The Attorney-General (AG) is the legal representative of the Crown and a member of parliament. He or she has several powers including the power to:
- act on behalf of the Commonwealth or relevant State or Territory in legal action;
- initiate or terminate criminal proceedings, grant immunities from prosecution, and advise on the grant of a pardon;
- appear in a case amicus curae (as friend of the court);
- provide advice to the government about matters of law;
- seek judicial review to correct errors of courts and tribunals; and
- grant his or her consent to enable persons to commence legal proceedings in the AG's name to enforce or protect a public right, where such persons cannot litigate in their own names. This consent is called a fiat
These powers must be exercised impartially and in the public interest.
The final point on the above list - the power to grant a fiat - is an important way in which the AG can protect the public interest.
What is a fiat?
In order to participate in a legal proceeding, a person must have standing to do so. That is, their legal rights or interests have been or will be adversely affected by the conduct of another party. See QPILCH's factsheet on Standing and Involvement in Legal Proceedings for further information.
Where a person does not have standing, they can request the AG to grant a fiat, or consent to bring the action in the AG's name. In Queensland, this practice is now contained in the Attorney-General Act 1999 (Qld) and is called a 'relator action'.
When will the Attorney-General grant a fiat?
The AG has discretion to decide whether to grant a fiat. However the matter will generally need to involve the enforcement or protection of a public right or interest. What constitutes the public interest is a matter for the AG to decide on the facts of each application.
The AG is not bound to grant a fiat. However, where a fiat is refused the Attorney-General Act 1999 (Qld) requires the AG to produce a report containing reasons for the refusal. This report must be tabled in parliament.
A person unhappy with the AG's refusal to grant a fiat may apply for judicial review of that decision to the court.