In all of those countries to which Australians most usually see ourselves as related politically and socially – particularly the UK, New Zealand and Canada – there has been a tension in the role of Attorney-General. The tension is between the office-holder’s position as a senior member of the executive and a senior member of the legislature; between the role as the first law officer of the Commonwealth and as a senior politician in the governing party. In the USA, Senator Patrick Leahy, Chair of the Senate Committee on the Judiciary, in considering the appointment in 2001 of a new Attorney-General, spoke of the role of the Attorney as ‘not the President’s counsel... The attorney general is there for every one of us.’ However, in that country, the Attorney-General is not an elected member of the executive, rather he or she is appointed through a public hearing process.
By contrast, in the UK, the role of the Attorney-General has been said by the House of Commons Constitutional Affairs Committee in 2007 to ‘combine… legal administration and the provision of independent legal advice with the political duties of being a member of the Government’. Other roles by the Committee in its report of the Constitutional Role of the Attorney General include ‘representing the public interest in civil proceedings’ and a ‘guardian of the Rule of Law’.
In New Zealand, the Crown Law Office in its 2002 Briefing Paper to the Attorney-General referred to this position as ‘a unique role that combines, on the one hand, the obligation to act on some matters independently, free of political considerations, with, on the other hand, the political partisanship that is otherwise properly associated with other Ministerial office.’
In Canada, the Federal Attorney-General has a role in Cabinet that has been referred to as the ‘guardian of the public interest’.
In balancing the potential for conflict inherent in the role of Attorney-General, I would seek to ensure, first, that there were sufficient checks and balances in place to safeguard the separation of power between the three branches of government – the legislature, the executive and the judiciary – and, second, that there were sufficient limits on the power of the executive to interfere with the rights and interests of the people.
As Attorney-General, whether at a state or federal level, I would strongly advocate to my Cabinet colleagues the importance of human rights as a core values framework for government and democratic processes. I would also seek their support to conduct widespread community consultation about the meaning and relevance of human rights, the best way to promote and protect rights, and mechanisms to properly balance the power of the three branches of government with the will of the people.
We have watched the development in Australia of mechanisms that use human rights as just such a framework with the enactment of human rights laws in the ACT and Victoria. These laws establish mechanisms for review of legislation and policy against a human rights framework. The mechanisms involve both the executive in previewing legislation and reporting to the legislature on the compliance of that proposed legislation with the human rights framework, and the judiciary in determining any breach of human rights and observing any inconsistency of legislation with the framework while leaving the remedying of that inconsistency to the legislature. In both jurisdictions, the models empower each of the three branches of government to work in different ways to ensure human rights protection and promotion.
In advocating for such standards and processes and for engagement with the community on the development of a human rights framework, I would be fulfilling the vital role of the Attorney as ‘guardian of the rule of law’, ‘guardian of the public interest’ and ‘counsel’ to the people. Acknowledging that the introduction of a human rights framework has the potential to limit the power of the executive in particular, as Attorney, I would seek to remind my colleagues that those who hold positions within the executive – whether elected or as appointed public servants – do so as servants and representatives of the people.
In order to reinforce the separation of powers between the judiciary and the executive, I would seek to understand alternative judicial appointment mechanisms operating in other jurisdictions and would be keen to develop a mechanism that ensured greater separation of the appointment process from the political sphere.
And finally, I would seek to provide mechanisms to better empower the community to use the legal system in public interest issues through a review of current standing and costs rules in respect of public interest proceedings. I would aim to introduce mechanisms that enabled enhanced access to justice through more effective representative processes.
Robin Banks is Chief Executive Officer of the Public Interest Advocacy Centre and Director of the Public Interest Law Clearing House (NSW)