The Attorney-General and Cabinet: Some Australian Precedents
| Author | R. Plehwe |
| DOI | 10.1177/0067205X8001100101 |
| Published date | 01 March 1980 |
| Date | 01 March 1980 |
| Subject Matter | Article |
THE
ATTORNEY-GENERAL AND CABINET:
S,OME
AUSTRALIAN PRECEDENTS
By R. PLEHWE:I:
In Britain the Attorney-General is free from Cabinet control in
deciding whether or not to initiate prosecutions or to terminate
criminal proceedings. This article discusses the question whether the
British rule applies in Australia.
It
examines the Mercantile Bank
case (Victoria, 1893), the termination by federal authorities
of
the
proceedings against John Brown in 1929, and evidence provided by
federal Cabinet minutes before 1946.
It
seems that the British rule
was not established in Australia before World War II.
If
Australian
Attorneys-General are now regarded as exercising an independent
authority, this is probably acase
of
importing aBritish convention
after it had evolved in the United Kingdom. When the federal
Attorney-General, Mr Ellicott, resigned in 1977, both he and the
PrimeMinisterstatedthat Cabinetshould not interfere with decisions
to start or discontinue criminal proceedings.
It
would, however, be
premature to regard this as afirmly established convention and it is
clear that there were grave differences between Mr Ellicott and his
colleagues
as
to some practical implications
of
the rule.
IntrOduction
The resignation of the Australian Attorney-General, Mr R. Ellicott,
in September 1977, raised questions about the extent to which the
Attorney-General
is
or should be free from Cabinet control in deciding
whether or not prosecutions should be instituted or criminal proceedings
terminated. It occurred at atime when the question of how prosecutorial
decisions should be made, and of accountability for such decisions, was
being debated in several common law countries. In the United States,
the events connected with Watergate had led to proposals for the
creation of an independent special prosecutor to investigate suspected
crimes by high
officials;1
the Gouriet case2in Great Britain had caused
judges to consider whether they should review the Attorney-General's
decision to grant or withhold his
fiat
for arelator action; in 1977 the
British Government appointed aRoyal Commission on Criminal
Procedure which, inter alia,
was
to consider "the process of and respon-
sibility for the prosecution of criminal offences";3 and the Australian
Law Reform Commission has published adiscussion paper in which,
without putting forward adefinite view, it argues that the Attorney-
*B.A., LL.B.
(Tas.),
Ph.D.
(Duke);
Senior Lecturer in Politics,
La
Trobe
University. I
am
indebted to Professor E. K. Braybrooke, who
read
the text
and
made helpful comments. Ialone
am
responsible for errors.
1Edwards, "The Integrity
of
Criminal
Prosecutions-Watergate
Echoes beyond
the Shores
of
the United States" (1979) 5Commonwealth Law Bulletin 879.
2Gouriet
v.
Attorney-General [1978] A.C. 435.
3"Another Royal Commission" [1977] Criminal Law Review 441.
1
2Federal Law Review
[VOLUME
11
General may, under the present system, be faced by aconflict of interests
and that "there would appear to be merit in establishing an independent
statutory officer charged with the duty of determining what indictments
are to be laid".4
It
envisaged that the Attorney-General might still give
directions to such an officer, but that these would have to be laid before
Parliament.
Given this wide-ranging debate, it may be useful to examine
Australian practice concerning the relationship between the Attorney-
General and Cabinet. In the United Kingdom, the situation has been
fairly clear since the Campbell case of 1924.
In
that year, Sir Patrick
Hastings, the Attorney-General in the minority Labour Government,
authorised aprosecution in respect of an article in the Communist
Workers Weekly. The prosecution was subsequently withdrawn, and
there were allegations that improper pressure had been exerted by
members of the Cabinet. The Conservatives introduced amotion of
censure, but accepted aLiberal amendment calling for aSelect Com-
mittee to inquire into the matter. The amended motion was carried, and
the Government obtained adissolution, but lost the subsequent election.a
As Edwards has shown, this case led to acrystallisation of the modem
rule that decisions to start
or
discontinue prosecutions are for the
Attorney-General alone; he may, and in some cases ought, to consult his
colleagues and they may put to him arguments concerning the public
interest, though not considerations of partisan political interest; but
Cabinet should not instruct him to follow aparticular course of action.6
There is much less evidence on the position in Australia.
In
1973
Campbell and Whitmore surmised that the British rule would probably
be endorsed by Australian Attorneys-General, but pointed out that
"no
occasion [appeared] to have arisen for any Minister to explain
publicly what the relationship between the Attorney-General and Cabinet
is".7 Since then of course,
Mr
Ellicott's resignation has furnished the
occasion for some ministerial statements on the question; Edwards
draws attention to some incidents which suggest that the Attorney-
General's independence is not
as
firmly established in Australia as it
is
4Law Reform
Commission-Australia.
Discussion Paper
No.4,
Access to the
Courts-I
Standing: Public Interest Suits 24.
I)
(1924) 177 H.C. Deb. 5s. cols. 581-704; Edwards, The
Law
Officers
of
the
Crown (1964) 199-225.
6Ibid.; Shawcross, "The Office
of
Attorney-General" (1953-1954)
VII
Parlia-
mentary Affairs 380-392; statement by Harold Macmillan, (1958-1959) 600 H.C.
Deb. 5s. col. 31; Sir Peter Rawlinson, letter to The Times (London)
17
June
1975. Marshall and Moodie rightly point
out
that the Campbell case itself did not
conclusively establish the conclusions that have since been drawn from it: Some
PrOblems
of
the Constitution (4th ed. 1967) 149.
7Campbell and Whitmore, Freedom in Australia (1973) 118. There had in fact
been adebate on the matter in pre-federation Victoria, but its value as aprecedent
is
doubtful.
The
episode
is
discussed infra.
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