“A lack of resources within the ODPP means that it has received insufficient funding to employ properly trained and experienced staff to do the work. That shortfall means that the Barr government has decided not to accept a request for the necessary funds.” Is the public prosecutor getting the cold shoulder wonders HUGH SELBY.

This week The Australian newspaper reported that the ACT Prosecution Office (ODPP) will no longer prosecute regulatory matters (such as animal protection, election offences, illegal waste discharge/dumping offences) because it lacks the resources to do so. 

To attract reader attention the headline is “DPP caseload retreat risks ‘anarchy’. 

The content of the article reveals that this headline is based upon nothing more than an unidentified source (allegedly “close to the government” – a meaningless, but misleading phrase) asserting, “this decision could cause a state of anarchy and lawlessness in the ACT”.

“You couldn’t make this stuff up” is a phrase that springs to mind, to be immediately rewound because someone has made it up, put it out there, and it has been reported as warranting attention by a national broadsheet.

There are aspects of the decision by the ACT DPP, Victoria Engel SC, that do warrant our attention, but they are not the fantasies quoted in the article. Let’s turn to the serious stuff, all of which has to do with ignoring various basics of good government.

How does the DPP legislation apply?

The article does not mention the law. That’s a red flag. 

The ODPP is set up under the Director of Public Prosecutions Act 1990. Its functions, per section 6, include instituting prosecutions for summary offences (which covers most regulatory offences). Query then whether the director has the capacity to unilaterally decline to prosecute regulatory offences.

The article quotes from an email sent by the DPP to the Chief Minister. Language matters. Did she write and/or say: “I won’t do it”? If she did then the argument is that she has gone outside her powers. 

On the other hand, if she wrote/said: “I can’t do it” then she acted responsibly so that the government and affected administrative centres can take the necessary steps to ensure the law is enforced against law breakers.

This distinction matters because it must be considered alongside the power of ACT Attorney-General Tara Cheyne to give the DPP directions about the work to be done (Sections 19 and 20). 

A direction could be that a class or classes of prosecutions would, from a given date, be conducted outside of the ODPP. Such a direction must be put before the Assembly.

Absent such a Section 20 direction, the argument is that DPP is obliged under Section 6 to run regulatory prosecutions.

When her office is incapable of doing so, for workload, priority, expertise reasons then her staff will have to stand before the magistrates and intone: “Your honour, this case is not ready. We don’t know when it will be ready”. This will be accurate, infuriating, and bring justice into disrepute. Does anyone in the Legislative Assembly care?

Although there is no right to a speedy trial in Australia we can be certain that some offenders, for whom the stakes are high, will take court action to have the non-moving prosecutions against them shut down by applying for “a permanent stay”.

That litigation will be expensive and newsworthy. The community will be the losers regardless of what the court decides: if the case is stopped then the law treats some defendants (the wealthy) better than it treats the indigent who can’t afford to apply, but must wait an indefinite period for their case to be heard. If the case is not stopped then wealthy and poor alike are swinging in the wind.

Alas, the legal problems go further than those set out in the article.

If, for present purposes, we assume a power of the director to decline to prosecute over a type of case (for example, regulatory), as distinct from the undoubted right to decline to prosecute in a specific case, how then are such issues as the following to be determined: negotiating what charges are to go to hearing; by whom, when and how “undertakings not to use evidence against a person” can be given and accepted; whether, when, and why the DPP can take over any matter being prosecuted by an agency; and, whether the DPP will take over any matter that goes on appeal? (Section 12 provides only a partial answer.)

Lack of funding

A lack of resources within the ODPP means that it has received insufficient funding to employ properly trained and experienced staff to do the work. That shortfall means that the Barr government has decided not to accept a request for the necessary funds.

Given that the work of implementing the law must be done then the Barr government has decided (either by a conscious means or simply by a “can’t be bothered to turn our minds to it”) that it is cheaper to give the work to either the ACT Government Solicitor or “outsource” it to private providers (such as solicitors and barristers) than to keep it inhouse in the ODPP.

But where is the evidence that it will be cheaper? The DPP correctly noted (as quoted in the article) that such outsourcing is common in other parts of Australia.

However, such factors as the tyranny of distance in the larger states, there being no local ODPP office in many far-flung regions, a history of police prosecuting in the Magistrates Court with an ODPP doing the “more serious stuff”, explain that outsourced approach. It is not applicable to ACT circumstances.

The article states that the DPP wrote to Barr in February, but there was no reply. The DPP also wrote to the A-G. There is no mention of any reply. Could this be true? Surely not, because at the request of the DPP the Attorney-General must consult with her (Section 19).

Bluntly, if the DPP wrote to the A-G about the basic issue of capacity to prosecute, and the A-G has not set up a meeting or meetings to discuss it, then the A-G has breached the law.

The article mentions that “a source close to the ACT government”, and, “an (unnamed) ACT government spokesman” did respond to The Australian – something that the DPP is alleged not to have got over a couple of months.

Is the Barr government unhappy with the DPP, so unhappy that it doesn’t respond to a major policy issue? 

When the former DPP Shane Drumgold SC, set out his infamous concerns from the Higgins fiasco, the chief minister responded very quickly by setting up an inquiry. 

That inquiry cost a lot more than would be required to employ some talented, trained junior staff in the ODPP to run regulatory prosecutions.

Lack of consultation, planning and necessary training

As soon as the DPP contacted the chief minister in February immediate steps should have been taken to solve the problem.

Had the A-G not abolished the Law Reform Consultative Group (set up by former A-G Shane Rattenbury and chaired by former Magistrate Beth Campbell) that would have been an appropriate forum.

In its place the A-G should have quickly set up a consultation that included the ODPP, the magistrates, the Law Society and the Bar Association, the government solicitor, and the affected government departments.

The outcome of such discussions may have been an increase in funding to the ODPP, or a properly planned process for the work to be done outside the DPP.

To be a competent advocate in any court or tribunal requires a mix of talent, training and experience. It helps to have a good mentor, just as a good surgeon or a good tradie benefits from expert supervision and useful feedback. Such competency is not acquired over a short training course, watching a few hearings, or being “thrown in the deep end” without an experienced mentor.

The article reports the lack of any planned “hand over”, especially to provide the necessary training to ensure that the regulatory agencies can choose to run their prosecutions or brief out the work. 

The Act allows the director to give directions/guidelines to any “outsider” that prosecutes (Section 12). There is no mention of that having been done. It follows that an informed government decision to have the Government Solicitor Office and the regulatory departments handle the work cannot have been made.

The article reports a claimed lack of expertise among Canberra-based lawyers to take on the regulatory prosecutions. Having conducted training for regulatory prosecutions over many years, I deny that claim.

Regulatory prosecuting, like all other prosecuting, requires attention to the laws and regulations, and evidential requirements, that apply to a claimed infraction. Any competent lawyer can find them.

Moreover, within the private profession in the ACT there are former prosecutors, legal aid and government lawyers. They could do the work.

However, the issue, the only one that matters, is how best are we served for regulatory prosecutions – by an ODPP inhouse, or some other approach?

Within the ACT, given both our geographic size, and our population, the most efficient manner (considering workload, expertise and cost) to prosecute regulatory offences is to have them conducted by the prosecutors within the ODPP.

I challenge those with a different opinion to prove their case.

Hugh Selby is a CityNews columnist, principally focused on legal affairs. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.