Speech To Government Lawyers Forum 2015
MARK DREYFUS QC MP
The evolving role of Government lawyers
Canberra, 31 March 2014
I acknowledge the traditional owners of the land on which we meet, and pay my respects to their elders, past and present.
Last week, the Government introduced the Judiciary Amendment Bill 2015 into the Senate, a Bill which would make changes to the way in which the Commonwealth sources its legal advice.
Happily, the intricacies of Commonwealth legal services or indeed of the Judiciary Act are not often the subject of intense political attention.
Those matters are of intense interest to me, however, and I am very happy to be speaking here today among many others who share that interest.
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 under-appreciated. 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 express some sympathy with this, having been both a lawyer and a parliamentarian.
However, government lawyers – and I include here all those who provide legal services to government, not only those employed by the Commonwealth – perform a vital public service. We are fortunate in Australia to be very well served in this regard.
I have been invited to speak to you today about the ‘evolving role of government lawyers’. It is interesting to note that the Judiciary Amendment Bill I mentioned in some senses takes us back to the time of Federation.
That Bill, as you all no doubt know, implements the Government’s decision announced in MYEFO last year to incorporate the Australian Government Solicitor back into the Attorney-General’s Department.
The early days
That measure in MYEFO, in the usual manner of Government spin, is titled a ‘Smaller Government’ measure.
Of course, at the time of Federation, when the role now fulfilled by the AGS of course did reside in the Attorney-General’s Department, the Commonwealth Government was very small indeed.
As an aside, I do not think the smallness of our newborn federal government in those days made it any less grand. Many of my fellow Victorians would tell you that the Commonwealth was at its best when its Parliament met in Melbourne and the Australian Prime Minister worked out of an office on Spring Street.
The late Leslie Zines wrote about the conduct of the Commonwealth’s legal matters in those earliest days. He noted that on 1 January 1901, the day the Commonwealth came into existence, before any Commonwealth Parliament had been convened, the Executive Council met and created seven Commonwealth Government Departments. Among them was the Attorney-General’s Department. The young Robert Garran was appointed its Secretary – the Commonwealth’s very first public servant.
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.
Until 1903 he advised the Commonwealth government on constitutional matters in the absence of the High Court. Some here might envy him that.
Some years later, in 1916, Garran was appointed the first Commonwealth Solicitor-General.
Government lawyers today
Clearly, much has changed since Garran’s day.
Due both to constitutional development and evolving community expectations, the modern Commonwealth Government is now a vastly broader and more complex creature than the founders of our nation could have imagined. The legal needs of the Commonwealth have grown apace.
The Commonwealth’s legal advisors must grapple not only with domestic matters but also with a system of international law and legal institutions that has flourished and matured since Federation.
In the face of all of this, the Commonwealth’s legal armoury has of course expanded. There are now over 1,500 staff at the Attorney-General’s Department, and many more in statutory agencies reporting to the Attorney-General. The AGS employs hundreds lawyers around the country. In-house legal teams operate with great skill in numerous Commonwealth agencies. And, of course, much of the Commonwealth’s legal work has in recent decades been opened up to private law firms: last year some 59% of Commonwealth agencies’ external legal spend. There is an emerging practice of briefing counsel directly, a practice the current Attorney-General has promised to rely on more frequently.
Against all of this, the prospect of Sir Robert Garran running the Commonwealth’s legal affairs as more or less a one-man show might seem quaint.
But I do not want you to consider those early years of our country as some sort of charming contrast with the modern day.
Far from it.
The gravity and the complexity of the tasks undertaken by the first of the Commonwealth’s legal advisors shows us just how important government lawyers were to the foundation of this country.
It should also remind us how important government lawyers are to its maintenance and future growth and success.
In my time as Attorney-General in the last Labor Government, I saw first-hand how well-served the Commonwealth is by its various legal advisors.
No better was this illustrated than in the Japanese whaling case in the International Court of Justice, argued in the Hague in 2013. It was one of the great privileges of my time in public life to present one part of our case to the Court.
A quick glance at our representation at the Bar table, however, gives you an indication of the incredible legal talent, from a diversity of sources, at the disposal of the Commonwealth.
Before the ICJ, Australia was represented by the Solicitor-General Justin Gleeson SC, Bill Campbell QC, General Counsel (international Law) at the Attorney-General’s Department, Henry Burmester QC of the Office of General Counsel at the AGS, as well as DFAT officials led by H.E Neil Mules, Ambassador of Australia to the Kingdom of the Netherlands.
The Commonwealth retained esteemed private counsel, not least the Australian-born Prof James Crawford SC of Cambridge, Prof. Laurence Boisson de Chazournes of the University of Geneva and Prof Phillipe Sands QC of the English Bar.
This team was ably supported by staff of the AGD.
It is rare in public life to have the near-unanimous support of the Australian community for any action of the Commonwealth government. However, Australia’s success in that case has become a matter of almost universal public pride. That success would not have been possible without the depth of talented lawyers who serve the Australian government. It should remind us of how important their work is, not just to bureaucrats and administrators, but to the entire Australian community.
The movement of the AGS back within the Attorney-General’s Department might remind us of earlier times.
However, we do live in more complex times now.
It has been nearly three decades since the Commonwealth began to pursue serious contestability and competition among providers of its legal services.
It is almost 20 years since the Logan Review, in pursuit of those goals, recommended the creation of the AGS in its current form.
It is not yet clear to me what the Government intends to achieve with its reshuffling of the AGS back into the Department. I note that the last review of the Commonwealth’s legal services, the Blunn Krieger Report of 2009, did not recommend such a consolidation.
Whatever the Government’s intentions, and I hope that the Government does conduct a public conversation about this, a range of challenges face Australia’s government lawyers.
I hope, too, that the Government will work on ways in which to meet those challenges.
It is not an easy time to be a government lawyer.
As has been clear for some time now, the damage suffered by the legal profession during the Global Financial Crisis was not temporary. More than five years on, we can see that a ‘new normal’ has emerged. In difficult economic times, clients have been keen to squeeze greater value out of more limited legal spending. Meanwhile, foreign firms have entered the Australian market in force, while many leading domestic firms have themselves sought a global presence through mergers or alliances.
Government lawyers are not immune from these broader trends in the Australian legal market.
In these fiscally straitened times, the Commonwealth too is an ever-more demanding client. Government clients are better armed now to extract as much value as possible from their legal advisors. Procurement processes have been reformed to make them more efficient. In-house legal teams at major departments are ever more capable as ‘informed purchasers’ of external services. Some private firms will have to align their Commonwealth practices with the strategies of their newly global partnership.
Though government clients are becoming more value-conscious, there is no shortage of work to be done. The Blunn Krieger Report noted a range of long-term trends driving up demand for government legal work.
These include the sheer volume of Commonwealth legislation and regulation, and the rapidity of its change.
In a public sector context, this complexity is added to by the need to keep in mind the web of international obligations to which the Commonwealth is subject, not to mention constitutional law. Even the best laid schemes of mice and men are liable to be struck down by the High Court, as we saw with the Williams case during Labor’s time in Government. I suspect that decision will cause further headaches to government lawyers yet.
The modernisation of the Australian economy and the changing role of government as a result has seen both an increased interaction between the Commonwealth and the private sector, and a growth in activity by regulatory agencies.
The maturity of the Commonwealth administrative law system, too, has increased demand. The Commonwealth’s lawyers must now grapple with a range of review, transparency and integrity mechanisms that is now so significant as to sometimes be referred to as the ‘fourth branch of government’. Civil society and the community at large are increasingly adept at the use of these mechanisms to hold the Commonwealth to account.
Put simply, government lawyers are being asked to do more with less.
What Labor did in Government
In Government, Labor took steps to improve the provision of legal services to the Commonwealth. Of course, as any Government does, we wanted to increase value for money to the Australian taxpayer. However, we also wanted to better support government lawyers to meet the demands placed upon them, and indeed to thrive.
In 2009, Labor Attorney-General Robert McLelland commissioned the Blunn Krieger Report which I have mentioned. That report was the most extensive review of Commonwealth legal services since the Logan Review. Following on from the Blunn-Krieger Report, Labor commissioned the Gruen Report from Lateral Economics, seeking economic advice on the reform of the Commonwealth’s procurement processes.
In response to those reports, the Labor Government established the Legal Services Multi-Use list. It was our goal that the Multi-Use list would cut down on the duplication and inefficiencies of the old panels system, both for government clients and the providers competing for their work.
I would be grateful for your feedback on how this new system, now several years in operation, is functioning and whether it can be improved.
As I said, we also took steps to help government lawyers in meeting the needs of their clients.
We created the Australian Government Legal Network, a body dedicated to supporting the development of in-house lawyers. The Network is led by a talented Board drawn from across the Commonwealth Government. It held its first conference in June of last year, which I expect some of those here today attended.
We also created the General Counsel Working Group, which brings together leaders of in-house practices from 13 major agencies.
I hope that these bodies will make a real contribution to the quality of the Commonwealth’s in-house legal services. They should allow in-house government lawyers to develop their skills, to learn from one another and to share best-practice. I hope that the opportunities provided will build a sense of esprit de corps among lawyers across government, and to assist in the attraction of talented lawyers to the public sector and their retention and promotion.
What’s more, I hope that those benefits are also felt by the AGS and by private firms in their dealings with in-house teams.
The Abbott Government
Of course, Labor has now sat on the opposition benches for some 18 months.
The current Attorney-General, to his credit, has made some attempt at reform of Commonwealth legal services with his proposed changes to the structure of the Australian Government Solicitor, now before the Parliament.
The announcement of those changes, I must say, was handled appallingly.
The quite delicate changes to be made by the Judiciary Amendment Bill were announced on 13 December last year in rather more blunt terms. They were leaked to The Australian ahead of MYEFO, and were published under a headline reading “Coalition axing 175 agencies”. The story discussed savings and staff cuts across Government.
Labor voiced its strong objection to this. The Government belatedly assured us that what it intended was a reorganisation rather than a cut, and that there were no plans to reduce staffing.
Nonetheless, this is no way to handle such matters. Hardworking government lawyers should not, a week before Christmas, wake up to read in the morning paper that their jobs are under threat.
Indeed, the Government has not covered itself in glory at any stage of this process. The genesis of the consolidation of the AGS back into the Department was in the report of the Commission of Audit in early 2014.
I will not mince my words. In contrast with the seriousness and the nuance of the work pursued by the Labor Government on the issue of Commonwealth legal services, the work of the Commission of Audit on the AGS is an embarrassment.
The Report devotes the grand sum of 200 words to the topic. The Commission stated, bluntly, that it could see ‘no compelling rationale’ for the role of the AGS in a competitive market for Commonwealth legal services. This would come as some surprise to government clients, who firmly and sincerely value the work of the AGS in that market.
The Commission recommended consolidation of part of the AGS into the Department, presumably that which is responsible for tied work, and a wind-up of the remainder.
The Government, we now know, has pursued a different course. As I understand it, the Government now proposes, as an administrative matter, to rehouse the AGS within the Department. We are told that it will be ‘business as usual’ in terms of the work of the AGS.
Again, I welcome your views on the substance of this measure.
Introducing the Judiciary Amendment Bill into the Senate, Minister Fifield on behalf of the Attorney-General announced that the Secretary of the Attorney-General’s Department would be conducting a broad review into Commonwealth legal services.
This is to be welcomed, and I encourage all of you to participate. It is, frankly, what should have happened before the current proposal was brought forward.
As I said at the outset, there has been great change to the Commonwealth’s legal work over the brief history of our nation.
Clearly the breadth and the diversity of the Commonwealth’s resources have grown immeasurably over the decades. The modern, competitive market for Commonwealth legal services would, I am sure, have been quite unfathomable for those first government lawyers.
I am struck, however, by what has remained the same.
The work done by government lawyers continues to be crucial to the public interest. It continues to be technically demanding and to require specialised knowledge and skill. In moments of crisis, it requires the same sort of initiative and creativity shown by Robert Garran and his contemporaries.
As always, Government is a demanding client. My predecessor as Attorney-General in the Labor Government, Nicola Roxon, once referred to government lawyers having a difficult, challenging and potentially dangerous job… not unlike lion tamers. My parliamentary colleague Andrew Leigh, recounting Nicola’s remark to an audience of in-house government lawyers, quipped that he wasn’t sure who the lions were in that analogy.
Now as then, however, the Commonwealth is ably served by men and women who dedicate their legal careers to public service, whether formally in the employ of the Government or not.
Thank you very much for the initiation to speak to you today. I hope that this is just the start of a much longer conversation about the future of government lawyers in Australia, and as I have said, I would be grateful for your thoughts whether today or in coming months.