Bills Digest no. 105 2014–15
PDF version [640KB]
WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Moira Coombs
Law and Bills Digest Section
13 May 2015
Contents
Purpose
of the Bill
Background
Committee consideration
Statement of Compatibility with Human Rights
Policy position of non-government parties
Position of major interest groups
Financial implications
Key issues and provisions
Schedule 1—main amendments
Schedule 2—consequential amendments
Schedule 3—transitional arrangements
Concluding comments
Date introduced: 26
March 2015
House: Senate
Portfolio: Attorney-General
Commencement: Sections
1–3 commence on Royal Assent. Schedules 1–3 commence on the earlier of a day
fixed by Proclamation or six months after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The purpose of the Judiciary Amendment Bill 2015 (the
Bill) is to amend the Judiciary Act 1903[1]
to consolidate the Australian Government Solicitor into the Attorney-General’s
Department. The Bill implements a decision announced in the Mid-year
Economic and Fiscal Outlook 2014–15 in December 2014 as part of the
Government’s Smaller Government Reform Agenda.[2]
In his, or her, capacity as First Law Officer, the
Attorney-General is responsible ‘for Commonwealth laws, the legal system and
the Commonwealth’s role within that system’.[3]
The Attorney-General’s Department is the Government’s legal adviser.[4]
The Attorney-General’s legal services function encompasses
a number of specific roles:
- as
principal legal adviser to the Cabinet and the Commonwealth Government
- being
responsible for the Office of Parliamentary Counsel and
- being
responsible for litigation relevant to the Commonwealth.[5]
The purpose of the Australian Government Solicitor is to
support the executive government and more specifically the Attorney-General.[6]
It ensures that the Government receives high quality legal and related services
that advance the national interest. The Australian Government Solicitor
undertakes two types of work. The first is ‘tied’ work, being legal work
associated with the Constitution, Cabinet matters, national security and public
international law.[7]
The second is providing assistance to government agencies to comply with Legal
Services Directions and the obligation to behave as a model litigant in the
conduct of litigation.[8]
Establishment of Australian
Government Solicitor
In 1984 the Australian Government Solicitor was created to
replace the personal office of Crown Solicitor in order to bring the work
previously performed by the Crown Solicitor’s Division more into the mainstream
of the Attorney-General’s Department. This initiative was part of a major
re-structuring of the Attorney-General’s Department to make it more responsive
and efficient in meeting the requirements of Government and clients.[9]
The Australian Government Solicitor would be the ‘firm’
name under which the Secretary of the Attorney‑General’s Department and
the designated officers would conduct the business of the Solicitor of the
Commonwealth. At that time, subsection 553(9) of the Judiciary Act specifically
imposed the ordinary professional duties and obligations of a solicitor on the Secretary
and the designated officers in respect of their actions in the name of the
Australian Government Solicitor.[10]
For technical reasons, the Australian Government Solicitor was established as a
body corporate. As a result, solicitors’ functions would be carried out in a
corporate name, on behalf of a government.[11]
The purpose of establishing the Australian Government Solicitor
was to:
- integrate
the legal services provided by the Attorney-General’s Department in a more
efficient way
- enhance
control of litigation by enabling a number of professionally qualified persons
to act on behalf of the Australian Government Solicitor and
- devolve
as far as practicable, responsibility for the conduct of the Commonwealth’s
legal work (particularly litigation) in each state and territory to those
actually performing the work at the local level.[12]
Attorney-General’s Legal Practice
In August 1989, the Government made an in-principle
commitment that the Attorney-General’s Department would move towards charging other
agencies for the legal services it provided to them. This commitment was put
into effect in February 1991, when agencies began receiving budget allocations
to purchase legal services from the Attorney-General’s Department on a
user-pays basis.[13]
On 1 July 1992, the Government established the Attorney-General’s
Legal Practice (which has no statutory structure) as a partly commercial unit
within the Attorney-General’s Department, to provide:
- legal
services to agencies on a commercial basis and some legal services to the Attorney-General
or agencies on a Budget-funded basis and
- policy
services on a Budget-funded basis.[14]
The Attorney-General’s Legal Practice comprised:
- the
Australian Government Solicitor
- the
Chief General Counsel
- the
Central Practice, which provided business, commercial, litigation, general
counsel, international law, and legislative drafting services
- offices
of the Australian Government Solicitor in each capital city and Townsville
- three
policy divisions, which performed mainly Budget-funded work, but also some work
on a billable basis, and
- a
support services group.[15]
However, as early as 1996, the National Commission of
Audit concluded:
The Legal Practice of the Attorney-General’s Department
employs some 1300 staff in both commercial and budget funded work. Just under
half of the Legal Practice’s work is in litigation. There are alternative
private sector providers who can provide cost effective and confidential legal
advice to the Commonwealth and there appears to be no continuing need for
the Commonwealth to be involved in this area as a service provider. The
business of the Legal Practice appears to be in an ideal position to downsize to
a core budget funded area responsible only for policy advice. (emphasis added)[16]
The Commission recommended that the Government should
urgently undertake a systematic review of government services with a view to
whether they were in the public interest.[17]
Relevant reviews
Logan Review 1997
In response to the general recommendation of the
Commission, together with a number of other policy statements and reports, the Review of the Attorney-General's Legal Practice,
(known as the Logan
Review) was commissioned by the Attorney-General in 1996.[18]
The Logan Review in 1997 resulted in the creation of the Australian Government
Solicitor as an independent entity to provide the legal services previously
provided by the Attorney-General’s Legal Practice on a commercially competitive
basis, and to support the role of the Attorney-General whose specialist legal
needs were seen as core to government.[19]
Prior to the Australian Government Solicitor becoming a statutory authority it operated
as a separate administrative unit within the Attorney-General’s Department.[20]
The Logan Review determined that, in principle, the
Government should not be in the business of providing legal services unless
there was a clear public interest in doing so. Applying that criterion, the Logan
Review found there was a strong and necessary public interest in maintaining a
central legal services provider, to:
- provide
for the particular legal service needs of the Commonwealth, in particular
public law services which are often on issues of high risk to the Commonwealth
- satisfy
the legitimate other needs of agencies, including the need for a whole-of-government
approach and understanding in some matters and
- support
the unique role of the Attorney-General, whose specialist legal service needs
are core to government.[21]
As a result of the recommendations of the Logan Review, the
Government passed the Judiciary Amendment Act 1999, which commenced on 1
September 1999.[22]
That Act established the Australian Government Solicitor as a separate
statutory authority and empowered the Attorney-General to issue Legal Services Directions.
This reinforced the decentralised approach to legal services procurement, with heads
of agencies responsible for their own procurement decisions. Agencies were, and
remain today, free to choose the type of legal services they require, and the
method of procurement for those services—subject to the limitations regarding
tied work, model litigant obligations and other requirements set out in the Legal
Services Directions.[23]
Blunn-Krieger Review 2009
The Blunn-Krieger Review was set up in 2009 to examine
current practices and advise on whether another model of legal services
procurement should be adopted. It also examined how the Commonwealth could best
make use of in-house legal services.[24]
In relation to Australian Government Solicitor the Blunn-Krieger
Review recommended that:
Any review of the role of AGS [Australian Government Solicitor]
as the whole-of-government legal practice have regard to the role and growth of
agency in-house practices and the impact of those practices on AGS’s ability to
maintain a highly specialised, skilled and professional legal practice limited
to Commonwealth work, and on the ability of the Commonwealth to maintain
consistency of approach with regard to matters of legal principle.[25]
And that:
AGS be included, as of right, on all agency [legal service
provider] panels.[26]
As the Shadow Attorney-General noted in a recent speech, the
Blunn-Krieger Review did not recommend the consolidation of the Australian Government
Solicitor within the Attorney-General’s Department.[27]
Financial performance of the Australian
Government Solicitor
The Australian Government Solicitor became a Commonwealth
authority and a government business enterprise on 1 September 1999 and, consequently
became statutorily independent from its former parent organisation, the
Attorney-General’s Department:
On the same day, the provision of court litigation services
for Commonwealth budget funded departments and agencies were opened up to full
competition between the Australian Government Solicitor and private sector
providers. Except for a small area of sensitive government law work, the Australian
Government Solicitor operates in direct competition with private sector law
firms for the Commonwealth’s legal work.[28]
Turnover and profits for the first year exceeded the
targets set by the shareholder Ministers.[29]
The total dividend for 1999–2000 was $5,124,000 which was paid to the
Commonwealth.[30]
Between 1999 and 2014, the Australian Government Solicitor
has made payments to the Commonwealth of approximately $245 million, covering
dividends, taxation, competitive neutrality payments and loan repayments,[31]
and has made profits of $164 million.[32]
Dividends paid to the Commonwealth in the financial year 2013–14 amounted to
$6.6 million.[33]
The Australian Government Solicitor has operated as a
profitable organisation that receives no budget funding. It remains the leading
supplier in the government external legal services market, despite increased
competition.[34]
National Commission of Audit
In 2013, the National Commission of Audit was established as
an independent body to report on the performance, functions and roles of the
Commonwealth government.[35]
In its phase two report of March 2014, the National Commission of Audit recommended
the ‘consolidation of the Australian Government Solicitor’s Office of General
Counsel into the Attorney-General’s Department’ and ‘a review to establish
options for the wind-up of the remainder of the entity, including possible sale
of the entity’s client book’.[36]
The National Commission of Audit saw ‘no compelling rationale’ for the
Australian Government Solicitor to compete with the private sector in the
contestable government legal services market.[37]
The phase two report states:
Recognising that the division of ... responsibilities [between
the Australian Government Solicitor and
the Attorney‑General’s Department] is less than ideal, the Commission considers
the Department’s role in the provision of coordinated and strategic advice could
be substantially strengthened if the Australian Government Solicitor’s
functions most closely related to the core executive activities of government
were consolidated into the Attorney‑General’s Department–namely those
functions provided by the Office of General Counsel.[38]
The Government indicated its intention in the Mid-year
Economic and Fiscal Outlook for 2014–15 stating:
The Government will achieve efficiencies by absorbing the
Australian Government Solicitor within the Attorney‑General’s Department.
Following the amalgamation, the Government will conduct a review of legal
services to identify efficiencies that can be gained in government legal costs.
This measure is part of the third phase of the Smaller
Government reforms which reduce the size and complexity of government.[39]
At its meeting of 26 March 2015, the Senate Selection of
Bills Committee deferred consideration of the Bill to its next meeting.[40]
Senate Standing Committee for the
Scrutiny of Bills
At the time of writing this Bills Digest, the Standing Committee
for the Scrutiny of Bills had not published any comments in relation to the
Bill.
At the time of writing this Bills Digest, the Parliamentary
Joint Committee on Human Rights had not published any comments in relation to
the Bill.
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The Government
considers that the Bill is compatible.[41]
Australian Labor Party (ALP) Shadow Attorney-General, Mark
Dreyfus QC, has strongly objected to the proposal to close the Australian
Government Solicitor on the grounds that it is ‘short-sighted and will cost the
Government into the future’. He contends that ‘no money will be saved by
closing the AGS. The work of the AGS will simply now be contracted out to
private law firms for a much higher price’.[42]
In a recent speech, Mr Dreyfus noted the complexities of
the supply of legal services to the Government:
Due both to constitutional development and evolving community
expectations, the modern Commonwealth Government is now a vastly broader and
more complex creature than the founders of our nation could have imagined. The
legal needs of the Commonwealth have grown apace.
The Commonwealth’s legal advisors must grapple not only with
domestic matters but also with a system of international law and legal
institutions that has flourished and matured since Federation.
In the face of all of this, the Commonwealth’s legal armoury
has of course expanded. There are now over 1,500 staff at the
Attorney-General’s Department, and many more in statutory agencies reporting to
the Attorney-General. The AGS employs hundreds of lawyers around the country.
In-house legal teams operate with great skill in numerous Commonwealth
agencies. And, of course, much of the Commonwealth’s legal work has in recent
decades been opened up to private law firms: last year some 59% of Commonwealth
agencies’ external legal spend. There is an emerging practice of briefing
counsel directly, a practice the current Attorney-General has promised to rely
on more frequently...
It has been nearly three decades since the Commonwealth began
to pursue serious contestability and competition among providers of its legal
services.
It is almost 20 years since the Logan Review, in pursuit of
those goals, recommended the creation of the AGS in its current form.
It is not yet clear to me what the Government intends to
achieve with its reshuffling of the AGS back into the Department. I note that
the last review of the Commonwealth’s legal services, the Blunn Krieger Report
of 2009, did not recommend such a consolidation.[43]
Sydney human rights lawyer George Newhouse has opined that
the move to shut down the Australian Government Solicitor and transfer some of
its staff to the Attorney-General’s Department is ’unlikely to result in
savings and it could compromise the independence of government solicitors if
lawyers were paid from within the department’.[44]
According to the Explanatory Memorandum, the Bill will
have a nil financial impact on government departments and agencies. After the
integration of the Australian Government Solicitor into the Attorney-General’s
Department, the Secretary of the Department will undertake a review of
Commonwealth legal services to identify efficiencies that can be gained in
governmental legal costs.[45]
Definition of AGS lawyer
Part VIIIB of the Judiciary Act establishes the
Australian Government Solicitor and, amongst other things, sets out its functions
and powers.[46]
Within Part VIIIB, section 55I contains relevant definitions.
Item 2 of Schedule 1 of the Bill repeals and replaces the definition of AGS
lawyer in section 55I. At present, the term AGS lawyer
refers to the Chief Executive Officer (CEO) of the Australian Government
Solicitor or to an employee of the Australian Government Solicitor whose name
appears on the roll of barristers and solicitors of the High Court or the roll
of barristers, solicitors or legal practitioners of the Supreme Court of a state
or territory. The revised definition comprises:
- the
Australian Government Solicitor, who under proposed section 55J of the Judiciary
Act will be a person rather than, as currently, a body corporate with a CEO
(current section 55M, which will be repealed by item 6 of Schedule 1
of the Bill) and
- an
employee of the Attorney-General’s Department, engaged under the Public
Service Act 1999, who ordinarily performs work for clients, or under the
supervision, of the Australian Government Solicitor.[47]
As is currently the case, an AGS lawyer is required to be on
the roll of barristers or solicitors of the High Court or the roll of
barristers, solicitors or legal practitioners of a Supreme Court of a state or territory.
Item 3 of Schedule 1 of the Bill repeals the
definition of CEO.
AGS will no longer be a statutory
corporation
In its current form, Division 2 of Part VIIIB of the Judiciary
Act establishes the Australian Government Solicitor as a statutory
authority which is independent of the Attorney-General’s Department.
Item 6 of Schedule 1 of the Bill repeals sections
55J, 55K, 55L and 55M of Division 2 and inserts proposed section 55J.
The effect of this item is that the Judiciary Act will no longer contain
provisions which establish the Australian Government Solicitor as a separate
body corporate that may sue and be sued. In addition, the specific functions
and powers of the Australian Government Solicitor are removed.
Proposed section 55J provides that there is to be
an Australian Government Solicitor and that person must be a person whose name appears
on the roll of barristers and solicitors of the High Court or the roll of
barristers, solicitors or legal practitioners of the Supreme Court of a state or
territory. He or she will be a person employed in the Attorney–General’s
Department who is engaged under the Public Service Act.
Persons or bodies to whom the AGS
may provide services
Section 55N of the Judiciary Act currently lists the
persons and bodies for whom the Australian Government Solicitor may provide
services. Items 7 and 8 of Schedule 1 of the Bill amend subsections
55N(1) and (2) so that the wording reflects
that the Australian Government Solicitor will no longer perform its functions
as a statutory corporation. The amendments will allow the Australian Government
Solicitor to continue to offer ‘legal services and related services to the same
range of persons and entities to whom [it] can currently provide legal and
related services’.[48]
Existing subsections 55N(3) and (4) of the Judiciary
Act allow the Australian Government Solicitor to provide services to a
person or body (or class of person or body) that is not listed in subsections
55N(1) or (2) at the request of the Attorney-General or upon the determination
of the CEO—provided that to do so would be within the functions of the
Australian Government Solicitor.
Item 9 of Schedule 1 of the Bill repeals
subsections 55N(3) and (4) and inserts proposed subsections 55N(3)–(4A).
These are consequential amendments in that the specific functions of the
Australian Government Solicitor are repealed by item 6. The effect of
the amended subsections is that the Australian Government Solicitor continues
to be empowered to provide legal and related services to a person or body not
referred to in subsections 55N(1) or (2) at the request of the Attorney-General
or where the Australian Government Solicitor so determines. However, proposed
subsection 55N(4A) provides that the Australian Government Solicitor may
only provide such services for a purpose for which the Commonwealth has power to
make laws. The Explanatory Memorandum notes:
This is intended to make clear that the AGS can only provide
services to third parties (for example, where it is provided pro bono or other
legal services to private companies) where it is within Commonwealth
constitutional power to do so.[49]
AGS—charging for services
The Australian Government Solicitor is currently a fully
competitive and commercial legal services provider and as such charges for its
services provided in the course of performing its functions and for
disbursements it incurs in providing those services. As the Australian
Government Solicitor will no longer be a separate legal entity, items 10 and
11 of Schedule 1 of the Bill amend subsection 55P(1) of the Judiciary
Act so that the fees charged by the Australian Government Solicitor are
charged on behalf of the Commonwealth—rather than in its own right.
Item 12 of Schedule 1 of the Bill inserts proposed
subsections 55P(3)–(4) into the Judiciary Act. Proposed
subsection 55P(3) provides that a fee for services rendered which is
charged by the Australian Government Solicitor under subsection 55P(1) is a
debt due to the Commonwealth which can be recovered by the Commonwealth in a
court of competent jurisdiction. Proposed subsection 55P(4) provides
that fees charged to the Commonwealth, or a part of the Commonwealth, are
notionally payable by the Commonwealth. Subsection 55P(3) does not apply
to these fees because the Commonwealth is not legally able to impose fees on
itself.[50]
Item 14 repeals Divisions 4 and 5 of Part VIIIB of
the Judiciary Act. Division 4 currently provides for the terms and
conditions of appointment of the CEO of the Australian Government Solicitor and
its staff. Division 5 sets out financial arrangements which will be redundant
when the Australian Government Solicitor becomes part of the Attorney-General’s
Department.
Legal Services Directions
Under section 55ZF of the Judiciary Act the
Attorney-General may issue Legal Services Directions which apply to Commonwealth
legal work. Item 15 amends the part of the definition of Commonwealth
legal work that refers to the Australian Government Solicitor. That
part of the definition currently includes ‘any work performed by or on behalf
of the Australian Government Solicitor in the performance of its functions’. As
the functions of the Australian Government Solicitor will no longer be set out
in the legislation, the definition of Commonwealth legal work is amended to
include any work performed by or on behalf of the Australian Government
Solicitor in providing services in accordance with section 55N, rather than
referring to functions.
Schedule 2 of the Bill makes consequential amendments to
the Director of Public Prosecutions Act 1983[51]
and the Freedom of Information Act 1982 (FOI Act).[52]
Director of Public Prosecutions Act
The Commonwealth Director of Public Prosecutions (CDPP)
has power to enter into an arrangement with the CEO of the Australian
Government Solicitor for the Australian Government Solicitor to perform or
exercise the CDPP’s powers in a state or territory (section 32 of the Director
of Public Prosecutions Act). Any arrangement must be published in the
Gazette. In addition, the CDPP may issue directions or guidelines to
organisations or people who prosecute Commonwealth offences, including the CEO
of the Australian Government Solicitor (section 11).
Items 1, 2 and 4 amend sections 11 and 32 of the Director
of Public Prosecutions Act to omit references to the Chief Executive
Officer of the AGS and substitute the term Australian Government Solicitor.[53]
The CDPP’s powers under these sections will not be affected. That is, the CDPP
will still be able to issue directions or guidelines to, and enter into
arrangements with, the Australian Government Solicitor.
Current section 32A of the Director of Public
Prosecutions Act sets out people who are immune from civil proceedings for
acts done in good faith under that Act. Current subsection 32A(5) extends the
immunity to the CEO and staff of the Australian Government Solicitor acting
under a section 32 arrangement. Item 4 of Schedule 2 of the Bill amends
subsection 32A(5) to update the terminology used, so that it refers to the
Australian Government Solicitor and other AGS lawyers as defined
by section 55I of the Judiciary Act.
FOI Act
Division 1 of Part 1 of Schedule 2 of the FOI Act contains
a list of those agencies which are exempt agencies (that is, the FOI Act
does not apply to them). Item 7 of Schedule 2 of the Bill omits the Australian
Government Solicitor from this list as it is no longer an independent agency. Item
8 amends Division 1 of Part II of Schedule 2. Part II lists those agencies
that are exempt in respect of particular documents. A number of documents of
the Attorney-General’s Department are exempt, including ‘documents in respect
of commercial activities undertaken by the Australian Government Solicitor’
(paragraph (b) of the item relating to the Attorney‑General’s
Department). Item 8 omits the word ‘commercial’ from paragraph (b). The
effect of the amendment is that all documents relating to the work of the
Australian Government Solicitor will be exempt from the FOI Act, which
maintains the current position.
The transitional arrangements to integrate the Australian Government
Solicitor into the Attorney-General’s Department are extensive.
Preliminary
Item 1 contains the definitions which apply for the
purposes of Schedule 3 of the Bill. Importantly:
- a
reference to the commencement time means the time that the
Schedule commences. This will be the earlier of the date of Proclamation and
six months after Royal Assent and
- a
reference to the new AGS means the Australian Government
Solicitor referred to in section 55J of the Judiciary Act (as amended by
the Bill).
Activity of AGS
Item 2 applies so that the new AGS is
taken to be substituted for the former AGS in relation to matters that started
before, and continue after, the commencement time. This ensures
that the Australian Government Solicitor can continue to act in court matters
automatically, without taking steps such as notifying the court of a change of solicitor.
As set out above, current subsections 55N(3) and (4) of
the Judiciary Act allow the Australian Government Solicitor to provide
legal and related services to a person or body on the request of the Attorney‑General
or on the determination of the CEO. Item 9 of Schedule 1 of the
Bill repeals and replaces these sections to update the terminology. Item 3
of Schedule 3 operates so that a request made by the Attorney-General
under subsection 55N(3), or a determination made by the CEO under
subsection 55(4), which is in force prior to the commencement time
has effect as if it was made under the subsection as amended by the Bill.
Section 63 of the Judiciary Act allows the
Attorney-General to appoint a person to receive service of documents for court
cases in which the Commonwealth is a party. Under item 4, if the
Attorney-General has appointed a class of AGS lawyer under
section 63 of the Judiciary Act, and that appointment is in force immediately
prior to the commencement time, the appointment continues in
effect after the commencement time. The ability of the
Attorney-General to amend or revoke an appointment is not affected.
Transfer of assets and liabilities
Item 5 of Part 3 of Schedule 3 of the Bill provides
that, at the commencement time, the assets and liabilities of the former AGS
are transferred to the Commonwealth and the Commonwealth becomes the successor
in law in relation to those assets and liabilities. There are no income tax
consequences as a result of the transfer of assets and liabilities.
Item 6 of Part 3 of Schedule 3 of the Bill applies
to those instruments in force immediately before the commencement time
which contain a reference to the former AGS. If an instrument relates to an
asset or liability that has been transferred to the Commonwealth then that reference
has effect at, or after, the commencement time as if it were a
reference to the Commonwealth. This item does not prevent the instrument being
varied or terminated after the commencement time.
Item 7 relates to any proceedings pending in any
court or tribunal where the former AGS is a party before the commencement
time. In that case, at or after commencement time the Commonwealth is
substituted for the former AGS as a party.
Item 8 of Part 3 of Schedule 3 of the Bill is
concerned with the certificates for vesting of assets other than land. It
provides that if the Minister issues a certificate that identifies an asset and
states that the asset is vested in the Commonwealth, this certificate may be
accepted by an assets official to register the asset on the
relevant register of assets (for example, the Personal Property
Securities Register[54]) as belonging to the Commonwealth.[55]
Item 9 relates to contracts entered into before the commencement
time. These will have effect on or after that time as if the
Commonwealth had entered into the contract. Item 10 provides an
exemption from stamp duty or other tax payable under a state or territory law
in respect of an exempt matter. Exempt matter is defined in Part 3 as the
vesting of an asset or liability or the operation of this Schedule. The
Minister may certify that a matter is an exempt matter or that a specified
thing is connected with a specified exempt matter. Item 11 provides that
certificates issued under items 8 or 10 are taken to be authentic.
Books, reports and returns
Item 12 applies so that a record or document that is
in the custody of the Australian Government Solicitor is to be transferred into
the custody of the Commonwealth after the commencement time.
Item 13 relates to financial statements and other
reporting requirements. It operates as follows:
- where
a law requires the CEO of the Australian Government Solicitor to provide a
report in respect of a period that ends after the commencement time,
the Secretary of the Attorney-General’s Department must provide the report and
- if,
at the commencement time, the CEO of the Australian Government Solicitor has not
provided a report which is required by a law, the Secretary of the Department
must provide the report.
Staff
Part 5 of Schedule 3 of the Bill deals with the transfer of
business, the AGS agreement[56]
and matters relating to AGD employees who work under the AGS agreement, accrued
entitlements of former AGS employees who become APS employees, and when the AGS
agreement will cease.
Concerns have been raised by the ALP through its Shadow
Attorney-General about the necessity of the amendments contained in the Bill.
First the ALP has questioned whether integrating the Australian Government Solicitor
into the Attorney-General’s Department will bring about savings which justify
the costs which will arise from that process. Second, the ALP has indicated
that in future, the costs to government which are incurred by having to
contract out to private law firms are likely to rise.
That said, the Bill responds to the recommendation by the
National Commission of Audit in 2014—it consolidates the Australian Government
Solicitor’s functions into the Attorney-General’s Department in order to
strengthen the role of that Department in the provision of coordinated and
strategic advice.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Judiciary Act 1903,
accessed 22 April 2015.
[2]. J
Hockey (Treasurer) and M Cormann (Minister for Finance), Mid-year
economic and fiscal outlook 2014–15, statement, December 2014, p. 139,
accessed 22 April 2015; M Cormann (Minister for Finance), Smaller
and more rational Government 2014–15, Ministerial paper, May 2014,
accessed 22 April 2015.
[3]. R
Ray (President of the Law Council of Australia), The
role of the Attorney-General: an Australian perspective, speech,
International Bar Association Conference, Buenos Aires, 13 October 2008, pp. 3–4,
accessed 22 April 2015.
[4]. Ibid.
[5]. Ibid.
[6]. Australian
Government Solicitor, Annual
report 2013–14, p. 3, accessed 5 May 2015.
[7]. Ibid.,
p. 10.
[8]. The
Legal Services
Directions are a set of binding rules about the performance of Commonwealth
legal work. The Commonwealth’s obligation to act as a model litigant is set out
in Appendix B of the Legal Services Directions 2005; Australian
Government Solicitor, Annual report
2013–14, op. cit., p. 10.
[9]. Attorney-General’s
Department and Office of Parliamentary Counsel, Annual reports 1983–84, Australian
Government Publishing Service, Canberra, 1984, p. 7.
[10]. Ibid.,
p. 13.
[11]. Ibid.,
p. 14.
[12]. Ibid.,
p. 12.
[13]. A
Blunn and S Krieger, Report
of the review of Commonwealth services procurement, Commonwealth of
Australia, Canberra, 2009, p. 63, accessed 5 May 2015.
[14]. Ibid.,
p. 63.
[15]. Ibid.,
pp. 63–64.
[16]. National
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