Page 2324 - Week 08 - Thursday, 7 June 1990
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undertakes prosecution functions in this Territory, will no longer be responsible for prosecuting offenders within the Territory. The Government is thus faced with either creating a Territory DPP or reverting to the more traditional model where prosecutions are carried out by and in the name of the Attorney-General, as first law officer, by the Crown Law Office.
The Government has chosen, and the Opposition supports the decision, to establish an independent office of the DPP under legislation for this Territory rather than adopt the old common law approach. The independent office of DPP was first created in England in 1879 to remove the day-to-day decision making on prosecutions from the Attorney. This was an area of law reform which was slow to be adopted in Australia, the first statutory DPP being that of Victoria in 1982. The Commonwealth followed that lead in 1983 and, as the Attorney noted in his presentation speech, now only South Australia and Western Australia are yet to establish independent prosecuting authorities.
The Attorney remains responsible politically to this parliament for the system of criminal justice. He can give directions to the director under clause 20 of the Bill, but those directions must be made public by being published in the Gazette and tabled here. The directions are not disallowable, but nor should they be. If they were, that would in effect make the DPP politically accountable to this house. The correct channel is for the Attorney to be responsible to this house for the administration of justice and the director to retain his independence, subject of course to direction. I understand that, in the immediate future at least, the Commonwealth Director of Public Prosecutions will be appointed to fulfil the function also of Territory Director of Public Prosecutions, and the Opposition will support that course.
One aspect of the Bill may require some additional thought, but it may be more an administrative than a legislative procedure. Under clause 9 of this Bill undertakings not to prosecute may be given by the director. This is appropriate and necessary because there are many cases where a co-offender will be persuaded to give evidence for the prosecution on the basis of an indemnity from prosecution. This is a frequent and necessary tactic in major criminal matters, particularly conspiracy. Such an indemnity covers offences revealed by the co-offender's evidence, but does not extend to perjury.
The potential problem arises because, whereas in the past an indemnity given by the Commonwealth DPP would probably in point of law override any potential prosecution by a State authority, an indemnity given by the Territory director under Territory law would have no such overriding effect. There will no doubt be many cases where Territory prosecutions, particularly in major conspiracy or drug trials, will involve activities that are breaches of the law both in the ACT and in surrounding areas of New South
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