Navigating a complicated relationship: The role of the Solicitor-General | Law

Navigating a complicated relationship: The role of the Solicitor-General

OPINION: Associate Professor Gabrielle Appleby, Law Society Journal, December 2016.

This year marked the celebration of a century since the establishment of the office of the Commonwealth Solicitor-General. It also marked a bitter public feud between the Attorney-General and Solicitor-General, and saw the resignation of the Solicitor-General, Justin Gleeson SC, who cited an ‘irretrievably broken’ relationship between the Law Officers. 

The catalyst for the relationship breakdown was the issue by the Attorney-General, Senator George Brandis QC, of an amendment to the Legal Services Directions 2005, requiring his written, signed consent before the Solicitor-General could furnish an opinion on a question of law to any person in government. The Direction was the subject of a Senate Committee inquiry at which both Law Officers appeared and gave conflicting evidence. Following Gleeson’s resignation, Brandis revoked the Direction. 

Understanding the nature of the relationship between the Law Officers is key to understanding the nature of the office of Solicitor-General. It is a relationship that has evolved significantly since 1916, and is now captured – albeit obscurely – in section 12 of the Law Officers Act 1964 (Cth).

The first Commonwealth Solicitor-General

On 1 January 1901, Alfred Deakin was sworn in as the first Commonwealth Attorney-General, but it was not until 15 years later that the first Commonwealth Solicitor-General was created. 

By 1901, colonial Solicitors-General took one of two forms. The first reflected, as far as possible in colonial conditions, the British tradition of the Law Officers: both Attorney-General and Solicitor-General sat in Parliament as responsible ministers, and the Solicitor-General largely filled the role of deputy and assistant to the Attorney-General.

The second evolved in the 1860s in Tasmania. The Tasmanian model established the Solicitor-General as a non-political public service role, with heavy administrative responsibilities heading the Attorney-General’s department.

In 1916, it was the Tasmanian public-service model that the Commonwealth adopted in the Solicitor-General Act 1916 (Cth). While there was officially no Commonwealth Solicitor-General prior to this date, Sir Robert Garran, as the first Secretary of the Attorney-General’s Department, was drafting legislation, advising the government on legal and constitutional issues and conducting litigation on behalf of the government. Finally, in 1916, William (Billy) Hughes, the Prime Minister and also Attorney-General, introduced the Solicitor-General Bill. On its face, the Bill changed little, other than conferring the title ‘Solicitor-General’ on Garran. The Commonwealth Solicitor-General continued under the public-service model until 1964. Three men served as Solicitor-General during this period: Sir Robert Garran (1916-1932), Sir George Knowles (1932-1946) and Sir Kenneth Bailey QC (1946-1964).

During Bailey’s time in the office, the role began to change in the states. In 1951, Victoria introduced a new office of Solicitor-General: a quasi-independent statutory office of ‘counsel’ to the Crown, a professional post with few administrative responsibilities. The Commonwealth saw the advantages of this model, and started to press Bailey to appear more often in court on its behalf. In 1964, it formally adopted the statutory counsel model in the Law Officers Act 1964 (Cth) and appointed Sir Anthony Mason QC to the position.

Since this date, eminent legal counsel have filled the role: the Honourable Robert Ellicott QC (1969-1973); Sir Maurice Byers QC (1973-1984); Dr Gavan Griffith AO QC (1984-1997); Dr David Bennett AC QC (1998-2008); the Honourable Justice Stephen Gageler (2008-2012); and Justin Gleeson SC (2012-2016).

The statutory counsel model, eventually adopted across Australia, recognised the desirability of having a legally qualified officer with some statutory guarantees of tenure, status and remuneration, but it did not wholly remove the constitutional and statutory links of accountability between the office and the Attorney-General.

Accountability & independence between the Law Officers

When the Solicitor-General Bill was introduced in 1916, debate ensued about how a non-political Solicitor-General would remain accountable. In the second reading debate, Hughes explained: 

‘The Minister will declare the policy of the Government in every case, and the Solicitor-General will give effect to it. Thus Ministerial discretion will remain, and Ministerial responsibility will not be lessened. The Government will be as much responsible for every act done by the Solicitor-General as if it had been done by the Attorney-General …’ 

The move to the modern ‘counsel’ model continued to cause consternation about the nature of this relationship. In Victoria, when the first modern version of the statute was introduced, the Attorney-General and Premier emphasised in the legislative debates that the Solicitor-General had no continuing political role and was subject to direction by the Attorney-General, who remained responsible for all actions taken and decisions made by the Solicitor-General.

However, against this concern for responsibility and accountability was also a desire for the officeholder to exercise professional independence. At the introduction of the Law Officers Bill 1964 (Cth), Attorney-General Billy Sneddon emphasised the importance of retaining a member of the practising Bar to ensure they continued to enjoy the independence of counsel. This would be reinforced by statutory tenure.

Further, for the Solicitor-General to fulfil his or her role requires the trust and respect of the Attorney-General and the government. If a Solicitor-General loses that trust and respect, he or she may no longer be consulted and briefed by the government, and therefore the value of the office to the rule of law will be diminished. A Solicitor-General must thus maintain accountability, ensure professional independence and gain trust, negotiating the at times competing tensions that are inherent in the office.

The Law Officers Act

Under the Law Officers Act 1964 (Cth), the Solicitor-General is the ‘Second Law Officer of the Commonwealth’. 

The Solicitor-General’s functions are conferred under s 12 of the Law Officers Act, a provision that has been at the root of much of the current controversy. Under s 12, the Solicitor-General is:

(a) to act as counsel for: 

(i) the Crown in right of the Commonwealth; 

(ii) the Commonwealth; 

(iii) a person suing or being sued on behalf of the Commonwealth; 

(iv) a Minister; 

(v) an officer of the Commonwealth; 

(vi) a person holding office under an Act or a law of a Territory; 

(vii) a body established by an Act or a law of a Territory; or 

(viii) any other person or body for whom the Attorney-General requests him or her to act;

(b) to furnish his or her opinion to the Attorney-General on questions of law referred to him or her by the Attorney-General; and 

(c) to carry out such other functions ordinarily performed by counsel as the Attorney-General requests.

The division of the Solicitor-General’s functions between (a) – acting as counsel – and (b) – furnishing opinions on questions of law – is unique in Australian statutes that establish the Solicitor-General.

Other statutes confer on the Solicitor-General only the obligation to act as ‘counsel’, although they do so in two different ways. The first is an unqualified obligation to act as ‘counsel’. So, for example, under section 5 of the Attorney-General and Solicitor-General Act 1972 (Vic), the Solicitor-General ‘may act as counsel for Her Majesty’. The second is an obligation to act as counsel at the request of the Attorney-General. So, for example, section 6 of the Solicitor-General Act 1972 (SA) provides that the Solicitor-General ‘shall at the request of the Attorney-General act as Her Majesty’s counsel’.

The Commonwealth statute appears to combine the two positions. This gives rise to a tricky question of statutory interpretation: can the Solicitor-General provide an opinion on a question of law only under the conditions set out in s 12(b), or can the Solicitor-General provide an opinion on a question of law as part of the broader function of acting as counsel under s 12(a)? If it is the latter, can the Attorney-General restrict access to the Solicitor-General under s 12(a)?

A number of different opinions have been expressed about the correct interpretation of section 12 both before and after the debate about the validity of the Attorney-General’s Direction. Gleeson gave evidence to the Senate Committee that he thought s 12(b) did not limit s 12(a), and that s 12(b) of the Law Officers Act applies to ‘those cases where the Attorney-General seeks the opinion of the Solicitor-General, which may then stand as the opinion of the Attorney-General unless he or she wishes to contradict it.’ Gleeson had, however, previously expressed views that might be interpreted to take a narrower view of s 12(a) and a more important role for, or at least a different interpretation of, s 12(b).

His practice largely reflected this narrower view. During his tenure as Solicitor-General, he had institutionalised, through Guidance Note 11, a highly formalised system for those in government who wished to receive his advice. This included notifying the Attorney-General of all requests for advice, and providing the Attorney-General with copies of the advice. In his submission to the Senate Committee, Gleeson clarified that this protocol applied with the exception of advice that he provided to the Prime Minister and the Governor-General that had been requested and provided on a confidential basis.

Sir Anthony Mason had previously written that he did not believe it should be implied from the qualification in s 12(b) ‘that the Solicitor-General cannot furnish an opinion to the Commonwealth or its emanations without a request from the Attorney-General’ (Public Sentinels: A Comparative analysis of Australian Solicitors-General, (Ashgate, 2014)). He explained that he was often instructed by the Crown Solicitor and the Attorney-General’s Department to advise departments and other Commonwealth agencies, without any express approval from the Attorney-General.

Sir Anthony clarified and reiterated his position in his opening remarks of an event on 24 October this year celebrating 100 years since the establishment of the first Commonwealth Solicitor-General. There, he explained that s 12(b): ‘enables the Attorney to request the Solicitor’s opinion on any question of law, even if an answer to that question of law would not necessarily fall within the Solicitor-General’s remit under s 12(a)’.

This is a different explanation of the ‘work’ that s 12(b) does from that given by Gleeson. The position of Gleeson and Mason was also supported by Gavan Griffith in his submission to the Senate. But, again, Griffith gave a different explanation of the work that s 12(b) does. Griffith appears to refer to s 12(b) as operating whenever the Attorney-General directly approaches the Solicitor-General for an opinion. Griffith also referred to his experience of the practice of the Solicitor-General, in which briefs for advice were often received directly from government entities other than the Attorney-General.

Brandis took a different view of the provision. In his submission to the Senate Committee, he explained that other than s 12(b), ‘[t]he Act does not establish any mechanism whereby another Minister or government entity may refer a question of law to the Solicitor-General.’

Reforming section 12 of the Law Officers Act

There is currently significant disagreement as to the correct interpretation of s 12(a) and (b) of the Law Officers Act, and their interrelationship. Reform of s 12 is sorely needed. But which position should be adopted? Should access to the Solicitor-General be restricted through the Attorney-General? Or should the statute allow free access to the Solicitor-General by those across government? At the state and territory level, there is a division between those jurisdictions that require the request of the Attorney-General before the Solicitor-General acts at all, and those that do not. Arguments can be made for both positions. Against the position that the Attorney-General ought to consent to the Solicitor-General acting as counsel in any matter is that it might discourage those in government from accessing the Solicitor-General, and there may be matters on which senior members of government (for example the Prime Minister, the Governor-General or independent statutory agencies) require the Solicitor-General’s counsel that need to be kept confidential from the Attorney-General.

On the other hand, the position in which the Attorney-General is formally the instructor for the Solicitor-General reinforces the accountability of the Solicitor-General to the Attorney-General, ensuring that the Attorney-General is able to understand the legal advice provided across government, to answer questions on the work of the Solicitor-General, and report on that work where necessary. Of course this position doesn’t preclude practices and conventions from developing to facilitate and streamline access to the Solicitor General. Gleeson’s former practice, as captured in the previous iteration of Guidance Note 11, provides just one example of such a practice. Further, there is no reason that the statute might not be drafted to allow for some officers, such as the Prime Minister or the Governor-General, to access the Solicitor-General directly if this was considered desirable.

Conclusion

Controversy stained the celebration of the 100th anniversary of the Commonwealth o ce of SolicitorGeneral. But the bitter dispute between the Law O cers served as a timely reminder of the importance of the Solicitor-General to good government under the rule of law, the inherent tensions in the o ce between accountability, independence and trust, and has highlighted the need for statutory reform to provide greater clarity for its future.

Article from LSJ, December 2016, Issue 29, pp.70-72.