Information Relevant to: Why did the Commonwealth not Participate in Hilda Zhang’s Constitutional Case?

Lawyer Nicholas N Chin of Western Australia in his blog

 http://wwwnicholasnchin.blogspot.com.au/2013/09/high-court-lectures-on-prerogative-writs.html referred to Part 2 of Critical Reflections on Australian Public Policy http://press.anu.edu.au//anzsog/critical/mobile_devices/index.html, which was edited by John Wanna, Sir John Bunting Chair of Public Administration, Research School of Social Science the Australian National University, to provide thoughts which were relevant to: why did the Commonwealth not participate in Hilda Zhang’s constitutional case?
Part 2, Reflections on Australian politics and policy, was written by Griffith University’s Patrick Weller AO. Professor Weller holds an ANZSOG Chair at Griffith University, where he is also a professor of Politics and Public Policy and a director of the Centre for Governance and Public Policy. The relevant information is:

The Procedure

1. If the case is one to which the Commonwealth is not a party, the first step is for the Attorney-General to decide whether to intervene. Generally, s.78B notices are received in the Attorney-General’s office, which forwards the notice to the Constitutional Litigation Unit of the Australian Government Solicitor (AGS).
2. AGS is a law firm owned by the Commonwealth. Pursuant to the Legal Services Directions 2005 (which are made under the Judiciary Act), generally speaking, and subject to [his] role as the Solicitor-General, constitutional work can be performed only by AGS and the Attorney-General’s Department.
3. AGS forms a view on whether the Attorney-General should intervene. In doing so, AGS consults with the Solicitor-General, the Constitutional Policy Unit of the Attorney-General’s Department and any other area of the department or other department that has a policy interest in the subject matter of the notice (for example, if the constitutional issue is the validity of a Commonwealth law, AGS consults with the department that administers that law).
4. If AGS and the Solicitor-General agree that there should be no intervention, the Attorney-General is not further consulted and there is no intervention.
5. If the Attorney-General approves intervention, generally, AGS acts for the Attorney-General in the conduct of the matter, but briefs counsel to appear for the Attorney-General at the hearing. Generally, AGS will brief one senior and one junior barrister.
6. The pool of talent from which counsel are selected includes the Solicitor-General, senior constitutional lawyers employed by AGS (for example, AGS’s Chief General Counsel, Henry Burmester) and private barristers with expertise in constitutional law.

Why do constitutional matters need counsels selected from public sector and private practice?

1. AGS and Attorney-General’s Department lawyers and advisers generally have strong relationships with, and the trust of, the government. These lawyers have finely honed skills in constitutional law and policy, as well as long memories of cases won and lost in the past and a good sense of some of the reasons why. They have advantages of specialist expertise in public law.
2. Private barristers offer the attribute of independence. As sole practitioners bound by the cab-rank rule to act for all who come to them regardless of their personal views, private barristers tend to practice on both sides of the record. (Paragraph 602–606 of the Code of Conduct of the Bar of England and Wales state: A self-employed barrister must comply with the "Cab-rank rule" and accordingly. The rule derives its name from the tradition by which a Hackney carriage driver at the head of a queue of taxicabs is supposed to take the first passenger requesting a ride.) A barrister who represents all sides over time is better able to advise his or her client at any particular time; he or she tends to have a broader view of the law than a solicitor who acts only for or against the Commonwealth.
3. By retaining private barristers to appear for it, the Commonwealth enhances its capacity sensibly to cooperate with opponents in the conduct and, occasionally, settlement of cases. Almost universally, private barristers with expertise in constitutional law trust one another. These barristers represent a small pool of lawyers who regularly appear with, and against, each other. These circumstances facilitate a highly respectful and cordial professional culture that is amenable to the smooth conduct of litigation.

The Solicitor-General

1. As a matter of practice, the dominant function of the Solicitor-General has been to appear on behalf of the Commonwealth in important constitutional cases.
2. the Solicitor-General has generally been selected from the pool of private barristers with expertise in constitutional law. He has represented many interests over his career and forged many strong relationships with fellow barristers.

Matters influencing the Solicitor-General not to intervene in a constitutional matter

1. The Commonwealth not putting submissions in one case that are inconsistent with its submissions in another
2. Not giving an answer to a question from the Bench in one case that might be used against the Commonwealth in another.
3. Whether there is likely to be an appeal from the judgment of the court
4. Whether a Commonwealth party is already involved in the matter
5. Whether the applicant is represented.