Duncan Kerr (Denison, Australian Labor Party) Share this | Link to this | Hansard source

Failed prosecutions of senior Tasmanian parliamentarians and police have been wrenching for my state, imposing a cost on our institutions that is greater than the inevitable pain for the individuals involved. Justice Heydon recently noted that all litigation is capable of causing immense harm unless its use is properly controlled and unless those that institute it are subject to legitimate pressures generating a measure of discrimination—and that is particularly true of the power to prosecute.

Eyebrows were first raised after the appointment of the current DPP in Tasmania, Mr Ellis, when a prosecution was undertaken against the registrar of the Supreme Court for the inadvertent release of prohibited information. Although a plea of guilty was entered, the matter was dismissed without penalty.

In 2005, Windermere MLC Ivan Dean sought election as Mayor of Launceston. He faced possible criticism that if he won he would get two salaries—one as mayor and one as a legislative councillor. Dean’s response was to promise that if he won he would donate his salary as mayor to charities and youth activities. Dean won the election, and two days after being sworn in the DPP served him with a charge of bribery under the Local Government Act. Respected political scientist Richard Herr described the indictment as ‘almost farcical’. Upon reaching the court, Magistrate Szramka held that Dean had no case to answer and dismissed the prosecution.

The second such case arose after the 2006 Tasmanian election. Prior to that election, Deputy Premier Bryan Green had entered into an agreement with a private company, the Tasmanian Compliance Corporation, to guarantee that company an ongoing monopoly over the licensing of builders. It was contested ground as to whether the agreement was legally binding. The charges laid against Green under section 69 of the Criminal Code did not require proof of his dishonesty or of corruption on his part. Green’s two trials both resulted in hung juries, and in 2008 the prosecution was abandoned. A co-accused, John White, who had earlier pleaded guilty, was discharged without even a conviction. Given that the DPP (a) did not allege corruption or a dishonest motive against either Green or White, (b) failed to secure verdicts against Green and (c) did not seek any penalties against White, it remains obscure what public purpose these prosecutions were intended to serve.

The DPP’s most recent failure was the prosecution of former police commissioner Jack Johnston. He was prosecuted for a breach of duty. The breach was said to be Johnston’s briefing of the Premier and the minister for police about an investigation into allegations of a so-called corrupt deal to fill the position of Tasmania’s Solicitor-General. I interpose that the allegations proved to be entirely false. Again, no element of dishonesty or corruption was charged or said to be essential to the offence. In the end, the Tasmanian Supreme Court threw out the case against Johnston. Justice Evans held that the prosecution had been wholly misconceived and doomed to failure. The DPP sought special leave to appeal to the High Court, but the application was dismissed.

In each instance, the DPP pursued prosecutions against high-profile office holders for crimes not involving any element of corruption, dishonesty or intrinsic criminality. So it was entirely predictable and, in my opinion, inevitable that the harms unleashed and the disruption to our community would exceed any good that a successful prosecution might have achieved.

Prosecutorial independence is essential, but it is not to be confused with immunity from criticism. It is possible to provide legitimate balances to the otherwise absolute power of the DPP while preserving the office’s necessary independence. No-one suggests that the Commonwealth DPP is not independent; but, unlike the Tasmanian DPP, who is appointed for life, the Commonwealth DPP is appointed for a fixed term not exceeding seven years. The Commonwealth DPP must, on request, consult with the Attorney-General, and the Attorney can give public directions either generally or in respect to particular cases. There is also a much more detailed and binding prosecution policy for the Commonwealth than that which applies in Tasmania. Unlike in Tasmania, Mr Ellis’s Commonwealth counterpart has no role in general civil litigation. These balances in the Commonwealth law are sound, but Mr Ellis is not subject to them and he bears the responsibility for his own self-restraint.

I also suggest that, whilst those matters need attention from Tasmania’s Attorney, the parliament might also look at the principles of criminal responsibility. In Tasmanian law, offences such as those under section 69 of the Criminal Code do not include a fault element requiring proof of intention or knowledge or dishonesty, unlike the standard arrangements in Commonwealth offences under the principles of criminal responsibility in chapter 2 of the Commonwealth code. Whilst of course there can be exceptions to those provisions, the normal provisions in Commonwealth law do require a fault element of proof of intention or knowledge or, in most instances and in cases like the ones we are discussing, dishonesty.

Harry Jenkins (Speaker) Share this | Link to this | Hansard source

Order! It being 8 pm, the debate is interrupted.