Last act for Hatzistergos before axe falls

By Richard Ackland, SMH, March 18, 2011:

Attorney-General John Hatzistergos has performed what we can only hope is his final act of bastardry before he is flung out of office. As long as Hatzistergos had breath in his body he was going to see the end of the Director of Public Prosecutions, Nicholas Cowdery - and his final play in the battle was the appointment of Ian Temby, QC, as acting DPP for two months.

Today is Cowdery's last day in office. He turns 65 tomorrow and to keep the full extent of his pension benefits he has to go right now. There's a certain amount of government deliberation in that situation - more of that in a moment.

The Attorney-General put out a statement on Wednesday lauding Temby's capacities and achievements. Labor governments have been in and out of love with Temby ever since federal attorney-general Gareth Evans plucked him from the Perth bar to be the first Commonwealth DPP.

There was a two-sentence mention of Cowdery at the bottom of the announcement, thanking him for his service and noting the government ''valued the integrity of his prosecutorial decisions''. In any language it was a singularly icy farewell.

Cowdery had advised the government that he was available to serve as acting DPP from tomorrow so that the functions of the office could continue seamlessly until the incoming government found a replacement. About 11.05am on Wednesday, Hatzistergos phoned Cowdery to say his resignation had been accepted. He added he had taken advice from the Solicitor-General and would not agree to Cowdery's suggestion that he continue in an acting capacity.

Further, he would not even appoint the current deputy DPP, Lou Lamprati, SC, as acting director. Temby would take the job for two months - full stop. However, if the incoming government had not filled the position within Temby's tenure, Lamprati might be able to be acting director. How's that for tortured jockeying?

The reality is that Cowdery was perfectly entitled and eligible to be appointed for a term as acting director. It would have been the most efficient and cost-effective thing to do but under this regime memories are long and unforgiving.

In 2007 there were amendments to the DPP Act, to remove the 72-years-of-age tenure provision. It was replaced with a maximum 10-year term. In a further new provision, the director would not be eligible for reappointment.

But wait, there's more. The saving and transitional provisions of the legislation make it clear that those amendments do not apply to senior officers of the DPP if they held office immediately before the commencement of the amendments.

So there. It was perfectly possible for Cowdery to continue in an acting capacity, until the likely incoming cabinet got around to finding a replacement. According to a missive sent to prosecutors yesterday, the Attorney-General said the Solicitor-General suggested his advice might be open to ''other interpretations''.

What makes the mean-spiritedness of all this even worse is that it would have saved long-suffering NSW taxpayers quite a bit of money had Temby not been appointed. If Cowdery held the fort for two months he would only have been paid the difference between his pension and the DPP's salary. In that way the state would have saved 40 per cent of the acting DPP's salary.

Under the provisions in place at the time Cowdery was appointed DPP he could stay in the job to age 72, but he had to take his pension at 65, or he'd get zilch for his years in the saddle. The act was amended in 2007 but there was no attempt to rectify this dichotomy between the term of appointment and when the pension took effect.

The explanation for this studied oversight can be found in any number of Nicholas Cowdery's independent public pronouncements. Maybe it was his speech to the Sydney Chamber of Commerce in March 2007, on the eve of the last state election, where he reminded his audience that the era of frank and fearless public service advice to the government was over.

He jogged memories with some spicy examples: the sacking of the chief executive of the Legal Aid Commission for giving the government politically unpalatable news; the removal of the chief executive of the Department of Community Services for advising a minister not to follow a course that was unlawful; the removal of the Transgrid board chairman for refusing to appoint a Labor mate. He cited other cases.

Hatzistergos is not up for re-election on March 26. He stays in the Legislative Council come what may. Whoever will be the new DPP is not a matter in immediate contention. The appointment will be subject to a panel of worthies who will vet all the candidates. Temby then will go back to plying his trade at the private bar. And Cowdery will be out sailing, adorned with his medal of honour from the International Association of Prosecutors.