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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

We ensure the government has access to high-quality legal services and promote a whole-of-government approach to managing significant legal issues.

All stakeholder survey targets for this strategic priority have been exceeded this year. A range of stakeholders including Australian, state and territory government entities, legal providers and research institutions provided feedback on our delivery of activities under this strategic priority. The stakeholder survey showed a high level of satisfaction with each of the key performance indicators. The largest increase in satisfaction is with ‘the efficiency of the department when providing legal services’ (93 per cent, up from 88 per cent in 2016-17). In addition, the Australian Government Solicitor (AGS) client survey revealed a very high level of client satisfaction. Table 2 provides results of the client survey against each of our performance measures.

Table 2: KPI performance statement for Strategic Priority 1: Legal
KPI Performance criterion (a) Target Result
Effectiveness Stakeholder and client satisfaction with our effectiveness and the quality of our legal services 80% 94%
Client satisfaction with the quality of legal services provided by AGS 75% 83%
Efficiency in meeting goals Legal and legal policy advice completed Work is completed on time, within budget and in compliance with relevant guidelines 93%
Legal advice provided by AGS is responsive and meets client needs 75% 80%
Professionalism, skills and commitment Stakeholder and client satisfaction with the professionalism, skills and commitment of our staff 80% 97%
Client satisfaction with the professionalism, skills and commitment of AGS staff 75% 84%
(a) Performance criteria as per Corporate Plan 2017–21, p. 7 and Portfolio Budget Statements 2017–18, Program 1.1, p. 13, Program 1.2, p. 14, Program 1.3, p. 15 and Program 1.9, p. 18.

The key activities under this strategic priority and a summary of relevant progress are provided in Table 3. Further information about progress of achievements follows in the Analysis section.

Table 3: Activity performance statement for Strategic Priority 1: Legal
Key activity Result
Support the Attorney-General as First Law Officer in his role as principal legal adviser to the Commonwealth ACHIEVED
Amendments to the Marriage Act 1961 following the result of the Australian Marriage Law Postal Survey
Eligibility of parliamentarians in Parliament
ONGOING
Provision of advice and counsel on domestic and international matters of significance to the Commonwealth
Reforms to counter-terrorism legislation
Provide high-quality legal services to the Australian Government, Cabinet and government agencies ACHIEVED
Litigation services for parole, extradition, mutual assistance and the international transfer of prisoners
ONGOING
Scrutiny of Cabinet submissions and liaison and legislation
Legal advice and assistance on major policy and programs
Design and deliver reform of Commonwealth legal services to ensure the effective provision of quality legal services to the Australian Government ACHIEVED
Legal services framework for engaging legal services providers endorsed
Enable AGS to remain sustainable in the contestable government legal services market ONGOING
Financial viability was achieved and performance was above projections
Oversee and coordinate significant legal policy issues affecting the Commonwealth, in particular, those concerning constitutional, cross-jurisdictional and international matters ACHIEVED
Assisted in establishing a national redress scheme for institutional child sexual abuse
Support the Commonwealth’s engagement with Royal Commissions ACHIEVED
Final report of Royal Commission into the Protection and Detention of Children in the Northern Territory tabled
Final report of Royal Commission into Institutional Responses to Child Sexual Abuse released
ONGOING
Secretariat for a national apology to victims and survivors of institutional child sexual abuse
Established and supporting Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry
Provide legal and policy advice in issues involving domestic and international law ACHIEVED
Amendments to the Criminal Code Act 1995
International litigation on matters before the United Nations and the World Trade Organization
Australia and Timor-Leste maritime boundary treaty signed
Successfully defended Australia’s plain packaging legislation before a panel of the World Trade Organization
ONGOING
Technical assistance on constitutional reform
Advice on criminal offences and penalties in legislation
Policy advice on the Judiciary Act 1903 and the Jurisdiction of Courts (Cross-Vesting) Act 1987
Advice on administrative law policy and legislative frameworks
Courts and evidence policy advice on new Bills and proposals
Instruction on native title claims on behalf of the Commonwealth
Amendments to the Native Title Act 1993

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Analysis

Supporting the Attorney-General

We support the Attorney-General by providing legal services across the Commonwealth and working with agencies on significant legal issues. We also work closely with the Solicitor-General on significant constitutional cases in the High Court of Australia. Our provision of considered advice brings consistency to Australia’s legislation and its interpretation and application.

Particular support to the Attorney-General includes providing high-quality briefing for Cabinet and committee meetings, appearance before Senate committees and responses to Senate Questions on Notice.

We are the secretariat for the Council of Attorneys-General that assists Council of Australian Governments (COAG) progress a national and trans-Tasman focus in law reform. In particular:

  • civil justice reforms and responses
  • legal profession regulation and evidence law
  • national security legal framework improvements
  • intergovernmental reforms
  • implementation of cross-jurisdictional oversight and integrity measures.

The Council of Attorneys-General met twice during 2017-18 and considered key priorities including elder abuse, family violence and the recommendations from the Royal Commission into Institutional Reponses to Child Sexual Abuse.

Legal advice

Constitutional litigation

During 2017-18, we represented the Attorney-General in 11 proceedings in the High Court concerning parliamentarian eligibility as a senator or a member of the House of Representatives.

We also acted for the Commonwealth in eight constitutional litigation matters in the High Court including Wilkie v Commonwealth, Australian Marriage Equality Ltd v Minister for Finance, and Bell v Culleton.

Providing legal services to government and its agencies

We provide advice and assistance to departments, agencies and taskforces for major government policy and program litigation and commercial matters.

During 2017-18, we worked on significant litigation and dispute resolution matters including:

  • Austrac and Commonwealth Bank of Australia, resulting in the largest civil penalty ever awarded in Australia
  • the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry
  • Roo-Roofing & Anor v Commonwealth, a class action against the Commonwealth arising out of the Home Insulation Program
  • Commissioner of Taxation v Thomas, four appeals being brought by the Commissioner from decisions of the Full Federal Court regarding the use of State declaratory proceedings
  • ACCC v VW/Audi, proceedings under way in the Federal Court alleging consumers were misled about the diesel emissions of these companies’ vehicles
  • Timber Creek, the first judicial consideration of the principles governing compensation payable under the Native Title Act 1993.

We delivered legal services for parole, mutual assistance, extradition and international transfer of prisoners as well as other matters before the courts. In 2017-18, 22 extradition matters were conducted and four matters involving a review of parole decisions were successfully defended.

Significant matters in 2017-18 include:

  • Liem v Republic of Indonesia (2017) FCA 1303
  • Westlake v Attorney-General (2017) FCA 1058
  • Ng v Attorney-General (2017) FCA 1392.

Our work resolving disputes between the government and individuals is achieved in a fair manner and in accordance with Australia’s legislative framework.

Legislation, policy and program delivery

We provided legal advice and assistance for major government policy and programs including:

  • the Australian Marriage Law Postal Survey held in 2017
  • the management of the water of the Murray–Darling Basin
  • regulation of the export of live sheep.

Commercial and contractual matters

We assist with commercial and contractual matters for government, many of which have significant community impact. These include:

  • progressing the Western Sydney Airport project and implementing the Western Sydney City Deal, including the North South Rail Link
  • working with agencies to establish new bodies, including the National Housing Finance and Investment Corporation
  • advising the Department of Defence on major procurements and strategic projects, including SEA5000 Future Frigates.

Designing and delivering reform of legal services

We administer the Legal Services Directions 2017 and support agencies and legal services providers who are performing Commonwealth legal work. This includes facilitating the General Counsel Working Group to consider strategic issues facing Australian Government legal services. Our efforts contribute to a consistent and whole-of-government approach to legal matters and significant legal issues.

During 2017-18, we:

  • worked with agencies managing significant legal issues, and facilitated five Significant Legal Issues Committee meetings to guide the strategy of Commonwealth litigation
  • assisted decision-makers (ministers and at agency level) in considering requests for legal assistance under the Legal Services Directions 2017 andthe Parliamentary Business Resources Regulations 2017.

The Secretary’s Review of Commonwealth Legal Services was published in November 2017. The review proposed a new framework for how the Commonwealth engages legal service providers by drawing on the expertise and experience of stakeholders across the Commonwealth and the legal services sector. Building on the findings of the review, we obtained the government’s endorsement of key reforms to the Commonwealth legal services framework including:

  • establishing a whole-of-government legal services panel (to be completed during 2018-19) to ensure efficient and best-value legal services for the Commonwealth
  • a renewed focus on coordination to improve the management of Commonwealth legal risk, including through the establishment of an Australian Government Legal Service.

The Legal Services Directions 2017 were amended to add explicit targets that encourage Australian Government agencies to brief senior and junior female barristers based on their skill, experience and expertise. This supports the progression and retention of female barristers and encourages a cultural change within the legal profession for the genuine consideration of female barristers.

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Enabling AGS to remain competitive

AGS is self-supporting and does not draw on Budget allocations. It attracts work as the Australian Government’s central legal service. To remain competitive, AGS provides excellent legal and related services. AGS uses whole-of-government approaches in its work to ensure consistency in Australia’s legal issues.

We have progressed work on the AGS operating model to allow it to operate as a centre of excellence using its depth of expertise in Commonwealth legal work.

For 2017-18, business results were extremely positive. Trading revenue was $135.7m, which was $14.4m above target. The number of hours sold increased by 7.4 per cent on the previous year.

Training, forums and workshops

As part of its central legal role, AGS provides training, forums and workshops on legal issues affecting policy, programs and government law. Throughout the year, 124 client-specific courses were conducted to meet the particular needs of agencies; 57 general training courses were open to all government employees. This year, we introduced three webinars so clients can learn from their desk. AGS also presented 23 forums and six Government Law Group sessions around the country. All training meets the requirements for Continuing Professional Development and Continuing Legal Education.

Pro bono work

AGS contributes to a just society through its extensive pro bono program covering clients in all Australian jurisdictions as well as internationally (with a focus on the Asia–Pacific region). In total, AGS lawyers provided 8385 hours of pro bono work.

Oversee legal policy affecting governments

During 2017-18, we worked with the Department of Social Services in the negotiation of a national redress scheme for institutional child sexual abuse.

This work is a significant achievement in cross-jurisdictional cooperation in responding to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. It paves the way for redress for substantive and long-standing wrongs committed in institutions across Australia in line with community expectations.

The National Redress Scheme is based on referrals of constitutional power for the purposes of section 51(xxxvii) of The Australian Constitution and required the department to participate in scheme design, give consideration of the proposed legislation (including in relation to questions of Commonwealth constitutional power) and to liaise with the states and territories.

Through successful negotiation, an agreement was secured for appropriate referrals of power from New South Wales and Victoria (with other jurisdictions to follow). This allowed the scheme to commence within the intended timeframes.

The National Redress Scheme for Institutional Child Sexual Abuse Bill 2018 received Royal Assent on 21 June 2018 and will commence on 1 July 2018. The Bill establishes the National Redress Scheme for Institutional Child Sexual Abuse to operate for 10 years. It will provide payments to survivors, access to counselling and psychological services and an option for survivors to receive a direct personal response from the responsible institution.

Supporting Royal Commissions

Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry

The Commission was established in December 2017 and is scheduled to report to the government by 1 February 2019. We have assisted the Royal Commission and led the Commonwealth’s representation through instructing solicitors and counsel and working with other Australian Government agencies.

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

The RCPDCNT concluded in November 2017.

Royal Commission into Institutional Responses to Child Sexual Abuse (RCIRCSA)

The RCIRCSA concluded in December 2017.

Royal Commission records contain sensitive personal information. The department, as the official custodian of the records of the RCPDCNT and RCIRCSA hearings, has established protocols that provide appropriate access to be given to applicants while also ensuring that appropriate safeguards are in place.

Child Abuse Royal Commission Implementation Taskforce

The Child Abuse Royal Commission Implementation Taskforce was established in January 2018. The taskforce galvanises action across Australian Government agencies on all 409 recommendations of the Royal Commission and tracks the progress made by all Australian governments. The taskforce works with state and territory governments to ensure national coordination and consistency in responding to the Royal Commission recommendations, and will operate until June 2020.

Through these collaborative forums the taskforce met the deadline proposed by the Royal Commission and released the Australian Government’s response on 13 June 2018.

National Apology to Victims and Survivors of Institutional Child Sexual Abuse

We provide the National Apology Secretariat that is undertaking consultation and works with a survivor-focused reference group. A national apology will include the views of survivors and will be delivered in 2018.

Providing domestic and international law legal and policy advice

We successfully conducted international litigation and arbitration on behalf of the government and responded to individual complaints brought against Australia before United Nations human rights committees.

Our continued conciliation work in partnership with the Department of Foreign Affairs and Trade concluded with Australia and Timor-Leste agreeing a maritime boundary treaty. This was under the auspices of the first conciliation commission established under the United Nations Convention on the Law of the Sea. The treaty was signed at the United Nations Headquarters in New York on 6 March 2018, in the presence of the United Nations Secretary-General. The conciliation process officially concluded on 9 May 2018 when the Commission issued its report.

We also successfully defended Australia’s tobacco plain packaging laws before a panel of the World Trade Organization.

In 2017-18, we produced over 1500 legal opinions on domestic and international law matters. We protect the public interest and provide a unique and whole-of-government approach that gives consistency to the rule of law in Australia.

For example, we provided advice on:

  • international criminal law
  • international maritime law
  • consistency of reforms with free trade obligations.

We provide policy advice on courts and evidence to government agencies, including advice on the likely effects of their policies on the workload of the courts and tribunals. This practice ensures agency policy proposals reflect court and tribunal policy and maintain Australia’s uniform evidence regime.

We manage processes associated with sunsetting of legislative instruments and improve the quality of legislation through progressing statutory housekeeping and standardisation of Bills and instruments. This improves the clarity, efficiency and accessibility of the law. It improves the quality of the Commonwealth statute book (all Commonwealth laws) and means legislation is current and remains in force for only as long as needed.

Key achievements during 2017-18 include:

  • the successful passage of the Regulatory Powers (Standardisation Reform) Act 2017 and the Statute Update (Autumn 2018) Act 2018, which provided significant improvements to the quality of Commonwealth legislation
  • supporting the statutory review of the sunsetting framework in the Legislation Act 2003 and progressing the government response to that review
  • progressing appointments to the roles of First Parliamentary Counsel and Second Parliamentary Counsel.

Other work

Reforms to the Native Title Act

During 2017-18, we consulted extensively on reforms to the native title system to support the resolution of native title claims and post-determination management of native title lands. Consultation included the release of a public options paper, 40 meetings with individual stakeholders and convening an Expert Technical Advisory Group. This process is ongoing with a second stage of consultation on exposure draft legislation expected later in 2018.

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