HEAD OF LEGAL PROFESSION

Press, Volume LXX, Issue 21147, 24 April 1934, Page 18

HEAD OF LEGAL PROFESSION

OFFICE OF ATTORNEYGENERAL POSITION OF MR FORBES CRITICISED

The retention by the Prime Minister (the Rt. Hon. G. W. Forbes) of the office of Attorney-General is criticised editorially in the issue of the "New Zealand Law Journal," which was published last week. In an article entitled "The Office of Attorney-General," the "Journal" examines the qualifications of Mr Forbes 1o hold the highest official legal appointment in the land, and suggests that the appointment should be given to a practising member of the bar in New Zpaland, both in justice to the office and in the national interest. "It must be understood," says the "Journal," "that we have no desire to add to the difficulties of the Prime Minister in these harassing times, and it is in a spirit of helpfulness and not of criticism that we write. We feel it a duty to the legal profession and the public to define the duties of his Majesty's Attorney-General m order that the present anomalous posi--lion may be estimated in proper perspective. "And the time for such definition is now opportune, owing to the elevation of the Solicitor-General, Mr A. Fair, K.C., to the Supreme Court Bench. Now is consequently the timewhen the whole position of the law officers of the Crown can conveniently be reviewed by the bar and by the Government. "As everyone knows —and as hewould be the first to admit—Mr Forbes has no pretention of qualification for the important task of advising the Executive Government In intricate legal problems." the article, states. "Yet, for nearly two years the office of Attorney-Geneva] in Nov.Zealand has been held, possibly for the first time in a British Dominion, by a layman. Duties of Attorney-General "It is, at the least, a reflection on the personnel of the present bar in the Dominion that no appointment of Attorney-General has been made it. the last two years. By reason of such a lacuna, it seems that this alterna tive must be in the minds of the executive; either that the Government is satisfied to be advised on constitutional and other matters by one of its own members without any qualifications for that task; or that in the ranks of the bar in the Dominion there is no one more competent than the Prime Minister (who is not of those ranks) to undertake the varied and important duties of AttorneyGeneral. . . . "The Attorney-General is a member of the political party for the time being in office," the "Journal" proceeds. "He is, consequently, in a position to advise the Cabinet upon legal questions, or tn regard to implications of a legal nature, arising out of or in relation to its policy as translated into changes in the character of legislation. On the other hand, the Solicitor-General in this country is a permanent officer—the official head of a department of State, the Crown Law Office. He should, therefore, be completely removed —and, in fact, disqualified—from any party allegiance or preference. Like other departmental heads, he should remain aloof from and independent of Government fear or favour. Generally speaking, the Attorney-General advises the Crovm in the person of its Ministers —i.e., the Government in office; the SolicitorGeneral advises the deportments of State—i.e., the Crown functioning in its administrative capacity. The At-torney-General is thus primarily an officer of the Crown, and in _ that sense only an officer of the public. Right of Private Practice "The Attorney-General should be free from the trammels of Ministerial office; it is certainly better that he should retain a detachment of mind, so that, for the full performance of his legal duties, he should not be concerned in the administrative decisions of the executive Government. "The Attorney-General need not be a member of either House of Parliament or a member of Cabinet. Consequently. it appears that no new legislative provision is essential before the appointment of a suitably qualified member of the Bar to that office is made . . . "If a prominent practising member of the New Zealand Bar were appointed Attorney-General, with right of private practice and of receiving fees for contentious business, the Government would derive considerable advantage from his advice at the cost of a retainer, or, if he were in the Upper House, of his salary as a Legislative Councilloi-. In its many complex problems, the Cabinet would have expert advice always at hand. In addition, it would have an able expositor of its legislation; an initiator of necessary legal reform: a defender of the legality of Ministerial action if called in question; and an ever present help in regard to constitutional questions, arising, for example, out of the Sarnoan Mandate, commercial and trade treaties, and the like. There is, therefore, no question of paying an Attorney-General a ministerial salary; as for payment of fees for contentious business, we do not need to point to the many examples of outside counsel being employed during occasional partial or total eclipse of legal qualification for court: appearances in the holding of the At-torney-Generalship in this Dominion."