1999

__________________________

PARLIAMENT OF TASMANIA

__________________________

SOLICITOR-GENERAL

REPORT FOR 1999-2000

________________

Presented to both Houses of Parliament pursuant to Section 11 of the Solicitor-General Act 1983

_______________________

SOLICITOR-GENERAL REPORT FOR 1999/2000

I      OVERVIEW

The year in review has been an unexceptional one, despite the additional pressures created by my having made available my senior professional assistant to support counsel assisting the Commission of Inquiry into the "Gilewicz affair". Once again, a very significant number of advisings has been provided across the spectrum of government activity, with all genuine requests for urgency having been accommodated. The personnel who make up my small staffing complement have remained unchanged, and their consistent and enthusiastic input has enabled me to maintain (and I hope often exceed) the standards which the State is entitled to expect from the Office.

II      ADMINISTRATIVE ISSUES

As well as having continued to hold office as Crown Solicitor throughout the year, I for 3 months acted as Director of Public Prosecutions following Damian Bugg’s departure to take up his appointment as Commonwealth Director of Public Prosecutions and pending the arrival of his successor, Tim Ellis. Those roles, of course, made additional demands on my time from the perspective of administration in the context of professional staff, but other administrative issues have been most competently addressed by the Manager of Crown Law — initially Brian Gallagher and for most of the year by his successor, Tracey Rodgers.

The appointment of a Manager for Crown Law, now almost 2 years since its introduction, has proved to be of significant benefit in the administration of the professional offices which together make up Crown Law, to the benefit of efficiency, economy and professionalism.

I would expect to be able to apply my energies full-time to the Office of Solicitor-General when the new Crown Solicitor, Cameron Leslie, takes office on 17 July.

III      PROFESSIONAL

Advisings

The attached schedule shows the number and spread of advisings for the year past. The very high level of demand from the Department of Primary Industries, Water and Environment reflects the significant number of fisheries issues which arose during the year, together with an unprecedented level of enquiries in relation to water management in the State in the run-up to and subsequent to the coming into effect of the Water Management Act.

Constitutional Matters

In my last year’s Report I referred to two matters which were pending before the High Court in which Tasmania had an involvement. One was Mr Hollier’s application for special leave to appeal to the High Court in respect of the termination of his occupation of Deal Island, and the other was the action involving the rights which Tasmania had acquired in the cultivar Franklin Barley under the provisions of the Plant Varieties Rights Act and more recently the Plant Breeders Rights Act. I am able to report success with our arguments in both those proceedings. Mr Hollier’s application for special leave to appeal was rejected, and the court dismissed the challenge to the validity of the Commonwealth Acts under which Tasmania had acquired its legal rights to prevent the unauthorised commercial exploitation of the cultivar which it had developed. Unfortunately, the decision of the High Court did not resolve all the issues that are in contention in the latter proceedings, and two actions are still continuing in the Federal Court. They may or may not give rise to additional constitutional issues.

Further, as appears from the schedule, an unprecedented number of Notices under Section 78B of the Judiciary Act were received, although few of them gave rise to issues in which it was appropriate for Tasmania to intervene. That was either because the determination of the constitutional issues was not seen as having any significant impact upon Tasmania, or because I was satisfied that any arguments that Tasmania would have wished to put in the proceedings would be adequately advanced by others who were appearing.

One constitutional matter in respect of which Tasmania did intervene in the High Court arose in Pfeiffer v Rogerson, the important issue in question being the law to be applied where a tort committed in one State was being litigated in another. With others, Tasmania successfully argued the proposition that the law of the place in which the events giving rise to the claim occurred should apply wherever the claim is tried, both on questions of liability and of damage.

The long-term implications of the decision of the High Court in relation to cross-vesting (Wakim) are the subject of ongoing debate, and a permanent resolution has yet to be determined. A recent decision of the High Court in Hughes has highlighted some further problems in relation to cooperative schemes between the States and the Commonwealth, particularly in the area of Corporations Law. The Special Committee of Solicitors-General is currently preparing advice for the Standing Committee of Attorneys-General on the most pressing of the issues involved here.

Once again, this Office has provided counsel to prepare and appear in a variety of litigious and quasi-litigious matters (on instructions from the Director of Public Prosecutions) and in matters arising under the Hague Convention on the civil aspects of child abduction (on instructions from the Commonwealth).

IV      SPECIAL COMMITTEE OF SOLICITORS-GENERAL

This Committee has continued to meet periodically to address matters referred for its consideration by the Standing Committee of Attorneys-General and to deal with others matters of broad legal interest and concern which have fallen for its consideration. The Committee interacts with and reports to SCAG in relation to its activities. As foreshadowed earlier in this Report, those matters of greatest concern in the year under review, apart from the discussion of constitutional issues in pending cases, have been the identification of mechanisms for addressing the problems thrown up by the decisions of the High Court in Wakim and Hughes.

V      SUMMARY

Government activity undertaken against the background of advice from this Office has almost always been completed without legal problems. The fact that this has occurred for at least the last 14 years to my personal knowledge denies the possibility of coincidence, and attests the wisdom of government policy that Agencies and instrumentalities be encouraged to obtain "pre-emptive" advice by not having to pay a fee for it. There is, I believe, an increasing tendency to obtain this sort of advice, which means that I am less frequently having to give "remedial" advice. This is a positive trend for government and hopefully will continue.

WCR BALE QC

SOLICITOR-GENERAL

AGENCIES (including Statutory Authorities)                           Number Provided

Education 89
Health and Human Services 137
Infrastructure, Energy and Resources 93
Justice and Industrial Relations 133
Miscellaneous 160
Police and Public Safety 10
Premier and Cabinet 47
Primary Industries, Water and Environment 427
Retirement Benefits Fund Board 2
State Development 29
Treasury and Finance 44

___________
TOTAL 1171
___________

Section 78b Notices 274