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Director of Public Prosecutions Amendment (Parliamentary Joint Committee) Bill
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Page: 6036
Second Reading
Debate resumed from 8 May.
Mr NEVILLE NEWELL (Tweed—Parliamentary Secretary) [10.30 a.m.]: This is not the first time that the Opposition has attempted to establish a parliamentary committee to oversight the office of the Director of Public Prosecutions [DPP]. The bill before the House is almost identical to the bill that was introduced by the Opposition in 1995, in 1997, and again in 2001. As with the previous bills, the current bill is fatally flawed and cannot be supported by the Government. The object of the bill is to establish a parliamentary committee that will recommend, annually, the amount to be appropriated out of the Consolidated Fund for the office of the Director of Public Prosecutions and comment generally on the budget of that office. It is proposed that the committee will have power to veto the proposed appointment of the Director of Public Prosecutions and to monitor and review the exercise by the Director of Public Prosecutions of his or her functions under the Director of Public Prosecutions Act 1986 and any other Act.
The bill provides for powers, functions and procedures of the proposed joint committee that are similar to existing joint committees under the Ombudsman Act 1974, the Independent Commission Against Corruption Act 1988 and the Health Care Complaints Act 1993. In addition to the powers of those committees, it is proposed that this committee will have the functions of recommending appropriations out of the Consolidated Fund, commenting on budget and requesting reasons for certain decisions. Proposed section 30B (3) of the bill provides that most of the functions of the committee are to have retrospective effect. Under proposed section 30J (2) the committee may require the DPP to furnish reasons for a decision not to institute a prosecution, proceeding or appeal, a no bill determination or a decision that no further proceedings be taken.
The Opposition's proposal is unacceptable to the Government. It strikes at the very independence of the DPP. The notion of making the DPP accountable in the same way as the Ombudsman and the ICAC is totally misconceived. The functions of the DPP are different from those of the Ombudsman and ICAC. The DPP represents the State in criminal prosecutions, whereas the Ombudsman and ICAC report to Parliament on the operation of executive government. A further significant difference is that ICAC and the Ombudsman have been given coercive investigative powers, which means they have the power to interfere in the free enjoyment of the rights of individuals. On the other hand, the DPP has no such coercive powers, and in the conduct of litigation operates very much the same way as any firm of solicitors. The Opposition's proposal represents a direct interference with the DPP's independence in conducting criminal prosecutions.
Proposed section 30B (1) (a) provides that the committee will be able to recommend the sums to be appropriated out of the Consolidated Fund for the recurrent services and the capital works and services of the DPP in respect of any financial year of that office and to comment generally on the budget of that office. If implemented, this proposal has the potential to control the operations of the DPP, to guide the direction of its work and to reduce its ability to function effectively and independently by influencing the funding provided to the office. Again, this proposal is an attack on the independence of the DPP.
At present, the DPP is required to submit his response on budget estimates through the Minister, who after due consideration and approval submits it to the Treasurer for determination. The DPP is fully accountable for its budget through the Auditor-General and review by the estimates committee. Under proposed section 30B (1) (b) the joint committee will be able to monitor and review the exercise of the director's statutory functions. This proposal constitutes a direct attack upon the independence of the DPP's office. It clearly undermines the intention of the Act that decisions about prosecutions must be made completely independently of political influence. In his second reading speech, the honourable member for Epping indicated that the powers of the committee would not extend to recommending that the DPP make a decision that relates to the institution or cessation of prosecutions or proceedings in a particular case, or to reconsidering any such decision. However, the bill will give the committee specific power to require the DPP to furnish reasons for his prosecutorial decisions and it is proposed that the committee will review such decisions and may recommend that the Attorney General ask the DPP to reconsider a decision.
The DPP and his officers make dozens of decisions every day, many of which displease someone, and under these proposals they could be made the subject of complaint to the committee. Often the reasons for discontinuance of a case may be very sensitive. It may involve the evidence of informers. Yet the committee's proceedings are proposed to be held in public and there is no requirement for the committee to grant the DPP a private hearing or a direction for confidentiality in such instances. The honourable member for Epping likens the monitoring and review function of the committee to the Home Affairs Committee of the House of Commons. The review of the Crown Prosecution Service by the Rt Hon. Sir Iain Glidewell in 1998 notes that the DPP appears before various parliamentary committee, and states:
It must be made clear that the DPP is in no sense accountable to a Select Committee. When she would attend such a Committee she does so to answer questions and give explanations about the conduct of the CPS. Moreover there is a limitation on the issues about which the DPP may be questioned by a Select Committee … The DPP should answer to the Select Committee for any matter relating to the policy, general structure or conduct of the CPS, but should not be required to discuss or give any detailed information about any particular case handled, or decision made relating to that case … If this principle is not adhered to, the burden on the DPP would be unfair and damage the proper conduct of her office.
I note that any attempt by members in United Kingdom select committees to ask questions about a specific case is promptly stopped in its tracks. The independence and integrity of the Independent Commission Against Corruption, a body the honourable member for Epping likens to the DPP, is even further entrenched by the relevant legislation. The honourable member's bill provides that the joint committee is not authorised "to recommend that a decision be made or to reconsider a decision to institute or not institute a prosecution or proceeding or to direct that no further proceedings be taken, in a particular case." However, nothing in this section prevents the joint committee from inquiring into the conduct or the investigation of a particular case. There is nothing to prevent the interference of the joint committee other than that regarding the institution of prosecutions or proceedings.
In contrast, the powers and functions of the ICAC parliamentary joint committee, which the honourable member holds up as a parallel, provide much more protection for ICAC's independence and integrity. In section 64 (2) of the Independent Commission Against Corruption Act 1988, the joint committee is specifically not authorised to "investigate a matter relating to particular conduct"; to "reconsider a decision to investigate, not to investigate or to discontinue investigation of a particular complaint"; or to "reconsider the findings, recommendations, determinations or other decisions of the commission in relation to a particular investigation or complaint". This legislation makes it quite clear that ICAC cannot be asked about individual cases at all, whereas the current bill would allow unprecedented interference with the independent operations of the DPP.
Paragraphs (c), (d), (e) and (f) of proposed section 30B (1) relate to the power of the joint committee to report to both Houses of Parliament on any matter appertaining to the director or connected to the functions of the director. These provisions are unnecessary, given that the Attorney General, to whom the director is responsible for the due exercise of his functions, already performs this role and will continue to do so. Proposed section 30D will enable the joint committee to veto the proposed appointment of a person as Director of Public Prosecutions. The bill contains consequential amendment to delete the existing power to veto such an appointment which presently exists in the committee on the office of the Ombudsman pursuant to section 4A of the Act.
The honourable member for Epping contends that the creation of a parliamentary committee will create a forum for the DPP to comment on criminal justice issues and matters of public policy pertaining thereto. In reality, the DPP already performs this vital role outside the proposed parliamentary committee structure. The only effect that creating a parliamentary committee would have would be to create further bureaucratic checks on the performance of the DPP's prosecutorial role and to undercut the independence of the office. It is appropriate that the Minister, and through him Parliament, should oversight the Director of Public Prosecutions in relation to the general conduct of the office. However, the proposals by honourable members opposite to intervene in prosecutorial decisions are anathema to the concept of an independent DPP. The Government opposes the bill.
Mr PETER DEBNAM (Vaucluse) [10.41 a.m.]: I am delighted to have this opportunity to speak briefly about this issue, which concerns not only members in this House but most members of the community and certainly every member of the New South Wales police force. The Director of Public Prosecutions [DPP] has been a great concern to this House for many years. We all wonder why so many decisions of the DPP and his office go so badly wrong. Yesterday I sought to applaud a magistrate who had refused to impose bail conditions on a police officer who was before the court. I explained to the House why I wanted the Government to vote with the Opposition on that motion, which provided an opportunity to support front-line police in their work protecting the community and to give them a general show of support. However, the Government ultimately refused to do that. I also sought an expression of concern from the House about the DPP and the way in which he has handled a number of cases. Yesterday I raised the particular case of a ram raider who received a slap on the wrist and a good behaviour bond.
Over the years we have watched the antics of this particular DPP on many issues, not just when supposedly doing his job but as a social activist. We are all concerned about many of the issues that he has pursued given that he is supposed to work for the community. I am not sure at times exactly whom he is working for. I will refer later to this month's Police Association newsletter—it was published in the past few days—which outlines some concerns about the DPP. The House must ask: What has the DPP been doing and what is the Government going to do about the DPP? The Premier has flip-flopped on this issue over time. Sometimes he stands up in this place and speaks theatrically about the need to rein in the DPP but at other times he bows to the left wing of the Labor Party and says that he will protect the DPP. We must ask why the Premier is protecting the DPP.
The DPP's actions in many cases are a concern. While obviously not wanting to focus on particular cases, every honourable member must express concern at what this gentleman has done over a number of years. I pointed out yesterday that the DPP seems to be out of touch with what is happening on our streets. He seems to be out of touch with gun crime on our streets, the gang wars on our streets and with the wave of robberies we are suffering. The DPP seems to be out of touch with the reality of crime and intimidation on our streets and also with the concerns of the community. Media commentators and members of Parliament frequently raise issues that touch upon the role of the DPP because they are very concerned about the criminals in this State and their activities. There is no doubt that in our so-called justice system in New South Wales many of those criminals receive second, third and fourth chances. However, I remind honourable members that front-line police officers do not get second chances, and they certainly do not get the benefit of the doubt. It seems that the criminals do.
Members of Parliament and media commentators are certainly not "bottom feeders", as described by the DPP. The DPP needs to get in touch with exactly whom he is representing. Media commentators and members of Parliament understand that they are representing the community but I am not sure whom the DPP is representing. This is a sovereign Parliament and, as the seat of democracy in this State—although one wonders about that at times under this Premier—it is intended to be a clearing house for community concerns. I applaud the shadow Attorney General for introducing the Director of Public Prosecutions Amendment (Parliamentary Joint Committee) Bill, which addresses a major community concern: the DPP, his office and what Parliament will do about them.
As I said yesterday, the DPP has demonstrated an ability to make good and bad decisions. But somehow he seems to make more bad decisions. Perhaps it is an issue of resources. Perhaps it is a question of management ability or perhaps it is philosophical; I do not know. However, I think it is time to take a close look at that office and that individual, and the shadow Attorney General's proposal is one way of doing that. I mentioned the Police Association newsletter. This month's editorial is entitled "Greater scrutiny of DPP". I will refer to only two paragraphs, which state:
The office of the Director of Public Prosecutions is a taxpayer-funded prosecutorial service. It is an organisation that has sought to take over all prosecutions and when unsuccessful has contributed to a significant increase of workload on the police prosecutors who continue to battle on in extreme circumstances. It is no longer acceptable that the Office of the DPP is not publicly accountable. The separation of powers has its argument in the practice of law, not in its administration.
Perhaps the time has come for the Office of the DPP to be subjected to parliamentary scrutiny, as is the Police Integrity Commission, ICAC and all other government agencies. The public, through its elected representatives is at least entitled to be better informed through parliamentary oversight. Given their role, why isn't the Office of the DPP subjected to the same standard of oversight as police officers?
They are very good questions. The Attorney General has great difficulties with the Police Association, but I would like to hear his response to those points.
Mr PAUL LYNCH (Liverpool) [10.47 a.m.]: I oppose the Director of Public Prosecutions Amendment (Parliamentary Joint Committee) Bill. It is misconceived in theory and utterly malevolent in intent. I had not intended to speak in this debate until I listened to the quite provocative contribution from the honourable member for Vaucluse, who indicated precisely why this bill is such an incredibly bad idea. The principle of the independence of the prosecution is critical to our system of government and the institutions that govern our lives. It is absolutely abhorrent and horrific to think that politicians could determine who will or will not be prosecuted. That is what is at stake in this legislation. There is no doubt that this bill is nothing other than an attempt to stifle the independence of the Director of Public Prosecutions [DPP] and allow politicians to interfere in decisions about who will or will not be prosecuted. I cannot imagine anything more calculated to destroy the liberty of ordinary citizens than allowing politicians to decide who gets to go to gaol. I cannot imagine a more evil way of running a society than allowing some of the people in this Chamber to decide who goes to gaol.
Ms Clover Moore: It harks back to earlier administrations.
Mr PAUL LYNCH: That is an interesting comment. It actually harks back to 200 or 300 years before we had responsible, democratic government. It is a medieval concept that would allow the Government to imprison people. Sometimes in this Chamber I hear rhetoric from the other side about the Bill of Rights. It is not this side of the House that is trying to turn back the Bill of Rights. It is a quite extraordinary proposition. The Opposition is trying to interfere with prosecutorial discretion, to interfere with who makes the decisions about who is or who is not to be prosecuted. The evidence is obvious in what happened in this House yesterday and in the speech from the honourable member for Vaucluse a couple of minutes ago. It is absolutely clear from his contribution to this debate and his comments yesterday that he and the Opposition want to interfere with individual cases and make a decision about who gets prosecuted and thus who goes to gaol. That is why I say that this bill is utterly malevolent in intent.
Two aspects of the bill strike directly at the independence of the Director of Public Prosecutions. Proposed section 30B deals with the financial independence of the office. There is no more effective way of bringing a body to heel, getting it to do what you want it to do, than by controlling the purse strings. That is precisely what the bill proposes to do. The joint committee would have extraordinary scope to intimidate the Director of Public Prosecutions, to harass him and to inquire into the intricacies of individual cases. While the bill prohibits a particular decision being overturned, it has no other restriction on what might be inquired into by the committee in relation to individual cases.
The oversight committees for the Independent Commission Against Corruption [ICAC] and the Police Integrity Commission and the Ombudsman do not have the power to overturn particular decisions. They nonetheless have very wide powers to bring people to account, including the use of those powers against the Director of Public Prosecutions [DPP], be it the current occupant of the position or a subsequent occupant. Those powers could be used to intimidate that person and to get the result that various politicians want. Can one imagine a more insane system than one in which politicians make decisions about who is prosecuted and who is not? I note that although notice of the bill was given some time ago it has been brought on for debate by the mover only today. On a number of earlier occasions he has rejected the opportunity of debating it. That underlines how politically cynical this exercise is. It really is about interfering in particular cases. It is a cynical and malevolent attempt to distort the institutions of our State, institutions that relate to our heritage. I note that last time we were here—
Mr Chris Hartcher: You of all people talk about preserving the heritage when you want to overturn it.
Mr PAUL LYNCH: That interjection from the honourable member for Gosford shows the typical hypocrisy and intellectually inadequate drivel that he comes out with all the time. On the last private members' day in this Chamber the honourable member for Gosford and his ideological soul mates on the other side of the Chamber gave us long lectures about the heritage that we have to defend. They got stuck into the honourable member for Bligh and other people who wanted to get rid of the royal coats of arms on the basis that we have to defend our heritage. For once could he be consistent? For once could the honourable member for Gosford be other than the rank hypocrite we know he is. For once he should live up to the rhetoric he goes on with and defend his heritage and the independence of the prosecution services, because that is also a part of the heritage that he claims to support.
The truth is that when it suits him he supports heritage; when it does not suit him he is delighted to overturn the protections for individual citizens that are a proud part of their heritage. There are some very positive things about the English tradition of the common law. Protection of the individual is one of those things, but the honourable member for Gosford has managed to ignore that part. He writes out of history things that he does not like. That is symptomatic of the intellectually inadequate approach he usually adopts. He is indeed a byword for intellectual inadequacy, and likewise a byword for utter and rank hypocrisy. There has also been an attempt—once again intellectually inadequate—to draw a comparison between the DPP and the Independent Commission against Corruption and the Ombudsman. They are absurd and stupid comparisons. The functions that those bodies carry out are very different from the functions carried out by the DPP and it is extremely weak to rely upon that to justify this bill. As I said, this bill will be rejected. It is misconceived in theory and utterly malevolent in its intent.
Mr CHRIS HARTCHER (Gosford) [10.54 a.m.]: The issue before the Parliament is whether government officers discharging a public function should be accountable to the community through the Parliament. The precedent for that is with the Commissioner of the Independent Commission Against Corruption [ICAC], the Ombudsman and the Auditor-General, who all report to the community through a parliamentary committee. This bill seeks to ensure that the prosecutorial functions of the State, which are independent of the Government since the creation of the Office of the Director of Public Prosecutions [DPP], are made accountable to the community. The bill does not allow for individual cases to be examined, but it does allow for the policy and principles motivating the operation of the Office of the Director of Public Prosecutions to be advised to the parliamentary committee and, through that committee, to the community whom the Office of the DPP represents. There is nothing groundbreaking about the bill. As everybody knows, the United Kingdom House of Commons has similar legislation. If ever there were going to be an office that might not be accountable to the Parliament it would surely be the office of the Independent Commission Against Corruption. It is responsible for investigating—and even as we speak is actively investigating—members of Parliament. Yet there is still a parliamentary committee to oversight that office.
The DPP has no specific role in relation to public officers; the role of the DPP relates to criminal conduct throughout the State, no matter who breaches the law. There is nothing objectionable in theory or in practice in asking for the policy that motivates the decisions of the DPP to be explained to a parliamentary committee. That is all that this bill does. It is consistent with other legislation, such as that for the ICAC and the Ombudsman. For members opposite now to contend that this is a destruction of the heritage of Western civilisation when they themselves spend most of their time trying to undermine the heritage of Western civilisation is simply rank hypocrisy. For the honourable member for Liverpool, who more than any other is Castro's spokesman in the Parliament, who pleads El Gramma's case almost every day—
Mr Paul Lynch: Point of order—
Mr CHRIS HARTCHER: If El Gramma has not—
Mr Paul Lynch: I have two points of order. By not sitting down when another member rises to take a point of order the honourable member is demonstrating his contempt for the heritage of this place. The second point of order is that the matter before the Chair is not a motion about Fidel Castro or anyone else. He really should come back just occasionally to the leave of the bill.
Mr SPEAKER: Order! The Chair is reluctant to invoke Standing Order 138. I ask the honourable member for Gosford to return to the leave of the bill.
Mr CHRIS HARTCHER: I will speak to the bill, but the interjections of the honourable member for Liverpool cannot go unanswered. I take my hat off to Mark Latham. That must have been a wonderful preselection back in 1989 when he and the honourable member for Liverpool—but I digress. What is at issue here is very important, because so many people in the community feel aggrieved about the policy that underlies the decisions of the DPP. Many people whose loved ones have been murdered or cruelly abused in the most disgraceful sexual cases feel that the sentences imposed by the courts have been inadequate. The DPP has declined in many cases to appeal against those sentences. People wish to know why those sentences have not been appealed against.
What are the DPP's policies? Surely the community is entitled to know. I have seen letters written to aggrieved families in which the DPP has said, "I am not obliged to give you reasons for my decision." That is correct in law: he is not obliged to give reasons for his decision. But if he is discharging a public function—after all, that is what he is, the public prosecutor—he is there to ensure that the public interest is protected. If he has that responsibility, if he is publicly funded, paid from the public purse, surely his policy is publicly reviewable and publicly accountable. That is all that the Coalition parties are asking for. One would think that any person of goodwill would support that. The whole community has an interest in serious crime, not just the DPP, so the community should have a voice in determining how the policy is carried out.
I have the highest respect for a number of the DPP staff. My public criticism of the DPP is well known: he and I have exchanged insulting press releases about each other over some years but, unlike the honourable member for Liverpool, I accept the umpire's decision. I will say now as I have said on other occasions that in many respects the DPP acts like the high priest of a religious cult. He is unaccountable and beyond the reach of the people and the Parliament, and nobody should query or question the motivation for his decisions.
Nobody questions his competence: he is a very competent person. Nobody questions his intelligence: he is a very intelligent person. Nor do I question his integrity: I believe he is a person of integrity. None of those personal attributes is questioned, but that is not the issue, and that is where a debate of this nature goes off the rails. We are not questioning his integrity, his intelligence or his competence, but we are questioning his accountability. We are saying that, in the discharge of his office, the community is entitled to know how he comes to make certain decisions, and whether those decisions should be his precedent for future decisions. That is the role of a parliamentary committee.
The parliamentary committee proposed to be established by the bill will be able to call the DPP before it and review his budget, policy, and programs, just as parliamentary committees do for the Commissioner of the Independent Commission Against Corruption, the Ombudsman, and the Auditor-General. A mischievous person will misrepresent what the Coalition is trying to do, but the bill speaks for itself. I commend the shadow Attorney General for bringing it before the House again. I urge any member who is interested in ensuring that the public prosecutorial role of the DPP is public and accountable to the public to support this bill.
Mr BOB DEBUS (Blue Mountains—Attorney General, and Minister for the Environment) [11.01 a.m.]: The contributions of the Opposition in respect of this bill are in many respects simply breathtaking. It is astounding that those opposite feel able so casually to challenge some of the most fundamental understandings of the way that our law—our judicial system and our system of criminal justice—actually works. They appear not to understand that it should be cherished, especially with respect to its fundamental principles, above most other things. Perhaps members of the Opposition should spend a little time examining how the criminal justice system operates in other countries of the world and consider whether they can suggest honestly, even for a moment, that ours is not superior, that ours does not have a level of integrity that has to be the envy of most—not all, but most—of the other countries.
I find it extraordinary that there can be so little concern shown by members of the Opposition, especially by the honourable member for Vaucluse, for fundamental notions such as the separation of powers and the need for an independent judicial system—an independent system of prosecutions, a system of checks and balances that is implicit in our concept of the separation of powers on the one hand and our concept of appeals through the courts system on the other—to ensure we have a system of justice that is fair, can be relied upon for fairness, and stands us, as the honourable member for Liverpool has suggested, in good stead for many generations. It is important to point out—because this notion appears to have entirely escaped members of the Opposition—that the DPP is different from the ICAC, the Ombudsman, or the Police Integrity Commission [PIC].
The DPP is not an institution that can be directly compared with institutions that have parliamentary oversight committees. The crucial difference is that the Parliament has given specific powers to the ICAC, the Ombudsman and the PIC—powers of investigation and royal commission-like powers. It has given them powers to coerce a response from an individual in respect of whom those bodies choose to exercise their investigators powers, and it has given them the power to issue search warrants. But the DPP has none of those powers. The DPP is in the same position as a lawyer—an ordinary solicitor, in effect—because the DPP operates with the same powers with respect to litigation as does an ordinary solicitor. He calls witnesses, but he has no power to coerce them in the way that the oversight bodies to which I have already referred, which have royal commission-like powers, are able to coerce them. This difference is crucial when one is discussing circumstances in which the Parliament may oversight an organisation that it has established.
The full extent of the hypocrisy of the Opposition is demonstrated by the honourable member for Gosford, who, in a radio interview on 2UE on 15 February 2001, advanced the kinds of arguments that I have just put. He was on the radio warning of the possibility of political interference that would arise if a committee of the sort proposed by the bill were set up. The honourable member for Epping would do well to read the transcript of the radio interview of the honourable member for Gosford. Presumably it is pointless for the honourable member for Gosford to read it himself: he must be aware of his own hypocrisy.
No more proof is needed of the Opposition's intention that the committee provided for in the bill will politicise the prosecution process than the words of the honourable member for Vaucluse, who made it clear—and the longer he spoke, the clearer it became—that his exact interest was in the creation of a committee that could interfere in individual cases. What is the point of raising the issues he raised about individual cases unless he wants that committee to interfere and question the DPP about individual cases? To the degree that that committee could possibly influence those kinds of decisions by the DPP, this bill is entirely to be deprecated.
How could any citizen have any confidence in a prosecution process that can be manipulated for political purposes? The system that is proposed in this bill is simply pitted with risks. It gives rise to the risk that the justice system can be hijacked by an ambitious or desperate politician who is willing to employ blatant political point-scoring tactics to lift his or her public profile, heartlessly manipulate victims, and play on the fear of victims. The honourable member for Vaucluse has been doing exactly that, or has been attempting to do that, in recent days. Just think how much more malevolent his manipulations might have been if he could have extended them from this Chamber into some process of cross-examining the DPP and his representatives under parliamentary privilege in a committee of the type proposed by the bill. The kind of action and proposals provided for in the bill would simply present opportunities for corruption to flourish if decisions about how to proceed against an accused could be dictated by whom the accused know, and whom they do not know.
The DPP handles perhaps 18,000 cases every year. Where the DPP is of the view that valid grounds exist to lodge an appeal in a particular case, that is done. At the present time all such decisions are made on the facts, without fear or favour. That is why the DPP—notwithstanding the apparently gratuitous insult offered to the current holder of that office by those opposite—is responsible for what has to be acknowledged to be one of the most rigorous and respected prosecutorial processes in the common law world. It is manifestly superior to the criminal justice systems in most other countries.
I wish to emphasise that the Opposition, in its eagerness to compare the DPP with watchdog agencies like the Ombudsman and the ICAC, ignores fundamental distinctions that can be made between them. The DPP decides whether to pursue a criminal prosecution. The ICAC and the Ombudsman do not. In fact, they refer any evidence they have acquired to the DPP and ask the DPP to decide whether there should be a prosecution. The Opposition may as well move on from the DPP and, for instance, seek to oversight the decisions of the Legal Aid Commission—and ask the Legal Aid Commissioner why the commission granted aid in a particular case. Why does not the Opposition seek the oversight of the Police Prosecutions Branch? That would make just as much sense: 98 per cent of criminal prosecutions take place in the Local Court. Most of the relevant decisions to prosecute in the Local Court are made by police prosecutors.
I repeat: it is vital to our system of justice that the DPP be free from political pressure and interference and be seen to be free from political pressure and interference. We could hardly hold up our heads as a modern, democratic jurisdiction within the Westminster system if we were to pass the bill that the Opposition has put before us. I find it a complete disgrace.
Mr ANDREW TINK (Epping) [11.12 a.m.], in reply: It has to be stated that the contribution by the Attorney General—in what was for him a rare animated performance—was unfounded and on the face of it demonstrated a complete misunderstanding of what the bill is about. The Attorney General spoke about the Westminster system. Of course, it is in the originating Parliament of the Westminster system where one finds parliamentary oversight by—in that case—the Crown Prosecution Service, the equivalent of the Office of the Director of Public Prosecutions [DPP] in New South Wales. The Attorney General has either totally misconceived—if one gives him credit for making an honest contribution—what happens in Westminster itself, or he is lying and misleading the House about the true nature of the Westminster system. Either way, his was an extremely regrettable performance, particularly as he accused members of the Opposition of taking liberties in this debate.
The First Law Officer of the State has a responsibility to state properly and accurately the legal position and the associated parliamentary process that bears on legal matters. If the Attorney General is deficient in his knowledge—and one trusts he knows at least enough to know when he has a proper knowledge of a system and when he has not—he should seek a proper briefing to enable him to accurately put the technical side of the debate to the House. Otherwise, people could be misled. What the Attorney General just said about the Westminster system was wrong and misleading. And I suspect, given that he probably knows what he is talking about, it was a lie. The position under the Westminster system is properly stated by the Home Affairs Committee of the United Kingdom Parliament. The remit of the Home Affairs Committee is thus:
The Committee is charged with examining the expenditure, policy and administration of the Home Office and its associated public bodies; and the administration and expenditure of the Attorney General's Office, the Treasury Solicitor's Department, the Crown Prosecution Service and the Serious Fraud Office (but excluding individual cases and appointments and advice given within government by Law Officers).
That is the current remit of a joint parliamentary committee of the United Kingdom Parliament to look at the English equivalent of the Office of the Director of Public Prosecutions. If the Attorney General knows that, he just lied to the Parliament on a matter on which he should be providing proper advice to the Parliament. If he does not know that, he should not open his mouth in this Chamber until he is properly briefed.
This bill is along the lines of the legislation that relates to the Independent Commission Against Corruption [ICAC], the Ombudsman, and other related bodies, in respect of which joint parliamentary committees—as the honourable member for Liverpool knows—do good work. The honourable member for Liverpool did himself no credit this morning in his contribution by alleging that this type of parliamentary committee would be rorted. Effectively, he cast aspersions on the good work that bipartisan parliamentary committees have done and are doing in their very important function of oversighting the ICAC and the Ombudsman.
I perceive that the honourable member for Liverpool has done some reasonably good work as a member of parliamentary committees. It is therefore a shame that he has seen fit to make a contribution in this debate which effectively casts a shadow over the capacity of members on both sides of Parliament to do a good oversight job on a bipartisan basis. As chair of one of those committees, it would be within his knowledge that the work they do is good, reasonable and balanced. It does the honourable member no credit to suggest in this debate that this Parliament is not up to doing this type of job. That was his implication—when, from his own direct experience as a member and chair of committees, he knows better.
This bill proposes a new section 30B (2), which very specifically excludes the proposed committee from becoming involved in particular cases. It is there in black and white that the joint committee is not authorised "to recommend a decision be made, or to reconsider a decision, to institute or not to institute a prosecution or proceeding, or to direct that no further proceedings be taken, in a particular case". That is hands-off for particular cases. In fact, it is a much more specific hands-off provision than the one that governs the bipartisan committee of the Westminster Parliament that oversights the equivalent of our DPP. That provision is specific, and it is in the bill in black and white. It says: hands off individual cases. The Government has flip-flopped around this issue. I note that in his latest contribution, on 13 November 2003, the Premier said that as far as he was concerned:
… there is no way that the Government will agree to the setting up of a parliamentary committee to oversight the DPP because we believe in an independent Director of Public Prosecutions …
That refusal to countenance a committee is a backflip on the Premier's position in October 1997, as reported in an article in the Daily Telegraph:
The Premier also said momentum was developing to set up a parliamentary watchdog to monitor Mr Cowdery. "The case is growing for some sort of oversight," Mr Carr said.
Apparently, somewhere between October 1997 and November this year the Premier has done one of his legendary backflips, and decided that he no longer wants to embrace such a committee—although, by the way, he is actively canvassing putting the DPP on a seven-year fixed term. Having regard to the events that have occurred in the intervening period, I am at a loss to understand how the Premier can say objectively that there is now no case for oversight of the DPP, when he said in 1997 the case for such oversight was growing. I think, if anything, the case is now stronger than it ever has been for oversight of the Office of the Director of Public Prosecutions.
Mr Cowdery and I have conducted an interesting exchange in the pages of the Australian Financial Review over a number of weeks. I have no problem with Mr Cowdery writing to the Australian Financial Review and being part of the debate. Indeed, I would encourage the DPP to be involved in these debates and to use this committee as the appropriate forum. That is the experience in the United Kingdom. Matters that are ventilated with respect to the procedures and policies of the DPP office encourage greater public awareness. Debate on all sides would be improved if people were informed about the procedures in the DPP's office and if steps were taken to address the issues that should be ventilated in the public forum.
I well remember the DPP being severely castigated by the then Attorney General, Jeff Shaw, when he had the temerity to appear before a parliamentary committee that was considering legislation on sentencing. The DPP should be welcome in the Parliament to talk about matters that relate to his office and the administration of the law. The Government should not seek to prevent him from ventilating issues in the proper parliamentary forum. Perhaps the Government is fearful of what the DPP might say if given the opportunity. Indeed, Mr Cowdery has clearly expressed his concerns. In the Australian Financial Review of 8 August he stated:
The establishment of a parliamentary oversight committee would be unsupported in principle, unworkable and unnecessary.
Such a committee is supported in principle and is workable in Britain. I also believe it will prevent the DPP from being bullied into not airing his views. He further stated:
The director reports annually to parliament. Particular decisions may be the subject of inquiry and report between the attorney-general and the director.
No doubt that is true, but New South Wales does not have a procedure to consider policy and administrative issues that will result in a better outcome for the administration of justice. There is a level beyond mere consideration of particular decisions that is not adequately covered by the Attorney General reporting to the Parliament—often in a way that causes embarrassment to him; nor can it be covered in annual reports, which traditionally are bland and non-specific. Quite frankly, there is little interaction between members of Parliament and departmental agencies of the sort one finds with questions and answers before committees. Mr Cowdery further stated:
A parliamentary committee would be unworkable, requiring the attendance of any of the 600 ODPP officers, from any of the 11 offices state-wide, at any time, to be interrogated about any aspect of the work of the office in the course of its monitoring and reviewing the exercise of the director's functions.
That argument has no weight when one considers the experience of other parliamentary committees. The ICAC does not grind to a halt when the commissioner comes before a parliamentary committee; neither does that happen with the Ombudsman's office or the English DPP office. That argument has no basis in fact and does not present any practical problems. There is precedent for the way in which these committees work.
Mr Cowdery expressed concern that at times members of Parliament may trespass on matters outside the leave of the bill. From time to time certain questions do relate to sensitive areas. From time to time I read committee transcripts and where a concern is raised the chairman will confer with committee members and invariably the committee agrees not to canvass the issue. Members on both sides of this House have a demonstrated track record of being practical and sensible when such jurisdictional issues arise. They are handled in a mature manner by moving on to a different subject matter. It is also not a practical problem for the United Kingdom committee. When from time to time judges have warned DPP officers that their questions have been inadmissible, the DPP's office has not fallen apart and trials have not been aborted. At the end of the day reason prevails.
I shall now refer to three relatively current and notorious cases to demonstrate the need for an oversight committee similar to the model in the House of Commons. The matters to which I refer relate to the competence of particular prosecutors. I shall quote from the transcript of the minutes of evidence of the Select Committee on Home Affairs of the United Kingdom Parliament on Tuesday 26 February 2002. All members of the committee were present and the witnesses included Mr David Calvert-Smith, QC, Director of Public Prosecutions; Mr Richard Foster, Chief Executive; and Mr Steve Przybylski, Head of Resources and Performance Division. The transcript states:
63. How do you intend to monitor or give guidance to barristers who are instructed by the CPS [DPP]?
(Mr Calvert-Smith) I have already made it clear at a number of public conferences which followed the launch earlier this month that in cases where there is a vulnerable witness the CPS will only instruct counsel who have been on the training courses (which I believe to be excellent) which the Bar Council is running for its own people. It is becoming more and more common for the CPS to stipulate that its counsel have been trained to a particular standard before we agree to instruct them in cases so that the sometimes wholly inappropriate language and attitudes that I have witnessed for myself, I am ashamed to say, in court in the past, will become a thing of the past.
That is a refreshing exchange between members of Parliament and the Director of Public Prosecutions about the competence of barristers briefed by the Office of the Director of Public Prosecutions. I regret to say that in a number of recent cases in this jurisdiction the competence of officers of the DPP has been called into question. I quote from a letter to the honourable member for Mount Druitt from the Attorney General, dated 26 June:
It appears that the Judge made an error of law in taking [X's] self-induced intoxication into account when determining the matter. Of equal gravity was the prosecution's error in not drawing the provisions of the Crimes Act 1900 regarding self-induced intoxication to the attention of her Honour.
Although it appears that the Judge made an error in law, unfortunately the decision to acquit [X] cannot be overturned on appeal.
Pursuant to sessional orders business interrupted.
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