Case: Health Insurance Commission v Freeman (1998) 88 FCR 544
Outcome: referred to
Although s 6(1)(n) of the DPP Act , in terms, identifies a 'function' of the DPP, it has been construed as being an empowering provision. In Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 the NSW Court of Appeal held that s 6(1)(n) of the DPP Act conferred a special power on the DPP: see at 597. A similar approach to the construction of s 6(1)(n) of the DPP Act was adopted by a Full Court of this Court in Health Insurance Commission v Freeman (1998) 88 FCR 544 (" Freeman "). Whilst rejecting the notion that s 6(1)(n) empowered the DPP to give legal advice on request to Commonwealth authorities merely because they happened to be investigating the commission of offences under Commonwealth law, it held that such advice might be given in certain circumstances. Merkel J (with whom von Doussa and Carr JJ agreed) held (at 564-5) that: "... in any particular case, the function to which the legal advice is incidental or conducive must be identified. Contrary to the view held within the DPP's office, the DPP is not empowered under the DPP Act to give legal advice, if and when sought, to any Commonwealth authority merely because it is investigating the possible commission of offences under Commonwealth law. Before the precondition in s 6(1)(n) is met there must be some nexus between the investigation being conducted by the authority and a statutory function of the DPP. The nexus must be something more than a mere theoretical possibility that the DPP might institute, carry on or take over a prosecution at some future date. The facts of the particular case or the nature of the alleged offence must, at the very least, establish that the possibility of the DPP becoming involved in a prosecutorial function is a real one. A course of conduct of past referrals of similar matters to the DPP or evidence of an intention to refer the particular matter to the DPP for prosecution may suffice. Ultimately, each case will depend on its own facts." His Honour had earlier (at 561) expressed the view that: " ... it would seem to be incidental or conducive to the DPP's function of prosecuting, carrying on or taking over proceedings, including considering prosecuting, carrying on or taking over proceedings, to give legal advice to any Commonwealth authorities or agencies involved in the investigation of matters which are likely to be the subject of such proceedings, irrespective of whether the proceedings are prospective, imminent or actual. ... For example, it would clearly be "conducive" for the better fulfilment of the prosecutorial functions of the DPP, for advice to be given to an investigative agency to ensure evidential material being gathered by it for the purpose of a prosecution which it is intended to be carried on by the DPP, is being gathered lawfully." 64 An additional source of power is to be found by a reading of s 6(1)(n) with s 6(2)(b) of the DPP Act . In Freeman Merkel J observed (at 566) that "[i]f it is regarded as desirable that the DPP have a general entitlement to give legal advice to Commonwealth authorities investigating the commission of offences under Commonwealth law, then that is a matter for Parliament." The DPP Act had, since its inception, contained s 6(2)(b) which empowered the executive, by regulation, to confer additional functions on the DPP. The power was not exercised, so as to confer power on the DPP to give general advice, until after the decision in Freeman was handed down. By regulation 3(1)(f) and (g) of the Director of Public Prosecutions Regulations 1984 (as amended by the Director of Public Prosecutions Amendment Regulations 1998 (No 1) which commenced on 22 December 1998) it was provided that it was a function of the DPP to provide legal advice to Commonwealth, State or Territory authorities "whether or not the advice is for the purposes of a particular investigation." It was plainly incidental and conducive to the performance of this function that the advice proffered by the DPP to the ACC and the Attorney-General's Department was given. 65 I note in conclusion that no argument was developed by the applicants to explain how and why, if the DPP had acted ultra vires, his involvement with the making of the request by the delegate of the Attorney-General, would render that request "invalid". 66 The applicants allege that the ACC did not act lawfully in providing to the DPP the information and advice sent in February 2005 by Mr Considine to Mr Adsett and in providing the information contained in the letters from the ACC to the Attorney-General's Department in May 2005 and November 2005.