Solicitor General for New South Wales

The Solicitor General operates under the provisions of the Solicitor General Act 1969. The retirement age is set at 75.{{cite Legislation AU|NSW|act|sga1969187|Solicitor General Act 1969|2}} Appointment of Solicitor General. 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.{{cite web|title=Solicitor General|url=http://search.records.nsw.gov.au/agencies/1936|website=NSW State Records|publisher=NSW Government|access-date=19 September 2015}} 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.{{cite web|last1=Nader QC|first1=John|title=The failed art of sentencing offenders|url=http://www.nswbar.asn.au/docs/webdocs/BN03_2011.pdf|website=Bar News|publisher=NSW Bar Association|access-date=19 September 2015|date=2011}}

While John Plunkett was the first NSW Barrister to be appointed a Queen's Counsel, this was on 6 June 1856 after he had retired as Attorney General.{{cite news |url=https://nla.gov.au/nla.news-article115562618 |title=Mr Plunkett's retirement from office |newspaper=Freeman's Journal |location=New South Wales, Australia |date=28 June 1856 |access-date=30 January 2019 |page=2 |via=Trove}}{{cite web |title=NSW silk appointments |url=https://www.nswbar.asn.au/the-bar-association/nsw-silk-appointments |website=NSW Bar Association |access-date=30 January 2019}} The first person who was a Queen's Counsel at the time of his appointment as Solicitor General was John Hargrave {{post-nominals|country=AUS|QC}}. Cecil Weigall was appointed Solicitor General in 1922 and appointed King's Counsel in 1925. Harold Snelling {{post-nominals|country=AUS|QC}} was a Queen's Counsel at the time of his appointment.

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.{{cite book |last1=John Thomas |first1=Bigge |url=https://books.google.com/books?id=9rFbAAAAQAAJ&pg=RA3-PA58 |title=Report of the Commissioner of Inquiry on the judicial establishments of New South Wales and Van Diemen's Land |work=House of Lords Sessional papers 1801-1833 |year=1823 |ref=CITEREFBigge 2nd Report (1923) |author-link=John Bigge}} 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.{{sfn|Bigge 2nd Report (1923)|p=58}} 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.{{sfn|Bigge 2nd Report (1923)|p=61}}

John Stephen was appointed as the first Solicitor-General in August 1824, six months after the appointment of the first Attorney-General, Saxe Bannister. Stephen's role was to assist the Attorney-General as required and cover any absence of the Attorney-General.{{cite web | title=Historical records of Australia : Despatches to and from Sir Thomas Brisbane January 1823 to November 1825 | year=1917 |url=https://archive.org/details/historicalrecord00v11aust |pages=198–199 |volume=XI }}{{cite web |last1=Appleby |first1=G |date=28 September 2012 |title=The Constitutional Role of the Solicitor-General |url=https://digital.library.adelaide.edu.au/dspace/bitstream/2440/80112/8/02whole.pdf |access-date=21 January 2019}} The duties allocated to Bannister formalised the proposals of Bigge. In addition to the preparation and prosecution of criminal charges, Bannister's duties included acting for the Crown in civil matters, overseeing the preparation of Crown land grants, giving legal advice to the Governor and Government departments and drafting acts, proclamations and Government Orders.{{Cite AuDB|last=Currey|first=C H|year=1966|id2=bannister-saxe-1738|title=Bannister, Saxe (1790–1877)|access-date=23 February 2019}} The Attorney-General was also considered to have the common law duties and powers exercisable by British Law Officer.{{cite web | title=Historical records of Australia : Despatches to and from Sir Thomas Brisbane January 1823 to November 1825 | year=1917 |url=https://archive.org/details/historicalrecord00v11aust |volume=XI |pages=883–884 }} The Attorney-General was not appointed to determine small claims, and instead that role that was given to Stephen and in a separate capacity as Commissioner of the Courts of Request.{{cite web | title=Historical records of Australia : Despatches to and from Sir Thomas Brisbane January 1823 to November 1825 | year=1917 |url=https://archive.org/details/historicalrecord00v11aust |volume=XI |pages=197–198 }} Bannister's salary was £1,200 a year.{{cite web | title=Historical records of Australia : Despatches to and from Sir Thomas Brisbane January 1823 to November 1825 | year=1917 |url=https://archive.org/details/historicalrecord00v11aust |volume=XI |pages=140–141 }} Stephen received no salary as Solicitor-General,{{cite web | title=Historical records of Australia : Despatches to and from Sir Thomas Brisbane January 1823 to November 1825 | year=1917 |url=https://archive.org/details/historicalrecord00v11aust |volume=XI |pages=198–199 }} and a salary of £600 a year as Commissioner of the Courts of Request, raised to £800 within a year.{{cite web | title=Historical records of Australia : Despatches to and from Sir Thomas Brisbane January 1823 to November 1825 | year=1917 |url=https://archive.org/details/historicalrecord00v11aust |volume=XI |page=486 }} 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. Whereas the New South Wales position was initially filled by a barrister who was not a parliamentarian (until 1851), the British position is by convention filled by a member of parliament.Alexander Home, [https://researchbriefings.files.parliament.uk/documents/SN04485/SN04485.pdf The Law Officers], House of Commons Library research briefing

One of the first cases in which Stephen argued as Solicitor-General,Stephen was present in court in {{cite AustLII|NSWSupC|17|1824|litigants=Division of the Profession (Bar Monopoly Case)|courtname=Supreme Court (NSW)|date=14 September 1824}}, however there is no record of him presenting any argument in the matter. saw him appearing for the Magistrates of Sydney in opposition to the Attorney-General concerning trial by jury. D'Arcy Wentworth was one of the leaders of an 1819 petition seeking both trial by jury and the establishment of representative government.{{Cite AuDB|last=Auchmuty|first=J J|id2=wentworth-darcy-1545|title=Wentworth, D'Arcy (1762–1827)|access-date=23 February 2019}} Bigge had recommended against trial by a civilian jury,{{sfn|Bigge 2nd Report (1923)|p=53}} 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.{{cite web |last1=Castles |first1=Alex C |title=The Judiciary and Political Questions: The First Australian Experience, 1824-1825 |url=https://www.austlii.edu.au/au/journals/AdelLawRw/1975/11.pdf}} (1975) 5(3) Adelaide Law Review 294. Chief Justice Forbes held that civilian juries were required for Court of Quarter Sessions.{{cite AustLII|NSWSupC|20|1824|litigants=R v Magistrates of Sydney|parallelcite=[1824] {{abbr|NSWKR|New South Wales Kercher Reports}} 3 |date=14 October 1824 |courtname=Supreme Court (NSW)}}

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.{{Citation |last1=Watson |first1=Frederick |title=Historical records of Australia |url=https://nla.gov.au/nla.obj-480563623 |access-date=2 September 2022 |last2=Chapman |first2=Peter |via=Trove}}

While a Legislative Council was created in 1823 in which all members were appointed, the Attorney-General was not one of the appointed members of the Council until 1829 when Alexander Baxter was appointed.{{cite news |date=16 July 1829 |title=Proclamation: appointment of Legislative Council |page=1 |newspaper=The Sydney Gazette and New South Wales Advertiser |url=http://nla.gov.au/nla.news-article2192907 |access-date=23 February 2019 |via=National Library of Australia}} When John Plunkett was promoted to Attorney General in 1836, cost cutting measures meant he was not replaced as Solicitor General. Roger Therry was often Plunkett's junior, including in the Myall Creek massacre trials,{{cite AustLII|NSWSupC|105|1838|litigants=R v Kilmeister (No 1)}}.{{cite AustLII|NSWSupC|110|1838|litigants=R v Kilmeister (No 2)}}. although he was never appointed to the role of Solicitor General. The absence of Plunkett from 1841 resulted in Therry being appointed acting Attorney General and William à Beckett as acting Solicitor General.{{cite news |date=23 March 1841 |title=Temporary appointments |page=405 |newspaper=New South Wales Government Gazette |issue=23 |url=https://nla.gov.au/nla.news-article230106656 |access-date=2 September 2022 |via=Trove}} William Manning was the first Solicitor-General to be appointed to the Legislative Council in February 1851.{{cite news |date=28 February 1851 |title=Proclamation |page=363 |newspaper=New South Wales Government Gazette |issue=23 |url=https://nla.gov.au/nla.news-article230691882 |access-date=6 September 2022 |via=Trove}}

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.{{cite Legislation AU|NSW|num_act|nca1853n41254|New Constitution Act 1853}} 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". 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. 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.{{cite news |date=9 October 1856 |title=Administrative Arrangements |page=2662 |newspaper=New South Wales Government Gazette |issue=155 |url=https://nla.gov.au/nla.news-article228768918 |access-date=6 September 2022 |via=Trove}}

In 1873 the Attorney General Edward Butler resigned and the Solicitor General Joseph Innes was promoted to first law officer. Innes was not however replaced as Solicitor General. Instead the Premier Henry Parkes appointed a solicitor, George Allen, to the new Ministry of Justice and Public Instruction whose responsibilities included the administration of the courts, sheriff and coroner.{{cite web |title=PFO-5 Justice and Public Instruction |url=https://records-primo.hosted.exlibrisgroup.com/permalink/f/1ebnd1l/PORTFOLIO4 |access-date=2020-12-29 |publisher=NSW State Records & Archives}} In 1884 the constitution was amended to remove the dormant office of Solicitor General from the list of paid ministerial offices that could be held by a member of the Legislative Assembly.{{cite Legislation AU|NSW|num_act|nca1853n41254|Constitution Act Amendment Act of 1884}}.

The Minister of Justice, Richard O'Connor was temporarily appointed Solicitor General in 1893 to allow him to deputise for the Attorney General while Edmund Barton was visiting Canada.{{cite book |last=Appleby |first=G |title=Role of the Solicitor-General |publisher=Bloomsbury Publishing |year=2016 |isbn=9781509903962 |page=73}} Similarly George Reid was temporarily appointed to the role so that he could deputise for Jack Want while he was away from the colony. This overcame the constitutional limitation that the Attorney General's prerogative powers as first law officer could not be delegated to another minister.{{cite book |last1=Mason |first1=K |title=Public Sentinels: A Comparative Study of Australian Solicitors-General |date=2019 |publisher=Routledge |isbn=9781317073338 |editor-last=Keyzer |editor-first=Patrick |chapter=Ch 1 Aspects of the History of the Solicitor-General in Australia |access-date=19 January 2019 |chapter-url=https://books.google.com/books?id=xUoGDAAAQBAJ&pg=PA26}}

In October 1900 the Secretary of the Attorney-General's department, Hugh Pollock, was appointed to the role.{{cite news |date=5 October 1900 |title=Appointment of Hugh Pollock as Solicitor General |page=7885 |newspaper=New South Wales Government Gazette |issue=947 |url=https://nla.gov.au/nla.news-article224603806 |access-date=6 September 2022 |via=Trove}} This does not appear to have been controversial at the time with The Evening News describing the appointment as purely a formal one.{{cite news |date=6 October 1900 |title=Solicitor General: Mr H Pollock appointed |page=6 |newspaper=The Evening News |url=https://nla.gov.au/nla.news-article114011720 |access-date=6 September 2022 |via=Trove}} Pollock was again appointed in July 1901,{{cite news |date=31 July 1901 |title=Appointment H Pollock as Solicitor General |page=5929 |newspaper=Government Gazette Of The State Of New South Wales |issue=650 |url=https://nla.gov.au/nla.news-article222063995 |access-date=6 September 2022 |via=Trove}} 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,{{citation |title=NSW law Almanac 1901 |url=http://www.lawalmanacs.info/almanacs/nsw-law-almanac-1901.pdf}} 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;{{citation |title=NSW law Almanac 1902 |url=http://www.lawalmanacs.info/almanacs/nsw-law-almanac-1902.pdf |page=38}}
• 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.{{cite news |date=30 August 1901 |title=The Solicitor-General - Mr Pollock's appointment: its legality questioned |page=6 |newspaper=The Daily Telegraph |url=https://nla.gov.au/nla.news-article237268389 |access-date=6 September 2022 |via=Trove}}

Pollock resigned in October 1904 and was appointed a Crown Prosecutor.{{Gazette NSW|url=https://nla.gov.au/nla.news-article226490656|title=Resignation of Solicitor General|issue=564|date=14 October 1904|access-date=14 July 2021|page=7735|via=Trove}}

The role was again revived in December 1909 in the Wade ministry. Charles Wade was initially appointed Premier, Attorney General and Minister of Justice, however 2 months later John Garland was appointed to the justice portfolio and as Solicitor General to enable him to assist the Attorney General. Garland was appointed King's Counsel during his term in office.{{cite web |title=NSW silk appointments |url=https://nswbar.asn.au/the-bar-association/bar-history/nsw-senior-counsel-appointments |access-date=2021-07-20 |website=NSW Bar Association}}{{cite web |title=Commission as King's Counsel |url=https://indexes.records.nsw.gov.au/ebook/digitalcontent.aspx?id=NRS302_333_a127_10_42918_[08]_00012 |access-date=2021-07-20 |via=NSW State Records & Archives}} Five months into the McGowan ministry a second public servant, Walter Bevan was appointed to the role. Bevan had been a crown prosecutor for more than 20 years and unlike Pollock, his appointment does not appear to have been controversial, with opposition MLA Gus James describing Bevan as a satisfactory man, well skilled in criminal law.{{cite news |date=4 April 1912 |title=The new minister for Justice |page=2 |newspaper=Wagga Wagga Express |url=https://nla.gov.au/nla.news-article145388103 |accessdate=8 September 2022 |via=Trove}} In addition to his principle role in conducting litigation,{{cite news |date=26 January 1912 |title=Central Criminal court: Glebe murder trial |page=3 |newspaper=The Sydney Morning Herald |url=https://nla.gov.au/nla.news-article15305142 |accessdate=7 September 2022 |via=Trove}} Bevan was appointed to provide legal advice to the members of the Legislative Council.{{cite news |date=3 June 1911 |title=Legal advisor for the Upper House |page=14 |newspaper=The Sydney Morning Herald |url=https://nla.gov.au/nla.news-article15239915 |accessdate=7 September 2022 |via=Trove}} David Hall was appointed Minister of Justice in April 1912 and it was initially intended that Bevan would retain his role as Solicitor General. Two days later however Hall was appointed to replace Bevan in the role. The role became dormant again in the first Holman ministry when Hall replaced Holman as Attorney General. Holman was briefly appointed to the role in 1915 to deputise for Hall.

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.

In 1922 the Attorney General Thomas Bavin was planning to take holidays and Cecil Weigall, the Assistant Law Officer and Crown Prosecutor in the Attorney General's department, was appointed Solicitor General to perform routine statutory duties that would otherwise need to be performed by the Attorney General.{{cite news |date=22 November 1922 |title=Mr. C. E. Weigall |page=13 |newspaper=The Sydney Morning Herald |url=https://nla.gov.au/nla.news-article16051660 |accessdate=8 September 2022 |via=Trove}} Weigall was appointed aged {{age in years|1870|3|28|1922|12|27}} and went on to serve for more than 30 years,{{Australian Dictionary of Biography|author=Mason, Keith|author-link=Keith Mason (judge)|title=Weigall, Cecil Edward (1870–1955)|id2=weigall-cecil-edward-9035|access-date=20 September 2015}} predominantly appearing in criminal prosecutions and appeals. When Weigall retired in 1953 Harold Snelling {{post-nominals|country=AUS|QC}} was appointed to replace him. Snelling's experience was in civil law rather than criminal, particularly in crown fiscal matters, representing the state in the Supreme Court, High Court and Privy Council.{{Cite BAILII|litigants=Freightlines and Construction Holding Ltd v New South Wales|court=UKPC|year=1967|date=10 April 1967|parallelcite=(1967) 116 CLR 1|format=1|courtname=Privy Council (NSW)|num=10}} A significant change during the tenure of Snelling was the passage of the Solicitor General Act 1969,{{Cite Legislation AU|NSW|num_act|sga1969n80214|Solicitor General Act 1969 No 80}} which converted the role from a public servant to a 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.{{Cite Hansard|title=Solicitor General Bill|jurisdiction=New South Wales|house=Legislative Assembly|date=1 October 1969|url=https://api.parliament.nsw.gov.au/api/hansard/search/daily/searchablepdf/HANSARD-290296563-272|speaker=Ken McCaw|speaker-link=Ken McCaw|pages=1475-1481}}{{Cite Hansard|title=Solicitor General Bill|jurisdiction=New South Wales|house=Legislative Council|date=18 November 1969|url=https://api.parliament.nsw.gov.au/api/hansard/search/daily/searchablepdf/HANSARD-290296563-1636|speaker=John Fuller|speaker-link=John Fuller (Australian politician)|pages=2681-2687}} 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,{{cite Legislation AU|NSW|num_act|sga1969n80214|Solicitor General Act 1969}} s 2. 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".{{cite Legislation AU|NSW|num_act|lpra1993n87275|Legal Profession Reform Act 1993}} Schedule 1 (abolition of Queen's Counsel) and Schedule 5 (amendment of the Solicitor General Act 1969). Both appointments since 1993 have been Senior Counsel. The retirement age was initially 70, increased to 72 and is currently 75.

| {{cite news |date=6 May 1953 |title=G.O.M. retires at 83 |page=15 |newspaper=The Daily Telegraph |url=https://nla.gov.au/nla.news-article248691350 |accessdate=15 September 2022 |via=Trove}}

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| rowspan=2 | {{sortname|Harold|Snelling}} {{post-nominals|country=AUS|QC}}

| Appointed by Cahill (2)

| align=center | 18 August 1953

| align=center | December 1969

| align=right rowspan=2 | {{ayd|1953|08|18|1974|09|12|}}

| rowspan=2 | {{Australian Dictionary of Biography|author=Bennett, J. M.|title=Snelling, Harold Alfred Rush (1904–1979)|id2=snelling-harold-alfred-rush-11731|access-date=20 September 2015}}

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| rowspan=7 | Statutory office

|Appointed by Askin (3)

| align=center | December 1969

| align=center | 12 September 1974

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| {{sortname|Reginald|Marr}} {{post-nominals|country=AUS|QC}}

|Appointed by Askin (6)

| align=center | September 1974

| align=center | March 1978

| align=right | {{ayd|1974|09|1|1978|03|1|}}

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| {{sortname|Gregory|Sullivan}} {{post-nominals|country=AUS|QC}}

|Appointed by Wran (2)

| align=center | February 1979

| align=center | February 1981

| align=right | {{ayd|1979|02|1|1981|02|1|}}

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| {{sortname|Mary|Gaudron}} {{post-nominals|country=AUS|QC}}

| Appointed by Wran (3)

| align=center | 16 February 1981

| align=center | February 1987

| align=right | {{ayd|1981|02|16|1987|02|1|}}

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| {{sortname|Keith|Mason|dab=judge}} {{post-nominals|country=AUS|QC}}

| Appointed by Unsworth

| align=center | February 1987

| align=center | February 1997

| align=right | {{ayd|1987|02|1|1997|02|1|}}

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| {{sortname|Leslie|Katz}} {{post-nominals|country=AUS|SC}}

| Appointed by Carr (1)

| align=center | July 1997

| align=center | September 1998

| align=center | {{ayd|1997|07|1|1998|9|30|}}

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| {{sortname|Michael|Sexton|dab=lawyer}} {{post-nominals|country=AUS|SC}}

| Appointed by Carr (2)

| align=center | October 1998

| align=center | present

| align=right | {{ayd|1998|10|1}}

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• Solicitor-General of Australia
• Solicitor-General of Victoria

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• [http://www.justice.nsw.gov.au/ NSW Department of Justice]

{{Government of New South Wales}}