Panel of the Solicitors General – Adelaide University John Bray Alumni Network, 29 April 2021
In the Exhibition Hall of the National Wine Centre, a pretty remarkable gathering took place: 6 Solicitors-General for South Australia presented thoughts on their respective tenure. The main image shows the panel: L-R Gray QC, Doyle QC, Kourakis CJ, John Williams (Executive Dean, Faculty of the Professions, as MC), Hinton QC, Bleby J, Wait SC (and facilitator and introducer Judge Katrina Bochner). That photo, incidentally, was snapped before proceedings commenced – the crowd was actually very healthy, even though, curiously for the NWC, no wine was available in the room.
A Solicitor-General is the senior legal officer of the Crown, in right of a state or the Commonwealth. Thus, rather than a common or garden Queen’s Counsel, the S-G actually does counsel the Queen. The work primarily involves giving confidential legal advice to the government of the day but in its more public and glamorous (and at times terrifying) aspect it means representing the Crown in important cases, especially constitutional cases, particularly at appellate level: in other words, rising and persuading the planet-sized brains of the High Court of Australia. This was the main focus of the speakers, although each tackled their brief in a different and equally entertaining and stimulating way.
The Hon Malcolm Gray QC (S-G 1978–86) – ‘One Common Law’. Gray QC opened on the topic, requiring him to deal with a case in which he appeared for the unsuccessful appellants (Lipohar v R), after he had ceased to be S-G. That case, involving a heroic attempt to establish that a criminal act outside a State, but intended to produce and producing detrimental effects within it, did not give that State jurisdiction to try the offence, effectively meant concluding there was more than one common law system in Australia. This gave rise to exchanges in the High Court as to how many common law systems there were, apparently provoking Justice Gummow to snarl from the bench, “Just one, and you’re looking at it.”* Gray QC then discussed the interesting matter of Brown v R  HCA 11, where the Court concluded that a trial of a Commonwealth indictable offence had to be by jury, because of section 80 of the Constitution.
The Hon John Doyle AC QC (S-G 1986–95) – John Doyle spoke about appearing before the Mason Court (the so-called “activist” court) during his stint as S-G, involving such key cases as Dietrich v R (accused’s right to counsel). He remembered Sir Anthony Mason as epitomizing a kinder, gentler court, that “gave counsel a go before revving up the chainsaw.” This in contrast to the Court under Sir Garfield Barwick.**
The Hon Chief Justice Chris Kourakis (S-G 2005–08) – The Chief Justice looked at the High Court’s stance on Judicial Power as an important fetter on executive overreach, a matter of great importance especially to Gummow and Hayne JJ. He pointed to the Court’s decision in SA v Totani  HCA 39, where the South Australian government’s attempt to bring outlaw motorbike gangs to heel was derailed, the Court frostily affirming that the “reputation of the judicial branch may not be borrowed by the legislative and executive branches to cloak their work in the neutral colors of judicial action.” He made a compelling point that drawing individual freedoms out of the Judicial Power in Chapter III of the Constitution might not always be fit for purpose – such as in the realm of social media regulation. He ended with a nice account of an exchange between a senior counsel and Chief Justice Gleeson, where counsel cited a case in which barrister Gleeson had made an argument in accord with the case at bar. Gleeson, not apparently flattered as may have been the intention, replied drily: “But that counsel would say anything for money.”
Mr Martin Hinton QC (S-G 2008–16), Director of Public Prosecutions, following on from his predecessor, from whom he inherited the baguette de merde of Totani. Taking as his subject ‘Bikies and the French Court’, (that’s Justice French, not the Cour de cassation), Martin Hinton described his 3 hour session before the Court in that case as one of the hardest in his career. Explaining that the states had to do something to combat the outrages of the Comancheros, Hells Angels, Finks, et al, he conceded that it took awhile for the various governments to take their cue from the Court in cases such as Totani and Kable. He also had some words of wisdom that may inspire some of the younger legal eagles in the hall – he spoke of the great experience of seeing some of the nation’s best minds at play on difficult and important work, citing Justices Gummow and Hayne in their efforts to develop a truly Australian common law, or the sight of super barristers like Bret Walker and Stephen Gageler in full flight. It sorted well with the peroration at the conclusion of the evening by John Williams, that whilst South Australia should have had a justice on the High Court by now, perhaps from amongst the panel, that honour might someday be accorded to someone in the room [though not this writer – Ed.].
The Hon Justice Chris Bleby (S-G 2016–2020) came to office at about the same time as Susan Kiefel became the first female Chief Justice of the High Court. That Court was a pleasure to appear before and His Honour dealt primarily in his address with the knotty problem of the Implied Freedom of Political Communications, the Court’s attempt to fuse natural law and the invisibly inked human rights located somewhere in the Constitution’s darker but enlightened corners. Bleby J looked at that complicated balancing act involving freedom of speech (McCloy v NSW  HCA 34), freedom of protest (Brown v Tasmania  HCA 43) and of movement (Palmer v WA  HCA 5). This requires consideration of structured proportionality, and whether the legislative burden on the freedom was “appropriate and adapted” to the achievement of its legislative purpose such that the burden imposed was incidental and not disproportionate: concepts too thorny, and to your correspondent, too impenetrable, to discuss here.
Mr Mike Wait SC (S-G 2020-present) – although he had successfully argued Palmer v WA (by keeping his head down and relying on written submissions), Wait SC preferred not to take hostages to fortune by discussing judicial officers he might again encounter. Instead, he concentrated on the ‘Evolution of Australian Independence and the Australia Acts,’ which seems at first an esoteric, theoretical and dry-as-dust topic. However, our case-by-case development of law relies on real people with real problems, and here, such legal considerations arise because of a gentleman called Frederick Chetcuti. Fred came to Australia in 1948 but since then has done time for murder and assault. Eventually, the Federal authorities took notice of him and cancelled his visa. He is arguing that they can’t do that because he arrived in Australia as a British subject, thus he is not an alien and cannot lawfully be detained or removed from Australia as an unlawful non-citizen. This has thrown up an interesting question, not hitherto answered definitively by the High Court: when did Australia become a sovereign nation? If after 1948, Fred triumphs (at least on that point); if before, he’s ‘leaving on a jet plane.’
Your writer would have thought 1931 was the ‘operative date,’ when the Statute of Westminster was enacted (or 1942, when it was formally adopted). However, it seems there have been many differing opinions over the years (which is why the law, with its great grey scope for uncertainty, is beloved of lawyers and detested by clients). Dates of 1901, 1926, 1948, 1973 and 3 March 1986 (@ 5 am, Greenwich Mean Time) have been suggested, for varying reasons. The diversity reminds one of the annual talkfest about the best date for ‘Australia Day‘! Justice Nettle, at first instance in the Chetcuti case, settled on the adoption by Australia of the Statute of Westminster, but we will eventually find out if the current members of the Court agree.
All in all, this was an entertaining and vivifying evening, well arranged and presented, managing to cover essential concepts in life and the law. South Australia can be proud of its “Think Tank.”[* Verified by another distinguished member of the panel.] [** My first boss recalled his first appearance before Barwick, on a complicated industrial case. Having called on Sir Garfield before the hearing, on the (possibly erroneous) impression maiden counsel should present his credentials, Barwick, hugely tickled, intervened enthusiastically during the hearing to give unwarranted priority to this obscure young barrister.]