New Zealand Law Society - The Government's lawman: David Parker, Attorney-General

The Government's lawman: David Parker, Attorney-General

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David Parker
David Parker

As Attorney-General in Helen Clark’s third and final government, David Parker was the logical choice to take on the role in the Coalition government that was formed in October 2017.

This time round, the former Dunedin lawyer and co-founder of the Community Law Centre has several meaty roles in the government: Minister of Economic Development, Minister for the Environment, and Minister for Trade and Export Growth, as well as Associate Minister of Finance.

As Attorney-General, he is the principal legal adviser to the Government and a member of the Cabinet.

Mr Parker’s predecessor, Christopher Finlayson QC, was, for the bulk of his nine years in the role, also ‘only’ the Minister for Treaty Negotiations – a role that is now fulfilled by Justice Minister Andrew Little.

I began the interview by asking Mr Parker how his ministerial roles relate to his role as Attorney-General.

“Outside of the law I’ve got three drivers of my political ethic; one is a strong economy, the second is to ensure the fruits of a strong economy are more fairly shared to get egalitarian outcomes, and the third one is to achieve that within environmental limits. I know that to achieve any of these the rule of law is fundamental. Without the rule of law protecting property rights and contractual rights you don’t get investment to grow the economy. Without the rule of law and political input to change laws relating to taxation, training people, immigration rules, etc, you don’t get the right balance between capital and labour and you don’t get fairness between generations. So the law is absolutely essential to that also.

“There is equally no doubt that the rule of law is essential to enforcing environmental bottom lines. Because without it there is always some ratbag who’s willing to push things harder than someone else. Without environmental laws they can out-compete someone on the basis of causing environmental damage that someone else is not willing to cause.

“In addition, I have the view that the political space to change things and to maintain community respect for the rule of law and to have respect for the rule of law society must uphold human rights and civil liberties. If you respect the rights of minorities, if you keep government and its institutions on the right side of the law, and you maintain respect for legal institutions and the rule of law, then you have societal confidence in the many institutions that deliver all of those other things you need to have a happy, effective and peaceful society.”

So having a legal background is helpful, if not essential, to all the portfolios that you are holding?

“There’s no area of law that I studied at university that I haven’t put into place in practice, whether it’s family law, land law, equity, jurisprudence; and understanding the rule against perpetuity is a great thing for any politician to know. So I believe I have a decent understanding of the importance of law to all of those things.”

Your predecessor was the Minister of Treaty of Negotiations and Attorney-General and for a spell oversaw the spy organisations, so his role was far more limited than yours. Do you think you might be perhaps over-stretching yourself a bit?

“No, no, those roles can be done by different people, and often have been. Michael Cullen was Minister of Treaty Negotiations and Minister of Finance. Although he was, for a while, Attorney-General those roles did not coincide all the time. When I was Attorney-General for a brief period in the previous Labour government I wasn’t Minister for Treaty Negotiations. So there’s no reason at all they need to be held by the same person at the same time.”

With the review of so many different areas of justice, you presumably will have some input into that.

“One of the things that both Andrew Little and I agree on is that the Family Courts are in a parlous state. There were changes made to the operation of the Family Court that have resulted in a lot of injustice. The system is clogged with too many exparte orders followed by lengthy delays where parties who have been subject to an ex parte order are not able to get before a judge to have their issues tried in a substantive way.”

In terms of your role as Attorney-General what’s your thoughts on the system of appointing QCs? Do you think that needs to be reformed, such as appointing non-barristers as QCs?

“No. People should be practising at the bar to be appointed a QC. I don’t necessarily have a strong view that there should be a separate Bar, although I do know that people do. But in terms of the method of appointing QCs within the existing limits to who can be appointed a QC, I think the system is okay.”

Any thoughts about going back to the previous Labour government change of having Senior Counsel?

“I was happy enough for that change to be made. I’ve personally never accepted the idea that there is somehow a higher ethical standard of people who are at the separate Bar compared with the people who are within legal firms. If there were, well, they shouldn’t be able to appear in court. I don’t accept they’ve got some inferiority about them as a consequence of their different standing or pressures within legal firms compared with at the separate Bar. And I’m also conscious that one of the reasons why those rules were abandoned when the New Zealand legal system was set up compared with the UK system was that it was pretty expensive having compulsory separation, having to have a solicitor and a barrister. It’s not a high priority.”

Do you envisage any changes to the role of Attorney-General?

“No, it’s well settled and works well. A lot of the roles of the Attorney-General are just to be there as a guardian of our conventions. I see one of my most important roles as to make sure the conventions, the separation of powers, the protection of judges from criticism from, especially the Executive, but more generally Parliament, is maintained. They can’t defend themselves.”

Do you foresee any changes to the appointment of judges?

“There is a pre-condition to the appointment of anyone to a senior position, including as a judge, that they are competent. There are lots of competent people in society and they come from diverse backgrounds and it would be good if our benches were more diverse.”

Access to justice is a major issue. Does New Zealand provide that for all its citizens?

“The courts are meant to serve the interests of the people; if people cannot use them to resolve their disputes in an affordable and civil manner then they’re not meeting their social purpose and I do have a concern that the courts, particularly the civil courts, are increasingly a place than can’t be accessed by ordinary people. With other people I was one of the founders of the Dunedin Community Law Centre and the CLCs are one way of providing legal assistance to people. We (the Coalition) gave a substantial increase in funding (22%) in the last Budget for community law centres. But that is not the only way. The profession and the judiciary and all of those who have an interest have always got to fight for processes that are not too complex relative to the amount that is at issue so as to achieve affordable access to justice. Legal aid is part of the answer but it’s not the only answer; efficiency of process is important.”

Do you think the Bill of Rights should be strengthened?

“I don’t believe the Bill of Rights should be extended to social rights or environmental issues for two reasons: one, the distribution of resources within society is a highly political question that is best taken by politicians. Second, politicians are elected every three years and can be thrown out every three years, and if decisions are made on those issues that are wrong, and don’t have sufficient backing within society. This is a check and balance. Politicians are much better placed to make those complex trade off decisions than the courts.”

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