Attorney-General and Solicitor-General Act 1972

The Act directly affects only a very small number of people: the Solicitor-General, the Attorney-General, any Minister who acts for the Attorney-General under section 3, and the partner and children of the Solicitor-General for pension purposes. The Governor in Council is involved in appointment and removal. However, the indirect effects are broader. The Victorian government as a client is affected because the Solicitor-General is a monopoly provider of top-level Crown legal representation: private law firms cannot compete for the role of lead Crown counsel in the way they could if the office were contracted out. The legal profession in Victoria is affected because the Act removes from the private bar one of the most experienced senior counsel. The prohibition on private practice in section 4(3)(b) means that the Solicitor-General cannot simultaneously run a commercial practice, which reduces the supply of senior silks available for non-governmental work and may increase fees for private clients who compete for the remaining senior counsel. Taxpayers are directly affected because the salary and pension of the Solicitor-General are paid out of the Consolidated Fund (section 6(4)) and are indexed to judicial salaries. When judicial salaries rise, the Solicitor-General’s total remuneration package rises automatically, which increases government expenditure without separate parliamentary appropriation. The Supreme Court of Victoria is indirectly affected because the salary and pension of the Solicitor-General are tied to those of its judges, so any change to judicial conditions has spillover consequences for the Solicitor-General. The Department of Justice and Community Safety and the Attorney-General’s portfolio are affected in their operational planning, as they must ensure that a Minister is designated to act for the Attorney-General under section 3 when the Attorney-General is unavailable. The Solicitor-General’s own family members are affected by the pension provisions, which define eligibility for partner and children’s pensions. The Act does not affect private businesses or individual citizens except insofar as they may be parties in litigation where the Solicitor-General appears. It imposes no compliance burden on the private sector.

The Solicitor-General’s core duty under section 5(a) is to act as counsel for the Crown in right of Victoria and to perform such other duties of counsel as the Attorney-General directs. This is an open-ended obligation: the Attorney-General can direct the Solicitor-General to appear in any proceeding, provide advice, or undertake any legal work that a counsel might perform. The Solicitor-General also must, under section 5(b), exercise any powers and functions conferred directly by any Act. This means that if another Victorian statute specifically assigns a function to the Solicitor-General, that function becomes a statutory duty. The right of precedence after the Attorney-General in all cases (section 5(c)) means that in any court or tribunal the Solicitor-General takes precedence over all other counsel, including Queen’s Counsel and Senior Counsel not holding statutory office, except the Attorney-General. This is a professional right that affects court etiquette and seniority. The Solicitor-General has a right to the same salary and allowances as a puisne Supreme Court judge, and to pensions on the same terms as those judges under Part III of the Constitution Act 1975, including commutation rights under sections 83AA to 83AI of that Act. The pension right is not immediate upon retirement: it is subject to the same circumstances, rates, terms and conditions, and suspension or determination provisions as judicial pensions. A special right arises under section 6(3): a Solicitor-General who serves for at least 10 years but has not attained age 65 at the end of the term becomes entitled to a pension upon turning 65, as if he or she had retired at that age. That right is suspended under section 6(3A) if the former Solicitor-General is later appointed as a Supreme Court judge after age 65. The right to salary sacrifice under section 7 is conditional on giving written notice to the Attorney-General specifying the start date, and on the arrangement being for non-salary benefits as defined in Schedule 1A to the Public Administration Act 2004. The Solicitor-General has the right to vary or revoke the arrangement by further notice, effective from the date of notice or a later date. There is no maximum period or approval requirement beyond the notice. The partner and children of the Solicitor-General have a contingent right to a pension under section 6(1), with eligibility and rates identical to those for a judge’s dependents. The definition of partner includes both a spouse and a domestic partner, with the latter determined by the Minister’s opinion as to whether the persons are living as a couple on a genuine domestic basis, taking into account the matters in section 35(2) of the Relationships Act 2008.

The Act does not contain any specific penalty provisions, offence provisions, or enforcement mechanisms. There are no fines, imprisonment terms, infringement notices, or civil penalties. Enforcement of the Act’s restrictions is achieved indirectly through the appointment and removal power. Section 4(1) provides that the Governor in Council may remove any person appointed as Solicitor-General. This is a plenary removal power on the advice of the Premier or relevant Minister; no cause or ground is specified in the Act. Therefore, a breach of the prohibition on practising the profession in section 4(3)(b) would be dealt with by removal rather than by prosecution. The same applies if the Solicitor-General were to accept other employment. The Governor in Council could also remove the Solicitor-General for any other reason, or for no stated reason, subject to limitations that may arise from the common law or from the Constitution Act 1975. The pension provisions contain their own enforcement mechanism through suspension or determination. Section 6(1) states that the pension is liable to be suspended or determined in the same circumstances and to the same extent as pensions under Part III of the Constitution Act 1975. That Part includes grounds such as conviction for an offence involving breach of duty or bankruptcy. Therefore, if the Solicitor-General were convicted of a serious offence, the pension could be suspended or forfeited. The salary sacrifice provisions in section 7 do not contain any penalty for non-compliance; any arrangement that fails to comply with the definition of non-salary benefits would presumably be invalid as a matter of contract or administrative law, with the consequence that the salary would be treated as ordinary salary for tax and superannuation purposes. The Attorney-General could also refuse to implement a notice that does not meet the statutory requirements. There is no enforcement mechanism for the delegation power in section 3; if a Minister exercises a power without proper authority, the act would be ultra vires and challengeable in judicial review proceedings, but that is a general administrative law remedy, not a specific Act penalty. The Act therefore relies on the discipline of office, political accountability, and the possibility of removal to secure compliance. For accountants and payroll officers, the compliance risk is limited to ensuring that salary sacrifice arrangements are correctly documented and that the non-salary benefits fall within the permitted definition.

The Act interacts with several other Victorian statutes by cross-reference. The most significant interaction is with Part III of the Constitution Act 1975. The pension entitlements under section 6(1) are expressly tied to that Part: the Solicitor-General and his or her partner and children are entitled to pensions in the same circumstances and at the same rates and on the same terms and conditions as a Supreme Court judge (other than the Chief Justice, President of the Court of Appeal or a Judge of Appeal) under Part III. The commutation provisions in section 6(2) apply sections 83AA to 83AI of the Constitution Act 1975 with necessary modifications. This means that any amendment to judicial pensions in the Constitution Act automatically affects the Solicitor-General’s pension without any amendment to this Act. The interaction is substantive: if the Constitution Act were to reduce judicial pensions, the Solicitor-General’s pension would fall in tandem. The Act also interacts with the Relationships Act 2008. Section 6(5) defines domestic partner by reference to registered domestic relationship as defined in that Act, and requires that in determining whether persons who are not in a registered relationship are domestic partners, all circumstances are to be taken into account, including the matters in section 35(2) of the Relationships Act 2008. The definition of partner was substituted by the Superannuation Legislation Amendment Act 2010, and section 6(7) provides that the substituted definition applies only if the death of the Solicitor-General or former Solicitor-General occurs on or after the commencement of that amendment. This creates a transitional rule that affects the rights of partners who died before July 2010. The salary sacrifice provisions in section 7 interact with the Public Administration Act 2004, because non-salary benefits have the same meaning as in clauses 3(5) and 3(6) of Schedule 1A to that Act. The Interpretation of Legislation Act 1984 applies to the Act through the endnotes: stylistic changes, headings, examples, diagrams, notes, and punctuation are treated as part of the Act as provided by section 36 of the ILA. The Act also preserves the operation of the Constitution Act 1975 section 83 through section 6(3A), which provides that the suspension of pension rights for a former Solicitor-General appointed as a judge after age 65 does not limit or otherwise affect that section. There is no direct interaction with the common law, though the office of Solicitor-General existed before the Act and the Act may supersede any common law rules about precedence or appointment. The repeal of earlier Acts by the Schedule means that pension rights and duties that arose under the Solicitor-General Act 1958 and related Acts are now governed solely by this Act, subject to the saving provision in section 2(2).

The Act has been amended 13 times since its enactment in 1972, with most amendments affecting the pension provisions and the definition of partner. The Act received its first amendment in 1977 through the Statute Law Revision Act 1977, which made minor adjustments to section 4(3)(a) and section 6(1) and (2) via the schedule. The Attorney-General and Solicitor-General Act 1980 (No. 9462) substantially rewrote section 6, substituting new pension provisions that aligned the Solicitor-General’s pension more closely with the judicial pension regime. That amendment also repealed the former subsection 6(2) and introduced a new subsection. The 1980 Act was itself amended by Act No. 9549 before it commenced. The Statute Law Revision (Repeals) Act 1982 repealed the original section 7, which dealt with something else (likely spent provisions). The Constitution (Court of Appeal) Act 1994 amended section 4(3)(a) to exclude the President of the Court of Appeal and a Judge of Appeal from the salary comparison, so that the Solicitor-General’s salary is pegged to a puisne judge only, not to appellate judges. The Legal Practice Act 1996 inserted the current section 5(c) giving the Solicitor-General precedence after the Attorney-General. The Judicial and Other Pensions Legislation (Amendment) Act 2001 inserted a new section 6(2) dealing with commutation of pensions. The Attorney-General and Solicitor-General (Amendment) Act 2003 amended section 4(1) to allow appointment of a Senior Counsel in addition to Her Majesty’s or His Majesty’s counsel. The Justice Legislation (Further Amendment) Act 2006 inserted sections 6(3) and 6(3A), providing the pension entitlement for a 10-year serving Solicitor-General who retires before age 65, and suspending that entitlement if the person later becomes a judge after 65. The Constitution Amendment (Judicial Pensions) Act 2008 amended section 4(3)(b) by inserting “or his or her” for gender neutrality. The Salaries Legislation Amendment (Salary Sacrifice) Act 2008 repealed the old section 7 and inserted the current salary sacrifice provision. The Relationships Amendment (Caring Relationships) Act 2009 inserted the definitions of domestic partner and the interpretive provisions in section 6(5) and (6). The Superannuation Legislation Amendment Act 2010 substituted a new definition of partner and inserted section 6(7) to limit the retrospective effect. Most recently, the Statute Law Amendment (References to the Sovereign) Act 2023 made minor text changes in sections 3 and 4(1) and 5(a) to update references from “Her Majesty” to “His Majesty” or to remove gendered language. No amendments have altered the core structure of the office or its functions.

The source text contains no references to any litigation, case law, or judicial interpretation of the Act. The explanatory details in endnote section 3 are explicitly marked as “No entries at date of publication.” This means that the published version of the Act as at 6 September 2023 does not record any reported court decisions that have interpreted or applied the Act. The absence of litigation history in the source does not conclusively prove that no cases exist: there may be unreported decisions, decisions in other Australian jurisdictions that discuss the Victorian Act, or historical cases from before the Act’s enactment that are not cited. However, it is plausible that the Act has generated little to no judicial contest because its provisions are largely administrative and mechanical, setting out salary, pensions, and functions rather than creating rights that would be litigated by private parties. The pension provisions are tied by reference to the Constitution Act 1975, so any disputes about the Solicitor-General’s pension would likely be litigated under that Act rather than under this Act. The delegation power in section 3 could theoretically be challenged in judicial review proceedings if a Minister purported to exercise a power that was not properly delegated, but no such challenge appears in the source. The removal power in section 4(1) could be the subject of a public law challenge if the Governor in Council purported to remove a Solicitor-General without due process, but again no case is noted. The precedence provision in section 5(c) might be tested in court if a dispute arose about seniority among counsel, but the provision is clear and would likely be administered without litigation. Practitioners researching this Act should therefore treat the litigation history as essentially nil according to the official publication, but should conduct their own searches of case law databases to confirm. The absence of litigation may also indicate that the Act has functioned without controversy, or that disputes have been resolved internally through political or administrative means rather than through the courts.

Several features of the Act are easy to overlook but carry practical significance. First, section 3 allows any Minister to perform any power or duty of the Attorney-General. It does not require the Minister to be acting as Attorney-General; it says “any Minister for the time being acting for or on the behalf of the Attorney-General.” This is extraordinarily broad. A Minister for Transport could in theory exercise the Attorney-General’s historic powers, including the power to stay prosecutions or to issue fiat for relator actions. There is no requirement of legal training, no limit to the nature of the power, and no requirement that the Attorney-General be unavailable. This could be used to circumvent the independence of the Attorney-General in politically sensitive matters. Second, the prohibition on practising the profession in section 4(3)(b) is absolute. It does not merely restrict private practice; it extends to “any other employment.” That means the Solicitor-General cannot hold a directorship, cannot teach at a university for a fee, cannot serve as a consultant, and cannot act as an arbitrator or mediator in a private capacity. The only permitted work is the exercise of the functions of the office. For a senior barrister accustomed to a high income from private practice, this represents a significant financial sacrifice, which the salary and pension package is designed to offset. Third, the pension cliff at 10 years in section 6(3) is harsh. If a Solicitor-General serves 9 years and 364 days, then retires under age 65, there is no pension entitlement until age 65. Only service of exactly 10 years or more triggers the deferred pension. An early departure just short of 10 years could leave the former office holder with no state pension until 65, though they could of course make private superannuation arrangements. Fourth, the salary sacrifice provision in section 7 does not specify any limit on the portion of salary that can be sacrificed. Theoretically, the entire salary could be taken as non-salary benefits. However, the definition of non-salary benefits from the Public Administration Act 2004 is narrow and may exclude many common fringe benefits. Fringe benefits tax implications would apply. The notice requirement is minimal and there is no cooling-off period, so an arrangement could be varied or revoked the same day it was made. Fifth, the domestic partner definition in section 6(5) relies on the opinion of the Minister. This gives the Minister a subjective discretion to determine whether a person is living as a couple on a genuine domestic basis. There is no statutory right of review or appeal from that opinion. The opinion could change with a change of Minister, potentially affecting pension eligibility. Sixth, the commutation provisions in section 6(2) apply “with such modifications as are necessary,” which introduces uncertainty about exactly how the Constitution Act sections are to be adapted. Finally, the Act does not specify a fixed term for the Solicitor-General. Appointment is at pleasure, subject to removal by the Governor in Council. This means there is no statutory tenure protection, unlike for judges. The office holder serves at the political discretion of the government of the day, despite the quasi-judicial nature of the role.

Compliance with the Act is straightforward for the handful of individuals and entities it regulates. For a person appointed as Solicitor-General, the primary obligation is to comply with section 4(3)(b) by not engaging in the practice of the profession and not undertaking any other employment. This requires the office holder to resign from any private practice, to decline all briefs, to step down from any company directorships, and to cease any paid teaching or consulting roles. The prohibition extends to any activity that could be construed as the practice of law or as employment, even if unpaid, if it falls outside the functions of the office. The Solicitor-General should obtain a written instrument from the Attorney-General specifying the scope of duties of counsel to be performed under section 5(a), so that any activity is clearly within the office’s functions. For tax and payroll purposes, the Solicitor-General must ensure that any salary sacrifice arrangement under section 7 complies with the definition of non-salary benefits in the Public Administration Act 2004. The arrangement must be in writing, addressed to the Attorney-General, and specify a start date that is the date of the notice or later. Variations and revocations must be in writing and specify an effective date. The arrangement should be reviewed by the department’s payroll team to confirm that the benefits are permissible and that fringe benefits tax is correctly handled. In relation to pension entitlements, the Solicitor-General should keep accurate records of service dates to establish the 10-year threshold under section 6(3). If retiring before age 65 after at least 10 years, the office holder should notify the Department of Justice and Community Safety of the retirement date and date of birth so that the deferred pension is set to commence at age 65. The partner and children should be aware of the eligibility criteria and the need for the Minister to form an opinion on domestic partnership if not married. For the Attorney-General and the portfolio department, compliance means ensuring that any Minister acting for the Attorney-General under section 3 is properly authorised. The authorisation should be in writing, specifying the powers or duties to be exercised. The department should also ensure that the Solicitor-General’s salary and allowances are kept aligned with those of a puisne Supreme Court judge, and that any changes to judicial salaries are automatically applied. For the Victorian Treasury, the pension obligations must be funded from the Consolidated Fund as section 6(4) provides an appropriation. The commutation provisions should be administered consistently with the Constitution Act 1975, with necessary modifications documented. There is no requirement to obtain external legal advice before each payment. Finally, the department should maintain a register of appointments and removals to track service periods accurately.