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[2003] SASC 372
respondent. By majority, the summons for judicial review was dismissed and the declaration and orders sought were refused. Doyle CJ dissented and would have declared the Attorney-General’s direction invalid....
The Full Court divided over how far the South Australian Attorney-General’s power to direct the Director of Public Prosecutions extended. All three judges accepted that the Attorney-General could give directions concerning individual matters and could affect the Director’s decision-making. Doyle CJ considered that the specific direction went further: it replaced the Director’s decision with the Attorney-General’s own decision about whether to appeal. Prior and Vanstone JJ disagreed. They read the statute as permitting a direction to make that decision, provided the statutory requirements were met. The majority therefore dismissed Nemer’s judicial review application. The judgment did not decide the merits of the sentence appeal itself.
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2,069 words · generated 28/09/2026
The case concerned the statutory boundary between the independence of South Australia’s Director of Public Prosecutions and the Attorney-General’s power to direct the Director.
4 cited instruments linked from this judgment.
Paul Nemer pleaded guilty to endangering life after discharging a firearm in circumstances where he knew the act was likely to endanger another person’s life and intended that result or was recklessly indifferent to it. The sentencing judge imposed three years and three months’ imprisonment, fixed a non-parole period of two years, and suspended the sentence upon Nemer entering into a bond ([3]–[5]). The account given by Vanstone J records that the guilty plea to the endangering-life count operated as an acquittal on alternative charges of attempted murder and wounding with intent to cause grievous bodily harm ([81]–[82]).
The sentence attracted public and political criticism. The Director publicly stated that he would not appeal, taking the view that an appeal would not succeed ([6], [83]). The Attorney-General obtained advice from the Solicitor-General that grounds existed on which an appeal might succeed ([7]). On 12 August 2003, the Attorney-General issued a written direction under s 9(2) of the Director of Public Prosecutions Act 1991 (SA). It directed the Director to appeal against the sentence on five specified grounds, including alleged errors in the sentencing judge’s treatment of the firearm and the conclusion that the sentence was manifestly inadequate ([8]).
The Director then filed an application for leave to appeal under s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA), expressly recording that it was filed at the Attorney-General’s direction ([9]). Nemer sought judicial review. He argued that the Attorney-General lacked power to direct an appeal in a single identified case, and alternatively that the direction was an invalid exercise of discretion ([1]–[2], [84]).
The Full Court heard the judicial review application at the same time as the leave application. The judges disagreed on the principal statutory question. Doyle CJ would have declared the direction invalid. Prior and Vanstone JJ formed the majority and dismissed the judicial review summons ([64]–[66], [80], [108]). The court did not decide the merits of the sentence appeal; it left the Director time to consider what to do with the separate leave application ([66]).
The majority’s reasoning began with the statutory text and structure. Section 9(1) said that, “[s]ubject to this section”, the Director was “entirely independent of direction or control” by the Crown or a Minister or Crown officer. Section 9(2), however, empowered the Attorney-General, after consultation with the Director, to “give directions and furnish guidelines” in relation to carrying out the Director’s functions. Sections 9(3)–(5) provided for publication and parliamentary scrutiny, with qualifications concerning prejudice and safety ([20], [86]).
Prior and Vanstone JJ treated s 9(1)’s reference to “subject to this section” as important. Independence was qualified by the direction-making power itself. They saw no textual basis for implying a further limit that would confine directions to general guidance or prevent a direction from determining the outcome in an identified case ([69]–[70], [97]–[100]). Section 9(4), which expressly referred to directions or guidelines “relating to individual matters”, supported the conclusion that an individual matter could be the subject of a direction ([97]).
The majority also addressed the word “functions”. It rejected the argument that s 9(2) did not reach the Director’s statutory power to appeal because the section referred to functions rather than powers. Vanstone J considered that functions involved carrying out the relevant activity and that s 7 connected the Director’s powers with the functions they enabled ([98]). Doyle CJ likewise rejected the narrow “powers versus functions” argument, but differed on the scope of the direction-making power ([27]–[28]).
A further issue was whether the Director’s previous decision not to appeal made the question final. Vanstone J rejected that proposition, reasoning that the Act did not make the Director functus officio after an initial decision. The Director could revise a decision at any stage, including after it had been publicly announced ([104]–[105]). The prior decision therefore did not prevent a later direction from operating.
The majority also rejected the claim that the direction impermissibly enlarged the Director’s appeal rights. The statutory right remained the Director’s, and the court retained its ordinary role in deciding whether leave should be granted. The way the Director came to file the notice did not alter the court’s jurisdiction ([59]). Although the direction said “appeal”, the court read it as necessarily including an instruction to apply for leave and to appeal if leave were granted ([60]).
On the alleged unreasonable or improper exercise, Doyle CJ considered that the appeal grounds were reasonable and arguable, and that the Director’s personal assessment of the merits could not invalidate compliance with a valid direction ([61]–[63]). Vanstone J also considered the proposed appeal reasonably arguable and noted that the Attorney-General acted on legal advice ([106]–[108]). The majority’s conclusion on the principal question meant the Director’s earlier view did not control the validity of the direction.
Doyle CJ’s dissent turned on a narrower distinction. He accepted that s 9(2) could permit a direction relating to an individual case, and even one that dictated a decision by specifying the circumstances in which the Director must act. But he distinguished such a direction from one that simply made the appeal decision for the Director ([35]–[45]). In his view, the Attorney-General’s direction did not guide the process or identify factors governing the Director’s decision. It substituted the Attorney-General’s decision for the Director’s, and therefore crossed the boundary of s 9(2) ([48]–[57]).
Before the 1991 Act, the Attorney-General had responsibility for criminal prosecutions in South Australia and exercised the prosecution appeal right. The Act transferred relevant prosecution powers and functions to the Director. Section 7 listed the Director’s powers, including exercising appellate rights, and the CLCA was amended so that the Director, rather than the Attorney-General, could apply for leave to appeal against sentence ([16]–[18], [86]).
The Act did not make the Director wholly insulated from ministerial direction. Section 9 created a qualified independence: the Director was independent subject to the Attorney-General’s authority to give directions and guidelines after consultation. The Act also imposed publication and parliamentary reporting requirements, subject to specified exceptions ([20], [25]).
After this decision, the majority’s interpretation was that the statutory power extended to a direction deciding what the Director must do in a particular case, even where the Director had already decided otherwise. The power was not limited to general directions or procedural guidance. The judgment’s reasoning nonetheless remained tied to the wording and structure of this South Australian statute. Doyle CJ expressly cautioned that the validity of a particular direction would depend on its terms, operation and statutory context ([58]). The judgment therefore did not establish that all statutory direction powers, or all DPP legislation in Australia, should be read in the same way.
Vanstone J referred to other jurisdictions’ legislation, noting examples that expressly barred directions in particular cases and an ACT provision requiring directions or guidelines to be general and not to refer to a particular case ([71] and footnote 2). That comparison formed part of her reasoning about the absence of such an express restriction in the South Australian provision. It should not be treated as a ruling on the operation of those other statutes.
At [20], s 9(1) states that the Director is “entirely independent of direction or control” only “[s]ubject to this section”. In plain English, independence was not absolute: the same section contained a specific power for the Attorney-General to give directions.
At [35], Doyle CJ accepted that a direction could relate to a specific case. He relied in part on s 9(4), which expressly referred to directions relating to individual matters. This is significant because the disagreement was not simply whether individual cases could be covered. It was whether the Attorney-General could decide the particular appeal question himself.
At [49], Doyle CJ described the direction as “purely and simply a claim by the Attorney-General to exercise the power of deciding whether to appeal”. His distinction was between influencing or controlling how the Director made a decision and replacing that decision with the Attorney-General’s own. This was the central point of the dissent.
At [69]–[70], Prior J described s 9(2) as a conditional authority to direct, subject to the statutory requirements. In plain English, he saw the consultation, publication and parliamentary reporting provisions as the limits Parliament had chosen, rather than a basis for implying a separate rule against case-specific decisions.
At [97], Vanstone J concluded that there was no warrant to read an additional limitation into s 9. The majority treated the reference to individual matters in s 9(4) as consistent with a direction applying to a specific case.
At [105], Vanstone J rejected the idea that the Director became functus officio after deciding not to appeal. In plain English, the Director’s first decision did not permanently close the matter or prevent a later revision.
The decision is most directly relevant where a statute gives an office-holder independent decision-making responsibility but also expressly empowers a Minister or Attorney-General to give directions. The particular statutory language matters. In this case, the Court relied on the qualification in s 9(1), the breadth of s 9(2), and the specific reference to “individual matters” in s 9(4) ([20], [35], [97]).
The decision is also relevant where a direction is aimed at a single, named matter rather than a general category, and where the office-holder has already made or announced a contrary decision. The majority held that, under this Act, the direction could determine the decision in the particular case and could operate despite the Director’s earlier public position ([74]–[79], [104]–[105]).
The case should not be read as deciding that a direction is valid merely because it is issued by a Minister or follows consultation. The statutory conditions and the language and operation of the particular direction remain material. Doyle CJ emphasised that direction powers must be interpreted in their own statutory setting and that the terms of each direction require examination ([58]). The court also considered the direction’s connection to a statutory appeal process in which the court retained control over whether leave was granted ([59]–[60]).
The supplied judgment contains no account of later judicial treatment of Nemer v Holloway. It does not identify later cases that applied, distinguished, followed, overruled or reconsidered its majority reasoning. On this source alone, no claim can be made about its subsequent precedential treatment.
The judgment does identify authorities considered during argument about statutory directions. Doyle CJ said those cases were helpful but did not establish a general principle, because each turned on the particular statute and direction ([34]). Vanstone J also discussed authorities concerning powers to give “general directions”, but considered them of limited assistance because the South Australian provision was not confined to general directions ([90]–[96]). Those references explain the reasoning in Nemer; they are not evidence of how later courts treated Nemer itself.
The judgment leaves open how far the majority’s reasoning extends beyond the wording of the South Australian Act. It repeatedly emphasises statutory context. Doyle CJ expressly warned against treating his general observations as rules that would apply regardless of the direction’s content ([58]). The majority’s reasoning was likewise tied to the language of ss 9(1)–(5), including the provision for directions relating to individual matters.
The decision also does not resolve every possible challenge to a direction. The Court rejected the particular arguments before it, but did not decide that a direction supported by legal advice is necessarily reasonable or proper in all circumstances. Doyle CJ specifically said it was unnecessary to decide whether the Solicitor-General’s opinion would itself answer the unreasonableness argument if the direction were within power ([63]).
Nor did the Court determine whether the Director’s application for leave should succeed. It addressed only that reasonable and arguable grounds existed for the purpose of answering the judicial review challenge, and expressly declined to state a view on the merits of the appeal ([62], [66]). The distinction between the validity of the Attorney-General’s direction and the merits of the sentence appeal remained important.
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1 DOYLE CJ: Mr Nemer has issued a summons for judicial review of a direction given by the Attorney-General to the Director of Public Prosecutions pursuant to s 9(2) of the Director of Public Prosecutions Act 1991 (SA) ("the Act"). The direction required the Director to appeal against a sentence imposed by a Supreme Court judge on Mr Nemer. Rather than seeking an order quashing the direction, he seeks a declaration that the direction is invalid. Alternatively, he seeks an order that there has been a "mal-exercise" of the Attorney-General's discretion, if he had power to give the direction. The object of the proceedings is to terminate or stay an application by the Director under s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA) (the "CLCA") for leave to appeal against a sentence imposed by the Supreme Court on Mr Nemer.
2 Two issues arise. First, did the Attorney-General have power under the Act to give the direction? Ms Powell QC, counsel for Mr Nemer, submits that the direction is invalid because the power conferred by s 9(2) of the Act does not authorise the Attorney-General to give a direction that exercised a power vested in the Director in its application to a single and specific case, leaving no scope for the Director to make a decision at all. Second, if there is power, was the exercise of the power invalid having regard to the circumstances in which and the basis upon which the direction was given? Ms Powell argued that the exercise of the power was so unreasonable as to indicate that it had not been exercised for a proper purpose, and so was invalid.
3 Mr Nemer pleaded guilty in the Supreme Court on 7 July 2003 to a charge alleging that he "discharged a firearm, knowing that the act was likely to endanger the life of Geoffrey Robert Williams and intending to endanger Geoffrey Robert Williams' life or being recklessly indifferent as to whether the life of Geoffrey Robert Williams was endangered."
4 In the course of lengthy sentencing submissions the Director said to the judge that in light of all the circumstances a suspended sentence of imprisonment was not "outside" the scope of the sentencing discretion. Later he said that "the discretion is open" and added "... it would not be appealable if your Honour did decide to go down that path."
5 The judge sentenced Mr Nemer to imprisonment for three years three months, and fixed a non-parole period of two years. He ordered that the sentence be suspended upon Mr Nemer entering into a bond. Mr Nemer entered into the bond.
6 The sentence gave rise to a lot of comment in the media and in the community. The Premier of this State, the Attorney-General and the Shadow Attorney-General joined in the debate, criticising the sentence as inadequate. The Premier said that he wanted the Director to appeal against the sentence. While this was happening, the Director stated that in his opinion an appeal would not succeed and that he would not appeal.
7 The Attorney-General sought advice from the Solicitor-General. The Solicitor-General advised the Attorney-General that there were grounds on which an appeal might succeed. The Solicitor-General further advised that the Attorney-General could direct the Director to appeal, exercising a power given to the Attorney-General by the Act.
8 The Attorney-General then gave the following written direction to the Director:
"Director of Public Prosecutions Act 1991
Direction under Section 9(2)
I Paul Holloway, Attorney-General, having consulted with the Director of Public Prosecutions, pursuant to section 9(2) of the Director of Public Prosecutions Act 1991, direct the Director of Public Prosecutions to appeal, pursuant to section 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935, to the Full Court against the sentence imposed upon Paul Habib Nemer by Justice Sulan on 25 July 2003, upon the following grounds which have been settled by the Solicitor General, and I further direct that the Director of Public Prosecutions brief the Solicitor General as counsel on the hearing of any proceedings relating to the appeal.
Grounds of Appeal
Dated this 12th day of August, 2003
PAUL HOLLOWAY
ATTORNEY-GENERAL"
9 The Director then signed and filed a Notice of Appeal, applying for leave to appeal against the sentence. Paragraph 1 of the Notice is as follows:
"The Director of Public Prosecutions, at the direction of the Honourable the Attorney-General pursuant to section 9(2) of the Director of Public Prosecutions Act, 1991 (copy attached), applies to the Full Court for leave to appeal against the sentence pronounced by His Honour Justice Sulan in the Supreme Court on the 25th day of July 2003 upon Paul Habib Nemer."
The proposed grounds of appeal set out in the Notice are those identified by the Solicitor-General in his Opinion.
10 Mr Nemer then issued his summons. The application for judicial review came on for hearing before the court, at the same time as the application by the Director for leave to appeal against the sentence.
11 Ms Powell submitted that the court should decide the application for judicial review before embarking on the Director's application for leave to appeal. As she pointed out, if the direction by the Attorney-General is invalid, it seems likely that the Director will either abandon the application or that leave to appeal would be refused, on the basis that the application is made pursuant to an invalid direction.
12 There is force in that submission, but the court directed that both matters should proceed. We did so because an application by the Director for leave to appeal against sentence should be heard with as little delay as possible. An application that might result in a sentence being increased should not hang over the head of the offender for any longer than necessary. Adjourning the Director's application until the judicial review proceedings were decided might cause significant delay. It is possible that either party would make application to the High Court for special leave to appeal against our decision, causing further delay. It seemed desirable that we should hear the submissions on the Director's application so that we would be in a position, if we thought it appropriate, to give a decision on that application.
13 Mr Nemer's application proceeded, as is usual, on the basis of an affidavit supporting the application. That affidavit was sworn by Mr Nemer, and set out the relevant facts. The Solicitor-General indicated that these facts were not in dispute.
14 Some confusion was caused by the filing by Mr Nemer's solicitors of a Statement of Claim. No direction had been given that the application proceed on pleadings. When the judicial review proceedings came on for hearing, Ms Powell applied for leave to amend the Statement of Claim. Most of the amendments were of no particular significance, and were not opposed. But one of them was to include a new allegation that the Attorney-General's direction to the Director was given "by reason of a Government decision to pursue an appeal", and that on that basis the direction was a breach of the Act. We refused leave to amend. We did so because the so-called Statement of Claim was, in reality, nothing more than a convenient summary of the allegations made by Mr Nemer in support of his application for judicial review. There was no point in amending it to include a matter that was disputed, and that was not supported by any material already before the court, bearing in mind all along that there was no obligation on the Attorney-General to plead to the so-called Statement of Claim, and that a reference to amending it was itself a misnomer.
15 The submissions on the application for judicial review then proceeded. As I understand it, the argument that the direction by the Attorney-General was invalid on the ground that it was given as a result of a decision by the Government (whatever precisely that might mean) was not pursued.
16 The Act was enacted in 1991. It establishes the Office of Director of Public Prosecutions, and provides for the Director to be appointed by the Governor: s 4(2). An appointment is for a term of seven years: s 4(4). An appointment can be terminated by the Governor but only for one of the specified causes: s 4(8). The Director has security of tenure. Powers are conferred on the Director by s 7(1). They include the power to institute, to prosecute and to terminate charges for offences against the law of the state, and power to deal with matters ancillary to the prosecution of offences. In particular, by s 7(1)(g) the Director is given power:
"to exercise appellate rights arising from proceedings of the kind referred to above...".
17 The powers conferred on the Director give the Director responsibility for and control over the prosecution of criminal and related proceedings.
18 By s 352(1)(a)(iii) of the CLCA the Director can appeal against a sentence passed on conviction "with the leave of the Full Court". The Director's application for leave to appeal against the sentence passed on Mr Nemer is made under that provision.
19 Section 8 of the Act provides that the Director must consult with the Attorney-General with respect to the exercise of the Director's "powers or functions" if requested to do so, and that the Attorney-General must consult with the Director on those matters if requested to do so by the Director.
20 Section 9 of the Act is the section under which the Attorney-General gave the direction in question. It provides as follows:
" 9.(1) Subject to this section, the Director is entirely independent of direction or control by the Crown or any Minister or officer of the Crown.
(2) The Attorney-General may, after consultation with the Director, give directions and furnish guidelines to the Director in relation to the carrying out of his or her functions.
(3) Directions or guidelines under this section-
(a) must, as soon as practicable after they have been given, be published in the Gazette; and
(b) must, within six sitting days after they have been given, be laid before each House of Parliament.
(4) Subsection (3) need not be complied with in relation to directions or guidelines under this section relating to individual matters if, in the opinion of the Attorney-General, disclosure may be prejudicial to an investigation or prosecution, but, in that case, the directions or guidelines must be published in the Gazette, and laid before each House of Parliament, as soon as practicable after the matter is determined or otherwise completed.
(5) If the Attorney-General is satisfied that disclosure under this section would place human life or safety at risk or cause some other form of severe prejudice to any person, the Attorney-General may withhold material from disclosure so far as necessary to avoid that consequence."
21 The effect of the Act, and of s 7 in particular, is to vest in the Director certain powers and functions related to criminal prosecutions previously vested in and exercisable by the Attorney-General.
22 The Office of Director of Public Prosecutions is well-known in Australia. The Second Reading Speech by the Attorney-General (Government Gazette, Legislative Council, 21 August 1991 page 358) indicates that the reasons for establishing the Office, and conferring on it the powers and functions previously exercised by the Attorney-General, were briefly as follows.
23 First, and most importantly, to give control over criminal prosecutions to a person who is seen to be independent of political or ministerial control. By convention the Attorney-General exercised the same powers independently of directions from individual Ministers, including the Prime Minister or Premier, and from Cabinet. But this was not generally understood. Establishing the Director of Public Prosecutions as a statutory office holder with responsibility for criminal proceedings was intended to make manifest the independence of the decision maker.
24 Second, the purpose of the Act was to encourage the development of an independent, professional body of prosecutors with support staff. The creation of a statutory office, and the statutory recognition of the powers and functions of the office, no doubt was regarded as encouraging this development by acknowledging the importance of the office.
25 But it remained the case that prosecutions are brought on behalf of the executive government and in the public interest. The administration of criminal justice, and the exercise of the prosecutorial function, is as important as it is sensitive. The public and the Parliament have an interest in its discharge. There is a long tradition of the Attorney-General being answerable in Parliament for the exercise of the Attorney-General's prosecutorial functions. And so the Act, by s 9 in particular, and to a lesser extent by s 8, qualified the Director's independence by conferring a measure of control on the Attorney-General. It was appropriate to vest that control in the Attorney-General alone, having regard to the long tradition that the Attorney-General exercised powers in this area independently of control by other Ministers.
26 The central question in this case is the scope of the power, conferred by s 9 on the Attorney-General, to give directions and to furnish guidelines to the Director.
27 Ms Powell submitted that s 9(2) does not authorise a direction relating to the exercise of a power. The section refers only to a direction "in relation to the carrying out of his or her functions." The power to appeal is conferred by s 7(1), which refers to "powers", and not to functions.
28 Although the drafting of the provisions lends some support to the submission, I do not accept it. I consider that the exercise of a power in a particular case is the carrying out of a function, and so the direction is in relation to the function of appealing. The power "to exercise appellate rights" is exercised by carrying out or performing the function of appealing. In any event, the Act appears to me to use "power" and "function" interchangeably: see in particular s 7(1)(h), s 7(2) and Schedule 1 cl 2 and Mercantile Mutual Life Insurance Co. Limited and Another v Australian Securities Commission and Others (1992) 40 FCR 409 at 422. I consider that s 9(2) applies to the Director's powers and functions.
The power to give directions and furnish guidelines
29 A more substantial argument is that a valid direction under s 9(2) cannot be given in terms restricted to a particular case or to a single exercise of a power; in terms that leave the Director with no discretion at all to exercise in relation to the carrying out of the power or function in the case in question, or in terms that require the Director to reverse or to revoke a decision already made by the Director. The direction in question fits each of those suggested criteria for invalidity.
30 To some extent the submission was based on the proposition that the Act is intended to establish the Director as an office holder independent of direction or control in the exercise of statutory powers and functions, and to place the Director in a position like that of the Attorney-General before the Act was enacted.
31 The answer to that general proposition is that s 9(1) qualifies the independence of the Director, and one must determine the extent of the statutory qualification. One cannot start by assuming that a certain degree of independence or immunity from direction is guaranteed. Section 9(1) confers independence from direction or control "[s]ubject to this section".
32 The Director's independence from direction and control is a qualified one, because s 9(1) so provides. Action by the Attorney-General that falls within the scope of s 9(2) is necessarily action contemplated by Parliament, even though it qualifies the Director's statutory independence. To the extent that there is a clash between the impact of action by the Attorney-General under s 9(2), and independence from direction and control, s 9(1) indicates that the action taken under s 9(2) is to prevail over that independence.
33 This leads to the odd result that Parliament has described the Director's position ("entirely independent of direction or control") with words that do not necessarily reflect the end result of the exercise by the Attorney-General of his powers. But that is the consequence of Parliament having qualified the Director's independence.
34 Ms Powell referred to a number of decisions in the Federal Court, dealing with the scope of a power to give directions affecting the exercise of a statutory power: see Zayen Nominees Pty Ltd v Minister for Health (1983) 47 ALR 158 at 188-189; Aboriginal Development Commission v Hand (1988) 15 ALD 410; Perder Investments Pty Ltd v Lightowler [1990] FCA 239; (1990) 25 FCR 150 at 158-159; Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 114 ALR 340 at 346-347; Smoker v Pharmacy Restructuring Authority and Others [1994] FCA 1487; (1994) 53 FCR 287; Aboriginal Legal Service Ltd v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 565; and National Aboriginal & Torres Strait Islander Legal Services Secretariat v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 287 at - [38]. Consideration of the reasoning in those cases is helpful, but in the end each case turns on the particular statutory context and the terms of the direction in question. They do not establish any general principle.
35 I consider that the power conferred by s 9(2) is not limited to the giving of general directions, that is, directions that are not expressed to apply to a specific case or matter or exercise of power. First, because it is not in terms so limited. Second, because s 9(4) states that a direction may be "relating to individual matters". That must contemplate a direction that on its face deals with an individual matter. It could not be limited to general directions that turn out to have an application to an individual matter. That would be true of any general direction that falls for consideration by the Director. Also, s 9(4) contemplates that the decision whether the disclosure of the direction or guideline may be prejudicial to an investigation or prosecution can be made at the time when the direction or guideline is given or furnished. That must contemplate a direction which, when given, is applicable to a particular matter, enabling the Attorney-General to decide if disclosure of the direction will prejudice an investigation at prosecution. That in turn indicates that a direction or guideline may relate to a specific and identified matter.
36 This conclusion follows because the Act contemplates a direction relating to an individual matter, and because such a direction, in my opinion, leaves the Director "entirely independent of direction or control". As will appear, I consider that the statutory concept of independence is one that relates to the case by case exercise of the Director's powers and carrying out of the Director's functions.
37 Accordingly, a valid direction could have been given to the Director to consider whether, in light of the Solicitor-General's opinion, the Director considered it desirable or appropriate to seek leave to appeal against the sentence imposed on Mr Nemer.
38 I also consider that s 9(2) permits a direction that might cause the Director to reverse or to revoke a decision by the Director. For example, a direction of the kind just suggested, given when the Attorney-General gave the direction in question, would have caused the Director to reconsider his decision not to appeal, and might result in him reversing that decision. I do not consider that such a direction would be inconsistent with the statutory concept of being independent of direction or control.
39 I also consider that s 9(2) contemplates a direction that might leave the Director with no discretion to exercise or no decision to make in carrying out a function derived from s 7(1) of the Act in a particular case.
40 Ms Powell argued that s 9(2) of the Act goes no further than to allow a direction that will affect the exercise of a statutory power, or the carrying out of a statutory function. For example, she submitted that the Attorney-General might direct the Director to have regard to a particular matter or matters in deciding whether to appeal, or might direct the Director to give particular weight to particular matters in making the decision. However, she argued, the Attorney-General could not give a direction that had the effect of requiring the Director to appeal or not to appeal if a particular factor was present or absent. So, she argued, a direction to appeal against any sentence for rape, if the sentence was less than two years imprisonment, or a direction not to appeal against a sentence if more than four weeks had elapsed since the sentence was passed, would be invalid. Each of those hypothetical directions would, in effect, control the exercise of the statutory power and dictate how the function of appealing was to be exercised in a case falling within the direction.
41 To some extent this submission was based on the general proposition, already rejected by me, to the effect that the Act makes the Director independent of direction or control, and that any such direction was necessarily inconsistent with the statutory concept. As I have said, the statutory concept of independence is qualified by s 9(1) itself, and so one cannot approach the meaning of s 9(2) by making an assumption which is, in effect, that the statutory concept is not qualified.
42 Ultimately, as I understand it, this particular submission by Ms Powell rests on the proposition that a direction under s 9(2) cannot control or dictate the exercise by the Director of a statutory power or the carrying out of a statutory function in a particular case. The most a direction can do is to establish a procedure for doing so, or to guide or to influence the exercise of the statutory power or the carrying out of the statutory function.
43 The difficulty that the submission confronts is the difficulty in finding in s 9(1) or in s 9(2) a basis for so restricting the power to give directions. I agree that the limit on the power suggested by Ms Powell would assure to the Director a greater measure of independence than would an approach which would allow the giving of a direction of the kind now under consideration. But when one bears in mind that a direction can be mandatory, as a matter of ordinary language, there is no apparent basis for saying that Parliament contemplated a mandatory direction (for example, a direction that the Director must consider a certain matter) but not a direction which also, when a case falls within its scope, will dictate the decision to be made. Such a direction is one in relation to the carrying out by the Director of his functions. It would leave the Director to make the decision in question, although a direction that requires the Director to appeal or not to appeal if a particular matter is present substantially qualifies the Director's independence. It may be that if the Attorney-General's power were limited to the giving of "general directions", one could accept Ms Powell's proposition. However, the power is not so limited, and if anything the contrast between a power to give directions and a power to furnish guidelines suggests that Parliament contemplated directions that would, in a case falling within their scope, dictate the Director's decision.
44 Accordingly, I do not accept the submission that s 9(2) does not allow the Attorney-General to give a direction which, while expressed in general terms, has the capacity to dictate the Director's decision in a particular case falling within the direction.
45 To summarise the position so far, I consider that the Attorney-General can give a direction that refers to and is limited to a particular case, can give a direction expressed in general terms that leaves the Director with no discretion to exercise in relation to the exercise of a statutory power or the carrying out of a statutory function, and can give a direction that might cause the Director to reconsider or to reverse a decision already made. Indeed, an appropriate general direction that was expressed to apply to cases already considered by the Director might, in effect, require the Director to reverse or to revoke a decision already made. An instance of such a direction would be a direction to the Director not to appeal or to continue with an appeal against sentence in any case where more than four weeks had elapsed between the passing of the sentence and the decision to appeal. Although it is not strictly necessary to decide it, my present view is that such a direction could validly be made to apply to appeals already on foot.
46 In short, I consider that the issue raised by this case is not answered by an argument that, in the end, attempts to limit the scope of the Attorney-General's power to give directions by subjecting that power to limits drawn from a concept of independence. Parliament has put the position the other way around.
47 But even that conclusion does not dispose of the present case.
48 The direction in question is not a direction about the process or procedure to be followed by the Director in carrying out his function of appealing. It is not a direction about how a decision is to be made in carrying out that function. It differs from a direction that identifies matters that will, in a particular case, dictate or require a particular decision by the Director.
49 The direction in question, on its face and in its operation, simply exercises, by direction, the Director's function of deciding whether to appeal against the sentence imposed on Mr Nemer. As the facts disclose, the direction substitutes a decision by the Attorney-General for a decision already made by the Director. As I have indicated, I do not regard that result as in itself fatal to validity. But the point to emphasise is that the direction in question is not a direction that tells the Director how to carry out the function of deciding whether to appeal in the case of Mr Nemer, or how to exercise that power. It is not a direction that tells the Director what matters should or must be considered in deciding whether to appeal. It is purely and simply a claim by the Attorney-General to exercise the power of deciding whether to appeal, and in that respect to carry out the Director's function. Putting it a little differently, the direction is an individual or single exercise of the Director's function of appealing.
50 I consider that this feature of the direction takes it beyond the scope of s 9(2) of the Act.
51 First, taking the words of s 9(2), they are apt to create a power to give a direction that bears on or affects or controls the carrying out by the Director of a statutory function. If the intention of Parliament was to enable the Attorney-General to carry out the Director's function (by direction) in a single case, by directing the decision to be made in that case, I would have expected the provision to refer to the Attorney-General being able to exercise the powers and functions given to the Director. The idea of directing the Director to make a particular decision is, I consider, an odd one.
52 Second, if s 9(2) permitted such a direction, it would permit the Attorney-General to exercise the powers conferred by s 7 of the Act and to carry out the functions that flow from those powers. It would permit the Attorney-General to do so on a case-by-case basis. It may be difficult to draw the line as a matter of logic, but I consider that there is a distinction of substance between a direction identifying matters that will dictate a decision in a case falling within the scope of the direction, and a simple making of the decision in a particular case.
53 I consider that s 7 of the Act is to be read as, by implication, withdrawing from the Attorney-General the powers that it confers on the Director. It is inconsistent with the scheme of the Act, creating an office-holder with security of tenure to exercise identified powers previously held by the Attorney-General, to treat the Act as leaving those same powers vested in the Attorney-General and able to be exercised by him at will. In any event, s 352(1)(a)(iii) of the CLCA now confers on the Director the power to apply for leave to appeal against sentence.
54 Parliament has removed the powers or functions in question from the Attorney-General, and conferred them on the Director, but has given the Attorney-General the power to give directions and furnish guidelines in relation to the exercise of the relevant function.
55 The purpose of the provisions is achieved by reading the Attorney-General's power as not extending as far as the power previously held by the Attorney-General. The Attorney-General no longer has the power simply to make a decision in a particular case that an application will be made for leave to appeal. That is the power removed by s 7. That power is replaced by a narrower power, which is a power to give directions and to furnish guidelines to the Director in relation to the function of appealing.
56 The direction in question is a simple exercise of the power "to exercise appellate rights", although done by direction to the Director. That is a power that the Attorney-General no longer has.
57 Read in its context, I consider that s 9(2) contemplates a direction that affects the carrying out of a function, even to the extent of a direction the application of which might dictate a decision in a particular case, but not a direction that is nothing other than the carrying out of the Director's function in a particular case.
58 In explaining my conclusion that the direction in question is invalid, I have made some general observations about the scope of the power conferred by s 9(2). However, as the cases cited by Ms Powell illustrate, in the end it will remain necessary to consider the validity of any particular direction in the light of the terms of the direction, how it operates and in light of the language of s 9 of the Act. I make this point simply to emphasise that my general observations should not be treated as general rules that will, come what may, apply to any direction regardless of its content.
59 Another argument advanced by Ms Powell was that allowing the Attorney-General to give a direction that would have the effect of requiring the Director to institute an appeal would be an invalid attempt to expand the scope of the Director's right of appeal under the CLCA against a sentence. I do not accept that submission. The CLCA vests in the court jurisdiction to consider an appeal against sentence by the Director. An appeal instituted by the Director, as a result of a decision by the Director affected by direction under s 9(2) remains an appeal by the Director, to be considered by the court in the ordinary way. The jurisdiction of the court, and the power conferred on the Director, are not affected by the process by which the Director comes to lodge a notice of appeal.
60 Ms Powell argued that s 352(1)(a)(iii) of the CLCA confers on the court the jurisdiction to consider an application by the Director for leave to appeal against sentence, and to consider an appeal by the Director only if leave is given. She pointed out that the direction is to appeal, and she argued that it is ineffective because an appeal by the Director must be preceded by the grant of leave to appeal. The answer to that submission is that the direction to appeal necessarily implies a direction to apply for leave to appeal. The direction would have been better expressed if expressed as a direction to seek leave to appeal, and to appeal if leave were granted, but the direction is nevertheless valid.
61 Finally, Ms Powell argued that the Attorney-General had not validly exercised the power conferred by s 9(2) of the Act because the decision to appeal was so unreasonable that, on its face, it could not have been made in a proper exercise of the power to give a direction to appeal, if that power existed. She pointed to the fact that the Director himself had stated publicly that he would not appeal because an appeal had no prospect of success. The Director, she argued, was appealing simply as a matter of obedience to the direction by the Attorney-General, and that could not be a proper basis for a decision to appeal. She also argued that the appeal had no merit, and that was another reason for concluding that the decision to appeal was one that no reasonable person could have made in the circumstances, and so could not have been made in a proper exercise of the statutory discretion.
62 As to the latter point, the short answer is that having heard the submissions on the application for leave to appeal, I am satisfied that there are reasonable and arguable grounds of appeal. It cannot be said that the merits of the matter are such that a decision to seek leave to appeal is unreasonable, let alone so unreasonable as to indicate that the decision could not have been made for a valid purpose. As to the other points, if the Attorney-General can give a direction to the Director that will dictate a decision in a particular case, (and I consider that the Attorney-General can give such a direction), it must be possible for a case to arise in which the Director would not appeal were the matter left to his decision alone, and in which the Director appeals only because of the operation of a direction on the decision making process. In such a case the Director's views about the merit of the appeal are irrelevant. In such a case the appeal is instituted as a result of the operation of a valid direction. The Director's views about the merits of the appeal cannot affect the validity of the decision made pursuant to the direction.
63 I add that if the direction in the present case had fallen within the scope of s 9(2) the fact that it was given on the basis of an opinion by the Solicitor-General that the appeal had merit, might of itself be of sufficient answer to the submission that the exercise of the power to give a direction was so unreasonable as to indicate that the power had not been exercised for a proper purpose. It is not, however, necessary to decide this point.
64 I would make an order declaring that the direction by the defendant Paul Holloway, as Attorney-General, given to the Director of Public Prosecutions, dated 12 August 2003 and published in the Government Gazette of 13 August 2003 is invalid.
65 That raises for separate consideration the fate of the application by the Director for leave to appeal against the sentence imposed on Mr Nemer. That application is made in separate proceedings, but it is convenient to refer briefly to it here, the application having been heard at the same time.
66 It is not appropriate at this stage to express a view on the merits of the appeal. I would allow the Director a short time within which to consider what he proposes to do in relation to the application for leave to appeal.
67 PRIOR J: I agree with the Chief Justice that the Attorney-General can give a direction that refers to and is limited to a particular case, can give a direction expressed in general terms that leaves the Director with no discretion to exercise in relation to the exercise of a statutory power or the carrying out of a statutory function, and can give a direction that might cause the Director to reconsider or to reverse a decision already made. However, I do not agree that it is beyond the power of the Attorney to give the direction given in this case. In my view, the power of the Attorney includes a power to direct a decision to be made in a particular case, whether the Director has already made a decision in such a case or not[1].
68 The Chief Justice considers that a direction which is an individual or single exercise of the Director's function of appealing is beyond the scope of s 9(2) of the Director of Public Prosecutions Act 1991. His Honour says that if the intention of Parliament was to enable the Attorney-General to carry out the Director's function by direction in a single case, by directing the decision to be made in that case, he would have expected the provision to refer to the Attorney-General retaining and being able to exercise the powers and functions given to the Director.
69 Section 9(2) is not cast in terms of retained powers. It is a provision particularising the qualification upon the Director's new-found powers. In substitution for the Attorney's former powers this subsection confers a conditional authority to direct. The only restraint upon the new powers to direct and furnish guidelines is that which is particularised within s 9(2) and s 9(3). Neither of those provisions denies a particular power to direct in a particular way.
70 The Attorney's powers differ from their predecessors. His present power is a power to direct and furnish guidelines to the public officer who has gained powers lost by the Attorney. In lieu of direct power comes the indirect, couched in the language of directions and guidelines themselves subject to conditions precedent and subsequent. Preceding any exercise of the Attorney's power to direct is the duty to consult. Subsequent to the exercise of any power to direct in a matter, general or special, is the duty to report publicly and to the Parliament. Parliament has not limited the Attorney's power to direct other than by the express terms of s 9 itself.
71 The Chief Justice considers "the idea of directing the Director to make a particular decision" to be "an odd one". However, that power exists. It has not been denied by an express denial of that specific power. In the legislation of most other states and territories there are provisions which expressly deny the
power to give direction or guidelines "in respect of a particular case[2]". In my view, the need for such a provision is obvious, should Parliament intend to deny a particular power to direct. No distinction is drawn within the relevant provisions of the statute that narrows the broad meaning of the word "direction". That meaning is "instruction", particularly since there is a reference to guidelines as well as directions in s 9(2).
73 Whilst I would not describe the idea of directing the Director to make a particular decision as "an odd one", it could be seen as exceptional. Parliament has not limited the power to direct other than by the conditions precedent and subsequent to the exercise of the power. Nonetheless, it may well have assumed that such powers will be exercised sparingly and only for good cause given the creation of the office of Director and an assumption that the Director will discharge his duties independent of day-to-day interferences.
74 I do not think the Attorney's present power to direct is properly described as "a claim by the Attorney-General to exercise the power of deciding whether to appeal, and in that respect carry out the Director's function". The direction given is not "an individual or single exercise of the Director's function of appealing". It is a direction within power, complying with conditions and having the effect of reversing a decision of the Director. Parliament has not denied that power of direction to the Attorney in the new legislative scheme.
75 Any "distinction of substance between a direction identifying matters that will dictate a decision in a case falling within the scope of the direction, and a simple making of the decision in a particular case" is not a relevant distinction to draw. A direction can be general or specific and have an effect upon a decision or give rise to a consequence. A direction that is nothing other than the carrying out of the Director's function in a particular case is still a direction.
76 Whilst I agree that s 7 of the Act is to be read as, by implication, withdrawing from the Attorney-General the powers that it confers on the Director, I do not "treat the Act as leaving those same powers vested in the Attorney-General and able to be exercised by him at will". The Act has conferred a special conditional power on the Attorney-General. That power is a power to direct and furnish guidelines to the Director in relation to carrying out the Director's functions. In the process Parliament has not "given the Attorney-General the power to give directions and furnish guidelines in relation to the exercise of the relevant function". It has given to the Attorney the power to give directions and furnish guidelines to the Director "in relation to the carrying out of (the Director's) functions". The direction given in this case answers that description. In my view, it is not a relevant question to consider whether the Attorney-General still has a power simply to make a decision in a particular case that an application will be made for leave to appeal. Whilst that power has been removed by s 7 and amendments to s 352 of the Criminal Law Consolidation Act 1935, the substituted power is the power to direct. That power is not qualified in a manner which denies the power to direct in the way that has occurred in this case.
77 The Chief Justice says that the direction given here "is a simple exercise of the power 'to exercise appellate rights', although done by direction to the Director". His Honour says that is a power that the Attorney-General no longer has. True it is that the Attorney's power is no longer a power to exercise appellate rights. It is now a conditional power to direct. Earlier powers to direct were the Attorney's alone with respect to his own authority. Those powers were not those of any public officer acting alone. Now the power to direct can have an effect on the Director's power to exercise appellate rights.
78 Before the 1991 legislation any public officer could be a delegate of the powers which were then the Attorney's. Now the Attorney's powers are as already expressed, powers to direct and furnish guidelines to a public officer with respect to powers and functions which are now the public officer's and no longer the Attorney's. This new found power is in lieu of previous authority. It is a power to give directions to the Director "in relation to the carrying out of (the Director's) functions". So understood, the direction given here is not "a simple exercise of the power 'to exercise appellate rights'". It is a specific direction in relation to a power and function of the Director authorised by the conferral of power upon the Attorney that is not the subject of any exception.
79 The direction given in this case cannot be denied as one in relation to the carrying out of the Director's function of the exercise of appellate rights previously conferred upon the Attorney-General but transferred to the Director at the same time as the Director of Public Prosecutions Act came into force. The present power of the Attorney to direct extends to any of the Director's present powers or functions. There is a relationship between the direction and the Director's power to appeal. That suffices to make the direction valid in the absence of an express particular restraint on the general power to direct[3]. None is expressed. None can be implied.
80 I agree with Justice Vanstone. The declaration and orders sought should be refused and the application for judicial review dismissed.
81 VANSTONE J: On 25 July 2003, Paul Habib Nemer was sentenced in the Supreme Court for endangering life, contrary to section 29(1) Criminal Law Consolidation Act 1935 ("CLCA"). The particulars of the charge were:
"Paul Habib Nemer and [K] on the 19th day of August, 2001 at Unley, without lawful excuse, discharged a firearm, knowing that the act was likely to endanger the life of Geoffrey Robert Williams and intending to endanger Geoffrey Robert Williams's life or being recklessly indifferent as to whether the life of Geoffrey Robert Williams was endangered."
82 The information as filed before the court contained three alternative charges in relation to the same act. Endangering life was count 3. The acceptance by the Director of Public Prosecutions ("Director"), Mr PJL Rofe QC, who appeared personally, of the plea of guilty in respect of count 3 operated by virtue of section 285B CLCA as an acquittal in respect of count 1, attempted murder and count 2, wounding with intent to do grievous bodily harm.
83 Following the imposition of the sentence there was a great deal of discussion of it in the media. In the course of that the Director announced that he did not propose to institute an appeal against the inadequacy of the sentence. On 12 August 2003 the then Acting Attorney General, Mr Holloway MLC, purported, pursuant to s 9(2) of the Director of Public Prosecutions Act 1991 ("DPP Act") to direct the Director to appeal against the inadequacy of the sentence upon certain grounds. The written direction asserted that the consultation with the Director, required by s 9(2), had occurred. On the same day and in compliance with that direction, the Director filed a "Notice of Appeal for Leave to Appeal Against Sentence by the Director of Public Prosecutions". That was done by means of the lodging of a Form No. 2 pursuant to the Supreme Court Criminal Appeal Rules and s 352 CLCA. The document followed the wording of that form, except that the application was expressed to be "... at the direction of the Honourable the Attorney-General pursuant to s 9(2) of the Director of Public Prosecutions Act, 1991 ...".
84 On 1 September 2003 Mr Nemer filed an inter partes summons naming Mr Holloway and The Honourable the Attorney-General, at this time The Honourable Mr Atkinson MP, as defendants,[4] together with an affidavit. In the affidavit, Mr Nemer sought the following orders:
"10.1 A declaration or an order by way of judicial review that the direction to appeal given by the first defendant to the DPP was given in breach of S9 of the DPP Act ("the first declaration or order").
10.2 Alternatively, if contrary to the plaintiff's contentions the first defendant had a discretion to give the direction to appeal, a declaration or an order by way of judicial review that the exercise of the discretion was a mal-exercise of the discretion and amounted to no exercise at all ("the second declaration or order").
10.3 An order directing the second defendant to withdraw the direction to the DPP."
85 The application for judicial review was referred into the sessions of the Court of Criminal Appeal in which the Attorney-General's application was to be heard. In due course the court determined that Mr Nemer's application and the Attorney-General's application for leave should be argued in full, but that in the event that the court found in favour of Mr Nemer's application, it would deliver that judgment and then allow the parties to be heard further.
86 The arguments advanced in support of Mr Nemer's application raise questions of statutory interpretation of the DPP Act. That Act came into operation on 6 July 1992 and remains essentially in its original form. Prior to that date the Attorney-General was responsible for criminal prosecutions under state law in South Australia. From 11 December 1980, when prosecution appeals against sentence to the Full Court were provided for, it was the Attorney-General who exercised that right. He did so by virtue of s 352(2) CLCA. The DPP Act amended s 352(2) CLCA (as it then was) so that the right to appeal then accrued to the Director instead of the Attorney. The sections of the DPP Act touched upon in argument are as follows:
7.(1) The Director has the following powers:
(a) to lay charges of indictable or summary offences against the law of the State;
(b) to prosecute indictable or summary offences against the law of the State;
(c) to claim and enforce, either on behalf of the Crown or other persons, civil remedies that arise out of, or are related to, prosecutions commenced by the Director;
(d) to take proceedings for or in relation to the confiscation of profits of crime;
(da) to institute civil proceedings for contempt of court;
(e) to enter a nolle prosequi or otherwise terminate a prosecution in appropriate cases;
(f) to grant immunity from prosecution in appropriate cases;
(g) to exercise appellate rights arising from proceedings of the kind referred to above;
(h) to carry out any other function assigned to the Director by any other Act or by regulation under this Act;
(i) to do anything incidental to the foregoing.
(2) The Attorney-General may, by notice in the Gazette, transfer to the Director any powers or functions of the kind referred to above, or any power to consent to a prosecution, vested in the Attorney-General by an Act passed before the commencement of this Act.
(3)-(8) (Irrelevant)
Consultation
8.(1) The Director must, if requested to do so by the Attorney-General, consult with the Attorney-General with respect to the exercise of the Director's powers or functions.
(2) The Attorney-General must, if requested to do so by the Director, consult with the Director with respect to the exercise of the Director's powers or functions.
Independence of Director
9.(1) Subject to this section, the Director is entirely independent of direction or control by the Crown or any Minister or officer of the Crown.
(2) The Attorney-General may, after consultation with the Director, give directions and furnish guidelines to the Director in relation to the carrying out of his or her functions.
87 Ms B Powell QC, of senior counsel for the plaintiff, Mr Nemer, submitted, in summary, that in ss 7 and 9 of the DPP Act the draftsman clearly distinguished between the Director's powers and his functions, and that it was only the latter which could be the subject of directions and guidelines, which might be given and furnished by the Attorney-General. Thus, she submitted, the Director could be directed as to how to carry out a function but not whether to exercise it. She put that the Director's powers and the discretion given him in exercising them was fettered only by the obligation to consult with the Attorney-General, if required, and the obligation to obey directions and guidelines in relation to functions.
88 Ms Powell argued that the use of the singular "direction" in subsection (1) was to be contrasted to "directions" in subsection (2) and that the latter must be read to mean something less than control.
89 Further, it was put that the use of "and" in "directions and guidelines" suggested that these two nouns should be read as having effectively the same meaning. She argued that the use in subsection (4) of the phrase "directions or guidelines under this section relating to individual matters ..." indicated no more than an acceptance by the draftsman that general directions would have an impact on the processing of individual matters.
90 In support of her argument that the word "directions" in subsections (2) and (3) should be read down to amount to no more than binding guidelines, Ms Powell referred to several decisions dealing with the expression "general directions". In Aboriginal Legal Service Ltd v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 565 the Federal Court considered the validity of certain directions given by the Minister to ATSIC pursuant to the power to issue general directions in relation to its function of formulating and implementing, and funding by way of grant, certain programmes. In striking down one of the conditions under consideration, each member of the court was at pains to emphasise the importance of the adjective "general" in the expression describing the relevant power. At page 567 Black CJ made the observation:
"A power to give general directions in accordance with which a body such as the Commission must exercise powers conferred upon it by the Parliament may well fall short of permitting directions that have the practical effect of giving to another person what amounts to the capacity to veto the exercise, in a particular case, of any of the powers conferred. In my view, this will be the case where, as here, the "veto" is exercisable by reference to that other person's own findings and opinions on a matter committed to the decision of the Commission. To give such a direction is not to give a general direction as to the exercise of a power by a body; rather, it is to take away elements of the exercise of a power that has been committed to a particular body and to commit them to a person upon whom the Parliament has not conferred the power."
91 In Aboriginal Development Commission v Hand (1988) 15 ALD 410 Davies J considered a power given to the Minister for Aboriginal Affairs to give "general directions" to the applicant in relation to the movement towards the establishment of a new body (ATSIC) which would take over some functions of the applicant. Of that expression, Davies J said (at 414):
"In many Federal statutes the term "general directions" appears. The adjective "general" indicates that the direction must be one which is not directed merely to a particular case or to a particular decision but is one to be applied generally. In this respect, a general direction is similar to a binding guideline. It sets the structure of activity or decision-making. However, both a guideline and a general direction may be more or less specific, having regard to the terms which it uses and the concept which it conveys."
92 In my view, cases such as these dealing with the expression "general directions" do not advance the plaintiff's argument. The expression under consideration is relevantly different.
93 Ms Powell also referred the court to Perder Investments Pty Ltd v Lightowler [1990] FCA 239; (1990) 25 FCR 150. This case involved the decision of a licensing officer of the Queensland Fish Management Authority (QFMA) refusing to transfer a fishing boat licence from a licensee to the applicant. The relevant Act provided for a statutory authority to delegate its powers to approve such a transfer to the QFMA. In exercising its delegated powers the QFMA was to be subject to the directions of the Authority. In striking down the refusal, Spender J observed that the direction in fact given and complied with amounted to a blanket prohibition of the transfer of licences, which thereby robbed the QFMA of any discretion.
94 Of similar effect was the decision of the Federal Court in Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 114 ALR 340. There, in purported exercise of his power to give directions to the Departmental Secretary who exercised a statutory discretion as to waiver of the Commonwealth's right to recover debts, the Minister purported to confine the power to waive to only those cases where very specific and limited circumstances obtained. The court's decision was found to turn on the proper interpretation of the provision enabling the giving of directions, seen in the context of its legislative history. The Full Court observed (347):
"Nor is the circumstance that the word "directions" is used to describe the minister's intervention of overriding significance. It is a word of varying import deriving much from the context in which it appears. It will, in appropriate circumstances, signify authoritative or binding instructions but, in other circumstances, will signify nothing more than guidelines."
95 In essence the purported direction was such as to deny the Secretary the power given him by the statute and was therefore bad.
96 I do not consider that any of these authorities are of particular assistance in interpreting the DPP Act. We are not dealing with a statutory power to give only general directions, nor a delegation of decision-making authority, nor with a direction which is so wide reaching as to entirely undermine the Director's role in using the powers and carrying out the functions allocated to him under the DPP Act. Nor indeed is the direction in issue such as to finally determine the right to a grant, a licence, a waiver of debt or any other such matter. The effect of the direction under consideration is merely to cause the Director to institute proceedings in which the court is asked to intervene in a sentencing matter.
97 While the spectre of the Attorney-General regularly playing a decision-making role in the work of the Office of the Director of Public Prosecutions may be unpalatable today, until the passage of the DPP Act he had that very control and, indeed, responsibility with respect to criminal prosecutions. In my view the clear implication in s 9 DPP Act is that while the Parliament expected that in future the Director would be responsible for the day to day operations of
his office, it was not prepared to give absolute control to him. The very wording of s 9(1) establishes such a regime:
"Subject to this section, the Director is entirely independent of direction or control by the Crown or any Minister or officer of the Crown."
It suggests that within the following subsections will be found a qualification - but the only qualification - to the Director's independence, and that that qualification will involve the denial of some of the independence and control otherwise enjoyed by the Director. Then in s 9(2) the Attorney-General is granted the power to give directions and furnish guidelines to the Director. The section goes on to provide explicit limitations on the exercise of those powers by the Attorney-General, being the requirement that he first consult with the Director and that he afterwards publish the directions or guidelines. In my view there is no warrant to read into the section any other limitation. In particular, I do not think there is any reason to read down the power, so that it stops short of allowing the Attorney-General to direct the exercise of any of the functions contemplated in s 7 DPP Act. The very reference in s 9(4) to "individual matters" is consistent with a plain reading of s 9(2).
98 I see no significance in the omission of the word "powers" from s 9(2). After all, "function" is "the action of performing ..." or "the special kind of activity proper to anything ...".[5] Section 9(2) gives to the Attorney-General the power to direct and guide the Director in carrying out his functions and, where that occurs, the Attorney-General would be exercising power and the Director would be acting as a functionary. Similarly, s 7(1)(h) suggests that powers are given so that relevant functions may be carried out. In that framework the inclusion of the word "powers" in s 9(2) would have been superfluous.
99 The constraint on the Attorney-General's too ready exercise of his powers is a significant one. As I said, the issue of such directions and guidelines can only occur after consultation and must, unless subject to a specific exception, be published in the Gazette and, within six sitting days laid before each House of Parliament. Thus their issue would always be subject to comment by the Director himself and to review in Parliament, in the press, and by the electors. In addition, unmeritorious prosecution appeals launched by the Director, either at his own instigation or upon direction, would always risk censure by this court.
100 For these reasons I have reached the firm view that the direction given in this case by the Attorney-General was within the power given him by s 9 of the DPP Act.
101 It is interesting to note that this interpretation also derives some support from the history of the passage of the Director of Public Prosecutions Bill 1991 through Parliament. Various parts of the Parliamentary Debates, including the second reading speech, were referred to us by the Solicitor-General without objection by Ms Powell. It is permissible to refer to Parliamentary Debates to ascertain the mischief which the legislation is designed to address and to discern the underlying purpose of the legislation.[6] On 21 August 1991 the then Attorney-General, The Honourable Mr Sumner MLC, delivered the second reading speech. In part he said:[7]
"Clause 9 is a crucial provision of the Bill as it provides for the Director to be independent of direction or control by the Crown or any Minister or officer of the Crown, other than the Attorney-General. It provides that the Attorney-General may after consultation with the Director, give directions and furnish guidelines in relation to the carrying out of his or her official functions. Such directions are to be published in the Director's annual report which will be tabled in Parliament. Such directions may be in general terms or relate to particular cases. It is already a well established principle that the Attorney-General is not subject to direction by Cabinet in the exercise of these powers. Clause 9 does not alter this position." (my emphasis)
102 On 8 October 1991 the then shadow Attorney-General, The Honourable Mr Griffin MLC, spoke in favour of an amendment to delete the provision allowing the Attorney-General to give directions to the Director in individual cases and to confine the Attorney-General's powers to the furnishing of guidelines.[8] While the Attorney-General opposed that amendment he responded to it by introducing, on 10 October 1991, subsections (3) to (5) of s 9. The Bill was, on that day, passed, with s 9 in its current form.[9]
103 In my view that sequence of events, and in particular the second reading speech, only serve to confirm that the words of the statute should be given the meaning which they seem to me, on their face, to bear.
104 In the alternative, Ms Powell argued that even if the DPP Act does enable the Attorney-General to direct the Director to institute an appeal against sentence in a particular matter, such a power could not be exercised in the case at bar, as the Director had already made and publicly announced his decision that he would not appeal.
105 I would reject this argument. As the Solicitor-General put in argument, to so construe the Director's power to appeal would amount to accepting that once he had considered the matter the Director was functus officio. Nothing in the DPP Act supports that notion. In fact I consider it would be open to the Director to revise any such decision at any stage, whether or not he had previously published it.
106 Further, Ms Powell submitted that the decision by the Attorney-General to direct an appeal was, in any event, unreasonable and therefore improper. That was so, she put, for reasons related to the history of the matter, the Director's stance both at first instance and in respect of the prospect of appealing, and having regard to the merits of the matter.
107 I consider that once it is accepted that the Attorney-General has the ability to direct an appeal, then the stance taken by the Director prior to such a direction being given is largely irrelevant. In this case it is apparent that the Attorney-General issued his direction on the basis of legal advice. In addition, it seems to me that the appeal against the inadequacy of the sentence is at least reasonably arguable, and I express that view notwithstanding the position taken by the Director before the learned sentencing judge.
108 For these reasons I would decline to make any order or declaration of the kind sought and would dismiss the summons for judicial review.
[1] See The Aboriginal Development Commission v Hand (1988) 15 ALD 410 at 413
[2] Re directions see Director of Public Prosecutions Act 1991 (WA) s 27(2), Director of Public Prosecutions Act (NT) s 28(2). With respect to guidelines: Director of Public Prosecutions Act 1986 (NSW) s 26(3), Director of Public Prosecutions Act 1984 (Qd) s 10A(2). Note that Director of Public Prosecutions Act 1990 (ACT) says that a direction or guideline shall be of a general nature and shall not refer to a particular case (s 20(3)).
[3] cp McHugh J in O'Grady v Northern Qld Co Ltd [1990] HCA 16; (1989) 169 CLR 356 at 376
[4] Later it was sought to add Mr Rofe QC as a defendant.
[5] Shorter Oxford English Dictionary on Historical Principles, C.T. Onions (editor), Clarendon Press, Oxford.
[6] Owen v State of South Australia [1996] SASC 5574; (1996) 66 SASR 251; Pearce & Geddes, Statutory Interpretation in Australia, 5th ed., Butterworths, 2001 [3.5].
[7] South Australia, Parliamentary Debates, Legislative Council, 21 August 1991, 358-359
[8] South Australia, Parliamentary Debates, Legislative Council, 8 October 1991, 871.
[9] South Australia, Parliamentary Debates, Legislative Council, 10 October 1991, 1060-1061.
NEMER
HOLLOWAY & ORS No. SCCIV-03-1209 [2003] SASC 372
(1992) 40 FCR 409
(1983) 47 ALR 158
(1990) 25 FCR 150
(1993) 114 ALR 340
(1994) 53 FCR 287
(1996) 69 FCR 565
(1989) 169 CLR 356
(1996) 66 SASR 251
By majority, the summons for judicial review was dismissed and the declaration and orders sought were refused. Doyle CJ dissented and would have declared the Attorney-General’s direction invalid. The judgment noted that the Director’s separate application for leave to appeal remained for further consideration: [64]–[66], [80], [108].
(3) Directions or guidelines under this section -
(a) must, as soon as practicable after they have been given, be published in the Gazette; and
(b) must, within six sitting days after they have been given, be laid before each House of Parliament.
(4) Subsection (3) need not be complied with in relation to directions or guidelines under this section relating to individual matters if, in the opinion of the Attorney-General, disclosure may be prejudicial to an investigation or prosecution, but, in that case, the directions or guidelines must be published in the Gazette, and laid before each House of Parliament, as soon as practicable after the matter is determined or otherwise completed.
(5) If the Attorney-General is satisfied that disclosure under this section would place human life or safety at risk or cause some other form of severe prejudice to any person, the Attorney-General may withhold material from disclosure so far as necessary to avoid that consequence.
...
Directions and guidelines by Director
11.(1) The Director may give directions or furnish guidelines to the Commissioner of Police or other persons investigating, or prosecuting, offences on behalf of the Crown.
(2) Any such directions or guidelines must be published in the Director's annual report.
(3) If the Director is satisfied that publication of material under this section would place human life or safety at risk or cause some other form of severe prejudice to any person, the Director may withhold the material from publication so far as necessary to avoid that consequence."