Foreword to Legal Opinions Volume 2: 1914-1923

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This publication marks the second occasion on which a collection of past opinions of Commonwealth Attorneys-General, together with some opinions of the Attorney-General's Department, has been made publicly available. In addition, this volume includes opinions of the then Solicitor-General Sir Robert Garran and of Professor Harrison Moore of Melbourne University. The period covered by this volume commences where the first volume concludes, that is, at the outbreak of the First World War on 4 August 1914. It continues until the end of the Hughes Ministry on 9 February 1923.

The office of Solicitor-General was established in 1916 and was conferred upon the Secretary of the Attorney-General's Department, Sir Robert Garran. Sir Robert was not only Australia's first Solicitor-General but on his appointment as the first Secretary of the Attorney-General's Department in 1901 he became the Commonwealth's first civil servant.

Professor Harrison Moore of Melbourne University gave opinions to the Commonwealth Government on questions of the law of prize and other questions that arose during the War. The law of prize lays down the conditions under which vessels can be seized during war, and how they may be dealt with. Professor Harrison Moore was given the then unique distinction of having his opinions included in the Department's own set of Opinion Books.

The collection of opinions in this volume will be of interest not only from a legal and constitutional point of view but also because of the light they throw on the development of Australia as a nation during a crucial period in its history.

During this period Australia was served by three Prime Ministers, Joseph Cook (Liberal), Andrew Fisher (ALP), and William Morris Hughes. Hughes presided over in turn, ALP, National Labor and Nationalist Ministries.

Hughes was the predominant political identity during this period, serving as Prime Minister from October 1915 until February 1923, and as Attorney-General from September 1914 until December 1921. From Australia's point of view the period is dominated by the prosecution of the War and its ramifications.

It is during this period that Australia is seen to have come of age with the gallant but tragic assault on Gallipoli in April 1915 by Australian and New Zealand forces.

The period also saw Prime Minister Hughes twice unsuccessfully seek the approval of the Australian people by way of referendum for the introduction of conscription for overseas service. The first occasion in October 1916 not only resulted in a narrow loss at the polls for the proposal but also resulted in the expulsion of Prime Minister Hughes from the Labor Party. The second occasion in December 1917 was remarkable for the bitter public debate between Hughes and one of the chief opponents of the proposal, the Catholic Archbishop of Melbourne, Dr Mannix. Again the proposal was narrowly defeated.

Naturally enough, many of the opinions in this volume relate to the War, and the War's aftermath. Opinions given about the detention of persons in Australia pursuant to the War Precautions Regulations illustrate the extensive domestic controls that were imposed (e.g. Opinions Nos 633 and 667). Also notable in that respect is Opinion No. 842, which advised that wartime censorship powers extended to the seizure, in Parliament itself, of pamphlet copies of the Parliamentary speech given by a member.

The War period also saw the passage of the first Commonwealth Income Tax Act in 1915. Opinions interpreting its meaning were quickly requested, notwithstanding Sir Robert Garran's claim that, compared to the literary 'monstrosity' it later became the original Act was a 'thing of beauty and simplicity'.

The exigencies of the War led to proposals that provisions of the Constitution should be suspended or overridden by Imperial legislation—in one case to halt the general election in Australia that was in progress at the onset of the War and in another case to validate State legislation prohibiting export of meat from that State to another State. The opinions given on these matters (see Opinions Nos 544 and 708) took the view that such moves would be a constitutional precedent of a most dangerous kind and subversive of the Constitution which contains its own mechanism for amending the Constitution, in accordance with the wishes of Australian people.

New issues arose for consideration, such as control of air navigation (Opinions Nos 903 and 1050) and peace-time censorship of imported films (Opinion No. 1142). Opinions appear that reflect the watershed decision by the High Court in the Engineers Case (1920) 28 C.L.R. 129 holding that Commonwealth legislative powers are to be given a broad and liberal interpretation, which extends to binding the States (see Opinions Nos 1022, 1104 and 1125). In the same vein, Sir Robert Garran advised that the Commonwealth, under its external affairs power, could implement a treaty on matters which, under the existing distribution of powers, fell within the domain of the States. In doing this he anticipated the High Court's decision in the Tasmanian Dam Case (1983) 158 C.L.R. 1. Clearly, as the nation developed, problems arose that required a national approach.

What emerges from this volume, as from the previous volume, is the vital role the Attorney-General, the Solicitor-General from 1916 onwards, and the Attorney-General's Department have played in the growth of the nation, the functioning of its democratic institutions and development of the legal system.

 

LIONEL BOWEN
Attorney-General of the Commonwealth of Australia

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