[1] See for instance Williams, D, "Who Speaks for the Courts?" in Courts in a Representative Democracy (AIJA, Collection of Papers from a National Conference, November 1994) 183
[2] Ibid
[3] The increase in criticism of the High Court since the early 1990s has brought this issue to the forefront of public and academic debate in Australia. The political furore that followed the High Court's decision in Mabo v Queensland (No 2) (1992) 175 CLR 1 represented the beginning of intensely political attacks on the Court. However, it was the storm of controversy and criticism that followed the High Court's decision in Wik Peoples v Queensland (1997) 187 CLR 1 and the relatively recent attack made by Senator Bill Heffernan on High Court judge, Justice Michael Kirby that stirred up heated debate on the role of the Attorney-General as defender of the judiciary. Williams' refusal to defend Justice Kirby when Heffernan made serious allegations against Justice Kirby in Federal Parliament on March 12, 2002 stands out as a catalyst in this debate.
[4] See for instance, Edwards, John, The Law Officers of the Crown (London : Sweet & Maxwell, 1964); Bellott, H, "The Origin of the Attorney-General" (1909) 25 LQR 400; Holdsworth, William, Sir, A History of English Law Vol VI (London : Sweet and Maxwell, 1937)
[5] Edwards, The Law Officers of the Crown, above n 4; see also Edwards, John, The Attorney General, Politics and the Public Interest (London : Sweet & Maxwell, 1984)
[6] King, LJ, "The Attorney-General, Politics and the Judiciary" (2000) 29 UWAL Rev 155
[7] King, above n 6, 155; see also Shawcross, H, The Rt. Hon. Sir, "The Office of the Attorney General" (1954) VII:4 Parliamentary Affairs 381
[8] Cited in Edwards, The Law Officers of the Crown, above n 4, 16
[9] Shawcross, above n 7, 381
[10] Edwards, The Law Officers of the Crown, above n 4, 16
[11] Ibid
[12] Ibid
[13] Shawcross, above n 7, 381
[14] Edwards, The Law Officers of the Crown, above n 4, 27
[15] King, above n 6, 156
[16] Edwards, The Law Officers of the Crown, above n 4, 33
[17] Id, 32
[18] Holdsworth, above n 4, 462
[19] King, above n 6, 156
[20] Edwards, The Law Officers of the Crown, above n 4, 34
[21] King, above n 6, 156
[22] Edwards, The Law Officers of the Crown, above n 4, 32
[23] Holdsworth, above n 4, 464
[24] Cited in Edwards, The Law Officers of the Crown, above n 4, 37
[25] Ibid
[26] Shawcross, above n 7, 381
[27] Edwards, The Law Officers of the Crown, above n 4, 37
[28] Ibid
[29] Heraghty, B, "Defender of the Faith? The Role of the Attorney-General in Defending the High Court" (2002) 28:2 Mon LR 209
[30] Ibid
[31] Ibid
[32] King, above n 6, 156
[33] Edwards, The Law Officers of the Crown, above n 4, 141
[34] Ibid
[35] Id, 66
[36] King, above n 6, 156
[37] Edwards, The Law Officers of the Crown, above n 4, 3
[38] Edwards, The Attorney General, Politics and the Public Interest, above n 5, 367
[39] Ibid
[40] Heraghty, above n 29, 211
[41] United Kingdom. Attorney-General the Right Hon Lord Goldsmith QC, Politics, Public Interest and Prosecutions - A View by the Attorney General 13th Annual Tom Sargent Memorial Lecture (London, 20 November 2001)
[42] Heraghty, above n 29, 211
[43] Ibid
[44] King, above n 6, 157
[45] Heraghty, above n 29, 211
[46] King, above n 6, 157
[47] Heraghty, above n 29, 211
[48] The common law functions of the Attorney-General include power to initiate and terminate criminal prosecutions, power to grant immunity from prosecution, advising on the grant of pardons, issuing fiats in relator actions, instituting contempt of court proceedings, appearing as amicus curiae in matters of public interest, applying for judicial review, representing the Crown in legal proceedings and providing legal advice to Parliament, the Executive and Cabinet. The Australian Attorney-General also has a statutory power to intervene in proceedings involving interpretation of the Commonwealth Constitution pursuant to s 78A of the Judiciary Act 1903 (Cth).
[49] Law Officers Act 1964 (Cth) s 12
[50] The Commonwealth DPP was established as an independent body under the Director of Public Prosecutions Act 1983 (Cth).
[51] Heraghty, above n 29, 212
[52] Although the Attorney-General has a residual right to direct the DPP this is rarely exercised. See Australia. Attorney-General Daryl Williams, The Role of an Australian Attorney General: Antipodean Developments from British Foundations Anglo-Australasian Lawyers Society (London, 9 May 2002)
[53] Heraghty, above n 29, 213
[54] King, above n 6, 157
[55] Ibid
[56] See Woodhouse, D, "The Attorney General" (1997) 50:1 Parliamentary Affairs 97
[57] King, above n 6, 157. For an account of the Campbell case see Edwards, The Law Officers of the Crown, above n 4, Chapter 11
[58] Bennett, D, "The Roles and Functions of the Attorney-General of the Commonwealth" (2002) 23:1 Australian Bar Review 62
[59] Id, 63
[60] Cited in Bennett, above n 58, 63
[61] Ibid
[62] Edwards, The Law Officers of the Crown, above n 4, 192
[63] Bennett, above n 58, 63
[64] King, above n 6, 160
[65] Id, 157
[66] Shawcross, above n 7, 386
[67] For an account of Ellicott's resignation see Plehwe, R, "The Attorney-General and Cabinet: Some Australian Precedents" (1980) 11 Federal Law Review 12
[68] Edwards, The Law Officers of the Crown, above n 4, 223
[69] Heraghty, above n 29, 216
[70] Ibid
[71] Ibid
[72] Australia. Attorney-General Daryl Williams, Judicial Conference of Australia Colloquium 2001 Opening Ceremony (Uluru, 7 April 2001)
[73] King, above n 6, 158
[74] Ibid
[75] Edwards, The Attorney General, Politics and the Public Interest, above n 5, 367
[76] Ibid
[77] Id, 368. A comparison may be drawn with the UK office of Lord Chancellor whose executive role may be more or less significant depending on the particular office holder, the government of the day and government priorities; see Woodhouse, D, "The Office of Lord Chancellor" [1998] PL 618
[78] Australia. Electoral and Administrative Review Commission, Report on the Review of the Independence of the Attorney-General (Brisbane : EARC,1993) 10
[79] Heraghty, above n 29, 220
[80] King, above n 6, 169
[81] Id, 169-176
[82] Hands, T & Davies, D, "Defend Thyself!" (2003) 28:2 Alt LJ 66
[83] Carney, G, "Comment - The Role of the Attorney-General" (1997) 9 Bond LR 7; see also Attorney-General v Times Newspaper Ltd [1974] AC 273 (Lord Diplock)
[84] Mason, A, Sir, "The Role of the Courts at the Turn of the Century" (1993) 3 JJA 158
[85] Hands & Davies, above n 82, 66
[86] Heraghty, above n 29, 208
[87] Australian Communist Party and Others v Commonwealth (1951) 83 CLR 1
[88] Bank of New South Wales v Commonwealth (1948) 76 CLR 1
[89] Solomon, David, The Political High Court : How the High Court Shapes Politics (Sydney : Allen and Unwin, 1999) 7
[90] Ibid
[91] See Waterford, J, "Criticism of the Court" in Blackshield, Tony, et al (eds), The Oxford Companion to the High Court of Australia (Melbourne : Oxford University Press, 2002) 183; see also, Hands & Davies, above n 82, 65 and Solomon, above n 89, 7
[92] (1997) 187 CLR 1
[93] As Sir Anthony Mason notes this provides a strong motive for such attacks. See Mason, A, Sir, "No Place in a Modern Democratic Society for a Supine Judiciary" (1997) 35:11 Law Society Journal 52
[94] Williams, D, "Judicial Independence" (1998) 36:3 Law Society Journal 50
[95] Williams, D, "The Role of the Attorney-General" (2002) 13 PLR 255
[96] Abbott, T, "Reflections on the Role of the Attorney-General" (2002) 13 PLR 273
[97] Heraghty, above n 29, 238