Christian Porter (Pearce, Liberal Party, Attorney-General) Share this | Hansard source

The government is not supporting this motion. I understand that the shadow defence minister wishes to speak as well, so I'll be brief. The issue is essentially procedural. I know that members have firm views on this and I respect their views, but this is an opportunity for the government to explain the procedural situation at law that it faces.

Mr McBride has been charged with one count of unlawfully disclosing information contrary to section 70 of the Crimes Act 1914, three counts of unlawfully giving or obtaining information contrary to section 73A of the Defence Act 1903 and one count of theft contrary to section 13.1 of the Criminal Code. They are evidently serious charges. The prosecution was brought because the Commonwealth Director of Public Prosecutions made an entirely independent decision that the prosecution was in accordance with the prosecution policy of that body.

In this instance, my consent as the Attorney-General was not required nor sought to institute proceedings of the offences that Mr McBride is alleged to have breached. The Attorney-General's consent to prosecute is required statutorily only in a very small subset of particularly sensitive offences across the statute books and is designed to ensure that the proposed prosecution in that very small group of offences is scrutinised at an additional level and a judgement is made about the appropriateness of the prosecution before they proceed. So, in response to calls for the government to intervene and discontinue this current proceeding, I can advise the House that the Attorney-General's power to discontinue prosecutions is reserved for very, very unusual and exceptional circumstances. A decision to intervene in this particular matter would most relevantly be made, if it were ever to be made, under section 8 of the Director of Public Prosecutions Act 1983. During the passage of the DPP Act back in 1983, it was emphasised that the Attorney-General would normally play absolutely no part in the day-to-day decision making of the DPP. Any other course would defer a major purpose of the act, that being to distance central decisions around the prosecution process from the political arena.

Since the Attorney-General was given that power to issue directions to the Commonwealth Director of Public Prosecutions in 1983, it has never been used to direct the CDPP in relation to a particular case. I'm also advised historically that section 71(1) of the Judiciary Act 1903, which provides a broader ability to intervene, has also never been used since the Commonwealth Director of Public Prosecutions' office has been established. I think, in large part, that is because such an intervention would be utterly extraordinary and would necessarily, by its very nature, represent political intervention in a process which has conventionally been independent. Indeed, if such intervention did occur, I have no doubt that this House would be rightly calling for explanations as to why the government was politically interfering in an independent prosecution process that has already run its course and been the subject of a decision by the CDPP. That process requires the CDPP to make decisions about the commencement of prosecutions independently of the government in line with its prosecution policy of the Commonwealth. Before a prosecution is commenced, the prosecution policy requires the CDPP to be absolutely satisfied that the prosecution would be in the public interest. For those reasons, the government does not consider it appropriate to intervene in this matter.

I'd also note, for the members who've made contributions today, that in addition to the criminal proceedings Mr McBride has also made an application under the Public Interest Disclosure Act, and that will be heard by the ACT Supreme Court. Both the criminal proceedings and the Public Interest Disclosure Act proceedings are before the court and they would not be the subject of appropriate comment, further, by me in my role as Attorney-General or by the government generally. But I do appreciate the contributions members have made and hope that sets out, in as clear as possible terms, what the procedural and legal issues are for the government in its determination not to support this motion.

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