Page 154 - Week 01 - Wednesday, 8 December 2004
Everyone has been quoting House of Representatives Practice, and I shall do so again. It says on page 62:
As First Law Officer the Attorney-General gives advice on the basis of what is just, and must separate that advice from any political considerations. The principle of this independence of the office of the Attorney-General was the subject of the resignation of Attorney-General Ellicott on 6 September 1977. In his letter of resignation to the Prime Minister he stated:
It is with great regret that I am forwarding herewith my resignation as Attorney-General. I am doing so because decisions and actions which you and the Cabinet have recently made and taken have impeded and in my opinion have constituted an attempt to direct or control the exercise by me as Attorney-General of my discretion in relation to the criminal proceedings Sankey v Whitlam and others.
In the circumstances I feel that I have no other course but to resign my office. I regard it as vital to our system of government that the Attorney-General’s discretion in criminal matters remains completely independent.
This is not a criminal matter, but the same things apply, and they are completely independent of the political realm as well as the realm of self-interest. House of Representatives Practice goes on to say:
This resignation illustrates one Attorney-General’s view of the independent nature of the Office of Attorney-General, notwithstanding the general concept of Cabinet responsibility.
There it is in black and white. That is how the role of the Attorney-General has developed under the Westminster system. This person holds an office and that office, irrespective of the person and the holder, has to be above politics and above self-interest. We contend that in the action that the Attorney-General has taken—not the actions of the individuals; the actions of the individuals are perfectly legitimate—in his unprecedented joining of this matter he has sought to politicise a process which is before the courts. He has taken some political imperatives and perhaps some personal imperatives and made his role as chief law officer, first law officer, subservient to those political and personal ambitions.
This government has been the subject of a great deal of scrutiny as a result of the January 2003 bushfires. There are lots of questions being asked in the community and there are lots of questions on the public record about who knew what; when were people informed; and, chiefly as a result of that, why the ACT community was not warned about the impending fires and the impact that they would have.
I could go through at length a whole chronology of events and say when the Chief Minister and Attorney-General became aware of particular things, when he was told and when his department was advised and therefore, under the Westminster principle, he was advised. We have already had a debate in this place about whether it was appropriate, because “I wasn’t told” is not enough of an excuse for shirking responsibility. Under the Westminster principle, if an official who is responsible to the Attorney-General is told, it