Mistake to consolidate Premier and Attorney-General portfolios
09.10.2017
Last week’s Cabinet reshuffle in Tasmania might have passed by mainland Australians. It was one made in clearly ‘challenging circumstances‘ for the Government; with one Cabinet Minister quitting politics for family reasons and the other due to serious illness. Part of the deficit was met by elevating Elise Archer MP to the Cabinet – a well-deserved and popular decision from both sides of the House and indeed the public.
Seemingly less publicised was the Premier’s decision to appoint himself Attorney General. Ex-Premier Lara Giddings was one of the few to voice her concern, immediately tweeting:
‘why is the Premier AG? The AG role is the second most powerful role in Cabinet. You can run Govt with just an AG and Premier’.
This is a serious question because the appointment appears to consolidate the two most powerful constitutional roles in Government in one person. These are roles that are somewhat at odds with each other: one leads and drives government policy; the other is supposed to be a check and balance on the legality and constitutionality of government action.
As will be seen, these very real conflicts have led to historical controversies – if not outright constitutional impropriety – within the state, providing salient lessons outside of it. Indeed, the last time a Tasmanian Premier was truly co-appointed Attorney-General – other than acting or transitional roles – it formed a chain of events that culminated in the Franklin Dam controversy, and of course, the Tasmanian Dam Case, both of which forever altered the national political and constitutional landscape.
Historical Context
Giddings concern about the overlap is reflected in her own willingness to surrender her role as Attorney General to take the Premiership on 24 Jan 2011. David Bartlett on the other hand only took up the role of Attorney General after he lost his Premiership on 23 January 2011.
However, this hasn’t always been the case, there are several examples of the Premier also being Attorney General of Tasmania; the most recent examples being Ray Groom – although only for a day to fill a gap – and Labor Premier Eric Reece for almost three years (on and off). However, to find other significant dual appointments we must go back to the early part of the 20th Century to Labor’s John Earle (1914-1916) and Conservative/Cth Liberal Elliot Lewis (1909 to 1912). Yet, just because this has happened in the past doesn’t mean that it was right, or the tradition should be continued, unless there are exceptional circumstances to justify the dual appointment. In this case there are probably not.
The Role of the Attorney General
In our common-law system the Attorney-General is the first law officer of the state and ‘legal advisor of the Crown’ . They are, by convention responsible for, amongst other things, the running of criminal cases on behalf of the state, suing and defending against lawsuits against the Crown, as well as protecting the judiciary from political attack. Importantly, the Attorney-General’s role also conventionally extends to providing free and frank advice on the legality (and legal implications) of government actions and policies to the Cabinet, Parliament and Executive.
Can the Attorney General be a Cabinet Member?
Tasmania’s Constitution Act 1934, s 8C states:
(1) Except as provided in this section, no office, power, duty, authority, obligation, or discretion that is by law conferred or imposed upon the Attorney-General shall be allocated to, or exercised or discharged by, any other Minister of the Crown or the Secretary to Cabinet.
The provision goes on to allow the Governor to appoint another Minister of the Crown to be ‘Acting’ Attorney General, where she or he ‘considers it expedient to do so’ … for a specified period or until the happening of a specified event’.
Section 8C of the Constitution Act could, perhaps, be read to permit a co-appointment. That is, it might be said that a Crown Minister (such as the Premier), who is also Attorney-General cannot delegate or confer the powers deriving from their responsibilities as Attorney-General on another Cabinet member. However, a history of the provision seems to indicate otherwise.
The History of 8C of the Tasmanian Constitution Act
Section 8C was inserted in 1977 following questions arising from a prosecution in the Supreme Court of Tasmania [Williams v R [1977] Tas SR (NC) N10] in which a submission had been made that a Ministerial order under the Act had no legal effect because it was made without authority. That submission was rejected, and the power, was affirmed. However, the Parliament moved to quell any ostensible uncertainties that had arisen (as well as deal with other matters relating to crown ministerial responsibility/appointments) through constitutional reform. The Government also noted that the case had provided an ‘opportunity to review the manner in which amendments made to the Ministers of the Crown Act’ which had been made in 1975 (Second Reading Notes). Ultimately this process led to incorporating of provisions of the (now repealed) Ministers of the Crown Act 1923 into the State’s Constitution Act.
That Ministers of the Crown Act had allowed Ministers of the Crown (which explicitly included the Premier, even absent a portfolio (s 3)), to perform each other’s duties (s 5) and sign on each other’s behalf (s 7) in times of necessity – such as absence or disability of another Crown Minister, or the dissolution of the Legislative Assembly (Second Reading notes 1977). The universal exception to this was the office, powers, duties and obligations of the Attorney General, which could not be so allocated to any other Minister (ss 5(3), 7).
Read together, and in reverse sequence, the Ministers of the Crown Act then precluded the office – or any powers duties and obligations of that office – of Attorney-General from being allocated to the Premier. On a plain-reading of the words at least, this would seem to preclude co-appointment of these two offices.
Bar the largely unnecessary reference to the Premier as a Minister of the Crown, the words of the Ministers of the Crown Act, if not the sequence, were retained in 8C of the Constitution Act. In fact, in introducing the provision, Premier Neilsen noted in his second reading speech that its re-adoption within the State’s constitutional legislation was intended to reinforce the:
special position of the Attorney-General …[as] the senior Law Officer of the Crown … [having] expressly conferred on him [or her] by statute a number of powers and discretions mainly relating to the administration of the legal system, particularly where matters of public interest or political considerations are involved [emphasis added]
The legislative intention here, along with the words of the section(s) adopted, and the words of section 8C itself indicate that, at the very least the Attorney-General is a singular and unique office within the Government and Cabinet. It is one which is intended to not be as influenced by political considerations as the powers, duties and obligations, of other Crown Ministers are.
What is also telling about the incorporation of the Ministers of the Crown provisions into the Constitution Act is both its timing and its particular emphasis on the Attorney-General. In relation to the latter, some energies were dedicated to reformulating the multiple sub-section qualifiers of the Minister of the Crown Act relating to that office into a dedicated section. The provision as to Attorney-General could very well have been dropped within the Constitution Act (leaving the question to convention alone) or left as qualifiers to the primary rules rather than being consolidated (as it had been previously). It is also interesting that the Premier’s second reading notes go some way to explain the role of the Attorney-General at length as a justification for its inclusion. This was despite the apparent controversy at the time really having nothing to do with the Attorney-General at all.
Williams v R (the justification for 8C and other 1977 constitutional reforms) dealt with the question of whether a Minister’s decision under the Poisons Act was in jurisdictional error if the statutory committee upon whose recommendation he was required to rely included a person not a member of the council being present at the meeting and the minutes not containing the word ‘recommendation’, but instead ‘adopted’. This has little to do with the form of shared Ministerial responsibility at all, much less questions about the role of the Attorney-General. As noted, it also didn’t create genuine uncertainties, because the Court affirmed the Minister’s proper exercise of jurisdiction. Ultimately there appears little justification to review the Minister of the Crown Act, much less use it as a springboard for constitutional reform.
It is perhaps the timing of the constitutional amendments which suggest that other reasons were at play. The Constitutional (Ministers of the Crown) Amendment Bill 1977 – which gave rise to 8C – followed closely on the heels of the retirement of Eric Reece in 1975. Importantly, Reece was the last Tasmanian Premier to dually appoint himself Attorney-General (several times over the course of his multiple tenures).
The legacy (and anomaly) of ‘Electric Eric’ Reece, Premier and Attorney General
While publicly popular, Reece’s tenure was marked by high political and legal controversy. Commonly known in the state as ‘Electric Eric’ he was responsible for rushing legislation through Parliament to dam Lake Pedder and bulldozing any opposition, either within or outside of Parliament to the proposal. That included the Parliamentary Committee which advised against the building of the Pedder Dam. Of course, that course of events was the catalyst for the wider dispute that gave rise the Tasmania Dam Case, when the Franklin was proposed to be included in the scheme. Yet, even before that case, there were attempts to have the Pedder matter aired in the Tasmanian Supreme Court.
In July 1972 the Lake Pedder Action Committee sought the ‘fiat of the attorney general to allow litigation to proceed and test whether or not the inundation of parts of the South-West National Park was contrary to the proclamation under which [the Park] had been established’. The Attorney General of the time, Mervyn Everett, considered that:
my colleagues appeared to see it in purely political terms, but my duty as Attorney-General … was not to decide whether Lake Pedder should be flooded or not, but whether there was a legitimate legal question … which should be resolved in the courts …
Everett declared his intention to grant the fiat, but was instructed not to by Premier Reece, leading to the immediate resignation of Everett from the role of Attorney General. Premier Reece promptly dually-appointed himself Attorney-General and refused the writ. He then went on to introduce new legislation to grant the Hydro-Electric-Commission wide ranging powers to complete works on National Parks shielded from legal challenge. The event was decried by a range of political, legal and social interest groups, not least Tasmania’s Bar Association.
Further allegations and investigations of Reece’s Government for ‘conspiracy, bribery and corruption’ between 1973 and 1975 were kept from the public but very much impacted on the internal stability and politics of the Government and Tasmanian ALP of which Reece and his successor Neilsen were members. So too did the emerging split between industrialists and conservationists within the party that would schism into world’s first Green party.
When Premier Neilsen took over in mid-1975 he was tasked with an almost impossible reform agenda designed to stabilise both the party and the Government by re-establishing a sense of law, order and adherence to convention. While this quickly led to his retirement from ‘nervous exhaustion’ one of his major reform endeavours was the amendment of the State’s Constitution.
It therefore seems very likely that the constitutionalisation of the rules relating to the ‘special position of the Attorney-General’ were motivated by the experience of the temporally proximate ‘Electric Eric’ years. Relevantly a large part of the controversy found its source in a direct clash between the constitutional roles of Premier and Attorney-General. That controversy and apparent constitutional impropriety was exacerbated when the two previously conflicting offices were combined in one Minister.
Yet this very Tasmanian history is not the only reason that s 8C should be read to discourage if not directly preclude co-appointment of Premier and Attorney General in one Minister. Ultimately the various conventions of responsible government suggest that should be the case in all but the most exceptional circumstances.
Beyond the Constitution Act: should the Attorney General be a Premier?
The Attorney-General’s apolitical advisory role to Cabinet, Parliament and the Crown, is so important that the Westminster convention was that they could not sit in Cabinet at all. The view that prevailed in the Australian colonies, and continues to the modern day, is that it is better to have the chief legal officer sitting in Cabinet when important policy discussion is occurring.
To ensure there is still capacity for objective and independent legal advice and actions, arms-length statutory legal officers – the Solicitor General and Director of Public Prosecutions (DPP) – take on many of the non-political aspects of the Attorney-General’s role. That said, the Attorney-General remains the First Law Officer, and the Minister responsible for the DPP and Solicitor-General in the Cabinet and to the Parliament.
The Premier is the practical head of Cabinet and the leader of the governing party. They are also responsible for advising (actually instructing) the Governor to form and prorogue (suspend) Parliament, form a new government and give assent to new laws. In other words, the Premier is functionally and practically responsible for the formulation of government policy and its carriage into practice both in the form of new laws and the administration of existing laws by the public service.
These are the very things which the Attorney-General should be contributing objective and considered legal opinion on, recommending reconsideration of, or arguing are illegal or unconstitutional. The conflict is clear, and one role will inevitably undermine the other, most likely the traditional role we have ascribed to the Attorney-General.
While, in practice, the source of such legal input is the Solicitor-General’s department, as noted, the Attorney-General is in our system of responsible government accountable for that advice. Indeed, as last year’s very public spat between the Commonwealth Attorney-General George Brandis QC and then Solicitor-General Justin Gleeson SC showed, the Attorney-General can simply ignore the Solicitor-General’s advice, or (allegedly) misrepresent it within government or Parliament. These are pertinent reminders that the Attorney-General is at the top of the public law food chain and controls what information and advice makes its way to Parliament, Government and, indeed, Cabinet.
The co-appointment also creates conflicts with, firstly, the Attorney-General’s duty to ‘protect the public interests by appropriate [legal] action’ (at 557). Secondly, as ex-High Court Chief Justice Sir Gerard Brennan explained extra-judicially, the Courts rely on the Attorney-General to ‘defend the reputation of the judiciary, explain the nature of the judicial process and repel attacks based on grounds irrelevant to the application of the rule of law’.
The problem with the first proposition is that some threats from the public interest can actually come from government members, or the officers under their direction, be it in the form of incapacity, malfeasance, or simply acting outside of the limits of their power. In respect of the second, history has indicated some of the most biting, and quite often incorrect, criticism of judges has come from governments whose powers have been constrained to legal limits by judicial review, or who opt to misrepresent legal judgments for political ends.
The overarching conflict inherent in placing the role in the hands of the Premier is that she or he is the head of a government which needs to maintain a stable majority, and public confidence in government. Thus, the Premier’s political and legal interests are immediately conflicted.
Given the conflicting roles of Attorney-General and Premier, it is hard to untangle when they act as head of party, head of Cabinet or as Chief Legal Officer. More to the point it is unclear whether they have advised themselves about the legality and appropriateness of the actions or inactions. And when other government members act outside of constitutional limits it is unclear whether they do so with the support of the political leader, or the consent (or indeed lack of consent) of the chief legal advisor.
Consider, for instance, that a (hypothetical) public interest group applied to the current Tasmanian Attorney-General to exercise the same fiat that the Lake Pedder Action Committee sought in 1972. However, rather than the request being to test conflicting proclamations relating to a national park and hydro-electric dam, it is a public interest fiat to test whether the dual-appointment Premier and Attorney-General breaches s 8C of the Constitution Act. Would the matter even make its way to the Cabinet? Assuming the Premier would instruct against the fiat, would this be done in the capacity of the Attorney-General or Premier? Would it even be possible for the Attorney-General to prove that no improper direction came from the Premier, as Mervyn Everett asserted had happened in the 1970s, leading to his resignation? The situation may seem fanciful, but given the Tasmanian history in this regard, it serves to highlight the problems of combining the two offices in one person.
Certainly, the politicisation of the Attorney-General’s role over the last century has meant that the Attorney-General, as a government minister, is also less likely to stand up for the judiciary or against other government members. It can be – and has been – argued that the Attorney-General has become largely politicised and redundant and all this reshuffle has done has proved that. Yet, while politics may have changed, the law has not.
Hence, in Tasmania’s case, both the DPP and Solicitor General are statutorily bound to exercise their primary duties at the ‘direction or request’ of the Attorney-General. For instance, the Crown Proceedings Act 1993, makes it clear that the Attorney-General may intervene in any proceedings which relate to public law actions against or involving the Crown in the right of Commonwealth or Tasmania, and the Parliamentary Privileges Act 1857 allows the Houses to direct the Attorney General to prosecute any justiciable offences against those houses or any Member. In the second reading notes for s 8C of the Constitution Act, Premier Nielsen justified the need to separate the office of Attorney-General from other Ministries on the grounds that, she or he has, conferred upon her or him by statute:
a number of powers and discretions mainly relating to the administration of the legal system, particularly where matters of public interest or political considerations are involved. Instances occur in connection with the release of mental patients who have been subject to criminal proceedings and the bringing of relator action to enforce public duties, and, in certain cases, charitable trusts or to question the actions of public authorities.)
In fact, there are hundreds of references in the state’s legislation to the role as chief legal officer and attorney to, and for, the Crown. And, of course, there are the words and spirit of s 8C of the Constitution Act itself – which is premised on the notion that the role is distinct and separate to other types of Executive power.
As Gummow J noted in Grollo v Palmer (1995) 184 CLR 348, there is a long history of concern, stretching at least back to Montesquieu, to ‘avoid danger to political liberty which he perceived as posed by undue concentration of power’ (at [35]). While the United Kingdom opted to replace concentrated executive rule with – what might appear to be ‘Parliamentary despotism’ (to quote AV Dicey) – the concern over concentrating executive power remained. As Dicey noted, the rule of law requires that executive roles are defined, so that ‘even when armed with the widest authority’ they can remain under supervision. That is certainly the case in Australia, where true parliamentary sovereignty has never existed.
As Kirby J noted in Workchoices (2006) 229 CLR 1 ‘the common experience of humanity that the concentration of governmental (and other) power is often inimical to the attainment of human freedom and happiness’ (at 228-229). These are more than casual observations, they are important and fundamental concerns about the risks of consolidating governmental powers in a rule of law system.
Given the Premier and the Attorney-General are the two most powerful and distinct public roles in our constitutional system that rule should be taken very seriously and the boundary line only crossed where there are very exceptional circumstances. That very much seems to be rationale for s 8C of Tasmania’s Constitution Act and how it should be read.
There are alternatives
Whether or not you agree with the policies of the current government or the laws passed under its watch, most moderate commentators would agree Premier Hodgman has had a relatively robust respect for the rule of law and conventions of our constitutional system. Arguably his Premiership has been somewhat of an outstanding example of it, compared to some of the controversies of previous governments on both sides of the political divide.
This decision seems somewhat anomalous and it might therefore be assumed that it was driven by very challenging circumstances within the previous Cabinet and party leading to insufficient consideration given to the implications of consolidating the two roles. Challenging circumstances are, however, not the same as exceptional ones.
There are definitely others within the Government who could properly take the Attorney-General’s role, not least Elise Archer MP, who has a long-standing and highly respected record at the Tasmanian Bar and as Speaker of the House of Assembly. That role is necessarily one that requires a degree of objectivity and fearlessness in the face of political pressure. While there have been the usual political tussles over the speakership during her tenure, it has been comparatively stable and well supported by both sides of politics. Those are the characteristics that our constitutional system demands from an Attorney General too.
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Brendan Gogarty is a Lecturer at the University of Tasmania. He is the Convenor of the Tasmanian Chapter of the Australian Association of Constitutional Law and the Chief Investigator on the 2016 Tasmanian Law Reform Project.
Suggested citation: Brendan Gogarty ‘Mistake to Consolidate Premier and Attorney-General Portfolios’ on AUSPUBLAW (9 October 2017) <https://auspublaw.org/blog/2017/10/mistake-to-consolidate-premier-and-attorney-general-portfolios/>
An abridged, version of this article for general audiences was first published in The Mercury, 5 October 2017.