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The Attorney-General and Cabinet: Some Australian Precedents

Published online by Cambridge University Press:  24 January 2025

R. Plehwe
R. Plehwe*
Affiliation:
La Trobe University
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Abstract

In Britain the Attorney-General is free from Cabinet control in deciding whether or not to initiate prosecutions or to terminate criminal proceedings. This article discusses the question whether the British rule applies in Australia. It examines the Mercantile Bank case (Victoria, 1893), the termination by federal authorities of the proceedings against John Brown in 1929, and evidence provided by federal Cabinet minutes before 1946. It seems that the British rule was not established in Australia before World War II. If Australian Attorneys-General are now regarded as exercising an independent authority, this is probably a case of importing a British convention after it had evolved in the United Kingdom. When the federal Attorney-General, Mr Ellicott, resigned in 1977, both he and the Prime Minister stated that Cabinet should not interfere with decisions to start or discontinue criminal proceedings. It would, however, be premature to regard this as a firmly established convention and it is clear that there were grave differences between Mr Ellicott and his colleagues as to some practical implications of the rule.

Type
Research Article
Information
Federal Law Review , Volume 11 , Issue 1 , March 1980 , pp. 1 - 18
Copyright
Copyright © 1980 The Australian National University

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Footnotes

I am indebted to Professor E. K. Braybrooke, who read the text and made helpful comments. I alone am responsible for errors.

References

1 Edwards, , “The Integrity of Criminal Prosecutions-Watergate Echoes beyond the Shores of the United States” (1979) 5 Commonwealth Law Bulletin 879CrossRefGoogle Scholar.

2 Gouriet v. Attorney-General [1978] A.C. 435.

3 “Another Royal Commission” [1977] Criminal Law Review 441.

4 Law Reform Commission-Australia. Discussion Paper No. 4, Access to the Courts-I Standing: Public Interest Suits 24.

5 (1924) 177 H.C. Deb. 5s. cols. 581-704; Edwards, The Law Officers of the Crown (1964) 199-225.

6 Ibid.; Shawcross, “The Office of Attorney-General” (1953-1954) VII Parlia-mentary Affairs 380-392; statement by Harold Macmillan, (1958-1959) 600 H.C. Deb. 5s. col. 31; Sir Peter Rawlinson, letter to The Times (London) 17 June 1975. Marshall and Moodie rightly point out that the Campbell case itself did not conclusively establish the conclusions that have since been drawn from it: Some Problems of the Constitution (4th ed. 1967) 149.

7 Campbell and Whitmore, Freedom in Australia (1973) 118. There had in fact been a debate on the matter in pre-federation Victoria, but its value as a precedent is doubtful. The episode is discussed infra.

8 Edwards, , “The Integrity of Criminal Prosecutions-Watergate Echoes beyond the Shores of the United States” (1979) 5 Commonwealth Law Bulletin 879, 893-894CrossRefGoogle Scholar.

9 See generally the discussions in Marshall and Moodie, op. cit. 25-40 and Sawer, Federation Under Strain (1977) 173-198.

10 For detailed accounts of the Mercantile Bank case, see Cannon, The Land Boomers (1966) 165-177; Cowen, Isaac Isaacs (1967) 30-38.

11 54 Vic. No. 1079, s. 388.

12 ln Victoria, the Solicitor-General was a member of Cabinet until 1951, but in the twentieth century the office was often held jointly with that of Attorney-General. The Solicitor-General Act 1951 (Vic.) provided that thenceforth the office of Solicitor-General was not to be held by a responsible Minister of the Crown.

13 (1893) 72 V.P.D. 80, 169.

14 The letter was printed in the Argus (Melbourne) 25 May 1893.

15 Ibid.

16 (1892-1893) 71 V.P.D. 3526.

17 (1893) 72 V.P.D. 32-33.

18 Id. 44, 96.

19 Id. 104.

20 Id. 88.

21 Id. 91.

22 Id. 96.

23 Id. 40-41, 87.

24 Id. 103.

25 (1892-1893) 71 V.P.D. 3526.

26 The Law Officers of the Crown (1964) 187.

27 Id. 188.

28 For accounts of Brown's case and its political background, see Sawer, Australian Federal Politics and Law 1901-1929 (1956) 313-316; Carboch, “The Fall of the Bruce-Page Government” in Wildavsky and Carboch, Studies in Australian Politics (1958) 135-139; Cowen, “Sir John Latham: (1) Politics” in Sir John Latham and Other Papers (1965) 14-15; Dixson, “Stubborn Resistance” in Iremonger, Merritt and Osborne (eds) Strikes: Studies in Twentieth Century Australian Social History (1973) 132.

29 Common. Parl. Deb. 1929, Vol. 121, 16-17.

30 Id. 18.

31 The two preceding paragraphs are based on Latham's notes, Australian National Library MSS 1009/38/101-102. Typewritten copies of the telegrams are attached; MSS 1009/38/103-104.

32 Common. Parl. Deb. 1929, Vol. 121, 7.

33 Id. 187.

34 Id. 7, 57,59-187.

35 The Sun (Sydney) 14 August 1929, 12. On 28 April 1929, Latham had circulated a Cabinet submission in which he argued that the penal provisions of the Industrial Arbitration Act were unenforceable and ought to be repealed, leaving deregistration as the only penalty. He referred to Brown's case and stated that, “rightly or wrongly”, the withdrawal of the prosecution had disheartened the Government's supporters and encouraged the Opposition (Australian National Library, MSS 1009/28/237-248). The Sun's report seems to have been based on a copy of this document.

36 Common. Parl. Deb. 1929, Vol. 121, 10.

37 Id. 11.

38 Ibid.

39 Id. 41; see also 44.

40 Id. 46.

41 Id. 147.

42 Id. 16, 52-53.

43 Id. 18 especially.

44 Id. 53.

45 Op. cit. 149.

46 (1924) 177 H.C. Deb. 5s. cols 581-582, 627.

47 Id. col. 686.

48 Id. cols 613-614, 634, 638.

49 The Times (London) 2 October 1924. See also The Times 10 October 1924.

50 The Law Officers of the Crown (1964) 210.

51 Australia, Cabinet Minutes, 8 July 1919, Australian Archives A 2717 vol. 1, folder 4.

52 Australian Archives A 3264, p. 28.

53 Australian Archives A 2694, 9 November 1932.

54 Australian Archives A 432, item PSR 55270 is the Attorney-General's Department's file on the case. The prosecution was in respect of an article appearing on 5 November. The date in the Cabinet minute appears to be a mistake, the Melbourne Truth at this time being a weekly journal.

55 Except where otherwise indicated, this account is based on H.R. Deb. 1977, Vol. 106, 721-727.

56 Id. 723.

57 Id. 723-724.

58 Id. 724.

59 Id. 726.

60 Ibid.

61 Id. 794.

62 Id. 721.

63 Id. 724.

64 1bid.

65 Id. 725.

66 Id. 726.

67 Id. 727.

68 Ibid.

69 This was correct, although Mr Ellicott had been strongly opposed to the decision to claim Crown privilege;id. 722-723.

70 H.R. Deb. 1977, Vol. 106, 728-731.

71 Id. 788-789, 792-793.

72 It is possible to read a question by Senator Walsh as implicitly affirming the existence of a convention of independence: S. Deb. 1977, Vol. 74, 707.

73 H.R. Deb. 1977, Vol. 106, 724.

74 Shawcross, op. cit. 386.

75 Edwards believes the Cabinet was wrong to deny Mr Ellicott the access he sought: 'The Integrity of Criminal Prosecution-Watergate Echoes beyond the Shores of the United States” (1979) 5 Commonwealth Law Bulletin 879, 895.

76 H.R. Deb. 1977, Vol. 106, 795.