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sydney alternative media - non-profit community independent trustworthy
Thursday, 14 June 2007
DPP tenure at risk as NSW Minister investigated by ICAC?
Mood:  quizzical
Topic: nsw govt


We hear that Premier Iemma on ABC radio noon today 14th June 07 via his Attorney General is consulting the Bar Association and NSW Law Society over the lifetime tenure of the DPP.

That's interesting. We think the Bar and Law Society may potentially have a conflict of interest getting involved in such "consultations".

Why so?

What if say a public watchdog was investigating a minister of the NSW Govt? Just say they were investigating them right now. If they were to make an adverse finding or discover adverse evidence, who would be obliged to proceed with prosecution of the NSW minister?

We think it would be Nick Cowdery, Director of the DPP who would decide to prosecute or not.

So the Law Society, and Bar Association as in effect chief officers of the court for their respective professions could be drawn into "thugging" of a DPP's life tenure, when their real interest if they were fully informed, might be to actually seek as much employment independence from the NSW Govt as possible.

We have been in correspondence with both the Law Society and Bar Association in relation to this.  We notice the Law Society carried the chief agent for Iemma on their Law Society Journal recently (as above).

We trust that doesn't affect their independent approach to the framework and status of employment of the DPP in these curious times.


Postscript #1 15th June 07

The more things change the more they stay the same:


DPP warns against fixed term moves

The New South Wales chief prosecutor has warned the State Government off any moves to limit his term to a fixed seven years.

Nicholas Cowdery has a lifetime appointment as the Director of Public Prosecutions, but the Premier says this is an anomaly and should be changed.

Bob Carr also says that if Mr Cowdery does not plan to move on soon, the Government might have to bring in the reform before his term ends.

Mr Cowdery says limiting the DPP's term could affect the independence of the office with political decisions being made to shore up a second term of employment.

"I would caution the Government to think very carefully before unilaterally altering the conditions against which I serve this office," he said.

"Unilateral interference with the terms of employment of a statutory office holder is not something to be undertaken lightly."


The President of the Bar Association Michael Slattery (whose office we lobbied yesterday on this) was on 702 ABC radio this morning just after 7 am. He pointed out the life time tenure of the DPP came in across many western countries to quarrantine the DPP from political interference in sensitive prosecutions - he didn't say but presumably like ex ALP MP Milton Orkopoulos pre 2007 state election, or say adverse findings by say ICAC of current ministers.

The Daily Telegraph is running a story with the line that the up until now esteemed ICAC have a director on a limited tenure term. The trouble with that example is that the ICAC have become quite mediocre and ineffective from this writer's view. Well who cares about us you might say. Significantly some influential writer(s) at the Murdoch owned Sydney Telegraph have reached a similar conclusion.

The Telegraph were concerned about some matter of public policy or other that wasn't pursued with quite the vigour or acuity that they thought was needed.

 Off the record a very senior journalist at Fairfax has made similar sceptical comments to this writer regarding the success rate or effectiveness of ICAC.

For our part we we worried about consistent failure of the govt over years to seriously prosecute rich farmers of outrageous breach of land clearing laws, and ICAC determination to avoid any flushing out  the sleaze behind that approach at political level.

It's a long time since we had the impressive ICAC's Ian Temby QC rampaging against Nick Greiner's tricky jobs for Indy MP's in the Metherell Affair. In that situation at heart was the protection of the environment concerns of ex MP Metherell who refused to deliver up his vote in parliament to destroy.... forests, in a hung parliament.

If only we had an ICAC with that kind of guts today. Maybe with life time tenure they would?

We suggest the last word should go to this scathing criticism of the federal govt sleazing of the independence of their federal public service by destroying permanent heads of department. Sound familiar?:

14th June 2007 Editorial Sydney Morning Herald

Manacling the mandarins

TENSIONS between politicians and public servants are inherent in the Westminster system, a fact exploited to brilliant effect in television's Yes Minister. But there is nothing funny about what has happened to the relationship between ministers and mandarins, between ministerial advisers and bureaucrats, over recent decades, and particularly under the Howard Government. The politicisation of the federal public service - the imposition of the electoral and ideological priorities of the party in power on supposedly apolitical officials - has gone so far it poses a serious threat to Australian democracy.

The warning bells have been rung by an authoritative insider, Andrew Podger, a former public service commissioner and head of three different federal departments. In the Australian Journal of Public Administration, Mr Podger says changes to the conditions under which departmental secretaries - they used to be called "permanent heads" - are employed, rewarded and penalised have eroded their independence and professionalism. The big turning points were the introductions of job contracts for secretaries (by the Keating government in 1994) and of performance-based bonuses as a percentage of their salaries (in 1999). These changes, and the increasing tendency to give all but "favoured" departmental chiefs contracts of three years, rather than five, have heightened the tension between the requirements that they be both professionally impartial and responsive to government wishes. The result, says Mr Podger, has been greater emphasis on "responsiveness" and a tendency on the part of senior officials to hedge bets, limit the issues on which to take a stand and craft documents more carefully.

It is depressing, given the roles of politicians and public servants in scandals and cover-ups such as the "children overboard" affair, mistreatment of migration detainees and AWB. Doubtless, Mr Podger will be accused of special pleading - he candidly admits having once been denied reappointment and once denied a bonus - but he is persuasive in his calls for a return to five-year contracts as the norm for secretaries, while retaining flexibility, and for the end of performance pay at this level. Unhappily, the Government is as unlikely to listen as it is to face up to the even graver problem posed by unaccountable ministerial advisers.

And now today in their  Editorial today:

Starving the DPP into submission

June 15, 2007
THE Iemma Government has long since stopped listening to its critics in the public service. Labor has installed its apparatchiks as department heads. Now one of the last independent voices is slowly having the gag tied around his mouth. That is the lesson to be drawn from the Government's attempts to bully Nicholas Cowdery, the Director of Public Prosecutions.

The DPP's budget is to be cut and the operations of his office are to be subjected to an extraordinary audit. Mr Cowdery may hold the office for life but the Government is looking at ways to ensure his successors do not. Mr Cowdery is not accused of serious malpractice or incompetence, though the Government would dearly like to trump up an overseas trip he had planned into a scandal. His real - his only - crime is candour. At different times he has been less than wholeheartedly in support of Government law and order policy. He made some tart, but justified, comments about the egregious state plan. But candour, under the Iemma Government, is the worst crime of all. Now Mr Cowdery will suffer for it. Yet the Government is playing a dangerous game.

Its first danger is that by neutering the office of the DPP, one of the few remaining independent sources of advice is silenced. We will not speak of the move as unwise: it is demanding too much to require wisdom in politicians. Let us just call it counterproductive. Governments of all persuasions need their servants to speak the truth without fear. How will they know what is happening in the world around them if all they hear is flattery or their spin played back to them?

Second, and more important, it is dangerous because it places too much power in the hands of the government of the day. The Iemma Government may not have heard of the separation of powers, but the rest of the community has. Once the DPP becomes subject to executive pressure - and that is the intention of the campaign against Mr Cowdery - the prosecutor risks becoming the attack dog of the government of the day. The impartiality of the law is put in danger. Temporary political storms whipped up against individuals or groups - and how many of those have we seen in recent years? - can then become truly oppressive. A DPP on a short leash becomes a direct threat to democracy. The Government should back off immediately.


The Green Party have chimed in here too:

15 June 2007

Govt tries another repellent for DPP pest

Greens MP Lee Rhiannon says the Iemma government*s proposed review of
the tenure of the NSW DPP is designed to strip the chief prosecutor of
protection crucial to guaranteeing his independence and indicates a
rotten government bent on silencing its critics.

*The judicial appointment model for the DPP, which has been adopted
in NSW and other jurisdictions around the world, is key to protecting
the prosecution process from political meddling,* Ms Rhiannon said.

*The government is clearly intent on putting the Director of Public
Prosecutions on limited tenure.

 *The Iemma government*s manoeuvre smacks of a school yard bully
set on securing its ascendancy.

*The review is one more attempt to silence a valuable critic of the
Iemma government*s popularist law and order policies. It follows
Treasurer Michael Costa*s plan to cut the DPP*s budget.

*The government*s bid to control key appointments and bury
information that should properly be in the public domain is eroding
democracy in this state.

"Mr Nicholas Cowdery QC has been an outspoken critic of Labor's justice

*Mr Cowdery had the courage to label the State Plan a 'political
and has resisted government attempts to meddle in his sentencing and
appeal decisions.

*Provisions exist to dismiss the DPP for misconduct that ensure
accountability alongside life tenure.

*Preserving the independence of the DPP is crucial for the quality of
justice in this state.

*Greens MPs will vote against any attempts to downgrade the NSW model
for DPP appointments,* Ms Rhiannon said.

Contact: Lee Rhiannon 9230 3551, 0427 861 568.


Powerful article here by Fairfax's Andrew Clennell 15th June 07

Cowdery has rare freedom to say what he thinks - for now  NICHOLAS COWDERY has been fearless in asserting his independence.

Telegraph story page 2 here, seems to be offline (maybe) - Fixed term moves on prosecutors

Posted by editor at 2:15 PM NZT
Updated: Friday, 15 June 2007 10:51 AM NZT

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