There is one key arm of government that receives little attention come election time and that is the role of the Attorney-General.
The Attorney-General is the government’s principal legal adviser in the course of decision-making, with an overriding responsibility to act in the public interest.
The holder of the office has an obligation to act on some matters independently, without the political partisanship sometimes associated with other ministerial offices. The Attorney-General is a political figure who occupies an apolitical role.
He or she also acts as a gatekeeper between the executive (the arm of government responsible for the day-to-day running of the country), Parliament and the judiciary.
A particular responsibility is to protect the judiciary from improper and unfair public criticism: for example, by addressing attacks on judges’ decisions and by discouraging other ministers from engaging in improper attacks or criticism. When political and media criticism of the courts or a court decision threatens to undermine public confidence in the courts, at that point the Attorney-General should assert him or herself.
Another important role arises from duties imposed by section 7 of the Bill of Rights Act. The Attorney-General has a duty to bring to the attention of the House any provision in a bill that appears to be inconsistent with the freedoms contained in the act. From 1991-2023, 97 bills have been brought to the attention of the House under section 7.
No section 7 report was presented on the Foreshore and Seabed Act 2004 or the Electoral Finance Act 2007. Both of those pieces of legislation have been repealed but it demonstrates how attention to rights can slip through the cracks.
Significantly, the Covid-19 Public Health Response Act 2020 – the legislation that underpinned the powers of the state during the pandemic and which constituted some of the most egregious interferences with the Bill of Rights Act – received no mention by way of a section 7 report.
Nor was there a section 7 report regarding the Epidemic Preparedness Act 2006, which provided for the use of special powers by the prime minister and which was deployed during the Covid-19 pandemic.
That said, the 2020 Covid legislation did contain a provision that steps did not limit bill-of-rights freedoms, or that they amounted to justifiable limitation on those rights.
On the other hand, because Parliament is the supreme lawmaker, it may ignore the advice of the Attorney-General and proceed to enact legislation.
In August, Attorney-General David Parker presented a 16-page report on the Ram Raid Offending and Related Measures Amendment Bill. It must be remembered he was acting in a politically neutral role. His advice was a rejection of the government’s proposal; he advised that the bill was inconsistent with not one but three sections of the Bill of Rights Act. He recommended certain changes be made to the bill and suggested that the new proposals might be justified if the benefits outweighed the harms, but the evidence suggested that wouldn’t be the case. The bill, which had its first reading on August 29, did not become law before the House rose.
As may be seen from the rather haphazard way in which advice is given of inconsistencies with the act, the new Attorney-General may consider tightening up performance of this function.
An alternative position may be to give the act constitutional status, entrenching it so that repeal would be difficult, and leaving the assessment of whether legislation is consistent with the Bill of Rights Act to the courts, with the power to declare legislation invalid.
David Harvey is a retired district court judge.
