Judiciary Amendment Act 1999

No. 7, 1999

An Act to amend the Judiciary Act 1903, and for related purposes

[Assented to 31 March 1999]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Judiciary Amendment Act 1999.

2 Commencement

(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(2) Subject to subsection (3), the items of Schedules 1, 2 and 3 commence on a day or days to be fixed by Proclamation.

(3) If an item to which subsection (2) applies does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3 Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment of the Judiciary Act 1903

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;

(d) a barrister and solicitor.

4 Sections 55E, 55F and 55G

Repeal the sections, substitute:

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.

(2) An Attorney‑General’s 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

whether or not he or she is so entitled apart from this subsection.

(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.

(4) Subsection (3) is subject to subsection (6) and to section 55F (Attorney‑General’s lawyer may act for more than one party).

(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.

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.

55G Commonwealth may charge for services of Attorney‑General’s lawyer

(1) The Commonwealth may charge fees:

(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.

(2) If the Commonwealth has charged a client an amount under subsection (1), the amount may be recovered by the client as costs incurred by the client.

5 After Part VIIIA

Insert:

Part VIIIB—The Australian Government Solicitor

Division 1—Definitions

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).

CEO means the Chief Executive Officer of the AGS.

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

55J Establishment of the Australian Government Solicitor

This Division establishes the Australian Government Solicitor.

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.

55L Powers

(1) The AGS has power to do all things necessary or convenient to be done for or in connection with the performance 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;

(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.

55M Constitution

The AGS:

(a) is a body corporate; and

(b) may have a seal; and

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.

55N Persons and bodies for whom the AGS may provide services

(1) In performing its functions, the AGS may provide services to the following:

(a) the Commonwealth;

(b) a person suing or being sued on behalf 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).

(2) In performing its functions, the AGS may provide services to the following persons and bodies if the AGS receives a request to do so from the executive government of the State concerned or of Norfolk Island (as the case requires):

(a) a State or Norfolk Island;

(b) a person suing or being sued on behalf of a State or 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.

(3) The AGS may provide services to a person or body, or class of persons or bodies, not referred to in subsection (1) or (2) if:

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

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

(4) The AGS may provide services to a person or body, or class of persons or bodies, not referred to in subsection (1) or (2) if:

(a) the CEO so determines; and

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

(5) In this section:

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

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.

(2) If the AGS has charged a client an amount under subsection (1), the amount may be recovered by the client as costs incurred by the client.

Division 3—Capacity of AGS and AGS lawyers to act

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

whether or not he or she is so entitled apart from this subsection.

(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.

(3) Subsection (2) is subject to subsection (5) and to section 55R (AGS may act for more than one party).

(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.

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.

Division 4—Appointment and terms and conditions of CEO and staff

55S Chief Executive Officer of the AGS

(1) There is to be a Chief Executive Officer (the CEO) of the AGS.

(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.

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.

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.

55V Resignation

The CEO may resign from office by giving the Attorney‑General and the Finance Minister a signed notice of resignation.

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.

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.

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.

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.

(2) Anything done by or in relation to a person purporting to act under this section is not invalid merely because:

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

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

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

55ZA Delegation

The CEO may delegate to an employee of the AGS all or any of the CEO’s powers.

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

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.

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.

(3) The AGS must pay the amount to the Commonwealth within 4 months after the end of the financial year concerned, unless the Attorney‑General and the Finance Minister (acting jointly) determine a period other than 4 months within which the amount, or a specified part of the amount, must be paid.

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.

(4) The AGS must pay to the Commonwealth any amount required to be paid under this section.

Part VIIIC—Attorney‑General’s Legal Services Directions

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.

(2) The Attorney‑General may publish or give notice of Legal Services Directions in any manner the Attorney‑General considers appropriate.

(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.

55ZG Compliance with Legal Services Directions

(1) The following persons or bodies must comply with Legal Services Directions that have been published and with Legal Services Directions of which the person or body has been notified:

(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.

(2) Compliance with a Legal Services Direction is not enforceable except by, or upon the application of, the Attorney‑General.

(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.

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;

the person is taken, for all purposes, not to have breached legal professional privilege or the duty of confidence in so providing the information or producing the document or record.

(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.

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.

Schedule 2—Transitional provisions

1 Definitions

In this Schedule:

AGS means the Australian Government Solicitor established under the Judiciary Act 1903.

commencement time means the time when this Schedule commences.

former AGS means the Australian Government Solicitor established under the Judiciary Act 1903 as in force immediately before the commencement of Schedule 1.

2 AGS successor in law

(1) The AGS is the successor in law of the former AGS.

(2) Without limiting subitem (1), if:

(a) the former AGS was acting in relation to a matter before the commencement time; and

(b) the matter continues after the commencement time;

the AGS is taken to be substituted for the former AGS, for all purposes, in relation to the matter and all references to the former AGS in relation to the matter are taken to be references to the AGS.

3 Business of former AGS

At the commencement time, the business of the former AGS becomes the business of the AGS.

4 Existing conditions of staff

An officer or employee within the meaning of the Public Service Act 1922 transferred to the AGS under section 81C of that Act is to be employed on terms and conditions no less favourable than applied to the officer or employee immediately prior to his or her transfer.

5 Attorney‑General may transfer Commonwealth assets to new AGS

(1) The Attorney‑General may, by writing, make any or all of the following declarations:

(a) a declaration that a specified asset of the Commonwealth vests in the AGS at a specified time without any conveyance, transfer or assignment;

(b) a declaration that a specified instrument in relation to a specified asset continues to have effect after the asset vests in the AGS as if a reference in the instrument to the Commonwealth were a reference to the AGS;

(c) a declaration that the AGS becomes the Commonwealth’s successor in law in relation to a specified asset immediately after the asset vests in the AGS.

(2) A declaration has effect accordingly.

(3) Subitem (1) does not prevent the Commonwealth from transferring an asset to the AGS otherwise than under that subitem.

6 Attorney‑General may transfer Commonwealth liabilities to new AGS

(1) The Attorney‑General may, by writing, make any or all of the following declarations:

(a) a declaration that a specified liability ceases to be a liability of the Commonwealth and becomes a liability of the AGS at a specified time;

(b) a declaration that a specified instrument relating to a specified liability continues to have effect after the liability becomes a liability of the AGS, as if a reference in the instrument to the Commonwealth were a reference to the AGS;

(c) a declaration that the AGS becomes the Commonwealth’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the AGS.

(2) A declaration has effect accordingly.

(3) Subitem (1) does not prevent the Commonwealth from transferring a liability to the AGS otherwise than under that subitem.

7 Transfer of records

(1) The Secretary to the Attorney‑General’s Department may transfer to the AGS records of the Commonwealth that relate to the functions of the AGS.

(2) In this item:

record has the same meaning as in the Archives Act 1983.

8 Regulations

(1) The Governor‑General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) Without limiting subitem (1), regulations may be made in relation to transitional matters arising out of the abolition of the former AGS or otherwise arising out of the enactment of this Act.

Schedule 3—Consequential amendments

Aboriginal Councils and Associations Act 1976

1 Subsection 27(5)

Omit all the words from and including “Secretary” to and including “Judiciary Act 1903”, substitute “Registrar”.

2 Subsection 27(5)

Omit “Secretary or by a person so authorized”, substitute “Registrar”.

Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987

3 Subsection 10(1)

Omit all the words from and including “Secretary” to and including “Judiciary Act 1903”, substitute “Chief Executive Officer of the Aboriginal and Torres Strait Islander Commission”.

4 Subsection 10(1)

Omit “Secretary or a person so authorised”, substitute “Chief Executive Officer of the Aboriginal and Torres Strait Islander Commission”.

Administrative Decisions (Judicial Review) Act 1977

5 At the end of Schedule 1

Add:

; (za) decisions under Part VIIIB of the Judiciary Act 1903 (which relates to the Australian Government Solicitor).

Defence (Visiting Forces) Act 1963

6 Subsection 28(1)

Repeal the subsection, substitute:

(1) The Attorney‑General may, in relation to a matter, or to a State, Territory or other part of Australia, delegate in writing all or any of the Attorney‑General’s powers and functions under this Act to an officer holding or performing the duties of a Senior Executive Service office in the Attorney‑General’s Department.

7 Subsection 28(2)

Repeal the subsection.

Director of Public Prosecutions Act 1983

8 Paragraph 11(1)(b)

Omit “a person authorized under subsection 55E(4) of the Judiciary Act 1903”, substitute “the Chief Executive Officer of the Australian Government Solicitor”.

9 Paragraph 15(1)(f)

Repeal the paragraph, substitute:

(f) by the Australian Government Solicitor.

10 Subsection 15(2)

Repeal the subsection.

11 Subsection 15(3) (definition of prescribed person)

Repeal the definition.

12 Subsection 32(1)

Omit all the words from and including “Secretary” to and including “Judiciary Act 1903”, substitute “Chief Executive Officer of the AGS for the AGS”.

13 Paragraph 32(1)(a)

Omit “relevant person”, substitute “AGS”.

14 Paragraph 32(1)(b)

Repeal the paragraph.

15 Subsection 32(3)

Omit all the words from and including “a person” to and including “Department” (first occurring), substitute “the AGS”.

16 Paragraph 32(3)(b)

Omit all the words after “arrangement” (second occurring).

17 At the end of section 32

Add:

(4) In this section:

AGS has the meaning it has in Part VIIIB of the Judiciary Act 1903.

Note: The heading to section 32 is altered by omitting “Crown Solicitor” and substituting “the Australian Government Solicitor”.

Freedom of Information Act 1982

18 Part I of Schedule 2

Insert in its appropriate alphabetical position:

Australian Government Solicitor

19 Division 1 of Part II of Schedule 2 (at the end of the entry for the Attorney‑General’s Department)

Add “and in relation to documents in respect of commercial activities undertaken by the Australian Government Solicitor”.

20 Division 1 of Part II of Schedule 2 (entry for the Australian Government Solicitor)

Repeal the entry.

Lands Acquisition Act 1989

21 Subsections 38(1) and 51(1), subparagraphs 55(2)(e)(ii) and 65(1)(b)(ii) and subsection 123(3)

Omit all the words from and including “Secretary” to and including “Judiciary Act 1903”, substitute “Secretary to the Department”.

22 Section 87

Omit all the words from and including “Secretary” to and including “Judiciary Act 1903” (wherever occurring), substitute “Secretary to the Department”.

23 Subparagraph 87(1)(d)(ii)

Omit “or a person so authorised”.

Lands Acquisition (Northern Territory Pastoral Leases) Act 1981

24 Subsection 9(1)

Omit all the words from and including “Secretary” to and including “Judiciary Act 1903”, substitute “Secretary to the Department”.

25 Subsection 9(1)

Omit “or by a person so authorized”.

National Parks and Wildlife Conservation Act 1975

26 Section 8

Omit all the words from and including “Secretary” to and including “Judiciary Act 1903”, substitute “Director”.

27 Section 8

Omit “Secretary or by a person so authorized”, substitute “Director”.

Northern Territory (Self‑Government) Act 1978

28 Subsection 70(7)

Omit all the words from and including “Secretary” to and including “Judiciary Act 1903”, substitute “Secretary to the Department”.

29 Subsection 70(7)

Omit “or by a person so authorized”.

[Minister’s second reading speech made in—

House of Representatives on 3 December 1998

Senate on 15 February 1999]

(196/98)