Cullen: Address to Legal Research Foundation
Wednesday 25 May 2005
Address to Legal Research Foundation
Northern Club, Princes St, Auckland
The position of Attorney-General has a very long pedigree. It can be traced back to the 13th century where the King’s Attorney was charged with the responsibility of upholding the King’s interest in the courts where the King himself could not appear. As noted by the Right Honourable The Lord Goldsmith QC, Attorney-General of the UK:
“From his original functions there have developed, through the following five centuries, a portfolio of quasi-judicial, professional, parliamentary and political duties of considerable breadth.” In New Zealand, I can if I wish trace my whakapapa back through 58 previous Attorneys-General, to one Francis Fisher, who was appointed in 1841 and was one of only three permanent officials of the Executive Council, the others being the Colonial Secretary and the Colonial Treasurer.
This troika of officials were effectively the government, albeit only a colonial administration and they predated the formation of the New Zealand legislature by more than a decade.
Clearly the role has evolved significantly since those early days, in parallel with the increasing size and sophistication of the colonial government, and then in the last century the formal separation of New Zealand from the British Crown as an independent state.
In the early decades the tasks undertaken by the Attorney-General seemed to vary according to the needs of the executive and the passions and interests of the incumbent. Sir Frederick Whitaker, KCMG, MLC, who held the post no fewer than seven times over the course of 35 years, was a man of extraordinary energy, and turned the role of Attorney-General into a one-man Parliamentary Counsel Office by personally drafting an enormous volume of legislation.
By contrast, King Dick Seddon saw fit to dispense with the role of Attorney-General for eight years of his premiership, from 1895 to 1903. He clearly felt that the various duties could be performed adequately by other members of the Cabinet, supported by the Solicitor-General who, by that time, had become a permanent civil servant.
What these examples demonstrate is that the precise configuration of roles and responsibilities within New Zealand governments has always been determined with a large dose of pragmatism. We have done what needed to be done with the resources available, and by and large we have done a good job.
We have not gone in for pomp and ceremony, for sceptres and gaiters and long wigs. Indeed many of our predecessors came to New Zealand to escape a life governed by form over substance.
So in this light you will forgive me for casting a somewhat jaundiced eye over the brief controversy caused by my appointment as Attorney-General.
In the view of some members of the profession, I stand before you as a worrying trend personified. The parliamentary historians quickly uncovered a precedent for a non-lawyer in the role of Attorney-General, in the form of the Rt Hon George William Forbes, who held the position between 1933 and 1935. It was quickly pointed out that he was not remembered fondly, either for his politics (which were soundly rejected with the election of the first Labour government in 1935) or for his contribution to the role of Attorney-General.
At the time, the editor of the New Zealand Law Journal lamented the appointment, citing it as indicative of a “[divorce] from legal process and reform in the Mother-country’.
As much as I believe education and practice in the law to be a valuable commodity, I cannot accept that admission to the bar confers some kind of sacred knowledge that cannot be acquired any other way. There is something quaint and faintly absurd about the view. Those who propound it ought, by analogy, to object to the election of anyone who is not a health practitioner to the role of Minister of Health.
The fact is that all office holders come with their own strengths and weaknesses. They draw on the former, and seek to find ways to compensate for the latter.
My immediate predecessor had a long career as an academic lawyer, but freely admitted to having little experience of court work and, at the start, no experience as an MP. During the 1990s, Paul East felt the need to make himself a QC, and acknowledged at the time that his career in the law prior to entering Parliament would not have justified this.
And despite being perhaps the best qualified Attorney-General in recent history, Sir Geoffrey Palmer did little to preserve the links with the “Mother-country’ and instead set in train a process of reform which led to the end of appeals to the Privy Council.
I also note that, in Australia, there have often been Attorneys-General who are not lawyers. This has been common in states such as Tasmania where there is a small legislature and often no lawyer to fill the role of Attorney-General.
The point I am trying to make is that there is a danger in becoming obsessed with form over function. As ancient as the role of Attorney-General might be, we have to consider it in the modern context.
The Attorney-General has essentially two roles in government:
The first is that of a Minister of the Crown with ministerial responsibilities for the Crown Law Office, the Serious Fraud Office, and the Parliamentary Counsel Office. It is also usual practice in New Zealand for the Attorney-General to hold other policy portfolio responsibilities not connected with those of the Attorney-General.
The second role is that of the senior law officer of the Crown with principal responsibility for the government’s administration of the law. This function is exercised in conjunction with the Solicitor-General, a non-political officer, who is the junior law officer.
In exercising the powers, functions, and duties of the senior law officer, the Attorney-General is expected to disregard any political interest or partisan advantage or disadvantage to the government or opposition parties. However the public interest on any given issue cannot be determined in isolation from practical realities, and that may require that political factors be considered along with others.
The crucial point is that, in advising and making decisions, the Attorney-General must not make decisions with the aim of securing any political or similar advantage. The Attorney-General may seek the views of other cabinet ministers but, in the end, the Attorney must decide such matters as a law officer rather than as a cabinet minister.
In exercising the Law Officer role, the Attorney-General, as a Minister and a member of Cabinet, seeks to ensure that:
The operations of executive government are conducted lawfully and constitutionally; and
The government is not prevented through use of the legal process from lawfully implementing its chosen policies.
The particular functions of the Attorney-General can be outlined briefly.
The Attorney-General is the principal legal advisor to the government. In that capacity the Attorney has similar responsibilities to those of any legal advisor towards a client. The Attorney-General is also a member of the government. In Cabinet Committee meetings, the Attorney’s role includes giving legal advice and encouraging ministerial colleagues to seek appropriate legal advice in the course of government decision-making.
In practice, it is the Solicitor-General, either directly or through Crown Counsel, who gives legal advice to the government. That advice is always subject to the opinion of the Attorney-General.
In addition, the Attorney-General has overall responsibility for the conduct of all legal proceedings involving the Crown, and can be expected to keep his or her fellow ministers generally informed of the initiation, progress and outcome of such proceedings against or by the government.
The Attorney-General is the principal plaintiff or defendant on behalf of the government in the courts. In addition, the Attorney-General has a separate responsibility to represent the public interest on behalf of the general community. In doing so, the Attorney-General may intervene in proceedings which affect the public interest.
The Attorney-General also has responsibility for the government’s role in the administration of criminal justice. This includes responsibility for the prosecution of serious crime, the power to terminate any prosecution and the power to give any witness at trial immunity from prosecution.
As prosecutions are a key part of the administration of justice, they must be carried out independently from the exercise of executive power.
By tradition, Attorneys-General have preferred not to become directly involved in the areas of prosecution or law officer decisions in relation to criminal proceedings. These matters are generally delegated to the Solicitor-General. This ensures that criminal justice in New Zealand is administered free from political direction or influence.
As a Minister, the Attorney-General must answer to Parliament for the actions of the Attorney-General, the Solicitor-General, and the Crown Law Office, as well as for those other agencies under the Attorney’s ministerial control.
The Attorney-General also has special responsibilities to Parliament in relation to legislation. These underscore the independence with which the duties of the Attorney-General must be exercised and include:
Under the New Zealand Bill of Rights Act 1990, the Attorney-General must inform the House whether any provision of a Bill introduced to the House is inconsistent with the Bill of Rights;
The Attorney-General may also approve the giving of legal advice by the Crown Law Office to Parliamentary Select Committees if they are to seek legal assistance; and
By convention the Attorney-General is also chair of Parliament’s Privileges Committee. (However, the convention is not a rule: the Hon Matt Robson MP, a member of the committee since August 2002, has been its chairperson since February 2003.)
Finally there are several miscellaneous functions:
The Attorney-General as protector of charities. The Solicitor-General, on behalf of the Attorney-General, can investigate and approve the management and administration of charitable trusts; and
The Attorney-General is a member of various bodies, including the Rules Committee, which is charged with the responsibility for developing the District Court, High Court, Court of Appeal, and Supreme Court rules, and the New Zealand Council of Law Reporting, which has responsibility for publishing the New Zealand Law Reports.
Do the roles of the Attorney-General require him or her to be a lawyer? There is no legal requirement concerning the qualifications of the Attorney-General. However, it has been the convention in New Zealand to appoint a lawyer to the role.
The Attorney-General’s role is necessarily predicated on a person with knowledge of the law. The Attorney-General is, after all, the senior legal adviser to the government, and is technically the head of the legal profession.
As noted above, in Cabinet and Cabinet committee meetings, the Attorney-General’s role extends to giving legal advice and encouraging ministerial colleagues to seek appropriate legal advice in the course of government decision-making. In addition, the Attorney-General is also responsible for maintaining the rule of law. In this function, the Attorney-General is not subject to the collective responsibility of Cabinet nor the decisions of caucus and acts independently of the government.
There are functions that the Attorney-General cannot delegate, and where legal knowledge is necessary. One such function is the reporting by the Attorney-General to Parliament when a Bill appears to be inconsistent with the New Zealand Bill of Rights Act 1990.
However, the Attorney-General is supported by the Solicitor-General. Section 9A of the Constitution Act 1986 provides that the Solicitor-General may perform a function or duty imposed, or exercise a power conferred, on the Attorney-General. This means that, in nearly all cases, the Solicitor-General can perform the law officer role.
In addition, under the current arrangement, Mr Russell Fairbrother, a barrister and solicitor of the High Court, has been appointed Parliamentary Private Secretary to the Attorney-General. This ensures that I can seek the assistance of Mr Fairbrother in discharging my functions, recognising nevertheless that a Parliamentary Private Secretary is unable to act on behalf of the Attorney-General.
The more interesting question is whether the Attorney-General should be a member of Cabinet.
Past practice in New Zealand has been for the Attorney-General to be a member of the Legislature, Cabinet and the Executive Council. This reflects no more in constitutional terms than the fact that for many years in New Zealand most Ministers have been members of the Cabinet.
In contrast, in England since 1928 the Attorney-General is outside Cabinet. Lord Shawcross, in an address to the Law Society in 1953, stressed that there was no rule of law which prevented the Attorney-General from being a member of the Cabinet, but agreed that it was “more appropriate” that the Attorney-General’s independence should not be blurred by his inclusion in a political body - the Cabinet - which may have to take decisions on policy after receiving legal advice from the law officers. On this view, the independence of the senior law officer is enhanced by not being in Cabinet.
However, the extent of that advantage can be over-stated. There is also value in the Attorney-General being constantly informed on Cabinet deliberations and decisions and contributing from a legal perspective to both. Indeed, in England to meet this aspect, the Attorney-General, though outside of Cabinet, sees all relevant Cabinet papers and attends Cabinet, when required, to advise on legal or constitutional questions.
In New Zealand, the previous Solicitor-General, now the Honourable Justice John McGrath, a Judge of the Supreme Court, emphasised the importance of the role played by the Attorney-General as a legal adviser in the Cabinet, in Cabinet committee rooms, and with Ministers generally. As he noted:
“Maintaining the rule of law in these places requires both legal and political acumen, and the ability to generate political trust. The Attorney-General, who shares the responsibility for decisions as a member of the Government, is uniquely positioned to influence ministerial colleagues. I therefore disagree with those who say that the Attorney-General should not be a member of Cabinet. Outside of it, the values of the office cannot, I believe, be effectively upheld in Government.”
In New Zealand there has been only one Attorney-General appointed outside of Cabinet. The Rt Hon David Lange held office from outside Cabinet between 14 August 1989 and 2 November 1990. He was of course no stranger to the workings of the Cabinet.
Undoubtedly the most closely observed aspect of my role as Attorney-General has been my relationship with the judiciary. Expectations that sparks would fly across Molesworth Street have so far been disappointed.
I have, I believe, a very amicable relationship with the judiciary, and have added to their number with the appointment of a number of new judges. I have also made it clear that I intend to take very seriously the traditional role of the Attorney-General in defending the independence of judges. By convention in New Zealand, the Attorney-General has a particular responsibility for protecting the judiciary from improper and unfair criticism, for example by answering attacks on their decisions and by actively discouraging other ministers from engaging in improper attacks or criticism.
Interestingly, this function of the Attorney-General has been the subject of debate in Australia. The Commonwealth Attorney-General, Mr Daryl Williams QC, has previously suggested that it is not the role of the Attorney-General to defend the judiciary against public criticism. According to Mr Williams, Australian Attorneys-General were elected members of Parliament, answerable to their party colleagues, Parliament, and the electorate and, accordingly, were not and could not be independent of political imperatives. Mr Williams observed that in the Australian context, it was up to the judiciary to take the lead in defending themselves against criticism.
The different view that has prevailed in New Zealand is that the Attorney-General acts in the public interest and defends the integrity of the justice system against attacks that threaten public confidence in the system.
However, such a role does not limit the ability of the Attorney-General to engage in discussion with the judiciary on constitutional principles. Regarding the issue of parliamentary sovereignty, I am happy for the public exchange of views that occurred in the last couple of years to continue if that is necessary.
As I have said, I believe very strongly in the need for an independent judiciary. In the New Zealand context, however, that is independence to apply the law to particular fact situations and to make decisions accordingly. It is not independence in the sense of an American-style separation of powers, whereby the Courts can scrutinise legislation in the light of some higher law and strike it down, or alter it, if it is found wanting.
This is not to deny the importance of the development of the common law through case law in areas (reducing in number) untouched by legislation. And “Judge-made law’ also exists within the boundaries set by particular statutes. Judges elucidate the meaning of a statute and apply it to particular cases, thereby establishing precedents which can cast light upon later cases with similar facts. That in itself is a task requiring intellectual rigour of the highest order and some creative thinking, since the law has to be applied in a social, economic, cultural and technological context that is constantly shifting and changing.
Where I think the recent debate has been helpful is that it has highlighted the duty of legislators to pass law that is unambiguous in its intent and clear in its expression.
There is something to be said for the view, articulated by the Solicitor-General previously and in a forthcoming law journal article, that successive New Zealand governments have been responsible for promoting legislation which effectively requires the courts to be “judicially active”, or at least to see themselves as involved with Parliament in what some have called a 'collaborative enterprise', involving, at least in some cases, the development of over-arching principles, capable of being applied in individual cases.
The Solicitor-General noted that, in some areas, Parliament has conferred on the courts wide discretions, enabling intervention and the crafting of relief appropriate to particular cases; for example,„o the Contractual Mistakes Act 1977 (which gave the courts the power to grant a greater range of relief than had been possible under the common law where contracts were entered into under mistake); and the Contractual Remedies Act 1979 (which deals with pre-contractual misrepresentations and, subject to the individual contract, gives the court discretion to grant a range of remedies in misrepresentation cases).
In other instances, Parliament has required the courts to consider broad areas of economic or social policy in order to resolve particular cases.
The Solicitor-General referred by way of example to Parliament’s incorporation of general Treaty of Waitangi clauses into several statutes, such as the State-Owned Enterprises Act 1986, which of course famously came under scrutiny in the 1987 "lands case" New Zealand Maori Council v Attorney-General.
There, the Court of Appeal had to determine what was the effect of s 9 of the State-Owned Enterprises Act, and what were the principles of the Treaty to which it referred. The Crown advanced arguments that, in the Court’s view, would have resulted in s 9 having little or no effect. The Court rejected those arguments, and developed an approach to the section which, in its view, gave the section real meaning. In doing so, Cooke P observed:
“In short the present decision together with the two Acts means that there will now be an effective legal remedy by which grievous wrongs suffered by one of the Treaty partners in breach of the principles of the Treaty can be righted. I have called this a success for the Maoris, but let what opened the way enabling the Court to reach this decision not be overlooked.
Two crucial steps were taken by Parliament in enacting the Treaty of Waitangi Act and insisting on the principles of the Treaty in the State-Owned Enterprises Act. If the judiciary has been able to play a role to some extent creative, that is because the legislature has given it the opportunity.” ( 1 NZLR 641, 668, lines 10 to 26; emphasis added)
As the Solicitor-General observed, there is a legitimate question as to whether the courts should have been asked to attempt such a difficult task as identifying and articulating principles of the Treaty. However, the fact is that Parliament did ask the courts to perform that role and the courts cannot fairly be criticised for doing as Parliament required.
The fact that they did so in that case and other cases is not a sign of improper judicial activism. However, nor is it a sign that Parliament intends the courts to undertake the same task for all legislation.
In the scheme of things, these instances are relatively few. Parliament does not, as a rule, deliberately leave loose ends in legislation for the courts to tidy up.
Clearly if there are any deficiencies in a piece of legislation it is most likely that those will come to light in the Courts, which are, in this sense, the major testing ground for legislation. I am entirely happy for judges to point those deficiencies out in the course of deciding cases.
However, except in very limited and special circumstances (for example, the correction of obvious and very minor drafting errors), no mandate exists for fixing such deficiencies outside of an elected parliament, and any perception that the courts are taking upon themselves this responsibility has the potential to undermine public confidence in their role and in their independence from the political process.
It is fundamental to our constitution that lawmakers are chosen by their electorate and accountable to the electorate for their decisions; just as it is fundamental that our judges are appointed for their ability to apply the law and are not accountable to an electorate.
As I have made clear, New Zealand has considered the option of an entrenched constitution, a bill of rights, and an elected judiciary, and has for the time being rejected it. The demarcation between the proper constitutional roles of the parliament and courts remains very clear.
As I wrote in an article entitled Parliamentary Sovereignty and the Courts published last year in the New Zealand Law Journal:
Parliament proposes, debates and enacts laws, and appoints from its own elected members an Executive to administer those laws and perform the functions of Government. The role of the Courts is to apply the law to individual cases, which may include ordering the Executive to modify any exercise of power that is ultra vires.
Where the law is found to be ambiguous, the Courts must interpret the statute to the best of their abilities, taking into account the intent of Parliament in passing a law. It remains the prerogative of Parliament to make new law or to amend existing law to clarify its intent.
Nothing in my first few months as Attorney-General has given me any reason to change that view.