Bruce Billson (Dunkley, Liberal Party, Minister for Small Business) Share this | Link to this | Hansard source

I present the explanatory memorandum to this bill and move:

That this bill be now read a second time.

The Judiciary Amendment Bill 2015 will support the consolidation of the Australian Government Solicitor (AGS) into the Attorney-General's Department.

The decision to consolidate AGS into the department

The decision to consolidate AGS into the department was announced in the 2014-15 Mid-Year Economic and Fiscal Outlook as part of the government's smaller government reform agenda. This is a comprehensive package of reforms designed to improve the efficiency, effectiveness and focus of the Commonwealth public service. When fully implemented, they will reduce the number of government bodies by 251 since the last election. Our efforts to deliver a smaller and more rational government footprint will ensure a more flexible and unified public sector which is better able to respond to emerging pressures and ensure that services are best aligned to the evolving policy priorities of the government.

The consolidation of AGS into the Attorney-General's Department will create opportunities for greater efficiency in the operation of the consolidated department. But the government wants to make clear that AGS will maintain its own distinct functional identity within the department, including the AGS name and its well-regarded independent brand. Its well-deserved professional reputation will be maintained. This will allow AGS to continue to operate effectively on a business-as-usual basis for its staff and its clients, and with the necessary level of professional independence within the department.

Consolidation draws on the best aspects of both AGS and the Attorney-General's Department

It is of critical importance that the government has a strong and expert government solicitor. The decision the government has made is to consolidate the AGS within the Attorney-General's Department, not to abolish it. AGS will continue to be the nation's leading provider of legal services to the federal government and its agencies. In fact, AGS and the department have operated as one organisation in all but 15 of AGS's 110 years of operation

AGS lawyers have a special understanding of the context in which the Commonwealth operates—and that the government needs tailored advice and practical solutions. These can be a legal solution, a policy solution or some combination of both. They consider issues from a whole-of-government perspective and take into account broader public policy goals.

The Attorney-General's Department will continue to carry out the central policy and coordinating functions of the Attorney-General's portfolio, with one of its key roles being to provide legal and legal policy advice to the Attorney-General as first law officer of the Commonwealth and chief legal adviser to cabinet. It draws on highly-qualified legal policy experts and legal practitioners with experience in dealing with a range of high priority, sensitive and time critical matters.

Consolidating the AGS into the department will strengthen their respective capacities to support the Attorney-General as first law officer and chief legal adviser to cabinet by providing a comprehensive source of authoritative advice on key Commonwealth legal and legal policy issues. It will also ensure that the department and AGS are well-placed to deliver high quality legal services and legal policy advice on legal issues of importance to the Commonwealth and the most critical matters of state.

Secretary's review

Following consolidation, the secretary of the department will conduct a review of legal services to identify efficiencies that can be gained in government legal costs. The review will encompass the role of in-house legal practices in Commonwealth departments and agencies, including how in-house advice is organised, to ensure more coordinated and aligned advice to the government in the future.

The review will look to the Commonwealth legal services market as a whole and ultimately seek to deliver the best outcomes for the government from the full array of legal services available.

The terms of reference for this review are yet to be developed, and both government and private sector stakeholders will be invited to participate in the consultation process for the review. Any savings from the consolidation will also be quantified following this review.

Key features of the bill

Schedule 1 to the bill will amend the Judiciary Act to support consolidation.

Schedule 1 repeals references to AGS being a statutory corporation and its responsibilities as a separate corporate entity.

Instead, the Australian Government Solicitor will be a senior public servant within the Attorney-General's Department and will oversee a separate legal practice group and report to the Secretary of the Attorney-General's Department. The definition of AGS lawyers is updated to reflect that they will be employed under the Public Service Act 1999 framework working under the direction and supervision of the Australian Government Solicitor.

Consistent with ensuring business as usual and providing minimal change to existing operations, amendments have been made to enable the AGS to continue providing the same legal services to the same range of clients, and to continue to operate on a commercial and competitive basis for the great majority of its work.

Schedule 2 to the bill makes the necessary consequential amendments to existing Commonwealth legislation with references to the AGS.

This includes amendments to the Director of Public Prosecutions Act 1983 to ensure that the AGS can continue to perform and exercise the director's functions when requested pursuant to the existing DPP legislation.

Amendments to the Freedom of Information Act 1982 will ensure that AGS continues to be exempt from its operation. This ensures the confidentiality of AGS's legal advice and its relationship with its clients continues to be protected.

Schedule 3 provides transitional arrangements regarding the consolidation. The purpose of Schedule 3 is to ensure certainty and efficiency for existing AGS staff, clients and third parties that regularly engage with AGS.

Transitional matters addressed by the bill include:

The schedule includes a general deeming provision to ensure that references in existing Commonwealth laws to AGS are taken to be references to the AGS under its new structure.

Finally, there is also a time limited transitional rule-making power to enable a legislative instrument to be made to address unforeseen circumstances or unintended consequences arising from the consolidation within the year following commencement of the bill.

Conclusion

AGS and the Attorney-General's Department enjoy a very close, productive and professional working relationship and have done so for many years. As I observed earlier, AGS and the department have operated as one organisation in all but 15 of AGS's 110 years of operation. It has also been said that AGS is the custodian of the Commonwealth's legal corporate memory. This continuity is critical to providing trusted and relevant advice to the Commonwealth on critical issues for the Commonwealth.

Consolidation will only enhance this relationship—a relationship exemplified by the cooperation between AGS and the department on significant matters such as Operation Sovereign Borders, the royal commissions and high priority, sensitive and time critical matters in constitutional law, national security law and public international law.

The Judiciary Amendment Bill will further improve the efficiency and effectiveness of a consolidated AGS in the department, while at the same time bringing together some of the brightest legal minds in this country, improving the provision of Commonwealth legal services and streamlining the administration of law in Australia.

I commend the bill to the House.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to 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.

Bruce Billson (Dunkley, Liberal Party, Minister for Small Business) Share this | Link to this | Hansard source

I would like to sum up the debate and thank the member for Isaacs for his contribution. It is a great pleasure to conclude this debate on the Judiciary Amendment Bill 2015. The bill supports the consolidation of the Australian Government Solicitor into the Attorney-General's Department. It will create a more unified and effective department that will become the comprehensive source of authoritative advice on key Commonwealth legal and legal policy issues. In recognising the contribution from the member for Isaacs, let me just briefly touch on a matter he raised in his contribution. I want to reiterate and make absolutely clear that the AGS is not being abolished—as the member for Isaacs observed.

This government acknowledges the importance of the AGS as a viable and ongoing source of trusted and knowledgeable advice. Consolidating this knowledge and experience with the legal and policy expertise contained within the AGD will create a stronger department that is better able to provide high quality, coordinated and strategic legal advice to the Attorney-General, as Australia's first law officer, and in turn to the cabinet and the government as a whole. Consolidation will provide enhanced opportunities for the government's best legal minds—however they might be greeted in public circles!—in the AGS, the AGD and other agencies to work closer together to deliver tailored advice, practical solutions and excellent client focused results. Consolidation will further enhance an already close relationship between the AGS and the Attorney-General's Department while allowing the AGS to maintain its respected name and brand and its independent functional identity. I thank the AGS and the Attorney-General's Department for their constructive and collaborative approach in implementing this consolidation and commend the bill to the House.

Question agreed to.

Bill read a second time.