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Independence and Accountability of the Director of Public Prosecutions: A Comparative Survey

Independence and Accountability of the Director of Public Prosecutions: A Comparative Survey

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 09/2001 by Rowena Johns

This paper outlines the powers of the Director of Public Prosecutions (DPP) and, where applicable, the internal or external bodies advising or supervising the Director in each jurisdiction in Australia and in the United Kingdom. At present, no DPP in Australia is oversighted by a specific Parliamentary Committee on the DPP or has a management board consisting of a majority of members from outside the DPP. The paper examines these concepts, which were raised in New South Wales in early 2001 when the Attorney-General's Department drafted plans for a Public Prosecutions Management Board and the Shadow Attorney-General introduced legislation for a Parliamentary Joint Committee on the DPP.
  • The decision to prosecute reflects the delicate balance between independence and accountability and is governed in New South Wales by the DPP's Prosecution Policy and Guidelines (pages 2-5).
  • The Office of the DPP in New South Wales has the largest caseload, staff and budget in Australia. The Director's appointment and tenure parallel that of a Supreme Court Judge. The main purpose of the Director is to prosecute serious criminal offences against State law. The Director of Public Prosecutions Act 1986 (NSW) enables the Attorney-General to exercise the same functions as the Director in commencing or discontinuing prosecutions, and to issue directions to the Director on general aspects of the Director's activities, but in practice the Attorney-General has never 'overruled' the Director. Committees within the DPP which contribute to the efficiency of operations include the Management Committee, Executive Board and Internal Audit Committee (pages 5-14).
  • In February 2001, the media reported that the Attorney-General's Department was devising a proposal for a Public Prosecutions Management Board (PPMB), to advise the Director on administrative and financial matters. The Attorney-General emphasised that the PPMB would not have the ability to intervene in the DPP's legal determinations and that the inclusion of the Police Commissioner on the PPMB was unlikely. The other projected members of the PPMB were the Director, the Solicitor for Public Prosecutions, the Director-General of the Attorney-General's Department, and another person recommended by the Attorney-General. The concept of a management board was apparently prompted by the review of the Office of the DPP by the Council on the Cost of Government in 1998 (pages 14-20).
  • In April 2001, the Shadow Attorney-General introduced the Director of Public Prosecutions Amendment (Parliamentary Joint Committee) Bill 2001 which revives previous Coalition attempts to establish a Parliamentary Joint Committee on the DPP. The main powers of the Committee are to recommend the amount of the annual budget for the DPP, review the exercise of the Director's functions, and approve the appointment of a Director. The Committee would be able to require the Director to furnish reasons for declining to prosecute or appeal a particular case, exceeding earlier versions of the proposal (pages 20-27).
  • The Parliamentary Committees that oversee the Ombudsman and the Independent Commission Against Corruption have a narrower scope than that outlined by the DPP Amendment (Parliamentary Joint Committee) Bill 2001. The legislation governing the Committees on the Ombudsman and ICAC does not contain an explicit power of financial supervision and emphasises that the Committees are not authorised to reconsider specific cases (pages 27-29).
  • The broad terms of reference of several Standing Committees of the New South Wales Parliament would allow them to report on aspects of the DPP's operations. For example, General Purpose Standing Committee No.3 and the Law and Justice Committee, both of the Legislative Council, can examine matters within the portfolio of the Attorney-General. Similar committees exist in other States but this paper does not attempt to cover them (pages 30-32).
  • In 1982, Victoria was the first jurisdiction in Australia to enact legislation for the establishment of a DPP. The Director's independence was reduced in 1994 when the original Act was repealed. Under the Public Prosecutions Act 1994 (Vic), the Director is required to consult with a Director's Committee when making a 'special decision', such as not to continue a prosecution. Another prescribed internal body is the Committee for Public Prosecutions, which is the only DPP board in Australia to include a participant who may be from outside the criminal justice system. Its activities range from recommending the removal of a Crown Prosecutor, to advising on the efficiency of the prosecutorial system (pages 32-43).
  • Queensland's DPP was instituted by the Director of Public Prosecutions Act 1984 (Qld). The Act allows the Director to conduct both indictable and summary prosecutions but, as in most Australian jurisdictions, the police handle the latter. The Director's supervision of legal decisions is clearly distinct from the Executive Director's control of finances and administration. There is no formal managerial committee (pages 43-44).
  • In South Australia, the Director of Public Prosecutions Act 1991 (SA) grants the Director full prosecutorial powers, although in practice the Director focuses on indictable offences. There are two internal advisory committees: the Executive Committee deals with policy and legal issues, and the Management Committee is responsible for operational matters (pages 45-47).
  • Western Australia's DPP was established by the Director of Public Prosecutions Act 1991 (WA), which does not make provision for the carriage of summary prosecutions. Two internal bodies contribute to the efficiency of management and office practices, the Corporate Executive and the Operations Committee (pages 47-49).
  • The Tasmanian DPP represents the State in civil litigation in addition to criminal proceedings for indictable offences. It does not have any formal internal committees (pages 50-51).
  • The DPPs in the Australian Capital Territory and the Northern Territory have wider jurisdiction than the States as they preside over summary prosecutions. The ACT DPP has a Management Committee with an operational emphasis, while the NT DPP's Executive Committee is unique in including among its members two senior police officers. However, this reflects a cooperative arrangement for conducting summary prosecutions, rather than the involvement of 'external' participants (pages 51-55).
  • Since 1984, the Commonwealth DPP has prosecuted indictable and summary offences against Commonwealth law. A Senior Management Committee is located in Sydney, Melbourne and Brisbane to assist the Deputy Director supervising each of those offices. Formal conferences among all the Deputy Directors from Canberra and the regional branches are held twice a year. The Commonwealth and the ACT are the only jurisdictions in Australia in which the legislation expressly authorises the Director to issue guidelines to the police and others on particular cases. The Commonwealth legislation, unlike any other in Australia, allows the Attorney-General to supply case-specific guidelines to the Director (pages 55-57).
  • There is no Commonwealth Parliamentary Committee exclusively concerned with the Commonwealth DPP, but the Legal and Constitutional Legislation Committee in the Senate, and the Legal and Constitutional Affairs Committee in the House of Representatives have the prerogative to examine aspects of the DPP's activities (pages 57-58).
  • In the United Kingdom, the Prosecution of Offences Act 1985 (UK) established the Director of Public Prosecutions as head of the Crown Prosecution Service (CPS), although a public prosecutor had existed previously in a limited capacity. The CPS covers the whole of England and Wales and prosecutes both indictable and summary offences. Advisory mechanisms such as the Director's Board and the CPS Board handle legal and operational matters and resemble those found in most DPP offices in Australia. Business management is provided nationally by the Chief Executive and at a regional level by Area Business Managers. The CPS Inspectorate, a closely related but separate body with an independent statutory basis, carries out inspections of CPS offices. Furthermore, the Director is answerable to the Home Affairs Committee, a Select Committee of the House of Commons (pages 59-66).

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