Much has been written about the importance of discretion in an emergency situation, and the concerns raised by the potential for it to be exercised arbitrarily. Given the quality of the discussion, there seemed little point in adding to it at any length. In particular, I point to the evidence given this morning by Professor John Hopkins of the University of Canterbury to the House of Representatives' Epidemic Response Committee. The concerns raised by him and by others have raised are real and remain, and are a matter for ongoing vigilance by the Epidemic Response Committee, and by the press, and if necessary, by the Courts.
But one highly technical aspect of today’s discussion hasn’t been remarked upon, so I saw some use in writing this post.
This morning, members of the Epidemic Response Committee were questioning Police Commissioner Mike Bush. I did not watch the discussion in full, but media reports indicate the Commissioner advised the Committee Police had obtained legal advice from Crown Law and were relying on that in the exercise of their extraordinary powers under the Civil Defence Emergency Management Act. ACT MP David Seymour at least has request (and perhaps others have as well?) that Police release this advice: “The rule of law requires that rules are clear and publicly accessible. That is not the case at present. Police can't demand respect from the public but must earn it. Police have an opportunity to encourage public respect for the law by being open and transparent and releasing Crown Law advice.”
At the committee meeting, Bush didn’t agree to release the information, but indicated Police would seek advice from Crown Law on whether to release it.
While these has been some disappointment at this, it isn’t surprising: as a matter of Government practice, Bush can’t release it.
Paragraphs 4.69 – 4.72 of the Cabinet Manual record the position of the Government on the release of Government legal advice:
Release of legal advice
4.69 As part of the Attorney-General’s constitutional role, the Attorney-General represents the Crown in the courts and provides legal advice to the government. Day-to-day instructions to legal advisers are usually provided by departments, agencies, or other Ministers under the authority of the Attorney-General. Nevertheless, the constitutional responsibility of the Attorney-General remains. The Attorney-General has the right to:
(a) obtain copies of all legal advice provided to the Crown (from whatever source);
(b) determine whether to release that advice; and
(c) instruct all lawyers acting for the Crown.
4.70 When determining whether to release legal advice that has been provided to the government, or to refer to the content of such advice, and waive (or potentially waive) legal privilege, there is a need to:
(a) ensure a coordinated government approach to release;
(b) avoid any adverse impact from a release on current or potential legal proceedings; and
(c) ensure that no single release will create an undesirable precedent.
4.71 Where a Minister or a government department considers that it is necessary to release legal advice or refer to the content of such advice, the matter must first be referred to the Crown Law Office. The Crown Law Office will in turn refer the matter to the Attorney-General’s office for approval.
4.72 Where a request is made under the Official Information Act 1982 or the Privacy Act 1993, the decision on release must be made by the Minister or chief executive who received it. The Attorney-General (through the Crown Law Office) should be consulted about the request.
This reinforces the long-standing position of the Government is that there are not multiple “Crowns”. It is one legal personality, and though it can exercise its powers in different ways, and through different state actors, it is still “the Crown” which is acting. Because of this, its position is that the Crown’s legal advice belongs to the Crown as a whole, and in the case, does not belong to Police.
This conception of the Crown means that neither the Police Commissioner, nor Police generally are the client (“the Crown” is) and thus Police are not in a position to waive legal privilege in it.
This is, of course, only government policy, and there are partial exceptions. As noted in 4.72 above, the Official Information Act and Privacy Act can require the release of legal information (it’s rare, while the exception isn’t absolute, it’s close, but theoretically there will be occasions where the release of legally privileged material is in the public interest, which is a decision that has to be made by the person who holds the information).
And there’s another one. The House of Representatives has a power to summon people and documents, a power which it granted the Epidemic Response Committee. If the Committee wants to see this advice, it can insist.
Of course, it may not need to go quite that far. It strikes me as unlikely that any Crown Law opinion on the exercise of legal discretion under state of emergency has been directly disseminated to frontline Police. The direction given by Police command to frontline officers might be informal, or may have been issued as general instructions issued by the Commissioner under section 28 of the Policing Act, or a Commissioner’s circular. These are effectively “orders” by the Commissioner to police, and (if lawful) must be followed.
The House of Representatives has a duty to ensure the public accessibility of the law (I’ll leave the debate over whether this is moral or legal to another day), and it has given the Epidemic Response Committee the power to fulfil this responsibility at least. It has the power to insist upon being told the guidance underpinning the police exercise of statutory discretion, irrespective of the ordinal crown approach to the Conduct of crown legal business. If it needs to, it should exercise it.