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I was, however, concerned at the extent to which that immunity is being granted, and I remain concerned, although we are prepared to support it. The immunity in this legislation is granted to the director or to any member of the staff of the office of the director in relation to pretty much anything done in the carrying out of duties. I am concerned that, if we move down the path that we seem to be moving down in Australia, of increasing trial by media, and if we ever get to a situation that exists in the United States, where it seems to an observer from a distance that some of the key decisions in a criminal prosecution are those about the engagement of a good publicist by either the state or the defence, there could be a great danger that an overzealous prosecutor or the staff of an overzealous prosecutor might put about a bit of scuttlebutt as to the reliability or otherwise of the defendant or a witness in support of the defence. Such conduct would clearly be totally unethical in Australia today, and there are appropriate methods to discipline any person under both Bar rules and Law Society rules. The risk here is that the prosecution is given total immunity for anything said in relation to anybody in the course of a trial. My concern is that defence lawyers could say, “We have now given the Crown the ability to say that witness X for the defence is a bit shady and a bit unreliable. Should not the defence have the ability to say that police officer Y, who is about to give evidence, is well known as a bash merchant, and to say that to the media or the world at large?”. Clearly, that would be unsatisfactory.
I was contemplating an amendment to limit this power. It is a very important power that we are giving. It is one that even, on the DPP's application, would pretty much be exclusively exercised by the director or a person acting for the director. It is not the sort of power that, even in the DPP's contemplation, would be exercised by a junior staff member. I wrote to the Attorney raising concerns about the width of this. I was advised by Mr Humphries that provisions in similar terms exist in, I think, New South Wales and Queensland. He advised that those jurisdictions where this question of immunity has been looked at have tended to cast it fairly widely.
Given that, I am not moving an amendment now; but certainly, if we were to hear complaints from, say, the defence side of the equation, through anybody acting as defence counsel, that this power was being abused, the Opposition would very quickly be moving in this place to pull this power right back. The model that Mr Humphries has come to this chamber with is the model that has been used in other jurisdictions. I must confess that I have not heard of that being abused, but there is some risk here. For that reason, while we are prepared to support this Bill, we would put the Government on notice that if there is any suggestion that this power is being overused we will want to circumscribe it right back and perhaps limit it to a privilege that would attach only to a written statement by the director. It should not be something that is used very often.
MR HUMPHRIES (Attorney-General) (12.07), in reply: Mr Speaker, Mr Connolly indicated that it might be necessary at some stage to revisit the issues which this Bill gives rise to. I have to say that I entirely agree with him. In fact, I think I made some reference to that when I was actually presenting this Bill the other month. It does give rise to a serious question about the extent of capacity to protect members of the public service or agents or officers of government in the exercise of their functions. One can see a case for protecting the Director of Public Prosecutions in this case; but it is very apparent, when one looks at the circumstances, that where to draw the line around that privilege that one endows a person with is very hard to see.