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…
Overview
The Special Prosecutors Act 1982, enacted by the Australian Parliament, was introduced to address the need for additional legal professionals to handle complex prosecutions and civil remedies on behalf of the Commonwealth. The Act provides for the appointment of Special Prosecutors who are experienced legal practitioners and empowers them to institute and carry on prosecutions and take civil remedies in relation to specific matters specified by the Attorney-General. The primary objective of the Act is to ensure that the Commonwealth has the necessary legal resources to effectively manage significant legal matters while maintaining the independence and integrity of the prosecutorial process. The Governor-General is responsible for appointing Special Prosecutors, who must be enrolled as legal practitioners with a minimum of five years' experience. The Act outlines the terms and conditions of their appointment, including remuneration, leave of absence, resignation, and the circumstances under which their appointment can be terminated. It also details the powers of Special Prosecutors, their ability to appear in court, and the administrative arrangements to support their functions.
Scope and Application
The Special Prosecutors Act 1982 applies to the appointment and functions of Special Prosecutors within Australia, including its external Territories. The Governor-General appoints Special Prosecutors who must be enrolled legal practitioners with at least five years of experience. These prosecutors have the authority to institute and carry on prosecutions for Commonwealth or Territory offences and to take or coordinate civil remedies on behalf of the Commonwealth, as specified by the Attorney-General. Their actions cannot be challenged in court if they fall within the specified matters or classes of matters. Special Prosecutors may also perform functions related to State prosecutions as conferred by State Acts. The Act allows for the issuance of directions and guidelines by the Attorney-General, excluding specific cases, and mandates the publication of such guidelines in the Gazette. The Act further delineates the powers of Special Prosecutors, their right to appear in person or through counsel, terms and conditions of appointment, remuneration, and other administrative details such as leave, resignation, and termination of appointment. The Act extends to all external Territories and allows for the appointment of acting Special Prosecutors and the engagement of staff or consultants with Attorney-General’s approval. It also permits administrative arrangements with State or Territory authorities for the provision of personnel to assist Special Prosecutors. Annual reports from Special Prosecutors are to be submitted to the Attorney-General and subsequently tabled before Parliament. The Act can be further detailed through regulations made by the Governor-General.
Key Provisions
- The Special Prosecutors Act 1982 (the Act) primarily governs the appointment, functions, and operational framework for Special Prosecutors in Australia. Under section 5, the Governor-General may appoint individuals as Special Prosecutors, provided they are enrolled as legal practitioners with a minimum of five years of experience. The functions of a Special Prosecutor are outlined in section 6, which include instituting and carrying on prosecutions for offences against Commonwealth or Territory laws, and taking civil remedies on behalf of the Commonwealth. These functions are further specified by the Attorney-General through written instruments published in the Gazette. Additionally, section 6(4) allows Special Prosecutors to perform any functions conferred upon them by State Acts relating to prosecutions for offences against State laws.
- The Act imposes several obligations on Special Prosecutors, as outlined in various sections. For instance, section 7 allows the Attorney-General to issue directions or guidelines to Special Prosecutors regarding their functions, though not in relation to specific cases. Section 14 mandates that Special Prosecutors must disclose any direct or indirect pecuniary interests they hold in any business or corporate entity to the Attorney-General. Furthermore, section 15 details the circumstances under which the Governor-General may terminate a Special Prosecutor’s appointment, such as for misbehaviour, incapacity, or failure to meet certain professional obligations.
- Breaches of the Act may result in severe consequences. Section 15(3) specifies that the Governor-General can terminate a Special Prosecutor's appointment if the individual engages in prohibited activities, such as practicing law outside their duties without consent, is absent from duty without leave, or fails to disclose pecuniary interests as required. While the Act does not explicitly state maximum penalties for breaches, the seriousness of these grounds for termination suggests significant professional and possibly legal repercussions. Additionally, any actions that undermine the integrity of prosecutions or civil remedies could be subject to judicial review, leading to potential nullification of proceedings under certain circumstances.
- Area of Law
- Criminal Law
- Instrument
- Act
- Concepts
- Definitions & Interpretation
- Commencement Provisions
- Offence Provisions
- Enforcement Powers