The Victorian Government has come under increasing pressure in the past week to have an inquiry into the lead up to the resignation late last year of the Victorian Director of Public Prosecutions, Bernard Bongiorno, and more particularly into the role in that of the Victorian Attorney-General, Virginia Wade. Allegations have been made in the ABC program Four Corners and elsewhere that Mrs Wade attempted to undermine Mr Bongiorno, by attempting to force him out by cutting his legislative powers.
The allegations were that she did this because Mr Bongiorno had played a key role in the prosecution of former Liberal federal president John Elliott and because he had mooted the prosecution of the Premier, Jeff Kennett, for contempt over comments he had made about the arrest of a serial killer. Essentially, the allegations involve the undermining of an independent quasi-judicial officer for political reasons. They are serious allegations and warrant inquiry. It is folly to dismiss the allegations by asserting an elected government has a right to rearrange the legislative base of the office of the DPP as it sees fit because the office, though a fairly recent one, has now attained an almost quasi-constitutional status, somewhat equivalent to the judiciary. England has had an independent Director of Public Prosecutions for more than three decades.
Most Australian states and the Commonwealth, on the other hand, have only had the office for a decade or so. The office is by no means a long-standing one. Before its creation the decision whether to prosecute or not largely rested with the police and in a special class of cases with the Attorney-General. Both are part of the executive arm of government. From time to time the decision whether to prosecute in particular cases was, of necessity, muddied with politics. Sometimes it was because an MP or public servant was the subject of a prosecution. Sometimes it was because things a government might want kept under wraps would come out in court.
Sometimes a matter might have great public interest causing its treatment of have political repercussions. In these cases, pressure might be brought upon police not to prosecute when they should, or to prosecute when they might otherwise not. And thus, the independent statutory office of director of public prosecutions was created in most jurisdictions remove politics from the prosecutorial process and to ensure that the decision to prosecute was made purely on questions of evidence and broad public interest. The guidelines for prosecution were set down by statute and the DPP was answerable tot he Parliament. The DPP system in English and Australian jurisdictions has worked quite well. It has added a layer of fairness and impartiality in the criminal justice system.
Indeed, there is a solid case for entrenching the position _ in the way that the independence of the judiciary, auditor-general and governor of the central bank are entrenched in some common-law jurisdictions _ so it is beyond the tampering of the ephemeral majority of the party that happens to be in power. It is important to find out precisely what happened in the Victorian case. Without an inquiry, the public is entitled to suspect that the Kennett Government was prepared to blur the separation of powers and the rule of law by undermining the independence of a statutory officer who forms an integral part of the judicial process.