Attorney Generals Role and Current Status in the US and Australia
Each state and territory in the US elects an attorney general as its legal officer to lead its legal affairs and represent public interests. This position is known as Attorney General.
This person oversees the state attorneys who serve as legal representation for state government agencies, offices, boards and commissions as well as defend any challenges to state laws that arise.
The Role of the Attorney General in the United States
The attorney general serves as the primary legal representative of the United States, its territories and commonwealths. Their role includes counseling state government agencies and legislatures while simultaneously acting in the public interest. Recent attorneys general have used their wide authority and independence to uphold rule of law principles, protect vulnerable populations and defend state constitutions.
The United States Attorney position was first formalized under the Judiciary Act of 1789, with each district receiving an attorney to handle civil and criminal cases within that district. Over time, however, this role has evolved with cultural and societal change throughout American history; attorneys’ responsibilities expanding as necessary.
Attorneys general are involved in many areas, ranging from consumer protection and antitrust enforcement, prosecuting white-collar crime and protecting minorities and the poor to proposing bills to their legislatures, providing input on proposed federal laws or regulations, serving on state committees or commissions and providing advice or defending lawsuits brought against their state agencies. Additionally, they serve as advisors to governors or heads of agencies while representing them against lawsuits brought against their State.
Some attorneys general have led the nation in advocating for women’s rights, reproductive health care and other issues relevant to their constituents. New York Attorney General Letitia James took aggressive action against predatory landlords and companies who violated environmental regulations; she also filed lawsuits that successfully prevented inclusion of citizenship questions on census forms while safeguarding Dreamers.
As part of their day-to-day duties, attorneys general are often involved in meetings and consultations with staffs, lawmakers, other state and federal officials, community leaders and others. Additionally, many attorneys general have the chance to work on national initiatives like combatting opioid abuse or immigration policy reforms.
Attorneys general are elected in statewide elections for four-year terms alongside governor, lieutenant governor, controller, secretary of state, treasurer, superintendent of public instruction, insurance commissioner and auditor – though they cannot seek more than two consecutive terms in office.
The Role of the Attorney General in Canada
As Chief Law Officer of the Crown, the Attorney General serves as legal adviser and litigant on behalf of government departments, as well as overseeing civil litigation for the Crown. Federal statutes confer additional criminal prosecution duties upon him or her; in addition, when exercising his or her authority they must consider nonpartisan political considerations when exercising it – for instance “maintaining harmonious international relations between states, reducing strife among ethnic groups, maintaining industrial peace, as well as generally serving public interest”.
Canadian prosecution functions have been decentralized over time to an independent organization known as the Director of Public Prosecutions (DPP), established in 2006. However, the Attorney General retains some oversight authority – in consultation with DPP – should any specific cases require his involvement directly in them. To preserve independent decision making within prosecutorial decision making processes and protect prosecutorial independence further it is highly unlikely for an Attorney General personally become involved with prosecution cases directly.
Attorney Generals must exercise extreme care when using court processes for their personal political gain, particularly when handling public issues with high visibility. Otherwise, members of the public and courts alike could perceive prosecutions as simply vehicles to advance an Attorney General’s strong beliefs or advance certain policy agendas.
Attorney independence from inappropriate partisan interference is a constitutional convention, yet other institutional arrangements have evolved to support it. These include using senior prosecutors as shields against excessive intervention from the Attorney General; taking measures by higher levels of the ministry to separate political staff from prosecutorial decisions; and an administrative convention designed to shield individual prosecutors from being pressured by their superiors.
Therefore, in practice the Attorney General is virtually immune from accountability in political circles for their decisions. Indeed, legislators rarely demand explanations from an Attorney General unless their actions become highly contentious and publicized; Canada stands in line with other developed countries in this respect.
The Role of the Attorney General in the United Kingdom
The Attorney General in the UK has always had an arduous task of fulfilling both legal and political responsibilities of their position, creating an inherent tension. Early office holders managed to manage this by maintaining high integrity and developing trusting relationships with politicians – this allowed them to provide advice without political bias whilst remaining politically neutral. With recent rise of populism and politicisation of roles it has become more challenging to uphold these standards.
The AG serves a crucial function by offering legal advice to the Sovereign, Cabinet and Government Legal Department regarding devolved legislation, international treaty obligations and rule of law issues. They also guide Crown Prosecution Service on criminal prosecutions and judicial reviews.
In addition to their statutory roles, the AG also exercises prerogative and common law functions regarding criminal and civil justice systems in England and Wales. They may give consent for prosecution, protect against malicious prosecutions, intervene in civil court cases such as family law matters and Upper Tribunal charity-related cases, etc.
Though not officially cabinet ministers, AGs are frequently seen attending cabinet meetings. A 2007 Constitutional Affairs Committee report suggested that Attorneys General attend cabinet only upon invitation and to consider specific agenda items; some have voiced concern that this practice allows political considerations to impact decision-making when making prosecution and other important matters decisions.
Most AGs have held roles at both the bar and Parliament prior to being appointed AG; typically this lasts around ten years. It’s not unusual for an AG to also have held junior ministerial posts; Sir Reginald Manningham-Buller served for one year during Churchill’s wartime administration before assuming his current role. It’s not unusual either for an AG to have had previous experience as a deputy Attorney General prior to being appointed as AG.
The Role of the Attorney General in Australia
Australia’s Attorney General serves as both a Cabinet member and head of the Department of Justice. They represent their government on legal matters generally while also offering advice and opinions to departments and agencies on specific questions of law. He or she prosecutes cases with exceptional gravity before appearing directly before the Supreme Court for matters of national interest.
Attorneys General have long been influential political figures. Many have held other senior ministerial portfolios alongside serving as Attorney-General – such as William Morris Hughes, Robert Gordon Menzies and Herbert Vere Evatt combining this role with Prime Ministership – thus subjecting their decisions regarding prerogative discretions to intense political scrutiny, often leading to heated discussions and debate amongst citizens.
The Attorney-General bears an essential role in overseeing judicial appointments. She must ensure that government does not allow extraneous considerations to interfere with its duty to select judges of exceptional calibre. Merit should be understood broadly and include both professional competence and personal qualities such as honesty and integrity.
An important aspect of the attorney general’s special role is promoting and supporting law reform. Law reform bodies strive to produce recommendations that keep law abreast with social changes and meet contemporary needs; however, their proposals often lack the strength to compete against legislation required to implement government policy agendas.
As part of their duties in defending the High Court, Attorney-Generals serve as safeguards of its integrity. He/she must ensure that no ministerial colleagues put pressure on courts to share in budget restraint pain-points.
Sir Hartley Shawcross established in his 1951 speech the Shawcross Principle to test how properly an Attorney-General related to the Executive. According to this rule, exercise of prerogative discretions by the AG should remain independent from Cabinet directives or party political considerations and thus be exercised without interference from cabinet ministers or political considerations. It became a pivotal issue when in 1977 Robert Ellicott resigned in protest over what he perceived were attempts by Cabinet colleagues at exerting influence over how prerogative powers should be exercised by AGs AGs.
