In his article in this paper on 26 June 2017, Chief Justice Chris Kourakis, referred to the role, historically, of Attorneys-General explaining how the courts work to their Government colleagues and the community and referred, with apparent lament, to Attorneys-General having abandoned that responsibility.
The office of the Attorney General in England can be tracked back to the 13th Century and, in Australia, to 1824 in New South Wales.
In England the role has developed quite differently than in Australia.
In England, the Lord Chancellor developed a quite special mix of being both head of the judiciary and head of cabinet. By the 1990s, there was increasing concern about a Government Minister sitting as a Judge and, recently, s17 of the Constitutional Reform Act 2005 has required the Lord Chancellor to take an oath which includes acting to defend the independence of the judiciary and to ensure the provision of resources for the efficient and effective support of the courts for which the Lord Chancellor is considered responsible.
In Australia, there is no such undertaking.
From its earliest days, the Attorney General was a member of cabinet of the colony. At the time it was in accordance with political standing and seniority of individuals rather than by convention. Now, the Commonwealth Attorney General is, constitutionally, a member of cabinet and the Executive Council.
Attorneys-General are expected to deal with the law but there is no legal requirement that the person possess a law degree, let alone have practised in the law. It is considered to be a portfolio no more or less significant in political terms than any other portfolio.
In South Australia, whilst the Attorney General may still be considered by some to be the first legal officer, the prosecutorial role has been transferred to the Director of Public Prosecutions and the advice to the Crown is generally the purview of the Crown Solicitor.
These days, the Attorney General should be seen as, firstly, a politician answerable to the Parliament, the electorate and the cabinet and, secondly, as someone in a position to advise the Government. The overarching priority may be political survival.
Tellingly, former Attorney General and Supreme Court Chief Justice in this State, Len King, in an article published in 2000, referred to the “artificiality of the distinction between cabinet response to consultation and direction by cabinet”.
In 2002, then Commonwealth Attorney General Daryl Williams QC, did not defend Justice Kirby of the High Court when the Justice was subjected to a deplorable personal attack, established to be false and made under parliamentary privilege by Senator Heffernan. The Chief Justice did not address whether it was time for the courts to review the special status afforded to Attorneys-General to appear and make submissions before the courts. Can the courts be satisfied that the submission received is in the interest of justice and without political influence?
This article has been published on the Law Society of South Australia by Tony Rossi.