Solicitor-General of Australia

The Solicitor-General of Australia is the country's second highest-ranking law officer, after the Attorney-General for Australia. The position is often known as the Commonwealth Solicitor-General in order to distinguish it from the state solicitors-general. The current officeholder is Stephen Donaghue, who took office on 16 January 2017 following the resignation of Justice Gleeson.

Solicitor-General of Australia
Incumbent
Stephen Donaghue
since 16 January 2017
Attorney-General's Department
AppointerGovernor-General on the recommendation of the Prime Minister
Inaugural holderSir Robert Garran
Formation1916 (1916)

The Commonwealth Solicitor-General gives the Australian federal government legal advice and appears in court to represent the Commonwealth's interest in important legal proceedings, particularly in the High Court.[1] For example, the Solicitor-General undertook a critical role during the Australian Parliamentary eligibility crisis of 2017-18 offering advice to the government and defending members of parliament in court.[2][3] Unlike the Australian attorney-general or the same position in England and Wales, the solicitor-general is not a member of parliament.

History
Anthony Mason c. 1968

The office was created in 1916 with the appointment of Sir Robert Garran. Prior to this, from 1903 to 1913 Sir Charles Powers had served as the first Commonwealth Crown Solicitor,[4][5][6] which later became the Australian Government Solicitor. Sir Charles Powers was also sometimes referred to as the "Solicitor-General",[7][8] but the two offices are separate: Powers was succeeded in 1913 as Crown Solicitor by Gordon Castle,[9] whereas the first Solicitor-General, Robert Garran, was not appointed until 1916.[10]

The creation of the role owed much to circumstances, when Attorney-General Billy Hughes became Prime Minister of Australia but retained his position as Attorney-General. Robert Garran had already been permanent secretary of the Attorney-General's Department since Federation, and the new position recognised the additional responsibilities that Hughes now delegated to him.[11] The name "Solicitor-General" is taken from the title of the deputy of the Attorney-General for England and Wales, first appointed in 1461, with the name "solicitor general" becoming standard from 1536. Unlike the Australian position however, the British position is by convention filled by a member of parliament.[12]

Garran continued in the position of Solicitor-General and permanent head of the Attorney-General's Department until his retirement in 1932. His successor, George Knowles, inherited both positions as well as the position of Parliamentary Draftsman.[13] The position of Parliamentary Draftsman became a separate role in 1946. The positions of Solicitor-General and permanent secretary to the Attorney-General's Department were not separated until 1964, when Anthony Mason became Solicitor-General but Ted Hook was appointed permanent secretary. The Law Officers Act, enacted that year, codified the role of the Solicitor-General as statutory counsel, distinct from the role of the permanent secretary as the non-political public service head of the Attorney-General's department.

Two solicitors-general have been appointed to the High Court of Australia: Anthony Mason in 1972 and Stephen Gageler in 2012. Gageler is the only person to be directly elevated from the solicitor-generalship to the High Court.

Although the Solicitor-General is essentially the deputy Attorney-General, it is a statutory role whereas the Attorney-General is a political one, filled by a member of parliament, and it is rare for a Solicitor-General to then become the Attorney-General. Bob Ellicott is the only Solicitor-General who went on to become Attorney-General.[14]

List of Solicitors-General
Name Period in office
Sir Robert Garran KCMG 1916–1932
Sir George Knowles CBE 1932–1946
Sir Kenneth Bailey CBE QC[15] 1946–1964
Anthony Mason CBE QC 1964–1969
Bob Ellicott QC 1969–1973
Sir Maurice Byers CBE QC 1973–1983
Gavan Griffith QC 1984–1997
Henry Burmester QC (acting) 1997–1998
David Bennett AC QC 1998–2008
Stephen Gageler SC 2008–2012
Justin Gleeson SC 2013–2016
Stephen Donaghue QC 2017–present

Notable Cases

The Commonwealth Solicitor-General as the second-highest ranking law officer in Australia is often called upon by the government for advice as well as to represent the Commonwealth in legal matters.[16] Notably, Stephen Donaghue, the Solicitor-General during the Australian parliamentary eligibility crisis of 2017-18, was central in advising and representing MP's including appearing in court on behalf of Attorney-General George Brandis.[17] In 2021, he also provided advice to the Prime Minister Scott Morrison, indicating that workplace vaccine mandates would most likely not be viewed as discriminatory.[18] Donaghue suggested that under both state and Commonwealth law protection is only provided for people concerning certain attributes, including gender identity and race, vaccine status however is not included.[19]

References
  1. "Solicitor-General". Australian Government Directory. Retrieved 25 August 2018.
  2. Pelly, Malcolm (2021). "Five more years for Solicitor-General". Financial Review.
  3. "High Court starts hearings on dual citizenship MPs". Australian Financial Review. 9 October 2017. Retrieved 7 December 2021.
  4. Forster, Colin. "Powers, Sir Charles (1853–1939)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538. Retrieved 9 July 2013 – via National Centre of Biography, Australian National University.
  5. Sir Charles Powers KCMG, High Court of Australia
  6. Sir Charles Powers, Supreme Court Library Queensland
  7. "Obituary SIR CHARLES POWERS". The Argus (Melbourne) (28, 915). Victoria, Australia. 26 April 1939. p. 4. Retrieved 25 August 2018 – via National Library of Australia.
  8. "From the States". Morning Post (Cairns). 15 (44). Queensland, Australia. 12 June 1903. p. 7. Retrieved 25 August 2018 – via National Library of Australia.
  9. AGS Legal Opinions – CASTLE Gordon Harwood, Attorney-General's Department
  10. Forster, Colin. "Garran, Sir Robert Randolph (1867–1957)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538. Retrieved 6 May 2014 – via National Centre of Biography, Australian National University.
  11. Francis, Noel (1983). The Gifted Knight: Sir Robert Garran. Canberra: Noel Francis (Australia); Australian National University Press (worldwide). ISBN 978-0-9592095-0-1.
  12. Alexander Home, The Law Officers, House of Commons Library research briefing
  13. "Diplomat's Death in Pretoria: Career of Sir George Knowles". The West Australian. 24 November 1947. p. 13.
  14. https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22handbook%2Fallmps%2FYF6%22
  15. Richardson, Jack E. "Bailey, Sir Kenneth Hamilton (1898–1972)". Australian Dictionary of Biography. Melbourne University Press. ISSN 1833-7538. Retrieved 9 July 2013 – via National Centre of Biography, Australian National University.
  16. "Solicitor-General". Attorney-General's Department. Retrieved 7 December 2021.
  17. "High Court starts hearings on dual citizenship MPs". Australian Financial Review. 9 October 2017. Retrieved 7 December 2021.
  18. Bonyhady, Nick (6 August 2021). "High risk businesses in COVID-19 hotspots to get mandatory vax backing". The Sydney Morning Herald. Retrieved 7 December 2021.
  19. Bonyhady, Nick (19 August 2021). "Is it legal to require workers to have a COVID jab?". The Sydney Morning Herald. Retrieved 7 December 2021.

Further reading


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