Territory Stories

Debates Day 1 - Tuesday 23 May 1995



Debates Day 1 - Tuesday 23 May 1995

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Parliamentary Record 11


Debates for 7th Assembly 1994 - 1997; ParliamentNT; Parliamentary Record; 7th Assembly 1994 - 1997




Made available by the Legislative Assembly of the Northern Territory





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Legislative Assembly of the Northern Territory

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Attribution International 4.0 (CC BY 4.0)

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Legislative Assembly of the Northern Territory



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DEBATES - Tuesday 23 May 1995 Let us look for a moment at the way the Office of the Director of Public Prosecutions has operated. We had a problem when the member for Sanderson was Attorney-General because he really did not understand that, as first law officer of the Northern Territory, he had the fundamental right to commence and to cease prosecutions. He thought basically that he was subject to the direction of the Commissioner of Police. I am sure the Chief Minister will not forget the extraordinary bungle for which the member for Sanderson was responsible. Fortunately, he received some better advice from his department and worked out finally that he really was the first law officer, with the right to commence prosecutions. That is an ancient prerogative power attaching to the office of the Attorney-General, preceding the democratic movements of the 19th century in the parliament of Westminster. Traditionally, the Attorney-General exercised that prerogative power on behalf of the Crown, and it could not be challenged in any court. After the industrial revolution and among the developing complexities of modem life, that power to launch prosecutions has been vested, subject to the constraints of the legislation under which he operates, in the Director of Public Prosecutions. In this Assembly, I can demand of the Attorney-General the reasons to prosecute or not to prosecute in a particular case. Over the next few days, having heard the conflicting views of the Attorney-General and the Minister for Police in respect of the Breedon case, it will be high time for an extended debate on the implications of that case for the administration of justice in the Northern Territory. However, I digress. If it is appropriate for members to put the Attorney-General under the hammer in respect of his decisions or the decisions of the Director of Public Prosecutions to prosecute, it follows clearly that the parliaments officer - the Ombudsman - can make similar requests of the director. It may be tempting for those members, who have not taken the trouble to read the last Ombudsmans report, to think that this is simply a little academic self-indulgence. It is not. A former policeman took objection to the Director of Public Prosecutions launching a prosecution against his son. It is not my intention to canvass that case in this debate. However, I recommend that members read about it in the report. I do not think the Chief Minister knows that it is there and that it is a live issue that the Ombudsman was asked to investigate the exercise of prosecutorial discretion by the director. I presume he does not know about that, and I think that he should. In summing up on this bill, the Chief Minister should refer to that case because it is germane. I believe it is high time that this government accepted what the actual role of the Ombudsman is - to scrutinise. It is very important in this context to distinguish between scrutiny and determinative capacity. All the Ombudsman has the power to do is to bring to the light of day the basis on which decisions are made in an increasingly complex bureaucracy. Decisions in respect of prosecution are no different from other decisions, whether they are in the Department of Education or in the Department of Primary Industry and Fisheries or wherever. They come up for debate in this Assembly. The Ombudsman is there as another arm of the parliament. I wish now to refer the Chief Minister to a paper presented by Justice Mary Gaudron of the High Court of Australia. The scrutiny of decisions to prosecute is a live issue. We know that it has implications for the National Crime Authority. There have been examples in the Territory where the Ombudsman has been asked to investigate the exercise of a decision, and 3582