Kent Blore, Crown Law and Brenna Booth-Marxson, Department of Justice and Attorney-General, Queensland, write in the UQ Law Journal
Much of the work of government is carried out by public servants with the assistance of lawyers. Because the Human Rights Act 2019 (Qld) (‘Human Rights Act’) is intended to change the way government works, it also has consequences for the way public servants and lawyers carry out the work of government.
This article explores the impact of the Human Rights Act on the ethical duties of public servants to give frank advice and to implement policy decisions faithfully, as well as the ethical duty of lawyers to act in their client’s best interests.
While the Human Rights Act brings a new rigour to the frank advice that public servants must give, they must still respect the ultimate decision of the government of the day. Similarly, the Human Rights Act brings lawyers closer to the edge of legal and policy advice, but this article puts forward a ‘supervisory’ approach as one way that lawyers can avoid straying too far into policy development and debate. The Human Rights Act breathes new life into old ethical duties by reminding us of the importance of candour and fidelity. Equally, frank advice and collaboration between lawyers and policy officers breathe life into the ambition of the Human Rights Act.
