2004

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PARLIAMENT OF TASMANIA
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SOLICITOR-GENERAL

REPORT FOR 2003-2004

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

I    OVERVIEW

As can be seen from the figures scheduled to this report, the high level of advisings called for from this Office has continued and been met. As at the time of dictation the general turnaround time for advisings is less than 7 days, and urgent advice is provided within 24 hours. That this is achievable, given the volume of demand, is largely attributable to the fact that, once again, there has been no change in my support staff in the year under review, and I again at the outset of this report place on record my indebtedness, and thus that of Agencies and Instrumentalities of the Crown generally, to them for their expertise, professionalism and capacity to produce quality work in volume, often under considerable pressure.

II    THE FUNCTIONS OF THE SOLICITOR-GENERAL

It is appropriate in reporting to re-state my functions.

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. No new delegation from the Attorney-General was made in the year under review.

In a practical sense, apart from the role of the Second Law Officer in this State as the senior practising legal adviser to the Crown in right of the State (in all its manifestations), my work involves my undertaking litigation for the Crown which involves constitutional issues; undertaking on brief from the Commonwealth Attorney-General’s Office matters arising under the Hague Convention on Civil Aspects of International Child Abduction; and appearing as Counsel in civil matters if requested to do so by the Director of Public Prosecutions.

I have no role in advising 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 to which that would give rise. I continue to receive periodically from members of the public requests for advice on a variety of issues. These are consistently rejected with an explanation of my role and suggestions as to appropriate sources for the legal assistance sought.

III    PROFESSIONAL

Advisings

As the schedule to this report indicates, the number and spread of advisings has changed little from the preceding year. The advisings recorded are only those given formally, and there is still a significant amount of advice which is given either by telephone or email which, if uncomplicated in nature (as such advice usually is), does not find its way into the figures.

The unabated volume of requests for advice reflects not only the constant changes in Agency and Instrumentality personnel needing legal advice, but also the increasing volume and complexity of the law which almost daily throws up legal issues which have not previously been the subject of consideration by me.

Constitutional Matters

As was the case last year, there were no proceedings in the High Court in the year under review in which Tasmania was a party and which gave rise to constitutional issues. There was the usual large number of Notices received pursuant to Section 78B of the Judiciary Act, but only one gave occasion for Tasmania to mount an intervention. A decision in that matter is presently reserved. In all other matters in which Notices were received, they either had no direct significance for Tasmania or any argument that I might have advanced on behalf of the State was adequately addressed in the pre-circulated submissions of others.

Other Appearances

Ms Lighton again appeared on behalf of the Director of Public Prosecutions on a number of occasions before the Crown Lands Shack Sites Commissioner to present the case for the Crown upon the hearing of appeals from determinations made under S.4(1) of the Crown Lands (Shack Sites) Act. As anticipated in my last report, all pending appeals have now been heard and decisions given, although it would appear that there are some determinations yet to be made and it is possible that they could give rise to further appeals.

Mr Allston and Ms Prideaux both acted in matters arising under the Hague Convention on the Civil Aspects of International Child Abduction (in each case on brief from the Commonwealth) and Mr Allston has also, on brief from the Director of Public Prosecutions, appeared on matters relating to the application of the State Service Act and the Environmental Management and Pollution Control Act. As well, he has appeared before the Resource Management Planning Appeals Tribunal on planning matters and resource management matters.

IV    LEGAL INFORMATION SEMINARS

I chose this year not to push a further round of these seminars, on the basis that Agencies had been fairly comprehensively catered for in the preceding 2 years, whereby it seemed worthwhile to have a year’s break in order to minimise repetitive instruction on basic legal issues and concepts to essentially the same group of people.

There has nevertheless been a number of requests for focused presentations, and these have been met. Staff turnover within the State Service will have continued, so that in the year ahead I propose to be more proactive once again, as I remain convinced that to inculcate lay staff — especially those at a more senior level — with a basic understanding of the essential legal concepts which underlie many of the issues which daily confront them can only be of benefit to them in the work that they do, thus of advantage to the State in managing its exposure to risk.

V    SPECIAL COMMITTEE OF SOLICITORS-GENERAL

The Committee met twice in the period under review to consider matters referred for its attention by the Standing Committee of Attorneys-General and as well other legal issues of national consequence — often issues raised in the context of pending litigation. As well as dealing with issues at formal meetings, matters can (and did) arise between meetings and, because of their nature and/or urgency, were dealt with out of session. As always, it is inappropriate that I should report in any detail here upon the work of the Committee.

VI    ADMINISTRATIVE ISSUES

The Manager of Crown Law, Tracey Rodgers, received a higher appointment within the State Service in the course of the year, and I would like to record my appreciation for the contribution which she made over a number of years in developing the role of the Crown Law Manager; modernising the practices of the Office; and somehow keeping us within our meagre budget.

We have been very fortunate to gain as her successor Kerry Worsley, enticed from the Supreme Court (with appropriate apologies to it). She has continued to build on Tracey’s good work, and I am confident that administratively the Office is in good hands. Any further comment which is appropriate on administrative matters will be found in the Crown Law section of the Department of Justice report.

VII    SUMMARY

I can do no better in summary than repeat my comment made last year that I am well satisfied that the Office continues to meet and often exceed the properly high expectations which Government, and no doubt the wider community, have of it, and can see no reason why it should not continue to do so in the foreseeable future.

WCR BALE QC
SOLICITOR-GENERAL

SCHEDULE OF ADVISINGS

Agencies (including State Authorities) Number Provided

Department of Economic Development 18
Department of Education 65
Department of Health and Human Services 196
Department of Infrastructure, Energy and Resources 101
Department of Justice 162
Department of Police and Public Safety 9
Department of Premier and Cabinet 91
Department of Primary Industries, Water and Environment 410
Department of Tourism, Parks, Heritage and the Arts 50
Department of Treasury and Finance 89
Tasmanian Audit Office 1
Retirement Benefits Fund Board 16
TAFE Tasmania 8
Tasmanian Dairy Industry Authority 1
The Public Trustee 3
Other bodies and offices 108

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TOTAL ADVISINGS 1328
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Section 78b Notices 208