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Wednesday, 3 October 2012

Monitoring the public interest

Andrew McIntosh, the Minister responsible for establishing an anti-corruption commission, recently announced the appointment of Brendan Murphy QC as Victoria's first Public Interest Monitor.

The PIM is appointed under the Public Interest Monitor Act 2011. His role is to appear at the Supreme Court and Administrative Appeals Tribunal when investigative agencies apply for confidential or secret applications, and test the basis for those applications and the material they rely on. Queensland has had a PIM for about 14 or 15 years now, and it seems that process is working well in as a check and balance for applications not heard in the public domain.

The Victorian PIM will have the power to appear at and test applications for:

Currently, all these applications are heard ex parte, and without any opponent or contradictor to test them. The government explains, in part, in the second reading speech and statement of compatibility why it thinks the PIM is necessary.

Anyone who knows Mr Murphy will know that he is one of the most able cross-examiners in the state, and will probably provide a new forensic understanding to what 'testing the evidence' means. There is no doubt he will be a formidable guard to the guards.

The Bar's website linked to an advertisement for deputy PIM's. It didn't have a closing date, but I understand applications have closed, and presumably the government is considering any applications.

I reckon I must be one of the few people at the Bar who has the experience of being cross-examined by Brendan and working with him — I can honestly say I far prefer the latter — and I think he is an absolutely first-rate appointment to such an important role. No doubt the various investigative agencies who he will test will be doubling their efforts to cross every 't' and dot every 'i' in their applications.

The PIM won't be a complete panacea for all accused people. Although he will test the sufficiency of material relied on for the various applications, he won't be concerned with whether that material discloses a defence or raises doubt in any subsequent prosecutions. For that reason, I expect we'll still see applications by accused people for affidavits and other supporting material. And they'll still be dealt with as they currently are. But for these matters at least, I expect we will see an end to 'collateral attacks' about whether sufficiency of grounds to grant an application, as discussed in Ousley v The Queen (1997) 192 CLR 69.

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