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Issues Paper 13 (1997) - Circulation of Legal Advice to Government

Summary of Issues

How to obtain a copy of this Issues Paper.

History of this Reference (Digest)

ISSUE 1

When lawyers advise government, who, or what exactly, is the client?

ISSUE 2

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?

ISSUE 3

Should the answer to ISSUE 2 depend on the circumstances, including the kind of advice given, or the purpose for which it was obtained?

ISSUE 4

What impact do privatisation and National Competition Policy have on the practicality of advising government as a single entity?

ISSUE 5

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?

ISSUE 6

Can legal advice to government be defined? If so, how?

ISSUE 7

Should legal advice to government be more widely circulated?

ISSUE 8

If so, should legal advice be circulated:

within government only; or

to the general public as well?

ISSUE 9

Should there be categories of advice with different conditions of circulation applying to each category? What are they?

ISSUE 10

Should certain categories of advice be excluded altogether from circulation?

ISSUE 11

Is it likely that circulating advice to government more widely would result in more inter-departmental disputes?

ISSUE 12

If so, do the advantages of disclosure outweigh the disadvantage of an increase in inter-departmental disputes?

ISSUE 13

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?

ISSUE 14

Are there reasons for excluding advice from circulation:

(a) within government; or

(b) to the general public?

ISSUE 15

If there are reasons for excluding legal advice from circulation, should all such legal advice be so protected or should the protection only extend to certain categories? How would these categories be determined?

ISSUE 16

Should a distinction be made between legal advice of a general or policy nature and legal advice concerning actual or possible litigation? If so, how would this distinction be made?

ISSUE 17

What should be the basis for excluding certain information from circulation:

(a) it contains matters of legal professional privilege?

(b) it contains matters which it is in the public interest to keep confidential? or

ISSUE 18

Assuming that there are certain categories of advice which should be circulated, should this advice be actively circulated, or merely made available to those government departments and agencies or members of the public who request the advice?

ISSUE 19

Who should be subject to the duty either to circulate the advice or make the advice available?

ISSUE 20

If advice is to be disclosed within government, how should it be disclosed - in a Government Gazette, departmental circulars, newsletter or elsewhere?

ISSUE 21

If advice is to be disclosed to the general public, how should it be disclosed - on the Internet, in government newsletters or elsewhere?

ISSUE 22

What mechanisms could ensure that those government departments or members of the public to whom the advice is relevant actually have access to the advice?

ISSUE 23

If legal advice is made more widely available, should any restrictions be placed on the use to which the advice is put?

ISSUE 24

How feasible is it to ensure that restrictions on the use of legal advice are adhered to?

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