The Role of the Solicitor-General : Negotiating Law, Politics and the Public Interest

"Behind every government there is an impressive team of hard-working lawyers. In Australia, the Solicitor-General leads that team. A former Attorney-General once said, 'The Solicitor-General is next to the High Court and God.' And yet the role of government lawyers in Australia, and specifically the Solicitor-General as the most senior of government lawyers, is under-theorised and under-studied. The Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest goes behind the scenes of government - drawing from interviews with over 45 government and judicial officials - to uncover the history, theory and practice of the Australian Solicitor-General. The analysis reveals a role that is of fundamental constitutional importance to ensuring both the legality and the integrity of government action, thus contributing to the achievement of rule-of-law ideals. The Solicitor-General also works to defend government action and prosecute government policies in the court, and thus performs an important role as messenger between the political and judicial branches of government. But the Solicitor-General's position, as both an internal integrity check on government and an external warrior for government, gives rise to competing pressures: between the law, politics and the public interest. The office of the Solicitor-General in Australia has evolved many characteristics across the almost two centuries of its history in an attempt to navigate these tensions. These pressures are not unique to the Australian context. The understanding of the Australian position provided by this book is informed by, and will inform, comparative analysis of the role of government lawyers across the world." --publisher's description Preface Contents List of Acronyms Table of Cases Table of Statutes Part I: Introducing the Solicitor-General 1. The Solicitor-General and the Constitution I. The Working Constitution II. The Australian Solicitor-General III. The Rest of this Book 2. The Law Officers: An Historical and Comparative Introduction I. An Introduction to the History of the English Law Officers II. The Modern English Law Officers: Negotiating Politics, Law and the Public Interest III. Comparative Colonial Experience and Analysis IV. Conclusion Part II: The Australian Solicitor-General 3. The Evolution of an Australian Solicitor-General I. The 'British Colonial Period' II. The 'Public Service Period' III. The 'Modern Period' IV. Conclusion 4. Counsel for the Crown I. Introduction II. Appointment, Tenure, Removal and Remuneration III. 'Counsel' for the Crown: Adviser and Advocate IV. The 'Crown' V. The Confidentiality of Counsel's Opinions VI. The Solicitor-General as Law Officer VII. Conclusions on the Legal Position Part III: Negotiating the Tensions 5. The Solicitor-General as Adviser I. Introduction II. Advisory Function and the Rule of Law III. Advisory Function: Executive Empowerment IV. Discussion: The Solicitor-General as Adviser 6. The Solicitor-General as Advocate I. Hired Gun: Government Advocate II. Advocacy in Practice: The Solicitor-General's Instructions III. The Executive and the Judiciary: Conversations and Confrontations IV. Discussion: The Solicitor-General as Advocate 7. Independence I. Protecting the Solicitor-General's Independence II. Professional Competence and Independence III. Statutory and Structural Mechanisms that Protect Independence IV. Other Structural Mechanisms V. Independence in Practice VI. Discussion: Protecting Independence: Comparing Structural and Individual Protections VII. Discussion: 'Autonomous Experts' and 'Team Members' 8. Conclusions I. The Crown: A Conflicted Client II. The Public Interest and 'Core Government Principles' III. Briefing the Solicitor-General IV. Independence V. Concluding Reflections on the Australian Model Appendix A-QUALITATIVE RESEARCH DESIGN I. Selection of Interview Participants II. Recruitment of Interview Participants III. Development of Interview Topics IV. Conduct of Interviews V. Situating Myself in the Interview Process VI. Data Analysis VII. Participant Review VIII. Limitations of Study APPENDIX B-INTERVIEW PARTICIPANTS APPENDIX C-LIST OF OFFICEHOLDERS Index