Reshuffle exposes Cabinet risks
Tough circumstances no justification for merging premier and attorney-general roles, writes Brendan Gogarty
LAST week’s Cabinet reshuffle was one made in clearly “challenging circumstances” due to the unfortunate departure of two key Cabinet ministers.
Part of the deficit was met by elevating Elise Archer to the Cabinet, a well-deserved and popular decision.
Seemingly less publicised was the Premier’s decision to appoint himself AttorneyGeneral, although ex-premier Lara Giddings immediately tweeted her concern: “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”.
Indeed, Ms Giddings herself surrendered the role of attorney-general to become premier on January 24, 2011.
David Bartlett, on the other hand, only took up the role of attorney-general after he lost his premiership on January 23, 2011.
This hasn’t always been the case. There are some examples of the Tasmanian premier also being attorney-general (other than transition and acting arrangements). These are notably: Eric Reece for almost three years (on and off between 1958-1974), John Earle (1914-1916) and Elliot Lewis (1909-1912).
Just because this has happened (infrequently) in the past, doesn’t mean it was right or that it should continue.
The appointment not only consolidates two powerful but also conflicting roles: one that leads and drives government policy; the other which is supposed to be a check and balance on it. For more than four centuries the rule of law in our Westminster system has meant that we separate, rather than consolidate distinct powers in government officials.
There are exceptions. Indeed, one of the great benefits of our use of convention rather than hard rules is that we can deviate from the principle when the circumstances justify it.
In this case, however, they arguably do not.
Who are the attorneygeneral and premier?
In our common-law Westminster system, the attorney-general is the state’s chief legal officer, the protector of the courts and legal adviser of the Crown.
In fact, in the UK Westminster tradition, the attorney-general could not sit in Cabinet at all to ensure they weren’t influenced by political rather than legal concerns.
In Australia, the modern view is that it is better to have the chief legal officer sitting in Cabinet to advise on important policy discussions.
However, this strengthens rather than reduces the need to divide the role from the premier’s.
The premier is the political head of government, responsible for the formulation of state policy, facilitating its carriage into law, and implementing that law in practice.
These are the very things which the attorney-general should be contributing separate, objective and considered legal opinion and advice on.
It can be — and has been — argued that the attorneygeneral 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, so technically and legally the obligation remains the same.
Hence, while in practice, the source of legal input to government is the solicitorgeneral’s department, the attorney-general is in our system ultimately responsible for that advice.
The attorney-general is at the top of the public-law food chain and controls what information and advice makes its way to parliamentary or government decision-makers.
Equally problematic is the ability to directly hold each office holder to account. If a premier appears to promote legally questionable policies, or attacks the judiciary, there is no way to properly distinguish whether they do it as head of party, head of Cabinet or as attorney-general.
When other government members act outside of constitutional limits, it is likely to be unclear whether they do so with the support of the political leader, or the consent of the chief legal officer.
The conflict between the
roles is clear. One role risks undermining the other, most likely the traditional role we have ascribed to the attorneygeneral. 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 Will Hodgman has had a relatively robust respect for the rule of law and constitutional governance during his tenure.
It may be assumed that, in the challenging circumstances, insufficient consideration was given to the implications of consolidating the roles.
Challenging circumstances are, however, not the same as exceptional ones.
There are definitely others within the Government and Cabinet who could properly take the attorney-general role, not least Elise Archer, who has a longstanding and respected record as lawyer and Speaker of the House of Assembly.
That last role is especially 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 attorneygeneral too. Dr Brendan Gogarty is a barrister and solicitor and senior lecturer in law and co-ordinator of constitutional law at the University of Tasmania.
The attorneygeneral is at the top of the publiclaw food chain and controls what information and advice makes its way to parliamentary or government decision-makers