'The Changing Role of the Attorney-General' by Matthew Groves in (2024) 52(2) Federal Law Review comments
The office of Attorney-General is an ancient one that remains central to the legal system. The Attorney-General exercises many functions and powers important to the legal system but is also a politician and member of cabinet. This article explains the key functions of the Attorney-General and also the political position of that officer. The focus of the article is upon federal law. It also examines three federal Attorneys-General of modern times and considers how their actions have influenced or reflected the changing conceptions of that office. The article does not suggest that changing conceptions of the office are either good or bad, but instead that they are a reality. The article suggests that these changes provide a reason to reconsider some of the traditional privileges of the Attorney-General, such as the power to grant a fiat in judicial review claims and the Attorney’s privileged position in standing for judicial review of administrative action.
Public law is replete with loose edges and inexact rules. We tend to associate most of that uncertainty with concepts and doctrines. Some of the cornerstones of public law remain elusive, such as the nature of judicial power, which is central to the allocation of power under the Australian Constitution. The High Court has acknowledged that the judicial power it exercises cannot be defined in a comprehensive manner. The same is true of jurisdictional error, which has assumed a central role in modern Australian administrative law but may never be precisely defined. There are also numerous loose edges around many of the offices vital to our public law framework. George Winterton noted that the key tenets of responsible government may be clear, but ‘the edges are fuzzy and ill-defined’. The place and role of cabinet in our governance is an example. Cabinet is arguably now the single most important political institution in Australia, whether at the federal, state or territory level of government. Cabinet is the apex predator of our polity. It is cabinet that determines government business of the day, such as what legislation will be tabled before parliament. Cabinet is also the arbiter, or at least the decisive forum for approval, of key decisions in government in a range of decisions, such as judicial and other public appointments, or decisions about Australia’s entry into international treaties. Legislative and other processes may underpin those decisions, but they will only be triggered after the imprimatur of cabinet is given. Yet, the Australian Constitution makes no mention of cabinet. That constitutional omission has not obscured our understanding of cabinet because the basic rules governing cabinet conduct are widely known. Cabinet is not unlike a rough street gang. It demands solidarity and complete confidence, settles agreements in-house and ruthlessly casts out any member who breaks those rules.
This paper examines an office that sits within cabinet and is subject to expectations that may conflict with those governing cabinet. That office is the Attorney-General. The Attorney-General exerts a singular authority in our legal system and has long been described as the nation’s first law officer. The same description is also given to the Attorneys-General of the states and territories. As with cabinet, the Attorney-General is an institution we have inherited from English political practice, placed at the centre of many aspects of government, but one which we have done little to define. Australian political practice has introduced one important distinction, which is that the Attorney-General is a member of cabinet. The political loyalty that follows from cabinet membership affects the Attorney-General but precisely how remains unclear. Many aspects of the role of the Attorney-General have been defined, and arguably changed, by those people who occupy it. This paper draws from two federal Attorneys-General of modern times, whose conception of their role has served to change it and also provoked considerable academic discussion. The paper uses those selected examples to consider the potential consequences for the role of the Attorney-General as the defender of the judiciary and the officer deemed to be able to represent the public interest in judicial review. The paper argues that the first role has changed and that the second role should. The paper also argues that, if the politicians who occupy the office of Attorney-General may change aspects of that role, it is equally legitimate for the courts to adjust those aspects of the office which are based in the common law. But it is useful to first sketch the role of the Attorney-General and some of the unique powers and privileges of that office.
