Commonwealth Numbered Acts

JUDICIARY AMENDMENT ACT 1999 - SCHEDULE 1--Amendment

1 Section 2

Insert:

AGS means the Australian Government Solicitor established under Division 2 of Part VIIIB.

2 Section 2 (definition of Australian Government Solicitor)

Repeal the definition.

3 Section 2

Insert:

legal practitioner means a person entitled, under an Act or a law of a State or Territory, to practise as one of the following:

(a) a legal practitioner;

(b) a barrister;

(c) a solicitor;

(d) a barrister and solicitor.

Repeal the sections, substitute:

SECT 55E Attorney-General's lawyers (1) In this section and in sections 55F and 55G:

Attorney-General's lawyer means a person:

(a) whose name is on a roll referred to in subsection 55D(1); and

(b) who is either:

(i) the Secretary to the Attorney-General's Department; or

(ii) an officer or employee in the Attorney-General's Department.

(a) to do everything necessary or convenient for that purpose; and

(b) to practise as a barrister, solicitor, or barrister and solicitor in any court and in any State or Territory; and

(c) to all the rights and privileges of so practising;

(3) An Attorney-General's lawyer acting in that capacity in a State or Territory is not subject to a law of a State or Territory that relates to legal practitioners except to the extent that such laws:

(a) impose rights, duties or obligations on legal practitioners in relation to their clients or to the courts; or

(b) provide for disciplinary proceedings in relation to the misconduct of legal practitioners.

(5) In considering the nature of the rights, duties and obligations of an Attorney-General's lawyer in relation to a client, regard must be had to the lawyer's position as an officer or employee in the Attorney-General's Department.

(6) An Attorney-General's lawyer acting in that capacity is not subject to a law of a State or Territory that is prescribed for the purposes of this section.

SECT 55F Attorney-General's lawyer may act for more than one party An Attorney-General's lawyer may act in a matter for 2 or more parties who have conflicting interests in the matter if to do so has been approved by the Attorney-General:

(a) by way of approval in relation to the particular matter; or

(b) by way of written arrangements covering the circumstances in which an Attorney-General's lawyer may so act.

(a) in relation to services of a legal professional nature provided by an Attorney-General's lawyer in his or her capacity as an officer of, or employee in, the Attorney-General's Department; and

(b) for disbursements incurred by the Commonwealth in the course of providing those services.

5 After Part VIIIA

Insert:

Part VIIIB--The Australian Government Solicitor Division 1--Definitions SECT 55I Definitions In this Part, unless the contrary intention appears:

AGS lawyer means:

(a) the CEO; or

(b) an employee of the AGS whose name is on a roll referred to in subsection 55D(1).

company means a body corporate that is incorporated, or taken to be incorporated, under the Corporations Law of a State.

Finance Minister means the Minister for Finance and Administration.

State includes the Australian Capital Territory and the Northern Territory.

Territory does not include the Australian Capital Territory or the Northern Territory.

Division 2--Establishment and functions of the Australian Government Solicitor SECT 55J Establishment of the Australian Government Solicitor This Division establishes the Australian Government Solicitor.

SECT 55K Functions The AGS has the following functions:

(a) to provide legal services and related services to the Commonwealth;

(b) to provide legal services and related services to persons and bodies for any purpose for which the Commonwealth has power to make laws;

(c) to provide legal services and related services, upon the request of the executive government of a State or of Norfolk Island, to persons and bodies mentioned in subsection 55N(2);

(d) to provide legal services and related services to the Territories;

(e) to perform any function conferred on it by this Act or any other Act;

(f) to do anything incidental to any of its functions.

(2) Without limiting subsection (1), the AGS has power to do any of the following:

(a) acquire, hold and dispose of real and personal property;

(b) form, or participate in the formation of, companies;

(c) enter into partnerships;

(d) enter into contracts, agreements or arrangements;

(e) raise money, by borrowing or otherwise;

(f) obtain goods or services on credit from any person by the use of a credit card.

(a) is a body corporate; and

(b) may have a seal; and

(c) may sue and be sued.

Note: The Commonwealth Authorities and Companies Act 1997 applies to the AGS. That Act deals with matters relating to Commonwealth authorities, including reporting and accountability, banking and investment, and conduct of officers.

(a) the Commonwealth;

(b) a person suing or being sued on behalf of the Commonwealth;

(c) a Minister of the Commonwealth;

(d) a body established by an Act or regulations or by a law of a Territory;

(e) an officer of, or a person employed by:

(i) the Commonwealth; or

(ii) a body established by an Act or regulations or by a law of a Territory;

(f) a person holding office under an Act or a law of a Territory;

(g) a member of the Defence Force;

(h) a company in which the Commonwealth has a controlling interest (including a company in which the Commonwealth has a controlling interest through one or more interposed Commonwealth authorities or Commonwealth companies);

(i) a person who has at any time been a person referred to in paragraph (c), (e), (f) or (g).

Note: For Territory see subsection (5).

(a) a State or Norfolk Island;

(b) a person suing or being sued on behalf of a State or of Norfolk Island;

(c) a Minister for a State or a member of the Government of Norfolk Island;

(d) a body established by a law of a State or of Norfolk Island;

(e) a person employed by:

(i) a State or Norfolk Island; or

(ii) a body established by a law of a State or of Norfolk Island;

(f) a person holding office under a law of a State or of Norfolk Island;

(g) a company in which a State or Norfolk Island has a controlling interest (including a company in which the State or Norfolk Island has a controlling interest through one or more interposed State or Norfolk Island authorities or State or Norfolk Island companies).

Note: For State see section 55I.

(a) the Attorney-General requests the AGS to do so; and

(b) to do so would be within the functions of the AGS.

(a) the CEO so determines; and

(b) to do so would be within the functions of the AGS.

Territory does not include the Australian Capital Territory, the Northern Territory or Norfolk Island.

SECT 55P AGS may charge for services (1) The AGS may charge fees:

(a) in relation to services provided by it in the course of performing its functions; and

(b) for disbursements incurred by the AGS in the course of providing those services.

Division 3--Capacity of AGS and AGS lawyers to act SECT 55Q AGS lawyers (1) An AGS lawyer acting in that capacity is entitled:

(a) to do everything necessary or convenient for that purpose; and

(b) to practise as a barrister, solicitor, or barrister and solicitor in any court and in any State or Territory; and

(c) to all the rights and privileges of so practising;

(2) An AGS lawyer acting in that capacity in a State or Territory is not subject to a law of a State or Territory that relates to legal practitioners except to the extent that such laws:

(a) impose rights, duties, or obligations on legal practitioners in relation to their clients or to the courts; or

(b) provide for disciplinary proceedings in relation to the misconduct of legal practitioners.

(4) In considering the nature of the rights, duties and obligations of an AGS lawyer in relation to a client, regard must be had to the lawyer's position as an employee of the AGS.

(5) Neither the AGS, nor an AGS lawyer acting in that capacity, is subject to a law of a State or Territory that is prescribed for the purposes of this section.

SECT 55R AGS may act for more than one party The AGS may act in a matter for 2 or more parties who have conflicting interests in the matter if to do so has been approved by the Attorney-General:

(a) by way of approval in relation to the particular matter; or

(b) by way of written arrangements covering the circumstances in which the AGS may so act.

(2) The CEO is the director of the AGS for the purposes of the Commonwealth Authorities and Companies Act 1997 , and has the function of managing the AGS.

SECT 55T Appointment of CEO (1) The CEO is to be appointed by instrument in writing signed by the Attorney-General and the Finance Minister.

(2) The CEO must be a person whose name is on a roll referred to in subsection 55D(1).

(3) The appointment is to be on a full-time basis.

(4) The CEO holds office for a period of up to 5 years specified in the instrument of appointment, and is eligible for re-appointment.

(5) An appointment under this section is not affected by any defect or irregularity in or in connection with the appointment.

SECT 55U Terms and conditions of appointment (1) The CEO's appointment is subject to any terms and conditions set out in the instrument of appointment.

(2) The office of CEO is a principal executive office for the purposes of the Remuneration Tribunal Act 1973 .

(3) For the purposes of the Remuneration Tribunal's function of providing advice in relation to terms and conditions on which the CEO's office is held, the Tribunal is to provide the advice to the Attorney-General and the Finance Minister instead of to the bodies referred to in paragraph 5(2)(a) of the Remuneration Tribunal Act 1973 .

SECT 55V Resignation The CEO may resign from office by giving the Attorney-General and the Finance Minister a signed notice of resignation.

SECT 55W Termination of CEO's appointment The Attorney-General and the Finance Minister (acting jointly) may terminate the CEO's appointment at any time, by instrument in writing.

SECT 55X CEO must disclose interests (1) The CEO must give written notice to the Attorney-General and the Finance Minister of any interest that the CEO has or acquires if the interest could conflict with the proper performance of the CEO's functions.

(2) In subsection (1), interest is not limited to a pecuniary interest.

SECT 55Y Outside employment The CEO must not, except with the approval of the Attorney-General and the Finance Minister (acting jointly), engage in paid employment outside the duties of the CEO's office.

SECT 55Z Acting CEO (1) The Attorney-General and the Finance Minister (acting jointly) may appoint a person to act as CEO:

(a) if there is a vacancy in the office of CEO, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when the CEO is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(c) the appointment had ceased to have effect; or

(d) the occasion to act had not arisen or had ceased.

SECT 55ZB Staff and consultants (1) The CEO may, on behalf of the AGS, employ persons as staff of the AGS.

(2) The terms and conditions of employment of staff are to be determined by the CEO in writing.

(3) The CEO may, on behalf of the AGS, engage persons as consultants to provide services to the AGS.

Division 5--Money SECT 55ZC Exemption from State and Territory taxation The AGS is not subject to taxation under a law of a State or Territory other than a law prescribed for the purposes of this section.

SECT 55ZD AGS must make tax-equivalent payments to the Commonwealth (1) The Attorney-General and the Finance Minister (acting jointly) may inform the CEO in writing of arrangements that are to apply to the AGS in relation to a tax-equivalent payment to be made by the AGS to the Commonwealth in respect of each financial year.

(2) The amount of the payment to be made under the arrangements is to be worked out having regard to the purpose of ensuring that the AGS does not enjoy net competitive advantages over its competitors because of:

(a) the operation of section 55ZC (exemption from State and Territory taxation); or

(b) any other exemption from taxation liability applying to the AGS.

SECT 55ZE Corporate governance requirements (1) The Attorney-General and the Finance Minister (acting jointly) may, after consultation with the CEO, inform the CEO in writing of corporate governance arrangements that are to apply to the AGS.

(2) If so informed, the CEO must ensure that the AGS complies with the arrangements.

(3) Without limiting subsection (1), corporate governance arrangements may require the AGS:

(a) to pay a dividend to the Commonwealth in respect of a period specified in the arrangements; or

(b) to make a payment of a specified amount to the Commonwealth for the purpose of ensuring that the AGS does not enjoy net competitive advantages over its competitors by virtue of its public sector ownership.

Part VIIIC--Attorney-General's Legal Services Directions SECT 55ZF Attorney-General may issue directions (1) The Attorney-General may issue directions ( Legal Services Directions ):

(a) that are to apply generally to Commonwealth legal work; or

(b) that are to apply to Commonwealth legal work being performed, or to be performed, in relation to a particular matter.

(3) In this section:

Commonwealth legal work means:

(a) any work performed by or on behalf of the AGS in the performance of its functions; or

(b) any legal work performed by a person for any of the following:

(i) the Commonwealth;

(ii) a body established by an Act or regulations or by a law of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island);

(iii) a company in which the Commonwealth has a controlling interest (including a company in which the Commonwealth has a controlling interest through one or more interposed Commonwealth authorities or Commonwealth companies);

(iv) other persons or bodies referred to in subsection 55N(1), to the extent that the work relates to the person's or body's performance of a Commonwealth or Territory function.

(a) a person or body referred to in subsection 55N(1);

(b) a person or body referred to in subsection 55N(2), in relation to a matter, if the AGS is acting for the person or body in that matter;

(c) a person or body in respect of whom the Attorney-General has made a request under subsection 55N(3), in relation to a matter, if the AGS is acting for the person or the body in that matter;

(d) a person or body in respect of whom the CEO has made a determination under subsection 55N(4), in relation to a matter, if the AGS is acting for the person or body in that matter;

(e) the AGS;

(f) a legal practitioner or firm of legal practitioners, in relation to a matter, if the legal practitioner or firm is acting for a person or body referred to in subsection 55N(1) in that matter.

(3) The issue of non-compliance with a Legal Services Direction may not be raised in any proceeding (whether in a court, tribunal or other body) except by, or on behalf of, the Commonwealth.

SECT 55ZH Legal Services Directions and legal professional privilege (1) If a Legal Services Direction requires a person to provide any information, or produce a document or record, to another person, the person must not refuse to comply with the Direction on the ground of legal professional privilege or of any other duty of confidence.

(2) A person performing Commonwealth legal work (within the meaning of subsection 55ZF(3)) may provide information or produce a document or record relating to that work to the Attorney-General or to a person authorised by the Attorney-General for that purpose.

(3) If:

(a) a person provides information or produces a document or record under subsection (2); and

(b) the person would, apart from this subsection, be breaching legal professional privilege or any other duty of confidence in so doing;

(4) If a communication that is the subject of legal professional privilege is disclosed under subsection (1) or (2), then, in spite of the disclosure, privilege is taken not to have been waived in respect of the communication.

SECT 55ZI Anything done under Legal Services Directions not actionable (1) The Attorney-General is not liable to an action or other proceeding, whether civil or criminal, for or in relation to an act done or omitted to be done in compliance, or purported compliance, with a Legal Services Direction.

(2) A person (other than the Attorney-General) is not liable to an action or other proceeding, whether civil or criminal, for or in relation to an act done or omitted to be done by the person in compliance, or in good faith in purported compliance, with a Legal Services Direction.