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Tuesday, 12 September 1972
Page: 737

(Question No. 2373)

Senator WRIEDT (TASMANIA) asked the AttorneyGeneral, upon notice:

On what specific grounds did the AttorneyGeneral refuse to grant a fiat to the Defence of Government Schools group on Commonwealth assistance to private schools, and was he obliged to take into account the public interest in making the decision; if so what factors did he consider and, if not, to what extent was his decision influenced by the degree of substance in the groups's challenge.

Senator GREENWOOD - The answer to the honourable senator's question is as follows:

The question of the grant of a fiat by the Attorney-General is a matter that is within the discretion of the Attorney-General. The discretion is exercised on a basis that the Attorney-General represents the public interest.

I recognise, however, that there is a substantial difference between the situation in which the Attorney-General is asked to grant his fiat to ensure that public duties are performed and, thereby, to overcome a deficiency when a private citizen has no locus standi because the duty is owed to the public, and the situation where the Attorney-General is, in effect, asked to lend his name to proceedings for the purpose of challenging the constitutional validity of Commonwealth legislation. It is not appropriate, in my view, in the public interest, for the Attorney-General of the Commonwealth an grant his fiat in proceedings directed to establishing that Commonwealth Statutes are unconstitutional. So far as I am aware, no Attorney-General of the Commonwealth has ever granted his fiat for this purpose.

The exercise of the discretion does not depend merely on whether there is some degree of substance in the proposed proceedings, although I see no reason to question the validity of the legislation to which the application referred.

As I have said publicly at an earlier stage, my decision not to grant a fiat does not preclude a challenge being made to the legislation. It is possible for proceedings to be taken by the Attorney-General of a State, either on his own initiative, or on the relation of citizens of the State who claim that they are adversely affected by the Commonwealth legislation. The matter would, of course, be one for the discretion of the particular Attorney-General.

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