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Annual Report 2007-08 Output 1.2

Support for the Attorney-General as First Law Officer, advice on constitutional policy, advice on personal insolvency, advice and support for the administration of the National Classification Scheme, and promotion of Australian legal services internationally

Summary

As a result of a mid-year restructure of the former Classification, Legal Services and Native Title Division, responsibility for Output 1.2 now resides with three separate divisions: the Legal Services and Personal Property Securities Division, the Territories and Native Title Division and the Classification, Human Rights and Copyright Division. During and following the restructure, the divisions continued to provide uninterrupted, high-quality services to stakeholders.

Major achievements

Reforms to procurement of legal services by the Australian Government

A major achievement of the Office of Legal Services Coordination (OLSC) in the Legal Services and Personal Property Securities Division in 2007–08 was the development and implementation of reforms in the area of Commonwealth legal services procurement.

OLSC coordinated a number of consultative forums on the proposed reform initiatives that were held in Canberra, Sydney and Melbourne. Consultations with legal services stakeholders revealed widespread support for the proposed reforms, which resulted in the drafting of an instrument to amend the Legal Services Directions 2005 to:

  • mandate the manner in which agencies are to report their legal services expenditure and to provide a template for use by agencies
  • ensure legal services providers who perform pro bono work against the Commonwealth are not discriminated against by a Commonwealth agency procuring legal services
  • impose an obligation on chief executives of Commonwealth agencies to report annually about acceptance of service pursuant to the Judiciary Act 1903, and
  • strongly encourage agencies and legal services providers to consider, and use where appropriate, methods to resolve claims without recourse to litigation.

Work on the amendments was concluded in time for them to commence on 1 July 2008. Work is already underway on further reforms that will simplify and streamline the Commonwealth legal services tendering process. We will work closely with legal services stakeholders in the coming year to monitor and evaluate the effectiveness of the recent reforms in achieving policy objectives.

Whole-of-government approach to legal services

The Legal Services and Personal Property Securities Division promotes and reports on compliance with the Legal Services Directions 2005, which provides a framework for the delivery of legal services to the Australian Government and its agencies.

We investigated 64 possible breaches of the Legal Services Directions in 2007–08 (including 15 that arose before 1 July 2007). Those substantiated were mostly in relation to failure to provide a certificate of compliance within 60 days of the end of the financial year (see Table 1).

Table 1: Investigation of breaches of the legal services directions, 2006–07 to 2007–08

Year

Established breaches

Examined and found not to involve breaches

Still under investigation at year end

2006-07 14 22 15
2007-08 9 15 40

In considering breaches, we discussed with the relevant agency or law firm the obligations under the Directions, appropriate remedies and steps to be taken to avoid future breaches.

The Division considered 397 counsel fee applications in a timely and responsive manner, as required by the Directions (see Table 2).

Table 2: Counsel fee applications, 2006–07 to 2007–08

Year

Number of applications resolved

Ongoing rates approved

One-off rates approved

Applications declined

—no rate approved

2006-07 360* 289 76 2
2007-08 397 306 85 6

* In seven cases, an application received by OLSC resulted in the approval of both ongoing and one-off rates. In two cases, a rate granted by OLSC was reviewed at the applicant’s request and the approval adjusted. These rates have been counted as only one approval.

We worked closely with all Australian jurisdictions, the National Legal Profession Project secretariat in New South Wales and the Law Council of Australia to ensure the timely and consistent implementation by those States and Territories still to pass legislation based on the National Legal Profession Model Bill. All jurisdictions except South Australia have now implemented legislation based on the Model Bill. OLSC continued to support the Attorney-General’s efforts to assist South Australia to pass its legislation as soon as possible.

The Division assisted Defence’s implementation of the Government’s undertaking to engage an appropriately qualified person to undertake a review of the remaining claims brought by ex–crew members of HMAS Melbourne.

Constitutional litigation and policy development

The Constitutional Policy Unit in the Legal Services and Personal Property Securities Division provided assistance and advice on constitutional policy and development, litigation and public law issues of federal significance. In particular, we continued to assist with advice on harmonising federal legal arrangements in the areas of personal property securities, the application of federal family law to the property of de facto couples and arrangements in relation to the law of evidence. The Unit provided assistance in relation to the development of the Commonwealth Water Act 2007 and was closely involved with the Department’s contribution to the inquiry by the House of Representatives Standing Committee on Legal and Constitutional Affairs into the question of Northern Territory statehood.

We continued to play a central role in all questions of intervention by the Attorney-General in constitutional litigation. The Unit was engaged in the preparation of the Commonwealth’s case in a wide range of significant proceedings including, for example, in the successful High Court appeal in Attorney-General v Alinta against a finding by the Full Federal Court that certain functions of the Takeovers Panel under the Corporations Act 2001 were unconstitutional. Other significant matters included High Court proceedings in Betfair v Western Australia, involving a challenge to State laws regulating interstate gambling, and in Zentai v Hungary, O’Donoghue v Ireland and Williams v USA, which involved challenges to federal extradition arrangements.

The Unit continued to provide technical advice on issues arising in relation to the Callinan Inquiry into the 2007 outbreak of equine influenza in Australia and the Clarke Inquiry into the case of Dr Mohamed Haneef.

Classification of films, computer games and publications

Classification is a cooperative scheme involving the Australian Government and all State and Territory Governments. In the Classification, Human Rights and Copyright Division, Classification Policy Branch is responsible for providing the Australian Government with policy advice on the classification of films, computer games and some publications. As well, the Classification Operations Branch provides secretariat support to the Classification Board and the Classification Review Board, runs the Community Liaison Scheme and provides classification training for industry and government bodies.

The Classification Policy Branch works closely with the States and Territories and the Classification Operations Branch to ensure that appointments to the Classification Board and Classification Review Board continue to be broadly representative of the Australian community.

The Classification Policy Branch advised on legislative changes dealing with the prohibition of certain adult material in prescribed areas of the Northern Territory as part of the Northern Territory Emergency Response (NTER). The Classification Operations Branch provided advice and assistance on operational issues arising from the prohibition and worked with the Northern Territory Government on a related training package.

In addition, the Classification Policy Branch worked with the States and Territories and industry groups to develop two new proposals to enhance the classification scheme. The Classification (Publications, Films and Computer Games) Amendment (Assessments and Advertising) Act 2008 enables the schemes and was passed by Parliament in June 2008. Each scheme requires the development of a new Commonwealth instrument to become operational.

The advertising scheme removes the prohibition on advertising unclassified films and computer games and replaces it with an industry-based self-assessment scheme for advertising unclassified material with appropriate classified material. It requires amendments to complementary State and Territory legislation. The television series scheme enables industry-based authorised assessors to recommend to the Classification Board the appropriate classification and consumer advice for films that are compilations of episodes of a television series and series-related material.

Both Branches continued to liaise with industry on policy and operational issues, particularly in relation to new legislation enabling industry assessment of additional content on DVDs.

The Branches convened the steering committee to oversee research requested by SCAG censorship ministers to assess classification decisions generally and acceptable levels of sex and violence at the R 18+ classification. The findings indicated that classification decisions for films and computer games generally reflect community standards. The findings also indicate that community views about the level of violence and whether actual sex should be permitted at the R 18+ classification are fairly evenly split.

The Classification Operations Branch provides a range of training programs for industry. After completing training, industry assessors may make recommendations to the Classification Board for the classification of additional content on DVDs, and others may make recommendations for the classification of some computer games. These industry assessment schemes provide for an efficient method of classification for both industry and the Classification Board. During the reporting period, 28 people from nine companies were trained as additional content assessors and 64 people from 29 companies were trained as assessors of computer games. Under Schedule 7 of the Broadcasting Services Act 1992, industry assessors can be trained to assess the likely classification of content that may be delivered online. During this period, 81 people from 36 companies were trained for this purpose.

The Classification Operations Branch runs the Community Liaison Scheme (CLS). This is a joint State, Territory and Australian Government initiative aimed at improving industry compliance with classification laws. The CLS provides classification information to industry and enforcement authorities and handles enquiries and complaints. During the reporting period, CLS staff conducted 701 compliance checks in computer game and DVD retail stores and rental outlets, service stations, convenience stores, games arcades, newsagents, cinemas and adult premises, covering all capital centres and many regional and rural centres.

During the reporting year, the Classification Operations Branch processed 7,143 applications under classification legislation.

Harmonising laws in Australia

The Classification Policy Branch coordinates the Department’s involvement in SCAG and supports the Attorney-General’s and Minister for Home Affairs’ (formerly Minister for Justice and Customs) participation in SCAG meetings. At the two meetings held in 2007–08, the Australian Government continued to pursue its objectives of appropriately harmonised laws and the identification of national best practice models in situations where harmonised laws are unnecessary.

Throughout the year, SCAG agreed to a number of new policy proposals from the current and former Attorney-General and Minister. In particular, in March 2008 SCAG agreed to consider the harmonisation of anti-discrimination laws and the laws relating to the use of suppression orders. SCAG also offered its assistance to the Council of Australian Governments (COAG) on the legal aspects of a number of cross-jurisdictional regulatory hotspots.

The Department assisted the Attorney-General in taking advantage of the presence of all SCAG ministers at the March 2008 meeting to ensure effective communication on a number of consultations that were underway with States and Territories, including the draft treaty on Trans-Tasman Legal Cooperation and Regulatory Enforcement and the United Nations Convention on the Rights of Persons with Disabilities.

The Classification Policy Branch also participated with State and Territory officers in a strategic review of SCAG’s operations. The review, which was initiated by the current Attorney-General, considered the priority that should be ascribed to existing SCAG agenda items. It identified key themes and priority areas for SCAG ministers’ consideration. It also reconsidered the way SCAG meetings are held, with the aim of making more time available at meetings to consider high-priority items needing ministerial discussion and decision. Recommendations arising from the review will be considered by SCAG ministers at the July 2008 meeting.

International promotion of Australian legal services

The International Legal Services Advisory Council was reconstituted on a permanent basis, with members appointed for a three-year term from July 2007 until June 2010. The Territories and Native Title Division provides the secretariat support for the Council. The Council’s detailed business plan for the next three years was approved by the Attorney-General in March 2008.

We have drafted an outline and commenced consultations with the legal profession on the development of an Australian legal services export development strategy for the next three years. The focus of the strategy is to identify avenues and tools to assist current and new Australian legal and related service providers to increase the export of legal and related services.

Results from the Council’s first survey of Australia’s legal services cross-border and export activity were released by the Attorney-General in August 2007. The survey, which has been acclaimed as a benchmark study, found that export activity in 2004–05 was worth $543 million. The survey was financially assisted by the Department in conjunction with other interested organisations. The Council is undertaking another survey detailing export activity from 2006–07.

The second Australia–China Legal Profession Development Program was successfully implemented. During the four-month program, eight Chinese legal practitioners received training on specific aspects of the Australian legal system and gained a practical knowledge of Australian law through individual work placements across Australia. This program is regarded highly in China and by the Australian legal profession.

Through Free Trade Agreement (FTA) negotiations we are seeking to gain access for Australian lawyers to provide legal advisory services and a right to enter into commercial association with local lawyers/law firms in key overseas markets. Chile FTA negotiations have finished with a good result, while negotiations with ASEAN are ongoing. The Council’s China Working Group arranged for the translation into Mandarin of the information paper Foreign Lawyers and the Practice of Foreign Law in Australia and coordinated the paper’s launch in Sydney, as well as the subsequent official function and presentation of the paper to officials in China.

Promotion of Australia as a centre for International Commercial Dispute Resolution (ICDR) and Australian skills and expertise in ICDR took place during the APEC ministerial meetings in Australia. With support provided to the Australian Centre for International Commercial Arbitration for the publication and distribution of a booklet Managing Cross-Border Disputes—International Arbitration Explained.

The Council’s work, with support from SCAG, on promoting the establishment of a transparent, consistent and uniform system for assessing overseas qualified lawyers has played a crucial role in influencing the development of Uniform Principles for Assessing the Qualifications of Overseas Applicants and associated guidelines by the Law Admissions Consultative Committee. These have been adopted by all State and Territory admitting authorities, and the Council will continue to monitor their implementation.

The Council produced its fifth triennial report for the period 2004–07. The report was an innovative one because it described the evolution of Australia’s foreign lawyer regulatory system. The report also included a new Looking Forward section identifying the importance of a well-focused strategic approach to international engagement. The report, which was released in March 2008, has been well received within both the private and the public sectors.

Purchaser–provider arrangements

The Department provides operational and financial support for the Classification Board (the Board) and Classification Review Board (the Review Board) through the Classification Operations Branch. The Board operates on a cost-recovery basis, with the Department charging applicants fees for classification. The Review Board operates on a partial cost-recovery basis. The fees for applications to both Boards are contained in the Classification (Publications, Films and Computer Games) Regulations 2005. Fees from applications are treated as administered revenue. In 2007–08 6,943 decisions were made by the Classification Board and 5 decisions were made by the Classification Review Board. The estimated revenue for 2007–08 was $7.914 million, with actual revenue of $7.311 million for the period. In line with the cyclical review of cost-recovery arrangements, the Department will conduct a review of the fees charged for classification in 2008–09.

The Australian Communications and Media Authority, and certain other persons, may apply to the Board for the classification of content under the Broadcasting Services Act 1992. Under that Act, those services are charged on a fee-for-service basis. Under the Classification Act, Commonwealth agencies and authorities are not liable to pay classification fees. The Classification (Publications, Films and Computer Games) Regulations 2005 provide each State and Territory with up to 100 free ‘eligible documents’ (including applications for classification) each calendar year if the request relates to the enforcement of a State or Territory classification law.

Outlook

We will maintain and improve effective outreach activities to stimulate the use of legal services within the parameters of the Legal Services Directions.

We will continue to build the ‘informed purchaser’ capability across the Government, by maintaining and enhancing the Office of Legal Services Coordination Outreach Seminar Program as a forum in which to discuss legal services purchasing issues and to share knowledge.

We will continue to work cooperatively with all jurisdictions to seek timely implementation of the National Legal Profession Model Bill in those States that have not yet adopted it, and to ensure that any avoidable differences in legislation across jurisdictions are minimised or removed.

We will continue to promote the harmonisation of laws by supporting the Attorney-General and the Minister in working with the States and Territories through SCAG.

The review of SCAG’s agenda and strategic direction is likely to reinvigorate SCAG’s work and assist it to progress high-priority reforms more expeditiously. The review is likely to streamline administrative processes, which will allow more resources to be devoted to progressing high-priority SCAG projects.

The Classification Operations Branch will continue its work to replace the Business Operating Support System, the workflow management system that supports the classification workflow. A review of classification fees will be undertaken in the coming year.

Promoting the interests of Australian lawyers and law firms by seeking improved market access through the various FTA negotiations will continue to be a key challenge. The third round of the Australia–China Legal Profession Development Program and collaboration with our counterpart agencies in Indonesia to improve the development of legislation and legislative processes will be other key initiatives for us. These will also require whole-of-legal sector involvement.

Performance indicators
Quantitative and qualitative

Output 1.2

Support for the Attorney-General as First Law Officer, advice on constitutional policy, advice on personal insolvency, advice and support for the administration of the National Classification Scheme and promotion of Australian Legal services internationally

Activity

Performance indicator

Result

Policy items provided to ministers Quantity   2006-07 2007-08
Submissions to ministers 195 547
Cabinet submissions 0 0
Ministerial correspondence* 1,116 936
Responses to questions on notice 1
Briefs 157 83
Speeches 21 13
Quality Advice to ministers provided within agreed timeframes Achieved
Extent of satisfaction of ministers as measured by periodic feedback from ministers and their offices Highly satisfied
Advice provided to other agencies Quantity   2006-07 2007-08
Items of legal​/policy/operational advice 478 293
Quality Advice provided within agreed timelines Achieved
Advice provided is respected by client agencies, as measured by periodic feedback Achieved

Stakeholders indicated they are highly satisfied with service level.

Comments provided by key stakeholders included:

– From the Australian Crime Commission (ACC):‘Provided meaningful feedback on strategies used by the ACC to ensure compliance with the Legal Services Directions (eg appointment of General Counsel, observations on ACC legal services, standard operating procedures and policy documents). OLSC have rapidly responded to the ACC’s requests for approvals. OLSC has also promoted awareness of the Directions of ACC legal staff by delivering a presentation at the ACC’s lawyers conference.’

– From the Department of Broadband, Communications and the Digital Economy: ‘This advice was timely and generally appropriate to portfolio responsibilities.’

– From DFAT: ‘Solid contributions made by the International Legal Services area in the Attorney-General’s Department.’
Maintain and enhance the framework for the handling of legal matters by the Australian Government to achieve whole-of-government objectives Quantity   2006-07 2007-08
Number of OLSC outreach activities:
– Agency legal unit discussion groups held 2 2
– Guidance notes issued 2 1
– Seminars conducted 7 11
Quality Feedback from Australian Government agencies on OLSC performance on legal service issues Highly satisfied
Development and advancement of legal services and legal cooperation in the Asia–Pacific and other regions Quality Extent of satisfaction of ministers as measured by periodic feedback from ministers and their offices Highly satisfied
Timely and effective coordination of SCAG and advancement of SCAG reform projects and initiatives Quality Feedback from within the Department indicating whether the Classification Policy Board is adding value to the advancement of the Commonwealth’s interests through SCAG and SCAG reform projects and initiatives Periodic feedback generally indicates satisfaction with SCAG coordination and project advancement.
Timely assistance and sound policy advice provided to the Government on constitutional issues in litigation and in policy development Quality Extent of satisfaction of ministers as measured by periodic feedback from ministers and their offices Highly satisfied

Feedback received included: ‘Consultation with and advice on constitutional issues dealing with just terms acquisition and Part XIC of the TPA arising from High Court proceedings brought by Telstra. There was a good working relationship between the Department, AGS, DBCDE and the ACCC.’
Timely assistance and sound policy advice provided to the Government on the framework for classification of films, computer games and publications and effective liaison with States and Territories on the operation of the National Classification Scheme Quality Extent of satisfaction of ministers as measured by periodic feedback from ministers and their offices Highly satisfied
Operational support to the Classification Board** Quality Extent of satisfaction of the Director of the Board as measured by periodic feedback from both Highly satisfied

The Director of the Board commented: ‘Notwithstanding the resources constraints and other difficulties that have delayed the replacement of the Boss system, I am highly appreciative of the successful efforts to keep the present system operational. In all other respects the post-integration phase has been very well handled enabling the Classification Board to perform at an effective level throughout the year.’
Operational support to the Classification Review Board** Quality Extent of satisfaction of the Convenor of the Review Board as measured by periodic feedback Highly satisfied

The Convenor has drawn the Department’s attention to the challenges facing Review Board members attending to Review Board business away from their home base and has asked these be taken into account in travel arrangements.
Maintain and enhance the effectiveness of the legal framework for personal insolvency administration Quality Extent of satisfaction of ministers as measured by periodic feedback from ministers and their offices Highly satisfied

* The number of ministerials relates to the number of actions in relation to ministerial correspondence.

† Briefs include papers on current issues, possible parliamentary questions (new and updated) and meeting briefs.

‡ The number of advices provided by output have been derived from the Department’s annual workload survey and represent a snapshot obtained by aggregating data from four separate one-week periods—two from parliamentary sitting periods and two from non-sitting periods.

** See the Classification Board and Classification Review Board Annual Report 2007–08 for further detail.

Performance information for Output 1.2—administered items

Administered item

Performance indicator

Result

Parliamentary Entitlements Act 1990 Quality Expenditure in accordance with legislation Achieved

The Office of Legal Services Coordination is responsible for administering Part 3 of the Parliamentary Entitlements Regulations 1997 made under s 12 of the Parliamentary Entitlements Act 1990. The Regulations enable the Commonwealth to pay assistance to present and former ministers for legal proceedings against them arising out of the performance of their ministerial duties.
Budget price: $0.300 million Actual price: $0.007 million
Law Officers Act 1964—former Solicitors-General Quality Expenditure in accordance with legislation Achieved

The Department processes payment of pensions to former Solicitors-General.
Budget price: $0.633 million Actual price: $0.321 million
Administration of the National Classification Scheme Quantity   2006-07 2007-08
Payments to the States and Territories in lieu of fees shared under pre-1995 classification fee sharing arrangements $772,199
(Payment relates to 2006 calendar year)
$795,795
(Payment relates to 2007 calendar year)
Quality Provision of up to 100 eligible documents for each State and Territory without a fee if the request relates to the enforcement of a law of the State or Territory Achieved

The Commonwealth, States and Territories have each met their obligations under the 1995 Intergovernmental Agreement.
Budget price: $0.833 million Actual price: $0.796 million

Our people

Showing leadership in purchasing legal services

Left to right: Melissa Tracey-Patte, Janette Davis and Ingrid Nemeth, Office of Legal Services Coordination.

Left to right: Melissa Tracey-Patte,
Janette Davis and Ingrid Nemeth,
Office of Legal Services Coordination.

Janette Davis, Assistant Secretary with the Office of Legal Services Coordination, manages the project team tasked to drive reforms on the Commonwealth purchasing of legal services. One thing the team did not have on their side was time.

‘I joined the Department at the end of April 2008 and our deadline for the project was 30 June,’ Janette explained. ‘The project, which is about reducing costs and implementing best practice, gave me a fabulous opportunity to get out there and meet all of our key stakeholders.’

‘My team worked together really well, which was lucky given the size of the task we had to complete.’

Team members, Melissa Tracey-Patte and Ingrid Nemeth, said they got a great deal of satisfaction at having achieved what they did in a short space of time.

From day one, the project was heavily dependent on consultation and engagement with a broad range of stakeholders. The consultation phase included a series of forums in Sydney, Melbourne and Canberra in May 2008.

Janette said the forums were very well attended by Commonwealth agencies, legal service providers and other interested external parties, including law societies.

The first package of legal service reforms, which promotes pro bono legal work and encourages legal service providers to use alternate dispute resolution methods, commenced on 1 July 2008.

‘This initiative will improve efficiency and transparency in the legal services tendering process and make it easier for providers to do business with the Commonwealth,’ Janette added.