Having been a “lawyer in politics”, former Attorney-General Chris Finlayson QC says he will find the transition back to law an easy one.
Mr Finlayson was Attorney-General throughout the nine years of the National-led Government, as well as being Minister for Treaty of Waitangi Negotiations and the Government’s spy agencies minister.
Last month he revealed he would be leaving Parliament to return to the Bar.
“It has always been my intention to return to the Bar. Litigation has been my life. I never intended to be a professional politician so, having done what I wanted to do in Parliament, it was always a case of back to the Bar I would go,” he told LawTalk from his spartan office at Parliament.
“I was very lucky to have nine years as a minister of the Crown. I held a variety of portfolios but the constant throughout that period was the Attorney-General and the Minister for Treaty of Waitangi Negotiations.”
Only Rex Mason (1935-1949) and James Prendergast (1865-1876) were Attorney-General for longer. Of the post-war politicians in the role, Ralph Hannan served a similar amount of time – nine years, from 1960 to 1969.
Mr Finlayson says that, while a part of the John Key and Bill English National-led governments, he has always been the law profession’s man in the Beehive and will therefore fit seamlessly back into the profession.
Always in the profession
“I never considered myself out of the profession. Technically, I was head of the profession and I was an Attorney-General with a deep interest in the law, and so I kept a very close eye on what was going on. Some people are political lawyers but I was always a lawyer in politics.
“I always maintained my practising certificate throughout my Parliamentary career so it is not as though it is going to be a massive change for me. There will be some detail to take in – take for example, Continuing Professional Development. I’ve been part of that for some time, and I was audited a few years ago, so I am aware of the need to take stock in some areas, but generally speaking, going back to my former life, one would hope it would not be a great deal.”
Leaving the capital
Mr Finlayson was admitted in February 1981 and was a partner with Brandon Brookfield and Bell Gully.
After leaving Bell Gully in 2003 he established Barristers.Comm with other barristers in Wellington. He was elected a National Party list MP in 2005. Mr Finlayson became a Queen’s Counsel on 13 December 2013.
He will be going back as a barrister sole, but in Auckland: “because the sort of work that is available for a lot of lawyers in Wellington wouldn’t initially be available for me, such as working for the Government”.
He would like to focus on arbitration but would also likely draw on his experience in commerical litigation, and hopes to get “good civil and commercial work”. He has represented many iwi over the years and would be willing to help any iwi with particular issues.
Mr Finlayson says he intends to give his valedictory speech in the final week of Parliament before it breaks for the summer, and to be out of Parliament altogether toward the end of January to do further work on a book he is writing on the Crown-Māori relationship.
While his hand has been forced by New Zealand First going into government with Labour after the 2017 election, rather than with National, he says he already had a provisional date for leaving before that decisive election.
“Bill English asked me what my intentions were before the election, and I replied ‘basically do the same job for about another year/18 months then go’, so I never intended to serve out the full term even if we had won a fourth term. I wanted to finish certain settlements and then move on.”
Mr Finlayson’s Administration of Justice (Reform of Contempt of Court) Bill was picked out of the biscuit tin to be considered and is currently at the select committee stage.
It will “ensure that court hearings are not disrupted, trials are not prejudiced by unfair publicity and that jurors decide cases only on lawfully admitted evidence."
It is intended to allow judgments and court orders to be enforced and ensure that the judiciary is protected, as far as practicable, from false attacks which undermine public confidence in the system.
While it began as a member’s bill it has now been picked up by the Government. “I said to Andrew Little (current Minister of Justice) that it raised serious constitutional questions and he agreed, he was right on top of the issue.”
The Wellington-born MP says the intention of the bill is not to stop criticism of judges’ decisions.
“It would be unthinkable to say that if you criticised a judge’s decision you could end up in the dock for contempt of court. You have to be able to criticise judgments and do so robustly. Academics do it all the time, but there is quite a difference between that and behaving in such a way that you undermine confidence in the administration of justice.”
While the role of Attorney-General permitted him to appoint judges, the highlight of his time in Government was appearing on behalf of New Zealand at the International Court of Justice in 2013.
“I was responsible for the appointment of many judges and that is a hugely significant area and it’s one that we are so lucky, as a country, to have that system of appointing rather than the fiasco that took place in the United States recently [Brett Kavanaugh’s nomination to the Supreme Court].
“On a professional level I would have to say the highlight was the appearance in the International Court of Justice when New Zealand intervened in the case brought by Australia against Japan over whaling in the Southern Ocean. I was determined that I wouldn’t simply breeze in and read out some submissions then go, so I took a great interest in the case and I was in The Hague for about 10 days.
“It was a very, very interesting matter and I have to say that, from a lawyer’s point of view, the ability to appear in the International Court of Justice is quite something. It is very rare and I think only Martyn Finlay in 1973 and Paul East in 1995 have had that opportunity.”
On the subject of the reappointment of Queen’s Counsel, Mr Finlayson says he was merely following the wishes of the profession.
“I acted in response to what the profession wanted. And I think you’ll find that of the four or five who had been made SCs, they converted very quickly, just like people who had post-nominals and were invited to convert to knighthoods and damehoods – they converted very quickly. The SC system didn’t really appeal to people.
“I think the system works very well and that we had a couple of large appointment rounds and now it is down to about five or six a year and that’s what I would expect it to be from now on.”
A changing position
He was not keen on the idea when asked if the appointment of QCs should be extended to non-barristers.
“I think that the Bar is strong, the New Zealand Bar Association is doing an excellent job and I don’t think we’ll ever get to a stage where we have a split profession but I can see, looking at historical trends over the nearly 40 years I have been in the law, that the Bar is growing and I don’t see any reason why it would stop.”
And he believes that the role of Attorney-General has changed quite a bit and will continue to do so.
“In the old days the Attorney-General would almost automatically also become the Minister of Justice, with a couple of exceptions. But post-1990 the Attorney-General has had more of a watchdog role and that includes being a watchdog over the Minister of Justice’s work and I am thinking particularly of vetting for the purposes of the Bill of Rights, so the two portfolios actually don’t sit together anymore.
“There is a case for the Attorney-General not holding another portfolio, but in our system that would be rather hard to do. Actually, Treaty negotiations go hand-in-hand with being the Attorney-General.
“John Key asked me to look after the GCSB and the SIS after 2014. There would have been some tensions there with the intelligence system and the role of the Attorney but that was managed. We very much have an Attorney-General model in the English line with one or two extra responsibilities.
“I think the role is very important and central to the good operation of government. But the Attorney-General has to have his or her mind across most things for Bill of Rights compliance and rule of law issues. The over-arching responsibility of the Attorney is to make sure that the business of government is conducted in accordance with the rule of law. And also that the Attorney-General is the first major point of contact with one of the other branches of government, the judiciary, so it is a very important and sensitive role.”
After a visit to the University of Utah in the United States to talk about legal personhood in natural resources, such as rivers, Mr Finlayson expects to be back at the Bar by late February/early March.