The role of the Attorney-General

  • Michael Cullen

Speech notes to Canterbury Law Faculty: role and functions of the Attorney-General.

You have asked me to speak about the role and functions of the Attorney-General, the principal law officer of the Crown.

The role is, of course, an ancient and august one dating back to 13th century England. It is therefore best performed by an individual who is himself ancient and august.

As Attorney-General in New Zealand I can if I wish trace my whakapapa back through 58 previous office holders, to one Francis Fisher, who was appointed in 1841 and was one of only three permanent officials of the Executive Council, the others being the Colonial Secretary and the Colonial Treasurer. This troika of officials was effectively the colonial government, predating the formation of the New Zealand legislature by more than a decade.

For the ordinary New Zealander, the role of principal law officer probably conjures up images of a six-shooter and spurs, a jaunty hat, a good horse and a posse of loyal deputies. Nothing could be further from the truth, sadly.

Like many of our important constitutional roles, the Attorney-General is not established by statute. Although some pieces of legislation assume the Attorney’s existence, and confer upon the office various duties and powers, it is a creature of convention.

Despite this, it is not an office with much scope for creativity. Constitutional conventions may technically be ropes of sand, but they are very strong nevertheless.

The Attorney-General has two roles in Government:

·He is the Minister of the Crown responsible for the Crown Law Office, the Serious Fraud Office and the Parliamentary Counsel Office. Traditionally in New Zealand the Attorney-General also has policy portfolio responsibilities not connected with those of the Attorney-General.

·And he is the Senior Law Officer of the Crown with principal responsibility for the Government’s administration of the law. This function is exercised in conjunction with the Solicitor-General, who is the junior Law Officer.

In exercising the constitutional role the Attorney-General seeks to ensure that:

·the operations of executive Government are conducted lawfully and constitutionally; and

·the Government is not prevented through use of the legal process from lawfully implementing its chosen policies.

These constitutional responsibilities, which support New Zealand’s commitment to democratic government under law, are sometimes referred to as “the Attorney-General’s values”.

The Attorney-General role uniquely combines the obligation to act on some matters independently, free of political considerations, with the political partisanship that is associated with other Ministerial office.

My fundamental responsibility, when acting as Attorney, is to act in the public interest. This inevitably gives rise to perceived conflicts of interest with respect to my other roles as a Cabinet Minister in a Labour-led government. This is managed through a clearly defined relationship with the Solicitor-General, who is a non-political law officer available to advise and assist on and, where appropriate, to discharge law officer functions.

The Solicitor-General is generally authorised by statute to exercise the functions of the Attorney-General, thereby clearly isolating, when that is considered desirable, law officer decision-making from the appearance of political influences.

Indeed most of the Attorney-General’s law officer functions, duties and powers can be exercised or performed by the Solicitor-General. There are some powers which can be exercised only by the Attorney-General, for example, the reclassification of special patients under the Criminal Procedure (Mentally Impaired Persons) Act 2003. Equally there are some functions which are specially vested by statute in the Solicitor-General. These include the power to appeal against sentence and powers under the Coroners Act 1988 to authorise an inquest into deaths occurring outside New Zealand and to authorise fresh inquests where there is new evidence.

As to the substance of the role, the Attorney-General operates primarily in four spheres: the Cabinet, the Parliament, the Courts and the Judiciary.

The Cabinet

As the principal legal adviser to the Government the Attorney-General has similar responsibilities to those of any legal adviser towards a client. In Cabinet and Cabinet Committee meetings, the Attorney-General’s role includes giving legal advice and encouraging Ministerial colleagues to seek appropriate legal advice in the course of Government decision-making.

In practice it is the Solicitor-General (either directly or through Crown Counsel) who gives legal advice to the Government. But that advice is always subject to the opinion of the Attorney-General, whose opinion prevails in the event of conflict.

In addition, the Attorney-General has overall responsibility for the conduct of all legal proceedings involving the Crown, and can be expected to keep other Ministers generally informed of the initiation, progress and outcome of such proceedings against or by the Government.


The Attorney-General is answerable to Parliament in a number of respects. Like any other minister, the Attorney is answerable for the actions of the agencies under the Attorney’s ministerial control (Crown Law, Serious Fraud and Parliamentary Counsel Offices), and for the exercise of law officer powers.

The Attorney-General also has special responsibilities to Parliament in relation to legislation. These underscore the independence with which the duties of the Attorney-General must be exercised.

In terms of s7 of the New Zealand Bill of Rights Act 1990, the Attorney-General reports to the House of Representatives any provision in a bill introduced to Parliament that is inconsistent with the Bill of Rights.

For all bills apart from those for which the Minister of Justice has responsibility, the Attorney is advised on this matter by the Ministry of Justice reflecting the view that in its preliminary stages the Bill of Rights vetting process raises policy matters. To avoid any perception of a conflict of interest, bills promoted by the Minister of Justice are vetted by the Crown Law Office which then advises the Attorney General. The Crown Law Office will also advise in any case where an adverse report to the Attorney is contemplated.

The Attorney may also approve the giving of legal advice by the Crown Law Office to Parliamentary select committees if they seek legal assistance.

Finally, in the past, by convention the Attorney-General is also Chair of Parliament’s Privileges Committee. That convention has now not been followed since the 2002 election.

The Courts

Moving to the Attorney-General’s role in the courts, the Attorney is the principal plaintiff or defendant on behalf of the Government. Judicial review proceedings usually name the relevant Minister of the Crown or other decision-maker involved. Generally, proceedings involving Ministers and departments will be handled by the Crown Law Office for the Attorney-General and Governmental interests directly affected (although the Solicitor-General will brief particular matters to outside counsel in appropriate circumstances).

In addition, the Attorney-General has a separate responsibility to represent the public interest on behalf of the general community. In doing so, the Attorney-General may intervene in proceedings which affect the public interest.

All proceedings are served on the Crown Law Office, and the Solicitor-General (or allocated Crown Counsel) acts as counsel. In the past the Attorney-General has occasionally appeared personally as counsel for the Crown, including appearances before the Court of Appeal and the Privy Council. The Attorney-General has also appeared before the International Court of Justice.

Outside of this role in representing the Crown’s interests in the courts, the Attorney-General has a number of roles in promoting the public interest in the courts. The Attorney-General through the Solicitor-General traditionally lends assistance to citizens seeking to enforce the law in circumstances where there is no individual right to initiate proceedings (called “relator proceedings”). The relaxed requirements of legal standing mean relator proceedings are now uncommon.

The Attorney-General also has a responsibility to ensure that vexatious litigants do not abuse lawful avenues of redress. Those who are declared to be vexatious litigants are limited in their ability to pursue court actions. In addition, there are various types of proceeding that can be taken only with the Attorney’s consent.

The Attorney-General can also seek leave to intervene in the public interest in proceedings to which the Attorney-General is not already a party. For example, in ENZA Ltd v Apple & Pear Export Permits Committee [2001] 3 NZLR 456. In that case, the Apple and Pear Export Permits Committee was established by ENZA, pursuant to regulations, to determine applications for export permits and to monitor compliance with permit conditions. By 17 February 2001 permits had been approved for the 2001 season for over four million tray carton equivalents compared with 1.98 million for the whole of the previous season. ENZA brought proceedings for judicial review, challenging the process by which the decisions to issue permits had been made. The Attorney-General intervened to promote the aims of the legislation and to protect the interests of the public at large.

The Attorney-General can represent the public interest in the administration of justice and, where appropriate, take legal action to see that the law is observed and justice is done in both criminal and civil proceedings. An illustration of this role with respect to civil proceedings is the case of Attorney-General v Maori Land Court [1999] 1 NZLR 689 (CA). An application for judicial review was brought with respect to the jurisdiction of the Maori Land Court to deal with land owned by a local authority.

With respect to the criminal jurisdiction, the supervision of criminal prosecutions is one of the areas in which the Attorney-General (with the Solicitor-General) exercises powers, functions and duties relating to the proper administration of justice in the public interest.

Prosecutions must be carried out independently from the exercise of executive power. The public interest requires the interests of society to be upheld in a principled way. There is a need for the supervision of the exercise of prosecutorial discretion especially since prosecution decision-making is not (other than in extreme cases) subject to judicial review.

By tradition, Attorneys-General have preferred not to become directly involved in the areas of prosecution or Law Officer decisions by the Solicitor-General in relation to criminal proceedings. The reason for this convention is to prevent the administration of criminal law becoming, or appearing to become, a matter of political decision-making. The Solicitor-General is of course accountable to the Attorney-General for the overall supervision of criminal prosecutions.

The Judiciary

The Attorney-General carries the principal responsibility in Government for the relationship of the executive Government with the judiciary. The Attorney-General also has responsibility for the appointment of members of the judiciary, namely Judges of the Supreme Court, Court of Appeal, High Court, and District Court.

In addition, the Attorney-General has a particular responsibility for protecting the judiciary from improper and unfair criticism, for example, by answering attacks on their decisions and by actively discouraging other Ministers from engaging in improper attacks or criticism.

It is also important to the effective functioning of the judiciary that people who act in a manner that interferes with the administration of justice in particular cases are made accountable. It is the Law Officers’ responsibility (in practice undertaken by the Solicitor-General) to bring proceedings for contempt of court in such cases. The most common instance is pre-trial media publicity of a kind that tends to prejudice a specific criminal trial before a jury.

In addition to the roles I have outlined, the Attorney-General also performs a number of miscellaneous duties. For example, the Attorney-General has responsibilities in relation to charities, as outlined in the Charitable Trusts Act 1957. These are exercised by the Solicitor-General or by a Deputy Solicitor-General under a delegation.

The Attorney-General is also responsible for recommending to the Governor-General the appointment of lawyers as Queen’s Counsel (soon to be renamed Senior Counsel). Also the Attorney-General is a member of various bodies, such as the Rules Committee, which is charged with responsibility for developing the District Courts, High Court and Court of Appeal Rules, and the Council for Law Reporting, which has responsibility for the publishing of the New Zealand Law Reports.

It is legitimate to ask whether the role of the Attorney-General is evolving in any particular direction. In reality the functions and roles I have described have remained remarkably stable, despite changes in the four spheres I have outlined. The Cabinet and the Parliament have, of course, been altered significantly by the advent of MMP and the creation of innovative forms of governing arrangements.

I am pleased to report that the Attorney-General’s roles and functions have been almost entirely untouched by these changes. My core functions, such as ensuring the operation of executive government are conducted lawfully and constitutionally, remain. To my mind this reflects the essential malleability at the core of our unwritten constitution that continues to provide New Zealanders with good and stable government.

Thank you.