The ACT Bar Association has called for all prosecutors working in the territory to be subject to the same rules and disciplinary actions as other lawyers by being required to hold practising certificates.
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But Director of Public Prosecutions Jon White SC resisted such a move, saying Canberra prosecutors were already subject to disciplinary processes, as well as close scrutiny from the media, the community, other parties in litigation and the legislative assembly.
Prosecutors have a statutory right of appearance and so do not need to hold a practising certificate to appear in court, unlike private or defence lawyers.
However, ACT Bar Association president Steven Whybrow said it was unsatisfactory that some 95 per cent of prosecutions in Canberra were conducted by lawyers who did not hold a practising certificate and so were not subject to either the barristers' or solicitors' professional conduct rules.
A breach of the rules can amount to unprofessional conduct or professional misconduct, and can result in disciplinary action by the relevant regulatory body.
Mr Whybrow said there was presently a situation where a lot of people who appeared in court in the ACT were not subject to the rules.
"It should be a level playing field," he said.
"All lawyers appearing in court should be subject to the same conduct rules and regulations, and be available to disciplinary hearings."
Mr Whybrow, a prosecutor for 12 years before going to the private bar, said prosecutors held an important position.
"As someone appearing in court, you have a lot of licence to make serious allegations against people, but have an obligation to exercise those powers responsibly," he said.
There had in the past been instances of gross non-disclosure of material from the DPP, Mr Whybrow said, but the bar association and law society had been unable to take action.
Mr White - who will retire from the role at the end of the year - said a deliberate decision by a prosecutor to not disclose material would be a serious matter and would be dealt with harshly.
He added that during his time as director there had been no instances of that, nor allegations that it had happened.
He distinguished non-disclosure from late disclosure, the latter of which is regulated by the court.
He also said that in his ten years as director the DPP had not received a complaint about a prosecutor's conduct from the bar association, and had received very few complaints from individual legal practitioners.
Mr White said prosecutors were subject to the prosecution policy and discipline of the director, public sector management legislation, and an enterprise agreement which contained detailed disciplinary conduct provisions.
It would be inappropriate to have two sources of disciplinary conduct, he said.
Further, he said a body that represented private barristers - as per the association's website - would not be an impartial body to sit in judgment of a prosecutor's conduct, and "few if any would have a grasp on the nuance of the role to understand the myriad of complex decisions a prosecutor is required to make daily".
Mr White said a number of staff do voluntarily hold practising certificates to support the bar association and that the office met some of those costs.
But he said prosecutors had limited involvement with the bar because it was not a peak legal body representing both sides of the bar table.
The DPP executive had attempted to engage the bar association on a number of occasions to help it transition to a genuine peak body, the director said.
Mr Whybrow disagreed with Mr White's suggestion that few members of the bar association would have a grasp on the nuance of the role of prosecutors, and said several, including himself, were former prosecutors.
He also said that about half of the bar association's members were not private barristers, and included government lawyers and parliamentary counsel.
Mr Whybrow said the bar association hoped to engage with Mr White's successor on the issue of practising certificates.