two sets of facts are sufficiently connected. The Regulation does not define “facts or circumstances”, leaving the courts to develop a test.

Another possible challenge could involve the timing condition: that the ACT matter must not be “completed or otherwise determined” before the Commonwealth prosecution is instituted. The meaning of “completed or otherwise determined” could be contentious. Does a matter become completed when all appeal rights are exhausted, or when the trial court enters judgment? If the ACT matter results in a conviction and the defendant appeals, is the matter still pending for these purposes? The Regulation does not clarify this, and a court would need to interpret the phrase in light of the purpose of the provision - which appears to be to allow simultaneous rather than successive prosecutions.

The Regulation has likely been the subject of internal legal advice within the DPP’s office but not of significant reported litigation. The absence of case law could indicate that the provision functions smoothly in practice, or that potential challenges have been settled without a published decision. Given the ACT’s relatively small caseload and the fact that the Commonwealth DPP often handles Commonwealth offences directly, the Regulation may be rarely invoked. A search of ACT case databases would be needed to confirm whether any decisions reference this Regulation.

Several subtle features of the Regulation can trip up practitioners and the DPP alike.

First, the Regulation is permissive, not mandatory. The DPP is not required to exercise any of the prescribed functions. This means that even if all conditions are satisfied, the DPP can decide not to take on a Commonwealth prosecution. A defendant cannot compel the DPP to act. Conversely, the DPP cannot be compelled by the Attorney-General to bring a Commonwealth case under this power, because the DPP’s independence under s 22 of the Act overrides any direction from the executive.

Second, the consent of the Attorney-General under paragraph (b) applies to the DPP holding the appointment or commission, not to each individual prosecution. Once the appointment is made, the DPP can decide which matters to prosecute within its scope. However, if the Attorney-General later withdraws consent, that would likely invalidate the appointment, and the DPP would lose the ability to continue current Commonwealth prosecutions. This creates an ongoing vulnerability: a change in government or political priorities could disrupt pending cases.

Third, the temporal condition is easily overlooked. The ACT matter must not be “completed or otherwise determined” before the Commonwealth prosecution is instituted. If the ACT charges are dismissed, withdrawn, or result in an acquittal before Commonwealth charges are laid, the DPP cannot then use the Regulation to start a fresh Commonwealth prosecution. This is a significant restriction because it prevents the DPP from using Commonwealth charges as a second attempt after an ACT case fails. However, if the ACT matter is still pending on appeal, it is probably not yet “determined”, so the DPP could still institute Commonwealth proceedings. The point at which a matter is “completed” could be disputed; for example, a nolle prosequi entered by the DPP might end the matter for these purposes, but a stay may leave it technically alive.

Fourth, paragraph (a) may be broader than it first appears. By covering “appeal, application or review (including administrative review)”, it potentially allows the DPP to initiate prerogative writ proceedings in the Supreme Court to challenge a decision made by a magistrate in a committal proceeding. This could include applications for certiorari to quash a committal order. The DPP might use this power to appeal against a magistrate’s refusal to commit, though such appeals are rare and subject to strict time limits. Practitioners should not assume that the DPP can only respond to appeals; the DPP can also institute them.

Fifth, the Regulation does not address the funding and cost implications of Commonwealth prosecutions conducted by the ACT DPP. The Commonwealth might not have a reciprocal arrangement to fund the ACT DPP’s work. If the ACT DPP uses the Regulation, the costs of the prosecution (staff time, expert witnesses, etc.) fall on the ACT budget unless a specific funding agreement exists. This could create a financial disincentive for the DPP to take on complex, resource-intensive Commonwealth cases, even if the legal authority exists.

Sixth, the Regulation does not impose any time limit on the DPP to institute Commonwealth proceedings after the ACT matter is initiated. The only constraint is that the ACT matter must not be completed before the Commonwealth charges are laid. This means the DPP could delay the Commonwealth charges until late in the ACT proceeding, potentially to gain a procedural advantage (e.g., to see how the ACT case unfolds). Defence counsel should monitor the timing closely and consider abuse-of-process arguments if the delay is manipulative.

Compliance with the Director of Public Prosecutions Regulation 1991 is a matter for the DPP’s office, not for the general public. However, defence lawyers and other participants in the criminal justice system can also take steps to ensure that the DPP’s use of the prescribed functions is lawful.

For the DPP’s office, compliance requires a systematic process. First, before instituting any Commonwealth prosecution under paragraph (b), the office must verify that the DPP holds a valid appointment, commission, or authorisation from the Commonwealth to prosecute Commonwealth offences. This appointment must have been obtained with the written consent of the ACT Attorney-General. The office should maintain a register of such appointments, including the date of consent and any conditions attached (e.g., limitation to certain offence types). If the consent is time-limited or conditional, those conditions must be observed.

Second, the DPP must ensure that the Commonwealth charges arise from the same facts or circumstances as an existing ACT matter under s 6(1)(a), (b) or (c) of the Act. The office should prepare a written nexus document explaining how the Commonwealth offences relate to the ACT matter, identifying the factual overlap. This document should be kept on the file and disclosed to the defence if legal challenges arise. The office should also check the status of the ACT matter: it must not have been completed or otherwise determined before the Commonwealth charges are laid. This means monitoring case progress closely. If the ACT matter is likely to resolve soon (e.g., a plea and sentencing), the DPP may need to act quickly to institute the Commonwealth charges before the ACT case concludes.

Third, the DPP must conduct any appeal, application or review under paragraph (a) in accordance with the rules of the relevant court or tribunal. The Regulation does not exempt the DPP from procedural requirements, such as time limits for filing appeals or the need for leave to appeal. The DPP should ensure that the appeal arises out of proceedings under s 6(1)(b) - that is, committal proceedings, contempt proceedings in a court of summary jurisdiction, or other summary criminal proceedings. If the proceeding is from a higher court (e.g., the Supreme Court), paragraph (a) does not apply.

For defence practitioners, compliance verification involves requesting evidence of the DPP’s authority. If a client faces Commonwealth charges brought by the ACT DPP, the defence should ask the DPP to produce a copy of the appointment or commission and the Attorney-General’s consent. If the DPP cannot produce these, the defence can make a preliminary application to challenge the validity of the prosecution. The defence should also examine the timing: was the ACT matter still on foot when the Commonwealth charges were laid? Court records and the timeline of events will reveal this.

The DPP’s office should also consider whether any conflict of interest arises if the same lawyer handles both the ACT and Commonwealth aspects of a case. The Regulation does not prohibit dual roles, but the DPP must remain objective and independent. In practice, the same prosecutor can handle both sets of charges without breaching any ethical duty, provided that no confidential information obtained solely in the ACT role is misused for the Commonwealth charges. The DPP should ensure that any information-sharing complies with the DPP’s internal policies and with privacy laws.

Finally, the DPP should periodically review the continued validity of any Commonwealth appointments. If an appointment expires or is revoked, the DPP must stop using it immediately. Any ongoing Commonwealth prosecutions that were validly instituted before the expiry can continue to finalisation, because the Regulation’s condition is about the point of institution, not the duration of the prosecution. But new charges cannot be laid after the appointment lapses.