The Attorney-General and Cabinet: Some Australian Precedents

Abstract

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 a case of importing a British convention after it had evolved in the United Kingdom. When the federal Attorney-General, Mr Ellicott, resigned in 1977, both he and the Prime Minister stated that Cabinet should not interfere with decisions to start or discontinue criminal proceedings. It would, however, be premature to regard this as a firmly 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.