3.1 A fundamental issue arising in this reference is the question of who constitutes the “client” for the purpose of receiving legal advice. Essentially, the client, as recipient of the legal advice, is the government. However, in NSW, government is manifested in different forms, depending on the purpose it is fulfilling. In legal terms, the problem of identifying the client arises in a number of contexts, and the answer may vary from one context to the next. This chapter examines the structure and composition of government for the purposes of identifying the client, and the legal implications of that structure.
BRANCHES OF GOVERNMENT
Separation of powers
3.2 The Constitution Act 1902 (NSW) underpins a system of government in New South Wales that does not embody strictly the “doctrine of separation of powers”.1 However, different functions are vested in separate organs of government, so some elements of the theory of separation of powers do apply to the government of NSW. The law-making power is vested in Parliament and in Ministers who may make regulations subject to disallowance by either House of Parliament (legislative branch); the law-implementing power is vested in the Sovereign or his or her representatives, the Ministers and the public service (executive branch); and the function of interpreting law is vested in the courts (judicial branch). This model is by no means a complete representation of how government actually works: it ignores the fact that the policy which becomes law is usually formulated by public servants or Ministers; that interpreting rules has an inherent element of rule-making, and so on.
3.3 The theory of separation of powers has influenced the development of law and raises questions about exactly who is the recipient of legal advice given by the Law Officers and the Crown Solicitor. Is the advice given to the Governor (as representative of the Crown), to a governmental body (such as a body established by statute), to a Minister or designated official, to a particular branch of government, to the government as a whole or to the people who are represented by the government?
Legislature
3.4 The legislature is the branch of government that makes law. Australia has a system of government called “representative democracy”, in which the legislature is regarded as the supreme branch. The Ministers who control the executive branch of government are selected from members of the legislature. In political and legal terms, the legislature is important because first, action by the legislature is often needed before policy becomes law, and secondly, unless the legislature is prepared to support the executive branch of government, the Ministry has no political power.
3.5 The Attorney General, in practice, is always a Member of Parliament.2 Whilst the Solicitor General is a Member of Parliament in the United Kingdom, this is not the case in NSW. In the United Kingdom, the Attorney General (and the Solicitor General) are the legal advisers to Parliament.3 In New South Wales, and other Australian jurisdictions, the Law Officers regard themselves as primarily the advisers of the executive government, rather than of Parliament.4
Executive
3.6 The executive branch of government, which includes the Governor, the Ministry, and the public service, initiates and implements policy. Like all officers of government, the Governor is expected to act in accordance with the law, and may, therefore, from time to time require legal advice as to what the law requires in particular instances. If the view is taken that the Attorney General is a political officer, where the advice to the Governor concerns a matter with political implications, either the Governor may not want the advice of the Attorney, or the government may be unwilling to allow the Governor access to the Attorney.5 In this sense, the Governor is in a special position.6 While in some cases the Governor may seek advice from the Chief Justice, this course of action may lead to serious political problems.7 The Governor might also seek advice from privately retained barristers or solicitors, or from academics.8
Judiciary
3.7 The judicial arm of government comprises the courts - the bodies that have the power to make authoritative decisions which finally resolve disputes and which, after exhausting all available appeal processes, the parties to those disputes cannot question.9 While the courts are making decisions in actual disputes, they are also creating a body of rules which binds the whole community. This is because, from court decisions, general principles can be deduced which influence the way future disputes are resolved. In constitutional terms the judicial power of government probably extends to all judicial officers while they are exercising judicial functions. The lawyers who present cases in court contribute to the way judicial power is exercised, but are not themselves part of the judiciary.10
THE CROWN
The Crown and the rule of law
3.8 It is a fundamental principle that all Australian governments, especially Ministers, must observe and maintain government according to law. In order to fulfil this duty, Ministers, who are responsible through Parliament to the people for their actions and are obliged to uphold the law through their oath of office, must know what the law is, and they seek and receive legal advice for this purpose.
3.9 Ministers and other organs of government cannot escape their duty to observe and maintain the rule of law by compartmentalising government for the purposes of receipt of legal advice any more than they can avoid political responsibility for their actions by compartmentalising government. Politically and legally, the government is an entity unless a statute provides for a part of it to have a separate legal identity. The unity of government for legal purposes is not inconsistent with reorganising government departments or agencies for the purpose of achieving policy objectives such as greater efficiency in government operations.
The Crown as symbol
3.10 The Crown is a notional entity created by the law for particular purposes. It is the symbol of legitimate authority.11 As Hanks puts it:
The term ‘the Crown’ is frequently used to refer to the executive governments in Australia, as it is in the United Kingdom. Each of these governments is treated by the law as a legal person, enjoying rights and affected by liabilities under the common law and legislation, capable of suing and being sued and bound by decisions of courts and tribunals. However, these rights, liabilities and susceptibilities are not identical to those of other legal persons, whether individuals or corporations. The law recognises a number of important distinctions between the legal status of the government and that of subjects.
The legal personality of the executive government is represented by the Crown, by the Queen: that is, the law regards the government as a legal person and that person is the Queen. However, in this context the terms ‘the Crown’ and ‘the Queen’ have become depersonalised ... When we talk of ‘the Crown’ in the context of Australian government in the late 20th century, we refer to a complex system of which the formal head is the monarch ... We do not refer to a replica of 16th century English government ... 12
3.11 Seddon says that:
[t]he Crown is in many ways like a corporation. It is governed in Australia in each jurisdiction by a written constitution, it has perpetual succession, it must necessarily act through natural persons and it takes on a legal status independent from those natural persons.13
The “indivisible” Crown
3.12 At one time, the symbolic Crown was represented as being one and indivisible. This was useful in the context of an imperial power seeking to control a world-wide empire. It was the reason that when war was declared by Great Britain against Germany in 1939, in the name of King George VI, the Prime Minister of Australia, Sir Robert Menzies, was able to announce credibly to the Commonwealth Parliament that as a result of that declaration Australia also was at war.14 In other respects, however, the development of colonial self-government made it clear that the Executive Government of New South Wales was quite distinct from that of, say, South Africa or the province of Ontario, as well as from that of the United Kingdom, although all might symbolically be represented by the same Crown. For the purpose of regarding the Crown or government as a legal person, in terms of property or litigation rights, and in terms of being a recipient of advice, the indivisible nature of government may remain important.
3.13 In a federal state, such as Australia, it did not take long for the courts to recognise the functional differences between the executive governments of the several States and the Commonwealth. The Commonwealth Constitution and the Judiciary Act 1903 (Cth) contemplate that States may sue each other and the Commonwealth.
The reality of multifarious government
3.14 Within a State, however, it is not always clear whether or not the law recognises the functional differences between the various departments and agencies that make up the government. Some statutes specifically permit, or even oblige, an agency to sue or prosecute another agency or department. An example of such an agency is the Environment Protection Authority.
3.15 When government was organised in a hierarchical structure, the practice was that disagreement or litigation between the different branches or agencies that make up the government rarely became public; disagreements between agencies were settled by negotiation among Ministers or senior officials. Ultimately, the matter could be argued in Cabinet and would be resolved politically, so that there was a single public voice of government.
3.16 To some extent, government today retains a degree of unity in practice. Despite the existence at times of inter-personal or inter-departmental rivalry, Ministers do discuss matters of common concern in Cabinet or party caucus meetings and informally. Political reality dictates that Ministers and their officials will generally pass on to their colleagues information they receive which is of mutual or common interest, although there is no legal obligation on them to do so.
3.17 The administrative changes introduced in more recent times have seen flatter institutional structures and “privatisation” or “corporatisation” of many parts of the executive government, supposedly in the interests of competitiveness and efficiency. Further, the shedding or “outsourcing” of many functions of government has meant that activities which were formerly carried out by government departments or agencies are now undertaken by private contractors in return for payment by the government. Under the State Owned Corporations Act 1989 (NSW) provision is made for government-owned trading or business enterprises to be incorporated, and to become largely independent of the formal structures of the executive government. For the purposes of litigation, these State-owned corporations are certainly not part of the State,15 yet many are still represented and advised by the Law Officers and the Crown Solicitor.
3.18 When State-owned corporations have an independent legal personality, an argument can be maintained that the advice they receive is owned by that legal entity rather than by the “Crown”. There is no doubt that State-owned corporations have the legal capacity to sue and to be sued by each other. When, however, the question is asked about a Minister, a department, an official or a statutory authority which does not have an independent legal personality the position is less clear. There are cases of departments or agencies being prosecuted for offences. Departments and officials are now liable to suit in negligence.16 There is anecdotal evidence about civil actions by one governmental entity against another, especially where one department or agency seeks contribution or an indemnity from another.
Disputes between different branches of government
3.19 The reality of multifarious government means that there is the potential for disputes to arise between different branches of government. To take a hypothetical example, the Roads and Traffic Authority (“the RTA”) proposes to build a road in a certain area. The Environment Protection Authority considers that the proposed road breaches the provisions of a statutory scheme for environmental protection, while the RTA maintains that it has noted the statutory scheme and considers that the proposed road complies with the scheme. The dispute may relate to the existence of certain factual material, or it may purely be a difference in interpretation of the words of the statutory provisions. This type of difference which, in the eyes of both parties, may be one of principle, is the type of dispute which private parties might litigate in the interest of obtaining a conclusive and authoritative interpretation of the law. The question arises, then, as to whether different branches of government can or should enter into litigation.
3.20 Traditionally, different branches of the executive government did not settle their disputes in this way. Rather, in the last resort they relied on the balance of political power between the Ministers responsible for the different agencies. If they sought legal advice, both sides to the dispute would probably first approach the Crown Solicitor or, through their Minister, the Law Officers. When Byers and Gill considered the provision of legal services to government, they took the view that the government was an entity and that it was not in the public interest that different branches of the government should be involved with litigation against each other. Rather, where a difference of opinion arose, they recommended that the matter should be referred to the Law Officers, whose opinion should be conclusive.17 This was not the view of the government of the day.
GOVERNMENT AS A SINGLE ENTITY
3.21 The government, or any part of it, such as the executive government, may be regarded as a single entity, or a number of different, and possibly competing, entities. This Issues Paper is concerned with the nature of government for the purposes of circulation of legal advice, but consideration of that matter requires attention to more general questions about the legal nature of government.
3.22 At common law, the Crown enjoys a range of privileges and immunities in relation to litigation,18 most of which are not relevant to this discussion. No matter what part of the executive branch of government might be concerned in the litigation, it enjoyed those privileges and immunities, so long as it could be brought within the “shield of the Crown”. The common law rule was that the Sovereign in person could not be a defendant in his or her own courts, and the Attorney General (in England) or a nominal defendant (in NSW) represented the Crown. Statutes such as the Judiciary Act 1903 (Cth) were necessary to ensure that the Commonwealth or Ministers could be sued. This rule was one reason why different branches of government did not engage publicly in legal disputes, at least in the courts.
3.23 When the party to actual or potential litigation was “the Crown”, this party could also be regarded almost automatically as the client of the Attorney General, Solicitor General, Crown Advocate or Crown Solicitor.19 This was the case even though the instructions were received from, and the advice delivered to, particular individual persons who held office within the executive government: Ministers or public servants.
3.24 No problems arose so long as the advice was relevant only to the particular Minister or official seeking it. However, some advice given by the Law Officers or Crown Solicitor may be of general application throughout the public sector. For example, advice given on the interpretation of a provision of a statute applying to all areas of the public sector (for example, the Public Finance and Audit Act 1983 (NSW) or the Freedom of Information Act 1989 (NSW)) would apply equally to many, if not all, government departments and agencies. Other advice, such as that in the Smiles case described in Chapter 1, in retrospect can be seen to have been relevant not only to the Clerk of the Legislative Assembly, who requested it, but also to the trustees of the Parliamentary Superannuation Funds and possibly to the parliamentary and Treasury officials responsible for the administration of the funds invested by the trustees.
Identifying the client
3.25 For some purposes, all these officials might fall within the general scope of the legal expression “the Crown”. However, it is clear that their interests differed and different persons were exercising a wide range of powers and functions, though at all times within the public sector. So far as the receipt and distribution of legal advice to government is concerned, it is necessary to determine exactly who is the recipient of the advice, or “the client”.
The government as a corporate entity
3.26 One view may be that the government is analogous to a corporation or a partnership, in that if advice is given to one subsidiary corporation or to one partner, it is deemed to be given to the entire corporation or partnership. The logical extension of this view would mean that when one Minister or official received legal advice, the government as a whole would be deemed to be the “client”. In this situation, there would be no problem with advice to say, the Ministry of Education and Youth Affairs also being available to the Department of Health, particularly if it dealt with a subject of common concern (for example, educational standards of health professionals). The matter is complicated where the advice given to one agency might, if adopted by another agency, involve considerable expense or exposure to liability, for example, where an advice to the Minister for Transport about liability for damage caused by dogs on railway stations, if applied to schools, might involve the Department of School Education in significant cost of erecting dog-proof fences around school grounds.
The government as discrete agencies
3.27 The other approach is to acknowledge that, in practice at least, the government operates as a number of disparate organs. Unlike a corporation or a partnership, the government is not bound by principles of vicarious liability or statutory fiduciary duties. Instead, each government organisation has particular responsibility for specific areas of administration, all falling within the umbrella of the Premier. As such, each government agency requesting legal advice could be seen to be the “client”. In this situation, it would be at the discretion of that agency whether or not to distribute the advice to other agencies. Taking the above example, the Ministry of Education and Youth Affairs would be under no obligation to provide the Department of Health with legal advice obtained by the Ministry.
- When lawyers advise government, who, or what exactly, is the client?
- Should legal advice to government be regarded as advice to a single entity (such as a corporation or partnership) or to the particular department or agency that requests it?
- Should the answer to these questions depend on the circumstances, including the kind of advice given, or the purpose for which it was obtained?
The Commission’s preliminary view
3.28 The Commission has formed the preliminary view that for most legal and administrative purposes there are very strong reasons why the government should be regarded in law as a single entity. It would follow that advice to any organ or official of the government should be taken to be advice to the whole of government, even if, for reasons of administrative efficiency or the application of a policy, various sections of the government are given apparently separate managerial structures. Every part of the government, in a system of representative democracy, must be accountable to Parliament, which is itself accountable to the people for the operation of the whole of government. While each government department may separately be accountable financially and administratively, this should not supplant the basic principle of representative government which is responsible as a whole to the people through Parliament.
THE CHANGING NATURE OF GOVERNMENT
3.29 In recent times, with the “privatisation” and “corporatisation” of parts of the government and public administration, and the implementation of the National Competition Policy, many functions of government have been “outsourced” to private contractors. The changing nature of “the Crown” as client of the Law Officers and the Crown Solicitor creates some problems. Even though it is likely that the structure of government institutions may continue to change, a large core of government activity will remain, and those engaged in this activity will, from time to time, require legal advice on a range of matters, and certainly not just on matters related to litigation.
ISSUES FOR DISCUSSION
- What impact do privatisation and National Competition Policy have on the practicality of advising government as a single entity?
- Should advice of government legal officers provided to partially privatised government agencies (for example, Pacific Power) be treated in the same way as advice to government?
FOOTNOTES
1. See Kable v Director of Public Prosecutions (NSW) (1996) 138 ALR 577.
2. The special constitutional position of the office of Attorney General in NSW is mentioned at paras 2.16-2.21. This is also the case in the Commonwealth Government, the United Kingdom, Canada, New Zealand, and all the other Australian States.
3. P Archer The Role of the Law Officers (Fabian Research Series 339, London, 1978) at 3.
4. See paras 2.14-2.25.
5. G Barwick Sir John Did His Duty (Serendip Publications, Sydney, 1983) at 84-85.
6. K Mason Conventions Relating to Vice Regal Access to the Solicitor General for Legal Advice (Draft unpublished paper, 1996).
7. See D A Low (ed) Constitutional Heads and Political Crises: Commonwealth Episodes, 1945-85 (MacMillan Press, London, 1988) at 19, 99 and 103; and J A Thomson “Book Review: Sir John Did His Duty” (1983) 6 University of NSW Law Journal 255 at 257.
8. As happened in Tasmania in 1989: see G Winterton “Tasmania’s Hung Parliament, 1989" [1992] Public Law 423 at 429.
9. The Commonwealth Constitution includes express provisions dealing with “judicial power” and these have been interpreted by the courts: see In Re Judiciary Act 1903-1920 and Navigation Act 1912-1920 (1921) 29 CLR 257; R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; Wilson v Minister for Aboriginal Affairs (1996) 138 CLR 220; Kable v Director of Public Prosecutions (NSW) (1996) 138 ALR 577.
10. The Attorney General is the leader of the Bar, but it is not clear if the office carries any special position in relation to the judiciary. In the United States of America, the Solicitor General (whose position is slightly different from that of the Australian counterpart) is sometimes regarded as virtually an additional member of the Supreme Court: R M Salokar The Solicitor General: The Politics of Law (Temple University Press, Philadelphia, 1992) at 78 and 80.
11. See for example, G Marshall Constitutional Theory (Oxford University Press, London, 1971) at 20-24.
12. P Hanks Constitutional Law in Australia (2nd ed Butterworths, Australia 1996) at 159-160 (emphasis added); see also G Winterton “The Constitutional Position of Australian State Governors” in H P Lee and G Winterton (eds) Australian Constitutional Perspectives (Law Book Co, Sydney, 1992) 274 at 274.
13. N Seddon Government Contracts: Federal, State and Local (The Federation Press, Sydney, 1995) at 96.
14. L Zines “The Growth of Australian Nationhood and its Effect on the Powers of the Commonwealth” in L Zines (ed) Commentaries on the Australian Constitution (Butterworths, Australia, 1977) 1 at 31; A Berriedale Keith The King and the Imperial Crown: the Powers and Duties of His Majesty (Longmans, London, 1936) at Chapter 17.
15. Eg State Owned Corporations Act 1989 (NSW) s 9(c) and s 20F.
16. See Northern Territory v Mengel (1995) 185 CLR 307.
17. M Byers and M Gill Review of Legal Services to Government (Sydney, 1993) at 15-16 (“the Byers and Gill Report”). See also para 4.17.
18. P W Hogg Liability of the Crown (2nd ed, Carswell, Ontario, 1989) at 9.
19. Byers & Gill Report at 7 emphasises the unity of the Crown for this purpose.
