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Wednesday, 30 November 1983
Page: 3047


Mr GROOM(12.37) —Because of the obvious constraints of time, I will reduce my remarks to a few points. The honourable member for North Sydney (Mr Spender) has outlined very well the history of the Office of Director of Public Prosecutions. If one looks at that history, one sees that the reasons, traditionally, for establishing the Office in the United Kingdom and elsewhere have really been twofold: Firstly, as a matter of efficiency, in endeavouring to provide an efficient system of prosecutions; and, secondly, to try to remove the system of prosecuting from the political processes.

The matter that concerns me about the Director of Public Prosecutions Bill is that I do not believe it adequately removes the system of prosecutions from the political processes of this country. The Director of Public Prosecutions will be very much subject to the directions of the Attorney-General. I take the point that it is a matter of degree and the Attorney-General, as the first law officer of the Crown, must bear ultimate responsibility for prosecutions. So a delicate decision must be made to determine how far one should go. But I do not believe that the Director under this legislation will be as independent as he might be. I do not believe he will be as independent as is the Director in Victoria-that has been made very clear in the experiences under the Victorian legislation-nor do I believe he will be as independent as is the Director in the United Kingdom. I recognise that regulations have been made in the United Kingdom which make the Director subject to the directions of the Attorney-General. But in practice the Director in the United Kingdom says that the decisions he makes are his own. Conventions have developed since the office was first established in 1879 by the Disraeli Government.

Clause 7 of the Bill provides for consultation. The Director is required to consult with the Attorney-General, if he is requested to do so by the Attorney. Under clause 8 the Director is subject to the directions of the Attorney-General in the performance of his functions and in the exercise of his powers. But clause 20, which is titled 'Leave of absence', states:

The Attorney-General may grant to the Director leave of absence . . . on such terms and conditions . . . as the Attorney-General determines.

Again, this tends to limit the independence of the Director of Public Prosecutions. Clause 22 provides another limitation on his independence. It states:

The Director shall not-

(a) engage in practice as a legal practitioner outside the duties of his office ; or

(b) without the consent of the Attorney-General, engage in paid employment outside the duties of his office.

This clause places the Director very much at the direction of the Attorney- General. Clause 23 (1) gives provisions relating to the termination of his appointment. It states:

The Governor-General--

in effect, that is the Government-

may terminate the appointment of the Director for misbehaviour or physical or mental incapacity.

I recognise the fact that 'misbehaviour' is a term that is used in legislation creating many appointments of this kind. But I question whether it is appropriate to use that phrase in this particular Bill. What is misbehaviour? It is not defined in the Bill. Of course, there are decisions of the courts which give us some idea of what that phrase means. But it is not a precise term. It may be that it provides an opportunity for an Attorney-General to interfere in the conduct of the affairs of the Director of Public Prosecutions. If the Attorney-General is not happy with the way the Director of Public Prosecutions is behaving, he might take action to remove him at some future time for what he sees subjectively as misbehaviour. I believe that that sort of terminology is not appropriate in a Bill of this kind.

That is my main reservation about the Bill. I had intended to talk about some related matters, particularly the question of legal aid as it relates to the administration of prosecutions in this country. I believe that legal aid is having an adverse effect. Although it appears to create a more just system for some individuals, it also creates a more unjust system for other individuals. For example, a lawyer might take every possible point of law in a prosecution because he knows his bill will be paid because his client is legally aided. At the same time, some poor fellow may be in gaol on remand awaiting trial. Maybe he has a job, a house and some savings so he cannot get legal aid. But he may sit in gaol for a month or so waiting for his trial to proceed while a smart lawyer takes every possible point of law in the book, simply because his client is legally aided. I think the impact of that kind of system needs to be reviewed and carefully considered. Time is of the essence so I will not proceed any further.