1.1 On 25 November 1996, the Attorney General, the Hon Jeff Shaw, QC, MLC, referred to the Law Reform Commission the question of whether, and in what circumstances, legal advice received by government agencies should be circulated to a broader audience. The reference arose directly from a recommendation made by the Independent Commission Against Corruption (ICAC) during its inquiry into a parliamentary pension paid to Mr Phillip Smiles (“the Smiles case”). The facts of that case, and any wider implications for the circulation of legal advice, are discussed in Chapter 2.

1.2 In Australia, it is a fundamental principle that government should be according to law. Governments may make and carry out law, but in doing so they must themselves act according to law. Modern government has become increasingly complex and functions through many different agencies. As well as having its own area of responsibility, each agency is also part of the network that comprises the three branches of government: the legislature, the executive and the judiciary. While the doctrine of separation of powers dictates that each of these three branches must remain distinct, the reality is that the way in which one government agency interprets and carries out its functions may have an impact on the way other agencies operate, and on the delivery of services to the public. Government bodies may, and often do, seek the advice of lawyers on matters within their areas of administration. A government agency may have its own division which provides it with legal advice, or it may seek the advice of Crown Law Officers, such as the Crown Solicitor, the Solicitor General and the Crown Advocate, or may request the legal opinion of a private lawyer. That advice, for example, may be in relation to specific litigation, or may be more general advice concerning the operation of a statute administered by that agency or under which that agency operates.

1.3 It is conceivable that advice obtained by one government agency may be relevant to other agencies, especially if it concerns the interpretation of a general law, such as the Constitution. There is, however, no legal obligation on the agency receiving the advice to circulate it, although the Crown Solicitor’s Office has a policy regarding advice which affects more than one government agency.¹ Legal advice is usually distributed on a request basis. If an agency wishes to obtain a copy of the advice provided to another agency, it can ask the recipient of the advice for a copy, or approach the author who will seek the permission of the recipient of the advice.

1.4 In past years, virtually all legal advice obtained by government agencies was provided by the Crown Solicitor or the Law Officers. In recent times, however, changes in government policy have increased the opportunity for government departments and agencies to receive legal advice from a wider range of sources, including government legal advisers and private practitioners.² This expanding category of legal advisers to government agencies could result in different agencies receiving legal advice on the same matters from separate advisers.

1.5 In this Report, the Commission considers whether rules should be introduced governing if, and when, legal advice received by government agencies should be circulated, and by whom, and to whom, it should be distributed. The Commission makes a recommendation aimed at addressing two problems caused by the current arrangements for seeking legal advice. First, there is the danger that, without any central bank of information on legal advice requested by and provided to government, one government agency may act in ignorance of advice obtained by another agency that is relevant to the first agency. Secondly, agencies may obtain and act on conflicting advice provided by different legal practitioners without realising that such conflicting advice exists.³

CONSULTATION PROCESS

1.6 The Commission released an Issues Paper in June 1997 (IP 13), which canvassed a number of issues relevant to the circulation of legal advice to government. The Paper asked a series of questions and invited public comment. The Commission also held seminars in May, in conjunction with the Institute of Public Administration Australia (NSW Branch), and in August, in conjunction with the Australian Institute of Administrative Law. Several people involved with the provision and receipt of government legal advice attended and contributed to the discussion at each seminar.

ISSUES FOR CONSIDERATION

1.7 In IP 13, the Commission identified the negative consequences which may result from legal advice received by one agency not being distributed to other relevant agencies or to the public generally. Those consequences include the possibility that:

• government officials will be left to act without the benefit of legal advice and so may not act in accordance with the law;
• government agencies will each obtain their own legal advice from different people on the same matter, which raises the likelihood of inconsistent advice;
• government agencies, and thereby the taxpayer, may incur unnecessary cost by
  
  - obtaining legal advice on substantially the same issues more than once; and

  - resolving differences over interpretation and application of the law between different organs of government by litigation; and

• public access to government information may be undesirably restricted.

RESPONSES TO SUBMISSIONS

1.8 The Commission suggested in IP 13 that the problems referred to above could be overcome by introducing a requirement that all legal advice obtained by a government agency on an issue which has ramifications for other agencies, or is of interest generally to other agencies or to the public, should be circulated. While a number of people making submissions agreed in theory that greater disclosure may be beneficial, the following practical difficulties in requiring advice to be circulated were raised:

• the sheer volume of legal advice generated and received by government agencies would make it impossible for all advice to be distributed to all other agencies and to the public;
• some agencies saw no need to receive advice relevant to other agencies;
• there would be difficulty in determining what criteria should be used to decide which advice should be circulated and by whom it should be circulated;
• the amount of time and resources that would be necessary to assess which advice should be distributed and to whom would be prohibitive and outweigh any perceived benefits of circulation;
• it is not always possible to distinguish between specific advice and advice of general application, or to know every agency to which particular advice may be relevant;
• advice circulated in isolation without details of the circumstances which gave rise to it is liable to be misunderstood and misapplied;
• legal advice, even advice provided by the same person, can change over time as accepted attitudes change, and so should not be circulated as definitive legal statements;
• devising any guidelines on the circulation of advice would be difficult as they would necessarily have to be broad and flexible to accommodate the vast range of advice produced;
• if the guidelines were broad and flexible, advice could easily be drafted to get around the requirement to circulate it, thereby rendering the guidelines useless;
• if advice were drafted deliberately to avoid having to circulate it, this may restrict the frankness between lawyer and client;
• unforeseen conflicts may arise between agencies engaging in current, pending or anticipated litigation, if advice is mistakenly circulated to the wrong people; and
• the co-operative approach currently operating, whereby agencies circulate the advice on request, is working well.

OPTIONS FOR THE COMMISSION

No change to the existing arrangements

1.9 The Terms of Reference require the Commission to consider whether arrangements should be made for the circulation of legal advice. In recommending any sort of change, the Commission must be satisfied that it will solve the problems identified. The concerns raised in submissions and consultations indicate that introducing any requirement that government agencies circulate legal advice to other agencies or to the public, would be difficult and expensive at best and, at worst, unworkable.

1.10 Apart from the problems raised in submissions and consultations, there are significant difficulties in determining the best method of introducing such a requirement. A legislative approach would, in the Commission’s view, not be appropriate for two reasons. First, the issues are concerned more with government efficiency and administrative practice than with law. Secondly, a legislative approach would give rise to the issue of penalties for breach, which seems to be out of proportion to the perceived problems any legislation would be designed to address, and would be impractical to enforce.

1.11 This Reference did not result from any overwhelming need to reform government practices in this regard. The Smiles case is not a particularly effective example of the failure of a government agency to circulate legal advice, since other factors were relevant, perhaps to a greater extent. It is purely speculative to suggest that the situation leading to the inappropriate payment of a parliamentary pension to Mr Smiles would have been averted if there had been a legislative or policy requirement that the advice in that case should have been circulated. The Smiles case can be distinguished on the ground that it had as much to do with the failure of the Trustees to obtain independent legal advice after they had been put on notice of a potential problem, and with the separation of powers between the legislature and the executive government, as with the failure to circulate legal advice. The facts of the Smiles case alone do not justify introducing procedures for the distribution of legal advice across government as a whole which may be costly, ineffective and unnecessary.

1.12 It is possible to defend a position of recommending no change to the current legal requirements regarding the circulation of legal advice on the grounds that:

• there is no satisfactory way of implementing or enforcing a requirement to circulate government legal advice;
• there is no reason to believe that such a system would improve government efficiency and accountability, in fact it could well have a negative effect;
• there would be great difficulty in assessing which advices should be circulated and which should be kept confidential;
• the cost and resources involved would be enormous;
• there is no evidence that there are any overwhelming problems with the current arrangements of providing advice on request; and
• if problems currently do exist, there may be better ways to overcome them, such as improving lines of communication and working relationships between government agencies.

Improving circulation arrangements

1.13 For the reasons outlined in this chapter, the Commission considers that no change to the law is necessary in relation to government legal advice. The effectiveness and efficiency of government could, however, be enhanced by greater co-operation and a more effective flow of information between government agencies. To this end, the Commission recommends a change to government administrative arrangements aimed at achieving more effective and accountable government.⁴

OUTLINE OF REPORT

1.14 Chapter 2 of this Report examines the issues which gave rise to the reference. It outlines the facts and circumstances of the 1994 investigation by the Independent Commission Against Corruption (ICAC) into the payment of parliamentary benefits to Mr Smiles, and the implications, if any, that case has for the circulation of legal advice requested by, and provided to, government agencies. Chapter 3 describes the organisation of government, the major sources of government legal advice and the intellectual property issues that arise in relation to legal advice provided to government by private legal practitioners. Chapter 4 examines the arguments in favour of and against circulating government legal advice, both within government agencies and to the public generally. It also addresses the issue of legal professional privilege. Chapter 5 culminates in the Commission’s conclusions and recommendation for improving the circulation of government legal advice.

FOOTNOTES

1. The Crown Solicitor has advised the Commission that his Office has a policy whereby it will not accept instructions to advise one government agency on a legal matter which affects another agency, unless the advice is to be provided to, and input invited from, both agencies: Ian Knight, Crown Solicitor Memorandum (27 November 1997).

2. This is discussed further at paras 3.13-3.15.

3. See para 3.15 for hypothetical examples.

4. See paras 5.6-5.7.