The Attorney-General of Australia is our nation’s First Law Officer. The primary responsibility of this role is to protect the rule of law and the integrity of the Courts. In practice, the Attorney- General delegates many administrative functions of their role to others.

The Attorney-General is a Member of Parliament, appointed by the Governor-General under the Constitution, on the advice of the Prime Minister.   By convention, the Attorney-General is a lawyer and has the role of principal legal adviser to the Commonwealth government.

 

The primary responsibility of the Attorney-General is to protect, preserve and promote the rule of law. 

 

This means the Attorney-General must ensure the law is applied equally and fairly to everyone and that checks and balances are maintained between the three arms of government – the legislature, the executive and judiciary. An inherent part of the First Law Officer’s responsibilities is also to ensure that each of these arms of government are accountable to the public.

As stated on the Attorney-General’s website:

We uphold the rule of law through our daily work to ensure:

·       laws are clear, predictable and accessible

·       laws are publicly made and the community is able to participate in the law-making process

·       laws are publicly adjudicated in courts that are independent from the executive arm of government

·       dispute settlement is fair and efficient where parties cannot resolve disputes themselves.

We support the Australian Government in being accountable for actions, making rational decisions and protecting human rights.

In essence, the Attorney-General is to be the promoter, protector and “head publicist” for the rule of law.  It is the Attorney-General’s role to make sure there is public confidence in the rule of law and that those in power, whether they are the Parliament, Executive, Judiciary, Media or Community leaders, adhere to the rule of law.

 

Click here to read what the Job Description for the Attorney-General should include:

 

In protecting the rule of law, the Attorney-General must ensure the law is allowed to take its course.  This means the Attorney-General must uphold established legal traditions and processes such as the presumption of innocence and fair and prompt trials.  For criminal matters, the Attorney-General must ensure they are appropriately dealt with first by a police investigation and then by the judicial system.  Parallel systems of justice and trial by media are contrary to the rule of law and erode public confidence in the integrity of the legal system to provide justice.

 

 

 

As First Law Officer, the Attorney-General is also responsible for the administration of justice.  His duties include oversight of the Attorney General’s Department, the federal government department which advises the Commonwealth government on issues such as  constitutional and international law matters, industrial relations, workplace health and safety, institutional integrity, fraud and anti-corruption, the family law system and people’s rights.

 

 

Under the Law Officers Act 1964 (Cth) some powers of the Attorney-General are delegated to other Law Officers. For example, the Solicitor- General acts as second Law Officer and provides legal advice to the Commonwealth and the Australian Government Solicitor.  The Director of Public Prosecutions (DPP) is also a delegation under  Director of Public Prosecutions Act 1983 to initiate and conduct public prosecutions.

At its most basic level, the rule of law is a simple concept.  It requires that we have laws that are known, adhered to and enforced.  The Australian Constitution creates a system of checks and balances on the use of power and divides the institutions of government into three arms.  Each arm of government works within defined areas of responsibility and keeps a check on the actions of other.


The Attorney-General is appointed as the official “protector of the rule of law.”

It is the responsibility of the Attorney-General to speak out when the principles of the rule of law are being eroded and to ensure community support of these foundations.  The Attorney-General must promote an informed citizenry and a culture of lawfulness that supports the rule of law.   

However, it is not solely the responsibility of the person elected as Attorney-General to promote and protect the rule of law.  It is up to the Attorney- General to ensure that every Australian- whether they be the PM, a MP, lawyer, teacher, business leader or regular average Aussie, know and value the rule of law and are actively involved in ensuring the law is applied equally and fairly. 

 

 

The Role of the Attorney General is not political or personal

Click this link to read an article by Robin Speed that states:

The role of the Attorney General is not political or personal, he occupies a role which transcends these interests.

LJ King wrote in the Western Australian Law Review in October 2000;

“…a special responsibility for the rule of law and the integrity of the legal system which transcends, and may at times be in conflict with political exigencies, the Attorney-General has the unique role in government of being the political guardian of the administration of justice”

In addition, the Attorney General must perform these functions even though he might be under personal discomfort and pressure.

The present Attorney-General finds himself in this position following being accused of a rape many years prior to being appointed as the Attorney-General. He has denied the accusation and the New South Wales police have investigated the matter and decided that there is insufficient evidence to prosecute. Despite this, and there being no suggestion that the investigation was conducted other than in a proper and independent manner, or that there are new facts, there has been incredible pressure on him to face some sort of a unofficial inquiry and resign.

….

The Rule of Law Institute of Australia considers the Attorney-General must not resign as the proper legal process has been followed; an independent police investigation and an open decision not to prosecute in the courts.

That is the Rule of Law in operation.

It is not compatible with the Rule of Law that the police investigation be followed by some form of unofficial investigation, which has an unknown agenda and scope … other than to find Mr Porter guilty of something, anything.

To resign in the face of such would be a failure to uphold the Rule of Law and a failure to be the guardian of the administration of justice.

 

 

Response to the Australian Law Journal Article

Click this link to read an article by Robin Speed that states:

The Rule of Law Institute of Australia respectfully considers the reasons of the General Editor in the May 2021 issue of the Australian Law Journal are not soundly based and is of the view that it would be contrary to the Rule of Law to hold an inquiry into whether Mr. Porter is a fit and proper person to hold the office of Attorney-General.

 

No man is above the law … but neither is no man below the law.

 

That is one of the cardinal principles of the Rule of Law.

Porter holds the office of Attorney-General, and in accordance with that principle the law has operated. A rape allegation was made against Porter and the police duly investigated. They decided that there was insufficient evidence to prosecute and there has been no suggestion that there was anything wrong with the investigation or that Porter interfered with it. Porter is now entitled to the protection of the law.

 

 

An inquiry can have no object, it is not a person, it would be an inquiry whether the inquirer considered the allegation was proved to the criminal standard or some lesser standard. An investigation outside of the criminal system would be contrary to the Rule of Law regardless of its stated object.

 

Further Information:

 

  • Hands, T and Davies, D, “Defend Thyself!”
  • The Hon Daryl Williams AM QC, “The Role of the Attorney General”
  • King, LJ, “The Attorney-General, Politics and the Judiciary”
  • Rule of Law Institution Podcast

Paul Lynchmap

The Hon Paul Lynch, Shadow Attorney General of NSW

In a 2014 podcast we interviewed the Shadow Attorney General for NSW, the Hon Paul Gerard Lynch, about how he sees the role and any inherent tensions

 

 

 

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