5.1 The Commission has concluded that no changes to the law are necessary regarding the circulation and disclosure of legal advice to government The conclusions and recommendations in this chapter are directed therefore to changes in practice rather than to legislative reform. The relevant policy issues are:

• ensuring that government officials seek advice whenever appropriate so that they act in accordance with the law, thus maintaining the rule of law;
• ensuring that no litigant (including a government department, agency or official) is placed at a disadvantage by being required to disclose legal advice received by it at any time;
• the desirability of ensuring public access to government information in defined situations;
• ensuring that government does not incur unnecessary cost by:

  - obtaining legal advice on substantially the same issues more than once; and

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

• ensuring that organs of government do not act in ignorance of legal advice on applicable rules when competent legal advice on relevant issues already exists.

5.2 These interests are balanced to some extent by existing arrangements. For example, the right of a client to protect the candour of communication with his or her lawyer is allowed due to legal professional privilege. This interest is balanced with the right of the public to have access to government information in the Freedom of Information Act 1989 (NSW). The Commission considers these rights to be balanced appropriately.

5.3 For this reason, the Commission does not recommend any legislative changes. It would be unduly costly, burdensome, and generally unnecessary to require legal advice given to or received by government departments or agencies to be distributed to other organs of government, especially where this relates to specific fact situations.

5.4 The Commission considers, however, that there are cases in which there is a clear public interest in ensuring that such advice is made available to a wider group than the requesting government agency. For instance, advice involving the interpretation or application of the Constitution Act 1902 (NSW), or legislation of general application,¹ may be relevant to all government agencies. Similarly, there may be cases where a principle of common law or the interpretation or application of a word or phrase in legislation may have relevance beyond the immediate circumstances giving rise to the advice. In order to ensure the proper distribution of legal advice of this nature to those with an interest in it, the Commission suggests that any legal practitioner giving advice to the Crown or any official, agency or department of government, should consider whether:

• the advice may have, or may contain a general principle which has an application that is wider than the particular circumstances which gave rise to the request for advice; and
• the potential effect that disclosure of the advice might have on the agency which requested it.

5.5 The legal practitioner providing the advice may consider recommending to the recipient that the advice be distributed to other government agencies, or to the Attorney General, representing the government as a whole, with a suggestion that the advice be distributed more widely to government departments, agencies and officials as may be appropriate in the circumstances. This would not be in breach of any duty owed by the legal practitioner to the client agency, since the client is notionally the Crown, with the Attorney General acting as the representative of the Crown. The power of the Attorney General would not be limited to circulating advice provided by Crown Law Officers, such as the Solicitor General, the Crown Advocate or the Crown Solicitor, but would include advice provided to government by private practitioners.

5.6 The Commission recommends that legal practitioners should not have any substantive obligations placed on them in this respect. As a matter of practice, however, the Commission recommends that all government agencies and departments should forward copies of any written legal advice received from any source which they consider may be relevant to other departments or agencies of government, to those agencies and departments and to the Attorney General’s office for information.² A requirement to do so might usefully be included in the terms of the employment contracts between the government and more senior officers of the public service, especially heads of departments or agencies.

5.7 It is envisaged that only a few written advices would be disclosed as a result of this recommendation. Heads of agencies and departments could publish any material they choose. If such publication might be embarrassing to individuals, names and other identifying facts could be deleted. The Attorney General need publish only that advice which had general application, and he or she would choose carefully the audience to which they would be published. In some cases, this might be to the general public. In most cases, the process would simply involve notifying the department or agency concerned of the existence of the advice. To facilitate easy distribution, an electronic database of advice could be maintained. The Commission considers that questions of how the advice should be communicated or stored, and who should be responsible for maintaining it, would more appropriately be addressed by government administrative procedure than by a Commission recommendation. The Commission notes, however, that the Crown Solicitor’s Office already maintains a significant database of advice, and the Crown Solicitor or one of the Deputy Crown Solicitors may be an appropriate person to whom the Attorney General might delegate the function of circulating advice and granting access to the data base. This might require a balancing of the interests of confidentiality with the obligation, clearly stated in Western Australia v Watson,³ of senior officials to communicate relevant information to each other.

Recommendation 2

The Commission recommends that all government agencies and departments should forward copies of any written legal advice received from any source which they consider may be relevant to other departments or agencies, to those agencies and departments and to the Attorney General’s office for information.

FOOTNOTES

1. For example, the Ombudsman Act 1974 (NSW); the Public Finance and Audit Act 1983 (NSW); the Freedom of Information Act 1989 (NSW); and the Public Sector Management Act 1989 (NSW).

2. The Commission was not unanimous in reaching its conclusions and recommendation. The Hon Jerrold Cripps QC, and Mr Kelly, considered that although the current position of government in respect of the circulation of legal advice may be improved upon, this is not an area that requires the attention of the existing law. Accordingly, those Commissioners considered that the Commission should not make any recommendation.

3. [1990] WAR 248.