The Changing Role of the Attorney-General

Abstract

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.

I Introduction

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.¹ The same is true of jurisdictional error, which has assumed a central role in modern Australian administrative law but may never be precisely defined.² 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’.³ 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.⁴ 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.⁵ 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.⁶ 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.⁷ 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.⁸ 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.

II The Role and Powers of the Attorney-General

The office of Attorney-General is an ancient one which assumed the broad form we now recognise in the 17^th century.⁹ While the office was long seen as that of a leading lawyer, Attorneys-General in Australia now typically supervise a large department and hold other ministerial portfolios unrelated to the law.¹⁰ The number and variety of these ministerial functions means that Attorneys do not have the time to assume the historical function of a senior lawyer for the government, who might regularly appear on behalf of the government, or provide detailed advice on complex legal issues. Accordingly, it is a fiction to suggest that an Attorney can or should be distinguished from other ministers as a practising lawyer.¹¹

The federal Attorney-General instead exercises a great range of powers associated with the administration of the legal system, many of which affect the conduct of legal affairs across government.¹² An example is the power to issue Legal Services Directions under s55ZF of the Judiciary Act 1903 (Cth). Those directions establish binding standards for the conduct of legal work by and on behalf of the Commonwealth, including model litigant rules governing those involved in that legal work.¹³ Other powers and functions granted to the Attorney have a narrower scope but are vital to the legal system, such as approving requests for the extradition of people to and from Australia,¹⁴ or the issue of certificates to certify that the disclosure of material to courts or other official processes would be contrary to the public interest.¹⁵

David Bennett noted that the functions of the federal Attorney-General extend beyond these individual ones contained in different statutes. One such function is to decide the position to be taken by the Commonwealth on legal questions that arise during litigation.¹⁶ Bennett also noted that the federal Attorney takes a leading role in developing many aspects of legal policy, such as what issues are identified for law reform inquiries. Bennett observed that the subjects of law reform inquiries could vary from the ‘politically charged…to the more technical’, but all required the imprimatur of the Attorney-General before they could proceed.¹⁷ A notable recent example is the announcement by the current federal government of its commitment to establishing a federal judicial commission. The government’s decision to support that reform was surely influenced by the longstanding support of the current Attorney for a judicial complaints commission.¹⁸

The Attorney also assumes a special role in judicial appointments. While those appointments require cabinet approval, it is widely acknowledged that the Attorney leads and exerts considerable influence over all aspects of the selection process.¹⁹ The singular influence of the current federal Attorney has been evident through his clear role in leading and shaping public discussion about reforms to processes for judicial, tribunal and other appointments to key positions in the legal system.²⁰ Those statements make clear that the Attorney-General is the driving force for influential legal appointments outside the courts, such as the role of President and individual Commissioners of the Australian Human Rights Commission, the President and individual Commissioners in the Australian Law Reform Commission and the Australian Information Commissioner.

The Attorney also has an important role in dealing with the Solicitor-General, who serves as lead counsel for the government in important litigation and also as the government’s top legal advisor. The Solicitor-General is formally designated at the ‘second’ law officer of the Commonwealth,²¹ which impliedly reinforces the role of the Attorney as the first law officer but leaves much about the relationship between the two offices unclear. The political dimension of this relationship became apparent in an episode that led to the resignation of Justin Gleeson SC as Solicitor-General. That incident arose after the Attorney-General Brandis amended the Legal Services Directions, to include rules that essentially made him the gatekeeper for advice from the Solicitor-General by providing that the Solicitor could only receive or respond to requests for advice if approved by the Attorney.²² The Directions were withdrawn hours before they faced certain disallowance by the Senate²³ but still attracted considerable media and political attention over the Attorney’s claims that he had discharged the legal requirement to consult the Solicitor before issuing the direction.²⁴ The conduct of the Attorney was fiercely criticised,²⁵ but the Solicitor resigned when it became clear that his professional relationship with the Attorney was broken beyond repair.²⁶

On one view, the proposed Directions introduced procedures that built upon legislation that makes clear that the Solicitor-General acts at the instruction of the Attorney.²⁷ The formalised statement to this effect in the proposed Directions was widely perceived as hampering the independence of the Solicitor-General to provide advice in circumstances where the involvement of the Attorney might not be appropriate.²⁸ Appleby rightly noted that the divergent views this incident revealed about the legislation governing the Solicitor-General represents ‘a deeper, simmering dispute over the appropriate level of control exercised by the Attorney-General over the Solicitor-General’.²⁹ But the circumstances surrounding the resignation of Justin Gleeson also suggest that the relationship between the Attorney and Solicitor-General includes a hierarchical element which, in times of dispute or crisis, places the former over the latter.³⁰

The Attorney-General also performs important functions in relation to criminal prosecutions. The historical responsibility of the Attorney for the institution and discontinuance of criminal proceedings has always attracted considerable controversy when prosecutions somehow affected the political fortunes of the government of the day. Lord Shawcross made an influential statement on why this function must be exercised independently and free from political influence,³¹ but the transfer of the prosecutorial functions, including the discretion to prosecute, to an independent Director of Public Prosecutions has largely consigned what became known as the Shawcross rules to history.³² The Attorney may issue directions or guidelines to the DPP, but the current policy governing prosecutions explains that directions ‘occur very rarely and have not been provided in relation to a particular case’.³³ There are, however, occasions where the federal Attorney has issued directions, such as how a class or category of cases should be approached.³⁴ The functions that remain vested in the Attorney are typically ones involving sensitive matters of national security or public interest, such as authorising special security operations conducted under intelligence operations,³⁵ the prosecution of people who have disclosed the identity of an employee of ASIO³⁶ or prosecutions for any breach of the legal protections governing sensitive military sites.³⁷ The Attorney also retains responsibility for the prerogative of mercy, that can operate to grant pardons to those convicted of criminal offences, or to reduce or extinguish sentences for criminal offences.³⁸

The Attorney may also retain a little known and highly discretionary power that extends beyond criminal prosecutions to the enforcement of the law more generally. In Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd,³⁹ McHugh J reasoned that there could be good reasons why a law should not be enforced. Some might become outdated, supported now only by ‘a vocal and powerful minority’.⁴⁰ The enforcement of these and other laws might, in rare cases, undermine governments, courts and society itself.⁴¹ McHugh J thought that in these extreme cases, any decision upon ‘when and in what circumstances to enforce public law frequently calls for a fine judgment as to what the public interest truly requires’ which ‘is arguably best made by the Attorney-General who must answer to the people’.⁴² His Honour adhered to that position in McBain,⁴³ with the apparent agreement of Gleeson CJ who accepted that:

…there may be limits, including limits dictated by political considerations, upon the lengths to which law enforcement authorities are prepared to go to enforce legislation in the courts.⁴⁴

The lack of any reference to the Attorney-General in this passage is striking. The acknowledgement by Gleeson CJ that political factors may influence the extent ‘authorities’ are willing to enforce legislation inevitably points to cabinet.⁴⁵ If so, a decision to not enforce the law is not one for the Attorney-General but cabinet, which is surely right for such a contentious decision.⁴⁶

The Attorney-General also occupies a singular position in applications for judicial review of administrative action. The Attorney is ‘deemed to be able to speak on behalf of the wider public’.⁴⁷ The Attorney can also provide that automatic standing to another party, by the grant of a fiat. These privileges presume a level of political neutrality of the Attorney which is demonstrably at odds with the reality of modern politics. While the courts have acknowledged the increasingly political role occupied by Attorneys-General,⁴⁸ they have not explained what those changes might mean. It is useful to outline the increasingly political role of Attorney before the issues of standing and the fiat can be examined.

III Politics and the Attorney-General

The Australian version of the Attorney-General now differs in many ways from its British origins. The most important distinction is the political status of the Attorney-General in each jurisdiction. The English Attorney has only recently become a standing member of cabinet and had previously only attended cabinet meetings by invitation, typically when there is an issue that the Attorney has been involved with or can speak on with particular authority.⁴⁹ The UK version of the office has changed considerably, especially since enactment of the Constitutional Reform Act 2005 (UK), which confirmed that many functions traditionally associated with the Attorney-General in Australia were the province of the Lord Chancellor.⁵⁰ A recent UK parliamentary review of the functions of the Attorney-General and Lord Chancellor made clear that many functions of those two offices often overlap,⁵¹ which greatly limits the relevance of current UK practice.⁵² Subject to that caveat, since the middle of the 19^th century, the Australian adaptation of the office has taken a different path and conceived the Attorney as more a politician than expert or leading lawyer.⁵³ Australian Attorneys-General have long been members of cabinet, which is widely agreed to give the office a ‘somewhat hybrid character’ that may often place an occupant ‘in a situation of conflict between the demands of…political offices and the demands of the office of Attorney-General as Chief Law Officer’.⁵⁴

The different political position of the English Attorney arguably appears greater from an outside perspective. Australian commentators have emphasised the relative political neutrality of the English Attorney, as being ‘in effect, divorced from the political process or…at least more divorced than his Australian counterpart’.⁵⁵ English commentators, by contrast, argue that the formalities of politics and cabinet attendance cannot obscure the proximity of the Attorney to the government of the day and its agenda.⁵⁶ The overlapping political and legal functions of the Attorney have long been said to create the potential for conflicts of interest, most notably in matters of political importance to the government of the day.⁵⁷ The possibility for political influence upon the Attorney came into acute focus by reason of the questionable advice provided by the Attorney about the legality of any British involvement in the invasion of Iraq,⁵⁸ but there were other instances around this time that created a perception that the Attorney had invoked the public interest to take actions that clearly advanced the interests of his government. Such examples have led many UK commentators to conclude that the ‘inherent tension’ between the Attorney’s dual political and legal functions is now real rather than simply perceived and ‘inevitably lends itself to charges of political bias in legal decisions’.⁵⁹

That tension is more immediately obvious in Australia because our Attorneys-General are members of cabinet. The unyielding demands of cabinet solidarity and political party discipline may not sit easily with the duties and powers related to the courts and legal system that are held by an Attorney-General. This mingling of law and politics is neither surprising nor necessarily at odds with constitutional principles.⁶⁰ It is also important to note that the Attorney-General is by no means the only minister whose statutory functions can overlap with political ones. In Minister for Immigration and Multicultural Affairs v Jia (‘Jia’),⁶¹ for example, the High Court accepted that ministers could and should engage in public discussion about their statutory powers. That political realism led the court to hold that very strident statements the minister (who later became Attorney-General) made about a power to cancel visas in a radio interview for people convicted of criminal offences did not create an apprehension of bias.⁶² While that finding was attributed to the context-dependent nature of the bias rule,⁶³ the High Court also implicitly accepted that the minister understood and could manage possible tension between his political and legal functions.

The extent to which that reasoning can apply to the Attorney-General is often doubted by lawyers, who perceive the functions and duties of the Attorney as exceptional. McColl advocated that approach when she argued it was ‘inevitable’ that Attorneys-General would have to act ‘independently’ of their political colleagues because:

…even though he wears two hats, no one expects him to sacrifice his duty of independence in favour of party political interests. That would be inconsistent with his duty as a lawyer and…his colleagues’, as well as the community’s, expectations.⁶⁴

That suggestion diverges significantly from Jia, where the High Court carefully avoided any prescriptive or rigid rules governing cases where ministerial and political roles could come into tension. Most political observers would surely find McColl’s claim to the Attorney’s political independence puzzling. Politicians sacrifice much of their independence when they join a political party, even more when they join cabinet. Most members of the Australian public would know enough of our cabinet style of government to accept that reality, even if begrudgingly. McColl was arguably the one out of step. At the time of writing, she was a senior barrister and was appointed to the New South Wales Court of Appeal shortly after. A member of the independent bar whose formidable career clearly foreshadowed judicial office was perhaps ill equipped to understand the singular strictures of political rather than judicial office.

Tickner v Bropho ⁶⁵ provided rare insight into the stifling nature of cabinet oversight. The case involved the extension of a protection order over land of cultural significance to local indigenous people and had generated enormous controversy.⁶⁶ One of the many people to lobby the minister was an independent politician, who asked why the Minister had not simply granted an order when there was a clear basis to do so. When the Minister explained that he could not exercise his powers without Cabinet approval, the incredulous politician reminded the Minister that the statute vested the power to act in him and him alone. The minister replied: ‘You get 100% for law and zero for politics’.⁶⁷

There is no reason to suppose that discretionary powers vested in an Attorney-General are no less subject to cabinet oversight, which is always unyielding when an issue causes political or public controversy. That possibility is consistent with the significant recent study of cabinet governance by Weller, Grube and Rhodes, who noted that very often a strong leader of government, sometimes aided by a small troika of favoured ministers, could rule in a form of ‘court government’.⁶⁸ Those authors did not suggest either that the functions of the Attorney-General inevitably made that officer a member of any inner political sanctum or immune to dictation by such a body. Put another way, the Attorney-General is just as likely to be politically steamrolled as any other minister. This dominance of cabinet may not be a bad thing. Len King who had served as both Chief Justice and Attorney-General of South Australia reflected upon an instance where he granted a fiat in a public law case, conceding that he did so without consulting cabinet because he feared his colleagues would inevitably have disagreed and overruled him. King noted that ‘accepted principle’ deemed the decision as one for the Attorney alone, but he later confessed to ‘serious doubts’ about taking such a decision against the likely views of cabinet.⁶⁹ King thought that his unilateral approach effectively removed any real accountability, so it was preferable that:

…as a matter of democratic principle, Cabinet should be entitled to control the exercise of the discretion on public interest grounds and should therefore be accountable to Parliament and the people for the decision.⁷⁰

This appeal to parliamentary accountability could be criticised as replacing the illusion of an independent Attorney-General with the equally illusory but more unlikely one of an accountable executive government.⁷¹ Lawyers might be uncomfortable if an Attorney openly surrenders the practical exercise of significant powers to the collective judgment of cabinet, but a judgment is nonetheless made. This melding of law and politics might provide a coherent legal and political path to better understanding the function of the Attorney-General. Justice Gordon appeared sympathetic to that possibility in a speech where her Honour noted that the English Attorney-General had described her function as ‘[m]aking law and politics work together…’.⁷² Justice Gordon thought that approach was ‘equally applicable and important’ to Australia’s system of responsible and representative government where ‘[p]olitics and law are considered part of the same enterprise of governing in our systems’.⁷³ It is one thing to say law and politics should or must work together, but quite another to explain how it might be done. Justice Selway hinted at one solution when he explained that the many specific functions conferred upon an Attorney did not convey the full import of his or her influence within cabinet and government more generally. Selway thought an important duty of the Attorney was ‘to “remind” other aspects of the Executive of the core values or ethics of government’.⁷⁴ The extent to which an Attorney can, or even wishes to, adopt that function of soft diplomacy or soft power within cabinet and government will be heavily influenced by whether Attorneys perceive themselves primarily as a politician.

IV Standing in a Unique Position

The privileged position of the Attorney in relation to standing in judicial review claims that was noted above contains many discrete elements. That privileged position is intended to enable protection of the public interest, yet pursuit of that function can require Attorneys to challenge the decision of a cabinet colleague. Sir Anthony Mason has conceded that the obvious conflict of interest in such circumstances admits only one answer because an Attorney ‘cannot be expected to act impartially in deciding whether proceedings should be brought against the government’.⁷⁵ Similar problems attach to Attorney’s power to grant a fiat to another party to commence judicial review proceedings.⁷⁶ The fiat essentially extends the Attorney’s right of standing in public law proceedings to another party, who will conduct the claim and be responsible for its costs,⁷⁷ though the Attorney ultimately retains complete charge of the litigation at all times.⁷⁸ The grant of a fiat is a discretionary decision that is not justiciable,⁷⁹ or subject to other significant legal constraints.⁸⁰

Bateman’s Bay made clear that Australian political practices affecting the Attorney were relevant to privileges the Attorney held at common law. The High Court rejected the English position which held that only the Attorney-General could assert public rights.⁸¹ Gaudron, Gummow and Kirby JJ identified ‘particular difficulties’ in transposing that principle to Australian law.⁸² One was that it left no room for the special interest test that enabled individuals and groups to claim standing.⁸³ The more significant problem of this rule was its faith in the Attorney-General as an apolitical defender of the public interest. Gaudron, Gummow and Kirby JJ explained:

In Australia, both at federal and State levels, the Attorney-General is a minister in charge of a department administering numerous statutes, is likely to be a member of Cabinet and, at least at State level, may not be a lawyer. At the present day, it may be ‘somewhat visionary’ for citizens in this country to suppose that they may rely upon the grant of the Attorney-General's fiat for protection against ultra vires action of statutory bodies for the administration of which a ministerial colleague is responsible.⁸⁴

While the denial of the fiat in Bateman’s Bay received surprisingly little attention,⁸⁵ the fiat was central in the later case of McBain. The federal Attorney-General granted a fiat in that case to the Conference of Catholic Bishops, to challenge a Federal Court decision that essentially enabled single and gay women in Victoria to access IVF services.⁸⁶ The Attorney later sought to intervene in the High Court proceedings commenced by the Bishops and make submissions which, in some aspects, were at odds with those of his relator acting under the fiat. A majority of the High Court dismissed the claim as lacking the constitutional requirement of a ‘matter’,⁸⁷ but the Attorney’s decision to intervene and make arguments partly at odds with the party acting under his fiat was fiercely criticised.

Christopher Maxwell, who later became President of the Victorian Court of Appeal, argued that the grant of this fiat ‘was unmistakably a political decision’ because the Attorney clearly wished to facilitate a challenge to a decision that many in his government disliked.⁸⁸ Maxwell thought the grant of a fiat was also further evidence that the Attorney had ‘once again undermined, rather than supported, the authority of a federal judge’ when he should have been ‘defending the integrity of the federal judicial system’.⁸⁹ The contentious attitude that Daryl Williams QC took as Attorney General in relation to criticisms of the courts and their decisions is examined in the next section of this article. For the moment, it is sufficient to note that the suggestion that Williams’ grant of a fiat was yet another instance of him supposedly attacking the courts was not an isolated claim. Gageler and Gleeson JJ made no mention of that historical context when their Honours conceded that:

…it would defy our experience of government to expect an Attorney-General to act as an apolitical ‘guardian of the public interest’ in all cases of granting to, or withholding from, some other person a ‘fiat’…⁹⁰

Although fiats are rarely sought, and even more rarely granted, the principles surrounding them shed light on the role of the Attorney, as well as the wider principles governing standing in public law.⁹¹ The repeated acceptance by the High Court that decisions by an Attorney about the grant of fiats are more likely to be influenced by political considerations rather than questions of public interest provides a compelling basis for change to the common law. That could take the form of accepting that decisions to grant or refuse a fiat should be justiciable. Another more radical option would be to abolish the Attorney’s power to grant fiats in public law cases. After all, if the Attorney cannot be expected to act as the guardian of the public interest, the conceptual foundation upon which the discretionary power of the Attorney rests is questionable. Bateman’s Bay acknowledged that the presumptions attending the position of the British Attorney-General could not be transposed without adaptation to Australian legal and political practice but said little about what changes might be made. The ones just suggested are logical.

Edelman J grappled with related issues in Unions NSW v New South Wales when he conceded that the ‘increasingly political nature’ of the Attorney’s role was one reason that standing rules had relaxed in Australia.⁹² His Honour reasoned that the ‘doubly elastic’ concept of the special interest test in standing had gone some way to facilitate standing by those who might otherwise struggle but thought that some form of standing requirement should remain.⁹³ The obvious solution would be for an even more relaxed approach to standing, so that the special interest test provided no real obstacle to people and groups with a legitimate interest in commencing a public law claim.⁹⁴

The standing cases have not considered the apparent limits that the courts have imposed on attempts by Attorneys to intervene in cases about questions of statutory interpretation. Attorneys-General have many rights to intervene in proceedings by reason of the subject matter of the case, such as ones arising under the Constitution or involving its interpretation,⁹⁵ or claims commenced under the Commonwealth’s judicial review statute.⁹⁶ Outside of these clear rights of intervention, the limited nature of an Attorney-General to intervene in proceedings was recognised almost 50 years ago by the New South Wales Court of Appeal in Corporate Affairs Commission v Bradley (‘Bradley’).⁹⁷ That case concerned the registration of a business name of the ‘Rhodesia Information Centre’ in a time when the independence of Rhodesia from Britain was contested. The federal Attorney-General sought to intervene on behalf of the Commonwealth, essentially to argue that British rule over Rhodesia remained in force and that independent political authority claimed by Rhodesia was not recognised in Australia. Hutley JA distinguished the case from those involving the prerogative or statutory powers of the Crown in relation to foreign powers, where an Attorney-General could appear as of right, but also reasoned that the practices that evolved in constitutional litigation were equally unhelpful in cases that involved no ‘legislative trespass’ upon the citizens of a state or federal government.⁹⁸ Hutley JA held that recognition of a right of Attorneys-General to intervene in cases containing only issues of public policy, rather than constitutional questions, would be ‘subversive of the independence of the judiciary’.⁹⁹ His Honour noted that enabling an Attorney-General to intervene in such cases would inevitably invite further interventions ‘at the behest of a different executive with a different public policy’.¹⁰⁰ The court was not only concerned that its processes might become a vessel to implement the political imperatives of the executive but also that those imperatives might change between and within governments.

The likely political motives of executive intervention also weighed on the Victorian Court of Appeal in Priest v West.¹⁰¹ That case raised questions on whether the coroner could compel a notorious prisoner to give evidence at a coronial inquiry, to examine one of many deaths he was suspected to be involved in. The Victorian Attorney-General sought leave to intervene and make submissions about the interpretation of the Coroners Act 2008 (Vic), arguing that his ‘particularly informed perspective’ on the Coroner’s Court meant he was ‘uniquely positioned’ to assist the court in its interpretation of the Act.¹⁰² The Court of Appeal found there was no need for an amicus curiae to appear because the claim had a proper contradictor and the extrinsic materials the Attorney intended to base his submissions were publicly available, which could be marshalled by the parties if they wished.¹⁰³

The Court of Appeal also addressed the wider principle that underpinned the Attorney’s application, which it thought ‘was, essentially, a claim of specialist expertise’ based upon his role of minister responsible for the administration of the statue.¹⁰⁴ The court held that the work of ministers did not give to any such expertise, even when a statute designated particular functions to a minister. The Court of Appeal noted that any ministerial claim to some sort of legislative expertise ‘would be of almost unlimited application’.¹⁰⁵ The court reasoned that judicial recognition of the expertise or special interest of ministers in the interpretation of a statute could ‘divert’ courts from their interpretive function.¹⁰⁶ The Court of Appeal cautioned:

…the submission which any intervening minister might make about how an Act should be interpreted might well be thought to be – and might in fact be – influenced by the policy position of the government of the day, which has no place in the interpretive task which an independent judiciary must perform.¹⁰⁷

The concerns expressed in Bradley and Priest v West about the influence that the political imperatives of the executive might bring to the courts are not convincing. Many public law cases contain issues of government policy or the politics of the day, but the courts issue regular reminders that such issues are distinct from, and do not influence, their constitutional function.¹⁰⁸ If that is true, the danger that courts might be diverted by submissions that might include some recourse to political considerations by an intervening minister is a remote one. Limiting intervention by Attorneys-General would also not affect the other ways the executive can affect the determination of questions of policy or politically charged issues by the courts, such as by deciding whether to oppose or concede a questionable claim of standing by a public interest body,¹⁰⁹ or whether to appeal an unfavourable decision that appears doctrinally weak. Such decisions are surely influenced by the political goals of the executive government of the day, even if those goals are rarely expressed publicly.¹¹⁰ If the executive is normally reluctant to express its political motives in the conduct of public law proceedings, Bradley and Priest v West could be understood as illustrating an equal reluctance on the part of the courts to sanction a procedural means for the executive to pursue those rare cases where it is not shy about such motives. Bradley and Priest v West arguably also confirm the reluctance of the courts to confirm new privileges at common law for the Attorney-General.

An examination of the political aspects or influences of the role of the Attorney-General requires a cautionary note. Legal scholars may be sceptical about the legitimacy of political influences, but open discussion of them in this context may help a better understanding of the legitimacy of the actions and motives of Attorneys.¹¹¹ Judges regularly acknowledge that connection in their acceptance that judicial legitimacy depends in large part upon public confidence in the courts.¹¹² Decision-making processes outside the courts can involve different considerations, some of which are in tension. A relevant one for this article is that ‘officials sometimes have to consider their legitimacy in relation to more than one audience’ who each ‘might have significantly different priorities’.¹¹³ The priorities and expectations that fellow politicians and lawyers and judges may hold of an Attorney would surely be different, perhaps radically so, but a better understanding of these expectations can lead to a greater understanding of the official who must balance them.¹¹⁴

V The Political Attorney-General as ‘Non-Defender’ of the Judiciary

Daryl Williams AC KC was Commonwealth Attorney-General from 1996 to 2003 and was arguably responsible for a significant change to the role, though he argued this had occurred much earlier. Williams might be fairly described as a realist on many issues affecting the legal system. Sir Anthony Mason noted that Williams had ‘categorically refuted’ the ‘archaic notion that judges do not make law’ when speaking at the swearing in of Justice Hayne as a member of the High Court of Australia.¹¹⁵ Mason’s apparent approval of those remarks might have reflected an undercurrent of relief, that someone in government had finally acknowledged what judges and academics had been saying for decades.¹¹⁶ But Mason was highly critical of Williams’ ‘refusal’ to defend the High Court from political attacks, which he described as ‘another disturbing example of the degradation of the apolitical role of the Attorney-General’.¹¹⁷ Williams had clearly refused to provide any real defence of the various attacks, which included a notorious one upon one member of the High Court,¹¹⁸ and some landmark decisions around this time such as Wik Peoples v Queensland.¹¹⁹ What Mason considered disturbing could arguably be characterised as another example of Williams’ realism, which was to recognise that a convention Mason mourned had in fact passed long ago.

That convention was that the Attorney-General was the appropriate officer to respond to any public or political critics of courts and judges. This convention operated in tandem with a complimentary one that judges should not speak on a range of matters, such as controversial issues or to defend their decisions.¹²⁰ This convention was strongly doubted, and arguably transformed, by Williams during the 1990s. While he was Shadow Attorney-General, Williams argued that any practice which obliged the Attorney to defend the judiciary was a loose practice at best and certainly not one that commanded the universal acceptance one might expect of a convention.¹²¹ Williams also drew support from the separation of powers, arguing that the need for courts to remain independent of government and be ‘perceived to be so’ did not sit easily with a presumption that the Attorney-General was required to defend them.¹²² The somewhat counterintuitive implication was that the institutional integrity of courts could be undermined if the Attorney sought to counter attacks which might question that very integrity. A discrete aspect of this claim saw Williams reject arguments that the Attorney-General was required to exercise some functions independently of the executive government. Williams thought that view, that many might also have characterised as a convention, was ‘erroneous or at least eroded’.¹²³

Williams was mindful of the political status of Attorneys-General, which made them ‘answerable to their party colleagues, Parliament and the electorate’ and meant Attorneys ‘are not, and cannot be, independent of political imperatives’.¹²⁴ Williams’ ultimate focus was not upon the status of Attorneys-General as elected members of parliament but rather the political demands that flowed from their membership of cabinet. Cabinet is a collective body whose operation depends on the political fealty of its members.¹²⁵ That loyalty would often conflict with a convention that required Attorneys to defend judges and courts, particularly in response to criticisms made by a cabinet or party colleague. Williams may have been mindful that the political character of Attorneys-General dictates that, in any media criticisms made of courts and judges, they may be inclined to be more loyal to the media. Australian politicians do not simply focus heavily on media coverage; they rely upon, foster and manipulate it.¹²⁶ One senior judge recently lamented that Australia politicians ‘seem beholden’ to media organisations.¹²⁷

The various difficulties politicians face in making a timely and informed response to media criticisms of courts may distract attention from the political benefit an Attorney-General can gain from allowing criticisms of courts and judges to remain unanswered by any senior government official. When those criticisms somehow foster the political strategies of a government, the absence of any official correction essentially allows one side of a debate to be aired without real challenge. In such cases, the silence of an Attorney-General may be a calculated part of a wider political strategy.¹²⁸

While some commentators flatly rejected Williams’ arguments,¹²⁹ many acknowledged the declining force of any convention that Attorneys-General must defend courts and judges.¹³⁰ A measured assessment made during this time by the retired Chief Justice of South Australia recognised the evolving role of the Attorney-General but argued that the unique stature of Attorneys to speak on questions governing the courts meant their role in defending courts and judges against attacks was ‘as important as it ever was’.¹³¹ King explained that ‘an aspect’ of this function was ‘to defend the integrity of the system of justice against attacks which threaten public confidence in it, even if necessary, against political colleagues’.¹³² This argument suggests that the singular position of an Attorney-General requires its occupant to sometimes place the needs of the legal system before political imperatives but fails to confront a central element of Williams’ argument — the position of Attorney-General may be singular in the legal system, but it is not in politics. King’s suggestion that Attorneys can take issue with and, where necessary, publicly rebuke their colleagues is an elegant invitation to unemployment.

King argued that the differences between Williams and his critics was ultimately ‘one of emphasis rather than principle’ because even Williams accepted that an Attorney should speak in defence of the courts and judges when public criticism of them was extreme or somehow especially damaging.¹³³ That assessment has a superficial attraction but does not take account of the transformative nature of Williams’ arguments. Williams was no mere commentator. For many years, he held a central role in the maintenance of the convention yet rejected its very existence. Political and legal conventions arise from, and are continued by, practice.¹³⁴ The statement and conduct of Williams profoundly changed conventions governing the duty of the Attorney-General to make a public defence of courts and judges. This change may apply outside the public view. If Williams thought it was not his function to defend the courts, judges and their decisions against much of the criticism they received, the extent to which he was willing to undertake the ‘soft diplomacy’ role advocated by Selway and others would surely also be very limited.

VII The Political Attorney-General as Selective Critic of Litigants and Their Cases

The next federal Attorney to be considered is George Brandis QC, who was federal Attorney-General from 2013 to 2017. Brandis AG did not ever doubt or seek to reverse Williams’ claim that the Attorney should no longer be seen as the main defender of the judiciary and the courts¹³⁵ but arguably extended that practice by regularly attacking those who launched legal action against government decisions. Brandis moved from the silence of Williams to joining the fray and questioning, sometimes apparently attacking, people who took his own government to court. This occurred with his adoption of the rhetoric of ‘lawfare’ to describe the opponents of some of his government’s policies.

The notion of lawfare was first used to describe the various legal tactics used against American forces in Iraq and Afghanistan, when prisoners or war or civilians injured in battle sought redress in the courts. The use of well-settled principles, such as an application for habeas corpus for release from allegedly unlawful detention, was described as ‘a method of warfare where law is used as a means of realizing a military objective’.¹³⁶ The concept quickly gained traction with military and government officials, who claimed that legitimate military operations, and the armed forces more generally, were being hampered by lawfare.¹³⁷ The essential claim of lawfare is that ‘enemy forces’ are using the legal system for improper purposes. Although the concept contained many obvious contradictions,¹³⁸ it has gained traction in official circles. The relevant aspect of lawfare for present purposes is that its early usage implied that the legal system was being used by the wrong people for the wrong reasons.¹³⁹ It was hardly surprising that a concept which arose in times of war and invasion used highly pejorative language against those claimed to be abusing the legal system, but the extension of the rhetoric of lawfare into domestic Australian politics signalled a worrying turn in Australian law.

A notable turning point in the use of the overheated language of lawfare occurred during the tumultuous government of Queensland Premier Campbell Newman. The Attorney-General in that government introduced many apparently draconian laws affecting criminal justice.¹⁴⁰ That same Attorney complained that lawyers who acted for some suspects were ‘part of the criminal gang machine’.¹⁴¹ This was the rhetoric of lawfare in everything but name. Not long after, federal politicians from Queensland began to use similar rhetoric. One minister complained that lawyers who acted pro bono for asylum applicants were ‘un-Australian’ in the pursuit of their ‘social justice agenda’.¹⁴² Brandis AG later delivered a speech that affirmed the important role of lawyers in ‘defending the vulnerable, the marginalised or the despised’,¹⁴³ though he neither named nor directly criticised his ministerial colleague. If that was taken as an illustration of the soft diplomacy that Selway and others thought an Attorney should conduct with cabinet colleagues, it was soft to the point of limp.

The sentiments of that speech did not sit easily with one Brandis AG gave a few months earlier, where he assailed those who used the legal process to the frustration of the policies of his government.¹⁴⁴ That analysis was littered with contradictions and weaknesses. For example, Brandis criticised a careful academic study that showed public interest environmental litigation had a marginal cost because it lacked quantification, yet his own suggestion that such litigation had a ‘human cost’ lacked any detail.¹⁴⁵ Another striking flaw in Brandis’ argument was that he failed to admit he was railing against environmental laws introduced by a previous conservative government. Brandis decried the supposed use of lawfare because it ‘can bring the courts into disrepute’ and see them ‘become vehicles for an ideological agenda’ and ‘makes the courts a hapless vehicle for the extraneous ends of others – not an umpire to be approached so much as a weapon to be deployed…’.¹⁴⁶

This speech was not an isolated instance. The Attorney had previously complained about public interest litigation by ‘radical green activists’,¹⁴⁷ as had his cabinet colleagues.¹⁴⁸ Their government had attempted to amend federal environmental laws to remove standing laws that were thought to encourage public interest litigation.¹⁴⁹ Attorney-General Brandis never appeared to acknowledge his obvious conflict of interest in questioning those who sought to challenge the decisions of his ministerial colleagues. There was a much deeper contradiction in these statements of Brandis. He appeared to simultaneously assume the stature of his office enabled him to speak about the legal system with particular authority, while remaining unaware that he simply sounded like every other politician rather than the first law officer.

The sentiments of Brandis’ paper decrying lawfare have a loose parallel with a speech delivered by then British Attorney-General Suella Braverman to a conference convened by the Public Law Project. Braverman criticised recent decisions of the Supreme Court and argued the case for proposals to curtail judicial review and the legitimacy of parliament reversing individual decisions if a government thought that appropriate. Braverman acknowledged the longstanding debate about the ‘proper role’ of the courts in public law matters but argued that recent decisions of the UK Supreme Court marked a ‘radical departure from orthodox constitutional norms’ that had ‘tested our shared understanding [of those norms]…in unprecedented ways’.¹⁵⁰ The Economist thought it ‘bizarre’ that a law officer ‘normally expected to defend the judiciary’¹⁵¹ instead ‘has joined the attack’.¹⁵² One leading commentator argued that it was difficult to accept the Attorney could ‘act independently in the public interest while remaining the government’s chief legal adviser’ while she was so intent on ‘trumpeting a political message’.¹⁵³ But other commentators suggested that these criticisms were ‘overblown’ because British Attorneys-General have ‘never been considered an apolitical actor in the richer sense’.¹⁵⁴ Conor and Larkin explained:

Attorneys General must, of course, avoid political partisanship in their public interest determinations, and the kind of public remarks that would bring the judiciary and the Rule of Law into contempt. But these are entirely distinct from advancing a good-faith constitutional rationale for policy reform mooted by the Government…¹⁵⁵

To recognise the Attorney-General is primarily a politician affects both whether it is thought acceptable for that officer to criticise the courts and their decisions, as well as the extent to which that is acceptable. But acceptance that the Attorney is primarily a politician impliedly accepts that, to some uncertain extent, the office retains a special status within and obligations towards the courts, judges and the legal profession. Even if that function of an Attorney is now a secondary one, it seems clear that both Braverman and Brandis failed in the events just discussed. Braverman’s claims were made against a background of years of intemperate and inaccurate criticisms of courts and their decisions. One recent parliamentary study suggested that relentless criticism of UK courts, which was accompanied by a range of more subtle attacks such as private briefings to the media and regular threats to remove or limit judicial discretion, had clearly affected public perceptions of the courts. Court suggested that sustained criticism of higher courts by British politicians over the last 25 years has clearly affected the willingness of the Supreme Court to rule in favour of the executive government.¹⁵⁶ If Braverman’s remarks are seen as one more part of that continued attack, they are less able to be characterised as good faith arguments about policy reform. Braverman did not simply continue the earlier attacks of her colleagues; she also abdicated the function of soft power that Selway identified as so valuable. The same is true of Brandis, though the context of his comments were arguably more concerning.

At first glance, Brandis’ concern about environmental litigation was unsurprising. His government had tried and failed to amend the legislation he claimed was fuelling ‘green lawfare’.¹⁵⁷ Brandis could hardly claim the cloak of a good faith advocacy of policy reform given above to Braverman because Brandis had already failed on that front. He was instead criticising people who used a law that his government could neither reform nor repeal. Those suggestions can be criticised on two counts. Firstly, the right of access to the courts is precious.¹⁵⁸ Whatever view one takes of the role of the Attorney-General and the extent to which occupants of the office can be motivated by political considerations, it cannot be right for an Attorney to criticise any use of the right of access to the courts because it might frustrate the policy agenda of the government of the day. Secondly, they are at odds with the suggestions of McHugh J that Attorneys could, in exceptional circumstances and after consultation with cabinet colleagues, be trusted to identify those rare occasions when it might be appropriate not to enforce a law.¹⁵⁹ McHugh J was mindful that Attorneys could draw from political experience to make judgements about their rights and responsibilities. The same political experience and imperatives limits, perhaps even extinguishes, the capacity of an Attorney-General to criticise the decisions of other people in the exercise of their own rights and responsibilities.

VIII The Attorney-General Moves from Defender of, to Defended by, the Rule of Law

Christian Porter was Commonwealth Attorney-General from 2017 until 2021, when he was moved to another ministry in a cabinet reshuffle. That reshuffle occurred largely because allegations that Mr Porter had sexually assaulted a woman several decades earlier were broadcast on the ABC Four Corners program. Mr Porter strenuously denied the allegations¹⁶⁰ and quickly launched defamation proceedings against the ABC. During the ensuing media and political frenzy, many suggested that the Prime Minister should launch an administrative inquiry to determine whether Mr Porter was a suitable person to remain Attorney-General.¹⁶¹ The Prime Minister and Mr Porter both suggested that such an inquiry was not compatible with the rule of law. The key reasons for this claim were that the any administrative inquiry had the potential to interfere with the pending defamation proceedings, as well as any investigation that New South Wales police might conduct into the claims made against Mr Porter.¹⁶²

One key reason raised by advocates for an administrative inquiry was the singular position occupied by the Attorney-General. That point was expressed in various ways, but the essential reason was that the federal Attorney-General was the nation’s first law officer and lingering questions about the suitability of any occupant of that position should be investigated.¹⁶³ The editor of the Australian Law Journal took issue with suggestions that any such inquiry might be contrary to, or somehow damage, the rule of law. Justice Francois Kunc argued that any inquiry could take account of the pending defamation proceedings, operate in accordance with the rules of fairness and ‘would not only be in accordance with the rule of law but would enhance it’.¹⁶⁴ A former Commonwealth Solicitor-General similarly suggested that his successor could advise the Prime Minister on how these delicate issues could be managed in accordance with fairness and other legal principles.¹⁶⁵

The rule of law was invoked in arguments made both for and against holding an administrative inquiry into the allegations, for the purpose of determining whether Mr Porter should remain Attorney-General.¹⁶⁶ Reliance on the rule of law for both sides of the same argument is ironic, but it also reflects the longstanding differences of opinion which have arisen about such a protean and subjective concept.¹⁶⁷ Sir Owen Dixon signalled the problem in his famous statement that ‘the rule of law forms an assumption’ upon which the Australian Constitution is based.¹⁶⁸ As with most assumptions, the detail can be filled with accounts that reflect one’s view of the function of the concept in question. This provides the concept with a malleable quality, in which different accounts of the concept can easily differ and each can be reasonable.¹⁶⁹

Two aspects of rule of law are relevant to Mr Porter’s case. One is Martin Krygier’s useful point that the rule of law is ‘too important’ to be left to the lawyers and judges.¹⁷⁰ The concept serves and belongs to wider society, so it must be supported by those outside the law.¹⁷¹ But recourse to the public, particularly public opinion as determined through polling or ad hoc methods of gauging public sentiment, as part of the rule of law is not without difficulty. The first Australian attempt to gauge empirical support for the rule of law revealed strong public support for the doctrine,¹⁷² which may be even higher than the strong support that has long been found in studies of the American public. That study also revealed that support for the rule of law was not defined by reference to the courts or judges but was instead the result of a ‘bundle of factors’. One of the associations revealed by the study was between the rule of law and confidence in public institutions.¹⁷³ That association points to a difficult question in the controversy surrounding Mr Porter. If public support for the rule of law depends, in part, on the confidence people have in public institutions, which surely includes the federal government and its cabinet, how can the rule of law be invoked as a reason not to have an inquiry into a scandal surrounding a senior minister?¹⁷⁴ The role of public opinion here is subject to the same caution Krygier has identified for lawyers. The rule of law is surely also too important to be decided by public opinion alone.¹⁷⁵ But we should also be cautious of any reliance upon supposed public perceptions about the rule of law as the reason why there should not be an inquiry that attempts to clarify an important issue that is in the public domain and remains unsettled.

The second aspect of the rule of law of relevance to the case of Mr Porter became apparent in a spirited defence of the Prime Minister’s refusal to convene some sort of inquiry. That defence came from Arthur Moses SC, whose arguments included a caution against ‘cynical and ugly attempts to paint one’s political opponents as criminals’, which Moses noted was central to former President’s Trump’s recent failed campaign for re-election.¹⁷⁶ Moses rightly noted that there was a clear distinction between the issues a Prime Minister might consider when making ministerial appointments, as opposed to those relevant to deciding whether the executive government should establish a coercive inquiry to ‘judge the individual’.¹⁷⁷

The fatal deficiency in Moses’ argument was his astonishing failure to acknowledge that the Trumpian tactics of mounting outrageous attacks against one’s enemies was a regular feature of the government that Mr Porter was part of. This is the rhetoric of lawfare, examined in the previous section. An especially troubling aspect of the lawfare rhetoric is that successive federal Attorneys-General had stubbornly refused to offer any correction when cabinet and other government colleagues trenchantly criticise those involved in environmental litigation as explained above. The problem here is not political criticism of one’s opponents, nor is it political criticism of those who commence litigation that sometimes does not succeed. The problem is the use of inflamed rhetoric against citizens who commence legal actions, many of which have a clear evidentiary basis, many of which succeed, yet those litigants are routinely branded essentially as enemies of the state. Moses simultaneously decried the use of lawfare in America yet failed to acknowledge either its rise in Australia or its frequent use by Mr Porter’s own colleagues. It is for this reason that circumstances surrounding Mr Porter provide a useful minor sequel to the more detailed study of Attorneys-General Williams and Brandis. The extent to which the special status of the office of Attorney-General could provide a coherent basis to resist calls for an inquiry into the allegations against Mr Porter by reason of him holding the Attorney’s office were significantly undermined, in my view fatally, by the arguments and actions of some of his own predecessors.

IX Concluding Observations

Scepticism should not be confused with prophecies of doom. The strong doubt expressed in this paper about the contemporary role of the Attorney-General is not intended to suggest that Australian Attorneys-General face any existential political or constitutional crisis. The office will continue at the federal, state and territory levels of government. Perhaps the issues examined in this paper simply confirm that the office of Attorney-General is evolving, as is the norm for most legal and political institutions in the common law world. This paper has traced some of that evolution, such as the refusal of many Attorneys to defend the judiciary against public criticism and suggested that they are not necessarily retrograde steps for the law and may even been positive steps for the Attorney-General. Can we really complain that Attorneys-General are increasingly happy to acknowledge more openly that their greater loyalty lies with cabinet and other political colleagues, rather than the judiciary?

Honesty is such a rare trait in politics that we should hesitate to criticise those politicians who, usually on rare occasions and in sparing amounts, exhibit genuine honesty.¹⁷⁸ But honesty always has a cost. Political honesty more so. If Attorneys-General are happy to admit they are firstly a politician, and secondly a first law officer, the assumptions upon which the traditionally special position of the Attorney-General are based necessarily weaken. How can the courts accept that the Attorney-General represents the public interest, when occupants of that office no longer maintain the fiction? These questions are all the more difficult for the courts because it is impossible to deny the judicial power that exists over the special position of the Attorney-General. The courts have created and perpetuated the Attorney’s fiat, as well as its wider associations. That common law power to create inevitably includes an equivalent power to reform or remove. The same applies to the restrictions that remain on standing for other parties, which rely in part on the assumption that the Attorney can represent the public interest. To acknowledge the power of the courts to shape these doctrines is to invite the most difficult question of all: If Attorneys-General no longer pretend to represent the public interest, why should our courts continue to pretend otherwise?