Preface to Legal Opinions Volume 2: 1914-1923
This volume carries forward the aim stated in the Foreword of the first volume to make publicly available past opinions of Commonwealth Attorneys-General and of the Attorney-General's Department of continuing value or interest. As in the case of the first volume of opinions, two main tests were applied in the selection of opinions for publication. Is the opinion of sufficient continuing legal relevance? Alternatively, does it have historical interest or significance?
The volume also includes opinions given by the Secretary to the Attorney-General's Department, Sir Robert Garran, in his capacity as Solicitor-General. The office of Solicitor-General was created by the Solicitor-General Act 1916 and Garran's appointment dated from 1 September 1916. The appointment was made to enable Garran to take over most of the functions of the Attorney-General, since Hughes as a wartime Prime Minister was able to devote only a small amount of time to his duties as Attorney-General.
Also included in the volume are opinions obtained by the Commonwealth from the distinguished public lawyer, Professor Harrison Moore of Melbourne University, on matters of prize law and other matters that arose during the war. Garran noted in his autobiography, Prosper the Commonwealth, that the Attorney-General's Department found itself in an unfamiliar and responsible position in the World War, since none of the staff had any practical experience of international law relating to the various classes of cases that arise in wartime. He acknowledged the assistance he personally had received from Pitt Cobbett's Leading Cases on International Law. Pitt Cobbett was the first Professor of Law in the University of Sydney and Garran considered his work by far the most practical and useful of all the international law textbooks.
It is appropriate to note that opinions published in the first volume have been cited judicially. In R. v Pearson; Ex parte Sipka (1983) 152 C.L.R. 254 at 264 and 271, the judgments referred to an opinion given by Sir Robert Garran in 1914 and published in the first volume concerning the provision in section 41 of the Constitution about the right to vote. The joint judgment of Gibbs CJ and Mason and Wilson JJ stated that the opinion was of course no authority, but that it conveniently stated their view (152 C.L.R. at 264). In its re-examination of the guarantee of freedom of interstate trade contained in section 92 of the Constitution in Cole v Whitfield and Another (1988) 78 A.L.R. 42, the High Court also referred (at 65) to an opinion given by Isaac Isaacs when Attorney-General. Editorial explanations of the preparation of the texts of opinions for publication are contained in the Preface to the first volume. As in the first volume, the side references in this volume to volume numbers and page numbers are references to the location of the opinion in the Department's own set of Opinion Books, which date back to 1901. However, opinions that do not appear in the Opinion Books but which are recorded elswhere have also been included. Opinion No. 544 is an interesting example, the source being its publication in the Argus newspaper.
Particular thanks are expressed to the readers in the Department who proofread the 774 opinions contained in this Volume, and also to the Australian Government Publishing Service for its work and co-operation.