Commonwealth: Special Prosecutors Act 1982 (Cth)

Special Prosecutors Act 1982 Act No. 79 of 1982 as amended This compilation was prepared on 28 March 2012 taking into account amendments up to Act No. 46 of 2011 The text of any of those amendments not in force on that date is appended in the Notes section The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section Prepared by the Office of Legislative Drafting and Publishing, Attorney‑General's Department, Canberra Contents 1 Short title [see Note 1] 2 Commencement [see Note 1] 3 Interpretation 4 Extension to external Territories 5 The Special Prosecutors 6 Functions 7 Directions and guidelines to Special Prosecutor 8 Powers of Special Prosecutor 9 Special Prosecutor may appear personally or by counsel or solicitor 10 Terms and conditions of appointment 11 Remuneration and allowances 12 Leave of absence 13 Resignation 14 Disclosure of interests 15 Termination of appointment 16 Acting Special Prosecutor 17 Appointment of staff, consultants etc. 18 Staff on secondment to Special Prosecutor 19 Administrative arrangements 20 Annual report 21 Regulations Notes An Act to provide for Special Prosecutors 1 Short title [see Note 1] This Act may be cited as the Special Prosecutors Act 1982. 2 Commencement [see Note 1] This Act shall come into operation on the day on which it receives the Royal Assent. 3 Interpretation (1) In this Act, unless the contrary intention appears: appoint includes re‑appoint. legal practitioner means a barrister, a solicitor, a barrister and solicitor, or a legal practitioner, of the High Court or of the Supreme Court of a State or Territory. State includes the Northern Territory. Territory does not include the Northern Territory. (2) A reference in this Act to a prosecution for an offence against a law of the Commonwealth includes a reference to a proceeding by the Crown in right of the Commonwealth for the recovery of a pecuniary penalty under a law of the Commonwealth. 4 Extension to external Territories This Act extends to all the external Territories. 5 The Special Prosecutors (1) The Governor‑General may appoint such number of persons as he or she considers necessary to be Special Prosecutors. (2) A person shall not be appointed as a Special Prosecutor unless he or she is enrolled as a legal practitioner and has been so enrolled for not less than 5 years. 6 Functions (1) The functions of a Special Prosecutor are: (a) in respect of such matters or classes of matters as the Attorney‑General, by instrument in writing published in the Gazette, from time to time specifies in relation to that Special Prosecutor for the purposes of this paragraph: (i) to institute prosecutions in any court for offences against the laws of the Commonwealth or of the Territories; and (ii) to carry on prosecutions (whether or not instituted by him or her) in any court for offences against the laws of the Commonwealth or of the Territories; and (b) in respect of such matters or classes of matters as the Attorney‑General, by instrument in writing published in the Gazette, from time to time specifies in relation to that Special Prosecutor for the purposes of this paragraph, to take, or to coordinate or supervise the taking of, civil remedies on behalf of the Commonwealth and its authorities. (2) The institution or carrying on by a Special Prosecutor of a prosecution for an offence against a law of the Commonwealth or of a Territory, or any other act or thing done by a Special Prosecutor in relation to such a prosecution, shall not be challenged or called in question in any court on the ground that the prosecution did not relate to a matter specified by the Attorney‑General under paragraph (1)(a). (3) The taking by a Special Prosecutor of a civil remedy on behalf of the Commonwealth or an authority of the Commonwealth, or any other act or thing done by a Special Prosecutor in relation to the taking of such a civil remedy, shall not be challenged or called in question in any court on the ground that the taking of the civil remedy did not relate to a matter specified by the Attorney‑General under paragraph (1)(b). (4) In addition to his or her functions under subsection (1), a Special Prosecutor shall perform any functions in relation to the institution or carrying on of prosecutions for offences against the laws of a State that are conferred upon him or her by or under any State Act. (5) Nothing in this Act affects the right of any person other than a Special Prosecutor to institute or carry on a prosecution for an offence against a law of the Commonwealth or of a Territory or to take a civil remedy on behalf of the Commonwealth or an authority of the Commonwealth. 7 Directions and guidelines to Special Prosecutor (1) The Attorney‑General may, by notice in writing, give directions or furnish guidelines to a Special Prosecutor with respect to the performance of the functions of that Special Prosecutor but the Attorney‑General is not entitled to give directions or furnish guidelines in relation to a particular case. (2) Where the Attorney‑General gives any directions or furnishes any guidelines to a Special Prosecutor under subsection (1), the Attorney‑General shall cause a copy of the directions or guidelines to be published in the Gazette. 8 Powers of Special Prosecutor (1) For the purposes of the performance of his or her functions, a Special Prosecutor is entitled to prosecute by indictment in his or her own name indictable offences against the laws of the Commonwealth or of the Territories but nothing in this subsection prevents a Special Prosecutor from prosecuting an offence against the laws of the Commonwealth or of the Territories in any other manner. (2) Where a person is under commitment on a charge of an indictable offence against the laws of the Commonwealth or of a Territory, being a prosecution instituted or carried on by a Special Prosecutor, that Special Prosecutor may decline to proceed further in the prosecution and may, if the person is in custody, by warrant under his or her hand direct the discharge of the person from custody, and where such a direction is given, the person shall be discharged accordingly. (3) Nothing in this Act affects, or shall be taken to have affected: (a) the power of the Attorney‑General, or of a person appointed by the Governor‑General, to prosecute by indictment in his or her own name indictable offences against the laws of the Commonwealth; (b) the power of the Attorney‑General, or of a person appointed by the Attorney‑General, to prosecute by information in his or her own name an indictable offence triable before the Supreme Court of the Australian Capital Territory; (c) the power of the Director of Public Prosecutions: (i) to prosecute by indictment in his or her official name indictable offences against the laws of the Commonwealth; or (ii) to prosecute by information in his or her official name an indictable offence triable before the Supreme Court of the Australian Capital Territory; (d) the power under section 61 of the Judiciary Act 1903 of the Attorney‑General or of a person appointed by the Attorney‑General; (e) the power under section 71 of the Judiciary Act 1903 of the Attorney‑General or of a person appointed by the Governor‑General; (f) the power under subsection 53(6) of the Australian Capital Territory Supreme Court Act 1933 of the Attorney‑General or of a person appointed by the Attorney‑General; or (g) the power of the Director of Public Prosecutions under subsection 9(4) of the Director of Public Prosecutions Act 1983. (4) In this section, Special Prosecutor includes a person acting as a Special Prosecutor. 9 Special Prosecutor may appear personally or by counsel or solicitor (1) In any proceeding instituted or carried on by a Special Prosecutor, or any proceeding by way of appeal from or otherwise arising out of a proceeding instituted or carried on by a Special Prosecutor, that Special Prosecutor may appear in person or may be represented by counsel or solicitor. (2) A Special Prosecutor is, in his or her official capacity, entitled to practise as a barrister in any federal court or court exercising federal jurisdiction and in any court of a Territory and is entitled to all the rights and privileges of a barrister in every such court whether or not he or she would, but for this section, be entitled to practise in that court. (3) In this section: Special Prosecutor includes a person acting as a Special Prosecutor. Territory includes the Northern Territory. 10 Terms and conditions of appointment (1) A Special Prosecutor holds office for such period, not exceeding 5 years, as is specified in the instrument of his or her appointment, but is eligible for re‑appointment. (3) A Special Prosecutor holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor‑General. 11 Remuneration and allowances (1) A Special Prosecutor shall be paid such remuneration and allowances as are determined by the Attorney‑General. (2) An office of Special Prosecutor is not a public office for the purposes of Part II of the Remuneration Tribunal Act 1973. 12 Leave of absence The Attorney‑General may grant to a Special Prosecutor leave of absence from duty on such terms and conditions as to remuneration or otherwise as the Attorney‑General determines. 13 Resignation A Special Prosecutor may resign his or her office by writing signed by him or her and delivered to the Governor‑General. 14 Disclosure of interests A Special Prosecutor shall give written notice to the Attorney‑General of all direct or indirect pecuniary interests that he or she has or acquires in any business or in any body corporate carrying on any business. 15 Termination of appointment (1) The Governor‑General may terminate the appointment of a Special Prosecutor for misbehaviour or physical or mental incapacity. (2) Where the Governor‑General is satisfied, having regard to any report made to the Attorney‑General by a Special Prosecutor under section 20, that that Special Prosecutor has discharged his or her functions in relation to the matters or classes of matters specified in relation to him or her by the Attorney‑General under section 6, the Governor‑General may terminate the appointment of that Special Prosecutor. (3) If a Special Prosecutor: (a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; (b) is absent from duty except on leave of absence granted by the Attorney‑General for 14 consecutive days or for 28 days in any 12 months; (c) without the consent of the Attorney‑General engages in practice as a barrister or solicitor, or engages in paid employment, outside the duties of his or her office; or (d) fails, without reasonable excuse, to comply with his or her obligations under section 14; the Governor‑General shall terminate the appointment of that Special Prosecutor. 16 Acting Special Prosecutor The Attorney‑General may appoint a person to act as a Special Prosecutor during any period, or during all periods, when a Special Prosecutor is absent from duty or from Australia or is, for any reason, unable to perform the functions of his or her office. Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901. 17 Appointment of staff, consultants etc. (1) A Special Prosecutor may, on behalf of the Commonwealth and with the approval of the Attorney‑General, employ, under agreements in writing, such persons as he or she thinks necessary for the purposes of the performance of his or her functions. (2) A Special Prosecutor may, on behalf of the Commonwealth and with the approval of the Attorney‑General, engage, under agreements in writing, persons having suitable qualifications and experience as consultants to, or to perform services for, that Special Prosecutor. (3) Where a Special Prosecutor employs or engages a person under this section, the terms and conditions of the person's employment or engagement are such as are from time to time determined by the Special Prosecutor. (4) In this section, Special Prosecutor includes a person acting as a Special Prosecutor. 18 Staff on secondment to Special Prosecutor In addition to persons employed or engaged under section 17, a Special Prosecutor shall be assisted by: (a) persons appointed or engaged under the Public Service Act 1999 whose services are made available to that Special Prosecutor; (b) members of the Australian Federal Police whose services are made available to that Special Prosecutor; (c) officers and employees of authorities of the Commonwealth whose services are made available to that Special Prosecutor; and (d) persons whose services are made available to that Special Prosecutor pursuant to arrangements made under section 19. 19 Administrative arrangements (1) The Attorney‑General may make an arrangement with the appropriate Minister of a State or of the Northern Territory under which the State or Territory will, from time to time as agreed upon under the arrangement, make available a person who is an officer or employee of the State or Territory or of an authority of the State or Territory or a member of the Police Force of the State or Territory, or persons who are such officers, employees or members, to perform services for a Special Prosecutor. (2) An arrangement under subsection (1) may provide for the Commonwealth to reimburse a State or the Northern Territory with respect to the services of a person or persons to whom the arrangement relates. (3) In this section, State does not include the Northern Territory. 20 Annual report (1) Each Special Prosecutor shall, as soon as practicable after each 30 June, prepare and furnish to the Attorney‑General a report of his or her operations under this Act during the year that ended on that 30 June. (2) The Attorney‑General shall cause a copy of every report furnished to him or her by a Special Prosecutor under this section to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by him or her. 21 Regulations The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to this Act. Notes to the Special Prosecutors Act 1982 Note 1 The Special Prosecutors Act 1982 as shown in this compilation comprises Act No. 79, 1982 amended as indicated in the Tables below. All relevant information pertaining to application, saving or transitional provisions prior to 1 October 2001 is not included in this compilation. For subsequent information see Table A. Table of Acts Act Number Date Date of commencement Application, saving or transitional provisions and year of Assent Special Prosecutors Act 1982 79, 1982 21 Sept 1982 21 Sept 1982 Statute Law (Miscellaneous Provisions) Act (No. 1) 1983 39, 1983 20 June 1983 21 Sept 1982 S. 7(1) Director of Public Prosecutions (Consequential Amendments) Act 1983 114, 1983 14 Dec 1983 5 Mar 1984 (see s. 2(1) and Gazette 1984, No. S55) — Public Service and Statutory Authorities Amendment Act 1985 166, 1985 11 Dec 1985 8 Jan 1986 S. 45(2) Prime Minister and Cabinet Legislation Amendment Act 1991 199, 1991 18 Dec 1991 18 Dec 1991 — Statute Law Revision Act 1996 43, 1996 25 Oct 1996 Schedule 4 (item 136): Royal Assent (a) — Public Employment (Consequential and Transitional) Amendment Act 1999 146, 1999 11 Nov 1999 Schedule 1 (item 828): 5 Dec 1999 (see Gazette 1999, No. S584) (b) — Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001 159, 2001 1 Oct 2001 29 Oct 2001 Sch. 1 (item 97) [see Table A] Statute Law Revision Act 2008 73, 2008 3 July 2008 Schedule 4 (items 471–473): 4 July 2008 — Acts Interpretation Amendment Act 2011 46, 2011 27 June 2011 Schedule 2 (items 1067–1069) and Schedule 3 (items 10, 11): 27 Dec 2011 Sch. 3 (items 10, 11) [see Table A] (a) The Special Prosecutors Act 1982 was amended by Schedule 4 (item 136) only of the Statute Law Revision Act 1996, subsection 2(1) of which provides as follows: (1) Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent. (b) The Special Prosecutors Act 1982 was amended by Schedule 1 (item 828) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows: (1) In this Act, commencing time means the time when the Public Service Act 1999 commences. (2) Subject to this section, this Act commences at the commencing time. Table of Amendments ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected How affected Ss. 5, 6................. am. No. 73, 2008 S. 8.................... am. No. 114, 1983; No. 73, 2008 S. 9.................... am. No. 73, 2008 S. 10................... am. No. 159, 2001; No. 73, 2008 S. 11................... am. No. 43, 1996 Ss. 13–15................ am. No. 73, 2008 S. 16................... am. No. 39, 1983; No. 73, 2008; No. 46, 2011 Note to s. 16.............. ad. No. 46, 2011 S. 17................... am. No. 166, 1985; No. 199, 1991; No. 73, 2008 S. 18................... am. No. 146, 1999 S. 20................... am. No. 73, 2008 Table A Application, saving or transitional provisions Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001 (No. 159, 2001) Schedule 1 97 Application of amendments The amendments made by this Schedule do not apply to an appointment if the term of the appointment began before the commencement of this item. Acts Interpretation Amendment Act 2011 (No. 46, 2011) Schedule 3 10 Saving—appointments The amendments made by Schedule 2 do not affect the validity of an appointment that was made under an Act before the commencement of this item and that was in force immediately before that commencement. 11 Transitional regulations The Governor‑General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by Schedules 1 and 2.