THE ORGANISATION OF GOVERNMENTS
The Crown and the rule of law
3.1 It is a fundamental principle operating in Australia that all governments must conduct business according to law. This is regardless of the specific policies which any particular government follows and implements. In order to fulfil this duty, Ministers, who are responsible through Parliament to the people for their actions, must know what the law is, and they seek and receive legal advice for this purpose.1 In Eastern Trust Co v McKenzie, Mann & Co2 the Privy Council said:
It is the duty of the Crown and of every branch of the Executive to abide by and obey the law … it is the duty of the Executive in cases of doubt to ascertain the law, in order to obey it, not to disregard it.
Ministers and other organs of government cannot escape their duty to observe and maintain the rule of law by compartmentalising government for the purposes of receiving legal advice. Politically and legally, the government is a single entity. However, this concept of unity of government for legal purposes does not preclude restructuring government, if it is consistent with constitutional rules, for the purpose of achieving policy objectives, such as achieving greater efficiency in government operations.
3.2 The administrative changes introduced in recent times have seen flatter institutional structures and “privatisation” or “corporatisation” of many parts of the executive government, in the interests of competitiveness and efficiency. Further, the shedding or “outsourcing” of many functions of government has meant that activities which were formerly carried out by government departments or agencies are now undertaken by private contractors in return for payment by the government. Under the State Owned Corporations Act 1989 (NSW), provision is made for government-owned trading or business enterprises to be incorporated, and to become largely independent of the formal structures of the executive government. For the purpose of litigation, these State-owned corporations are not part of the State,3 yet many are still represented and advised by the Crown Solicitor. When State-owned corporations have an independent legal personality, an argument can be maintained that the advice they receive belongs specifically to that legal entity. Even though it is likely that the structure of government institutions may continue to change in this way, a large core of government activity will remain, and those engaged in this activity will, from time to time, require legal advice on a range of matters, and certainly not just on matters related to litigation.
3.3 To some extent, government today maintains a degree of unity in practice. Despite the existence at times of inter-personal or inter-departmental rivalry, Ministers discuss matters of common or mutual concern in Cabinet, party meetings and informally. Political reality dictates that Ministers and their officials will generally pass on to their colleagues information they receive which is of common interest, although there is no legal obligation on them to do so. Where a department or agency believes that information, including legal advice, on an issue of mutual interest is held by another department or agency, a simple request is usually enough to obtain a copy of that information.4
3.4 Despite this semblance of unity, however, government is no longer monolithic. Government statutory bodies have their own legal personality and have the legal capacity to sue and to be sued by each other. The position is less clear in relation to a Minister, a department, an official or a statutory authority which does not have an independent legal personality. Although notions persist that “the government” or “the Crown” is a single entity, there are cases of departments or agencies being prosecuted for offences. Civil actions are brought, from time to time, by one governmental entity against another.5
3.5 Traditionally, different branches of the executive government did not settle their disputes in this way. Rather, in the last resort they relied on the balance of political power between the Ministers responsible for the different agencies. If they sought legal advice, both sides to the dispute would probably first approach the Crown Solicitor6 or, through their Ministers, the Attorney General. When Byers and Gill considered the provision of legal services to government, they took the view that the government was an entity and that it was not in the public interest that different branches of the government should be involved in litigation against each other.7 As a matter of law, this is the correct view. Where a difference of opinion arises between government bodies, Byers and Gill recommended that the matter should be referred to the Attorney General, whose opinion should be conclusive.8 The government of the day did not accept this recommendation. In fact, litigation between different organs of government, including both criminal prosecutions and civil actions, appears to have become more common. In October 1997, the Premier issued a Directive about the matter.9 The Directive states that wherever possible, government agencies should attempt to resolve their differences without resorting to litigation. The Directive also sets out Guidelines to be followed by government agencies in situations where litigation, either civil or criminal, is unavoidable. The Guidelines emphasise consultation between disputing agencies.
Western Australia v Watson
3.6 A recent judicial authority on the nature of the Crown in Australia is Western Australia v Watson.10 In that case, the respondent suffered from asbestosis. For a period of about a year, almost 30 years before the action commenced, he was employed by the State Department of Harbour and Lights. It was conceded that the Department had no legal identity, and that Mr Watson’s employer was the State. In the course of his employment he acted as a tally clerk and as a loader in a shed where bags of asbestos were loaded and unloaded. The trial judge found that, in the course of his employment by the State, he had been exposed to asbestos dust, and that this exposure had caused his affliction. This action was based on negligent failure to provide a safe system of work. The trial judge found that the presence of the asbestos dust in the places where the respondent was required to work constituted a serious hazard to health, and, further, that the State knew, or ought to have known, of the risk, with the consequence that it was reasonably foreseeable that the respondent and persons in the same class as the respondent, might suffer damage as a result of the working conditions. There was evidence that the Minister for Health and the Minister for Mines, and senior officials of the Western Australian Health Department and the Department of Mines, were aware of the dangers of asbestos dust at the time the respondent was employed by the State, but there was no evidence that the Minister for Harbour and Lights or senior officials of that Department had such knowledge.
3.7 The issue for the Court (which dismissed the appeal) was, therefore, whether the knowledge of any Ministers could be attributed to the State, even though those Ministers were not directly responsible for the acts or omissions that gave rise to the respondent’s claim. The Court drew an analogy between the State and a corporation. The cases of Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd,11 “The Truculent”12 and HL Bolton (Engineering) Co Ltd v Graham & Sons Ltd13 were considered. Those cases deal with the “state of mind” of a corporation and establish that the corporation’s state of mind is taken to be the state of mind of those who control it or who are its “directing mind and will”.14 The Court concluded in Western Australia v Watson that:
[I]n our opinion, where, as here, two Ministers of the Crown have acquired relevant knowledge in their capacities as Ministers, the Government and the State must be taken to have acquired that knowledge. . . Such knowledge constitutes actual knowledge.
Furthermore, in our opinion the directing mind and will of the State or the Government may extend beyond Ministers of the Crown and that in the particular circumstances of this case, the knowledge of successive Commissioners of Public Health was, relevantly, the actual knowledge of the Government.15
3.8 The Court then considered the arguments put forward on behalf of Western Australia based on the proposition that as government departments had no separate corporate existence, they were agents of the Crown. It was argued that because a principal is taken to have the knowledge of his or her agent, where the knowledge is of a fact material to the agency, there is a duty on the agent to communicate the knowledge to the principal. Accordingly, it was argued, unless it could be shown that the Health Department had a duty to communicate the knowledge of the dangerous properties of asbestos dust to the Department of Harbour and Light, the respondent could not succeed. There was no evidence that the Health Department knew that the State’s activities at the place where the respondent worked exposed workers to the danger of dust inhalation, and in the absence of such knowledge, it was argued that there was no duty to communicate. The Court rejected the agency argument:
We are unable to accept this argument. First, it overlooks the position of Ministers as representatives of the Government (in the sense that they are delegates of the Crown). Their knowledge is that of principals rather than that of agents. In any event, they have a duty to communicate knowledge to one another. Secondly, the argument overlooks the point that, given that the Cabinet is part of the directing mind and will of the Government, that does not prevent each Department from having a directing mind and will which is taken also to act as the Crown.16
3.9 These passages, which authoritatively state the current law, may be summarised as follows:
- Each Minister, and in many cases, the senior officials of each government department or agency, may be taken to constitute “the Crown”.
- Knowledge acquired by any Minister or senior official may, at least in some situations, be taken to be the knowledge of the Government as a whole.
- Every Minister or senior official has a duty to communicate relevant knowledge to the Government as a whole.
The Commission considers that the law, as so stated, is satisfactory and that no changes are called for.
The Crown as symbol
3.10 The Crown is a notional entity created by the law for particular purposes. “The Crown” is the symbol of legitimate authority:17
The term ‘the Crown’ is frequently used to refer to the executive governments in Australia, as it is in the United Kingdom. Each of these governments is treated by the law as a legal person, enjoying rights and affected by liabilities under the common law and legislation, capable of suing and being sued and bound by decisions of courts and tribunals. However, these rights, liabilities, and susceptibilities are not identical to those of other legal persons, whether individuals or corporations. The law recognises a number of important distinctions between the legal status of the government and that of subjects.
The legal personality of the executive government is represented by the Crown, by the Queen: that is, the law regards the government as a legal person and that person is the Queen. However, in this context the terms ‘the Crown’ and ‘the Queen’ have become depersonalised ... When we talk of ‘the Crown’ in the context of Australian government in the late 20th century, we refer to a complex system of which the formal head is the monarch … We do not refer to a replica of 16th century English government.18
It has also been said that:
[t]he Crown is in many ways like a corporation. It is governed in Australia in each jurisdiction by a written constitution, it has perpetual succession, it must necessarily act through natural persons and it takes on a legal status independent from those natural persons.19
3.11 At one time, the symbolic Crown was represented as being one and indivisible. This was useful in the context of an imperial power seeking to control a world-wide empire, although the development of colonial self-government made it clear that the executive government of New South Wales was quite distinct from that of, say, South Africa or the province of Ontario, as well as from that of the United Kingdom, even when all might symbolically be represented by the same Crown. For the purpose of regarding the Crown or government as a legal person, in terms of property or litigation rights, and in terms of being a recipient of advice, the indivisible nature of government remains important.
3.12 At common law, the Crown enjoyed a range of privileges and immunities in relation to litigation,20 most of which are not relevant to this discussion. No matter what part of the executive branch of government might be concerned in the litigation, it enjoyed those privileges and immunities, so long as it could be brought within the “shield of the Crown”. The common law rule was that the sovereign in person could not be a defendant in his or her own courts, and the Attorney General (at common law) or a nominal defendant (in NSW) represented the Crown. Statutes such as the Judiciary Act 1903 (Cth) were necessary before the Commonwealth or Ministers could be sued in tort.21
3.13 When the party to actual or potential litigation was “the Crown”, this party could also be regarded almost automatically as the client of the Attorney General, or the Attorney General as represented by the Solicitor General, Crown Advocate or Crown Solicitor.22 This was the case even though the instructions were received from, and the advice delivered to, particular individual persons who held office within the executive government.
3.14 No problems arose so long as the advice was relevant only to the particular Minister or official seeking it. However, some advice given by the Attorney General, the Solicitor General or the Crown Solicitor may be of general application throughout the public sector. For example, advice given on the interpretation of a provision of a statute applying to all parts of the public sector (for example, the Public Finance and Audit Act 1983 (NSW) or the Freedom of Information Act 1989 (NSW)) would apply in the same way to many, if not all, government departments and agencies. Other advice, such as that given by the Solicitor General in the Smiles case can be seen, in retrospect, to have been relevant not only to the Clerk of the Legislative Assembly who requested it, but also to the Premier, the Trustees of the Parliamentary Contributory Superannuation Fund, and possibly to the officers of the Treasury responsible for the administration of the funds invested by the Trustees.
3.15 It follows that legal advice given to “the Crown”, or to any department, agency or official that falls within the “shield of the Crown” is the property of the Crown. The effect of this is that the government as a whole, rather than any department, agency or official, has the property in the advice, and has the right to disclose it or to withhold disclosure, as the case may be. Decisions about whether or not advice should or should not be disclosed are decisions for the government, not for individual organs of government. This may be important where, for example, a legal adviser is asked to advise Department A on its liability to children attacked by dogs, after the children have entered land occupied by the Department which is unfenced. If the advice is that the Department is liable to compensate the children, it should be apparent, if not to the legal adviser, then to senior officials in the Department, that other government departments and agencies may be subject to similar liabilities. The government as a whole has an interest in such advice, as the potential liability of the Crown is not limited to Department A. Similarly, assume that in the course of providing advice to Agency B, a legal adviser finds that certain procedures for dealing with licences or benefits are unlawful, and that, as a consequence, Agency B is liable to refund fees and pay damages to members of the public. Officials of Agency B may know that Agency C and Department D have similar processes. Because there is a common liability of government agencies, the government as a whole has an interest in rectifying the processes and containing the compensation claims upon public revenues.
SOURCES OF LEGAL ADVICE
3.16 For the purposes of this Report, the Commission takes “legal advice to government” to mean advice given to government by a legal practitioner on a legal issue, including the interpretation or application of legislation or in relation to litigation. In IP 13, the Commission set out in some detail the sources from which government may receive legal advice.23 These include the Attorney General and the Solicitor General, the Crown Advocate, the Crown Solicitor and his Office (“CSO”), legal staff employed in departments and agencies, and barristers and solicitors in private practice.
3.17 The Attorney General, as the first law officer of the Crown, is primarily responsible for provision of legal advice to government.24 At common law, the Attorney General was, in formal terms, the sole source of legal advice to government.25 Other legal advisers act on the instructions (often implied) of the Attorney General who represents the Crown. This is so even when the advice is requested by, or delivered to, a department, agency, or official. In the past, most formal legal advice to government departments and agencies was given by the CSO, or by barristers instructed by that office, including the Attorney General or the Solicitor General. The arrangement whereby most legal advice to government came from the CSO had an additional dimension. Crown Law Officers have a responsibility not only to advise competently on the law, but also, to a higher degree than practitioners in private practice, to advise in ways that assists the government to uphold the rule of law.26
3.18 Since 1995, government departments and agencies in certain cases have been free, if they wish, to obtain legal advice from private solicitors. Legal advice on matters falling within “core” areas of government must be referred to the Crown Solicitor. The Premier has directed that:
legal matters of this nature include those which:
(a) have implications for Government beyond an individual Minister’s portfolio;
(b) involve the constitutional powers and privileges of the State and/or the Commonwealth;
(c) raise issues which are fundamental to the responsibilities of Government; or
(d) arise from, or relate to, matters falling within the Attorney General’s area of responsibility. 27
While the CSO retains a central role in these core matters, the increasing reliance on private legal practitioners to provide advice on non-core matters, weakens the position of the CSO as the central provider and monitor of legal advice to government. The possibility has increased that government departments and agencies may seek and receive advice on the same or similar matters from different sources. This raises the potential for conflict between different parts of government.
THE POWER TO DECIDE ISSUES OF DISCLOSURE
3.19 If it is accepted that the Attorney General is the notional recipient of the advice on behalf of the government as a whole,28 then the Attorney General would, theoretically, have the power to make decisions regarding the disclosure and circulation of any legal advice to government. As a matter of practice, however, it would be impossible for the Attorney General to be aware of all the legal advice given to government. In this respect, the government is not like any other client of a solicitor or barrister. A private client may disclose legal advice or waive privilege in it as he or she wishes. The government, however, receives advice from officials who may also be part of government and, notionally, departments, agencies and officials receive this advice through the Attorney General as the representative of government as a whole. If the information contained in the legal advice is to be disclosed, in theory, the disclosure should be by the Attorney General, or with his or her knowledge and consent.
3.20 There are strong policy reasons, to be considered in more detail below, supporting the view that a single authority within the government, preferably the Attorney General, should be able, in the last resort, to publish or disclose any legal advice received by any organ of government. It is important, therefore, that it should be understood throughout government that the Attorney General is the notional recipient of all legal advice to government and controls its disclosure. The Commission’s recommendation for achieving this is outlined in Chapter 5.
INTELLECTUAL PROPERTY
3.21 The increasing amount of legal advice to government provided by private solicitors also raises the question of intellectual property in the legal advice. This was raised in IP 13, but no submissions received by the Commission addressed it. Where legal advice is given to government by a private legal practitioner, the law of copyright may restrict the range of possibilities for wider circulation of the advice. Copyright is the exclusive right, among other things, to reproduce, publish or make an adaptation of “works”, including literary works.29 Legal advice from a barrister or solicitor is almost certainly a “literary work” under the Copyright Act 1968 (Cth) (“the Copyright Act”), even though it is not published, if the author was an Australian citizen or resident when the work was made.30 The copyright is in the manner of presentation of the work, rather than its content. The Copyright 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.31
3.22 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;32 or
- the copyright is assigned to the client.33
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 author.
3.23 Copyright is infringed when a literary work is reproduced, published or adapted without the licence of the copyright owner.34 However, copyright is not infringed by anything done for the purposes of a judicial proceeding.35 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 among departments advice provided by a private legal practitioner, this would probably not infringe the copyright laws, even if no judicial proceedings related to the advice were actually on foot. Since, for reasons advanced earlier, the client is the Crown rather than the department, agency, or individual officer, disclosure of a document by one Crown servant to another would not constitute a breach of copyright. However, distribution of the advice to persons outside the government might amount to infringement of copyright.
3.24 It would be possible for a retainer agreement between a client and a lawyer to provide 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. Such provisions seem to be used rarely in New South Wales in instances 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.
3.25 The Crown is bound by the Copyright Act, but cannot be prosecuted for an offence under it.36 The Copyright Act does not affect any right or privilege of the Crown.37 However, these rights or privileges do not extend any further than those of an owner of copyright in a work. Generally, copyright in a literary work is not infringed by the Commonwealth or a State performing any acts carried out for the services of the Commonwealth or State.38 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.39 However, in order to remove all doubt concerning the government’s rights in relation to advice provided by practitioners, the Commission recommends that a term should be included in the retainer agreement assigning copyright in the advice to the Crown.
FOOTNOTES
1. See Waterford v The Commonwealth (1987) 163 CLR 54 at 62-68, per Mason and Wilson JJ.
2. [1915] AC 750 at 759.
3. See, for example, State Owned Corporations Act 1989 (NSW) s 9(c) and 20F.
4. NSW Health Department, Submission (2 September 1997).
5. Legal Aid Commission of New South Wales, Submission (20 August 1997); NSW Health Department, Submission (2 September 1997).
6. See para 1.3 for the Crown Solicitor’s policy when advising more than one government agency on the same matter.
7. M Byers and M Gill, Review of Legal Services to Government (1993) at 15-16 (“the Byers and Gill Report”).
8. The Byers and Gill Report at 15-16.
9. Premier of New South Wales, Memorandum No 97-26: Litigation Involving Government Authorities (8 October 1997).
10. [1990] WAR 248 (Full Court, Supreme Court of Western Australia).
11. [1915] AC 705.
12. Admiralty Commissioners v Owners of the Steamship Divina (“The Truculent”) [1951] P 1.
13. [1957] 1 QB 159.
14. Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 at 713 per Viscount Haldane, LC.
15. [1990] WAR 248 at 273-274.
16. [1990] WAR 248 at 281.
17. For example, G Marshall, Constitutional Theory (Oxford University Press, London, 1971) at 20-24.
18. P Hanks, Constitutional Law in Australia (2nd ed, Butterworths, Australia, 1996) at 159-160 (emphasis added); see also G Winterton, “The Constitutional Position of Australian State Governors” in H P Lee and G Winterton (eds), Australian Constitutional Perspectives (Law Book Co, Sydney, 1992) 274 at 274.
19. N Seddon, Government Contracts: Federal, State and Local (Federation Press, Sydney, 1995) at 96.
20. P W Hogg, Liability of the Crown (2nd ed, Carswell Co Ltd, Ontario, 1989) at 9.
21. The current position is set out in Commonwealth v Mewett (1997) 71 ALJR 1102 at 1132-1136, per Gummow and Kirby JJ.
22. The Byers and Gill Report at 7 emphasises the unity of the Crown for this purpose.
23. See New South Wales Law Reform Commission, Circulation of Legal Advice to Government (IP 13) Ch 2.
24. B M Selway, The Constitution of South Australia (Federation Press, Sydney, 1997) at 81.
25. Selway at 81.
26. John Tait, “The Public Lawyer, Service to the Client and the Rule of Law” (1997) 8 The Commonwealth Lawyer 58 at 59-60.
27. Premier of New South Wales, Memorandum No 95-39: Arrangements for seeking legal advice from the Crown Solicitor’s Office (12 October 1995). This Memorandum was reproduced as Appendix A to IP 13.
28. As put forward in Selway at 81, and Tait at 59-60.
29. Copyright Act 1968 (Cth) s 31(1)(a).
30. This means that they are a “qualified person” for the purposes of the section: Copyright Act 1968 (Cth) s 32.
31. Copyright Act 1968 (Cth) s 10.
32. Copyright Act 1968 (Cth) s 176.
33. 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.
34. Copyright Act 1968 (Cth) s 36(1).
35. Copyright Act 1968 (Cth) s 43(1).
36. Copyright Act 1968 (Cth) s 8.
37. Copyright Act 1968 (Cth) s 8A(1).
38. Copyright Act 1968 (Cth) s 183(1).
39. Copyright Act 1968 (Cth) s 183(4).
