Page 1625 - Week 06 - Thursday, 13 August 1992
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their own interest, the courts at first permitted any person desiring to do so to come forward to protect the King's rights in court. Before long, however, the King began to appoint attorneys to appear on his behalf. These officers were known as King's Attorneys. The office of King's Attorney was the forerunner of the modern office of Attorney-General of England.
A number of common law or inherent powers attach to the office of Attorney-General. These powers are prerogative powers which flow from the Attorney-General's role as first law officer and chief legal representative of the Crown. Many of the traditional powers of the Attorney-General have been modified by statute and are no longer as important as they once were. However, Australian Attorneys-General still exercise a number of important functions which contribute to the welfare of the government and the general community.
Examples of the functions with respect to the ACT are: To act as first law officer of the Crown and chief legal representative for the ACT and to provide legal advice to, and institute legal proceedings on behalf of, the ACT; to represent the Legislative Assembly in the prosecution of alleged contempts of the Assembly; to file a criminal information or indictment; to enter a nolle prosequi on an indictment; to enforce charitable or public trusts; to bring proceedings to enforce and protect public rights; to grant a fiat to give a private citizen standing to bring proceedings in the Attorney-General's name to enforce and protect public rights - and several such fiats have been granted in the ACT; to challenge the constitutional validity of any Commonwealth or State legislation which affects the public interest in the ACT; to institute proceedings for contempt when it is in the public interest to do so; and to apply for judicial review of a decision in order to deal with an error of law by a court or tribunal. The role of Attorney-General in each of the Australian jurisdictions is based on that of the Attorney-General of England, and each of the Attorneys-General exercises powers and functions which are consistent with those traditionally exercised by the Attorney-General of England.
Concern has been expressed, however, that the mode of appointment of the ACT Attorney might prevent the common law or inherent powers vesting in that office. This argument is based on the view that the powers of the Attorney-General are prerogative powers which Attorneys may exercise only as a consequence of their appointment by the Crown. In the ACT, the Attorney-General is appointed by the Chief Minister, who is appointed by this Assembly, rather than by the Crown or the Crown's representative.
It can be argued that the method of appointment of the Attorney-General does not determine whether the Attorney-General may exercise prerogative powers. The Australian Capital Territory (Self-Government) Act establishes both a Crown in right of the Territory and an ACT Executive. The Executive is, in accordance with the established framework of government in all other Australian jurisdictions, empowered to exercise the prerogative powers of the Crown on the Crown's behalf. It would be my view that, from that, it flows that such traditional powers do attach to this appointment, as they would to any other ministerial appointment under that system.
However, it is, in my opinion, necessary to enact legislation to confirm that the ACT Attorney-General has all the powers, duties and privileges normally inherent in the office of Attorney-General, as there have been remarks by various judges of the ACT Supreme Court which potentially cast doubt on whether
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