House of Assembly – Hansard

[This version of the document has been edited by Dr Robert N Moles
Underlining where it occurs is for editorial emphasis]

House Of Assembly Thursday 7 December 2006

Mr HAMILTON-SMITH (Waite):

This is more than just a spat between two public servants. It is not about Nemer or bragging rights on law and order, as we have just heard. It is a battle of principles, at the core of which is the public interest in regard to the need for an independent Office of the DPP, on the one hand, and responsible audit on the other. This matter needs to be referred to an independent judicial review. To deal with it by decree or in some other way leaves this government vulnerable to an array of allegations about improper political interference and leaves uncertain and unresolved important questions about the independent authority and role of both offices: the DPP and the Auditor-General.

Why have there been so many conflicts and so much tension between the Rann government and, in particular, the Attorney-General and respective DPPs? The current incumbent, Mr Pallaras, is not the first to have been criticised. The fact is, Mr Speaker, this government has form in regard to its attitude and relations with the independence of the Office of the DPP. The Rann government came into office in March 2002. The DPP at the time was Paul Rofe; the Solicitor-General was Brad Selway. The Attorney, while serving as shadow attorney, had been engaged in a defamation litigation with Mr Ralph Clarke over matters which arose from R v Clarke, Mr Clarke having been a prominent member of the state Labor Party. The appointment of Mr Chris Kourakis as Solicitor-General by this government occurred on 23 January 2003, shortly after allegations of Mr Randall Ashbourne offering a board position to Mr Ralph Clarke, in connection with the settlement of a legal dispute between the Attorney and Ralph Clarke, came to the attention of the Treasurer on 20 November 2002.

The parliament heard on 17 February 2003 that Mr Chris Kourakis had performed pro bono legal work connected to the Clarke defamation litigation to the value of $9000 for the current Attorney-General before his appointment. The fact is that Mr Kourakis has acted for Mr Atkinson as his lawyer in private matters before this government came to office. On page 23 of the DPP's report to the parliament he expresses concern that the Solicitor-General, who acts on the instruc­tions of the Attorney-General and who is, of course, an eminent lawyer, has been previously involved in giving advice on this matter, and is one of the persons mentioned in the annual report 2004-05, and in supplementary reports of the Auditor-General. The DPP says:

The fact or the perception of conflict dictates that, if the government saw a need for a mediator, that mediator must be independent and have no involvement in the events over which he or she would mediate.

An honourable member interjecting:

Mr HAMILTON-SMITH:

I will come to that. If the Attorney-General seeks to mediate or resolve the matter by some form of decree or action relying on advice from the Solicitor-General, these concerns of the DPP about conflict remain very, very relevant.

On 30 July 2003 the Attorney-General directed Mr Koura­kis to provide a report into the performance of a former DPP Paul Rofe QC. Mr Rofe subsequently resigned as DPP on 3 May 2004 citing health reasons, and stated:

I really want to take the personalities out of the tensions that have been existing between government and my office, and I think removing myself personally will, hopefully, ensure the future stability and operation of the office.

Well, that has proved not to be true. These comments by Mr Rofe bear a striking similarity to those now made by the current DPP, Mr Pallaras QC, in his report to parliament, and in his 2004-05 annual report, in which he states:

Relations with the government have at times been strained.

Well, that's an understatement. The DPP goes on in his report to describe a 25 May 2005 conversation with the Treasurer, mentioned earlier by the leader, as `an unjustifiable attempt to interfere with the independent operations of this office'. He also describes a 9 June 2005 attempt to communicate with the Attorney-General about a telephone conversation between a prosecutor in the Office of the DPP and an adviser to the Premier regarding conduct of the prosecution of Mr Randall Ashbourne, about which he said:

It needs to be emphasised that conduct of this nature makes any government vulnerable to a myriad of allegations including improper political interference, and the fact that government has not addressed this perception in this case is a matter of continuing regret.

I have not received the notes yet to check these quotes.Furthermore, Mr Pallaras raised concerns in his 2004-05 annual report in relation to Mr Kourakis stating:

It has become apparent that (Mr Kourakis and I) have widely divergent views on the interface between our respective offices.

He said:

Whichever view is correct, it is clear to me that another possible source of unwelcome involvement in the proper functioning of my office may be played by the Solicitor-General.

Mr Pallaras began his tenure as DPP on 26 April 2005. Between 25 April and 15 July 2005, he said in his report to parliament that he received no written communication from the Auditor-General or his office. On 15 July the DPP testified before a parliamentary select committee in relation to the Ashbourne / Atkinson / Clarke matter. Since then, surprisingly, he said:

I received or needed to exchange communications with the Auditor-General's office on 25 separate occasions.

The house may well ask whether the Auditor-General's interest in the DPP, and the government's attitude towards this particular DPP, have any connection with the Ashbourne corruption case. Following the resignation of Paul Rofe as DPP on 3 May 2004, Wendy Abraham served as Acting DPP for nine months. It was Wendy Abraham who made the decision to prosecute Randall Ashbourne for abuse of public office. In evidence to the parliamentary committee on 22 September 2005 she stated:

In my view, on the material provided, there was a reasonable prospect of conviction in relation to Ashbourne.

Ms Abraham also made the decision that `there was insufficient evidence to charge Mr Atkinson'. In evidence to the same parliamentary committee in September regarding the Ashbourne / Atkinson / Clarke affair, Ms Abraham, on reading the evidence given to the same committee by Mr Mac­Pherson, the Auditor-General, gave evidence that would support the views of Mr Pallaras about limits to the powers of the Auditor-General when she said of the Auditor-General the following:

It is particularly disturbing that having made the decision he did, having pre-judged the issue, he seems to hold the view that he has somewhere or somehow the power, and indeed the authority and right, to examine the processes of the Director of Public Prosecutions. Of course —

and this is important—

all the evidence he gave was against the background that he [the Auditor-General] —

Members interjecting:

The SPEAKER: Order!

Mr HAMILTON-SMITH:

— failed to refer this matter to police in 2002. The DPP decision that there was a reasonable prospect of conviction reflects on his failure to do so.

On the same day before the same parliamentary committee, speaking about the failure of ministers—including the Premier, and the Auditor-General and other officers—to report the Ashbourne allegations to police, Ms Abraham QC stated:

In my view, the matter should have been referred to the police at an earlier point in time, preferably at the time of making the allegations.

She further stated:

In all matters, where allegations are made of criminal conduct, the earlier police become involved the better to investigate the matter. It is in the interests of justice. An earlier police investigation provides the opportunity for competent and experienced investigators in criminal matters to interview all relevant witnesses, and to ascertain the facts whilst they are still fresh in the witnesses' memory. It also enables exhibits and notes to be collected before they are lost or destroyed.

None of that happened. Ms Abraham applied to the govern­ment for the position of the DPP. She was overlooked. Why am I not surprised? Stephen Pallaras commenced as DPP on 26 April 2005. Ms Abraham subsequently left South Australia, accepting a position as senior counsel in Sydney in the office of the commonwealth Director of Public Prosecutions. The government's attitude to the current DPP, Mr Pallaras, bears some striking similarities to its attitude to previous DPPs. The parliament may well ask whether the government actually wants an independent DPP, particularly given the involvement of Labor MPs and Labor employees in matters before the court to do with allegations of corruption, defamation, assault and paedophilia that have involved Labor MPs or their employees. There is a particularly pertinent point, given that The Australian newspaper carried a report on 5 December — just this week — which states:

The South Australian Director of Public Prosecutions wants several politicians and political staffers to give evidence in the state's highest court to dispute claims of paedophilia in high places.

There must be an independent judicial review. These are important matters, indeed. The state has no independent commission against corruption or a like body. The government claims that the Auditor-General is the state's corruption watchdog, while others may have the view that the police through the Anti-Corruption Branch have that role. We have before us a dispute between the Auditor-General and the DPP which must be resolved. Interwoven into this dynamic are allegations and court cases involving Labor MPs, senior ministers and premiers, and senior officers of government — all of this in an atmosphere of tension between the government and the judiciary about court resources and judicial independence following frequent public criticisms by the government of the judiciary and its decisions.

This difficulty must not be dismissed as a trivial spat between two public servants: it is far more important than that. The matter must been resolved openly, honestly and fairly, and it must be seen to be resolved in such a manner. If the government, as the Attorney-General seemed to suggest to the house yesterday, seeks to rule by edict so as to foist the Auditor-General's view upon the Office of the DPP without independent consideration of his arguments and legal opinions which support it (given that these views have been supported by previous DPPs and other prominent people), then the government will be diminished. It is not a matter to be resolved by edict or decree by the Rann Labor Government with or without the advice of Solicitor-General Chris Kourakis. It is far too important for that. There must be an independent judicial review of the matters before the parliament so that we — its members — can make an informed, objective and non-partisan judgment as to the efficacy of the arguments presented by both officers. If the independence of the Office of the DPP is to be maintained and corruption, nepotism and political interference in the judicial process is to be avoided (as intended by this parliament) then we must have the best information available to us at our disposal.

Members interjecting:

The SPEAKER: Order!

Mr HAMILTON-SMITH:

The government must now indicate to South Australians whether it is fair, honest and accountable or whether it is unworthy.

The Hon. M.D. RANN (Premier):

I guess we have seen the next Peter Debnam of oppositions in Australia. Of course, what we have seen today, in what is known as `last dayitis', is all the future leaders of the opposition lining up to display their wares—because that is what this is all about. As the Attorney-General pointed out yesterday, under your government about $7.5 million was spent on the Office of the DPP. I am advised that it is now around $13 million. Indeed, they have new appointments and new senior prosecutors, and $2.4 million was allocated in the budget for new positions over the next four years, but still they are whingeing. I understand that is a 56 per cent increase. Ultimately, this is not about resources: this is about Paul Nemer. That is what this is about. I want to make patently clear to the DPP and the people of this state that we will not change the law to exempt the DPP from the law. No-one in South Australia is above the law; no Auditor-General, no politician, no judge and no DPP. No-one is above the law in this state, including the DPP.

No-one is above scrutiny when it comes to the expending of taxpayers' money. People keep talking about independence. Independence and accountability are not mutually exclusive, and that is what this is all about. But let us just go back to the fundamental question. The independence of the DPP is under absolutely no threat. It is guaranteed by statute. Anyone who illegally tries to interfere in the DPP's prosecu­torial independence would rightly face the full force of the law. They would be charged instantly if anyone in this state, any politician or anyone else, illegally tried to intervene in the independence of the DPP in prosecutorial decisions. I will not interfere in the DPP's statutory independence and he will not interfere in my independence in doing my job.

I know that the DPP and his office, and his predecessor, were extremely upset with this government's intervention in the Nemer case. That has been made patently clear. It is interesting that we saw the former leader of the opposition saying that he would direct the DPP — `march in there', I think the words were—and direct the DPP to appeal. That is what he said, but now, apparently, that same Liberal Party, one of whose front-benchers said a few years ago that von Einem should not be DNA tested — that same Liberal Party's shadow Attorney-General is saying that we should not have interfered in the Nemer case. Let me just say this about Nemer and say it once and for all, and I hope that this is recorded very clearly.

We were right morally in that case. We were absolutely right on moral grounds in intervening in the Nemer case. We were absolutely right in terms of the public interest in intervening in the Nemer case. We were absolutely right in terms of justice and we were absolutely right in terms of the law. And we were proven right by the full court of the Supreme Court and then by the High Court of Australia, which is what upsets the DPP's office so much. We were right in terms of justice and we were found right in terms of law, and the people of this state strongly supported this government's action in the Nemer case, just as the people of this state supported our calling of a Royal Commission into the Kapunda Road incident.

The message will have to go out right now that I have met with the DPP. I can reveal today that last year I met with the DPP on several occasions. I was invited to come and meet with him and his staff, and I went down and faced all his staff about their grievances. Some of the grievances were about resources and other grievances and discussion were about the Nemer case. From memory, the first question raised in that meeting with all the staff of the DPP was a question by the DPP himself, asking that his salary be increased so that his status could be increased. He had just signed a contract to become the DPP on a certain salary and here we are, in front of his troops. Did he allow the first question to come from the secretaries down the back or from some of the young prosecutors? No. His first question was about his pay and status — and that, I think, tells us a lot about the DPP's concerns.

I will not interfere in the independence of the DPP. He will not gag me or stop me from speaking out on law and order issues, because that is what the people of this state expect me to do. I will not apologise to the DPP or any of his staff for what this government rightly did in the Nemer case, whether the Liberals think that Nemer should have gone free or not, or whether the Liberals think that von Einem should never have been DNA tested, because that is the difference between us and them.

It is quite clear that what we saw today is basically a leadership contest. This is kind of: watch this space next year — Hamilton-Smith QC, the next Peter Debnam. Will the real Leader of the Opposition please stand up?

Let us also talk about some of the other hypocrisy that we have seen, because this is the same Liberal Party, when in government, which sought to stop the Auditor-General from giving evidence and which sought to gag the Auditor-General from coming forward. Do members remember that day when the Auditor-General had to march down to parliament in public view so that he could expose what was really going on in their government—and that again is the difference because they were desperate to avoid scrutiny.

My message to the DPP is this: go out and prosecute some criminals. That is what you are paid to do. We have given you extra resources to do the job. No-one will change your act. I want to go back immediately now to what Chris Sumner, the architect of the act, said. This is very interesting. This is an article for the Law Society Bulletin. I am not sure whether or not they ran it. Did they, Mr Attorney-General?

The Hon. M.J. Atkinson:

Eventually they did.

The Hon. M.D. RANN:

Eventually they did, okay. He talks about this whole issue. He says:

The separation of powers doctrine quite properly accords to the judiciary complete independence from executive government, something which was enhanced while I was Attorney-General by removing magistrates from the Public Service and establishing the independent Courts Administration Authority, but it is constitutio­nally inaccurate to place the DPP in the same category. The Full Court in the Nemer case confirmed this position. Accountability to parliament for this function of the executive was provided through an elected official, the Attorney-General, who by long established convention exercised the function of prosecuting offenders without direction from the cabinet. When the Office of DPP was established by the DPP Act in 1991, this line of accountability was maintained but in an open and transparent manner.

This is the architect of that legislation. This is from the words of the attorney-general of the time whose act this was. Let us have a look at the original purpose of the bill. He goes on to say:

As a matter of practice, the DPP has substantial operational independence in the management of his or her office and the day-to-day decision making about prosecutions. However, as was the case when I was Attorney-General, and I am sure the same applied to my successors, there is consultation and discussion between the Attorney-General and DPP on issues relating to the exercise of the DPP's functions, including issues such as budgetary allocations but also on matters of significant public interest.

There are the words of the Attorney-General whose legislation underpins the independence of the DPP which we protect but, at the same time, saying that we will not change the law to exempt the DPP from the law and we will not change the law to exempt the DPP from proper scrutiny about his accounts — and that is what this is all about.

People say — I read this morning and I heard yesterday — that somehow I should intervene on this dispute between the Auditor-General and the DPP. Oh, yes, two statutory officers. I should apparently pick up the phone. Just remember what happened when an invitation went out and we were told that this DPP was accessible and that people should phone him if there were any queries. When the Deputy Premier did telephone him, he was then cited as potentially breaking the law. Any attempt by me to instruct the Auditor-General or the DPP on their current conduct would simply result in my breaking the law. You might be mugs: I am not.

Mrs REDMOND (Heysen):

I am glad to have the opportunity to bring the debate back to where it belongs, that is, the issue of the urgency motion. I say at the outset that I have no axe to grind with the Auditor-General. I have never even met the man. I have nothing in common with anyone who has an axe to grind with him. I do not carry other people's baggage. When I deal with people, invariably I deal with people according to how I find them and how I find them in their dealings with me. I have no axe to grind with the Auditor-General. Furthermore, I agree that the Auditor-General's scope in his authority goes beyond just being a bean counter. He clearly has a scope that is broader than that. His is not just a tick and flick function, as auditors like to call it.

Mr Piccolo interjecting:

Mrs REDMOND:

Yes, it is, according to the DPP. Thirty years ago, when I was working in the legal branch of the department of agriculture in New South Wales, the very issue came up. The grain sorghum marketing board was spending money in all sorts of strange ways — taking wives on overseas trips and things. They said, when the auditor-general tried to pull them up, `You can't do that. We have kept our books correctly. Your function is to see whether we have kept our books correctly, and we have kept them correctly so just go away.' There was a real problem with the auditor-general. I recognise that issue and I recognise that the Auditor-General has the authority to do more than just tick and flick, and that is exactly what the DPP says in his report, but the Auditor-General is clearly wrong on at least two counts. He is wrong in suggesting that his ambit of authority goes as far as he likes to think it does, and he is wrong in suggesting that the DPP did something that was unlawful, and that is not just the DPP's opinion.

The Hon. M.J. Atkinson:

Tell us why.

Mrs REDMOND:

I will. I will quote some of the things said in other places and in the DPP's report. First, the DPP says of the Auditor-General:

He seems unwilling to acknowledge the clear separation in purpose and function that our respective offices are mandated to provide.

He goes on to say:

To suggest that because, as director, I am on the public payroll and that this alone is enough justification for the view that anything I do or any decision I make is thereby subject to his audit is an illogical and untenable position.

That is absolutely correct. It is confirmed not just by my viewpoint but also by an eminent member of the independent bar, Dick Whitington QC. He says:

Section 9 [of the DPP Act] does appear to create an area into which the Auditor-General must not go, where this may not be the case with respect to other statutory officers or authorities.

He goes on to say:

My view is that the Auditor-General does not have the power to seek information as to the reasons for such a decision—

and he is referring to a discretion about prosecuting and so on —

or report on them.

Even the Solicitor-General's opinion of 9 August, after a request from the Auditor-General, was limited to say that his authority extended only to any system that might be in place. That is where the Auditor-General can go in making his inquiries.

The Hon. M.J. Atkinson:

That is the original question.

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