THE CURRENT POSITION
“Legal advice to government” defined
4.1 So far, this Issues Paper has identified the providers of legal advice (the Attorney General, the Law Officers, the Crown Advocate, salaried legal officers within government and private practitioners) and the recipient of this legal advice (government). Now, in order to address the main issue of this paper, namely, whether legal advice to government should be more widely circulated, it is necessary to have a working definition of “legal advice to government”.
4.2 “Legal advice to government” is advice given to government by a legal practitioner (usually one of those identified in Chapter 2) on a legal issue, including the interpretation or application of legislation or in relation to litigation. Chapter 3 identified the difficulties of regarding the government as a single entity. It follows that the working definition of legal advice must be imprecise and broad to take into account the ambiguities of the institutions of government, comprising departments, agencies and State-owned corporations.
Circulation of legal advice within government
4.3 So far as the Commission is aware, the current practice of most government departments and agencies is to keep any legal advice received within the department or agency and, indeed, to claim exemption in respect of legal advice when access is sought under the Freedom of Information Act 1989 (NSW).
SHOULD LEGAL ADVICE TO GOVERNMENT BE CIRCULATED?
4.4 Given the special nature of government as client, and the public interest in having the government speak with one voice, should the advice of the Law Officers and the Crown Solicitor be circulated more widely:
- within government;
- to selected agencies or bodies falling outside the government as traditionally defined; or
- (if it is not possible to confine the circulation to specified non-government bodies) generally to the public?
Essentially, the issue is whether the legal advice should go beyond the immediate client, being the department, agency or corporation requesting the advice.
Arguments for wider circulation
Wider circulation within government
4.5 The more general availability of legal advice within government agencies might avoid cost, duplication of effort, clashes of policy or embarrassment to another section of government, such as that which arose in the Smiles case. It would also assist in upholding “the rule of law” on the assumption that departments and agencies of government do not knowingly contravene clearly advised legal restraints. It would also ensure that Ministers could more readily administer their legislation in accordance with the law.
Wider circulation to selected agencies or persons
4.6 With increasing “corporatisation”, “privatisation” and “outsourcing” of activities traditionally regarded as governmental, many private businesses and individuals are now performing functions whose operations are based in legislation. While it may be expected that they can and should pay for legal advice they require in the course of their operations, it may be important for these businesses and individuals to have access to the same type of authoritative advice on matters such as the scope of particular legislation as is available to officials within government departments and agencies performing similar functions. This is in the spirit of National Competition Policy. If this ethos of competition is to be fostered fully, and legal advice is essential to the proper exercise of the function, private contractors or State-owned enterprises operating outside the traditional scope of government should have access to that advice.
4.7 If this legal advice is circulated to say, contractors performing functions for government, it is not clear whether in law or in practice it can be confined only to those contractors. It is difficult to envisage policy reasons why any advice which government might wish to circulate to contractors should not be made available to the wider public, as matters of policy are often unlikely to be commercially sensitive.
Wider circulation to the public
4.8 It can be argued that if such advice is readily available to the public, the public will have a greater understanding of why powers and discretions of governments are exercised in a particular way, and would afford an opportunity for the public to make representations to government to exercise those powers and functions differently. Publication might also ensure that different branches of the government take a similar approach to the exercise of their powers and functions.
4.9 Wider circulation of advice would also be in the spirit of the Freedom of Information Acts1 , which embody the principle that government information is presumed to be publicly available unless it falls within one of the exemptions under the Acts, such as legal professional privilege. The impact of legal professional privilege on the release of legal advice to government is discussed at paragraphs 5.3, 5.9-5.23 and 5.28.
Arguments against wider circulation
Wider circulation within government
4.10 In its submission to the ICAC’s inquiry into the Smiles’ matter, the Attorney General’s Department referred to problems in circulating legal advice when there are conflicts between different departments or trading entities of the government arising out of their commercial activities. The Department also referred to situations where there may be political, commercial, strategic or other policy reasons for keeping legal advice to government confidential. The practical difficulties of disseminating advice throughout the various departments, agencies and statutory corporations of government were also raised.2
Wider circulation to selected agencies or persons
4.11 When functions are transferred from government to the private sector to encourage competition, government agencies which retain certain functions will either be concerned with “core” policy matters which in any event should remain confidential in the public interest, or they will be operating as business enterprises in a competitive market so that any advice they receive would fall outside the scope of “advice to government”.
Wider circulation to the public
4.12 The effect of making the advice of the Law Officers or the Crown Solicitor available to the public may inhibit initiatives by departments or agencies of government to experiment with, or explore, the limits of their powers and functions. Legal advice tends to be conservative and it may not be in the best interests of the public government institutions to exercise their powers or functions in a restrictive way. Failure to seek legal advice, for example, on the interpretation of legislation, may lead officials to be over-cautious in their approach, thus frustrating the intention of government. It can also be argued that, if departments and agencies know that legal advice may become available, either within government or more widely, they will be inhibited from seeking legal advice at all, especially when relevant officials suspect that the advice may impede the course of action they wish to follow. The Commission asserts that it is a fundamental principle of our system of government that Ministers and those accountable through them to the people will observe and maintain the rule of law,3 and no requirement for the wider circulation of advice should have the effect of preventing or inhibiting them from so doing.
4.13 The Freedom of Information Acts4 recognise that documents used internally are not normally publicly available. It may also be that publication of an internal advice on government liability will precipitate vast numbers of tort liability claims. Candour of communication within government requires that all opinions be canvassed and, provided that the final policy documents are available to the public, documents used in preparing them, including legal advices, should remain confidential.
ADVICE EXCLUDED FROM CIRCULATION
4.14 Given the issues arising from wider circulation (a) within government, and (b) to the general public, there may be arguments for establishing categories of legal advice to government which may be circulated within different groups of recipients. To some extent, this is the scheme reflected in the Freedom of Information Act 1989 (NSW). Another way of looking at this, is that certain categories of advice could be excluded from circulation beyond a certain point. For instance, advice which is particularly sensitive might be circulated within government, or within Senior Executive Service officials, but not circulated to the general public. Different classes of government information already exist which are subject to “privilege” and do not have to be disclosed in certain circumstances. The concept of “privilege” is discussed in Chapter 5. However, there may also be other grounds for determining the different categories of advice and their differing realms of circulation.
ISSUES FOR DISCUSSION
Should legal advice to government be more widely circulated?
If so, should legal advice be circulated:
(a) within government; or
(b) to the general public as well?
Should there be categories of advice with different conditions of circulation applying to each category?
What are they?
Should certain categories of advice be excluded altogether from circulation?
EFFECT OF RELEASE ON INTRA-GOVERNMENTAL RELATIONS
4.15 A possible consequence of making advice to government departments available more widely may be to increase the occurrence of inter-departmental disputes over points of law. Within an institution which the law regards as a separate but single artificial person, such as a corporation or the Crown, it seems logically and procedurally unlikely that the courts could or would entertain litigation between two integral parts of the same legal entity, without specific statutory provision for such proceedings. If the government or the Cabinet wants to resolve the dispute in accordance with legal principles rather than as a matter of politics, an authoritative legal opinion may finally decide the issue.
4.16 Decisions of courts are reported, and as a collection of decided precedent cases, they form part of the general law. Private legal opinions do not have the status and authority of decisions of the courts, and they are not publicly available. Opinions of the Law Officers, if written, are recorded and kept in government offices. To the extent that they do not bear directly on actual or potential litigation or refer specifically to the private affairs of individuals or business, they may develop something of the status of a body of precedent. Legal advice is often relied upon and applied by the government department that receives it in much the same way as decisions of the courts. If the advice were readily available, it might prevent differences of opinion between different arms of government.
4.17 The Byers and Gill Report suggested that, where disputes arose between different departments or agencies of government involving a legal issue, the opinion of the Attorney General should be final and decisive of that issue.5 The Government rejected this recommendation. It took the view that the Premier was the final arbiter of such disputes although noted that, in appropriate cases, the opinion of the Attorney would be sought and acted upon.6
4.18 The Commission seeks views on the likely impact on intra-governmental relations of the release of legal advice requested and received by government. Given that legal advice provided to government by Crown Law Officers is persuasive and authoritative and often directly influences government action, the Commission asks whether the public benefit in having access to such legal opinion outweighs any potential disharmony between government agencies.
ISSUES FOR DISCUSSION
Is it likely that circulating advice to government more widely would result in more inter-departmental disputes?
If so, do the advantages of disclosure outweigh the disadvantage of an increase in inter-departmental disputes?
Intellectual property issues
4.19 Where legal advice is given to government by a private legal practitioner, the law of copyright may also restrict the range of possibilities for wider circulation of the advice. Copyright is the exclusive right to, amongst other things, reproduce, publish or make an adaptation of “works”, including literary works.7 Legal advice from a barrister or solicitor is almost certainly a “literary work” under the Copyright Act 1968 (Cth) (“the Act”) even though it is not published, if the author was an Australian citizen or resident when the work was made.8 The copyright is in the manner of presentation of the work, rather than its content. The Act does not define “literary work” other than to say that it includes a table or compilation expressed in words, figures or symbols and a computer program.9
4.20 The copyright vests in the author unless either:
- the work was created by or under the direction or control of the Crown, in which case copyright is vested in the Crown;10 or
- the copyright is assigned to the client.11
It would seem that the first exception does not apply to legal advice as barristers and solicitors in private practice are for most purposes not subject to the direction or control of their client. They are independent professional advisers rather than employees. Many employees agree, either expressly or impliedly in their contract of employment, that the copyright in any work they produce in the course of their employment vests in the employer, and this is likely to apply to solicitors employed by private firms, so that the firm, rather than the individual, is the copyright holder.
4.21 Copyright is infringed when a literary work is reproduced, published or adapted without the licence of the copyright owner.12 However, copyright is not infringed by anything done for the purposes of a judicial proceeding.13 Fair dealing with a literary work for the purpose of giving professional advice by a legal practitioner or patent attorney does not infringe copyright in the work. If a government legal officer distributed amongst departments advice provided by a private legal practitioner, this would probably not infringe the copyright laws, even if no judicial proceeding related to the advice were actually on foot. However, distribution of the advice to persons outside the government might amount to infringement of copyright.
4.22 It would be possible for a retainer agreement between a client and a lawyer to stipulate that the copyright in any advice provided be vested in the client, or alternatively for the retainer agreement to include an express or implied licence for the client to use the advice as he or she thought fit. The Commission does not know if such provisions are used in NSW where government retains private legal advisers. If such a licence or assignment is not now part of the retainer agreements used by government departments or agencies, they may wish to consider seriously including such arrangements in future, as there are strong policy reasons why advice produced at public expense for the purposes of a public body should not be subject to any restriction at the hands of a private party.
4.23 The Crown is bound by the Copyright Act, but cannot be prosecuted for an offence under it.14 The Act does not affect any right or privilege of the Crown.15 However, these rights or privileges do not extend any further than those of an owner of copyright in a work. The Crown’s rights or privileges cannot be infringed by doing an act in relation to a work, without the licence of the Crown, if such an act would not require the licence of an owner, if the work was subject to copyright.16
4.24 Generally, copyright in a literary work is not infringed by the Commonwealth or a State doing any acts done for the services of the Commonwealth or State.17 This would seem to allow the publication and reproduction of legal advice to government relating to matters of government, even if provided by a private legal practitioner. The Commonwealth or State is obliged to inform the owner of the copyright of the doing of the act, as well as such information as is required, as soon as possible, unless contrary to public interest.18
ISSUE FOR DISCUSSION
Should special provisions be made relating to the intellectual property in legal advice given by private legal practitioners to government, for example, an implied licence in retainer agreements between the government and private practitioners which permits the government to publish the advice as it sees fit?
FOOTNOTES
1. Freedom of Information Act 1989 (NSW) and Freedom of Information Act 1982 (Cth).
2. NSW, Independent Commission Against Corruption Report on Investigation into Circumstances Surrounding the Payment of a Parliamentary Pension to Mr P M Smiles: Second Report (April 1996) at 21.
3. See discussion at paras 3.8-3.9.
4. Freedom of Information Act 1989 (NSW) and Freedom of Information Act 1982 (Cth).
5. Recommendation 4: M Byers and M Gill Review of Legal Services to Government (Sydney, 1993) (“the Byers and Gill Report”).
6. NSW, Government Response to the Recommendations of the Review of Legal Services to Government (Sydney, 1993) at 11.
7. Copyright Act 1968 (Cth) s 31(1)(a).
8. This means that they are a “qualified person” for the purposes of the section: Copyright Act 1968 (Cth) s 32.
9. Copyright Act 1968 (Cth) s 10.
10. Copyright Act 1968 (Cth) s 176.
11. The Copyright Act 1968 (Cth) is silent on assignment, so that the common law governing assignment of choses in action applies to copyright. The Conveyancing Act 1919 (NSW) s 12 requires that legal rights in a chose in action be assigned by express notice in writing.
12. Copyright Act 1968 (Cth) s 36(1).
13. Copyright Act 1968 (Cth) s 43(1).
14. Copyright Act 1968 (Cth) s 8.
15. Copyright Act 1968 (Cth) s 8A(1).
16. Copyright Act 1968 (Cth) s 8A(2).
17. Copyright Act 1968 (Cth) s 183(1).
18. Copyright Act 1968 (Cth) s 183(4).
