AGY-21 | Crown Solicitor's Office

Full description

On 13 February 1814 Earl Bathurst advised Governor Macquarie that he had selected two solicitors to be sent to New South Wales at a salary of £300 per annum. (1) Subsequently Earl Bathurst advised that they (W.H. Moore and Frederick Garling ) should "be allowed every indulgence which has hitherto been extended to civil colonial officers of the higher classes" (2) and they were to work individually in their private practices, and, by assisting the Crown in the recently established procedure of the Court of Judicature (3).

The list of NSW Civil and Military appointments of 1815 shows W.H. Moore as Solicitor to the Crown, appointed by the Crown.(4) " Moore built up a lucrative practice and prospered in commercial transactions within NSW, but his career as a public servant was very chequered".(5) He failed to adequately represent the Crown in criminal cases and was instrumental in maintaining a perpetual state of 'muddle' in the Crown Solicitor's Office (6). In 1816 Governor Macquarie withdrew Moore's salary and indulgences (7) but in 1817 was ordered by Earl Bathurst to reinstate him with all privileges (8). This re-instatement was short-lived and he was finally dismissed with the approval of Earl Bathurst (9) and was succeeded by Thomas Wylde. (10)

A dispatch dated 17 July 1827 informed Governor Darling of the appointment of a third Judge and intended appointment of Solicitor General, making it possible to dispense with the office of Crown Solicitor. (11)The fate of the office between 1827-1829 is unclear from the available sources.

By 1829 Governor Darling realised that some change was necessary in the interests of the Crown and of justice in the Colony. Attorney General Baxter advised that mere clerical support for the Attorney General was insufficient for the needs of the colony (12) and recommended to the Governor that a second senior law officer was required to carry out a range of duties including a) conducting the civil business of the Crown, b) assisting magistrates and subordinate legal officers c) perusing depositions unusual cases and advising whether further evidence is required d) deputising in the absence of the Attorney General (13) The Executive Council approved the appointment of a Crown Solicitor at its meeting on 19 June 1829. (14)

The re-appointment of W.H. Moore as Crown Solicitor was approved in a letter from Sir George Murray dated 6 June 1830 (15).

Moore cited the following activities as his responsibility: drawing Contracts for buildings, Bonds for Tolls and Ferries, the Mails, Securities for Monies due to Government, correspondence with the Magistrates on points of Law, defence of numerous actions and various other matters. In addition, the defence of numerous actions and applications to the Court that are continually arising out of proceedings of the Magistrates and the information in matters of Libel and for Penalties which require considerable consideration and research (16).

In 1833 Colonial Secretary wrote to Moore outlining the role of the Crown Solicitor:
. obtaining information on criminal cases before the court as required by the Attorney-General
. furnish a list of depositions to the Attorney General one week before the commencement of the session
. upon instruction from the Attorney-General to send a list to the gaols naming prisoners to stand trail to date;
. subpoena witnesses for the defence as well as prosecution, and keep a written record of subpoenas;
. prepare briefs for the Solicitor General in court and give assistance to the Attorney General whenever not in attendance with the Solicitor General.
. arrange for the attendance of witnesses
. each evening during sittings to present to the Solicitor General a list of cases for hearing the following day including a list of witnesses
. prepare for the Sheriff a list of prisoners intended for trial the next day and list of any person in his custody who may be required as a witness.
. prepare for the Superintendent of convicts a list of any required as witnesses the following day
. attend court and act as attorney for prosecution and assist the Solicitor-General obtaining any information he may require. (17)

In 1839 Sir George Gipps made reforms in the office of the Crown Solicitor. The office was divided into two separate branches, the Criminal and Civil, and was established as such by a Minute of the Legislative Council dated 23 July 1839. This led to the appointment of a Crown Solicitor to each branch (18). The office continued to be divided in this manner until 1860. (19)

The Crown Solicitor was a legal officer of the Judicial Establishment responsible to the chief law officer, the Attorney General. From 1856 the office is represented as a unit of the "Crown Law Officers" and in 1874 is listed as a separate office under the Attorney General. In 1901 when the departments of the Attorney General and Justice were amalgamated, the Crown Solicitor remained under the control of the Portfolio of Attorney General. (20)

The Crown Solicitor acts as solicitor for, and legal adviser to, the Government. As such his Office provides services to Ministers of the Crown, the various areas of the Executive Government, other public bodies and authorities, persons in the service of the State requiring legal assistance arising in the course of their official responsibilities, and other persons in respect to whom the Office may from time to time be authorised to act. (21)

Such legal services include the conduct of defence of all matter of litigation; appearances before the conduct of cases in the Courts and before other tribunals; the conduct of criminal and quasi-criminal prosecutions; the completion of purchases, resumptions and other conveyancing transactions; and the preparation of agreements, counteracts, deeds and all kinds of legal documents and forms. The Crown Solicitor advises on matters involving the legal interpretation of statutes, regulations and by-laws, and generally on any question of a legal nature submitted to him by the Government or any Government department or agency for which he acts.

The Crown Solicitor's Office also provides assistance to Royal Commissions, Government inquiries and coronial inquiries as well as providing facilities for debt recovery (22).

The Crown Solicitor was administratively placed in the Legal Services program of the Attorney General's Department in 1993 (23) The following year it was placed in the Commercial Services Program. (24) The program was re-named Commercial Enterprises in 1996-97. (25) In 2002 the program arrangement of the Attorney General's Department ceased and Crown Solicitor began reporting directly to the Director General of the Department.(26)

On 1 July 1993 the Crown Solicitor's Office began a phased move towards commercial operation. The arrangements were that the Office would compete for the delivery of legal services but that it would continue to provide specialist services to a small number of central agencies and retain an exclusive role in some core legal work. (27) The Office became fully commercial on 1 July 1995. (28) From 1 July 2009 when the Attorney General's Department was abolished the Crown Solicitor's Office became a branch of the new Principal Department, the Department of Justice and Attorney General. (29)

From 4 April 2011 when the name of the Department of Justice and Attorney General was changed the Crown Solicitor's Office became a branch of the Department of Attorney General and Justice. (30)

On 24 February 2014, the CSO became a Public Service Executive Agency related to the Department of Attorney General and Justice, with the Crown Solicitor as head of the agency under Schedule 1 of the Government Sector Employment Act 2013. (31)

Lea Armstrong, the state's first female Crown Solicitor, was appointed in June 2015 and served until October 2018. Karen Smith commenced as Crown Solicitor on 15 April 2019. (32)

From 1 July 2019, when the Department of Communities and Justice (DCJ) brought together the former departments of Family and Community Services (FACS) and Justice, the Crown Solicitor's Office became part of the Department of Communities and Justice. (33)

Endnotes
1. HRA, Series I Vol VIII p.139.
2. HRA, Series I Vol VIII p.268.
3. Ibid., p.269.
4. HRA Series I Vol IX, p.94.
5. "Concise Guide" "Cor - Cu", "Crown Solicitors Office" p.102.
6. Ibid.
7. HRA Series I Vol IX, p.46.
8. Ibid., pp.385-6.
9. Ibid., p.822.
10. Ibid., p.835.
11. HRA Series I Vol XIII, p.448.
12. HRA Series I Vol XIV, p.372.
13. Ibid p.373.
14. HRA Series I, Vol XV p.101.
15. Ibid., p.537.
16. Ibid., pp.455-6.
17. HRA Series I, Vol XVII, pp.348-9.
18. HRA Series I Vol. XX, p.437.
19. Public Service Lists, 1860, p.77.
20. Public Service Lists (various years) "1856-1960".
21. Concise Guide Cor-Cu, p.103.
22. Ibid.
23. Report of the Attorney General's Department 30 June 1993, pp.5, 23.
24. Report of the Attorney General's Department 30 June 1994, pp.5, 46.
25. Report of the Attorney General's Department 30 June 1997, pp.37-38.
26. Report of the Attorney General's Department 30 June 2002, p.7.
27. Report of the Attorney General's Department 30 June 1994, pp.9, 46.
28. Report of the Attorney General's Department 30 June 1995, p.60.
29. Public Sector Employment and Management (Departmental Amalgamations) Order 2009 (2009 No 352) cls. 20; notified on NSW Legislation website, 27 July 2009.
30. Public Sector Employment and Management (Departments) Order 2011 (2011 No 184) cls. 36; notified on NSW Legislation website, 3 April 2011.
31. Crown Solicitor's Office website, About Us, https://cso.nsw.gov.au/about-us/history.html (accessed 5 December 2022).
32. Ibid.
33. Administrative Arrangements (Administrative Changes—Public Service Agencies) Order 2019 (2019 No 159) cl. 11 (2) Legislation website, 2 April 2019 as amended by the Administrative Arrangements (Administrative Changes Miscellaneous) Order 2019 (2019 No 308) cls. 6 and 2 (4) Legislation website, 1 May 2019.