The Age - For a first law officer, there are degrees of difference

My Opinion Pieces
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September 25, 2021

A column published last week, “Attorney-General a job for legal expertise not political head-kicking”, argued it was inappropriate of Opposition Leader Matthew Guy to appoint me as shadow attorney-general because I don’t have a law degree.

It asserted “the Attorney-General is a part of the government and yet independent of it. If a conflict arises, they must put the rule of law and the administration of justice first, above political considerations.”

Rather than focusing on what university degree the shadow attorney-general does or doesn’t have, perhaps questions could be asked as to what the current Attorney-General has been doing to uphold the rule of law?

State Parliament has been suspended, and its few sittings highly curtailed, by an unelected health bureaucrat. What has the Attorney-General had to say about the suspension of basic norms of cabinet government that has given the Premier, but equally, unelected bureaucrats, immense power over almost every aspect of our lives?

If the entire construction sector, tens of thousands of people, can be closed down by the Premier, because of the actions of a small minority, then the rule of law is under severe threat in the state.

Given this, perhaps the most important character trait for an attorney-general is not the law degree but the courage to stand up and speak one’s mind in defence of our Westminster system and the basic dignity of every individual Victorian. I believe this is something I’ve demonstrated in spades.

Yes, of course, difficult decisions were needed to protect public health but as Waleed Aly recently said on ABC’s Insiders, “a politician’s job is not to follow health advice. Their job is to take health advice, consider it, place it in its proper context with a whole suite of other imperatives that are non-health imperatives as well as health imperatives, and then come to a decision.”

It is unacceptable that the health advice is not made public so we cannot make an informed decision about the proportionality of the health orders, for example the curfew. Victorians have been living under a state of emergency since March 2020, which expires mid-December.

I understand our great cultural and legal inheritance from England. The 1701 Act of Settlement enshrined in English law, and transported to Australia, the independence of the judiciary and, as it has evolved here, the separation of powers.

Writing in the Australian Law Journal, former Labor attorney-general and chief justice of South Australia, Len King, said of Australian attorneys-general: “What emerges from a consideration of the office of attorney-general in Australia is essentially political office, the role of which is far removed from the traditional role of the attorney-general of England. In consequence ... the attorney-general must be understood to be primarily a politician with political responsibilities to a government and political party.”

Of course, Victoria has had a non-lawyer as attorney-general before. Andrew McCutcheon, a long-term minister in the Cain and Kirner governments, and an architect by training, served as First Law Officer from 1987 until 1990.

Eulogising Mr McCutcheon in 2018, Labor leader in the Legislative Council, Gavin Jennings, recounted a humorous anecdote: “This attribution is to a story in The Age of 12 December by Prue Innes, where Andrew McCutcheon is quoted as once saying: I don’t see why it should be daunting ... to become Attorney-General. You don’t have to be a train driver to be Minister for Transport. A rejoinder was made that that was just as well because the outgoing Attorney-General, Mr Kennan, was about to become the Transport Minister.”

In the past, it was not uncommon for the attorney-general also to occupy the office of solicitor-general. In those circumstances it was of considerable importance for the attorney-general to be admitted to practise law. But that arrangement ceased in the 1950s when Sir Henry Winneke (later the chief justice) was the first non-minister appointed as solicitor-general. Thereafter, the importance of having a practising lawyer occupy the role of attorney-general effectively disappeared.

Rob Hulls was shadow attorney-general and attorney-general of Victoria between 1996 and 2010. Any suggestion Mr Hulls wasn’t an adept political brawler is ridiculous. When he was attorney-general he often attacked the legal profession and the traditions of the courts.

I look forward to working with the legal profession. I will work to improve the administration of justice and fight to uphold the rule of law, that has been so badly damaged in our state over the last 18 months.

Tim Smith is the Liberal MP for Kew and shadow attorney-general.