Overview

The Ministerial Direction (Commonwealth Director of Public Prosecutions) 2019, issued by the Attorney-General of Australia, Christian Porter MP, under subsection 8(1) of the Director of Public Prosecutions Act 1983, aims to address a specific problem related to the prosecution of journalists for alleged offences connected to their professional work. The 2019 Direction revokes a previous direction issued in 2014 and instructs the Director of Public Prosecutions to refrain from proceeding with prosecutions of journalists for certain specified offences without the Attorney-General's written consent. This includes offences under the Australian Security Intelligence Organisation Act 1979, the Crimes Act 1914, the Criminal Code, and the Defence Act 1903, where the alleged offence pertains to journalistic work. This measure was likely introduced to safeguard journalists' freedom of speech and protect the integrity of investigative reporting, ensuring that the prosecution of journalists is subject to a higher level of scrutiny.

Scope and Application

The Ministerial Direction (Commonwealth Director of Public Prosecutions) issued under the Director of Public Prosecutions Act 1983, dated September 2019, specifically targets the prosecutorial discretion of the Director of Public Prosecutions concerning certain offences. It applies to any person who is alleged to have contravened particular sections of federal legislation, including the Australian Security Intelligence Organisation Act 1979, the Crimes Act 1914, the Criminal Code, and the Defence Act 1903. Notably, the direction mandates that the Director must not proceed with a prosecution of a person who is a journalist if the alleged offence relates to their professional work as a journalist, unless the Attorney-General provides written consent. This directive applies on a Commonwealth level, meaning it has national jurisdictional reach within Australia. The scope of this direction is limited to specific offences and the professional capacity of journalists, and it effectively places a restriction on the prosecutorial powers of the Director in these specific circumstances.

Key Provisions

The main operative sections of the Ministerial Direction (Commonwealth Director of Public Prosecutions) (Director of Public Prosecutions Act 1983) (C2019G00878) require that the Director of Public Prosecutions must not proceed with a prosecution against a person for alleged contraventions of specified sections of certain Acts without the written consent of the Attorney-General. The sections in question are section 35P of the Australian Security Intelligence Organisation Act 1979 (a), sections 3ZZHA, 15HK, 15HL, and 70 of the Crimes Act 1914 (b), sections 131.1 and 132.1 of the Criminal Code (c), and section 73A of the Defence Act 1903 (d), provided that the person is a journalist and the facts of the alleged offence relate to their professional capacity as a journalist (subsection 8(1)). This direction revokes a previous direction issued on 30 October 2014. The Act imposes specific obligations on the Director of Public Prosecutions, mandating that they must seek the written consent of the Attorney-General before proceeding with a prosecution under the specified sections against journalists whose alleged offences pertain to their professional duties. This requirement ensures that the prosecution of journalists for activities directly related to their journalistic work is subject to a higher level of scrutiny and authorisation. The Director must ensure that the consent is obtained before any prosecution is initiated. There are no direct offences, penalties, or civil/criminal consequences outlined in this particular direction. Instead, the focus is on procedural safeguards and the requirement for the Attorney-General's consent before any prosecution can proceed. The implications of not adhering to this direction could include legal challenges to the validity of any prosecution initiated without the required consent, potentially leading to the quashing of proceedings or other legal consequences. However, the specific penalties or consequences for non-compliance are not detailed in the text of this direction itself.