Published: 15 August 2023
Last updated: 5 March 2024
The Attorney-General can be outspoken because the role is independent of the government of the day. NOAM GREENBERGER explains the pros and cons of this unusual arrangement.
Israel’s Minister for Regional Cooperation recently described the Attorney-General as “the most dangerous person in the country”.
The description was aimed incumbent Gali Baharav Miara, an outspoken critic of judicial overhaul but it is a function of a role which is particular to the State of Israel.
In most democratic countries, the Attorney-General is a member of the government, as in Australia, or a political appointee, as in the US.
But in Israel, the Hebrew term Legal Adviser to the Government (LAG), often translated as Attorney-General, describes a role held by a public servant with a fixed term. It is regarded as an apolitical professional role. Candidates are vetted by a committee composed of a retired justice of the Supreme Court, a retired minister of justice or LAG, a Knesset member, a legal scholar and a representative of the Israel Bar Association.
Upon appointment, the LAG is the exclusive and binding interpreter of the law to the Israeli government, subject only to the supreme judicial authority of the court. This state of affairs was established by an Israeli High Court of Justice decision in 1993.
This means that while the government retains a discretion whether to act in accordance with the opinion of the LAG - should the matter come before a court, the LAG can decline to defend the government’s position and even put forward an opposing view. This can deny the government the right to be represented in court by an attorney of its choice – which is usually considered fundamental to the administration of justice.
The LAG also functions as the Director of Public Prosecutions - which can conflict with being the government’s trusted adviser. It is difficult to see how the same person could be required to advise but also prosecute members of the government. Israel does not lack paradoxes.
By contrast, in Australia the Commonwealth Attorney-General (AG) is a cabinet minister in charge of a government department. As a member of cabinet, the AG is involved in the formulation and delivery of government policy. At the same time, the AG is invested with the authority to initiate or terminate criminal proceedings, issue pardons, grant immunity from prosecution and provide legal advice to the federal government.
In practice, however, federal criminal prosecutions fall under the jurisdiction of the Commonwealth Director of Public Prosecutions and legal advice is handled by the Solicitor-General. Both roles are filled by public servants with maximum fixed terms. These features are important because of the independence required for their functions to be carried out in the public interest. No liberal democracy can tolerate politically motivated prosecutions or the provision of legal advice which has been tailored to suit the government’s needs.
Australians expect their Attorneys-General to act in the interests of the government to which they belong and the voters who elected them as MPs, but also to further the administration of justice (which is said to be blind to any other interests). For this reason, the day-to-day business of criminal prosecutions and legal advice is left to professional staff who are not tied to the government of the day. Due to its impartiality and clout, that legal advice is treated as binding by the government. (This practice was not, however, observed by governor-general Sir John Kerr during the 1975 constitutional crisis.)
The argument against the status of the LAG in Israel is that it gives an unelected public servant the power to veto government policy and bind the government to its views on the law.
The argument against the status of the LAG in Israel is that it gives an unelected public servant the power to veto government policy and bind the government to its views on the law. To the extent that the LAG expresses a view on a matter pertaining to legislation or government action, the government must proceed in the knowledge that it may not be permitted to put forward an alternative view of the law if challenged in court.
This can be especially problematic where the boundary between legal and policy matters is unclear (or not recognised) and where Israeli courts don’t hesitate to scrutinise decisions which in other countries would be regarded as political.
On the flipside, the powers granted to the LAG are intended to ensure that government decisions are in accordance with the law. It is argued this can only be achieved by empowering the LAG with the quasi-judicial authority to issue binding legal opinions to the government.
All government legal advisers are under the authority and direction of the LAG and ministers are only permitted to obtain an external opinion or attorney with the LAG’s consent. The LAG uses its authority to publish directives on legal matters, including those which it has not been asked to advise upon - and to disseminate them to the various government departments as guidance.
Ultimately, both the Israeli and Australian systems rely on the government being provided with independent and authoritative legal advice from within. Under the Australian system, departmental legal advisers are answerable to the relevant department head (who is answerable to the minister) and the Solicitor-General’s advice must be formally requested before it can be provided. This latter element has been described by High Court Justice (and former Solicitor-General) Stephen Gageler as an “obvious design flaw”, which is evident from the recent robodebt scandal.
On the flipside, the powers granted to the LAG are intended to ensure that government decisions are in accordance with the law.
Despite obtaining internal advice in 2014 prior to rolling out the robodebt scheme which indicated its problematic foundations, the Department of Social Services elected to proceed nonetheless. The scheme continued even after the Department received a damning draft opinion from an external law firm in 2018, which recommended that it obtain authoritative advice from the Solicitor-General.
The Solicitor-General’s advice, which was not sought until 2019 (after court proceedings were commenced against the government) confirmed the 2014 advice as to the impermissibility of the scheme. After the advice was received, the government settled various court cases brought by individuals affected by the scheme.
The advantage of the Israeli system is that it imposes legal oversight and shields government lawyers from political pressure. The pitfall is that the government cannot trust its legal advisers to further its interests.
Last year, the federal government agreed to pay more than $1.8 billion in compensation to victims of the scheme in a saga that Federal Court Justice Bernard Murphy has called “a huge waste of public money”. In her report following the recent royal commission, Commissioner Catherine Holmes’ concluded: “It is remarkable how little interest there seems to have been in ensuring the Scheme’s legality … and the lengths to which public servants were prepared to go to oblige ministers ...”
By contrast, the exclusive (and actively wielded) authority given to the office of the LAG, which is significant, is intended to embed the rule of law within government decision-making. This is only possible because it remains independent of the government of the day.
The advantage of the Israeli system is that it imposes legal oversight and shields government lawyers from political pressure. The pitfall is that the Israeli government cannot trust its legal advisers to further its interests, nor would it generally choose the LAG as its attorney.
Photo: Israel's Attorney-General Gali Baharav-Miara (Dudu Bachar)
