Functions and activities

The Attorney-General's Department was one of the original Commonwealth Departments created on 1 January 1901 by Executive Minute No 1 of that date. On appointment of the first Federal Cabinet, the Honourable Alfred Deakin (CP 9) was sworn in as Attorney-General in a Cabinet of seven. The first Secretary of the Department was Robert Randolph Garran, who remained as Permanent Head (and also Solicitor-General from the time that office was created on 1 September 1916) until 9 February 1932. On 12 July 1901 the appointments of the first officers in the Department were gazetted:

• Robert Randolph Garran was appointed Secretary to the Attorney-General's Department and Parliamentary Draftsman
• Gordon Harwood Castle was appointed Chief Clerk and Assistant Parliamentary Draftsman
• Alfred Douglas Forbes was appointed Clerk
• Robert John Wyles was appointed Messenger

Work was commenced immediately with the drafting of bills to be brought down at the first session of the first Commonwealth Parliament. The early duties of the department, which was established in Melbourne, were those of drafting bills, litigation work and providing constitutional opinions. Following the commencement of the Commonwealth, the High Court was established in Melbourne and its Registrar was placed under the Attorney-General's jurisdiction. In 1903, the Crown Solicitor's Office (CA 554) was established in Melbourne to do the litigation work of the Commonwealth. When proceedings were held in a state other than Victoria, private firms of solicitors were engaged as agents. In 1904, the Patents Office (CA 555) was established (this was transferred from the control of the Minister for Trade and Customs to the Attorney-Generals in 1911). The Patents Office was transferred to Canberra in 1933.

In December 1917 the Commonwealth Police Force [I] (CA 2919) was set up by the Attorney-General under the War Precautions Regulations 1917. In 1916, a Special Intelligence Bureau (CA 746) had been established under the Prime Minister's Department and in 1919 the Commonwealth Police Force [I] and the Special Intelligence Bureau were combined to form the Investigation Branch (CA 747) within the Attorney-General's Department. The Investigations Branch and its state branches became known as the Commonwealth Investigation Service (CA 650) in 1946 and in 1960 became the Commonwealth Police Force [II] (CA 736).

In 1920, the Commonwealth Court of Conciliation and Arbitration was established. On 8 August 1921, the Commonwealth Reporting Service was established to perform the reporting duties of the Commonwealth Courts and Tribunals.

Another branch of the department came into being in 1928 with the commencement of federal jurisdiction of Bankruptcy. In the same year, Commonwealth departments commenced to move from Melbourne to Canberra and the Attorney-General's Department was given new responsibilities in relation to the ACT. The Australian Capital Territory Courts and Registration Offices were placed under its control when the Supreme Court was established in Canberra in 1934, the Court Staff being added to the department's strength. The department was also made responsible for the administration of law and justice in the Northern Territory.

In 1942, a separate war-time entity known as the Commonwealth Security Services (CA 660) was set up. This body was disbanded after the war (in 1945) and a new service, the Australian Security Intelligence Organisation (CA 1297) was established in 1949 as a separate organisation under the Attorney-General.

In 1965, an Act was passed creating the Trade Practices Office, an autonomous organisation headed by a Commissioner responsible to the Attorney-General.

Early in 1970, at the opening of the 27th Parliament, the Governor-General announced that legislation would be introduced to establish the Office of Parliamentary Counsel, thus removing the Parliamentary Drafting Division from its traditional position as a Division of Central Office and making it another autonomous body responsible to the Attorney-General. The Office of Parliamentary Counsel began operations in mid 1970, although it did not maintain a separate record-keeping system until later.

Towards the end of 1971 the Management and Executive Services Division was created and the Advisings, Executive "A" and Executive "B" Branches, respectively, were raised to Divisional status.

The Attorney-General's Department provides legal advice to all Australian Government departments and authorities. The Department is responsible to the Attorney-General for legislation under his administration, and deals with the following matters: Law and Justice; Human Rights; Civil Liberties; Legal Drafting; Bills of Exchange and Promissory Notes; censorship; marriage; divorce and matrimonial cause, and in relation thereto, parental rights, and the custody and guardianship of infants; recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States; service and execution throughout the Commonwealth of the civil and criminal process and the judgements of the courts of the States; censorship; Legal Aid, including the provision of legal services throughout the Australian Legal Aid Office; and copyrights.

Several functions passed to and from the Department, particularly in the 1970's. In 1911, the Attorney-General took over responsibility for patents, designs and trade marks from the Department of Trade and Customs (CA 10). This function then passed to the Department of Science [I] (CA 1486); it returned in 1975 for six months and was then passed to the Department of Business and Consumer Affairs (CA 1951). From 1905 to 1947 the Attorney-General's Department was responsible for industrial matters; this passed to the Department of Industry (CA 22) in 1932.

The Attorney-General's Department was also responsible for the Department of Industry (CA 22) during its lifetime from 10 December 1928 to 28 October 1940. Three positions, those of Secretary, Clerk and Typist were created but never filled. There is evidence that Senator J E Ogden, who was appointed Assistant Minister for Industry, dealt with the many questions raised departmentally and by Unions on Industrial matters: he also handled matters relating to the administration of Cockatoo Island dockyard and was the channel for representations to the Government from the trade unions. In the main, however, the Department of Industry was not a separate functioning department. It is described on the relevant Public Service Board correspondence files as follows:

It is understood, however, that it is not the intention to establish another separate Department under a new Permanent Head; but that the Department of Industry in effect be part of the Attorney-General's Department and that Sir Robert Garran will, for all purposes, be regarded as its Permanent Head.

Thus the Permanent Head was effectively the Secretary to the Attorney-General's Department: from 10 December 1928 to 10 February 1932, Sir Robert Garran, and from 10 February 1932 until 28 October 1940, Sir George S Knowles. With the exception of one occasion from October 1929 to January 1932, when the Prime Minister, then J H Scullin, was the Minister for Industry. The Department was listed jointly with the Attorney-General's Department in the Administrative Arrangements Orders until 1932 when it was listed separately as responsible for "industrial matters". The Department was replaced by CA 40, the Department of Labour and National Service on 28 October 1940. During World War II, two functions of a wartime nature were undertaken by the Attorney-General's Department.

The Legal Aid Bureau (CA 214) was established in November 1942 to provide aid to members of the Services in relation to matters arising under Commonwealth Law. Bureaux were established in most capital cities and also in Townsville and the work load expanded as demobilisation progressed.

The Land Transfer Branch was established in July 1940 under National Security (Land Transfer) Regulations. The objects of the Regulations were to exercise control over the sale, lease, assignment, mortgage or gift of land to aliens or naturalised persons of enemy origin. In addition, while countries in Europe were in enemy occupation, control was exercised over the acquisition of land by subjects of these countries. The Activities of this Branch ceased when the National Security Regulations expired.

In 1950, the Attorney-General's Department passed responsibility for the ACT Police Force to the Department of the Interior [II] (CA 31); this was returned to the Attorney-General's Department in 1972 along with responsibility for the Police Force of the Northern Territory. In the same year, the Department also inherited responsibility for the Police Force of Norfolk Island from the Department of External Territories [II] (CA 1284). Later in 1975, the responsibility for all Police Forces (ie Commonwealth, ACT and NT) was passed to the Department of Police and Customs (CA 1862). In July 1951, the Attorney-General's Department took over the function of administering Law and Justice in the ACT from the Department of the Interior [II] (CA 31). In 1976, the Department relinquished responsibility for registering deaths, births, marriages and land titles in the ACT to the Department of the Capital Territory (CA 1477).

In 1979 the Attorney-General’s Department inherited responsibility for Registrars in Bankruptcy from the Department of Business and Consumer Affairs (CA 1951). Upon the abolition of the Department of Business and Consumer Affairs on 7 May 1982 responsibility for administering all legislation connected with Corporate affairs, trade practices and consumer affairs passed to the Attorney-General’s Department. The Legislation which passed to the Attorney-General’s Department at this time, including new enactments, was as follows:

• Companies Act 1981
• Companies (Acquisition of Shares) Act 1980
• Companies (Acquisition of Shares-Fees) Act 1980
• Companies (Fees) Act 1981
• Companies (Transitional Provisions) Act 1981
• Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980
• Domicile Act 1982
• Freedom of Information Act 1982
• National Companies and Securities Act 1979
• Securities Industry Act 1980
• Securities Industry (Fees) Act 1980
• Trade Practices Act 1974 except for Part X and sections 150-154 inclusive
• Trading with the Enemy Act 1939, except in so far as it relates to the control of enemy property

Under the Administrative Arrangements Orders of 11 March 1983 Consumer Affairs and the administration of Part V of the Trade Practices Act 1974 passed to the Department of Home Affairs and Environment (CA 3068). In effect this entailed the movement of The Trade Practices and Consumer Affairs Division (except for offices in the Compensation Policy Branch), a division which had remained an independent unit within the Attorney-General’s Department since its transfer from Business and Consumer Affairs in May 1982. The petroleum retailing market functions were transferred to the Department of Industry and Commerce [II] (CA 3256). The only new enactment for which the Attorney-General became responsible on 11 March 1983 was the Special Prosecutor Act 1982. Under the Administrative Arrangements Orders of 1 March 1984, two new enactments, the Director of Public Prosecutions Act 1983 and the Transfer of Prisoners Act 1983 became the responsibility of the Attorney-General’s Department.

In the Administrative Arrangements Order of 2 July 1984, the principal matters for which the Department is responsible were reworded slightly so that “legal services” replaced “legal drafting” and “divorce and matrimonial causes, and in relation thereto, parental rights, and the custody of infants” was reworded to read “family law”. Three acts which had been repealed during the period March to July 1984 no longer appeared in the July listing. These were:

• Foreign Antitrust Judgements (Restriction of Enforcement) Act 1979
• Foreign Proceedings (Prohibition of Certain Evidence) Act 1976
• National Crimes Commission Act 1982

Two new enactments appeared in the listing for this portfolio as follows:

• Foreign Proceedings (Excess of Jurisdiction) Act 1984
• Sex Discrimination Act 1984

In the Administrative changes of 13 December 1984 (notified in Commonwealth Gazette No S521, 13 December 1984) the Attorney-General’s Department inherited the function of Consumer Affairs from the Department of Home Affairs and Environment (CA 3068). It also received responsibility for the part of the Trade Practices Act 1974 (Part V) previously administered by Home Affairs and Environment.

The Attorney-General’s Department (as at 1980) was divided into eight divisions: the Crown Solicitor’s Division, the Advising Division, the Business Affairs Division; the Federal courts, Family Law, Territories and Law Reform Division; the Justice Division; the Legislative Drafting Division; the Legal and Financial Assistance Division and the Management and Special Services Division.

The Officers of the Crown Solicitor’s Division perform those functions of a legal nature for the Commonwealth Government and authorities set up under laws of the Parliament that are usually performed in a solicitor’s office. It conducts litigation in which the Commonwealth of Australia is a party, carries out prosecutions for beaches of Commonwealth Laws, prepares agreements, contracts, guarantees and other security documents, leases, mortgages and conveyances of real and personal property and furnishes legal advice to Commonwealth Government departments and authorities on matters arising in the day to day conduct of those organisations.

The Advising Division advises ministers, department, statutory bodies and officers and committees of the Parliament on legal matters including questions of constitutional, international, financial, administrative, environmental, electoral and shipping law and questions of interpretation of Commonwealth and Territory laws; provides legal assistance in the development and implementation of major Government projects and policies; advises on constitutional review; attends conferences and committees of the Parliament; advises Cabinet, through the Attorney-General on constitutional and other legal questions arising in respect of submissions to Cabinet; assists as required in major litigation, particularly of a constitutional or international character, and carries out legal research.

The Business Affairs Division is responsible for international trade law, bills of exchange and cheques, commercial arbitration, intellectual property and industrial law. The Division also advises other department on matters of commercial law.

The Federal Courts, Family Law, Territories and Law Reform Division is responsible for federal courts, administrative law review, family law and the administration and reform of the laws of the ACT administered by the Attorney-General, except those relating to criminal and commercial law.

The Justice Division is responsible for legislation relating to criminal law (including international aspects), human rights and civil liberties, Commonwealth prisoners, extradition, Australian Security Intelligence Organisation, forces and law enforcement and public order.

The Legislative Drafting Division is responsible for drafting of legislative instruments (other than Bills for the Parliament) including Regulations, Ordinances and Regulations under Ordinances. It is responsible for arrangements for the printing of that legislation.

The Legal and Financial Assistance Division administers the special areas of federal legal and financial assistance, other than in the industrial area.

The Management and Special Services Division is responsible for the general administrative management of the Department and the provision of administrative support and executive services for the Central Office, the administrative provision of the Marriage Act and the administrative provisions of the Family Law Act 6 in relation to approval and grants of financial assistance to marriage counselling organisations, the Australian censorship legislation and the Reporting Branch Rules. It is responsible for statutory appointments, including Justice of the Peace for the ACT and Commissioners for Declarations and the processing of applications for the remission of fines and sentences; information and public relations; reprinting of all legislation (including Acts) incorporating amendments; automatic data processing; servicing the parole board of the ACT and providing administrative support to the lower courts of the ACT.

On 12 December 1985, the Prime Minister announced an administrative change as part of moves to give greater autonomy to the ACT. His Press Release of that date stated that the following matters would be transferred from the Attorney-General’s portfolio to the Department of Territories [II]:

Legal policy responsibility for matters transferred from the Attorney-General and legislative drafting associated with functions to be transferred to the new ACT Council

The effect of this change on the administrative structure of the Attorney-General’s Department is subject to further research.

In the Administrative Arrangements order of 30 July 1985 (Commonwealth of Australia Gazette No. S 320, 1 August 1985) the Department was given responsibility for the Crimes (Taxation Offences) Act 1980 which had previously been the responsibility of the Department of the Treasury [II] (CA 2141). In addition Part II of the Defence (Visiting Forces) Act 1963 was deleted. The Administrative Arrangements order of 30 January 1986 (Commonwealth of Australia Gazette No S30, 31 January 1986) the Department was given responsibility of a new enactment, the Foreign States Immunities Act, 1985 and the Crimes (Taxation Offences) Act 1980 was transferred to the Department of the Treasury [II].

In the Administrative Arrangements Order of 3 February 1987 (Commonwealth of Australia Special Gazette dated 3 February 1987) the Human Rights Commission Act 1981 which ceased five years after the date of commencement and the following Acts were repealed:

• Interim Forces Benefits Act 1947, Section B
• Trading with the Enemy Act 1939, except insofar as it relates to the control of enemy property

At the same time it was given responsibility for the following new enactments:

• Cheques and Payment orders Act 1986
• Futures Industry Act 1986
• Futures Industry (Fees) Act 1986
• Human Rights and Equal Opportunity Commission Act 1986
• Human Rights and Equal Opportunity Commission (Transitional Provisions and Consequential Amendments) Act 1986

In the same order the Department was given responsibility for the Australia Act 1986 and the Australia Act 1986 and the Australia (Request and Consent) Act 1985 previously the responsibility of the Department of Prime Minister and Cabinet (CA 1401) and the War Crimes Act 1945 previously the responsibility of the Department of Defence (CA 46).

The Administrative Arrangements Order of 24 July 1987 (Commonwealth of Australia Gazette No S183, 24 July 1987) transferred the Australian Police Act 1979, except to the extent administered by the Minister for Industrial Relations [II] (CA 5989) and by the Minister for the Arts, Sport, the Environment, Tourism and Territories (CA 5984) to the Attorney-General’s Department. At the same time in the portfolio of the Attorney-General’s Department the Hon Peter Staples was appointed Minister for Consumer Affairs. For agencies controlled refer to inventory of agencies.

A corollary of the abolition of the Community Affairs Division in April 1988 was the establishment of the Office of Film and Literature Classification (OFLC) under the direction of Mr John Dickie as Chief Censor. This office includes the Censorship Board. The OFLC assumed the functions of the Censorship section of the former Community Affairs Division. This is a Sydney based organisation and is to be regarded as an autonomous outrider agency of this Department.

In the Administrative Arrangements Order of 31 January 1992 (Commonwealth of Australia Gazette No S37, 5 February 1992) the Commonwealth Prisoners Act 1967 was repealed by the Crimes Legislation Amendment Act (No. 2) 1989 and the Corporations (Fees) Act 1989 was repealed by the Corporations Legislation Amendment Act 1990. The International Arbitration Act 1974 was reworded to read:

• International Arbitration Act 1974 as amended by the ICSID Implementation Act 1990.

The following new enactments became the responsibility of the Attorney-General’s Department:

• Crimes (Aviation) Act 1991
• Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990
• Foreign Judgements Act 1991
• Trusts (Hague Convention) Act 1991

In the Administrative Arrangements Order of 30 June 1992 (Commonwealth of Australia Gazette No. GN 27, 8 July 1992) the Attorney-General’s Department gained the function of ‘Protective services at Commonwealth establishments and diplomatic and consular premises in Australia’ and the accompanying enactment:

• Australian Protective Service Act 1987 from the Department of Administrative Services [III] (CA 5983).

In the Administrative Arrangements Order of 24 March 1993 (Commonwealth of Australia Gazette No S91, 24 March 1993) the following legislative changes took place.

The Australian Capital Territory Evidence (Temporary Provisions) Act 1971 was repealed by ACT legislation No 2 of 1993 and the Australian Capital Territory Supreme Court Act 1933 was transferred to ACT Supreme Court (Transfer) Act 1992.

The Cash Transaction Reports Act 1988 was given a new citation and now reads Financial Transaction Reports Act 1988.

The following legislation was repealed by the Crimes (Aviation) Act 1991:

• Civil Aviation (Offenders on International Aircraft) Act 1970
• Crimes (Aircraft) Act 1963
• Crimes (Hijacking of Aircraft) Act 1972
• Crimes (Protection of Aircraft) Act 1973

The following legislation was repealed by the Corporations Legislation Amendment Act 1990:

• Companies (Acquisition of Shares – Fees: Taxation Component) Act 1989
• Companies (Fees) Act 1981
• Companies (Fees – Taxation Component) Act 1989
• Futures Industry (Fees: Taxation Component) Act 1989
• Futures Organisations (Application for Membership) Fidelity Funds Contribution Act 1989
• Futures Organisations Fidelity Funds Levy Act 1989
• Futures Organisations (Membership) Fidelity Funds Contribution Act 1989

The following legislation was repealed by the Corporations Legislation Amendment Act 1991:

• National Companies and Securities Commission Act 1979
• National Guarantee Fund (Members of Participating Exchanges) Levy Act 1989
• National Guarantee Fund (Participating Exchanges) Levy Act 1989
• National Guarantee Fund (Reportable Transactions) Levy Act 1989
• Securities Exchanges (Application for Membership) Fidelity Funds Contribution Act 1989
• Securities Exchanges Fidelity Funds Levy Act 1989
• Securities Exchanges (Membership) Fidelity Funds Contribution Act 1989

The following legislation did not appear in the Administrative Arrangements Order of 24 March 1993, and was possibly repealed but this is subject to further research:

• Statute Law (Miscellaneous Amendments) Acts, except to the extent administered by the Minister for Industry, Technology and Commerce
• Statute Law (Miscellaneous Provisions) Acts
• Statute Law Revision Acts

In the same Administrative Arrangements Order the Department gained the following new legislation:

• ACT Supreme Court (Transfer) Act 1992
• Corporate Law Reform Act 1992
• Crimes (Ships and Fixed Platforms) Act 1992
• Disability Discrimination Act 1992
• Mutual Assistance in business Regulations Act 1992
• Mutual Recognition Act 1992, except to the extent administered by the Minister for Employment, Education and Training
• Service and Execution of Process Act 1992
• Service and Execution of Process (Transitional Provisions and Consequential Amendments) Act 1992
• Telecommunications (Interception – Carriers) Act 1992

In the Amending Administrative Arrangements Order of 1 April 1993 (Commonwealth of Australia Gazette No GN14, 14 April 1993) the Trade Practices Act 1974, Part V was amended to read Trade Practices Act 1974, Parts IVA, V and VA. The previous Administrative Arrangements Order of 24 March 1993 had changed the wording from:

Trade Practices Act 1974, except to the extent administered by the Minister for Transport and Communications; to

Trade Practices Act 1974, Part V

This is the first time these matters have been mentioned in an AAO.

In the same Administrative Arrangements Order the Department lost the Corporate Law Reform Act 1992 which was replaced by the Corporate Law Reform Act 1994 (yet to appear in AAO) and the Service and Execution of Process Act 1901 which was repealed by Service and Execution of Process (Transitional Provisions and Consequential Amendments) Act 1992.

Legislation gained was the Foreign Corporations (Application of Laws) Act 1989 which is now shared with the Department of Industry, Science and Technology (CA 7902).

Legislation amended included the Industrial Relations Act 1988, Division 1 of Part XII, and section 348 in respect of the powers under Division 1 of Part XII; and Part XIV, which was emended to include the reference to Part XIV.

In the Administrative Arrangements Order of 11 March 1996 (Commonwealth of Australia Gazette No. S93, 11 March 1996) the Department lost responsibility for Consumer Affairs to the new Department of Industry, Science and Tourism (CA 8247). The Australian Securities Commission Act 1989 was lost to the Department of the Treasury (CA 2141), the Trade Practices Act 1974 was lost to the new Departments of Industry, Science and Tourism and Transport and Regional Development; and the Foreign Corporations (Application of Laws) Act 1989 was assumed in its entirety by the Department of Industry, Science and Tourism.

In the same Administrative Arrangements Order, the Evidence Act 1905 was updated and is now the Evidence Act 1995; the reference in the Family Law Act 1975 was amended to read ‘except to the extent administered by the Minister for Health and Family Services’; the International Arbitration Act 1974 no longer includes the reference ‘as amended by the ICSID Implementation Act 1990’; the Mutual Recognition Act 1992 now has a reference to ‘the Minister for Employment, Education, Training and Youth Affairs’ to replace the reference to ‘the Minister for Employment, Education and Training’; and the Native Title Act 1993 now bears the reference ‘subsection 36(2) of Part 2, Part 3 except subparagraph 66(2)(a)(ii) and paragraph 68(2)(a), Parts 4, 5, 6, 7 and 8, section 209 of Part 13 and Part 14.

Also in the Administrative Arrangements Order of 11 March 1996, the Department gained responsibility for the following legislation:

Classification (Publications, Films and Computer Games) Act 1995

• Criminal Code Act 1995
• Evidence and Procedure (New Zealand) Act 1994
• Evidence and Procedure (New Zealand) (Transitional Provisions and Consequential Amendments) Act 1994
• Evidence (Transitional Provisions and Consequential Amendments) Act 1995
• Foreign Evidence Act 1994
• Foreign Evidence (Transitional Provisions and Consequential Amendments) Act 1994
• Human Rights (Sexual Conduct) Act 1994
• International War Crimes Tribunal Act 1995
• International War Crimes Tribunal (Consequential Amendments) Act 1995
• Racial Hatred Act 1995
• Royal Commission into the New South Wales Police Service (Access to Information) Act 1994
• Witness Protection Act 1994

In the Amending Administrative Arrangements Order of 23 April 1996 the Department lost the following matters to the Department of the Treasury (CA 2141):

• Business Law and practice
• Corporate and securities law
• Insolvency

This Department will however continue to be responsible for the matter of Bankruptcy.

The Department also lost the following legislation to Treasury:

• Bills of Exchange Act 1909
• Cheques and Payment Orders Act 1986
• Companies (Acquisition of Shares) Act 1980
• Companies (Acquisition of Shares – Fees) Act 1980
• Companies Act 1981
• Companies (Transitional Provisions) Act 1981
• Crown Debts (Priority) Act 1981
• Futures Industry Act 1986
• Futures Industry (Fees) Act 1986
• Securities Industry Act 1980
• Securities Industry (Fees) Act 1980

The Department lost the following piece of legislation to the Department of Industry, Science and Tourism (CA 8247):

• Mutual Recognition Act 1992, except to the extent administered by the Minister for Employment, Education, Training and Youth Affairs.

The Department also lost the following legislation, and this is the subject of further research:

• Close Corporations Act 1989
• Close Corporations (Additional Liquidators’ Recovery Trust Fund Contribution) Act 1989
• Close Corporations (Fees) Act 1989
• Close Corporations (Liquidators’ Recovery Trust Fund Contribution) Act 1989

Also in the same Administrative Arrangements Order the Corporations Act 1989 was amended to read Corporations Act 1989, section 46 insofar as it relates to subsections 77(1), 91(3) and 92(1) of each of the following:

The Corporations (New South Wales) Act 1990, the Corporations (Victoria) Act 1990, the Corporations (Queensland) Act 1990, the Corporations (South Australia) Act 1990, the Corporations (Tasmania) Act 199