Having a lawyer as Attorney-General

March 4th, 2009 at 10:00 am by David Farrar

An interesting interview with Chris Finlayson about his role as , with regards to the :

Attorney-General 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.

Tags: , ,

24 Responses to “Having a lawyer as Attorney-General”

  1. Gooner (995 comments) says:

    Finlayson is all class.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  2. Adolf Fiinkensein (2,790 comments) says:

    It is reported elsewhere that Shifty Cullen’s response to the advice that the ACC funding hole should be declared in PREFU was “Ah, fuck it.” Seems he might have used the same response for advice on the EFB.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  3. burt (7,793 comments) says:

    So is this saying the AG’s role is not simply to be a “rubber stamper” for the govt de-jour? Fascinating concept – next thing some lunatic will be saying that the govt are accountable under the laws they pass…. where will it end ?

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  4. philu (13,393 comments) says:

    to my surprise..i have been quite impressed with finlayson..for those two actions..

    phil(whoar.co.nz)

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  5. AG (1,759 comments) says:

    Given CF’s statement, I assume we’ll have a public retraction and apology from David Garrett for his claim that the AG’s report on the Three Strikes Bill was not CF’s view at all, but that of “some oik” in Crown Law? What a great way to insult the integrity of your partner in Government!

    http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10559642

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  6. toad (3,669 comments) says:

    DPF said: 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.

    I would hope that he would go back to Crown Law and discuss it with them first (and am sure that is what he means by “I will examine the matter carefully”).

    Gooner, it is not often that you’ll see me as a Green praise a National Minister (I’ve got stuck into McCully and Brownlee here and elsewhere in the blogosphere recently) but I agree that Finlayson’s performance to date has been most impressive.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  7. Zippy Gonzales (485 comments) says:

    But Finlayson has clearly stated that if thinks the legal opinion is not up to scratch, he will substitute his own opinion.

    That’s as it should be. After all, it’s his signature at the bottom of the page. It’s called Ministerial Responsibility. It’s a welcome change to have good and proper regulatory impact statements once again. Wave goodbye to all those years of Does Not Compute conclusions from Crown Law.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  8. Right of way is Way of Right (1,129 comments) says:

    Oh my God, I have just given Philu positive karma! If that is not an indication of the inclusiveness of the present government I don’t know what is!

    Chris Finlayson, well done. The integrity of the man is palpable, and refreshingly it is not a unique quality in this new government!

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  9. Brian Smaller (3,983 comments) says:

    Oh my God, I have just given Philu positive karma!

    Damned scary isn’t it. I did as well. But to be honest, he is still a dick.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  10. Jack5 (4,569 comments) says:

    Finlayson is demonstrating that the Bill of Rights is crap. The bill lacks the flexibility of the unwritten constitution and demonstrates the flaws — without the benefits — of what in effect will soon be the rule of the dead over the living.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  11. Paul Williams (876 comments) says:

    Finlayson’s doing well, agreed, and I entirely support his position on the three-strikes legislation and the DNA testing (in my view empowering Police to sample at arrest, before even a formal charge is laid or a person’s guilt is established, significantly erodes the presumption of innocence).

    I don’t agree however, that a non-lawyer can’t be the AG for the same reasons a non-doctor can be Minister of Health or non-teacher, Minister of Education. Regardless of whether you think Cullen failed in his responsibilities, you’d be quite wrong to think he was a slave to advice, legal or otherwise.

    Incidentally, I worked at Justice when Doug Graham was Minister and, I think, Paul East was AG – both were lawyers and both good at their jobs (even though I didn’t agree several of their policies). My recollection is that Graham was pretty clearly opposed to earlier variations of the three-strikes approach.

    [DPF: I disagree AG is different to all other Ministers. It is a legal job, not just a Ministerial one. A non lawyer can be Minister of Justice but should never be Attorney-General. ]

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  12. philu (13,393 comments) says:

    speaking of ‘dick’..how is yours..?..smaller..?

    phil(whoar.co.nz)

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  13. Adolf Fiinkensein (2,790 comments) says:

    Very clever, phil!!!!!!!!!!!

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  14. PhilBest (5,117 comments) says:

    The implications of this are that our whole system of governance is designed around assumptions that office holders will be as honourable as Chris Finlayson; and when they are not, it is a case of political “absolute power”, as Ian Wishart so rightly pointed out.

    If our system is to work, it requires the honourable people to be rewarded at the ballot box and the dishonourable people to be punished. And it shouldn’t take 3 terms of damage to the economy and to society.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  15. PhilBest (5,117 comments) says:

    What is more, many commentators have pointed out that it is conservatives and right wingers who make all the honourable gestures and naively expect them to be reciprocated in the event of the socialists regaining office; in spite of all the evidence of history to the contrary.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  16. Paul Williams (876 comments) says:

    The implications of this are that our whole system of governance is designed around assumptions that office holders will be as honourable as Chris Finlayson; and when they are not,

    PhilBest,

    I think you’re conflating the different responsibilities of Ministers with those of officials. Officials aren’t elected and ought to be both expert and impartial. They should give their considered advice, cognisant of government policy but not beholden to it until the Minister makes a determination and then faithfully implement etc. Ministers should consider officials advice but make up their own minds and be accountable for it – not blame officials nor hide behind them. Finlayson’s doing his job well and deserves credit for it, but Cullen choosing a position differently from that advised by his officials – if that’s what in fact happened – is no less meritorious. It’s him that’s elected. That you think he choose wrongly is your perogative and you get to vote for/again him.

    As for your comment that rightwingers/conservatives are more honourable, that’s as silly as leftwingers claiming to be the only ones with hearts.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  17. GPT1 (2,087 comments) says:

    The media would do well to work this out. I heard some hopeless beat up the other night along the lines of Attorney General undermines ACT policy or some such. Of course the three strikes concept is against the NZBORA and the advice should be such. If, fully informed, Parliament still votes for it so be it but, unlike the ERA nonsense, at least get the right advice.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  18. insider (1,000 comments) says:

    “I disagree AG is different to all other Ministers. It is a legal job, not just a Ministerial one. A non lawyer can be Minister of Justice but should never be Attorney-General.”

    Lawyers are not gods. 50% of the time they are wrong – that’s how we have winners and losers in court cases. WHat you need in any minister first of all is good judgement and a bullshit radar. Lawyers can lack those as much as any other mere human.

    To say you must have a lawyer as AG implies that as AG his/her legal views could properly substitute for opinions that (we presume) have been rigorously developed. Frankly, no matter how good FInlayson is, I doubt he is equally expert in every part of the law (and I assume he would agree) that he would deal with as AG.

    So being a lawyer with a background in family law may not actually be that much advantage over say a professor of ethics or political and constitutional history when it comes to discussing BoR issues.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  19. XChequer (350 comments) says:

    Look to Finlayson in future years.

    I don’t know what his ambitions are, if any however he has a powerful intellect, a great presence in the house and an innate sense of responsibility that I think, will carry him far.

    I’m looking forward to his contributions as part of this National government

    XChequer
    http://thenzhomeoffice.blogspot.com/

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  20. toad (3,669 comments) says:

    BTW, Finlayson’s statement “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.” is very interesting in the context of David Garrett’s previous assertion that:

    …the concerns [re his Three Strikes Bill] were not Mr Finlayson’s personally but those of “some oik in Crown Law”.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  21. side show bob (3,660 comments) says:

    Well done Mr Finlayson, this man deserves a DB. It will take some getting use to having an AG with both a conscience and a set of balls. Better then the last greasy palmed socialist jellyfish.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  22. Ratbiter (1,265 comments) says:

    Good to have someone at the top who’s willing to stick his neck out – kinda the reason you put someone on top really.

    If a non-lawyer can full the position, then presumably the whole idea of the A-G is that whoever gives the A-G the legal advice must be deemed a pretty good authority?

    I have no idea of Chris Finlayson’s credentials as a lawyer – it’s possibly worth appreciating that the people advising him may well be much bigger better lawyers than he…?

    [DPF: Well Chris has appeared before the Privy Council more than (off memory) any other lawyer bar one. I think if you ask around, you will find he was highly respected for his legal skills]

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  23. dad4justice (7,729 comments) says:

    ratbiter;wonder who was the Attorney General lawyer who cut ties with the Privy Council? I think she become madam speaker and screamed at big Gerry all day.

    Good luck National.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  24. GPT1 (2,087 comments) says:

    I for one am very pleased Finlayson is in Parliament. Means I will never have to come up against him in Court. When it comes to law the guy is the business. He is extraordinarily bright but better than that he has massive processing power. Very quick on his feet and deadly in Court. Was an author for MeGechan on Procedure (ie: the High Court rules). Finlayson is very much the business.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote

Leave a Reply

You must be logged in to post a comment.