10 November 2012

Solicitor General and A-G

'The Evolution of a Public Sentinel: Australia's Solicitor General' by Gabrielle Appleby in 63(3) Northern Ireland Legal Quarterly (2012) 397-467 comments that
 In the state and federal jurisdictions of Australia the historic 'law officer' role of chief legal adviser and advocate for the Crown is now performed by the second law officer, the Solicitor General. In Australia, the Attorney General now performs an almost exclusively political function as one of the ministers of the Crown. The Attorney is concerned with day-to-day political pressures and has little or no time, often not the expertise, and increasingly lacks the necessary independence and detachment to fulfil the traditional legal functions of the role. The progression in the first law officer’s role has been marked by the devolution of many of the traditional legal functions of the law officers to the Solicitor General. It is now the Solicitor General who provides the final constitutional and legal foundation for government action and legislative policy. In many respects, the Solicitor General has become the first law officer in all but name.
 Appleby concludes
The developments of the second-half of the twentieth century are a clear embodiment of the growing importance of the Solicitor General across the Australian jurisdictions. It is now the government’s highest-level legal officer in matters of constitutional and public law. Since its enshrinement in statute, the role has been a stable and important part of government. It complements (together with the DPP in relation to the criminal law) the position of the Attorney General, who has all but shed the title of first law officer. This is in recognition not simply of the reality that the Attorney General very rarely possesses the legal aptitude and experience required for these legal roles, but it operates to create distance between the exercise of the law officers’ legal services functions and the day-to-day politics and administration in which an Australian Attorney General is immersed.
The Australian Attorney General has been, almost since inception, at the core of government as a member of the Executive Council and later Cabinet, heading a large administrative department. This is in direct contrast with England, where ‘a conscious policy . . . to divorce the Attorney General from day-to-day political issues’ has been pursued. The Australian position, many argue, brings advantages. The Attorney General gains intimate awareness of the ‘battles and the arguments and the stresses and strains that eventually result in policy’, better equipping the officer to find (if possible) a lawful and proper way to achieve the policy objective. It has also been argued that the Attorney General in the Cabinet gives greater weight to the office’s authority among Cabinet colleagues, ensuring compliance and adherence to legal advice. The Australian system secures these benefits but, as this article has shown, acknowledges the increased danger of political and administrative pressures in this environment through the development of independent statutory officers to assist the Attorney General. The current paradigm of the Solicitor General has addressed this danger through a number of developments. Tensions between political allegiances and the independent discharge of the Solicitor General’s functions have been removed by the creation of an office outside of politics that has statutory guarantees of tenure, remuneration and pension.
Further, the focus on the legal nature of the position has meant the office’s independence is largely protected by the professional training and obligations of appointees. Finally, no longer is the office plagued with the politically charged prosecutorial discretion, this having been hived off to the statutorily independent office of the DPP.