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Strategic Priority 1 - Legal

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Supporting the Attorney General as First Law Officer including by providing high-quality legal services to the Commonwealth

The department supports the Attorney-General as First Law Officer by ensuring the government has high-quality legal and related services. We do this through assistance and advice on the design and scrutiny of Commonwealth legislation that results in clearer laws. We also provide assistance and advice to the government on matters of constitutional policy development and litigation, including advice on questions of amendments to the Australian Constitution.

We helped government agencies comply with the Legal Services Directions 2017 and we promoted a whole-of-government approach to the management of significant legal issues. This work also supports the Solicitor-General in his role as counsel and legal adviser to the Commonwealth.

We supported the Attorney-General and Solicitor-General by delivering the review of Commonwealth legal services to deliver the best outcomes for the government from the full array of legal services available. We also assisted with significant issues and policy initiatives and commercial and contractual matters for agencies, many of which have significant community impact.

Clients and stakeholders surveyed in 2017 expressed good levels of satisfaction and we achieved higher-than-targeted overall results. Survey results indicate a 93% satisfaction with our effectiveness and the quality of legal services and 88% agreed work met high efficiency standards. Our interactions with stakeholders ranked very highly with staff professionalism and commitment achieving a 94% satisfaction level (see Table 2).

Table 2 : KPI performance statement for Strategic Priority 1: Legal

KPIs Performance criterion(a) Target Result
Effectiveness Stakeholder and client satisfaction with our effectiveness and the quality of our legal services 80% 93%
Efficiency in meeting goals Legal and legal policy advice completed Work meets all requirements 88%
Professionalism, skills and commitment Stakeholder and client satisfaction with the professionalism, skills and commitment of our staff 80% 94%

(a) Performance criterion as per Corporate Plan 2016–17, p. 13 and Portfolio Budget Statements 2016–17, Program 1.1, p. 24, Program 1.2, p. 25, Program 1.3, p. 26 and Program 1.9, p. 29.

The key activities under this strategic priority and associated measurement are detailed in Table 3.

Table 3: Activity performance statement for Strategic Priority 1: Legal

Key activity Result
Support the Attorney-General as First Law Officer and the Solicitor-General as Second Law Officer in his role as counsel and legal adviser to the Commonwealth ONGOING
Provision of legal services to the Commonwealth.
Provide high quality legal services to the government, Cabinet and government agencies ONGOING
Legal work related to the Constitution and Cabinet matters.
Enable Australian Government Solicitor to remain competitive in the contestable government legal services market and be the model practitioner in government-related law ONGOING
Trading revenue was above the target set in the AGS business plan.
Oversee and coordinate significant legal policy issues affecting the Commonwealth, in particular those concerning constitutional, cross-jurisdictional or international matters ACHIEVED
Responded to two significant native title cases.
ONGOING
Work with the Department of Foreign Affairs on Tobacco Plain Packaging.
Provide legal and policy advice on issues involving public international law ONGOING
Work with security and law enforcement bodies on national security matters including international arbitration and conciliation.
Legal advice on activities in national security, counter-terrorism, immigration and border protection and international military deployments.
Provide support for the Commonwealth’s engagement with Royal Commissions ACHIEVED
Legal financial assistance grants were completed.
ONGOING
Legal advice, logistics administration, representation and coordination.
Progress the review of Commonwealth legal services, aimed at ensuring the effective provision of quality legal services to the government PROGRESSING
Report has been delivered and the department continues to progress this work.

Analysis

Supporting the Attorney-General and the Solicitor-General

We continue to support the Attorney-General and the Solicitor-General in their roles as First Law Officer and counsel and legal adviser to the Commonwealth by coordinating legal services across the Commonwealth.

We worked closely with the Solicitor-General on a number of significant matters, including proceedings in the High Court of Australia and in other courts, and matters in which the Solicitor-General was briefed to advise.

Providing legal services to government and its agencies

We provide legal advice and assistance to departments, agencies and taskforces across government in relation to major government policy and programs, litigation and commercial matters. This includes cooperative arrangements involving the states and territories and responses to issues affecting multiple agencies that raise constitutional questions. We do this through four practice areas: AGS Dispute Resolution, the Office of General Counsel, AGS Commercial and the Office of International Law.

During 2016–17, we provided legal assistance and advice across government in a vast array of matters, many of which have a significant community impact. A selection includes:

Constitutional litigation

  • Re Day – ineligibility of Bob Day to be elected to the Senate at the July 2016 federal election due to disqualifying pecuniary interest under s 44(v) of the Constitution
  • Re Culleton (No 2) – ineligibility of Rod Culleton to be elected to the Senate at the July 2016 federal election due to disqualifying criminal conviction under s 44(ii) of the Constitution
  • Palmer v Ayres – High Court upheld validity of the court-ordered examination of Clive Palmer in relation to the liquidation of Queensland Nickel Pty Ltd
  • Plaintiff M96A/2016 v Commonwealth of Australia – High Court upheld validity of detention of a non-citizen temporarily in Australia to receive medical treatment
  • Graham v Minister for Immigration and Border Protection – whether a visa decision can validly be made on the basis of certain information not disclosed to the person or court (judgment reserved)

Non-constitutional litigation

  • Kamasaee v Commonwealth– settlement, subject to court approval, of the class action in the Supreme Court of Victoria alleging false imprisonment and negligence in the operation of the Manus Regional Processing Centre in Papua New Guinea (settled subject to court approval)
  • ASIC v NAB– assisting ASIC in its suite of litigation against major banks for alleged manipulation of the Bank Bill Swap Rate
  • AUSTRAC v Tabcorpproceedings resulting in record-breaking civil penalties for contraventions of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
  • ACCC v Air New Zealand Ltd, ACCC v PT Garuda Indonesia Ltd – success acting for the ACCC in High Court proceedings about airlines supplying and pricing certain air cargo services in breach of the Trade Practices Act 1975 (Cth)
  • Gavin Smith v Commonwealth– a class action by residents of the Williamtown area in NSW alleging that per- and poly-fluoroalkyl substances contamination from firefighting foams used at RAAF Base Williamtown has polluted local waterways and groundwater (proceedings ongoing)

Legislation, policy and program delivery

We also provided legal advice and assistance for the following issues and policy initiatives:

  • establishing new arrangements for provision of parliamentary entitlements
  • the use of cannabis for medicinal purposes
  • amendments to the Racial Discrimination Act 1975 (Cth)
  • national electricity laws
  • changes to the National Disability Insurance Scheme
  • regional processing of asylum seekers
  • security and anti-terrorism laws
  • same-sex marriage
  • the new governance arrangements for Norfolk Island
  • the constitutional basis for various Australian Government programs
  • native title issues.

Commercial and contractual matters

We provided assistance to a number of agencies in commercial and contractual matters, many of which have significant community impact, including:

  • developing 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 Frigates
  • agriculture concessional loan arrangements – working with the Department of Agriculture and Water Resources on arrangements with the states and territories for drought and other farm concessional loan programs
  • advising the Department of the Prime Minister and Cabinet on arrangements associated with the Association of Southeast Asian Nations
  • assisting the Department of Agriculture and Water Resources and the Department of Environment and Energy with a number of major water transactions.

Enabling AGS to remain competitive and be a model practitioner

Australian Government Solicitor (AGS) operates as a self-funded legal services provider for the majority of its work in direct competition with private law firms.

Business results for the year were extremely positive, with all KPIs being met and exceeded. Trading revenue was $126 million, which was $13 million above the AGS business plan target. The number of hours sold increased by 11% on the prior year. The operating profit (excluding interest) was $12.5 million.

As part of its central legal role in the Commonwealth, AGS provides training and workshops on legal issues affecting policy, programs and government law. Throughout the year, 94 client-specific courses were conducted to meet the particular needs of agencies; 40 general training courses were open to all government employees. AGS also presented 15 fora and 10 Government Law Group sessions around the country. All training delivered met the requirements for Continuing Professional Development and Continuing Legal Education.

Pro bono work

AGS delivered an extensive pro bono program covering clients in each jurisdiction across Australia and internationally (with a focus on the Asia–Pacific region). In total, AGS lawyers provided 7,498 hours of work. These pro bono projects have a strong focus on Indigenous and other support organisations that make justice accessible to low-income or disadvantaged people and have a significant community impact.

Overseeing legal policy affecting government

A high priority during 2016–17 was working closely with security and law enforcement agencies on national security matters. We acted in major matters involving protection of national security information, offences and criminal proceedings related to national security and review of administrative decisions relating to security assessments.

This year we also responded to two significant native title cases: Griffiths v Northern Territory of Australia (No. 3) (the Timber Creek decision) and McGlade v Native Title Registrar and Ors (the McGlade decision). The Timber Creek decision, handed down in August 2016, is the first judicial consideration of the principles governing compensation for the extinguishment or impairment of native title under the Native Title Act 1993 (Cth), including quantum.

We delivered high-quality legal services to the Commonwealth by ensuring that work across government is conducted in a manner consistent with Commonwealth constitutional policy interests. For example, we:

  • provided advice to the Department of the Prime Minister and Cabinet on the technical aspects of the constitutional recognition of Aboriginal and Torres Strait Islander Australians
  • supported a number of departments in preparing ministerial correspondence to the Senate Standing Committee on Regulations and Ordinances concerning the constitutional aspects of expenditure
  • assisted in the development and maintenance of federal-state cooperative schemes (ie in relation to unexplained wealth).

We also responded to United Nations’ human rights complaints mechanisms to which Australia is a party. The Australian Government has accepted communications mechanisms in relation to five international human rights treaties being the:

  • International Covenant on Civil and Political Rights (ICCPR)
  • Convention against Torture (CAT)
  • Convention on the Rights of Persons with Disabilities (CRPD)
  • Convention on the Elimination of All Forms of Racial Discrimination
  • Convention on the Elimination of All Forms of Discrimination Against Women.

There are currently 80 communications against Australia. They relate to alleged violations of the ICCPR, the CAT and the CRPD.

Defending and advancing Australia’s interests in international litigation and arbitration

Timor-Leste

This year, two litigation proceedings between Australia and Timor-Leste were discontinued:

  • Arbitration under the 2002 Timor Sea Treaty that concerns the validity of the 2006 Treaty on Certain Maritime Arrangements in the Timor Sea.
  • 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.

We continue to cooperate with the Department of Foreign Affairs and Trade in the conduct of the conciliation between Australia and Timor-Leste; a conciliation on maritime boundaries initiated on 11 April 2016 pursuant to article 298 of the United Nations Convention on the Law of the Sea.

Tobacco plain packaging

We conducted the investor-state arbitration brought by Philip Morris Asia concerning Australia’s tobacco plain packaging legislation. The claim by Philip Morris Asia was dismissed on 18 December 2015 when the Tribunal unanimously held that the matter was an abuse of process and without jurisdiction. In March 2017, the Tribunal issued the Award on Costs to the parties. In a separate but related proceeding, we cooperated with the Department of Foreign Affairs and Trade on the conduct of the World Trade Organization proceedings regarding the plain packaging measure.

Providing public international law legal and policy advice

Government priorities during 2016–17 emphasised international law advice and other support, particularly in areas of national security, counter-terrorism and immigration and border protection (citizenship reforms). We advised on Australia's overseas military deployments and on legislative amendments to the Commonwealth Criminal Code to align Australia's domestic law with international humanitarian law regarding the targeting of members of organised armed groups. Providing this advice assisted and strengthened national security and border protection activities while ensuring the international rule of law and human rights were protected.

Supporting Royal Commissions and taskforces

We supported the Royal Commission into Institutional Responses to Child Sexual Abuse and the Royal Commission into the Protection and Detention of Children in the Northern Territory. We provided 330 grants of legal financial assistance to witnesses appearing before Royal Commissions with payments under these grants totalling $7.537 million. We processed 80% of these grants within the required 21-day timeframe.

Our contribution ensured the Royal Commissions received strong legal, logistical and administrative support.

Royal Commission into Institutional Responses to Child Sexual Abuse

In 2016–17, the Commission continued a program of private sessions, public hearings and research and policy work. It held its last scheduled public hearing in March 2017, examining the nature, cause and impacts of child sexual abuse. We coordinated the Commonwealth's legal representation as a party before the Royal Commission and attended and monitored each of the public hearings.

The public hearing in March 2017 examined the progress of Australian governments on policy issues of redress and civil litigation, working-with-children checks, out-of-home care data collection, reportable conduct and mandatory reporting and child-safe standards. We coordinated the appearance of five Commonwealth witnesses at the public hearing and coordinated four Commonwealth statements that were submitted to the Royal Commission.

We facilitated the tabling of 12 case study reports and coordinated two whole-of-government submissions to the Royal Commission relating to criminal justice and strengthening information-sharing arrangements.

Royal Commission into the Protection and Detention of Children in the Northern Territory

On 1 August 2016, the Governor-General His Excellency the Hon Sir Peter Cosgrove AK MC (Retd) appointed the Hon Justice Margaret White and Mr Mick Gooda as Commissioners to the Royal Commission.

We provided administrative support for the Royal Commission and coordinated the Commonwealth's legal representation as a party before the Royal Commission. In this capacity, we attended and monitored the Commission's public hearings.

In June 2017, we participated in and coordinated the Commonwealth's attendance at a public hearing examining child protection in the Northern Territory. We coordinated the Commonwealth's response to notices to produce issued by the Commission and coordinated the appearance of two Commonwealth witnesses at the public hearing.

Defence Abuse Response Taskforce

The Defence Abuse Response Taskforce ceased operations on 31 August 2016. The taskforce was established in 2012 to assist complainants who had suffered sexual abuse, physical abuse, sexual harassment and workplace harassment and bullying in the Department of Defence prior to 11 April 2011. The taskforce received 2,439 complaints of which 1,751 were assessed as within scope and plausible.

From 1 December 2016, the Commonwealth Ombudsman, within its Defence Force Ombudsman jurisdiction, was given the role of receiving reports of serious abuse within the Department of Defence.

Reviewing Commonwealth legal services

The review of Commonwealth legal services was completed this year. The review made a number of findings in relation to improving the efficiency and effectiveness of the Commonwealth legal services framework. We will continue to progress this work to ensure high-quality legal services are provided to the Attorney-General and the Commonwealth.

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