Foreword to Legal Opinions Volume 3: 1923-1945

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It gives me great pleasure to introduce this third volume of the Opinions of Attorneys-General of the Commonwealth of Australia with opinions of Solicitors-General and the Attorney-General’s Department.

In 1981 the Attorney-General’s Department published a volume of collected early opinions of Commonwealth Attorneys-General.1 Those opinions covered the period from Federation to the outbreak of war in 1914. Their publication was intended to provide access to advice to the Commonwealth of Australia of continuing legal or historical interest. As was noted in the foreword to that volume by the then Attorney-General Peter Durack, the opinions ‘throw light on the early years of the Australian nation – a critical and formative period in our legal and political development’.2

A second volume of opinions was published in 1988 covering the period from the outbreak of war to the final days of the Hughes government in 1923.3 In his foreword, then Attorney-General Lionel Bowen noted that the office of Solicitor-General had been established in 1916 and that opinions of the first Solicitor-General, Sir Robert Garran, had been included.4 The opinions in the second volume touch on issues relevant to the development of Australia as a nation during a crucial period in our history, including the First World War, two unsuccessful referendums on the question of conscription for overseas service and the creation of the League of Nations.

This third volume provides access to opinions from the period 1923–45, once again a critical period in our nation’s history. This volume covers much of the inter-war years, including the Great Depression, and the Second World War. Australia witnessed tumultuous events in this period, but also legal and social development towards greater national maturity and independence. These opinions provide a unique insight into these developments. The opinions are primarily those of the Attorney-General and Solicitor-General, though many were written with the assistance of lawyers in the Attorney-General’s Department. A number of opinions formally under the name of government legal advisers in the Department have also been included, along with some by eminent counsel at the private Bar to the government.

This volume has been prepared by the Attorney-General’s Department and the Australian Government Solicitor (AGS), which is now the principal body providing legal advice and services to the Commonwealth government. I congratulate the Department and the AGS on the completion of this project. I am particularly pleased that it is accompanied by the publication online of not only this Volume 3 but also the earlier Volumes 1 and 2, at: legalopinions.ags.gov.au. This will make the full collection of published opinions readily available to a much wider audience of government officials, lawyers, historians, students and interested citizens of Australia and other countries.

Reading this volume of opinions offers insight into the critical role of legal advisers to governments in a parliamentary democracy operating under the rule of law. The opinions show Australian government lawyers bringing their skills and expertise to bear in assisting the democratically elected government to implement its policies, and in this period Australia saw some enormous challenges to the welfare of its people and, indeed, to the very existence of the nation. But these lawyers also worked to ensure that these policies were implemented lawfully. Of course, a number of institutions fulfil this function, and this volume demonstrates the pivotal role of the High Court and an independent judiciary in this regard. But many matters of great impact on the people of Australia are not subject to litigation. A culture amongst government legal advisers of striving to ensure that government policies are implemented lawfully is a key feature of a functioning democracy and this is evidenced by the opinions of Commonwealth legal advisers in this publication. This publication reflects the importance of the Commonwealth’s legal advisers to the operation of the Australian national government and its fundamental constitutional principles.

 

MARK DREYFUS QC MP
Attorney-General of the Commonwealth of Australia

 

1. Brazil, P and Mitchell, B (eds) 1981, Opinions of Attorneys-General of the Commonwealth of Australia Volume 1: 1901–14, AGPS.
2. Page v.
3. Brazil, P and Mitchell, B (eds) 1988, Opinions of Attorneys-General of the Commonwealth of Australia Volume 2: 1914–23, AGPS
4. Page v.

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