Page 4107 - Week 10 - Tuesday, 20 September 2011
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he was referring to the regulatory body—
will fail to prosecute, for reasons that are not in the public interest. It may lack the resources or the energies, or in some cases it has become captured by those that it regulates. There is concern in those cases that justice will not be done. We think it is vital that an organisation has some oversight over the right to prosecute and can as a last resort, if the main prosecutor is not doing its job, step in.
Mr Fetter went on to say:
It was the practice in at least two jurisdictions that unions had the right to prosecute, and in our assessment that was both appropriate and effective to make sure that, although it was rarely used, the regulator knew that it was being watched by a body that had a strong interest in seeing that prosecutions were laid where appropriate. We think that that lifted the efficacy of the regulator just by the knowledge that it was being watched.
I think these are valid arguments. The retention of the statutory right to prosecute has wider support than just unions. In New South Wales the parliament amended the harmonised legislation to retain the right to union prosecutions. This was achieved by the Labor Party, the Greens and the Shooters Party. In the recent Senate inquiry on the harmonised legislation, Master Builders Australia said that it would be very concerned if the bill removed the union right to prosecute because it wanted a regulatory framework that is fair and reasonable for the industry.
I want to address the argument that there will be nothing lost under this bill because the ACT will retain the common law right for private prosecutions. Yes, the common law right is better than nothing, but the Greens believe that there are problems with relying on the common law right to prosecute. It is weak and unwieldy compared to what we currently have in our legislation. Unions will be left with a more cumbersome, more expensive, less clear option for prosecutions. They will not be able to use the machinery of the statute, which is much easier. The CFMEU tells us, for example, that the common law alternative is likely to be beyond the means of many union affiliates or union members.
The common law right is also weaker. Under the common law right, citizens can commence private prosecutions for summary offences and take them to trial. But for indictable offences they can only do so during the committal stage. If the matter is referred to trial, the DPP must elect to take over; otherwise the matter is discontinued. The right was defined in the statute for a reason. It makes it practical, accessible and goes further than common law. This will be taken away by the bill that the government has proposed.
Of course, taking away the statutory right to prosecute also makes a statement of principle on behalf of the government. It is a statement that union involvement in prosecutions should not be recognised in the government’s statute. That is a statement the Greens do not support. I would also just note that I understand the CFMEU is in the process of taking a third party prosecution against Boral, which I think proves quite strongly that it is a right that we should be retaining.
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