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Thursday, 7 December 2006
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Choosing Independents Comes at a Price
Independent prosecutors to make the decisions about whether or not to put some one in the dock have generally been welcomed by Australia 's Attorneys General. At the Federal and State level the political heads of the legal system see the advantages of not having to take the responsibility when the public thinks things have gone wrong. Don't blame me - the Director of Public Prosecutions makes the decisions, is the stock answer, unless and until there is a real public outcry at a judicial decision.
When the popular media is howling for a vengeance that a court has denied and a Premier feels the need to show the strength of his law and order credentials, leaving things to the statutory appointee takes on a different meaning. At times like that governments do not want a true independence from their independent prosecutor. What they want then is for a wink and a nod given in public to be followed by the DPP very publicly lodging an appeal.
It is a strange thing how politicians so regularly misunderstand that the strong and competent lawyers they appoint to head their office of the DPP are not the kind of people who lightly ignore what their statute says about independence. Gareth Evans always looks bewildered when reminded that it was his appointee as the first Commonwealth DPP, Ian Temby, who led the charge against his own political inspiration Lionel Murphy that threatened the High Court judge's future. Premier Nick Greiner in NSW must surely regret thinking that the same Ian Temby had proved with his treatment of Murphy that he had the required anti-Labor sentiments to make a new found Independent Commission Against Corruption a weapon against his predecessor Neville Wran. Making Greiner the first and still the most major victim of ICAC demonstrated what statutory independence means to fearless lawyers.
The latest episode of a politician regretting a legal appointment is in South Australia where the Labor Attorney General Michael Atkinson brought in a prosecutor from Perth , Stephen Pallaras, after an episode where his predecessor as DPP had a different view on the need for an appeal to Premier Mike Rann. The belief was that Pallaras was a no nonsense kind of fellow who would brook no weakness from sentencing judges and provide an appropriate background for a political party determined to be seen as tough on law and order.
In the great tradition of his office the new boy quickly showed he had a mind of his own. Since his appointment nearly 18 months ago Mr Pallaras has openly criticised the Rann Government on many occasions for its attacks on sentences, plea bargains and decisions on whether or not to lodge appeals.
So when another statutory office holder, the State Auditor General Ken McPherson, decided to have a look at non-financial as well as financial administration in the office of the DPP, there were nods of approval from within the Government. That man Pallaras was going to get some of his own back by having someone probe around decisions on whether to prosecute or not and to consider the appropriateness of the DPP employing a public relations consultant as well.
In one sense this kind of performance audit was a normal enough task for an auditor general. Reporting to Parliament on financial administration is increasingly being taken by AGs to mean looking at how good a job is done with the money as well as ensuring that it is spent in accordance with the law.
But the DPP is not an ordinary department of government. Mr Pallaras argues that the independence given to him by his DPP Act excludes him from such things as performance audits and he strongly stated his case. Stated it so strongly in fact that Mr McPherson felt aggrieved enough to go to court to try and prevent the words of Mr Pallaras being tabled in Parliament because he had been denied procedural fairness and a chance to respond.
The court case failed and the matter rests back with a government caught in the middle of a dispute between two obviously strong willed and independent officers. Attorney General Atkinson gives every impression of wanting to be rid of his DPP but there is on thing for sure: Mr Pallaras will not be going easily.
No Immediate Switch in Sentiment
Those punters are an unsentimental lot. Not a trace of a honeymoon for the Labor dream team. John Howard is now a shorter priced favourite to win the next election than he was a couple of months back when Kim Beazley was to be his opponent.
According to the Owl's election indicator based on prices from the three major internet bookmakers the Liberal-National Coalition has a 61% chance of winning the next election to Labor's 39% chance.