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

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

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History of this Reference (Digest)

Table of Contents

Terms of reference
Participants
Submissions
Summary of issues

1. INTRODUCTION
ISSUES FOR CONSIDERATION
Background to the reference - the Smiles case
Terms of reference
Issues arising from the Smiles case
OUTLINE OF THIS PAPER

2. LEGAL ADVISERS TO GOVERNMENT
THE CROWN SOLICITOR
Commonwealth Attorney-General's Directions
THE LAW OFFICERS
The Attorney General
The Solicitor General
THE CROWN ADVOCATE
OTHER LEGAL ADVISERS
Private Practitioners

Salaried "in-house" lawyers

3. IDENTIFYING THE CLIENT
BRANCHES OF GOVERNMENT
Separation of powers
Legislature
Executive
Judiciary
THE CROWN
The Crown and the rule of law
The Crown as symbol
The "indivisible" Crown
The reality of multifarious government
Disputes between different branches of government
GOVERNMENT AS A SINGLE ENTITY
Identifying the client

The government as a corporate entity

The government as discrete agencies

The Commission's preliminary view

THE CHANGING NATURE OF GOVERNMENT

4. CIRCULATION OF LEGAL ADVICE TO GOVERNMENT
THE CURRENT POSITION
"Legal advice to government" defined
Circulation of legal advice within government
SHOULD LEGAL ADVICE TO GOVERNMENT BE CIRCULATED?
Arguments for wider circulation

Wider circulation within government

Wider circulation to selected agencies or persons

Wider circulation to the public

Arguments against wider curculation

Wider circulation within government

Wider circulation to selected agencies or persons

Wider circulation to the public

ADVICE EXCLUDED FROM CIRCULATION
EFFECT OF RELEASE ON INTRA-GOVERNMENTAL RELATIONS
Intellectual property issues

5. EXCEPTIONS FOR CIRCULATION
CURRENT LAW AND PRACTICE
PRIVILEDGE
Public interest immunity
Legal professional priviledge

Salaried legal practitioners

Legal advice or policy advice?

SHOULD ADVICE TO GOVERNMENT BE SUBJECT TO PROVILEDGE?
Can Ministers claim priviledge against each other?

"Common interest" priviledge

Joint priviledge between partners

A provisional view

6. PRACTICAL ISSUES FOR CIRCULATION OF ADVICE
SHOULD ADVICE BE CIRCULATED OR "MADE AVAILABLE"?
HOW SHOULD ADVICE BE DISTRIBUTED?
RESTRICTIONS ON USE OF THE ADVICE

APPENDIX A

APPENDIX B

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