The role of the Solicitor-General : negotiating law, politics and the public interest / Gabrielle Appleby.
2016
KU3428 .A67 2016 (Map It)
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Details
Author
Title
The role of the Solicitor-General : negotiating law, politics and the public interest / Gabrielle Appleby.
Published
Oxford ; Portland, Oregon : Hart Publishing, 2016.
Call Number
KU3428 .A67 2016
ISBN
9781849467124 hardback alkaline paper
1849467129 hardback alkaline paper
9781509903962
9781509903955
1849467129 hardback alkaline paper
9781509903962
9781509903955
Description
xxvii, 335 pages ; 24 cm
System Control No.
(OCoLC)937062099
Note
Based on author's thesis (doctoral -- University of Adelaide, Law School, 2012) issued under title: The constitutional role of the Solicitor-General : an historical, legal and lived portrait.
Bibliography, etc. Note
Includes bibliographical references and index.
Available in Other Form
Online version: Appleby, Gabrielle, author. Role of the solicitor-general. Oxford ; Portland, Oregon : Hart Publishing, 2016 9781509903955 (DLC) 2016006131
Record Appears in
Gift
Purchased from the income of the Jaffe Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Jaffe Fund
Table of Contents
Preface
v
List of Acronyms
xiii
Table of Cases
xv
Table of Statutes
xxi
Part I: Introducing the Solicitor-General
1.
Solicitor-General and the Constitution
3
I.
Working Constitution
3
A.
Constitutional Role of Government Lawyers
6
II.
Australian Solicitor-General
7
III.
Rest of this Book
14
2.
Law Officers: An Historical and Comparative Introduction
18
I.
Introduction to the History of the English Law Officers
19
A.
First Role of the Law Officers: Representing the King in Court
20
B.
Law Officers Attend and Enter Parliament
25
II.
Modern English Law Officers: Negotiating Politics, Law and the Public Interest
32
A.
Adviser to Government and the Queen
32
B.
Parliamentary and Ministerial Roles
35
C.
Public Interest Responsibilities, Including for Criminal and Civil Litigation
37
D.
Controversies of the Modern English Law Officers
38
i.
Prosecutorial and Other Public Interest Functions
38
ii.
Advisory Function
42
iii.
2007-08 Inquiries into Reforming the English Law Officers
43
III.
Comparative Colonial Experience and Analysis
48
A.
United States: Separating Advocacy and Advising
48
B.
New Zealand: A Non-political, All-in-One Office
51
IV.
Conclusion
53
Part II: The Australian Solicitor-General
3.
Evolution of an Australian Solicitor-General
57
I.
'British Colonial Period'
58
A.
Colonial Beginnings: Adopting and Adapting the British Tradition
59
B.
Colonial Law Officers Take their Seats in the Legislature
62
C.
Responsible Government: Further Breaks with English Tradition
63
D.
Debate Over the Law Officers in Cabinet
66
E.
Law Officers and an Integrated Government Legal Service
68
II.
'Public Service Period'
68
A.
Tasmania Breaks with British Tradition
69
B.
Commonwealth Office
70
C.
Other Jurisdictions Move to the Public Service Model
73
D.
Common Law Powers and Privileges
76
III.
'Modern Period'
77
A.
Rise of a Constitutional Specialist
78
B.
Balancing Responsibility and Independence
79
C.
Private Practice in the 'Modern Period'
81
D.
Reasons for the Move to the 'Modern Period'
83
E.
Late Addition: The Australian Capital Territory
85
F.
Remuneration Dilemma: Judicial Salary or Public Servant's Wage?
86
G.
Solicitors-General of Australia
89
IV.
Conclusion
90
4.
Counsel for the Crown
92
I.
Introduction
92
II.
Appointment, Tenure, Removal and Remuneration
92
A.
Appointment
93
B.
Tenure and Removal
93
C.
Remuneration
95
D.
Impact on Independence
96
III.
'Counsel' for the Crown: Adviser and Advocate
98
A.
Solicitor-General's Independence
100
i.
Independence in Theory
101
ii.
Three Conceptions of Lawyers' Independence
102
iii.
Advocate and Adviser: A Dichotomy of Independence
106
IV.
'Crown'
111
A.
Conflicts of Interest within the 'Crown'
118
i.
Solicitor-General and Independent Crown Agencies
118
ii.
Solicitor-General and Vice-regal Officers
120
V.
Confidentiality of Counsel's Opinions
124
A.
'Law Officer Convention' in Australia
125
VI.
Solicitor-General as Law Officer
128
A.
Law Officers
129
i.
Litigation
130
ii.
Conducting Litigation
130
iii.
Advisory Function
132
B.
Australian Solicitor-General: Reconciling Common Law and Statute
136
i.
'Core Government Principles'
139
VII.
Conclusions on the Legal Position
143
Part III: Negotiating the Tensions
5.
Solicitor-General as Adviser
147
I.
Introduction
147
II.
Advisory Function and the Rule of Law
149
A.
Rule of Law: Three Perspectives
151
i.
Checking Power and Protecting the Public
151
ii.
Certainty and Security for Government
152
iii.
Separation of Powers
159
B.
Assumptions
164
i.
First Assumption: The Government as Client
164
ii.
Second Assumption: The Solicitor-General as Trumps
171
iii.
Third Assumption: The Solicitor-General and Other Sources of Legal Advice
177
iv.
Fourth Assumption: Independence
192
v.
Assumptions: Summary
193
III.
Advisory Function: Executive Empowerment
193
A.
Achieving Executive Policy Outcomes
193
B.
Policy Outcomes and the SCSG
199
C.
Advising Beyond the Law
200
i.
Role of Good Counsel: To Advise and Warn
201
ii.
Whole-of-Government Perspective
201
iii.
'Core Government Principles'
202
IV.
Discussion: The Solicitor-General as Adviser
207
6.
Solicitor-General as Advocate
212
I.
Hired Gun: Government Advocate
213
A.
Government's Interests
216
i.
First View: Protecting Government Power
218
ii.
Second View: Government Power as One Aspect of Constitutional Policy
223
B.
Unique Obligations of the Solicitor-General to the Court
225
II.
Advocacy in Practice: The Solicitor-General's Instructions
227
A.
Determining Whether to Prosecute, Defend, Appeal or Intervene
229
B.
Formulation of Submissions
235
III.
Executive and the Judiciary: Conversations and Confrontations
238
A.
Implications of Judicial Decision-making
239
B.
Confrontations over Institutional Roles
245
i.
Carrying the Message from the Executive to the Judiciary
245
ii.
Solicitor-General Carries the Message Back
247
C.
Solicitor-General and the High Court's Jurisprudence
248
IV.
Discussion: The Solicitor-General as Advocate
250
7.
Independence
254
I.
Protecting the Solicitor-General's Independence
255
II.
Professional Competence and Independence
256
A.
Professional Qualifications, Experience and Expertise
256
B.
Barristerial Trappings
260
C.
Beyond Professional Qualities: Questions of Politics
261
III.
Statutory and Structural Mechanisms that Protect Independence
264
IV.
Other Structural Mechanisms
267
A.
Acting Beyond Counsel
267
B.
Relationship with the First Law Officer and Traditional Role of the Law Officers
270
C.
'So Long, Thanks for All the Fish': Financial Security
271
D.
External Institutions: The SCSG and the Courts
273
V.
Independence in Practice
275
VI.
Discussion: Protecting Independence: Comparing Structural and Individual Protections
276
VII.
Discussion: 'Autonomous Experts' and 'Team Members'
279
8.
Conclusions
285
I.
Crown: A Conflicted Client
286
II.
Public Interest and 'Core Government Principles'
287
III.
Briefing the Solicitor-General
288
IV.
Independence
289
A.
Value of Individual Independence and Structural Guarantees
290
B.
'Autonomous Experts' and 'Team Members'
291
C.
Adviser and Advocate
293
V.
Concluding Reflections on the Australian Model
294
Appendix A Qualitative Research Design
297
Appendix B Interview Participants
313
Appendix C List of Officeholders
319
Index
327