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Judiciary Amendment Bill 2015



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ISSN 1328-8091

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BILLS DIGEST NO. 105, 2014-15 13 MAY 2015

Judiciary Amendment Bill 2015 Moira Coombs Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 3

Background ......................................................................... 3

Establishment of Australian Government Solicitor ................. 3

Attorney-General’s Legal Practice ......................................... 4

Relevant reviews ..................................................................... 4

Logan Review 1997 ................................................................ 4

Blunn-Krieger Review 2009 ................................................... 5

Financial performance of the Australian Government Solicitor .................................................................................... 5

National Commission of Audit ................................................. 6

Committee consideration .................................................... 7

Selection of Bills Committee.................................................... 7

Senate Standing Committee for the Scrutiny of Bills .............. 7

Parliamentary Joint Committee on Human Rights .................. 7

Statement of Compatibility with Human Rights .................... 7

Policy position of non-government parties ........................... 7

Position of major interest groups ......................................... 8

Financial implications .......................................................... 8

Key issues and provisions..................................................... 8

Schedule 1—main amendments ........................................... 8

Definition of AGS lawyer ......................................................... 8

AGS will no longer be a statutory corporation ........................ 8

Persons or bodies to whom the AGS may provide services .................................................................................... 9

AGS—charging for services...................................................... 9

Legal Services Directions ......................................................... 9

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.

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Schedule 2—consequential amendments ........................... 10

Director of Public Prosecutions Act ....................................... 10

FOI Act ................................................................................... 10

Schedule 3—transitional arrangements .............................. 10

Preliminary .......................................................................... 10

Activity of AGS ..................................................................... 10

Transfer of assets and liabilities .......................................... 11

Books, reports and returns .................................................. 11

Staff ..................................................................................... 12

Concluding comments ....................................................... 12

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Purpose of the Bill The purpose of the Judiciary Amendment Bill 2015 (the Bill) is to amend the Judiciary Act 19031 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

Background 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

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.

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• 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

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 Commission of Audit, Report to the Commonwealth Government, Australian Government Publishing Service, Canberra, 1996, p. 28. 17. Ibid., recommendation 3.5, p. 26. 18. B Logan (Chair), Report of the Review of the Attorney-General’s Legal Practice, Australian Government Printing Service, Canberra, 1997, p. 18.

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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:

19. A Blunn and S Krieger, Report of the review of Commonwealth services procurement, op. cit., para. 16, p. 18. 20. Attorney-General’s Department, Annual report 1997-98, p. 72. 21. Ibid., pp. 120-121. 22. Judiciary Amendment Act 1999, accessed 4 May 2015. 23. A Blunn and S Krieger, Report of the review of Commonwealth services procurement, op. cit., p. 67. 24. R McClelland (Attorney-General), Review of Commonwealth legal service procurement, media release, 20 March 2009, accessed 26 April 2015. 25. A Blunn and S Krieger, Report of the review of Commonwealth services procurement, op. cit., recommendation 22, p. 14. 26. Ibid., recommendation 23, p. 14. 27. See discussion by the Shadow Attorney-General under the heading ‘Policy position of non-government parties’ below.

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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

28. Australian Government Solicitor (AGS), Annual report 1999-2000, AGS, 2000, p. 3, accessed 4 May 2015. 29. The shareholder Ministers are the Attorney-General and the Minister for Finance. 30. Australian Government Solicitor, Annual report 1999-2000, op. cit., p. 4. 31. Australian Government Solicitor, Annual report 2013-14, AGS, 2014, p. 6, accessed 4 May 2015. 32. Ibid., p. 18. 33. Ibid., p. 19. 34. Ibid., p. 3. 35. J Hockey (Treasurer) and M Cormann (Minister for Finance), Coalition commences National Commission of Audit, joint press release,

22 October 2013, accessed 4 May 2015. 36. National Commission of Audit, Towards responsible Government: the report of the National Commission of Audit, phase two, Commonwealth of Australia, March 2014, recommendation 15a, p. xxvi, accessed 21 April 2015. 37. Ibid., p. 93. 38. Ibid., p. 93. 39. 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.

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Committee consideration Selection of Bills Committee 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.

Parliamentary Joint Committee on Human Rights 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.

Statement of Compatibility with Human Rights 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

Policy position of non-government parties 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

40. Selection of Bills Committee, Report No. 4 of 2015, Senate, Canberra, 26 March 2015, accessed 4 May 2015. 41. The Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory Memorandum to the Bill. 42. M Dreyfus, Australian Government Solicitor axed for no Budget saving, media release, 16 December 2014, accessed 4 May 2015. 43. M Dreyfus, The evolving role of Government lawyers, speech, Canberra, 31 March 2015, accessed 4 May 2015.

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Position of major interest groups 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

Financial implications 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

Key issues and provisions Schedule 1—main amendments 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.

44. M Whitbourn, ‘Questions raised about savings from axing government agencies’, The Sun Herald, 14 December 2014, p. 10, accessed 23 April 2015. 45. Explanatory Memorandum, Judiciary Amendment Bill 2015, p. 3, accessed 5 May 2015. 46. Judiciary Act 1903, accessed 22 April 2015. 47. Public Service Act 1999, accessed 4 May 2015.

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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

48. Explanatory Memorandum, Judiciary Amendment Bill 2015, p. 7. 49. Ibid.

50. Ibid., p. 8.

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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—consequential amendments Schedule 2 of the Bill makes consequential amendments to the Director of Public Prosecutions Act 198351 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.

Schedule 3—transitional arrangements 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

51. Director of Public Prosecutions Act 1983, accessed 4 May 2015. 52. Freedom of Information Act 1982, accessed 4 May 2015. 53. Director of Public Prosecutions Act, paragraph 11(1)(b), subsection 32(1) and paragraph 35A(5)(a).

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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 Register54) 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.

54. Australian Financial Securities Register (AFSR), ‘Personal Property Securities Register‘, AFSR website, accessed 12 May 2015. 55. Assets official is defined at item 1 of Schedule 3.

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Staff Part 5 of Schedule 3 of the Bill deals with the transfer of business, the AGS agreement56 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.

Concluding comments 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.

56. Item 1 of Schedule 3 to the Bill defines the term AGS Agreement as the enterprise agreement known as the Australian Government Solicitor Enterprise Agreement 2012 approved on 29 June 2012 in decision [2012] FWAA 5568, accessed 11 May 2015.

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