PROSECUTION POLICY OF THE COMMONWEALTH
GUIDELINES FOR THE MAKING OF DECISIONS IN THE PROSECUTION PROCESS
The Hon. Robert McClelland M.P.
Parliament House Canberra ACT 2600
In February 1986 the then Attorney-General presented to the Parliament a Statement prepared by the Office of the Director of Public Prosecutions setting out the guidelines to be followed in the making of decisions relating to the prosecution of Commonwealth offences. That document, the Prosecution Policy of the Commonwealth, reflected the significant changes to the Commonwealth prosecution process effected by the Director of Public Prosecutions Act 1983. The Prosecution Policy of the Commonwealth was revised in 1990 and has recently been reviewed and revised again.
Although this revised version of the Prosecution Policy of the Commonwealth deals with some new areas, including victims, mental health of the alleged offender and prosecution disclosure, in most respects it represents a refinement of the 1986 and 1990 Statements.
The test in the Prosecution Policy of the Commonwealth in relation to the decision to commence or continue a prosecution remains the same and this test is contained in the Prosecution Policies of all the Australian States and Territories.
The Prosecution Policy of the Commonwealth will continue to serve two main purposes. The first is to promote consistency in the making of the various decisions which arise in the institution and conduct of prosecutions. The second is to inform the public of the principles upon which the Office of the Director of Public Prosecutions performs its statutory functions.
Attorney-General of Australia
table of contents
Criteria governing the decision to prosecute 6
Prosecution of juveniles 9
Choice of charges 10
Consent to prosecution 10
Discontinuance of a prosecution instituted by a Commonwealth officer 13
Intervention in a private prosecution 13
Undertakings under section 9(6), 9(6B) or 9(6D) of the DPP Act 15
Mode of trial 17
Charge negotiation 17
Declining to proceed further after commitment 19
Ex-officio indictment 20
Prosecution appeals against sentence 21
Annexure A: Note on prosecutions for the bribery of foreign public officials under Division 70 of the Criminal Code 23
Annexure B: Immunity from Prosecution in Serious Cartel Offences 24
Annexure C: Work Health and Safety Undertakings 28
Annexure D - Note on the provision of Undertakings under section 9(6), 9(6B) or 9(6D) of the DPP Act 29
The Prosecution Policy of the Commonwealth provides guidelines for the making of decisions regarding the prosecution process.
The Policy is a public document based on the principles of fairness, openness, consistency, accountability and efficiency that the Office of the Director of Public Prosecutions (DPP) seeks to apply in prosecuting offences against the laws of the Commonwealth.
The Policy does not attempt to cover all questions that may arise in the prosecution process and the role of the prosecutor in their determination. It is sufficient to state that throughout a prosecution the prosecutor must conduct himself or herself in a manner which will maintain, promote and defend the interests of justice. In the final analysis the prosecutor is not a servant of government or individuals - he or she is a servant of justice.
It is also important not to lose sight of the fact that prosecutors discharge their responsibilities in an adversarial context and seek to have the prosecution case sustained. Accordingly, while that case must at all times be presented to the Court fairly and justly, the community is entitled to expect that it will also be presented fearlessly, vigorously and skilfully.
The Policy will be reviewed regularly, and any changes will be made public.
On 5 March 1984 the Director of Public Prosecutions Act 1983 (the Act) came into operation. It established an Office of the Director of Public Prosecutions (DPP) controlled by the Director of Public Prosecutions (the Director).
The Act effected a number of significant changes to the Commonwealth prosecution process. Perhaps the most significant change is the effective removal of the prosecution process from the political arena by affording the Director an independent status in that process. The Attorney-General as First Law Officer is responsible for the Commonwealth criminal justice system and remains accountable to Parliament for decisions made in the prosecution process, notwithstanding that those decisions are now in fact made by the Director and lawyers of the DPP, subject to any guidelines or directions which may be given by the Attorney-General pursuant to section 8 of the Act. Such guidelines or directions may only be issued after consultation with the Director, and must be published in the Gazette and tabled in each House of the Parliament. Although the power under section 8 may be exercised in relation to particular cases, in his second reading speech to the Director of Public Prosecutions Bill the then Attorney-General, Senator Evans QC, indicated that it would be very unusual for that to be done in relation to a particular case. Directions under section 8 occur very rarely and have not been provided in relation to a particular case.
The Act has also ensured that there is a separation of the investigative and prosecutorial functions in the Commonwealth criminal justice system. Prosecution decisions will be made independently of those who were responsible for the investigation. If a prosecution is commenced by arrest and charge, once it has been referred to the DPP, the decision whether to proceed with that prosecution is made by the DPP.
The DPP seeks to meet standards of fairness, openness, consistency, accountability and efficiency in prosecuting offences against the laws of the Commonwealth and in meeting these standards maintain the confidence of the public it serves.
The DPP has regional offices in New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania and the Northern Territory. Prosecutions in the Australian Capital Territory for offences against Commonwealth law are conducted by DPP Canberra Office.
The decision to prosecute