Mr Murphy asked the Minister for Foreign Affairs, upon notice, on 18 September 2003:

Further to the answers to questions Nos 1620 to 1635 and 1637 (Hansard, 12 August 2003, page 18283) what are the Chief Executive Officers of the Minister's departments and agencies doing to ensure that they do not retain the services of any barrister or solicitor who has previously been made bankrupt.

Mr Downer —The answer to the honourable member's question is as follows:

The Commonwealth policy in relation to such matters, which is set out in the letter of 21 March 2001 from the Commonwealth Attorney-General to all Ministers, is intended to ensure that Commonwealth Departments and agencies do not engage counsel `who use insolvency as a means of avoiding tax'. The policy is not directed at preventing the briefing of all counsel who are, or have been, insolvent.

Department of Foreign Affairs and Trade

DFAT has contracts with two commercial law firms and the Australian Government Solicitor (AGS) to provide legal services to the Department.

Specifically, the Deeds of Standing Offer require each legal service provider to:

  have financial viability

  provide appropriately skilled and qualified legal practitioners

  have a good reputation and standing within the legal service community.

In addition, all legal work done by, or on behalf, of DFAT must be done in accordance with the Attorney-General's Legal Service Directions on Counsel Engagement. These Directions bind Commonwealth agencies which are subject to the Financial Management and Accountability Act 1997. The Attorney General could provide further detail concerning these policies.

AusAID

AusAID has Period Offer contracts with two commercial law firms to provide legal practitioners. In addition, the Australian Government Solicitor also provides legal practitioners under a Record of Understanding.

The Period Offer Deed and the ROU require the above organisations to provide appropriately skilled and qualified legal practitioners.

The various Australian legal admissions boards are required by legislation to determine whether applicants for practising certificates are of good fame and character and fit to be admitted. The AusAID contracts have similar requirements. Under the legislation, all applicants for admission to practise must advise the admissions board(s) of any actions (including bankruptcy) which may impact the Board's decision. Following the issue of a certificate, legal practitioners are required to advise their Board of any action which could cause the Board to review a decision to issue a certificate. The Board is then required to determine whether or not to cancel or suspend a certificate.

Personnel without a practising certificate are therefore not “appropriately skilled and qualified” legal practitioners and would not be acceptable personnel under the Contracts or the ROU.

Australia Japan Foundation

The Australia-Japan Foundation generally uses the in-house services of officers from the Department of Foreign Affairs and Trade's Legal Branch for its legal requirements. For occasional other services, the Foundation employs the services of a major domestic legal firm. That firm was recently subject to an exhaustive tender process to provide specialist legal services to the Department of Foreign Affairs and Trade. As part of that process, the firm had to satisfy Australian Government procurement requirements, including on financial viability and probity, that would minimise the risk of the Foundation engaging a barrister or solicitor who had previously been made bankrupt.

Export Finance and Insurance Corporation

EFIC maintains standing agreements with several commercial law firms to provide legal services to the Corporation as required. Typically, EFIC engages counsel on the advice and recommendation of those firms. In exceptional circumstances, EFIC may engage counsel directly.

EFIC understands that at the time of a person's application for a practising certificate from the Law Society or Bar Association in New South Wales (as applicable), and upon application for annual renewal of that certificate, the applicant is required to disclose to the relevant authority any action that could cause the authority to review a decision to issue or renew a

certificate, including whether the applicant is an undischarged bankrupt. The authority then determines whether to issue, cancel or suspend a practising certificate or to impose conditions on its renewal. EFIC understands that similar considerations apply in other States and

Territories and by virtue of legislation governing the mutual recognition of professional qualifications.

Legal service providers who do not hold a practising certificate, or who hold a practising certificate on conditions of the type described above, are not appropriately skilled and qualified legal practitioners for EFIC's purposes and the Corporation would therefore not seek to retain them.

Australian Centre for International Agricultural Research

ACIAR uses only the Attorney-General's Department for advice.