Events unfolding in Tasmania — where the State’s Director of Public Prosecutions Tim Ellis and new Premier David Bartlett are at war over the latter’s now aborted appointment of a temporary replacement Commissioner of Police — are not unique.
Ever since the office of DPP was established in Australia there have been clashes between the holders of that office and governments. This is the first time it has happened in Tasmania, but from Queensland to Western Australia celebrated bust ups between the person responsible for prosecutions in the community and Premiers have made for juicy front page headlines.
This latest spat has arisen as a result of the decision by Mr Ellis last week to charge the Tasmanian Police Commissioner Jack Johnson with allegedly breaching confidences after he gave a briefing note to his Minister about police investigations into alleged political interference in appointments of senior legal officials.
Mr Bartlett decided, because Mr Johnson has had to step aside, to bring back from retirement Richard McCreadie, who had left the Commissioner’s job earlier this year. Mr Ellis objects to this course of action, saying that it would be inappropriate for Mr McCreadie to return to the Commissioner’s job but that he is not prepared to tell anyone other than the Governor of Tasmania why.
Mr Ellis’ letters asked more questions than they answered with his claim that he has “reason to believe that the links between the Premier, Mr McCreadie and Mr Johnston are close and current and I am not at this point prepared to discuss the matters with anyone except His Excellency the Governor.” Mr Bartlett adamantly denies there is anything untoward in his relationship with either man – he has only met them on official occasions he says, and he is mystified as to the claims being made by Mr Ellis.
The office of DPP, which is answerable to the Parliament, was created first in the UK in the 1950s and throughout Australia in the 1970s and 1980s to ensure that decisions to prosecute individuals were not subject to political or other forms of influence. For the most part the office has proved successful, but this has not stopped politicians taking on the DPP and vice versa.
Perhaps most famously, in 1986 the Commonwealth DPP, Ian Temby, regarded up until that point by many as friendly to the ALP and the Hawke government, prosecuted High Court judge Lionel Murphy for allegedly interfering with a criminal trial of a friend.
Former Victorian Premier Jeff Kennett tried to sack that State’s DPP Bernard Bongiorno in 1994 after the latter threatened to charge Mr Kennett with contempt of court.
In New South Wales, long serving DPP Nick Cowdery regularly publicly argued with Premier Bob Carr over Carr’s draconian get-tough-on-crime policies that resulted in mandatory sentencing.
In 2002 another law-and-order obsessed Premier, South Australia’s Mike Rann, told the DPP Paul Rofe to appeal against a sentence handed down to a man convicted of shooting at a newspaper delivery man. Rofe told Rann to go jump, but when the High Court sided with the Premier, Rann forced Rofe to resign.
In Queensland, former DPP Leanne Clare copped serious criticism from then Premier Peter Beattie, who ordered an independent review into Ms Clare’s decision not to charge Palm Island police officer Chris Hurley over the death of Aboriginal activist Mulrunji Doomadgee in 2004. Hurley was eventually charged and acquitted by a Townsville jury in 2007.
So what should Mr Bartlett do, now that the State’s DPP has essentially said he has no confidence in the government which Mr Bartlett leads?
There is a solution at hand. Damien Bugg, the recently retired Commonwealth DPP and a former Tasmanian DPP himself, could be appointed as an independent reviewer of the events lead up to, and after Mr Johnson was charged last week. The Tasmanian Attorney-General, Lara Giddings, could ask Mr Bugg for such a review today. It might be the best solution to what is becoming a bitter and divisive battle between two powerful figures. If Mr Bugg is not available, there are many eminent retired juidges who could assume this position.