The Evolution of the Role of the Attorney-General
Paper presented at the 23rd Annual Australia and New Zealand Law and History Society Conference, Murdoch University, Western Australia
(2-4th July, 2004)
| Author: |
Alana McCarthy BA (Hons), LLB (Hons)
|
| Issue: |
Volume 11, Number 4 (December 2004)
|
Contents
- In recent years a debate has developed over the question of whether it is the role of the Commonwealth Attorney-General to defend
the High Court from criticism. Former Commonwealth Attorney-General, the Honourable Daryl Williams AM QC MP ("Williams"), argued
that it is not the Attorney-General's role to defend the judiciary and that the judiciary should not presume that the political office
of Attorney-General can or should represent judicial interests.[1]
Williams argued that there is no evidence of a practice of Australian Attorneys-General defending the judiciary and that there is
no close analogy between the roles of the United Kingdom ("UK") Attorney-General and the Australian Attorney-General.[2]
Notably, Williams maintained his silence in the face of dramatic attacks on the High Court in recent years.[3]
- Whilst Williams' position may be seen as representative of the stance of the current Executive, it is not necessarily a statement
of underlying principle. The traditional view is that the Attorney-General, as Chief Law Officer of the Crown, has a duty to defend
the judiciary and to protect judicial independence. Williams appears to be the first advocate of the view that Australian Attorneys-General
have a limited role in defending the judiciary. The question of whether it is the Attorney-General's role to defend the High Court
from criticism has sparked debate as to the appropriate role and functions of the modern day Attorney-General. Specifically, this
debate has illuminated the inherent tension between the political and the legal duties of the office of Attorney-General.
- An appropriate point to begin considering the question of whether it is the Attorney-General's role to defend the High Court is an
examination of the history of the office. In providing a short history of the evolution of the office of Attorney-General, I propose
to examine whether the office has developed in Australia to the point that it is so far removed from its origins in English history
so as to be substantially divorced from the principles that guided the development of the office. The underlying question that I
propose to consider in light of the history of the office is: should the Commonwealth Attorney-General defend the High Court from
criticism?
- The office of Attorney-General is a very old office. The details of the historical development of the office are obscure and there
has been some disagreement amongst legal historians as to the exact details of the office's history.[4]
The most comprehensive, authoritative study of the history of the office of Attorney-General can be found in Dr John Edwards' detailed
book on the Law Officers of the Crown, in which he describes the development of the office from its genesis in English history.[5]
- The origins of the office of Attorney-General can be traced back to England in the thirteenth century and the early beginnings of
the legal profession itself. The sovereign was unable to appear in person in his own courts to plead in any case affecting his interests.[6]
It was therefore necessary for an attorney to plead the sovereign's case.[7]
It was the responsibility of the King's Attorney to maintain the interests of the sovereign before the royal courts. The first
written record of a professional attorney appearing on behalf of the sovereign is of Lawrence del Brok in 1243 who was noted as receiving
an annual fee of 20 pounds "for suing the King's affairs of his pleas before him".[8]
Lawrence del Brok held office as the King's Attorney for 14 years and was later made a judge.[9]
The sort of work that Lawrence del Brok was engaged in can be determined from the court rolls at the time and "...included initiating
actions to recover rents and lands, proceeding against those who pronounced a sentence of excommunication against a royal servant,
guarding the King's right to present to churches..."[10]
and "...investigating homicides to hear and determine what pertained to the Crown".[11]
Although not noted as "attornatus regis" in the court rolls, Dr Edwards argues, "...it would seem not unreasonable to recognise
Lawrence del Brok's strong claims to having been the first King's Attorney and the progenitor of the modern Attorney-General".[12]
Notably, the political duties currently attached to the office of Attorney-General were not present in this early period of the
office's history. However, "...as the functions of sovereignty became more complex and extensive and acquired a more public character,
it was natural that the functions of the King's Attorney should become wider".[13]
- In 1461 the first record of the title of "Attorney-General" appeared when the King's Attorney, John Herbert, was described as the
"Attorney-General of England" in the patent of his appointment.[14] In the same year, Herbert was summoned, along with the judges, to the House of Lords to advise on legal matters.[15]
The writ of attendance issued to the Attorney-General and to the Justices of the King's Bench and Common Pleas stated that they
were to attend the House of Lords and commanded simply that they were summoned to give advice.[16]
The Attorney-General's position in the House of Lords as an adviser and attendant may be seen as a reflection of the original conception
of the office as that of legal adviser to the Crown and servant of the sovereign.[17]
By the beginning of the sixteenth century, it was the Attorney-General who was generally consulted by the government regarding points
of law and who had the conduct of important State trials.[18]
The responsibilities of the Attorney-General had steadily expanded to involve "...the representation of the sovereign in his courts
for the protection of his rights and interests wherever that was necessary and the discharge of the sovereign's responsibilities
for the prosecution of crime".[19]
The Attorney-General also began to assume a significant position in the House of Lords and by the sixteenth century was the "...the
principal go-between the two Houses of Parliament, carrying bills and messages from the Lords to the Commons and drafting or amending
parliamentary measures".[20]
- This increasing involvement in the work of Parliament was the most noteworthy aspect of the Attorney-General's expanding role.[21]
Although originally called upon by the House of Lords for legal advice, the Attorney-General ultimately took a place in Parliament
in the House of Commons.[22]
Towards the end of the sixteenth century the House of Commons began to assume an important position in the State; it became desirable
for the Attorney-General to be available to explain to the House of Commons the legal implications of the government measures that
came before it.[23]
However, the Attorney-General was attached to the House of Lords. The question of whether the Attorney-General could become a member
of the House of Commons was a reflection of the constitutional struggles at that time. This issue caused a controversy in 1614 when
the House of Commons objected to Sir Francis Bacon remaining in the House of Commons after his appointment as Attorney-General.
The issue was only resolved when the House of Commons determined that: "Mr Attorney-General Bacon remain in the House for this Parliament,
but never any Attorney-General to serve in the Lower House in future".[24]
This incident provides one of the earliest illustrations of the inherent conflict in the office of Attorney-General between politics
and law. It appears that this ruling of the House of Commons was adhered to for some time. For instance in 1620, 16[25]
and 1640 new writs for election were issued when members of the House of Commons were appointed to the office of Attorney-General.25
- The House of Commons viewed the Attorney-General with suspicion and as a "...tool of the Crown and the Lords".[26]
However, as noted, it was important for the House of Commons to have the legal advice of the Attorney-General. For example, in
1661 the House of Lords granted leave for the Attorney-General, Sir Geoffrey Palmer, to attend the House of Commons after the Lower
House sought his advice regarding business with which the Crown was concerned.[27]
However, it was not until 1670 that the problem was finally resolved when Sir Heneage Finch was permitted to retain his seat in
the House of Commons after his appointment as Attorney-General.[28]
Originally, the Attorney-General's participation in the Lower House was restricted to drafting bills and advising on legal matters.[29]
The Attorney-General rarely spoke in the House of Commons.[30]
However, through membership of the House of Commons the Attorney-General gradually assumed political responsibilities.[31]
- Ultimately, the responsibilities and duties attached to the office of Attorney-General took on a more public and political character.[32]
In the 1890s the right of the Attorney-General to undertake private practice was restricted.[33]
And, in 1893 the Law Officer's Department was created in London.[34]
By the early 1900s the energies of the Attorney-General were focused exclusively on government business in the courts and Parliament.[35]
Thus, the role of the Attorney-General in the UK developed from being the legal representative of the sovereign to being an important
figure in government, Chief Crown Prosecutor and Member of Parliament with substantial political responsibilities.[36]
Since 1814, the Attorney-General of England has also been recognised as the head of the English Bar.[37]
- The office of Attorney-General was transplanted to the Australian colonies with the reception of English law. The first Attorneys-General
in the Australian colonies were drawn from the English Bar.[38]
They were appointed by the UK Government as ex officio members of the Executive and the Legislative Councils and played a substantial
role in colonial politics.[39]
Historically, the Australian Attorney-General has always played an important role in the Executive and has often been a key member
of Cabinet. Whilst this appears to support Williams' position, it is arguable that, despite the substantial political duties of
the Australian Attorney General, there are also important responsibilities attached to the office which necessitate defence of the
High Court by the Attorney-General.
- The history of the office of Attorney-General, in the UK and Australia, reveals an inherent tension between the legal duties and political
responsibilities of the position. The tension in the office arises out of the duties the office holder has to the law and the courts,
the Executive, Parliament, their constituents and political party loyalty.
- In both the UK and Australia, the hybrid character of the office has illustrated itself in "...a fusion of political animal and Chief
Legal Officer to the Crown".[40]
Whilst Williams suggested that the UK Attorney-General is more removed from political processes, it appears that his counterpart
did not agree. The UK Attorney-General, the Right Honourable Lord Goldsmith QC, has described the role as covering "...a portfolio
of quasi-judicial, professional, parliamentary and political duties of considerable breadth".[41]
Further, the history of the office of the UK Attorney-General illustrates that the office has developed into a very political position.
The only distinction appears to be that the office of Attorney-General has always been of political importance in Australia.
- It has been suggested that the difference between the modern office of Attorney-General in the UK and Australia is in the contrasting
emphasis placed on the legal and political aspects of the office.[42]
This contrast is evident in the structure and functions of the office in the UK and Australia.[43]
- Although the UK Attorney-General is a politician, he or she is also primarily a lawyer. The UK Attorney-General's role in government
is confined to providing legal advice to the government, representing the government in court, exercising control over major prosecutions
and discharging the legal functions of the sovereign.[44]
Although the UK Attorney-General is usually a member of the House of Commons, they are not included in Cabinet.[45]
The UK Attorney-General does not have ministerial responsibility for a government department. Ministerial responsibility for the
administration of justice rests with the Lord Chancellor and, to a certain extent, the Home Secretary, who are both members of Cabinet.[46]
The Australian Attorney-General, on the other hand, is primarily a politician, and not necessarily a lawyer, is a Member of Parliament
and may be included in Cabinet, administers a large government department and advises other government departments, Ministers and
Cabinet.[47]
- The Attorney-General also has a number of common law and statutory functions.[48]
In Australia, some of the prerogative powers of the Commonwealth Attorney-General have been delegated. For instance, it is the Solicitor-General
who provides legal advice to the government.[49]
And the role of Chief Crown Prosecutor has been delegated to the Commonwealth Director of Public Prosecutions.[50]
It seems that this has been done primarily for administrative efficiency.[51]
It is not necessarily indicative of a recognition of the difficulty of exercising legal functions independently of politics or an
acknowledgment of the office as primarily political. However, the delegation of prosecutions has removed political tensions regarding
decisions to prosecute.[52]
In the past, the role of the Attorney-General as Chief Crown Prosecutor was a significant source of controversy and conflict between
the legal duties of the office and politics.[53]
- The notion of "independent aloofness" developed in the UK in response to "...the difficulty of reconciling the impartiality...required
for the proper discharge of the Attorney-General's legal and quasi-judicial functions with the demands of partisan politics".[54]
The doctrine of independent aloofness requires that the Attorney-General not be involved with issues of government policy, should
refrain from engaging in robust political debate except in regards to their own portfolio and be non-confrontational in relation
to party politics.[55]
- It is worth noting that the issue regarding the problem of balancing the political and legal duties of the Attorney-General has arisen
in a different context in the UK compared to Australia. In Australia, the debate has focused on whether the role of the Attorney-General
as defender of the judiciary conflicts with political responsibilities. However, in the UK the conflict has arisen primarily in
relation to instigating criminal proceedings.[56]
- The doctrine of independent aloofness became prominent in the UK in 1924 following criticisms over the Attorney-General's withdrawal
of a prosecution against a communist named John Campbell.[57]
Prosecuting Campbell presented serious political implications for the Labour government.[58]
When the prosecutions were discontinued, following a Cabinet meeting which the Attorney-General attended, the Conservative Opposition
accused the Prime Minister of putting political pressure on the Attorney-General to influence his decision.[59]
Lord Birkenhead, stated that the Attorney-General's decision:
"...on the matter of prosecutions is to be taken, not as a Minister, but as a judge. If political considerations enter into a decision
of this kind, he, applying his judicial mind, is to be the sole judge of those considerations. In no circumstances must he allow
the intrusion of political colleagues. This doctrine has never in my recollection of legal and political history been departed from."[60]
- It has been suggested that Lord Birkenhead may have been suffering from a convenient case of amnesia when he made these comments.[61]
Lord Birkenhead had himself terminated prosecutions at the behest of the government when he had been Attorney-General.[62]
Arguably, Lord Birkenhead's statement on the independence of the Attorney-General was politically motivated rather than an enunciation
of the correct constitutional position.[63]
Nevertheless, this statement was accepted by the successive Conservative government in the UK and later by the next Labour government.
Thus, a "...doubtful and...controversial principle was elevated to the level of binding constitutional convention".[64]
The notion of independent aloofness has prevailed in the UK. The UK Attorney-General has not been a member of Cabinet since 1928.[65]
- This hypothetical notion of independence shaped the modern office of the UK Attorney-General. The principle was endorsed in a famous
speech in 1951 by the Attorney-General of the time, Sir Hartley Shawcross, to the House of Commons.[66]
The general principle is that the Attorney-General's decision to prosecute should be made by the Attorney-General alone, independent
of political considerations. In Australia, a dramatic application of the Shawcross principle occurred in 1977 when the then Attorney-General,
Robert Ellicott, resigned over what he regarded as an attempt by Cabinet to direct the exercise of his discretion in relation to
criminal prosecutions.[67]
However, this is no longer relevant in Australia because, as noted, prosecutorial decisions have been delegated to the DPP.
- Dr Edwards has claimed that the Shawcross principle is the "...modern exposition of the constitutional position of the Attorney-General..."[68]
in the UK. The Shawcross principle has been accepted by Commonwealth countries, despite differences in the office of Attorney-General
in these countries.[69]
However, it is "...distinctly unclear as to whether this is an accurate representation of the role of the modern Attorney-General
in Australia".[70]
It is questionable whether this sense of detachment is a feature of the office of the Australian Attorney-General, and if it is,
whether it translates into a positive duty to defend the judiciary from attack regardless of party political considerations.[71]
- Williams' main argument was that the role of the Australian Attorney-General is as a politician "first and foremost".[72]
He argued that Australian Attorneys-General cannot stand as an independent defender of the judiciary. Throughout Australia's history,
the Attorney-General has always been an important political figure, a member of Cabinet and responsible for ministerial portfolios.[73]
Australian Attorneys-General have not been insulated from political turmoil. As former South Australian Attorney-General, LJ King
notes, "...the Attorneys-General of the Commonwealth have often been senior ministers combining the portfolio of Attorney-General
with other senior and highly political portfolios...[i]ndependent aloofness played no part in their careers".[74]
Although, as Dr Edwards notes, even in this context, constitutional adjustments have been made according to the political inclination
of particular governments.[75]
For instance, "...the practice has long been recognised that the holder of the office of Attorney-General does not, ex officio,
occupy a seat within the Cabinet".[76]
The Attorney-General's membership of Cabinet has been determined according to the political seniority and standing of the particular
individual, rather than convention.[77]
Williams, for example, was not originally appointed to Cabinet when the Coalition gained power in 1996. He was not appointed to
Cabinet until 1997. Furthermore, the British practice of not including the Attorney-General in Cabinet is relatively recent and
it is questionable whether it may be referred to as a constitutional convention. There is no statutory requirement that the Australian
Attorney-General must act independently; the basis for the independence of the Attorney-General is principally that of convention.[78]
The role of the contemporary Australian Attorney-General is very much open to interpretation by its office holder.[79]
- King has argued that the Australian Attorney-General has special responsibilities as "law minister" which characterise the office
of Attorney-General as distinct from other government ministers.[80]
These responsibilities include law reform, recommending judicial appointments, ensuring funding for the courts, protecting the administration
of justice and safeguarding the independence of the judiciary.[81]
- An aspect of the traditional role of the Attorney-General, as derived from England, was as the public defender of the judiciary.[82]
The Attorney-General traditionally assumed the role of defender of the judiciary by instituting contempt of court proceedings.[83]
Sir Anthony Mason has also asserted that there is a convention that the Australian Attorney-General defends the judiciary from criticism.[84]
The role of defending the judiciary derives from the importance of safeguarding judicial independence. This appeared to develop
from the notion that the Attorney-General, as Chief Law Officer of the Crown, had a duty "...to maintain public confidence in the
administration of justice and uphold the rule of law".[85]
Arguably, the role of the Attorney-General as defender of the judiciary transcends political exigencies. It may be argued that
there is a moral or normative obligation on the Attorney-General to defend the High Court which stems from the position of guardian
of the administration of justice and as the link between the government, Parliament, the judiciary and the community.[86]
- Since the early 1990s the High Court has come under attack, notably from politicians and the media. Up to this point the High Court
enjoyed a level of immunity from public criticism. However, this was not because the Court was not making politically unpopular
decisions. In 1951, for instance, the High Court declared the attempts by the Liberal Menzies Government to outlaw the Communist
Party as constitutionally invalid.[87]
The High Court had also earlier made a politically controversial decision when it rejected attempts by the Labor Government of the
time to nationalise Australia's major trading banks.[88]
In both cases the respective Commonwealth governments tried to overturn the Court's decision by changing the Constitution or appealing to the Privy Council. However, as David Soloman points out, in neither case...was the Court or its...judges vilified
by political leaders or their supporters".[89]
- Increased criticism of the High Court may be a symptom of changed social conditions and illustrative of a general lack of reverence
for public institutions which has developed in the Australian community over the last few decades. Soloman argues that, in the past,
criticism of the High Court was rare because the Court was held in high regard and because the judiciary have traditionally occupied
a privileged, insulated position removed from the turmoil of politics and largely immune from public criticism.[90]
The protection afforded to judges by contempt of court powers has also been suggested as a reason for the past reluctance of the
media to criticise the High Court.[91]
However, attacks on the judiciary are now a predictable part of political rhetoric. The controversy that followed the High Court's
decision in Wik Peoples v Queensland,[92]
for example, marked the end of the Court's immunity from public criticism and represented the beginning of an era in which politicians
have targeted the Court, and individual judges, to score political points. Indeed, attacks on the High Court by politicians have
become politically necessary in order to undermine the authority of the Court's decisions.[93]
- The lack of criticism of the High Court over its 100-year history has allowed it to maintain a level of independence and public confidence.
Williams argued that "...it has never been clearly articulated or accepted..."[94]
that Australian Attorneys-General have a duty to defend the judiciary. But, as Williams has acknowledged, one of the reasons there
is little evidence of a tradition of Australian Attorneys-General defending the judiciary is because of the marked absence in our
history of criticism of the judiciary.[95]
It seems ironic that at the very point in time that attacks on the Court's integrity increased (primarily from politicians) that
the Attorney-General, the judiciary's traditional voice of defence in the Executive, was silent.
- The role of the Attorney-General as defender of the judiciary has no statutory basis, it is not part of the common law, nor is the
performance or non-performance of the role justiciable.[96]
Rather it is an unwritten custom or convention which obliges the Attorney-General to defend the High Court. The principle of judicial
independence implies an obligation on the Attorney-General to defend the High Court. This is because the Attorney-General is best
placed to defend the Court. Indeed, because the office of the modern Australian Attorney-General is so political, the role of defender
of the High Court is even more important. A defence of the High Court by the Attorney-General ensures that political attacks are
responded to by a prominent, influential figure in the political arena and ensures that the judges are not forced to go down into
that arena to defend themselves. The Attorney-General is in a unique position to act as both a "bridge and a gatekeeper"[97]
between the Executive, Parliament and the judiciary in order to protect the administration of justice and to maintain public confidence
in the independence of the High Court. The open-ended historical development of the office of Attorney-General in Australia has
meant that it falls on the office-holder to ensure that they emphasise and take on the role of defender of the High Court.
[1]
See for instance Williams, D, "Who Speaks for the Courts?" in Courts in a Representative Democracy (AIJA, Collection of Papers from
a National Conference, November 1994) 183
[2]
Ibid
[3]
The increase in criticism of the High Court since the early 1990s has brought this issue to the forefront of public and academic
debate in Australia. The political furore that followed the High Court's decision in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 represented the beginning of intensely political attacks on the Court. However, it was the storm of controversy and criticism that
followed the High Court's decision in Wik Peoples v Queensland (1997) 187 CLR 1 and the relatively recent attack made by Senator Bill Heffernan on High Court judge, Justice Michael Kirby that stirred up heated
debate on the role of the Attorney-General as defender of the judiciary. Williams' refusal to defend Justice Kirby when Heffernan
made serious allegations against Justice Kirby in Federal Parliament on March 12, 2002 stands out as a catalyst in this debate.
[4]
See for instance, Edwards, John, The Law Officers of the Crown (London : Sweet & Maxwell, 1964); Bellott, H, "The Origin of
the Attorney-General" (1909) 25 LQR 400; Holdsworth, William, Sir, A History of English Law Vol VI (London : Sweet and Maxwell, 1937)
[5]
Edwards, The Law Officers of the Crown, above n 4; see also Edwards, John, The Attorney General, Politics and the Public Interest
(London : Sweet & Maxwell, 1984)
[6]
King, LJ, "The Attorney-General, Politics and the Judiciary" (2000) 29 UWAL Rev 155
[7]
King, above n 6, 155; see also Shawcross, H, The Rt. Hon. Sir, "The Office of the Attorney General" (1954) VII:4 Parliamentary Affairs
381
[8]
Cited in Edwards, The Law Officers of the Crown, above n 4, 16
[9]
Shawcross, above n 7, 381
[10]
Edwards, The Law Officers of the Crown, above n 4, 16
[11]
Ibid
[12]
Ibid
[13]
Shawcross, above n 7, 381
[14]
Edwards, The Law Officers of the Crown, above n 4, 27
[15]
King, above n 6, 156
[16]
Edwards, The Law Officers of the Crown, above n 4, 33
[17]
Id, 32
[18]
Holdsworth, above n 4, 462
[19]
King, above n 6, 156
[20]
Edwards, The Law Officers of the Crown, above n 4, 34
[21]
King, above n 6, 156
[22]
Edwards, The Law Officers of the Crown, above n 4, 32
[23]
Holdsworth, above n 4, 464
[24]
Cited in Edwards, The Law Officers of the Crown, above n 4, 37
[25]
Ibid
[26]
Shawcross, above n 7, 381
[27]
Edwards, The Law Officers of the Crown, above n 4, 37
[28]
Ibid
[29]
Heraghty, B, "Defender of the Faith? The Role of the Attorney-General in Defending the High Court" (2002) 28:2 Mon LR 209
[30]
Ibid
[31]
Ibid
[32]
King, above n 6, 156
[33]
Edwards, The Law Officers of the Crown, above n 4, 141
[34]
Ibid
[35]
Id, 66
[36]
King, above n 6, 156
[37]
Edwards, The Law Officers of the Crown, above n 4, 3
[38]
Edwards, The Attorney General, Politics and the Public Interest, above n 5, 367
[39]
Ibid
[40]
Heraghty, above n 29, 211
[41]
United Kingdom. Attorney-General the Right Hon Lord Goldsmith QC, Politics, Public Interest and Prosecutions - A View by the Attorney
General 13th Annual Tom Sargent Memorial Lecture (London, 20 November 2001)
[42]
Heraghty, above n 29, 211
[43]
Ibid
[44]
King, above n 6, 157
[45]
Heraghty, above n 29, 211
[46]
King, above n 6, 157
[47]
Heraghty, above n 29, 211
[48]
The common law functions of the Attorney-General include power to initiate and terminate criminal prosecutions, power to grant immunity
from prosecution, advising on the grant of pardons, issuing fiats in relator actions, instituting contempt of court proceedings,
appearing as amicus curiae in matters of public interest, applying for judicial review, representing the Crown in legal proceedings
and providing legal advice to Parliament, the Executive and Cabinet. The Australian Attorney-General also has a statutory power
to intervene in proceedings involving interpretation of the Commonwealth Constitution pursuant to s 78A of the Judiciary Act 1903 (Cth).
[49]
Law Officers Act 1964 (Cth) s 12
[50]
The Commonwealth DPP was established as an independent body under the Director of Public Prosecutions Act 1983 (Cth).
[51]
Heraghty, above n 29, 212
[52]
Although the Attorney-General has a residual right to direct the DPP this is rarely exercised. See Australia. Attorney-General
Daryl Williams, The Role of an Australian Attorney General: Antipodean Developments from British Foundations Anglo-Australasian Lawyers
Society (London, 9 May 2002)
[53]
Heraghty, above n 29, 213
[54]
King, above n 6, 157
[55]
Ibid
[56]
See Woodhouse, D, "The Attorney General" (1997) 50:1 Parliamentary Affairs 97
[57]
King, above n 6, 157. For an account of the Campbell case see Edwards, The Law Officers of the Crown, above n 4, Chapter 11
[58]
Bennett, D, "The Roles and Functions of the Attorney-General of the Commonwealth" (2002) 23:1 Australian Bar Review 62
[59]
Id, 63
[60]
Cited in Bennett, above n 58, 63
[61]
Ibid
[62]
Edwards, The Law Officers of the Crown, above n 4, 192
[63]
Bennett, above n 58, 63
[64]
King, above n 6, 160
[65]
Id, 157
[66]
Shawcross, above n 7, 386
[67]
For an account of Ellicott's resignation see Plehwe, R, "The Attorney-General and Cabinet: Some Australian Precedents" (1980) 11 Federal Law Review 12
[68]
Edwards, The Law Officers of the Crown, above n 4, 223
[69]
Heraghty, above n 29, 216
[70]
Ibid
[71]
Ibid
[72]
Australia. Attorney-General Daryl Williams, Judicial Conference of Australia Colloquium 2001 Opening Ceremony (Uluru, 7 April 2001)
[73]
King, above n 6, 158
[74]
Ibid
[75]
Edwards, The Attorney General, Politics and the Public Interest, above n 5, 367
[76]
Ibid
[77]
Id, 368. A comparison may be drawn with the UK office of Lord Chancellor whose executive role may be more or less significant depending
on the particular office holder, the government of the day and government priorities; see Woodhouse, D, "The Office of Lord Chancellor"
[1998] PL 618
[78]
Australia. Electoral and Administrative Review Commission, Report on the Review of the Independence of the Attorney-General (Brisbane
: EARC,1993) 10
[79]
Heraghty, above n 29, 220
[80]
King, above n 6, 169
[81]
Id, 169-176
[82]
Hands, T & Davies, D, "Defend Thyself!" (2003) 28:2 Alt LJ 66
[83]
Carney, G, "Comment - The Role of the Attorney-General" (1997) 9 Bond LR 7; see also Attorney-General v Times Newspaper Ltd [1974] AC 273 (Lord Diplock)
[84]
Mason, A, Sir, "The Role of the Courts at the Turn of the Century" (1993) 3 JJA 158
[85]
Hands & Davies, above n 82, 66
[86]
Heraghty, above n 29, 208
[87]
Australian Communist Party and Others v Commonwealth [1951] HCA 5; (1951) 83 CLR 1
[88]
Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1
[89]
Solomon, David, The Political High Court : How the High Court Shapes Politics (Sydney : Allen and Unwin, 1999) 7
[90]
Ibid
[91]
See Waterford, J, "Criticism of the Court" in Blackshield, Tony, et al (eds), The Oxford Companion to the High Court of Australia
(Melbourne : Oxford University Press, 2002) 183; see also, Hands & Davies, above n 82, 65 and Solomon, above n 89, 7
[92]
(1997) 187 CLR 1
[93]
As Sir Anthony Mason notes this provides a strong motive for such attacks. See Mason, A, Sir, "No Place in a Modern Democratic
Society for a Supine Judiciary" (1997) 35:11 Law Society Journal 52
[94]
Williams, D, "Judicial Independence" (1998) 36:3 Law Society Journal 50
[95]
Williams, D, "The Role of the Attorney-General" (2002) 13 PLR 255
[96]
Abbott, T, "Reflections on the Role of the Attorney-General" (2002) 13 PLR 273
[97]
Heraghty, above n 29, 238
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