2.1 The legal advisers to government are principally the Crown Solicitor, Attorney General, Solicitor General, Crown Advocate, salaried lawyers employed by government agencies and, to a growing degree, barristers and solicitors in private practice. This chapter examines their respective roles and functions.

2.2 The Director of Public Prosecutions (DPP) provides advice to law enforcement agencies, but this Issues Paper does not deal with that advice. Most of the advice the DPP provides relates to the conduct of specific matters,¹ and would be kept confidential on the grounds of privilege considered in Chapter 5. The DPP does issue guidelines on general policy, but may not issue guidelines relating to particular cases, and must publish all guidelines in his Annual Report.² Those guidelines are already in the public domain.

2.3 There is no legislation establishing the offices of either the Attorney General or Crown Solicitor³ in NSW, so common law and practice determine the nature and extent of the functions and roles attaching to those offices.⁴ The common law of England relating to the office of Attorney General in that country may not apply in Australia.

2.4 In NSW, the Attorney General, the Solicitor General, and especially the Crown Solicitor, all see their role, in so far as they are advocates and legal advisers, primarily as being to serve the executive government, which comprises the Ministers, the Cabinet, and the departments and agencies that carry out the various non-legislative and non-judicial functions of government.⁵

THE CROWN SOLICITOR

2.5 The Crown Solicitor, and his or her staff, are employed under the provisions of the Public Sector Management Act 1988 (NSW). While the office resembles that of the English Treasury Solicitor⁶ in some respects, it is quite distinct. There is no statutory basis for the office of Crown Solicitor, though special provisions are made in the Legal Profession Act 1987 (NSW) for the Crown Solicitor and members of his or her staff to be free from some of the requirements of that Act. The Crown Solicitor holds a practising certificate issued under the Act, and is normally the solicitor on the record when a government department or agency is involved in court proceedings. As the Crown Solicitor’s Office (“the CSO”) puts it:

The Crown Solicitor’s Office (CSO) provides legal services to the State Government, Government Departments and Administrative Bodies, and Statutory Authorities. With a few exceptions the Office can be instructed to act in any type of legal matter.⁷

2.6 In matters of constitutional or administrative law, or otherwise concerning the nature and extent of powers and functions of government departments and agencies, the Crown Solicitor is normally the source of legal advice. This advice is normally given in the form of a letter of advice from the Crown Solicitor, or an authorised member of the staff of the CSO, to the department or agency concerned.

2.7 If the matter is not clear, the CSO may recommend, or the department or agency may request, that the opinion of the Solicitor General, or, if the circumstances warrant it, of a barrister in private practice, be obtained. In this respect, the Solicitor General may perform a role identical to that played by private counsel when the client is not part of the government. The advice received is passed on to the department or agency in the same way as a private solicitor passes on advice received from counsel to the client. The department or agency stands in relation to the Crown in very much the same relationship as a private client stands in relation to his or her solicitor or counsel.

2.8 Until 1995, it was usual for a government agency to employ the Crown Solicitor exclusively for the provision of legal advice and other legal services. Even before then, some departments and agencies staff (for example, the former Department of Railways) employed their own legal staff. In July 1995, the Crown Solicitor’s Office was “commercialised”, involving the CSO in greater competition with private sector practitioners. Since 1995, government departments and agencies have had greater freedom to obtain legal services from private practitioners. In response to the commercialisation of the CSO, the Premier issued broad guidelines (“the Premier’s Guidelines”),⁸ which, although far from clear, provide that key areas still need to be referred to Crown Officers because of their complexity or sensitivity, or the need to be handled centrally on behalf of the government. The Guidelines state that such areas include matters:

• with implications beyond an individual Minister’s portfolio;
• involving constitutional powers or privileges of the State;
• which raise issues fundamental to the responsibilities of government; or
• relating to matters falling within the Attorney General’s areas of responsibility.

2.9 The Premier’s Guidelines are reproduced in Appendix A. Similar directions for the provision of legal services to government departments and agencies exist for the Commonwealth Attorney-General’s Department.⁹ The Commonwealth Directions are reproduced in Appendix B and are discussed further in paragraphs 2.12-2.13.

2.10 Historically, there was an advantage in the requirement that all government departments and agencies obtain their legal advice from the Crown Solicitor. The same opinion on the law was given to each department or agency, even when those departments or agencies held differing views on the point of law. The advice of the Crown Solicitor was widely regarded as authoritative and binding and therefore more likely to put an end to the contention. Now that departments and agencies have either their own salaried legal staff or the capacity, in certain cases, to contract with lawyers in private practice for the provision of legal advice, there is a greater possibility that disputes over points of law between various arms of government may become a source of public difference.

2.11 The commercialisation of the CSO presents one other possible problem in the context of this reference. The CSO is now required to charge fees to departments and agencies for its work, unless that work falls within a closely defined “core” area of government activity. Thus, if the CSO is asked by several different departments or agencies for advice on the same or similar subject matter, like private practitioners, it may charge each department a full fee for advice which is substantially the same as that provided to other agencies. This system of charging provides an incentive to the CSO, similar to the motivation for private practitioners, to oppose wider dissemination of advice. That advice becomes a “product” of commercial value, and may have the status of intellectual property.¹⁰

Commonwealth Attorney-General’s Directions

2.12 The Commonwealth Government has also modified the arrangements under which its departments and agencies receive legal advice, and has opened up to competition the work previously performed exclusively by the Australian Government Solicitor’s Office. The Commonwealth Attorney-General’s Department has published Directions about the provision of legal services to government departments and agencies. These Directions state that the Attorney-General is the first law officer and the legal adviser to Cabinet. The Directions divide up the legal work of government departments and agencies into categories. One category is for the type of legal work which departments and agencies can choose to have done by an in-house lawyer or private sector lawyer. Such work includes:

• general legal advice, interpretation of legislation, advice on the powers of officers, advice on secrecy provisions, settling minor claims, advice in specialised areas, and statutory interpretation relating to the expenditure or receipt of public money;

• legal agreements or contracts, except those which are to be approved by Cabinet; and

• all work in tribunals.

2.13 Legal work which must be carried out within the (Commonwealth) Attorney-General’s Department (which includes the legal practice formerly conducted by the Australian Government Solicitor) includes:

• legal advice to Cabinet;
• policy advice in matters within the Attorney-General’s portfolio;
• public international law and treaties;
• drafting of subordinate legislation;
• prosecution services;
• constitutional advice;
• litigation in courts by or against the Commonwealth, Commonwealth Ministers and other Commonwealth officers or employees and agencies;
• matters involving legal agreements which are to be approved by Cabinet;
• matters of dispute between Commonwealth departments or agencies;
• matters with national security implications; and
• government-to-government work, both domestic and international.

THE LAW OFFICERS

2.14 Australia has inherited a number of officials, who, as in England are called “Law Officers of the Crown”¹¹ . Traditionally, the Attorney General and Solicitor General are referred to collectively as “Law Officers of the Crown”. Although the names are the same, the nature and function of the offices in Australia differ significantly from those in the United Kingdom. In addition, the office and functions of the Solicitor General in New South Wales may be very different from those of a person with the same title in another State or in another Commonwealth country.

2.15 In England, the Lord Chancellor may be included for some purposes within this group. The role of the Lord Chancellor in England includes acting as a judge, presiding over the House of Lords when it sits as an appellate court; acting as a senior Cabinet Minister, and head of the department responsible for the administration of the courts and the civil law. In New South Wales, the Ministerial functions of the Lord Chancellor are currently exercised by the Attorney General, although at times there have been separate Ministers for Justice or Courts Administration. In this reference, the Commission is not concerned with the Ministerial functions of the Law Officers.

The Attorney General

2.16 The Attorney General’s office was established in NSW in 1823.¹² Initially, the Attorney General was a lawyer appointed to advise the governor and oversee the administration of criminal law. When Legislative Councils were appointed to advise Governors, the Attorney General was invariably a member by virtue of the office. As elected parliaments and ministries replaced appointed Legislative Councils, the Attorney General was selected from the Members of Parliament, as in England. In NSW the Attorney General has in most instances been a barrister, though some have been solicitors.

2.17 In NSW, the office is given special recognition in the Constitution Act 1902 (NSW). Sections 36-37A of that Act provide for arrangements where a Minister of the Crown is unable or unavailable to perform Ministerial duties. However, s 38 provides that these arrangements do not apply to the Attorney General, recognising the special functions of the Attorney General as chief legal adviser to government.

2.18 In NSW, the Attorney General has a number of roles. Very few of his or her major functions are expressed in legislation. Many derive from the English common law, though several are founded in local practice. Among these roles are:

• leader of the organised bar;
• Cabinet Minister responsible for legal policy and courts;
• principal legal representative of the State in court proceedings;
• holder of special powers in relation to criminal law enforcement;
• representative of the public interest in court proceedings;¹³
• legal adviser to Cabinet and to Ministers; and
• legal adviser to parliamentary officers.¹⁴

This Issues Paper is concerned with the Attorney General’s role as legal adviser.

2.19 The Attorney General provides legal advice as a member of Cabinet, where his or her role is to advise on the legal aspects of policy and political problems and endeavour “to ensure that decisions of the Cabinet are taken with appropriate legal advice”.¹⁵

2.20 In addition, the Attorney General may provide formal written advice on important legal issues. In Australia, these written advices from the Law Officers are generally called “advisings”. The Attorney General may also provide informal advice to government, Ministers and departments when requested. The Commission has confined its attention for the purposes of this reference to formal written advice.

2.21 While Attorneys General in fact provide legal advice, in Australia it now appears that their role is more as a political adviser than as a legal adviser. Although in form the Attorney General remains the principal legal adviser to government, in practice, most technical legal advice at high level is provided by the Solicitor General, and often the Crown Solicitor.¹⁶ It is not unusual for the Solicitor General’s advice to be adopted formally by the Attorney General and tendered to Cabinet or a Minister.

The Solicitor General

2.22 The Solicitor General’s office was established in NSW in 1824.¹⁷ The nature of the position has differed from time to time,¹⁸ but is now established as a non-political one. The statutes governing the Solicitor General and Crown Advocate do not define the functions attached to the offices, but refer to the functions of the Attorney General at common law.

2.23 The Solicitor General Act 1969 (NSW) provides that:

• the Governor may appoint a legal practitioner of at least seven years’ standing to be Solicitor General; and¹⁹
• the Solicitor General shall not be a Minister of the Crown.²⁰

2.24 Section 3 of the Act provides:

Powers, authorities etc. of Solicitor General

3. (1) The Solicitor General may:


(a) act as Counsel for Her Majesty and may perform such other duties and functions of Counsel as the Attorney General directs;

(b) when the office of Attorney General is vacant, or the Attorney General is absent from the State or is by reason of illness unable to exercise and discharge his powers, authorities, duties and functions, exercise and discharge any powers, authorities, duties and functions conferred or imposed on the Attorney General by or under any Act or incident by law to the office of the Attorney General.

THE CROWN ADVOCATE

2.26 The office of Crown Advocate is created by the Crown Advocate Act 1979 (NSW). There was no such office at common law, so it is probably incorrect to refer to the Crown Advocate as a Law Officer. As with the role of the Solicitor General, the Governor may appoint a legal practitioner of at least seven years’ standing to the office of Crown Advocate, and he or she may not be a Minister.²¹ The functions of the Crown Advocate are set out in s 9. The Crown Advocate’s main duty is to assist the Solicitor General in performance of his or her functions. Like the Solicitor General, the Crown Advocate is formally under the direction of the Attorney General.

OTHER LEGAL ADVISERS

Private practitioners

2.27 Government departments and agencies may obtain legal advice from solicitors and barristers in private practice. While every legal practitioner has a duty to advise impartially on the law, there is a practical and understandable tendency for some private practitioners, who are competing for the client’s business, to present advice in ways which are as conducive as possible to the interests of the client. The pressures of competition for some practitioners may not be entirely consistent with the obligation to give advice which the client may not welcome. When the legal adviser to government, for example the CSO, was not competing for work, there was very little possibility that the advice, or the way it was presented, would avoid matters that the client did not want to hear.

2.28 Obtaining advice from private practitioners is also a departure from the former practice of having a single, authoritative source of advice for the whole of government. An increasing number of government departments and agencies (including the Cabinet Office) seek advice from private solicitors and counsel in some matters. As the Premier’s Guidelines²² suggest that matters that “have implications for Government beyond an individual Minister’s portfolio” must be referred to the CSO, it is unlikely that advice received by government agencies from private lawyers would ever need to be circulated beyond the recipient. To the extent that they obtain written advice from private solicitors or counsel, that advice is theirs to do with as they choose.²³ There is also a direction from the Premier that matters which raise actual or potential intra-governmental disputes must be referred to the Solicitor General.²⁴ However, where a Minister’s portfolio includes more than one agency, covers the interpretation of legislation, or where more than one Minister is responsible for administering the same legislation,²⁵ there are arguments that such advice should be publicly available. In this Issues Paper, the Commission seeks comment on matters relevant to these points.

2.29 The Commission suggests that the advice of the Law Officers and the Crown Solicitor, especially on matters of policy, is qualitatively different from that obtained from private barristers and solicitors. This is especially so in relation to the general interpretation of legislation, the scope of policy and other matters not connected with specific litigation.

Salaried “in-house” lawyers

2.30 At times, different government agencies have appointed their own separate legal staff, who have no connection with the Attorney General, Solicitor General, Crown Advocate or Crown Solicitor. In NSW there have been solicitors for the Department of Railways, for the Department of Main Roads, and for other government departments or agencies. The ethos of the National Competition Policy and the new structure and organisation of the CSO means that some agencies and government departments look beyond the CSO for legal advice on a range of matters.

FOOTNOTES

1. Mr N R Cowdery, QC, Director of Public Prosecutions, personal communication 6 June 1997.

2. Director of Public Prosecutions Act 1987 (NSW) s 14, 15, 34.

3. The Legal Profession Act 1987 (NSW) makes special provision for the Crown Solicitor, but does not create the office.

4. See paras 2.14-2.25 for a fuller discussion on the common law relating to Crown Law Officers.

5. In the publicity brochure for the Crown Solicitor’s Office, the Crown Solicitor’s functions are described: “[T]he CSO [Crown Solicitor’s Office] exists essentially to provide services to the Executive Government and its various agencies”: NSW, Crown Solicitor’s Office Crown Solicitor’s Office Legal Services (Sydney, 1991). A former Solicitor General, the Hon Justice Keith Mason, confirmed this view and also described the practice of the Crown Law Officers in NSW as being unwilling to provide advice to the Parliament or parliamentary officers without the consent of the Attorney General: 6 March 1997.

6. The office of Treasury Solicitor in England has existed since about 1670: see M Birks, Gentlemen of the Law (Stevens & Sons, London, 1960) at 130-131. The office still exists and is responsible for the legal work of the Treasury and central policy departments. However, other departments (such as the Foreign and Colonial Office) have traditionally employed their own legal staff who are quite separate from the Treasury Solicitor.

7. NSW, Crown Solicitor’s Office Crown Solicitor’s Office Legal Services (Sydney, 1991).

8. NSW, Premier’s Memorandum to all Ministers No 95-39 Arrangements for seeking legal advice from the Crown Solicitor’s Office (12 October 1995). See Appendix A.

9. Australia, Attorney-General Directions for the Provision of Legal Services to Government Departments and Agencies (1 July 1995). (“the Commonwealth Attorney-General’s Directions”). See Appendix B

10. Discussed at paras 4.19-4.24

11. The most comprehensive account of the history and modern work of the English Law Officers is J LI J Edwards The Law Officers of the Crown (Sweet and Maxwell, London, 1964); see also P Archer The Role of the Law Officers (Fabian Research Series 339, London, 1978).

12. NSW, Attorney General’s Department A Brief History of the Attorney General’s Department (March 1996) at 6.

13. For example, as representative, at common law, of young children and others suffering from a legal disability, and also as “relator”: the nominal plaintiff in actions brought by a private citizen to enforce some right held by members of the public generally.

14. Legal advice to the Parliament or to either House is usually given by the Solicitor General or the Crown Solicitor to the Clerk, after the Attorney General has approved. If the advice concerns a dispute between a House of Parliament and a Minister, as in Egan v Willis (1996) 40 NSWLR 650, the Clerk will obtain advice from private barristers or solicitors.

15. New Zealand, Solicitor-General Role of the Attorney-General, Solicitor-General and Crown Law Office and Issues of Importance (Crown Law Office, Wellington, 1996) at 2.

16. J McKechnie “Directors of Public Prosecutions: Independent or Accountable” (1996-97) 15 Australian Bar Review 122 at 124.

17. K Mason “The Office of Solicitor General for New South Wales” (1988) (Autumn) Bar News 22 at 22.

18. Mason at 22.

19. s 2(1).

20. s 2(6).

21. s 3.

22. NSW, Premier’s Memorandum to all Ministers No 95-39 Arrangements for seeking legal advice from the Crown Solicitor’s Office (12 October 1995) at para (a). See Appendix A.

23. See the discussion about issues of copyright in legal advice from private practitioners at paras 4.19-4.24.

24. NSW, Premier’s Memorandum to all Ministers No 95-39 Arrangements for seeking legal advice from the Crown Solicitor’s Office (12 October 1995). See Appendix A.

25. For example, both the Attorney General and the Minister for Corrective Services have responsibility for administering the Sentencing Act 1989 (NSW).