Page 1258 - Week 05 - Thursday, 25 June 1992
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DPP's ability to appear in matters concerning Commonwealth offences. This provision will complement legislation being considered by the Commonwealth. It is envisaged that the Commonwealth will seek the assistance of State and Territory DPPs where it is unnecessary or inappropriate for a Commonwealth DPP lawyer to attend.
The DPP has also raised doubts about the capacity to appear before the Parole Board. It has been the practice for the DPP to assist the Parole Board in adequately exercising its statutory responsibility in relation to prisoners, since no other legal officer or private practitioner appears at such hearings. In view of this, it is proposed to clarify as one of the DPP's functions attendance at meetings of the Parole Board.
A function allowing the DPP to do anything incidental or conducive to the performance of another function is proposed, based on the similar provision contained in the Commonwealth legislation. It appears that a similar function was not included in the ACT Act because of section 18, the additional powers provision. However, section 18 does not expand the director's range of functions; it only gives additional powers necessary or convenient to carry out those stated functions.
Last year a regulation had to be made to give the director the function of representing the Territory at administrative decisions judicial review hearings arising out of committal proceedings - a form of appeal, in effect, against a committal. The view was expressed by the DPP's office that the regulation would not have been necessary if there had been an incidental function like the one proposed. It is likely that the DPP's operations will continue to be plagued by gaps in his or her functions unless an incidental function is included in the Act.
The Bill serves the additional purpose of removing obsolete references to the Commonwealth director. These were included in anticipation of the Commonwealth director being appointed to prosecute Territory offences prior to the appointment of the ACT Director of Public Prosecutions. The removal of these references accords with the principle of self-government.
The Bill also revises the prohibition on the DPP engaging in outside employment. The relevant amendments will remove the absolute prohibition on the DPP engaging in legal practice otherwise than in accordance with his or her functions. The DPP will thus be able to engage in private legal practice with the Attorney-General's consent. Also, the provision for the Attorney-General to dismiss the DPP for engaging in outside employment without consent will be changed from a mandatory requirement to a discretion to dismiss.
These amendments have been included because of concern that the prohibition on outside employment is too strict. For example, a technical breach of the prohibition could occur where the DPP, purporting to carry out the functions of the DPP, was ruled by the court to be acting outside these functions and thus acting in a capacity other than the DPP in the performance of his legal functions. A situation like this occurred last year in the case of Storer v. Murphy. A technical breach of the prohibition might also occur if the DPP gave, say, gratuitous legal advice to a friend or relative. The director is also from time to time asked to carry out tasks which do not fall within the functions - for example, the review of the Investigations Unit. There is concern that work of that nature might amount to a technical breach of the prohibition on outside employment and require the DPP's dismissal.
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