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2002

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Parliament of Tasmania

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SOLICITOR-GENERAL

 

REPORT FOR 2001-02

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

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I   OVERVIEW

The past year has seen a significant increase in the number of advisings provided by my office (some of which have been of considerable complexity); some increase in the number of Notices under S.78B of the Judiciary Act which have required consideration; and a very dramatic increase in the "legal education" program which my staff and I have developed and delivered to State Agencies and instrumentalities to assist them with understanding and early recognition of legal issues so as to minimise exposure of the Crown to legal risk. Once again, my staffing complement has remained unchanged and their professionalism and dedication has enabled me to accommodate the increased workload whilst maintaining what is by any yardstick a rapid response rate with a high degree of accuracy.

II   THE FUNCTIONS OF THE SOLICITOR-GENERAL

It is probably timely that I should restate my functions, as I have this year had an unusually high number of requests for legal advice and guidance, which I have been obliged to reject, coming from persons unrelated to the Crown.

Since 1983, the role of the Solicitor-General in Tasmania has been a statutory one, governed by the Solicitor-General Act of that year. By Section 7 of the Act, the Solicitor-General has and shall exercise the following functions:

(a) to act as counsel for the Crown in right of Tasmania or for any other person for whom the Attorney-General directs or requests him to act;

(b) to perform such other duties ordinarily performed by counsel as the Attorney-General directs or requests him to perform; and

(c) to perform such duties (if any) as are imposed upon him by or under any other Act.

By Section 8 of the Act, the Attorney-General may delegate to the Solicitor-General responsibility for the performance or exercise of any function or power (other than the power of delegation) which may be performed or exercised by the Attorney-General under the laws of Tasmania, except in the case that a particular statute contemplates that the relevant function or power of the Attorney-General may be delegated to the holder of another office. In the event, I have held no delegation from the Attorney-General in the year under review.

The foregoing are the sum total of my functions, and in terms of work as counsel, the practical division of responsibility between myself and the Director of Public Prosecutions means that I undertake only the constitutional litigation of the Crown; matters on brief from the Commonwealth Attorney-General’s office arising under the Hague Convention on the Civil Aspects of International Child Abduction; and legal argument in civil matters if and when called upon by the Director of Public Prosecutions.

It is no part of my function to advise the private sector (whether directly or through Agencies of the Crown) except in very special cases in which the Attorney-General has directed or requested me to do so. Nor should that be my function, given the scope for conflict of interest which that would create. Nevertheless, quite a number of approaches are received from members of the public — no doubt through lack of understanding of my role — for advice on a large range of issues, some of which involve the Crown and some of which do not. They are consistently rejected with appropriate explanation and an attempt to identify a source for the assistance sought. On a few occasions the explanation of my position has been met with surprise, as apparently in some cases people had been referred to me by Agencies or instrumentalities of the Crown! Where this has happened I have endeavoured to ensure that the referrer is enlivened to the proper course to take where third parties who are independent of the Crown need legal advice.

III   ADMINISTRATIVE ISSUES

There is nothing remarkable to report in this respect. Day-to-day administrative matters have again been competently handled by the Manager of Crown Law, Tracey Rodgers, and the office has ended the year on budget. Information technology is becoming an ever more important tool in enabling me to maintain a prompt and accurate turn-around of properly researched advisings, and systems upgrading is planned for the year ahead. Every advising given is retained on a separate electronic database which can be word searched, giving almost instantaneous access to every advising which the office has produced since 1997, and to principal advisings for 25 years prior to that.

The amalgamation of the DM Chambers Library (located on Level 8 of the Executive Building) with the Southern Law Library has seen the establishment of a publicly accessible law library at the Supreme Court building in Salamanca Place, which is known as the Andrew Inglis Clark Law Library. Some of the DM Chambers collection has been transferred to that library, but an adequate core working collection of statutes, law reports, journals and texts has been retained in the DM Chambers Library, to which has been added two interview/conference rooms, which will prove a valuable adjunct both for myself and the Director of Public Prosecutions.

IV   PROFESSIONAL

Advisings

The attached schedule sets out in the usual format the number and spread of advisings for the year. It will be noted that the spread is substantially the same as in recent years, but with appreciable increases in demand from those Agencies which use our services most frequently.

Constitutional Matters

Once again, there were no proceedings in the High Court last year in which Tasmania was a party which gave rise to constitutional issues. The number of Notices received under S.78B of the Judiciary Act increased for the year from 274 to 290, but only two gave rise to intervention by Tasmania — one involving myself as counsel and one in which we joined in a submission being put by the Solicitor-General of South Australia. Of the other matters, most had no direct significant potential impact for Tasmania, whilst in relation to the few that did I was of the view that any argument that we might have put was being adequately advanced by others.

Other Appearances

I have provided counsel to prepare and appear in a variety of litigious and quasi-litigious matters on instructions from the Director of Public Prosecutions and on a continuing basis on brief from the Commonwealth under the Hague Convention on the Civil Aspects of International Child Abduction.

V   LEGAL INFORMATION SEMINARS

Perhaps the most dramatic and pleasing part of the year from my perspective was the demand for and response to my offer to conduct legal information seminars for appropriate officers and employees of Agencies and instrumentalities of the Crown. In the event, no less than 22 well-attended seminars were held on topics chosen by the Agencies and instrumentalities concerned. My impression is that they were enthusiastically received, and certainly I have already received many requests for new and/or repeat seminars in the year ahead. So far, all but two Agencies have participated in this program.

I have no doubt at all that a better understanding by all levels of management of the legal issues that arise in relation to what Government does, and of the legal consequences which flow from not addressing those issues properly at the outset, is an important part not only of good service delivery by the Crown but also of efficient management of the State’s exposure to risk — a matter which, with the recent problems flowing from huge increases in public liability insurance premiums — is both well known and deserving of careful attention.

VI   SPECIAL COMMITTEE OF SOLICITORS-GENERAL

This Committee again met as required to address matters referred for its consideration by the Standing Committee of Attorneys-General and to deal with other issues falling for its consideration. The nature of the issues dealt with make it inappropriate that I should discuss here the work which it did or the advice which it has given, save to say that I sometimes suspect that SCAG as a body does not always give to the considered advice of the Solicitors-General the weight which it deserves.

VII   SUMMARY

Fast and accurate legal advice unencumbered by political or policy considerations is a critical weapon in the armoury employed by government to make wise judgments and avoid unnecessary exposure to legal risk. I have no doubt that this is the sort of advice which Government has continued to receive in the year under review, and will continue to receive at least for so long as I am able to retain my present staffing complement.

 

WCR BALE QC

SOLICITOR-GENERAL

 

SCHEDULE OF ADVISINGS

Agencies(including Statutory Authorities) Number Provided

Education 86
Health and Human Services 147
Infrastructure, Energy and Resources 131
Justice and Industrial Relations 177
Miscellaneous  5
Police and Public Safety 15
Premier and Cabinet 58
Primary Industries, Water and Environment 494
Retirement Benefits Fund Board 26
State Development 42
Treasury and Finance 90
Other bodies and offices 159

TOTAL 1430

 

Section 78b Notices           290