Australia's Attorney-General: Law, Politics and History

Abstract

The office of Attorney-General for the Commonwealth of Australia has existed since Federation on 1 January 1901. Its title references the English office of Attorney-General dating back to the fifteenth century and Australian colonial offices established during the nineteenth century. Aspects of the Commonwealth office's modern functions continue to echo some of that rich heritage. In other respects, the modern office bears little resemblance to its historical antecedents. That has contributed to debate and disagreement about the role of the modern office in law and politics, and the relationship and relevance of the office's past to its present and its future. This thesis seeks to explain the historical role of the Attorney-General for the Commonwealth. It argues that the office has historically involved a common and continuous core function: to facilitate, and to enhance perceptions of, lawful and just government. That core function can be observed in, and traced back through, the history of the English and colonial precursor offices. But whilst that core has remained stable, the practice of it has changed dramatically over time. This thesis seeks to identify that continuity and discontinuity in the office and correlate it with two variables in the context in which it has taken shape. The first contextual variable is continuity and change in the structural institutions of government. This includes the extent of concentration or diffusion of power amongst different institutions or branches of government over time. It also includes: the development of democratic, responsible and representative government in the nineteenth and early twentieth centuries, Federation in 1901, and nationhood and the exponential increase in the size and regulatory and administrative reach of Commonwealth government over the course of the twentieth century. The second contextual variable is changes in understandings of law and politics and their interaction. At different times, different theories and accounts have come to prominence about what law is, the extent to which it is independent of the political process (in the sense of a constraint on it) or instead an aspect or tool of politics. The word 'politics' has also been used differently in different contexts. For example, it has sometimes been used to describe the pursuit of the partisan self-interests of an individual, political party, or institution. Other times it features as a reference to the policy-making processes, functions and agenda of the executive and legislative branches of government. This thesis seeks to correlate changes in understandings of the role of the Attorney-General in law and politics over time with changes in broader understandings of law and politics and their interaction. By giving a new account of the office that identifies and explains the dynamics of continuity and change in the office over time with reference to these broader contextual developments, this thesis aims to allow us better to understand the nature of the office, how it has become what it is, and the parameters in which it exists. Show more