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Strategic Priority 1

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STRATEGIC
PRIORITY
1
Supporting the Attorney-General as First Law Officer including by providing high-quality legal services to the Commonwealth
 
KEY ACTIVITIES
  • Providing expert legal services that meet the unique needs of the Commonwealth, including the needs of Cabinet, Ministers and Commonwealth agencies
  • Remaining commercially-focused and competitive in our participation, through AGS, in a contestable legal services market
  • Providing specialist international legal and legal policy advice as well as constitutional legal policy advice to government
  • Supporting the Defence Abuse Response Taskforce and the Commonwealth’s engagement with royal commissions.

PERFORMANCE MEASURES

RESULT

KPI 1: Our effectiveness in achieving objectives
Measure: Stakeholder and client satisfaction with our effectiveness and the quality of our legal services
Stakeholder survey indicated 86% of respondents were satisfied.
KPI 2: Our efficiency in meeting goals
Measure: Total instances legal and legal policy advice completed that are on time, within budget or financial targets and meet requirements
Legal and legal policy advice met requirements.
KPI 3: Our professionalism, skills and commitment
Measure: Stakeholder and client satisfaction with the professionalism, skills and commitment of our staff
Stakeholder survey indicated 98% of respondents were satisfied.

Analysis

The department achieved good results in providing legal services to government, legal policy advice and international legal engagement. The high satisfaction ratings achieved for the effectiveness and quality of our legal services and the professionalism, skills and commitment of our staff, reflect a high level of expertise in this area.

Providing legal services to government and its agencies

The department supports the Attorney-General as First Law Officer by ensuring the Government has high-quality legal and related services. The department, through the Office of Legal Services Coordination (OLSC), also helps government agencies comply with the Legal Services Directions and promotes a whole-of-government approach to the management of significant legal issues.

On 1 July 2015 the Australian Government Solicitor (AGS) was consolidated into the department. This enabled the department to be the pre-eminent source of legal and legal policy advice to the Attorney-General, the Government and government agencies.

The department, through AGS, provided legal advice and assistance for most major government policy and programmes, litigation and commercial matters in 2015–16, including the following.

Constitutional litigation

  • Plaintiff M68/2015 v Minister for Immigration and Border Protection – validity of the Commonwealth’s actions in support of regional processing in Nauru upheld
  • Day v Australian Electoral Officer for South Australia – challenge to Senate voting reforms rejected
  • Bell Group NV (In Liq) v Western Australia – successful challenge to the validity of the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA) by reason of the operation of s 109 of the Constitution on the basis that was inconsistent with the Commonwealth Tax Acts
  • Alqudsi v Commonwealth – validity of Commonwealth legislation making it an offence to support or promote a person engaging in hostile activity in a foreign state upheld
  • McCloy v NSW – validity of NSW law imposing limits on political donations by corporate property developers upheld
  • Ure v Commonwealth – unsuccessful claim that there is a rule of international law that private individuals may acquire proprietary rights over terra nullius and that the Commonwealth had acquired property contrary to the Constitution.

Non-constitutional litigation

  • represented Commonwealth clients at the Lindt Café siege coronial inquest
  • Gordon v Commonwealth – instructed by Department of Prime Minister and Cabinet in proceedings brought by 83 former child residents of the Retta Dixon Home in the Northern Territory seeking damages for abuse or neglect
  • Kamasaee v Commonwealth – represented the Commonwealth in a class action alleging false imprisonment and negligence in the operation of the Manus Regional Processing Centre in Papua New Guinea
  • AS v Minister for Border Protection and Immigration – represented the Commonwealth in a class action relating to access to education, medical evidence and conditions of detention on Christmas Island
  • Australian Conservation Foundation v Minister for the Environment – acted in an application to review the Minister’s approval for the Carmichael coal mine
  • Uber v Commissioner for Taxation – acted in declaratory proceedings taken by Uber as to whether UberX drivers supply taxi travel for the purposes of GST
  • CFMEU v AFP Commissioner – defended two proceedings challenging the lawfulness of search warrants and their manner of execution by the Australian Federal Police at CFMEU premises in Canberra and Brisbane
  • acted for the Minister for Immigration in proceedings seeking to prevent the return of a baby from Australia following treatment for burns received in Nauru
  • acted for the AFP in two applications to extend detention of a person under s 23DC of the Crimes Act 1914 in relation to a terrorist incident in Parramatta.

Legislation, policy and programme delivery

Some of the significant issues and policy initiatives in which AGS provided legal advice and assistance included:

  • regional processing of asylum seekers
  • security and anti-terrorism laws
  • same-sex marriage
  • implementation of the National Disability Insurance Scheme
  • potential legislation authorising and regulating the use of cannabis for medicinal purposes
  • new governance arrangements for Norfolk Island
  • the constitutional basis for various Commonwealth programmes
  • issues concerning potential parliamentary processes and their effect on double dissolution trigger Bills
  • a range of native title issues and the Timber Creek native title compensation litigation
  • the establishment of the Northern Australia Infrastructure facility.

Commercial and contractual matters

  • legal considerations associated with the Western Sydney Airport project
  • advising the Department of Defence on the Competitive Evaluation Process for the selection of the international partner to design and build the Future Submarine
  • negotiating for the procurement of petascale supercomputers for weather and environmental modelling and prediction for the Bureau of Meteorology
  • advising on open data initiatives including the publication by the Department of the Prime Minister and Cabinet of the Geocoded National Address Framework
  • agriculture concessional loan arrangements – working with the Department of Agriculture on arrangements with the states and territories for drought and other farm concessional loan programmes, including the dairy concessional loan programme
  • drafting an MOU between the governments of Australia and the Republic of Nauru for the Nauru Sovereign Wealth Fund
  • developing whole-of-government templates for procurements and grants.

Ensuring AGS remains commerically focused and competitive

Prior to consolidation on 1 July 2015, AGS had been a government business enterprise for 15 years. It continues to operate as a self-funded legal services provider on the Legal Services Multi-Use List.

Being commercially focused, competitive and client-centred are essential for AGS, and maintaining good relationships with clients is a key strategy to ensure both the success of the consolidated department and the provision of excellent legal services to government.

AGS’s business results for the year were very positive, with good or better performance trends against all business plan performance measures. Trading revenue was $118.4 million, which was $6.1 million above the business plan target, and profit excluding interest was $7.6 million.

Professional development

AGS provides training courses, forums and workshops on legal issues affecting policy, programmes and government law generally. Throughout the year AGS held 54 general training courses, open to all government employees, and 91 client-specific courses to meet the particular needs of individual agencies. AGS also presented 18 forums and 14 Government Law Group sessions around the country.

Pro bono work

AGS undertakes an extensive pro bono programme covering clients across Australia and internationally. In total AGS lawyers provided 7,733 hours of work, valued at $2.9 million.

Providing specialist international legal and legal policy advice to government

The department provides specialist international legal and legal policy advice to government. This includes international legal support for Australia’s defence operations overseas. In 2015–16 this work included advising on Australia’s statement to the UN Security Council (pursuant to article 51 of the UN Charter) concerning the measures taken against Daesh in Syria in the exercise of the collective self-defence of Iraq. Public statements on these matters have brought transparency and clarity to the legal reasoning underpinning government decisions and aided the development of state practice in these areas.

We also have responsibility for the conduct of the investor–state arbitration brought by Philip Morris Asia under the 1993 Australia–Hong Kong Bilateral Investment Treaty. On 18 December 2015, the Tribunal in this arbitration issued a unanimous decision agreeing with Australia’s position that the tribunal had no jurisdiction to hear Philip Morris Asia’s claim, finding that Philip Morris Asia’s claim was an abuse of process.

The department continues to defend the three actions currently on foot between Australia and Timor-Leste:

  • an arbitration under the 2002 Timor Sea Treaty which concerns the validity of the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea
  • an arbitration over the right to tax the pipeline from the Bayu Undan gas field in the Joint Petroleum Development Area to Darwin under the Timor Sea Treaty
  • a conciliation on maritime boundaries initiated on 11 A pril 2016 pursuant to article 298 of the United Nations Convention on the Law of the Sea.

The department worked with government stakeholders, regional and international organisations and academia to help Pacific states negotiate maritime boundaries and review and update domestic maritime zones legislation. We worked with government stakeholders and Pacific states to support ratification and implementation of the Niue Treaty Subsidiary Agreement, a regional agreement which enables cooperative surveillance and enforcement activities to combat illegal fishing. These cooperative projects have been successful in assisting our regional partners and promoting stability in the region.

The department also provided international legal and legal policy advice to:

  • aid the Government in environmental policy matters, including responding to Japan’s new Southern Ocean whaling programme, strengthening efforts to combat illegal, unreported and unregulated fishing and negotiating a new international agreement within the United Nations on conserving marine biodiversity in areas beyond national jurisdiction
  • assist with international trade and investment law issues, for example, at free trade agreement negotiations, including for the Trans-Pacific Partnership
  • inform international legal issues that arise in a domestic setting, including advice on aspects of cases brought in Australian courts, and scrutiny of proposed legislative measures, particularly concerning the Government’s counter-terrorism and security agenda, including Operation Sovereign Borders.

Supporting taskforces and royal commissions

We ensured Commonwealth royal commissions and taskforces received the strong legal, logistical and administrative support is another way the department assists the Attorney-General as First Law Officer.

The Defence Abuse Response Taskforce

Throughout 2015–16 the department continued to support the Defence Abuse Response Taskforce (DART). DART is housed within the department and funded by the Department of Defence.

As at 30 June 2016, the assessment of complaints and delivery of outcomes was close to completion (1,728 out of 1,732 eligible complainants). Assessments of reparation payments, referrals to police, military justice authorities and the Chief of the Defence Force, and delivery of counselling to complainants were completed.

In addition, DART assisted the Royal Commission into Institutional Responses to Child Sexual Abuse concerning Case Study 40 on abuse in the Australian Defence Force. The taskforce also assisted the Department of Veterans’ Affairs by preparing information on clusters of abuse which involved particular military establishments.

The former Chair of the DART, Mr Robert Cornall AO, completed his term on 31 March 2016. On 5 May 2016, the Government extended the operation of DART until 31 August 2016.

Royal Commission into Trade Union Governance and Corruption

The Royal Commission delivered its final report to the Governor-General on 28 December 2015. The department attended and monitored the Commission’s public hearings and facilitated the appointment of Counsel Assisting. The department also coordinated the Commonwealth’s response to notices to produce issued by the Commission.

Royal Commission into Institutional Responses to Child Sexual Abuse

In 2015–16 the Commission continued a programme of private sessions, public hearings and research and policy work. The department attended public roundtables concerning criminal justice issues and private roundtables concerning child-safe organisations, disabilities and schools. We also attended and monitored public hearings.

The department facilitated the appointment of Counsel Assisting, as well as the tabling of seven case study reports and the Commission’s final reports on Working with children checks and Redress and civil litigation. The department, through AGS, is also Solicitor Assisting the Royal Commission.

We coordinated four whole-of-government submissions to the Commission relating to Issues paper 9: Addressing the risks of child sexual abuse in primary and secondary schools; Issues paper 10: Advocacy and support and therapeutic treatment services; Best practice principles in responding to complaints of child sexual abuse in institutional contexts: Consultation paper and the Institutional responses to child sexual abuse in out-of-home care: Consultation paper.

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