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Wednesday, 2 June 2010
Page: 5074


Mr KERR (10:59 AM) —On her retirement from the position of Anti-Discrimination Commissioner in Tasmania, Dr Jocelynne Scutt was asked to reflect on her experiences. One of her responses was:

Well, I would say that throughout the term of my life as Anti-Discrimination Commissioner the Anti-Discrimination Commission has received the most appalling, brutal, rude and, in my opinion, unprofessional correspondence, from a number of quarters but from one in particular.

At the conclusion of this speech I suspect there will be little doubt as to whom Dr Scutt was referring. Last week I gave a short speech in the House of Representatives based on Justice Heydon’s recent observations that all litigation is capable of causing immense harm unless its use is properly controlled and unless those who institute it are subject to legitimate pressures generating a measure of discrimination. I observed that is particularly true of the power to prosecute.

The conduct of the prosecution power of the state is a legitimate matter of public debate not simply by parliamentarians but by every citizen, but many are fearful and intimidated. That is not surprising when a short set of serious minded observations about notoriously failed prosecutions and suggestions for reform in a speech to this parliament were described in articles by the Tasmanian DPP published in major newspapers as cowardly, lazy, self-serving and elitist. Senator Eric Abetz, a legal professional colleague but hardly a supporter of mine in the normal course, had his support for my remarks dismissed as ‘political grandstanding’ and a matter of concern. I was also abused by Mr Ellis personally in the street in vituperative terms. So a private citizen might feel somewhat abashed at the prospect of risking entry into a debate regarding what is fundamentally a matter of importance that is entitled to be entered into by every citizen.

Mr Ellis in published articles has said this of my contributions, describing me as cowardly: I chose to misuse my last days of access to parliamentary privilege for an attack on him. This surprised me, not because such an approach of shooting the messenger is uncommon in political discourse in Australia. I remember well watching a program on TV just the other day that went back over the matter of the Wood royal commission, in which then police commissioner Tony Lauer said to the cameras: ‘It is a case of fervent political imagination. We have dealt with organised corruption. There are two ways I look forward to the royal commission. The first is seeing Mr Hatton away from parliamentary privilege in the witness box at the royal commission and the second is my opportunity to clear my name.’

So, when a serious critique is made that reflects on judgments people may have made, their management of an organisation or decisions they have made in public office, it is not uncommon for people to resort to shooting the messenger. But the sheer hypocrisy in this particular instance of referring to a member raising a matter in parliament under parliamentary privilege comes ill from the mouth of a director of public prosecutions who, under section 17 of the Director of Public Prosecutions Act in Tasmania, is provided with immunity from personal liability. That provision says:

No personal liability attaches to the Director or a person assisting the Director under this Act for an act done or omitted to be done in good faith in the performance or exercise, or the purported performance or exercise, of any function, power or duty under this Act.

The responses that have been made in published articles are not those of Mr Ellis, private citizen; they are published as the responses of the Director of Public Prosecutions.

If others are too intimidated to enter into debate, that is the reason why parliamentary privilege exists. It exists so that there is one forum where, no matter how difficult a subject is, a parliamentarian can address matters of serious importance for their constituents and their state. It is one place where no-one can be bullied, and I refuse to be bullied.

In addressing this matter, Mr Ellis also made other critiques. He observed of me that not once in his time as DPP had he been approached by me, whether in respect of a constituent or otherwise, concerning any prosecution. Setting aside the irony of Mr Ellis describing an intervention as a political stunt when I make a responsible critique of the circumstances that I described in my speech whilst inviting me to be involved in the management of his office by critiquing it on a daily basis, it is also false. There was one instance where I wrote to the DPP, not in relation to whether he should prosecute or otherwise, but in respect of a constituent who had raised with me matters which, if I recall correctly, though I do not have my files to immediately to hand, were about the delay in a particular matter. I received a response from Mr Ellis that could only be described in the language that was used by Ms Jocelynne Scutt—‘most appalling, brutal, rude and, in my opinion, unprofessional’.

I turn to what Mr Ellis says about the statutory framework under which he operates. He refers to the late Mervyn Everett as a giant figure in the law in the state of Tasmania and he proceeds to say that one of his remarkable legacies was the removal of the Attorney-General’s ability to interfere in criminal prosecutions by creating the then Crown Advocate. If I might just interpose, I found this particularly galling, because the late Mr Justice Everett was my particular mentor. He recommended me for appointment to the Solicitor-General and later I became a crown counsel in the state of Tasmania conducting and carrying on prosecutions and representing the state not only in the Supreme Court but also in the High Court of Australia. So I find it particularly galling, when I had a personal friendship with the late Mervyn Everett and his wife, that he is used in this manner.

Although it was an important step forward, the legislation that was introduced was described by the former DPP, Damian Bugg, in an address to the Judicial Conference of Australia in these terms:

The Crown Advocate Act provided little direction as to the relationship between the Attorney-General, the Solicitor-General and the Crown Advocate and the Act did not provide the Crown Advocate with a power to publish or issue guidelines and in its original form imposed a statutory duty upon the Crown Advocate to advise and represent Police.

It is true that the act has changed slightly with the change of name to the Director of Public Prosecutions Act, but the fundamental critique remains. It still does little to define the relationship between the Attorney-General, the Solicitor-General and the Director of Public Prosecutions. The act still does not address those crucial issues that were raised by Damian Bugg. It has removed the duty of the Director of Public Prosecutions to advise and represent police, but the complexities of the legal framework can be seen, for example, by the Criminal Code defining crown law officers in Tasmania as:

… the Attorney-General or Solicitor-General, or any person appointed by the Governor to institute or prosecute criminal proceedings in the Supreme Court.

Section 3 of the DPP act confers on the Director of Public Prosecutions the status of a crown law officer. But it remains uncertain as to those relationships and so I proposed that we should modify the law to reflect better the standards that have now evolved at the national level and reflect the procedures and rules that govern the relationship between the Commonwealth DPP, the Commonwealth Attorney-General and other officers. For that, I received the chastening that my observations were disingenuous.

Mr Ellis in his reported remarks said:

… the attacks—

—they were not attacks; they were descriptions—

were politically motivated to coincide with an investigation by the Legal Profession Board into complaints lodged by former police commissioner Richard McCreadie.

That is a very bland account of what was put to me by the journalist from the Mercury. He said that Mr Ellis had alleged that I had conspired by working together with Mr McCreadie and Mr Herr regarding matters that they had complained to the Legal Professional Board about. I responded—and this is the truth—that that suggestion is totally untrue and a conspiracy theory of the first order. It is one thing for a person in private practice to jump to conclusions so rapidly and to put them on the public record; it is another thing entirely for an officer holding the status of the DPP to do so.

Mr Ellis has said that his task is to prosecute breaches of the law wherever it applies when it seems to him to be on available evidence such a breach. He has also accused me of seeking to impose double standards. He said of me, ‘The attempt by Mr Kerr to politicise the decision to prosecute’—the number of people that I referred to—‘seems motivated by a desire to protect high-profile office holders from equality before the law.’ This is simply untrue. Search in vain what I said and you will not find it. He sets up a straw man to attack.

It is true that Tasmania has suffered through failed prosecutions after failed prosecutions, each attracting front page headlines, and it is true, in my view, that that has diminished the social cohesion of my state. But that flows naturally from a failure to take into account proper matters of judgment that the DPP’s own prosecution guidelines refer to. On the front page of the prosecution guidelines of the state of Tasmania is this statement:

A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, tend to undermine the confidence of the community in the criminal justice system.

That is why Mr Ellis’s representation of his duty, which he has set out on a number of occasions, represents a fundamental refusal, a wilful refusal, to address material relevant to his judgment, because it is not true that each matter on which there is a possibility of prosecution should proceed. The DPP guidelines first published in the Commonwealth begin with a quotation from Sir Hartley Shawcross QC. The guidelines state:

In a statement to the House of Commons Sir Hartley Shawcross QC, the then Attorney-General of the United Kingdom stated as follows: “It has never been the rule in this country and I hope it never will be that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first regulations under which the Director of Public Prosecutions worked provided that he should … prosecute ‘whenever it appears that the offence or circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest”. That is still the dominant consideration.

Mr Ellis is resolutely and wilfully blind to the third component of his own prosecutorial guidelines, because they say:

Having satisfied himself or herself that the evidence is sufficient to justify the institution or continuation of a prosecution, the prosecutor must then consider whether, in the light of the provable facts and the whole of the surrounding circumstances, the public interest requires a prosecution to be pursued. It is not the rule that all offences brought to the attention of the authorities must be prosecuted.

That sets out a view largely following the prosecution guidelines of the Commonwealth but omitting crucial ones. A number of considerations are:

  • the seriousness or, conversely, the triviality of the alleged offence or that it is of a “technical” nature only;

This is a point I raised in relation to a number of the matters on which I addressed the House.

They also have to take into account the ‘obsolescence or obscurity’ of the law and, in the Commonwealth guidelines, the ‘effect on community harmony and public confidence in the administration of justice’. The latter is a matter omitted in the Tasmanian guidelines, whether inadvertently or advertently. There is another provision that is in the Commonwealth guidelines which is omitted and which was supposed to be national in scope. It says:

A prosecution should only proceed in accordance with this Policy. A matter which does not meet these requirements, for example, a matter which tests the law but which does not have a reasonable prospect of conviction, should not be proceeded with.

Mr Bugg, in the speech that I referred to, said that it was the greatest step forward for prosecutorial function in Australia of the last century that the DPPs had agreed a common framework for controlling the discretion in relation to these matters. But Mr Ellis ignored that responsibility and that discretion in his response that was published.

On those specific remarks, I find it galling and appalling that, while I have not suggested in any way that there should be a different standard for those in public office or anywhere else, that assertion should be made. I am concerned wherever it is. But I think it is a fair point to say that where the prosecutorial function is conducted in a manner which misfires on some very large occasions, in matters of high public profile, on front pages of the newspapers and repeatedly, it is important to note that the ordinary citizen will lose their confidence in the system and will be asking, ‘What about me? What about me as a small person?’

Mr Ellis says I did not look at all 5,500 or so prosecutions that his office is conducted. Of course I did not. Where was I supposed to start: when the first failed prosecution began, when the second fell over, when the third fell over or when the fourth fell over? Or was I supposed to intervene after the most extraordinary and odd circumstance where Mr Ellis intervened, saying that there were close and continuing connections between the Premier of Tasmania and former commissioner Mr McCreadie which prevented Mr McCreadie’s appointment on an acting basis. Those matters are the subject of existing proceedings and I will not go further in relation to them.

In relation to all those other issues, they are concluded. In Mr Johnson’s case, although he was pursued through the courts, the judge in the first instance said that the prosecution was fundamentally misconceived and that success was impossible. The matter was taken by the DPP to the High Court, seeking review. That was set aside. The matter was then pursued as a disciplinary complaint. In the end, those matters were abandoned and Mr Johnson got a payout and thanks from the state. One has to ask: what was achieved by the process?

I will conclude by going to the law reform issues that I have touched on. I will only do so briefly. Firstly, I think it is completely inappropriate for the civil functions of the state to be undertaken by the DPP. A citizen who is dealing with the state, finding that their civil proceedings are instigated by a person with the name of Director of Public Prosecutions, I think is entitled to feel intimidated. Secondly, we should have common prosecutorial directions that cover both the Commonwealth and the states, and the omitted provisions should be reinserted. Thirdly, the balances that exist in other states, such as Victoria, South Australia, Western Australia and Queensland, and the Commonwealth, should be looked at. I said in my speech that prosecutorial independence is crucial, but it is not to be confused with immunity from criticism. It is possible to provide legitimate balances to the otherwise absolute power of a DPP while preserving the office’s necessary independence. That is so. It remains so. (Time expired)