Having a lawyer as Attorney-General

An interesting interview with Chris Finlayson about his role as Attorney-General, with regards to the Bill of Rights Act:

Attorney-General Chris Finlayson says he is simply “doing his duty” by raising concerns about possible breaches of human rights by his own Government’s law and order regime.

Mr Finlayson has found that the plans to give police unfettered power to take DNA from those they arrest and the “three strike and you’re out” law both have apparent inconsistencies with the Bill of Rights.  …

But when performing the function of Attorney-General – sometimes called “the Government’s lawyer” – he said it was important he acted independently.

“The Attorney-General must not be swayed by party political considerations but must objectively come to certain conclusions.”

Absolutely. The AG is generally exempt for collective Cabinet responsibility when it comes to the performance of the legal side of his job.

He said this independence was missing during the “failure of the system” when the Electoral Finance Act was introduced by the previous Labour Government and the Attorney-General – Michael Cullen – did not report its apparent inconsistencies with the Bill of Rights section on freedom of expression.

Mr Finlayson believed this failure was “political”.

“I just thought the freedom of expression issues were so obvious that a first-year law student would be able to identify them. And history has proved that completely right.”

I of course agree, as did the NZ Law Society and the Human Rights Commission.

The Attorney-General bases his opinion on whether a proposed law would breach the Bill of Rights on advice from the Ministry of Justice or, when it it is justice-related legislation, the Crown Law Office.

In the case of the Electoral Finance Act, the Crown Law Office concluded that it was consistent with the Bill of Rights.

Mr Finlayson, a leading lawyer before becoming an MP, said he was prepared to dissent from the advice he received.

“I don’t take the view that I’m some kind of automaton and just sign off on what is given to me. I will examine the matter carefully.”

This is fascinating. A non lawyer as Attorney-General (such as Dr Cullen was) would feel compelled not to second guess the advice from officials. But Finlayson has clearly stated that if thinks the legal opinion is not up to scratch, he will substitute his own opinion.

This is, in my opinion, quite correct. The role is indeed not of an automaton. Of course one would expect the AG to reveal both his advice and the officials advice, if they differ.