The Survival and Tenure of Australian Attorneys General

HCA
(c) High Court of Australia

The person who holds the portfolio of Attorney-General is rarely front of mind in the Australian collective political consciousness. The positions of Prime Minister, Treasurer, and Minister for Foreign Affairs are afforded greater attention. Yet in the Australian political system, the portfolio of Attorney-General has, by virtue of its roles and responsibilities, a great deal more institutional power than its lesser prominence would suggest.

The Attorney-General has three particular roles:

  • chief law officer
  • minister of the crown, and
  • public defender of the courts.

As chief law officer, the Attorney-General is expected to be impartial in most legal cases, and to represent the crown in judicial proceedings, and to have formal oversight of initiating criminal prosecutions, including actions for contempt of court.

As minister of the crown, the Attorney-General is responsible for some crucial realms of policy in cabinet, including the selection of judges, legal policy, and law reform.

As defender of the courts, the Attorney-General is expected to defend the courts and judges from public criticism.

These roles and responsibilities are shared by both commonwealth Attorneys-General and their state and territory counterparts.

In this way, the Attorney-General is distinct from other portfolios. Rather than just policy oversight, the Attorney- General possesses the ability to directly intervene, or ‘participate’ in their area of policy. The ability to intervene in litigation, and recommend prosecutions involves a level of participation that other portfolios do not possess – for example, the Minister for Health cannot ‘participate’ in the same way; they are not authorised to act as a health practitioner or give medical advice.

Yet the roles and responsibilities of the Attorney-General go beyond setting out how they should act. Research into the survival of ministerial appointments emphasise institutional factors, personal, and professional characteristics in examining survival and tenure. There is, however, less attention paid to how the specific features of a portfolio affect ministerial survival Are the specific people appointed as Attorney-General shaped by the specifics of the portfolio? There is some prima facie evidence for this: the position either requires or assumes an Attorney-General will have a law degree, which the data confirms – approximately 63% of those appointed have a law degree. The question is, what role do the features of the portfolio have in ministerial survival and tenure?

Methods/Data

To address this question, I constructed a dataset on Commonwealth and state/territory Attorneys-General from 1941 to present (excluding incumbent). The variables of the dataset include personal information (including education), professional qualifications, experience (including previous employment), and political experience

In order to examine the various features of those appointed Attorney-General, I relied on both standard descriptive statistics, but also survival analysis. Survival analysis works by setting a type of ‘death’, in the case of the Attorney-General portfolio being departure from office and determining the characteristics of people that experience that ‘death’. For this study, I set ‘voluntary removal’ and ‘reshuffled out of office’ as the two types of ‘death’. These types of removal were chosen as, of the types of removal that were affected by the characteristics of the occupant, they occurred the most. I excluded ‘fall of government’, as it depends on party performance rather than individual characteristics, and non-political reasons including death.

Findings

Duration

One of the foremost conclusions from the research is that people appointed to the Attorney-General portfolio tend to have longer tenure than those in other portfolios. The average duration across both the Commonwealth and states and territories is 38.17 months, with the Commonwealth average being 34.65 months, and the state/territory average being 38.78. At the Commonwealth level, the average tenure of the Attorney-General extends well beyond most other portfolios. For the period 1945-2015, the Attorney-General was behind only the Prime Minister (48.64 months) and Treasurer (38.82 months) in terms of average duration. Foreign Affairs was the next portfolio after Attorney-General, at 32.37 months. This is, according to literature on ministerial survival, indicative of a portfolio of higher importance.

Reasons for Exit

Literature on ministerial survival also emphasises that more prominent portfolios are more likely to experience certain types of exit more than others. Holders of more prominent portfolios are, for example, more likely to be reshuffled out of their position, indicative of the Prime Minister exerting control over it.

In terms of the Attorneys-General in Australia, the most common way that an Attorney-General will leave office is either by reshuffle, voluntary exit, and by the party of the minister leaving office. Of these types of exit, 18% left voluntarily, and 39% left via a ministerial reshuffle. 28.5% left when the party of government lost an election, though this was excluded as it depends too greatly on non-personal factors. The remaining Attorneys-General left for non-political reasons, and a very small number (approximately 2%) left due to some kind of controversy.

Determinants of Exit

In looking at the ways that Attorneys-General leave office, and the features of those that leave in particular ways, a number of stories emerge.

One of the more common assumptions concerning the Attorney-General is that holders of the portfolio often leave to take up a judicial post. I find that those who immediately take up a judicial post are more than twice as likely to leave voluntarily than those who do not, essentially confirming that assumption. This occurs at both the national and subnational level. Similarly, those who voluntarily resign the portfolio are much less likely to remain in the ministry or parliament; they rarely resign the portfolio for an alternative ministerial position.

For those that were reshuffled out of the portfolio, the data sets out a number of other stories. Attorneys-General who were reshuffled out rarely, if at all, decide to retire rather than taking up their next post. Indeed, the more common scenario for those who experienced a reshuffle is that they proceed to take up their next portfolio. While some are reshuffled onto the backbench, and have no subsequent ministerial appointment, it is more likely that an Attorney-General be reshuffled to a different appointment.

The specific roles and responsibilities of the Attorney-General, therefore, provide some insight into how its features can affect the kind of person who occupies it. Furthermore, greater understanding of the types of person who occupies a portfolio can shape their selection and exit.

Edmund Handby is a PhD Candidate with the School of Politics and International Relations, Australian National University. This post is based on an article of the same title that appeared in a recent edition of the journal Commonwealth & Comparative Politics.