Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

As my colleague Senator Jacinta Collins indicated in the other place, Labor will support this bill. The bill implements a change to the management of the Australian Government Solicitor. It effects some minor amendments to the Judiciary Act 1903 to achieve the consolidation of the AGS into the Attorney-General's Department. The act currently provides for the AGS to operate as a government owned business, as it has since 1999. The technicalities of the Judiciary Act do not often attract much controversy in this place or, indeed, outside of it. But I do want to reflect for a second on the importance of the AGS and of government lawyers more broadly. Justice Barker, of the Federal Court, delivered a speech in 2010 titled 'What makes a good government lawyer?' The judge noted that government lawyers sometimes feel misunderstood, even underappreciated. The judge said:

If to tell a citizen that you are 'from the government' isn't always the best opening line, I expect saying you are a 'lawyer from the government' is even less so.

I can sympathise with government lawyers in this regard. This bill once again houses the AGS within the Attorney-General's Department, where it sat between Federation and 1999, although it will continue to operate on a commercial basis within a contestable market for government legal services.

Leslie Zines, one of this country's greatest public lawyers, once wrote about the incredible tasks that the first federal government lawyer, Sir Robert Garran, faced at Federation. Garran had to advise on the conduct of the first federal election, with no Commonwealth Electoral Act or regulations. Once parliament had been elected, he set about developing the Commonwealth statute book more or less from scratch. For a couple of years he advised the Commonwealth government on the interpretation of the Constitution without any guidance from the High Court, which was not established until 1903. Admittedly, he had the advantage of having drafted much of the document himself.

It is no accident that Garran, a government lawyer, played such a pivotal part in the beginnings of our nation. That tradition of public service is upheld today by lawyers at the AGS, the Attorney-General's Department and across government. In modern times the government's legal services are provided by a mixture of providers at the AGS, in house at government departments and in private practice. Since the 1980s, successive governments have made a series of changes to these arrangements to try to ensure that the Commonwealth gets the best possible value from its legal advisers. This is important and worthwhile work. Significant progress was made under the last Labor government. However, we never lost sight of the vital role played by the dedicated, expert government lawyers at the AGS.

Government should certainly source its legal services from a mixture of providers. Contestability is important. Private law firms undoubtedly have a substantial part to play. However, it is clear to me that the AGS occupies a special position. The AGS is known for its specialist expertise, long experience and sensitivity to the particular needs of government clients. As such, I am happy to see the government bring forward this bill rather than proceed with the recommendation produced by their Commission of Audit in May last year. I know that the government does not like to talk much about the Commission of Audit these days—they do not like to talk much about the 2014 budget which followed it either—but it is worth remembering that the Commission of Audit actually recommended that the AGS simply be abolished. It wanted the firm sold off to the private sector. That was a foolish recommendation. The commission's analysis was lazy and superficial. It gave no serious thought to the realities of government legal work and it ignored the special role of the AGS. The commission never moved beyond its own uncritical ideological reflexes.

Happily, this bill does not implement that recommendation of the Commission of Audit in any sense. The government has instead incorporated the whole of the AGS into a central government agency. This is, in some senses, a minor machinery change—the actual operations of the AGS will continue as usual. However, I do take this consolidation of the AGS into the department as an acknowledgment of just how important the government considers the AGS to be and just how central its work is to the smooth functioning of the Commonwealth government and to the national interest. The government has indicated that, once the bill is in effect, it will review the operation of the broader Commonwealth legal services landscape. I trust that this review will continue the thoughtful and serious work of the last Labor government in this area. I commend the bill to the House.

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