The rule of law requires equal treatment before the law, so that the law is not used to persecute and oppress one individual, group, or supposed class. Another aspect of that basic justice is that there should not be individuals, groups or classes above the law, by being shielded or protected by those who administer the law.
The late Mervyn Everett QC was a giant figure in the law in Tasmania, who as Attorney–General enacted a range of measures which placed Tasmania at the forefront of legal reform. One of those was the removal of the Attorney-General’s ability to interfere in criminal prosecutions, by creating the office of Crown Advocate in 1973 (the name of the office was later changed to the Director of Public Prosecutions).
This was Australia’s first criminal prosecution agency which was independent of the Attorney–General and not subject to his or her direction. This promoted the rule of law. The Liberal Opposition by then led by its former Attorney–General, Max Bingham, bitterly opposed the move.
Duncan Kerr has chosen to misuse his last days of access to Parliamentary Privilege for an attack on me. Mr Kerr selected for his criticism five prosecutions out of approximately 5500 for which I have been responsible over the past ten and a half years.
He complained that two of these cases had resulted in findings of guilt, but no penalty was imposed, as is within the well recognized sentencing discretion of the Courts. One of those cases was of the Registrar of the Supreme Court for publishing, in the Court lists, details of charges against young persons contrary to the protection from such publication the law required. Even the Courts are required to obey the law, and the prosecution vindicated that.
The other case was that of Mr Kerr’s friend, ALP Left colleague and former Minister John White. Mr Kerr condemned me to Parliament for prosecuting that matter because I conceded to the Court that imposing no penalty on Mr White was within the proper sentencing discretion of the Court . Mr. Kerr neglected to add that the Chief Justice had anticipated that just that criticism would be raised, and said, “However, I point out that the duty of the Director of Public Prosecutions is to prosecute a charge if there is sufficient evidence to gain a conviction and it is in the public interest to proceed. One can well imagine that having decided that the Minister should be prosecuted, the Director of Public Prosecutions may have considered that it was in the public interest also to proceed against the other signatory to the agreement, even though his level of wrongdoing was of a very low order.”
The other three prosecutions Mr Kerr roundly condemned me for bringing were matters involving politicians – in making an election promise, in a Minister making an agreement to grant a future monopoly to a former Minister, in a Police Commissioner telling the Police Minister and Premier details of the commencement of an investigation of an allegation of corruption in which the Premier was said to be concerned.
All five prosecutions disturb Mr Kerr because, he claimed, they were “against high–profile office holders for crimes not involving any element of corruption, dishonesty or intrinsic criminality.” I have no idea what “intrinsic criminality” is or how it might be adjudged, but Mr Kerr seems to think I should have, for example, taken the view that Section 69 of the Criminal Code, which two of the criticized prosecutions involved, was not to be prosecuted because it did not have enough “intrinsic criminality.” Parliament may have made it a crime and included it in the Criminal Code but apparently I should have put myself above Parliament and known better than to prosecute according to its law.
That I should not prosecute where there is a risk that no penalty might be imposed or where there is not enough “intrinsic criminality” only applies in Mr Kerr’s thesis to “high-profile office holders.” According to Mr Kerr these people should enjoy added immunities not enjoyed by ordinary people.
Not once in my time as DPP have I been approached by Mr Kerr, whether on behalf of a constituent or otherwise, concerning any prosecution nor can I recall him expressing publicly any concern about the thousands of prosecutions I have been responsible for not involving “high–profile office holders”. Not all of those who were found guilty (the vast majority) were penalised, and of course people were also acquitted. All those cases were proceeded with on exactly the same basis as those so – called “high-profile office holders”: that there was a reasonable prospect of conviction based on admissible evidence which a jury could find to be reliable.
So long as the legal requirements are able to be properly and responsibly submitted to support the charge, would it not be an abdication of my responsibility as DPP not to prosecute those matters? Legal submissions (particularly where there is little or no precedent) will not always be accepted by the Courts, a jury will not always be satisfied beyond reasonable doubt by the evidence, and a Court is not obliged to always impose a penalty. That is the nature of criminal litigation. In the case of a “high profile” elite Mr Kerr seems to believe I should not even have tried to follow the criminal justice process.
Tellingly, in his attack Mr. Kerr advocated that the DPP should be subject to political direction. In the past he has argued that criminal prosecutions should revert to being under the control of the Attorney-General of the day. Would any modern, responsible Attorney – General welcome such a burden? The attempt by Mr Kerr to politicize the decision to prosecute seems motivated by a desire to protect “high profile office holders” from equality before the law.
Mr Kerr’s attack was cowardly, being made from the safety of Parliamentary Privilege and unconnected with any matter then being debated (or indeed with any matter within the power of the Federal Parliament). It was also lazy, self–serving, specious and elitist. As such, that it was supported by Eric Abez (“but not as to the TCC prosecutions!”) should be further cause for concern.
Mr Kerr disingenuously claims his “focus” was on “law reform”. If so, perhaps he might invite comparison to Mervyn Everett QC, whose wise reforms he seeks to undo. Such a comparison is unlikely to be favourable to Mr Kerr.
