Preface to Legal Opinions Volume 3: 1923-1945
The publication of 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 is a significant achievement. It has involved the excellent work of many people both in and for the Attorney-General’s Department and the Australian Government Solicitor (AGS).
The published volumes of opinions are an eloquent history of the development of the Department itself. Robert Garran describes in his autobiography that for the first few days he was ‘both head and tail’ of the Department, writing in longhand the first number of the Commonwealth Gazette and sending himself down to the Government Printer with it.1
But by 1923, when this third volume commences, there were just under 200 officers of the Department. Robert Garran was still Secretary, and in 1916 he had also been appointed Solicitor-General. The Department still had a focus on provision of legal advice. The introduction to this volume sets out the key issues on which the Attorneys-General, the Solicitors-General and the Department were advising from 1923 and which are the subject of the opinions included in this volume. This advice ranges broadly across the legal framework within which the Commonwealth government operated and which the government itself was developing, and shows the Department centrally involved as legal adviser in addressing the many major policy challenges of the period. The Department was also responsible for drafting legislation – Robert Garran was Parliamentary Draftsman. It had growing policy responsibilities – for example, in relation to the Bankruptcy Act 1924. The Crown Solicitor’s Office under Gordon Castle conducted litigation and commercial work for the Commonwealth.
The head office of the Department moved to Canberra in 1927. As well as assisting the Attorney-General and the government to address the issues raised by the Great Depression, the Department was subject to the reductions in salaries and other restrictions which applied across the public sector at that time. On 9 February 1932, Robert Garran retired from the positions of Secretary, Solicitor-General and Parliamentary Draftsman. He was succeeded by George Knowles, who also held all three positions until 8 May 1946. The Department’s activities were greatly affected by the Second World War. It brought not only a substantial increase in legal work but also acute staff shortages; nearly 50 per cent of the Department’s staff enlisted or were called up. By 1945 the number of permanent staff was 380, while temporary or exempt staff numbered 456.
This third volume is a tribute to the legal advice work of the Department through this period. Most of the opinions in this volume are under the name of the Attorney-General or Solicitor-General, but it is clear that departmental officers had a key role in many of these opinions, supporting the First Law Officer, the Attorney-General, and the Solicitor-General as Second Law Officer. There is also a growing number of opinions under the names of departmental officers themselves.
The Department continues to perform some legal advice functions today, though the primary body providing legal advice to the Commonwealth is now AGS, established by amendments made in 1999 to the Judiciary Act 1903. Given the current legal advice role of AGS, this publication has been brought about as a joint enterprise between it and the Department. The project was initiated by Ian Govey, then Deputy Secretary of the Department and now Chief Executive Officer of AGS, with James Faulkner, General Counsel (Constitutional Law) in the Department, and Robert Orr, now Chief General Counsel in AGS.
The selection of opinions to include in this volume was a difficult task. Throughout the 20th century the number of opinions per year has grown, as has their average length. However, the ongoing relevance of many of these is limited. Therefore, in this volume we have sought to be more selective about what is included and focused on those opinions of clear historical or legal interest or significance. Whilst Volume 1 had 542 opinions, an average of 38 opinions per year, and Volume 2 had 773 opinions, an average of 77 opinions per year, this volume has 444 opinions, an average of 20 per year. This project also involved making the three volumes available online, giving us the capacity to revisit more readily these selection decisions and add other opinions to the public database if they become of relevance.
The original selection of opinions for inclusion was undertaken by Peter Ford, formerly First Assistant Secretary of the Department. The selection was later reduced by Guy Aitken, Deputy General Counsel in AGS; Henry Burmester, Chief General Counsel in AGS; Bill Campbell, General Counsel (International Law) in the Department; James Faulkner; Robert Orr; and George Witynski, Deputy General Counsel in AGS.
These were then typed up by Elizabeth Shaw and other legal assistants in the Office of General Counsel in AGS. They were typeset by Julie Hamilton of Mirrabooka Marketing & Design.
The opinions were subject to editing principally by Adam Kirk, Counsel in AGS, and Kirsten McNeill, formerly an editor with AGS and now a consultant editor through Apricot Zebra, with assistance from Guy Aitken; James Faulkner; Jenny Francis, National Group Manager of the Office of General Counsel in AGS; Kathryn Graham, Senior General Counsel in AGS; and Robert Orr. A number of summer clerks and new graduates in AGS also assisted.
As with previous volumes, we have to a large extent left the opinions in their original format. We have sought, however, to impose some level of consistency, in particular in relation to references to addressees, legislation and authors, and in quotations. The original opinion subject headings have been replaced by standardised abstracts. We have added case and other references in footnotes where these were not given in the original opinion. Obvious errors have been corrected.
Biographical footnotes in relation to departmental and public figures who are mentioned were compiled by Adam Kirk and Carmel Meiklejohn with reference to the Australian Dictionary of BiographyBiography online, relevant parliamentary handbooks and the Oxford Companion to the High Court (2001). Some personal references have been made anonymous.
Peter Benson compiled the abstracts at the head of each opinion.
In addition to the biographical footnotes, we have included longer but still brief biographies of the Attorneys-General, Solicitors-General and Secretaries of the Department in the period, compiled by Carmel Meiklejohn. The National Library of Australia and the National Archives of Australia assisted with photographs and in other ways.
The indexes were developed by Michael Harrington.
This project has been greatly assisted by the AGS librarians – in particular, Cheryl Brickell, National Manager, Library Services and Robyn Nielsen, Reference Librarian. David Whitbread, Corporate Communications Manager in AGS, has managed the production of this volume.
We very warmly thank all these people, who have given significantly of their skills, enthusiasm and time to bring this publication to fruition.
This publication is accompanied by two other important projects. The first is the publication of Volumes 1, 2 and 3 of the Opinions of Attorneys-General of the Commonwealth of Australia online at: legalopinions.ags.gov.au. Availability online will give much greater exposure to the opinions. It will make them much more accessible to members of the legal profession, historians, members of the government and the public service, students and members of the public. It will enable the opinions to be more easily searched. Online publication will also allow us to maintain quality control of the resource and more easily develop and expand it further.
The second project is the digitisation of the significant number of opinions from 1901 to 1923 which were not in either the published Opinions of Attorneys-General of the Commonwealth of Australia or the internal electronic Opinions Database which the Department and AGS share.
Until recently, the only opinions in digital form for the 1901–23 period were those which were published in Volumes 1 and 2 of the Opinions of Attorneys-General of the Commonwealth of Australia. This was only about 21 per cent of the opinions provided. The only copy of the full set of these original opinions for this period were the hard-copy bound volumes of the Opinion Book which were held by the National Archives of Australia. A range of important opinions, including by Alfred Deakin, the first Attorney-General, and other early Attorneys-General, were not in digital form and were only held in this original paper form by the National Archives.
Many of these original opinions are in poor condition and are deteriorating rapidly. Without digitisation, they would have been lost forever. AGS, the National Archives of Australia and the Department have therefore jointly undertaken and funded a project to digitise all the paper opinions from the 1901–23 period.
Chief Executive Officer
Australian Government Solicitor