An analysis of the office of Attorney General in Australia and directions for the future

© 2007 Dr. Fiona HanlonIt is often assumed that the office of Attorney General in Australia carries with it an obligation to act independently of political considerations that does not apply to other ministerial offices. This is the orthodox view. There is, however, another view, the heterodox view, of the office of Attorney General, according to which the ministerial office that bears the title ‘Attorney General’ cannot be distinguished from other ministerial offices in any significant respect. The question which this thesis considers is whether any reliable basis can be found for the orthodox view either in terms of the manner in which the office of Attorney General is constituted in the twenty-first century or at any time since its first establishment in Australia. The thesis identifies possible sources for the existence of an obligation to act independently and tests the accuracy of those sources against the historical and current operation of the office in Australia. Having carried out that analysis the thesis then examines options that could be considered for the future to assist the hopes and aims motivating the orthodox view of the office of Attorney General to be achieved. It is important to assess the legitimacy of the orthodox view because of the faith and trust that it places in the Attorney General in relation to the maintenance of the integrity or Australia's constitutional structures and the manner of the exercise or executive power. If it is unjustified then this belief and trust could result in the inappropriate allocation of important and largely un-reviewable responsibilities to the holder of the office. It may be time to let go of the title "Attorney General and adopt "Minister of Justice" instead. This will raise issues as to the ability of the Parliament to hold the executive to account, the independence of the judiciary both for the adjudication of matters before it and for its administration and how its expenditure of public funds can be authorised and scrutinised by the Parliament. Also raised will be the status and professional responsibilities of lawyers in government in the defence of the integrity of the legal and judicial system