Preface to Legal Opinions Volume 1: 1901-1914
In March 1975 the then Attorney-General of the Commonwealth of Australia, Mr K. Enderby Q.C., announced that the Government had decided to publish selected legal opinions given since Federation by Commonwealth Attorneys-General. It was envisaged that initially the opinions published would cover the years 1901–1945.
This first volume covers the period from 1 January 1901, when the Commonwealth was established, to 31 July 1914, just prior to the outbreak of the First World War.
Something should be said about the selection of opinions considered for publication. At the two extremes—major constitutional pronouncements on the one hand and opinions of transitory importance on legislation long since repealed on the other— the decision to include or exclude has been easy. But the majority of opinions given over the years have fallen between those two poles. Initially, a complex set of criteria for selection was developed but finally two main tests were applied. Is the opinion of sufficient continuing legal relevance? Alternatively, does it have historical interest or significance? In only a very few cases was it found necessary to exclude an opinion that qualified for selection under these tests on the ground that its publication at this stage would prejudice public or private interests.
In preparing the present volume, the original scope of the project has been widened to include not only opinions by Attorneys-General but also opinions given by Mr (later Sir Robert) Garran who was Secretary to the Attorney-General's Department throughout the whole of the period. Also included are some opinions by Acting Attorneys-General and Acting Secretaries of the Department.
Many of the Department's copies of early opinions signed by an Attorney-General also bear the initials of Robert Garran. No reference has been made in the published opinions to such initialling. Of course, Garran would normally have played an important role in preparing drafts and also in the settling of such opinions. However, the final opinion was that of the Attorney-General.
Speaking of Alfred Deakin, the first Attorney-General of the Commonwealth, Garran in his autobiographical work, Prosper the Commonwealth, reminisced:
I recall the lively discussions we used to have when I drafted for him a difficult opinion. He would take the role of counsel for the other side and attack the opinion from every angle, pinking it with rapier thrusts and putting me to desperate shifts in its defence. His sallies were sometimes fantastic, but always enlightening. At last he would say, 'I think you are right, but redraft it and let me see it again'. The rewritten opinion, with the joints mended where he had pierced them, might reach the same conclusions, but would be more satisfying to myself and, I hope, more convincing to others.
Some editorial explanations of the text and of the preparation of the texts of opinions for publication are appropriate:
Arrangement of opinions: The opinions published in the present volume are arranged chronologically and numbered accordingly.
Side references to volumes and pages:These references are to the location of the opinion in the Department's own set of Opinion Books, which date back to 1901. The absence of such a reference indicates another source, e.g. publication in a Commonwealth Parliamentary Paper.
Parliamentary Papers: Where it has been ascertained that an opinion has been published in Parliamentary Papers, a reference to that effect has been included (even where the opinion appears in the Department's own Opinion Books).
Headings: These have been specially prepared for the present publication and represent an attempt to express, in legal catchword style, the essence of an opinion, with references to relevant legislation. The original headings, which often feature the subject of an opinion in the sense of a person, place etc., rather than serving as a guide to its legal content, have not been reproduced.
Dates: The style of writing dates, generally speaking, has been standardised.
Addressees:These are included where they appear in the opinion or where in any event the identity of the addressee is clear beyond doubt.
Cross referencing: Cross references are given where an opinion refers specifically to an earlier opinion. In general, no further linking together of related opinions has been attempted, as it is believed that this function is best left to the Index.
Citation of Acts: A standardised form of citing legislation has been adopted, e.g. Merchant Shipping Act 1894 (Imp.).
Commonwealth of Australia Constitution Act: This Act was an Act of the Imperial Parliament containing nine sections. The Constitution itself constitutes section 9 of the Act. Australian lawyers have traditionally referred to the sections of the Imperial Act, as distinct from those of the Constitution proper, as the 'covering clauses' of the Constitution and this practice, as well as being used generally in the opinions, has been adopted in the headings and in the Table of Legislation.
Anonymity: Certain names of people and companies occurring in the opinions have been replaced by A, B, etc. However, where an opinion identifying a person or company by name has been published in a Parliamentary Paper the substitution has generally not been made.
Biographical notes: These have been kept to a minimum. However, where it appeared that there might be some difficulty in identifying the author of an opinion, or a person named in the text, a brief endnote has been appended, limited to stating the position held by the author or other person at the time of the opinion or of the event in question.
Editorial corrections: Interference with the original text of the opinions has been kept to a minimum. Correction has been limited to patent errors in the citing of legislation, quoting from textbooks and the like.
Acknowledgments are due to the publishers, the Australian Government Publishing Service, for their work and co-operation, and also to the Australian Archives for as¬sistance in clearing materials.