Attorney-General a job for legal expertise, not political head-kicking

Nobody sits on the fence when it comes to Tim Smith. He’s either a brilliant political brawler or an arrogant Trumpian fool.

But should he be Victoria’s Attorney-General?

Liberal MP Tim Smith has been elevated to shadow attorney-general.Credit:Paul Jeffers

He’s in line to be if Matthew Guy wins the next election. The trouble is that Smith isn’t a lawyer.

It’s a real issue because although we accept that the Minister for Health doesn’t need to be a doctor, the Attorney-General holds a vital role in our democracy.

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.

In that context a calm legal independent aloofness is needed because the rule of law is what keeps any democracy from sliding into an authoritarian state.

Our system of government is based on the understanding that all political power is subject to the law. The alternative would see every aspect of life decided by the will or the whim of an individual or a political party. (Think back to 2020 when Donald Trump wanted to use his Attorney-General to help spread the lie that he had won the election.)

The Attorney-General’s role, then, calls for a sharp legal mind. So it’s no surprise the three most brilliant (federal) attorneys-general of the last 50 years were all not just lawyers, but QCs, before they went into politics: Tom Hughes, Lionel Murphy and Bob Ellicott, who resigned on principle in 1977 rather than give into political pressure from PM Malcolm Fraser.

The other vital area of the Attorney-General’s job is to protect our independent judiciary from scurrilous attack.

For example, in 2017 federal ministers Greg Hunt, Michael Sukkar and Alan Tudge had to apologise to the Victorian Supreme Court after they sought to make a cheap political point by attacking a sentence in a criminal matter as being ideological and not based in legal precedent.

The other vital area of the Attorney-General’s job is to protect our independent judiciary from scurrilous attack.Credit:iStock

That kind of wild partisan attack on the courts by politicians has a clear subtext – that judges should forget legal reasoning and only listen to political powerful and those with loudest, shrillest voices in the media. That’s not just undemocratic; it’s a big step toward a dictatorship.

I always thought that conservatives protected the institutions and conventions that underpin our democracy; that they, following Edmund Burke in the 1790s, revered prudent thought and the continuity of institutions.

Tim Smith may well be intelligent and conscientious. But that’s not the point. Our democracy demands we have an Attorney-General who knows the law and is willing to defend its traditions.

It takes a courageous, legally trained, independent mind. People focused on political expediency, no matter how clever, need not apply.

Duncan Fine is a lawyer and regular columnist.

Most Viewed in National

From our partners

Source: Read Full Article