Solicitor General for New South Wales
Solicitor General for New South Wales | |
---|---|
Department of Justice | |
Appointer | Governor of New South Wales |
Term length | 10 years |
Inaugural holder | John Stephen |
Formation | 8 August 1824 |
Website | NSW Department of Justice |
Solicitor General for New South Wales, known informally as the Solicitor General, is one of the
The Solicitor General is addressed in court as "Mr Solicitor" or "Ms Solicitor". Despite the title, the position is usually held by a
Modern office and function
The Solicitor General operates under the provisions of the Solicitor General Act 1969.[1] The retirement age is set at 75.[1] The Solicitor General acts as Counsel for the Crown in the High Court of Australia and other courts, and advises the Attorney General on civil and criminal matters, including issues of constitutional law.[2] Until 1987, the Solicitor General had the power to initiate Crown appeals at the Court of Criminal Appeal in NSW, it then became the responsibility of the Director of Public Prosecutions.[3]
While
History
Colonial official
The office of Solicitor General was created in 1824 following the inquiry by John Bigge between 1819 and 1821 into the colonies of NSW and Van Diemen's Land.[6] Bigge's 1823 report on judicial establishments recommended the appointment of a barrister as attorney-general. Bigge set out the primary duty of the attorney-general as being the preparation of indictments and informations and prosecuting them in court. The attorney-general would have discretion whether or not to charge a person.[7] Bigge did not directly recommend the appointment of a solicitor-general, but rather that two English barristers should be encouraged to practice in the colony.[8]
One of the first cases in which Stephen argued as Solicitor-General,[18] saw him appearing for the Magistrates of Sydney in opposition to the Attorney-General concerning trial by jury.[19] D'Arcy Wentworth was one of the leaders of an 1819 petition seeking both trial by jury and the establishment of representative government.[20] Bigge had recommended against trial by a civilian jury,[21] and the House of Commons had narrowly defeated a proposal that juries be introduced for criminal trials, prior to passing the New South Wales Act 1823 which prescribed military juries for criminal trials before the Supreme Court. Bannister advised Governor Brisbane that the establishment of a Court of Quarter Sessions required the same composition as in England, including a civilian jury. Stephens disagreed in a written advice to Wentworth who was one of the Magistrates. Castles describes the case that followed as a fabricated cause, set in train by Wentworth, in which the Attorney-General sought an order requiring the magistrates to assemble juries.[22] Chief Justice Forbes held that civilian juries were required for Court of Quarter Sessions.[19]
In 1828 there was a dispute between Alexander Baxter and John Sampson as to their respective duties. Governor Darling resolved the dispute by making the Attorney General primarily responsible for criminal prosecutions and drafting legislation, while the Solicitor General was primarily responsible for civil matters.[23]
While a
Political office
Representative government was introduced in New South Wales in 1856 and the Solicitor General became an official member of the government, one of 5 offices of profit under the Crown that were permitted to be held by a member of the Legislative Assembly.[29] In addition to the work in and out of court, the Solicitor-General took on additional legislative and administrative responsibilities, including representing the government in debates on legal matters and drafting bills.[30] While there were two legal officers in the ministry, there was however only one portfolio, the law officers of the crown, with the Attorney General and Solicitor General jointly responsible for its administration.[31]
In 1873 the Attorney General
The
In October 1900 the Secretary of the Attorney-General's department, Hugh Pollock, was appointed to the role.[36] This does not appear to have been controversial at the time with The Evening News describing the appointment as purely a formal one.[37] Pollock was again appointed in July 1901,[38] however on this occasion the appointment was controversial because
- Pollock was a public servant, not a member of parliament and not responsible to parliament;
- While Pollock had been called to the bar in 1890,[39] he had not practised as a barrister and his appointment as the second law officer saw the law almanac list him as second in seniority behind the Attorney General;[35][40]
- The appointment was at the Governor's pleasure such that the role did not fall with the fall of the government, nor could he be removed from the role by the legislative assembly.[41]
Pollock resigned in October 1904 and was appointed a Crown Prosecutor.[42]
The role was again revived in December 1909 in the
The role was revived as a political office in the Holman Nationalist ministry, held in conjunction with the portfolio of Justice and as a separate portfolio in the Storey, first and second Dooley ministries, before being abolished as a political office in the Fuller ministry in 1922.
Public servant
In 1922 the Attorney General
Statutory office
The purpose of making the role a statutory office was to formalise the manner in which the role had been performed since 1922 and to permit the Attorney General to delegate functions and for the Solicitor General to act in the absence of the Attorney General. The bill was not controversial and was supported by the opposition.[55][56] The act had a number of qualifications to the appointment, including that the person must not be a Minister of the Crown. Initially the person was required to be a Queen's Counsel,[57] however this was removed in 1993 when the appointment of Queen's Counsel was abolished in NSW and instead the person must be "an Australian lawyer of at least 7 years’ standing".[58] Both appointments since 1993 have been Senior Counsel. The retirement age was initially 70, increased to 72 and is currently 75.[1]
Office-holders
Solicitors General, 1824–1922
# | Image | Solicitor General | Status | Ministry | Term start | Term end | Time in office | Notes | |
---|---|---|---|---|---|---|---|---|---|
1 | John Stephen | Government official, not a member of Legislative Council |
Prior to responsible government |
11 August 1824 | 17 August 1825 | 1 year, 6 days | [59][60][61] | ||
James Holland | Appointed in 1826 but never sworn in. | [30] | |||||||
2 | William Foster | 3 September 1827 | 1 April 1828 | 211 days | [62][63] | ||||
3 | John Sampson | 15 March 1828 | 27 October 1829 | 1 year, 226 days | [64][65] | ||||
Edward MacDowell | Appointed in 1830 but failed to take up his duties promptly | [30][66] | |||||||
4 | John Plunkett [a] | 14 June 1832 | 16 September 1836 | 4 years, 94 days | [30] | ||||
5 | William à Beckett | Government official, not a member of Legislative Council |
Prior to responsible government |
20 March 1841 | 30 August 1844 | 3 years, 163 days | [68] | ||
6 | William Manning | 31 August 1844 | 11 January 1848 | 3 years, 133 days | [30] | ||||
(2) | William Foster | 12 January 1848 | 19 November 1849 | 1 year, 311 days | [30] | ||||
(6) | William Manning | Government official, appointed MLC from 1851, no party | 20 November 1849 | 5 June 1856 | 6 years, 198 days | [28][30] | |||
7 | John Darvall | MLA, no party | Donaldson | 6 June 1856 | 25 August 1856 | 80 days | [30] | ||
8 | Alfred Lutwyche | MLC, no party | Cowper (1) | 12 September 1856 | 2 October 1856 | 20 days | [30] | ||
(7) | John Darvall | MLA, no party | Parker | 3 October 1856 | 23 May 1857 | 232 days | [30] | ||
9 | Edward Wise | MLC, no party | 23 May 1857 | 7 September 1857 | 107 days | [30] | |||
(8) | Alfred Lutwyche | MLC, no party | Cowper (2) | 7 September 1857 | 14 November 1858 | 1 year, 68 days | [30] | ||
10 | William Dalley
|
MLA, no party | 15 November 1858 | 11 February 1859 | 88 days | [30] | |||
11 | QC
|
MLC, no party | 21 February 1859 | 26 October 1859 | 1 year, 39 days | [30] | |||
Forster | 3 November 1859 | 31 March 1860 | |||||||
Cowper (3) | 1 August 1863 | 15 October 1863 | 75 days | ||||||
12 | Peter Faucett | MLA, no party | Martin (1) | 16 October 1863 | 2 February 1865 | 1 year, 109 days | [30] | ||
(11) | QC
|
MLC, no party | Cowper (4) | 3 February 1865 | 21 June 1865 | 138 days | [30] | ||
13 | Robert Isaacs | MLA, no party | Martin (2) | 22 January 1866 | 26 October 1868 | 2 years, 278 days | [30] | ||
14 | Joshua Josephson | MLA, no party | Robertson (2) | 27 October 1868 | 9 September 1869 | 317 days | [30] | ||
15 | Julian Salomons | MLC,[b] no party | 18 December 1869 | 15 December 1870 | 362 days | [30][69] | |||
Cowper (5) | |||||||||
16 | William Windeyer | MLA, no party | Martin (3) | 16 December 1870 | 13 May 1872 | 1 year, 149 days | [30] | ||
17 | Joseph Innes | MLA, no party | Parkes (1) | 14 May 1872 | 19 November 1873 | 1 year, 189 days | [30] | ||
18 | Richard O'Connor
|
MLC, Protectionist | Dibbs (3) | 19 July 1893 | 13 September 1893 | 56 days | [70][c] | ||
19 | George Reid KC | MLA, Free Trade | Reid | 21 December 1894 | 5 March 1895 | 74 days | [30][c] | ||
Reid | 19 December 1895 | 20 April 1896 | 123 days | ||||||
Reid | 22 December 1896 | 9 February 1897 | 49 days | ||||||
Reid | 27 April 1898 | 7 October 1898 | 163 days | ||||||
Reid | 3 January 1899 | 1 May 1899 | 118 days | ||||||
20 | Hugh Pollock | Public servant, not a member of Parliament [d] | 22 July 1901 | 6 October 1904 | 3 years, 76 days | [30][38][42] | |||
21 | John Garland | MLC, Liberal Reform | Wade | 21 December 1909 | 20 October 1910 | 303 days | [30] | ||
22 | Walter Bevan | Public servant, not a member of Parliament | 15 March 1911 | 4 April 1912 | 1 year, 20 days | [30][45][71] | |||
23 | David Hall | MLC, Labor | McGowen Holman (1) |
4 April 1912 | 28 January 1914 | 1 year, 301 days | [30][49][72] | ||
24 | William Holman | MLA, Labor | Holman (1) | 19 January 1915 | 6 February 1915 | 18 days | [30] | ||
(21) | John Garland KC | MLC, Nationalist | Holman (2) | 16 November 1916 | 23 July 1919 | 2 years, 249 days | [30][73] | ||
25 | Jack FitzGerald | 23 July 1919 | 12 April 1920 | 264 days | [30][74] | ||||
26 | Robert Sproule | MLC, Labor | Storey Dooley (1) (2) |
15 April 1920 | 13 April 1922 | 1 year, 363 days | [30] | ||
27 | QC
|
Public Servant | Appointed by Fuller (2) | 27 December 1922 | 5 May 1953 | 30 years, 130 days | [51][75] | ||
28 | QC
|
Appointed by Cahill (2) | 18 August 1953 | December 1969 | 21 years, 25 days | [52] | |||
Statutory office | Appointed by Askin (3) | December 1969 | 12 September 1974 | ||||||
29 | QC
|
Appointed by Askin (6) | September 1974 | March 1978 | 3 years, 181 days | [30] | |||
30 | QC
|
Appointed by Wran (2) | February 1979 | February 1981 | 2 years, 0 days | [30] | |||
31 | QC
|
Appointed by Wran (3) | 16 February 1981 | February 1987 | 5 years, 350 days | [30] | |||
32 | QC
|
Appointed by Unsworth | February 1987 | February 1997 | 10 years, 0 days | [30] | |||
33 | Leslie Katz SC | Appointed by Carr (1) | July 1997 | September 1998 | 1 year, 91 days | ||||
34 | Michael Sexton SC | Appointed by Carr (2) | October 1998 | present | 25 years, 210 days |
See also
Notes
- ^ Plunkett was appointed to the Legislative Council on 19 April 1836 when he became Acting Attorney-General.[67]
- ^ Salomons was not appointed to the Legislative Council until 11 August 1870, 7 months after his appointment as Solicitor General.[69]
- ^ Richard O'Connor and George Reid were temporarily appointed to allow them to deputise for the Attorney-General in his absence.[34]
- ^ Pollock's appointment was controversial because he was a public servant as Secretary of the Attorney-General's department and had never practiced as a barrister.[35]
References
- ^ a b c Solicitor General Act 1969 (NSW) s 2 Appointment of Solicitor General.
- ^ "Solicitor General". NSW State Records. NSW Government. Retrieved 19 September 2015.
- ^ Nader QC, John (2011). "The failed art of sentencing offenders" (PDF). Bar News. NSW Bar Association. Retrieved 19 September 2015.
- Freeman's Journal. New South Wales, Australia. 28 June 1856. p. 2. Retrieved 30 January 2019 – via Trove.
- ^ "NSW silk appointments". NSW Bar Association. Retrieved 30 January 2019.
- ^ John Thomas, Bigge (1823). Report of the Commissioner of Inquiry on the judicial establishments of New South Wales and Van Diemen's Land.
{{cite book}}
:|work=
ignored (help) - ^ Bigge 2nd Report (1923), p. 58.
- ^ Bigge 2nd Report (1923), p. 61.
- ^ "Historical records of Australia : Despatches to and from Sir Thomas Brisbane January 1823 to November 1825". 1917. pp. 198–199.
- ^ a b c Appleby, G (28 September 2012). "The Constitutional Role of the Solicitor-General" (PDF). Retrieved 21 January 2019.
- ISSN 1833-7538. Retrieved 23 February 2019.
- ^ "Historical records of Australia : Despatches to and from Sir Thomas Brisbane January 1823 to November 1825". 1917. pp. 883–884.
- ^ "Historical records of Australia : Despatches to and from Sir Thomas Brisbane January 1823 to November 1825". 1917. pp. 197–198.
- ^ "Historical records of Australia : Despatches to and from Sir Thomas Brisbane January 1823 to November 1825". 1917. pp. 140–141.
- ^ "Historical records of Australia : Despatches to and from Sir Thomas Brisbane January 1823 to November 1825". 1917. pp. 198–199.
- ^ "Historical records of Australia : Despatches to and from Sir Thomas Brisbane January 1823 to November 1825". 1917. p. 486.
- ^ Alexander Home, The Law Officers, House of Commons Library research briefing
- ^ Stephen was present in court in Division of the Profession (Bar Monopoly Case) [1824] NSWSupC 17 (14 September 1824), Supreme Court (NSW), however there is no record of him presenting any argument in the matter.
- ^ a b R v Magistrates of Sydney [1824] NSWSupC 20, [1824] NSWKR 3 (14 October 1824), Supreme Court (NSW)
- ISSN 1833-7538. Retrieved 23 February 2019.
- ^ Bigge 2nd Report (1923), p. 53.
- ^ Castles, Alex C. "The Judiciary and Political Questions: The First Australian Experience, 1824-1825" (PDF). (1975) 5(3) Adelaide Law Review 294.
- ^ Watson, Frederick; Chapman, Peter, Historical records of Australia, retrieved 2 September 2022 – via Trove
- The Sydney Gazette and New South Wales Advertiser. 16 July 1829. p. 1. Retrieved 23 February 2019 – via National Library of Australia.
- ^ R v Kilmeister (No 1) [1838] NSWSupC 105.
- ^ R v Kilmeister (No 2) [1838] NSWSupC 110.
- New South Wales Government Gazette. No. 23. 23 March 1841. p. 405. Retrieved 2 September 2022 – via Trove.
- ^ New South Wales Government Gazette. No. 23. 28 February 1851. p. 363. Retrieved 6 September 2022 – via Trove.
- ^ New Constitution Act 1853 (NSW) s20 "Any person holding any office of profit under the Crown or having a pension from the Crown during pleasure or for term of years shall be incapable of being elected or of sitting or voting as a Member of the Legislative Assembly unless he be one of the following Official Members of the Government that is to say the Colonial Secretary Colonial Treasurer Auditor General Attorney General and Solicitor General".
- ^ a b c d e f g h i j k l m n o p q r s t u v w x y z aa ab ac ad ae af ag ah ai Mason, K, The Office of Solicitor General for New South Wales (PDF) (1988 Autumn) Bar News: Journal of the NSW Bar Association 22.
- New South Wales Government Gazette. No. 155. 9 October 1856. p. 2662. Retrieved 6 September 2022 – via Trove.
- ^ "PFO-5 Justice and Public Instruction". NSW State Records & Archives. Retrieved 29 December 2020.
- ^ Constitution Act Amendment Act of 1884 (NSW).
- ^ ISBN 9781509903962.
- ^ ISBN 9781317073338. Retrieved 19 January 2019.
- New South Wales Government Gazette. No. 947. 5 October 1900. p. 7885. Retrieved 6 September 2022 – via Trove.
- ^ "Solicitor General: Mr H Pollock appointed". The Evening News. 6 October 1900. p. 6. Retrieved 6 September 2022 – via Trove.
- ^ Government Gazette Of The State Of New South Wales. No. 650. 31 July 1901. p. 5929. Retrieved 6 September 2022 – via Trove.
- ^ NSW law Almanac 1901 (PDF)
- ^ NSW law Almanac 1902 (PDF), p. 38
- ^ "The Solicitor-General - Mr Pollock's appointment: its legality questioned". The Daily Telegraph. 30 August 1901. p. 6. Retrieved 6 September 2022 – via Trove.
- ^ a b "Resignation of Solicitor General (564)". Government Gazette of the State of New South Wales. 14 October 1904. p. 7735. Retrieved 14 July 2021 – via Trove.
- ^ "NSW silk appointments". NSW Bar Association. Retrieved 20 July 2021.
- ^ "Commission as King's Counsel". Retrieved 20 July 2021 – via NSW State Records & Archives.
- ^ a b "Appointment of Walter Bevan, Esquire to be Solicitor-General". Government Gazette of the State of New South Wales. No. 33. 15 March 1911. p. 1543. Retrieved 23 January 2019 – via Trove.
"Appointment of Walter Bevan, Esquire to be Solicitor-General". Government Gazette of the State of New South Wales. No. 94. 26 July 1911. p. 3970. Retrieved 23 January 2019 – via Trove. - ^ Wagga Wagga Express. 4 April 1912. p. 2. Retrieved 8 September 2022 – via Trove.
- ^ "Central Criminal court: Glebe murder trial". The Sydney Morning Herald. 26 January 1912. p. 3. Retrieved 7 September 2022 – via Trove.
- ^ "Legal advisor for the Upper House". The Sydney Morning Herald. 3 June 1911. p. 14. Retrieved 7 September 2022 – via Trove.
- ^ a b "Appointment of the Honourable David Robert Hall, MLC, to be also Solicitor-General". Government Gazette of the State of New South Wales. No. 49. 10 April 1912. p. 2229. Retrieved 1 February 2019 – via Trove.
- ^ "Mr. C. E. Weigall". The Sydney Morning Herald. 22 November 1922. p. 13. Retrieved 8 September 2022 – via Trove.
- ^ ISSN 1833-7538. Retrieved 20 September 2015.
- ^ ISSN 1833-7538. Retrieved 20 September 2015.
- ^ Freightlines and Construction Holding Ltd v New South Wales [1967] UKPC 10, (1967) 116 CLR 1 (10 April 1967), Privy Council (NSW)
- ^ Solicitor General Act 1969 No 80 (NSW)
- ^ Ken McCaw (1 October 1969). "Solicitor General Bill". Parliamentary Debates (Hansard). New South Wales: Legislative Assembly. pp. 1475–1481.
- ^ John Fuller (18 November 1969). "Solicitor General Bill". Parliamentary Debates (Hansard). New South Wales: Legislative Council. pp. 2681–2687.
- ^ Solicitor General Act 1969 (NSW) s 2.
- ^ Legal Profession Reform Act 1993 (NSW) Schedule 1 (abolition of Queen's Counsel) and Schedule 5 (amendment of the Solicitor General Act 1969).
- ISSN 1833-7538. Retrieved 19 September 2015.
- The Sydney Gazette and New South Wales Advertiser. 12 August 1824. p. 1. Retrieved 19 January 2019 – via Trove.
- ^ "John Stephen Esq appointed additional judge of the Supreme Court". The Australian. 18 August 1825. p. 1. Retrieved 19 January 2019 – via Trove.
- The Sydney Gazette and New South Wales Advertiser. 3 September 1827. p. 2. Retrieved 19 January 2019 – via Trove.
- ^ "Domestic intelligence". Colonial Advocate, and Tasmanian Monthly Review and Register]]. 1 April 1828. p. 52. Retrieved 19 January 2019 – via Trove.
- The Sydney Gazette and New South Wales Advertiser. 17 March 1828. p. 1. Retrieved 19 January 2019 – via Trove.
- The Sydney Gazette and New South Wales Advertiser. 29 October 1829. p. 2. Retrieved 19 January 2019 – via Trove.
- ^ Watson, Frederick; Chapman, Peter, Historical records of Australia, pp. 373–374, retrieved 2 September 2022 – via Trove
- ^ "Mr John Hubert Plunkett QC (1802-1869)". Former members of the Parliament of New South Wales. Retrieved 19 April 2019.
- ISSN 1833-7538. Retrieved 20 September 2015.
- ^ ISSN 1833-7538.
- ^ "The Hon. Richard Edward O'Connor, QC (1851-1912)". Former members of the Parliament of New South Wales. Retrieved 20 June 2020.
- Barrier Miner. 11 December 1926. p. 5. Retrieved 25 March 2019 – via Trove.
- ^ "Appointment of the Honourable David Robert Hall, MLC, to be also Solicitor-General". Government Gazette of the State of New South Wales. No. 106. 2 July 1913. p. 4127. Retrieved 1 February 2019 – via Trove.
- ^ "Appointment of the Honorable John Garland, KC, MLC, to be also Solicitor-General". Government Gazette of the State of New South Wales. No. 187. 16 November 1916. p. 6738. Retrieved 1 February 2019 – via Trove.
- ^ "Appointment of the Honourable John Daniel FitzGerald MLC to be also Solicitor General". Government Gazette of the State of New South Wales. No. 183. New South Wales, Australia. 23 July 1919. p. 4060. Retrieved 1 February 2019 – via Trove.
- ^ "G.O.M. retires at 83". The Daily Telegraph. 6 May 1953. p. 15. Retrieved 15 September 2022 – via Trove.