From The President - 24 November 2023

Tēnā koutou katoa.

I am writing this as we all await the formation and announcement of our new Government, including importantly for the legal profession, our new Attorney-General and the new Minister of Justice.

By the time you read this, on Friday 24 November, we hope to have these announcements.

Over the last few weeks, while we have waited for our new government to form, it has prompted me to consider the importance of the roles of Attorney-General and the Minister of Justice. The two roles are not generally held by the same Minister.

To give you a flavour of the last 12 years, we have had a number of Ministers of Justice, including:

Judith Collins 2011 to 2014;
Chris Finlayson, for a few months at end of 2014;
Amy Adams 2014 to 2017;
Andrew Little 2017 to 2020;
Kris Faafoi Nov 2020 to June 2022;
Kiri Allan, June 2022 to July 2023;
Ginny Anderson, July 2023 to current.

By contrast, over the same period, we have had only two Attorney General’s hold the role:

Chris Finlayson 2008 to 2017; and
David Parker, 2017 to present.

The Attorney General’s, office first started in 1856 with Fredrick Whitaker. Since that time, we have had 32 Attorney General’s, including many prominent lawyer politicians David Lange, Geoffrey Palmer, Doug Graham. To date only one female has ever held the role, when Margaret Wilson held the role for five years during the early 2000’s.

The role of Attorney-General | Rōia Matua is unique in Cabinet. It holds simultaneously a ministerial position as a member of Cabinet, but must at the same time, act in an apolitical function as the chief legal officer of the Crown. The ministerial jurisdiction for the Attorney General covers the Crown Law Office, the Parliamentary Counsel and the Serious Fraud Office.

As the chief legal officer of the Crown, the Attorney-General is required to act with independence from the usual business of being a politician, including as the check on the government. The role must ensure the government is upholding the rule of law, acting in compliance with the Bill of Rights and advising on other domestic and international obligations. There are four key functions of the office, which highlight the breath of the legal role.

Legal Counsel to the Government: The Attorney-General offers legal advice to the government on constitutional, legislative, and policy matters. This includes advising on the development and implementation of laws and policies.
Guardian of the Public Interest: Acting as a guardian of the public interest, the Attorney-General ensures that the government's actions are consistent with legal principles and uphold the rule of law.
Prosecutorial Functions: The Attorney-General has a significant role in the prosecution process. While the day-to-day prosecution duties are typically carried out by the Crown Solicitor or the Crown Prosecutor, the Attorney-General oversees matters of significant public or constitutional importance.
Representation in Legal Proceedings: The Attorney-General often represents the government in legal proceedings and plays a key role in litigation involving the Crown.

Chris Finlayson KC, when speaking earlier this week at the Bar Association event “Perceptions of the Bar from above”, described his approach to the Attorney-General’s role as being “a lawyer in politics, rather than a politician who is a lawyer”.

We look forward to welcoming the new Attorney-General and the Minister of Justice in their respective roles and supporting the important roles they have for the profession.

Another matter that has occupied my reading time this month, has been a submission helpfully provided to me by the President of the Victorian Bar Association, Sam Hay KC. The submission attracted some media in Australia last month when it was presented to the Parliamentary Inquiry on Corporations and Financial Services into Ethics and Professional Accountability. The submission seeks to highlight the value of the independent bar in avoiding conflicts between government and private clients. The Inquiry itself is a cautionary tale for governments both in Australia and New Zealand about the conflict challenges for multi-disciplinary professional firms. A full copy of the Victorian Bar submission is attached below.

The Inquiry arises out of a case concerning Pricewaterhouse Cooper’s (PWC) multidisciplinary firm of professional advisers, which includes accountants, lawyers and consultants, who it is understood misused confidential information of the Commonwealth in its commercial activities with other private clients. These findings were established in the Senate Finance and Public Administration Committee Report “PwC: A calculated breach of trust”, presented to the Inquiry.

The Victorian Bar submission focuses on three matters:

The difference in the professions that arise not only out of different regulatory environments, but different ethical norms;
The use of claims of legal advice privilege by multi-disciplinary partnerships which are business entities that provide legal services and other professional advisory services; and
The government procurement protocols which had been in the words of the submission, have been ” skewed towards the provision of services primarily by muti disciplinary and consulting firms (not only for the provision of legal services but professional services generally)”, when in some cases the better provider of those services may have been independent individuals such as barristers, who may be more cost effective and accountable and may mitigate the costs of services provided to the public sector, increase accountability and protect against conflicts of interest.

Interestingly, this matches with some of what we heard in the wisdom from our former Solicitor General, Mike Heron KC, reflecting on his time in the role. His comments at our Bar Association event “Perceptions of the Bar from above”, included his observation that in his time in the SG role, he placed some reliance on the independent bar to provide frank and robust advice. The importance of the independent bar was highlighted to him over his time as Solicitor-General, in a way that had not been as obvious to him in private practice.

While there is always a danger in seeing the value of “our own importance”, there is certainly no reason for false modesty. There remains an important and continued role for the Bar Association and its members, to be the voice of the independent bar.

The Bar Association Council will also be meeting this Friday in our final all-day meeting of the year, in Auckland. We will be discussing the projects, advocacy, and education we are working on for the bar. I will update you on the outcomes of that meeting and plans for the New Year in my final update for you later in December.

I look forward to seeing many of you at our final functions of 2023 over November and December. If you are going to be in the Auckland this Friday 24 November, please come along to The Pavilion in the Vero Centre, CBD to enjoy a glass of something with colleagues at the bar. Many of the Bar Council members will be there after our Council meeting, so it will be a chance to catch up and for us to thank you for all your assistance and support this year. Other events are also being held around the country to celebrate another year at the bar.

In 2024, the Bar Association will move into it’s 35^th year, something to celebrate.

Ngā mihi nui,

Maria Dew KC