PARLIAMENT OF TASMANIA
Presented to both Houses of Parliament pursuant to Section 11of the Solicitor-General Act 1983
Although there was a drop last year on the record number of advisings provided by my office in the previous year, the output of the office has not diminished (explained later in this report) and the “Legal Education” program which we instigated last year to assist Agencies to understand and recognise legal issues and thereby lessen the risk of exposure of the Crown to legal liability has proved evermore popular. No doubt the fact that, for yet another year, there has been no change in my support staff has contributed materially to the volume and speed of the output which the office has been able to achieve, and I recognise with pride the expertise and professionalism of those who make up my team.
For the information of those who might be reading a Solicitor-General Annual Report for the first time, I will once again set out 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. 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 not 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. Despite that, in the year under review I once again received a number of requests from members of the public (no doubt through lack of understanding of my role) for advice on diverse issues. As in the past, these were rejected with appropriate explanation of my role and suggestions as to potential sources for the legal assistance needed.
There were few administrative issues of consequence in the year just passed. Once again, the Manager of Crown Law, Tracey Rodgers, oversaw all aspects of office administration and, as was to be expected, we came in virtually on budget. Some information systems upgrading has been undertaken, but unfortunately it has brought with it some unforeseen problems, most particularly in that it has made the transfer for permanent storage of electronic communications received much more cumbersome and time-consuming. Worse still, some earlier material that was electronically stored is now inaccessible. No economical solution has thus far been presented by our consultants, which is as disappointing as the “upgraded” process is frustrating and inefficient. On the credit side, the electronic database for advisings continues to expand, and is a most valuable tool in ensuring speed and consistency in the provision of advice.
I suspect that maintenance of the collection of the D M Chambers division of the Andrew Inglis Clark Law Library has suffered somewhat because of the demands placed upon Library staff in the establishment of the principal Library, but I am satisfied that steps are in hand which will see gaps which have developed in the D M Chambers collection filled in the near future.
The two new interview/conference rooms which became available in consequence of the changes in the Library structure and about which I reported last year have proved a valuable asset, particularly in the context of presentation of seminars and the preparation for long and difficult trials. They are now in nearly constant use.
The schedule to this report sets out the number and spread of advisings provided in the year under review. You will note that the spread is substantially the same as in previous years and, although it is not susceptible to detailed analysis, it would appear that the drop in the number of advisings recorded is not through any lessening in demand, but rather because, with the increased use of email to seek and provide advice, there are a significant number of opinions which were previously recorded as advisings but which now, where they do not contain matter which needs the ready accessibility afforded by the electronic advisings database, are simply recorded as correspondence. This may occur, for example, where the advising was a relatively simple one which essentially reiterated an opinion previously provided.
Once again, there were no proceedings in the High Court last year in which Tasmania was a party and which gave rise to constitutional issues. There was a notable increase in the number of Notices received under S.78B of the Judiciary Act, but none provided sufficient occasion for Tasmania to mount an independent intervention. This was because they either had no direct significant potential impact for Tasmania or any argument that might usefully have been put on your behalf was already being adequately advanced by others.
Ms Perring of this Office appeared on behalf of the Director of Public Prosecutions on a number of occasions during the year 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, and there are a number of appeals still to be heard. Hopefully this part of that statutory process will conclude by the time I report next. This office has also continued to act on brief from the Commonwealth in matters arising under the Hague Convention on the Civil Aspects of International Child Abduction.
Twenty-six seminars were presented this year, an increase of four on the very encouraging response received in the first year of the program. There is now only one Agency which has not participated in that program. Once again, the response has been uniformly enthusiastic, with a number of Agencies and Instrumentalities subsequently seeking and distributing to officers and employees the written material upon which seminars have been based.
As I said last year, I have no doubt that a better understanding at all levels of bureaucracy of the legal issues that arise in relation to what Government does, and 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. I also have no doubt that, in dealing with topics chosen by the Agencies and Instrumentalities to which seminars have been presented, many misconceptions have been put to rest and many previously-unrecognised issues have come to light. The result can only be positive.
This Committee again met from time to time to address not only matters referred for its attention by the Standing Committee of Attorneys-General but also other legal issues of national consequence which have periodically arisen. Once again, the nature of the issues dealt with is such that it is inappropriate that I should canvass the work of the Committee in any detail in this report.
I am well satisfied that the office continues to meet and often exceed the properly high expectations which the community has of it and should continue to do so for the foreseeable future.
WCR BALE QC
AGENCIES (including State Authorities) NUMBER PROVIDED
Department of Economic Development 37
Department of Education 48
Department of Health and Human Services 155
Department of Infrastructure, Energy and Resources 85
Department of Justice and Industrial Relations 184
Department of Police and Public Safety 11
Department of Premier and Cabinet 67
Department of Primary Industries, Water and Environment 376
Department of Tourism, Parks, Heritage and the Arts 57
Department of Treasury and Finance 97
Tasmanian Audit Office 1
Port Arthur Historic Site Management Authority 1
Retirement Benefits Fund Board 25
TAFE Tasmania 7
Tasmanian Dairy Industry Authority 1
The Public Trustee 7
Other bodies and offices 60
TOTAL ADVISINGS 1219
SECTION 78B NOTICES 353