'A periodical fit of morality': trials and tribulations of the solicitor-general

Parliamentary governance in the Westminster style doesn't require a solicitor-general; the designation, moreover, is used differently in different jurisdictions.

The federal government of Canada no longer has a solicitor-general. When it did, until 2005, it gave a different meaning to the rule of law. It was the ministerial office in a department responsible for federal penitentiaries, the Royal Canadian Mounted Police and the National Parole Board. What was the post of solicitor-general is now designated minister of public safety and emergency preparedness.

Work of the sort dealt with by Australia's solicitor-general is performed in Ottawa by senior lawyers in the Justice Department, whose deputy minister (departmental secretary) is also deputy attorney-general (the justice minister also being the attorney-general of Canada).

Across the Atlantic, to Westminster itself, there is a solicitor-general. This officer is drawn from the ranks of the House of Commons and is subject to change according to the winds of politics.

The Commonwealth of Australia didn't have a solicitor-general for its first decade and a half. The office, when it came into being, was a creation of convenience in the turmoil that engulfed the Hughes Labor government just 100 years ago in the weeks preceding the first conscription plebiscite.

Parliamentary governance in the Westminster style doesn't require a solicitor-general.

As the Labor government started to fall apart, William Morris Hughes, the prime minister and attorney-general, struggled to find new ministers. One solution was to fill a vacancy himself. To ease the immediate burden, he hit on the device of having a solicitor-general.

As Hughes told the House of Representatives, the legislation would permit "the secretary of the [Attorney-General's] Department to sign, as solicitor-general, a number of documents, which can now be signed only by the attorney-general. The solicitor-general will have no authority to sign anything, or to do anything, unless it has been specially delegated to him by the attorney-general."

The real history is probably that the idea originated with Robert Garran, secretary of the Attorney-General's Department. The first appointee to the office, he effectively became a sort of deputy attorney-general and, by acquisition of an eminent title with long lineage in English government, achieved a status elevating him above his peers in the ranks of department heads.

When the decision to create the office was made, there was not much of a cabinet to consider the merits of the proposal; no spending was involved so there was no need to consult the Treasury.

And the House, in its deliberations on the legislation, didn't even have the text. As opposition leader Joseph Cook said: "We are in the anomalous position of having to discuss a bill of which we have not a copy ... we are in the dark; we know nothing about the bill, or what is contemplated, beyond the assurance of the prime minister and attorney-general that he proposes to allocate no duties of an important character to the solicitor-general ..."

Whether the legislation or the post was really required is a good question and not one that went unnoticed at the time.

Professor Gabrielle Appleby, the current academic expert on the post, accords these parliamentary proceedings a good deal more respect than a reading of the Hansard warrants. She has nevertheless concluded: "It is unclear why it would not have been possible to delegate powers to Garran as the secretary of the department. While it was more traditional for the attorney-general to delegate the office's function to the solicitor-general, it is not constitutionally mandated."

This arrangement lasted nearly half a century. It was replaced in the mid-1960s at the time of Sir Kenneth Bailey's retirement.

It was then that the posts of secretary, Attorney-General's Department, and solicitor-general were separated, a further evolution in organising the law function in Commonwealth administration. The legislative drafting function had already been formally vested in another senior officer in the department, a post which, in 1970, gained statutory embodiment as the first parliamentary counsel.

With Bailey's retirement, a decision was made, for financial as well as professional reasons, that it would be beneficial for the Commonwealth to have a full-time, top-level advocate who wouldn't need to shoulder the burdens of departmental administration.

With a prestigious historical designation, the prospects of attracting a high-quality appointee were very good. This was borne out. The reported field for the first appointment was Anthony Mason, who was successful, Ninian Stephen and Professor Zelman Cowen – two became justices of the High Court after a time on state supreme court benches (Stephen and Mason), and two were appointed governor-general (Cowen and Stephen).

These days, such a post could be accommodated within the mainstream public service structure. This has occurred, for example, in the handling of the chief medical officer in the Health Department after the statutory requirement that the director-general of health should be a medical practitioner of 10 years' standing was removed.

An approach of this sort was difficult in 1963-64. At that time, there was a concerted policy, for which the rationale was as much doctrinal as organisational, of confining what was then called the first division to department heads (now departmental secretaries) and former department heads. Where ministers wanted extra top-level posts, the policy of the time was to create a statutory office for the purpose. The solicitor-general was one such instance and, a few years later, so was the first parliamentary counsel.

The attorney-general in 1964, Billy Snedden, made it clear that the new statutory officer was part of the attorney-general's portfolio and created to support the attorney. The departmental secretary's responsibility was to support the attorney in administration of the department. "It is also demonstrable," Snedden continued, "that the minister needs an officer in a similar relationship to him in regard to his functions as counsel for the Crown."

Though barely possible, the debate in 1964 was actually shorter than that of 1916. Within a week, before the opposition let the bill through, the deputy leader, Gough Whitlam, sang the praises of the three solicitors-general who had thus far served the Commonwealth, and commented inter alia that the "new position will be the most significant and challenging legal post in Australia".

Whitlam, a huge admirer of the Sydney bar, would be delighted that, of the seven appointees to the post in its new mode, six came from that bar (Gavan Griffith is the exception); five were law graduates of his alma mater, the University of Sydney (the exceptions are Griffith and Justice Stephen Gageler, now of the High Court).

Thus, the record of appointments doesn't disclose any apparent need for the sort of changes to selection processes being floated by independent senator Nick Xenophon, though there are some other matters where there is a case for reform (see below).

Snedden's words made it clear the post was created in a departmental context. Contrary to the recent rhetoric, the legislation did not vest powers in the new office but spoke of "functions".

Under the culture of the time, the expectation would have been that the contents of the legislation would largely be read as "administrative provisions", to use a term employed by attorney-general and former High Court justice Dr H. V. Evatt, in relation to a key section of the then active Public Service Act. For readers suspicious of this information, the person who brought it to light in 1975 was Maurice Byers, at the time a recently appointed solicitor-general.

There are other signs that the office was conceived as part of the attorney-general's portfolio without some of the more grandiose ambitions that have lately been brought into play like an ambit claim. The legislation, for instance, contains no authority for the solicitor-general to employ or engage staff.

It's assumed that any such need would be met by the Attorney-General's Department. In this respect, the Law Officers Act 1964 can be contrasted with the near contemporaneous Trade Practices Act 1965, which expressly covered staff support for the new statutory office of trade practices commissioner.

In another telling contrast, the trade practices commissioner was required annually, within 60 days, to present a report to the Parliament on his or her activities. No such obligation was placed on the solicitor-general, notwithstanding that it was fairly standard practice for any officer or body vested with a measure of distance or autonomy from a minister and usually looked upon as a significant element of the fabric of accountability.

There is evidence that solicitors-general prepare annual report-like documents. But these never seem to have been developed into documents for Parliament or, for that matter, the public; neither Parliament nor any of its committees seems to have pursued the issue!

In the recent rhetoric, the term "independent statutory officer" has been used often to describe the type of office the solicitor-general holds. Yet virtually none of the documentation employs this term, nor uses the word "independent". Likewise, Gavan Griffith's entry on solicitors-general in the Oxford Companion to the High Court of Australia eschews this particular vocabulary.

It does arise in Snedden's 1964 speech. He says only that the new officer will "retain the independence of counsel".

No particular enlightenment has come from all the recent repetition. Quite simply, the idea that, if something is said often enough, people will believe it ought not to have any place in debates of this kind. "Independence" in this context should refer mainly to qualities of character and mind.

A final point. Something of a major matter in this controversy is about the governor-general's need to have access to the solicitor-general for advice, possibly without reference to the prime minister or the attorney-general.

This is a diversion. Experience has shown that governors-general do periodically need access to high-level, high-quality advice on matters of law. This deficiency in support structures at Yarralumla should be addressed directly. Assuming that the need can be met by the solicitor-general may, on occasions, be correct, but it isn't an answer, let alone the answer.

J. R. Nethercote is an adjunct professor at the Australian Catholic University's Canberra campus. john.nethercote@acu.edu.au