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Wednesday, 30 November 1983
Page: 3043


Mr SPENDER(12.05) — The purpose of the Director of Public Prosecutions Bill is to establish the office of the Director of Public Prosecutions and to give to that office and to the Director certain functions and certain powers in the conduct of prosecutions on behalf of the Commonwealth. The functions of the office are set out in clause 6 of the Bill. Broadly, they are to institute prosecutions for offences against the laws of the Commonwealth, be they prosecutions on indictment or prosecutions for summary offences, and to recover certain penalties, the details of which are also set out in clause 6. It is provided that the Director of Public Prosecutions whose office is established under the Bill shall, where requested to do so, consult with the Attorney- General and that in the performance of his functions and in the exercise of his powers he is to be subject to such directions or guidelines as the Attorney- General, after consulting with the Director, gives to him. Effectively, therefore, the Director remains subject to the Attorney-General. That is no doubt as it should be, although I think a matter we should consider for the future is the extent to which the Director may act quite independently of the Attorney-General. I express no view on the question; I simply put it as a question that needs to be considered in the future.

The Bill provides for the publication of guidelines or directions given by the Attorney-General to the Director. That is a very sensible provision, as indeed generally the Bill is sensible. I think it is a step forward in the administration of justice. I beieve that the office of Director of Public Prosecutions is needed for the Federal system and I am glad to see that this Government has taken the action that it has. The Bill does, however, raise one very significant question. This goes back to the whole basis on which prosecutions are brought. It could be said that some of us believe that the State is infallible or that, if it is not infallible, it is wiser than individuals and that it is best left to make decisions on prosecutions or to take over prosecutions where instituted by individuals. Those who belong to that school accept or believe that the machinery of justice is put into motion only after judicious consideration of the issues by the Attorney-General or by the Director of Public Prosecutions, that the decisions made are uninfluenced by personal or political considerations, that they are fair and that those who make them sit above the ordinary human conflicts. There are those who take that point of view and there are others who believe that all human institutions are fallible and need to be subject to some checks.

This brings me to the basis on which prosecutions are brought. As we all know, originally prosecutions brought in England, from where we have derived most of our laws, could be brought by individuals. They could be brought by individuals not only for damage done to the particular individual but also for any other crime. The rationale was very well put by an eminent writer, Mr I. J. Stephen, in his publication entitled A History of the Criminal Law of England when he said this:

No stronger or effectual guarantee can be provided for the due observance of the law of the land by all persons under all circumstances than is given by the power conceded to everyone by the English system of testing the legality of any conduct of which he disapproves either on private or public grounds, by a criminal prosecution.

The reason for that is self-evident. If we believe that the State is corrupt, if we believe that an office which should impartially administer laws is not doing so, and if we believe that there is someone who needs to be brought to justice but against whom no action has been taken, we should be open to take that action with all the consequences as to costs that may follow. That approach has been criticised. It has been said that it can lead to vexatious litigation and to one criminal prosecuting another criminal in such a manner as to secure the other criminal's acquittal so that the other criminal would then have a good defence to any competent prosecution brought by the Crown. Undoubtedly it is a right that can be gravely misused. It is pointed out in the 1977 report of the Law Reform Commission that the rights in relation to the bringing of criminal prosecutions in Australia are fairly wide. I quote:

In Australia the right of private prosecution for a summary offence is unfettered, save in some cases where there is special statutory provision.

As in the case where a prosecution can be brought only with the consent of the Attorney-General. To continue:

In the case of an indictable offence it would appear that a private prosecutor may proceed with the matter until the conclusion of committal proceedings. If the accused is committed for trial then responsibility for termination or further conduct of the matter rests with the Crown. Rights of private prosecution in Australia are unusually generous.

Of course, our system is somewhat different from the English system because it grew out of different circumstances. In the early days of the colony persons were appointed to the task of prosecuting for offences. For those who are interested in the history of the early offices that history is to be found in an article in volume 32 of the Australian Law Journal at page 148 by a man called R . R. Kidston, whom I recall well as Senior Crown Prosecutor and whom I saw appear in a number of murder cases on behalf of the Crown.

Of course, one of the reasons why our development was somewhat different from the development in England was that Australia had effectively been established as a penal colony. There were some difficulties in conceding the full rights of prosecution that may have existed in England. I do not want to get involved in the interesting if somewhat arcane history of the distinctions between England and Australia. The position certainly does obtain, as I understand it, and as was pointed out, that under the general law the Crown could not intervene until the question arose as to whether or not a person who was charged with an offence triable before a jury should go to trial. The Crown could not interfere with summary private prosecutions. In the case of prosecutions which first had committal proceedings, if the magistrate held that there was a prima facie case, they would go to trial, but it was a question for the Crown to decide whether a bill of indictment or an information should be filed.

The power of the Crown in that respect was vividly illustrated to me years ago when I came to the Bar. I was told a story of an early Chief Justice of New South Wales who was out shooting with the then Attorney-General. They were trying some criminal cases in the country. I believe-so the story goes-that they were shooting on a Sunday and they were also trespassing. The local policeman arrested them and was quite unmoved by the fact that they held high offices in New South Wales. Since it would have been somewhat embarrassing for them both to have been on criminal charges that might have led to their being brought before a jury, after all persuasion had failed the Chief Justice turned to the Attorney -General and said: 'What do I do now'? The Attorney-General, so the story goes, turned to the Chief Justice and said: 'Well, if you shoot him I promise not to file a bill'. That illustrates the distinction between an indictable offence and summary proceedings. I trust the story is apocryphal but in the rough and tumble days of early New South Wales all things are possible.

However, the present Bill does make specific provision in clause 9 (5) for the prosecution of proceedings for summary conviction to be taken over. That means, of course, that the law has been altered. That means that the right of a private citizen summarily to prosecute another person and to proceed to conviction, if there is a good case, is to be abrogated. For my part, I acknowledge that that is a right which could be greatly misused. But it is also a right which is of fundamental importance. I wonder whether we could not arrive at some middle ground which would preserve that right in all essential respects, save in cases that have been prosecuted in a vexatious, malicious or frivolous manner. I believe this matter needs to be looked at. I know some wounds may be felt amongst some members of this House because of a case that took place some years ago, but I do not think that case should necessarily influence the decision we should reach upon such an important question.

That having been said, we therefore must acknowledge that what we are looking at is a change in the law. It is a change about which I have reservations because, whilst not in any way reflecting on whoever may hold this office or his successors in title, we all know that public servants, like all other people, are subject to the same influences, fallibilities and pressures to which other human beings are subject. Therefore, I would like that matter to be reconsidered to see whether a middle ground could be reached.

I should like to touch very briefly upon some specific points which seem to me to have considerable merit. In clause 13 of this Bill specific power is vested in the Director where he is considering instituting, carrying on or otherwise discharging his functions, and he is of the opinion that a matter connected with or arising out of the offence in question requires further investigation, to obtain the assistance of the Australian Federal Police. In clause 28 there is to be found a specific power to engage outside consultants to perform services for the Director of Public Prosecutions. I think that is an excellent idea for the very good reason that if this office is to be as effective as we all hope it will be, it will need to have the best possible staff. In the area of practising law it is frequently the outside practitioners who will provide the best possible staff. After all, we are dealing not with academic law. We are not talking about writing laws. We are talking about the prosecution of laws. The practitioners in the courts who earn a living from prosecuting, defending or appearing in civil cases on a day to day basis are the best qualified persons to carry out those kinds of functions-to prepare cases and to advise. In saying that I do not in any way derogate from the very considerable expertise which is to be found within the Commonwealth Crown. I think the Commonwealth Crown Solicitor's Office would be the first to acknowledge the accuracy of what I have said.

The last specific provision to which I will refer is the provision to be found in clause 33 providing for an annual report. I think that is a very sound proposal because it should enable us to monitor the efficiency of the operation of the Office of the Director of Public Prosecutions.

We still have a vast distance to move to improve the adequacy of our system of law enforcement. I am glad to see that it has been acknowledged that the actions of the previous Government-I refer in particular to the appointment of a Special Prosecutor-constitute one of the improvements we need in this country. No dramatic changes can be made which will bring us into any kind of a brave new world. In the nature of things, improvements in the law are usually of an incremental nature. One moves ahead bit by bit. Certainly, I think that is true in the case of the prosecution of criminal cases.

As I have said, the Opposition supports this Bill. Whilst I had reservations about the previous legislation on companies and securities, save for the very important question of the position of the private individual who seeks to prosecute a case which is triable summarily and who may have that taken away from him for reasons which cannot be sustained, I think the Bill is a commendable attempt to improve the operation of the Federal and criminal laws.