Public Defenders Act 1995

This Act is the Public Defenders Act 1995.

This Act commences on a day or days to be appointed by proclamation.

In this Act:

community legal centre means an Aboriginal legal service or other community legal service within the meaning of the Legal Profession Uniform Law (NSW).

exercise a function includes perform a duty.

function includes a power, authority or duty.

legally assisted person means a person who is a legally assisted person within the meaning of the Legal Aid Commission Act 1979 or who is receiving legal assistance through a community legal centre.

part-time Public Defender means a Public Defender exercising his or her functions as a Public Defender on a part-time basis, as provided by an agreement referred to in section 6 (2A).

The Attorney General may issue guidelines as to the process for the selection of a person to be proposed for appointment (including reappointment) to any office under this Part. The guidelines are not mandatory and a failure to comply with them does not affect the validity of an appointment.

The Governor may appoint a Senior Public Defender.

The Senior Public Defender has such functions as are conferred or imposed on the Senior Public Defender by or under this or any other Act.

The Senior Public Defender is responsible to the Attorney General for the due exercise of the Senior Public Defender’s functions, but nothing in this subsection affects or derogates from the authority of the Senior Public Defender in respect of the conduct of any proceedings.

Schedule 1 has effect in relation to the Senior Public Defender.

The Governor may appoint one or more Deputy Senior Public Defenders.

A Deputy Senior Public Defender has such functions as are conferred or imposed on Deputy Senior Public Defenders by or under this or any other Act.

A Deputy Senior Public Defender is responsible to the Senior Public Defender for the due exercise of the Deputy Senior Public Defender’s functions, but nothing in this subsection affects or derogates from the authority of a Deputy Senior Public Defender in respect of the conduct of any proceedings.

Schedule 1 has effect in relation to a Deputy Senior Public Defender.

The Governor may appoint such number of Public Defenders as the Governor thinks necessary.

A Public Defender has such functions as are conferred or imposed on Public Defenders by or under this or any other Act.

A Public Defender may, by agreement in writing entered into with the Senior Public Defender, exercise his or her functions as a Public Defender on a part-time basis.

A Public Defender is responsible to the Senior Public Defender for the due exercise of the Public Defender’s functions, but nothing in this subsection affects or derogates from the authority of a Public Defender in respect of the conduct of any proceedings.

Schedule 1 has effect in relation to a Public Defender.

The Attorney General may appoint a person who is eligible for appointment as such to act in the office of Senior Public Defender, Deputy Senior Public Defender or Public Defender.

The Attorney General:

may, subject to this section, determine the terms and conditions of appointment, including remuneration and allowances, of a person acting in the office of Senior Public Defender, Deputy Senior Public Defender or Public Defender, and

may terminate such an appointment at any time.

A person may not act or be appointed to act under this section for a period of more than 12 months at a time.

While a person is acting in the office of Senior Public Defender, Deputy Senior Public Defender or Public Defender, the person has all the functions of that office and is taken to be the holder of that office.

A person may be appointed to act in an office under this section (and may act in that office) even if the person is of or above the age at which a holder of the office would vacate the office.

The functions of the Senior Public Defender include the following:

to make arrangements and give directions for the disposition of the work of Public Defenders and so to ensure the effective and efficient conduct of that work,

to provide advice and assistance to, and to monitor the work and activities of, Public Defenders,

to consult with the Legal Aid Commission and with community legal centres about, and to enter into arrangements with the Legal Aid Commission and community legal centres for, the provision of legal assistance to legally assisted persons,

to advise the Attorney General, whether on the request of the Attorney General or otherwise, on matters relating to the reform of the law relevant to the work and activities of Public Defenders.

The Senior Public Defender also has all the functions of a Public Defender.

The functions of a Deputy Senior Public Defender include that of assisting the Senior Public Defender, as the Senior Public Defender requires.

A Deputy Senior Public Defender also has all the functions of a Public Defender.

The functions of a Public Defender include the following:

to advise and appear in criminal proceedings, and other proceedings in the nature of criminal proceedings, on behalf of legally assisted persons,

to advise on matters referred to the Public Defender by the Senior Public Defender,

to carry out such other related functions as may be specified by the Attorney General after consultation with the Senior Public Defender.

The reference in subsection (1) (a) to proceedings in the nature of criminal proceedings extends to:

committals, trials, appeals and ancillary proceedings (such as bail applications), and

proceedings that are brought against a person for the purpose of obtaining an order for the detention of the person in prison, in a hospital for the detention of mentally incapacitated persons or in any other place of detention, and

proceedings that are brought by a person for the purpose of securing the person’s release from detention in prison, in a hospital for the detention of mentally incapacitated persons or in any other place of detention.

The Senior Public Defender may, by order in writing, establish guidelines with respect to the exercise of the Public Defenders’ functions under this Act.

Guidelines may not be established in relation to particular cases.

A Public Defender is subject to any guidelines in force under this section.