The solicitor-general of Australia (officially the solicitor-general of the Commonwealth) is the country's second highest-ranking law officer, after the Attorney-General for Australia. Following the resignation of Stephen Donaghue in December 2025, the position is vacant, pending the start of Ruth Higgins's term in June 2026.
The Commonwealth Solicitor-General gives the Australian federal government legal advice and appears in court to represent the Commonwealth's interest in important legal proceedings, particularly in the High Court. The Solicitor-General notably offered advice to the government and defended members of parliament in court during the Australian Parliamentary eligibility crisis. Unlike the Australian attorney-general or the same position in England and Wales, the solicitor-general is not a member of parliament.
History
thumb|Anthony Mason, Solicitor-General of Australia between 1964–1969.
The office was created in 1916 with the appointment of Sir Robert Garran. Prior to this, from 1903 to 1913 Sir Charles Powers had served as the first Commonwealth Crown Solicitor, which later became the Australian Government Solicitor. Sir Charles Powers was also sometimes referred to as the "Solicitor-General", but the two offices are separate: Powers was succeeded in 1913 as Crown Solicitor by Gordon Castle, whereas the first Solicitor-General, Robert Garran, was not appointed until 1916.
The creation of the role owed much to circumstances, when Attorney-General Billy Hughes became Prime Minister of Australia but retained his position as Attorney-General. Robert Garran had already been permanent secretary of the Attorney-General's Department since Federation, and the new position recognised the additional responsibilities that Hughes now delegated to him. The name "Solicitor-General" is taken from the title of the deputy of the Attorney General for England and Wales, first appointed in 1461, with the name "solicitor general" becoming standard from 1536. Unlike the Australian position however, the British position is by convention filled by a member of parliament.
Garran continued in the position of Solicitor-General and permanent head of the Attorney-General's Department until his retirement in 1932. His successor, George Knowles, inherited both positions as well as the position of Parliamentary Draftsman. The position of Parliamentary Draftsman became a separate role in 1946. The positions of Solicitor-General and permanent secretary to the Attorney-General's Department were not separated until 1964, when Anthony Mason became Solicitor-General but Ted Hook was appointed permanent secretary. The Law Officers Act (Cth), enacted that year, codified the role of the Solicitor-General as statutory counsel, distinct from the role of the permanent secretary as the non-political public service head of the Attorney-General's department.
Two solicitors-general have been appointed to the High Court of Australia: Anthony Mason in 1972 and Stephen Gageler in 2012. Gageler is the only person to be directly elevated from the solicitor-generalship to the High Court. Bob Ellicott subsequently served on the bench of the Federal Court of Australia.
Although the Solicitor-General is essentially the deputy Attorney-General, it is a statutory role whereas the Attorney-General is a political one, filled by a member of parliament, and it is rare for a Solicitor-General to then become the Attorney-General. Bob Ellicott is the only Solicitor-General who went on to become Attorney-General.
Role
The Commonwealth Solicitor-General role is required to be filled by a barrister or solicitor of a State Supreme Court or the High Court with at least five years' experience. The general consensus is that their role is primarily to advocate and independently advise the Commonwealth. The role is distinctly separate from any political role by statute in the Law Officers Act 1964 (Cth). In performing their role, the Solicitor-General must act in accordance with the rule of law and maintain independence from the executive government of the day.
Private practice
In England, the Attorney-General and Solicitor-General historically had concurrent private practices as barristers until the 1890s. By the time the Australian role was created, the convention was firmly established that the Solicitor-General would accept briefs only from the government or government business enterprises. However, in a rare departure from this rule, in 1991 the then-Solicitor-General Gavan Griffith QC was permitted to take paid leave to recommence a private practice while retaining in part his public practice as Solicitor-General, due to financial difficulties arising from involvement in underwriting insurance risks for Lloyd's of London.
Functions
Within s 12 of the Law Officers Act 1964 (Cth) the functions of the Solicitor-General are prescribed. It separates the Solicitor-General’s functions into acting as counsel for the Commonwealth, ministers, government bodies and any person for which the Attorney-General seeks counsel under s 12(a) and also to provide their opinion on legal questions referred to them by the Attorney-General under s 12(b). In 2016 he clarified this position by explaining that s 12(b) allows the Attorney-General to seek the legal opinion of the Solicitor-General even where this question falls out of the scope provided in s 12(a).
Considering the inconsistency in views according to some legal opinions, Professor Gabrielle Appleby has proposed that there is need of reform of s 12 of the Law Officers Act to clarify if the Attorney-General is able to restrict access to the Solicitor-General.thumb|182x182px|George Brandis Attorney-General of Australia between 2013–2017.Gleeson criticised Brandis suggesting that he was not referred to on marriage equality and anti-terrorism citizenship laws.
Gleeson also is remarked as being frustrated about his opinion being misrepresented to the public. He claimed in particular that he was not consulted concerning legislation aiming to revoke the citizenship of dual nationals under anti-terror laws when it was suggested by the government he had provided advice that the legislation would succeed against a challenge in the High Court.
The general consensus however is that the central issue was Gleeson claimed to not have been consulted regarding the Legal Services Amendment (Solicitor-General Opinions) Direction 2016, which necessitated approval by the Attorney-General of any legal questions brought to the Solicitor-General for advice. Gleeson suggested this effectively blocked the Solicitor-General providing advice without the express permission of the Attorney-General which is contradictory to the independence of the role from the executive branch of government. Brandis claimed in the Explanatory Statement of the amendment that he had in fact consulted Gleeson and sought feedback. Whitlam is believed to have hoped that Gair’s resignation, which was required having accepted the post, would allow Labor to contest and win his vacant seat in the upcoming half-Senate election, in turn gaining a majority in the Senate. In what later became known as “The Night of Long Prawns” Queensland Premier Joh Bjelke-Petersen issued the writs for the Queensland senate seats for the half-Senate election before Gair was able to formally resign meaning that his seat would not be in contention. Solicitor-General at the time Maurice Byers offered the legal opinion that Gair was no longer a senator and had effectively resigned at either the date that the Executive Council approved the post or the date that Ireland accepted his ambassadorship. Importantly, Byers remarked that both of these dates preceded Bjelke-Petersen issuing the writs. Also, that Australia had failed to respect Portugal as the Administering Power of East Timor. This case concluded with the court finding that it could not make a ruling in part as a result of Griffith on behalf of the Commonwealth submitting that the Court should also rule upon Indonesia’s actions, however, Indonesia’s absence exceeded the court’s jurisdiction. Stephen Donaghue, Commonwealth Solicitor-General during this crisis, is widely viewed as having had an important role in offering advice to MP’s and representing MP's including appearing in court on behalf of Attorney-General Brandis. In spite of this in August 2021 Morrison expressed that the federal government will most likely not mandate vaccines.
List of Solicitors-General
{| class="wikitable"
!Name
!Period in office
!Alma Mater
|-
|Sir Robert Garran KCMG
|1916–1932
|University of Sydney
|-
|Sir George Knowles CBE
|1932–1946
|University of Melbourne
|-
|Sir Kenneth Bailey CBE KC
|1946–1964
|University of Melbourne
Corpus Christi College, Oxford
|-
|Anthony Mason CBE QC
|1964–1969
|University of Sydney
|-
|Bob Ellicott QC
|1969–1973
|University of Sydney
|-
|Sir Maurice Byers CBE QC
|1973–1983
|University of Sydney
|-
|Gavan Griffith KC
|1984–1997
|University of Melbourne
Magdalen College, Oxford
|-
|Henry Burmester KC (acting)
|1997–1998
|Australian National University
|-
|David Bennett AC KC
|1998–2008
|University of Sydney
Harvard Law School
|-
|Stephen Gageler SC
|2008–2012
|Australian National University
Harvard Law School
|-
|Justin Gleeson SC
|2013–2016
|University of Sydney
University College, Oxford
|-
|Stephen Donaghue KC
|2017–2025
|University of Melbourne
Magdalen College, Oxford
|}
References
Further reading
- Goff-Gray, Christopher (2011) "The Solicitor-General in context: A tri-jurisdictional study", Bond Law Review: Vol. 23: Iss. 2, Article 4.