Roxon’s Ashby v Slipper intervention: improper, unwise or what?

Federal Attorney-General Nicola Roxon’s media intervention into the Ashby v Slipper case provoked a Twitter discussion that’s worth recording and then musing about:

Lawyers for the Commonwealth yesterday told a Federal Court that former staffer James Ashby, who is suing Mr Slipper for sexual harassment, colluded with another staffer, Karen Doane, to undermine Mr Slipper’s reputation and advance his political opponents.

The lawyers have told the court they have phone records to support their argument of a calculated political campaign against Mr Slipper.

They allege Mr Ashby gave information to former Howard minister Mal Brough and to News Limited journalist Steve Lewis.

Federal Attorney-General Nicola Roxon says it shows the case against Mr Slipper was politically motivated.

Ms Roxon says the Commonwealth strongly believes the case against Mr Slipper is an abuse of process that has been brought for an ulterior purpose.

“It will be clearly shown and this will be argued in the court that there was in fact clear intention to harm Mr Slipper and bring his reputation into disrepute and to assist his political opponents and that was the purpose for the bringing of this claim,” she said.

“But I do stress that is the Commonwealth’s application that has not been tested fully in court.”

This provoked a predictable response from Coalition-supporting tweeping barrister Mark Cohen, who self-effacingly styles himself @toplitigator:

However other less partisan responses were also a bit equivocal:

It raises an interesting question as to just what is the role of the Attorney-General in our evolved Australian “Washminster” politico-legal culture?

Certainly in the original British Westminster system the Attorney-General’s role was (and to an extent still is) seen as requiring a fair degree of detachment from the partisan political process.  The Attorney-General is the first law officer of the Crown and until relatively recently made (or at least delegated to other officers who made) decisions about charging alleged offenders, issuing writs of nolle prosequi to discontinue criminal charges; pardoning offenders and exercising the prerogative power of mercy. Clearly such powers require both the appearance and reality of disinterested objectivity.

Even in Britain that has always been at the very least a questionable conception. In Australia it is frankly bizarre.

It was traditionally quite similar with the Attorney-General’s powers in relation to public law civil litigation.  The Attorney-General’s office was conceived in the British system as the public interest repository of powers to issue and pursue prerogative writ proceedings seeking writs of certioriari, prohibition, mandamus, quo warranto or habeas corpus to compel the Queen’s other Ministers, departments and agencies to cease abusing or acting beyond the powers granted to them by Parliament.  Even in Britain that has always been at the very least a questionable conception.  In Australia it is frankly bizarre.  As Gaudron, Gummow and Kirby JJ observed in Bateman’s Bay  Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd ¹:

One consideration, which was relevant in England before the post-Gouriet legislation replaced the Boyce principle, was the confidence placed in the special position occupied by the Attorney-General. In England, the Attorney-General is almost invariably a leading counsel of established reputation who, whilst usually sitting in the House of Commons, has limited administrative responsibilities. Key political functions are discharged by the Lord Chancellor. The Attorney-General is rarely a member of Cabinet, thereby assisting the provision to Cabinet of independent advice on important issues. On the other hand, it has long been widespread practice in Canada and Australia, both in federal and provincial or State governments, and in New Zealand, to include the Attorney-General as a member of Cabinet. In Australia, both at federal and State levels, the Attorney-General is a minister in charge of a department administering numerous statutes, is likely to be a member of Cabinet and, at least at State level, may not be a lawyer. At the present day, it may be “somewhat visionary” for citizens in this country to suppose that they may rely upon the grant of the Attorney-General’s fiat for protection against ultra vires action of statutory bodies for the administration of which a ministerial colleague is responsible.

Gaudron, Gummow and Kirby JJ made those observations in the context of a judgment which canvassed the possible merits of developing the common law to allow for open standing by any citizen in public law litigation, in recognition of the almost self-evident proposition that it is indeed “somewhat visionary” to imagine that any Australian Attorney-General could in any meaningful sense be counted on fearlessly to represent the public interest against the partisan interests of the government of which he or she is a part. Their Honours’ open standing suggestion has not subsquently been taken up by a majority on the High Court, but undeniably they had a point.

Fortunately, even without moving to the radical position of allowing an open test for public law standing, the Australian common law has evolved to the point where anyone with a quite modest “special interest” in the outcome of a government’s decisions or actions will now have standing to pursue their private interest against the Executive by prerogative writ or equitable remedy, irrespective of whether the Attorney-General is minded to co-operate. In constitutional litigation, at least where only declaratory relief is sought, the High Court’s reasonng in Pape  v Commissioner of Taxation ² rather suggests that the test for a private citizen’s standing is even wider than in an administrative law context. ³

Similarly with the Attorney-General’s traditional functions in the criminal law context discussed earlier.  Just about all those functions have now been taken over in the Australian system by the independent Director of Public Prosecutions, probably in part in response to an acceptance that Attorneys-General here do not possess (and never did possess) the independence from political pressures said to characterise the British system.

⁴he Australian Attorney-General is first and foremost a politician and not the chief law officer of the nation as is arguably the case in the United Kingdom

We should also note the abandonment by former Coalition federal Attorney-General Daryl Williams of the longstanding tradition that the role of the Attorney-General included defending the judiciary against personal criticism. His then Opposition counterpart Robert McClelland criticised Willams’ action,⁵ noted that Williams based his position on essentially the same arguments I have outlined above:

That analysis was, in turn, substantially based on conclusions contained in a Report by the Electoral and Administrative Review Commission chaired by Mr David Solomon. Mr Williams argued that the Australian Attorney-General is first and foremost a politician and not the chief law officer of the nation as is arguably the case in the United Kingdom.

Mr Williams relied heavily on the fact that, in Australia, the Director of Public Prosecutions (DPP) has independent statutory authority to supervise criminal and contempt of court proceedings. While Mr Williams acknowledged the power of the Australian Attorney-General to give directions to the DPP, he indicated that this power is rarely exercised. Mr Williams also acknowledged that the Attorney-General retains the right to grant or refuse a fiat for the bringing of a relator action. However, he argued that the Attorney-General is seldom requested to do so because of a general broadening of situations in which litigants are granted standing to commence proceedings in their own name.

Does all this mean that it should be “open slather” for Nicola Roxon to make politically partisan media commentary on current court matters in which the Commonwealth is a party?  The answer is clearly not, but only some of the relevant factors are strictly legal ones.  Obviously just about any commentary reflecting on the credibility of a party or witness would be seriously improper (and may even amount to a contempt) where there is a prospect that the matter will proceed by way of jury trial.  However, that isn’t a prospect in the Ashby case.

It would also be improper for any politician to reflect about sexual harrassment or similar litigation in a way which contributes to the victimisation or bullying of a complainant for daring to bring a complaint.  That is a potential issue in the Ashby case, although the prior deeply suspect involvement of Ashby with assorted Coalition politicians rather diminishes the weight of such concerns in his case.  Moreover, for Coalition politicians to make any such point is rank hypocrisy given the extent to which they piled on to demonise the Indigenous complainants against Andrew Bolt not so long ago.

I’m also uneasy about the generally undesirable precedent of an Attorney-General resorting to the media to prosecute a current litigation matter in the court of public opinion.  One of the positive features of Australia’s political culture, in my view at least, is that it’s generally regarded as poor form to do this whereas in the US legal culture the phenomenon of lawyers grandstanding in the media is ubiquitous.  There are sometimes very good reasons for utilising media comment as part of an effective legal strategy on a client’s behalf, ⁶ but I would not like to see Australia’s legal culture move any further in the self-promoting US direction.

Finally, one might reasonably doubt the wisdom in a purely political sense of Roxon’s tying the fortunes of the Gillard government so overtly to the fate of Peter Slipper (yet again). No doubt that’s what Professor Sarah Joseph meant by her Twitter comment extracted above.

1. 1. (1998) 194 CLR 247[↩]
2. 2. (2009) 238 CLR 1[↩]
3. 3. Although the Commonwealth’s concession that Bryan Pape had standing to challenge the Rudd government’s GFC stimulus package payment so far as it related to him personally was in part what opened the door to his standing to challenge the measures more generally, despite not obviously having an interest in the outcome any greater than that of millions of other Australians.[↩]
4. T[↩]
5. 4. A cynic might note that McCelland did nothing to reverse Williams’ position when he himself became Attorney-General 8 years later[↩]
6. 5. Arguably celebrity lawyer Chris Murphy’s use of media in relation to the repeated police victimisation of fellow lawyer Adam Houda is a good example.[↩]