Explanatory Memorandum
(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)Schedule 1 - amendment of the Judiciary Act 1903
17. Schedule 1 makes amendments to the Judiciary Act.
18. Item 1 repeals the definition of 'AGS' in section 2 of the Judiciary Act and replaces it with a new definition (see Item 6 of Schedule 1 to this Bill).
19. Item 2 repeals and replaces the definition of 'AGS lawyer' in the Judiciary Act.
20. 'AGS lawyer' is defined to mean the AGS, or an employee of AGD whose name is on a roll of legal practitioners referred to in paragraph 55I(b)(i) and who ordinarily performs work for AGS clients under the supervision or direction of the AGS.
21. This definition of 'AGS lawyer' reflects the consolidation of the AGS within AGD and maintains the existing Part VIIIB requirement for AGS lawyers to be on a roll of legal practitioners.
22. The person within AGD who is the AGS will be an AGS lawyer. This means that section 55Q of the Judiciary Act applies to him or her. The AGS will provide high-level supervision and direction to other AGS lawyers.
23. The definition of 'AGS lawyer' closely mirrors the existing definition of 'Attorney-General's lawyer' contained in subsection 55E(1) of the Judiciary Act. The Act would continue to distinguish between AGS lawyers and AGD lawyers to reflect arrangements for the AGS to continue to operate under its current name and brand when consolidated into AGD. The intention is that AGS lawyers will continue to perform different functions to other AGD lawyers. Unlike other AGD lawyers, AGS lawyers (other than the AGS) will perform functions under the general supervision or direction of the AGS.
24. Item 3 repeals the definition of 'CEO' in section 55I.
25. A definition of 'CEO' will no longer be necessary, as the position of Chief Executive Officer of the AGS will be abolished (see item 15 of Schedule 1), consistent with AGS ceasing to be a statutory corporation.
26. Item 4 repeals the definition of 'Finance Minister' in section 55I.
27. A definition of 'Finance Minister' will no longer be necessary as existing references to the Finance Minister contained in Part VIIIB of the Judiciary Act will be repealed.
28. Item 5 omits the words 'Establishment and functions of the Australian Government Solicitor' from the title of Division 2 of Part VIIIB and substitutes the words 'Identity and activity of Australian Government Solicitor'. The amended title reflects the identification of the AGS as a person within AGD.
29. Item 6 repeals sections 55J, 55K, 55L and 55M and inserts new section 55J (The Australian Government Solicitor).
30. The existing sections 55J, 55K, 55L and 55M establish AGS as a body corporate and provide for its functions, powers and constitution. These provisions are no longer required and are consistent with AGS ceasing to be a statutory corporation.
31. The amended section 55J defines the 'Australian Government Solicitor' or 'AGS' as an AGD employee whose name is on a roll of legal practitioners as referred to in paragraph 55J(2)(a). In practice, the Secretary of AGD will appoint an employee of AGD as the Australian Government Solicitor. It is intended that the person will be a Senior Executive Service Officer within AGD. The position would not be a statutory office.
32. The position is given statutory recognition to make clear that the AGS may appear as solicitor on the record in litigated matters.
33. Items 7 and 8 amend subsections 55N(1) and 55N(2) to omit the words 'In performing its functions, the AGS may provide services to the following' and substitute the words 'The AGS may provide legal services and related services to or for the following'.
34. These amendments update section 55N to reflect the fact that section 55K (setting out the functions of current AGS as a statutory corporation) will be repealed. It enables the AGS to provide legal services and related services to the same range of persons and entities to whom AGS can currently provide legal and related services.
35. Item 9 repeals and replaces subsections 55N(3) and 55N(4) and inserts new subsection 55N(4A).
36. These amendments enable the AGS to provide legal and related services to a person or body, or class of persons or bodies, which are not specifically referred to in subsections 55N(1) or 55N(2) of the Judiciary Act, at the Attorney-General's request.
37. It also enables the AGS to provide legal services and related services to a person or body, or class of persons or bodies, which are not specifically referred to in subsections 55N(1) or 55N(2) of the Judiciary Act, if the AGS so determines.
38. These amendments maintain the current arrangements which enable the Attorney-General to request, and the CEO of AGS to determine, that the AGS is to provide legal services or related services to persons or bodies not mentioned in subsections 55N(1) and 55N(2).
39. Under new subsection 55N(4A), AGS may only provide services at the request of the Attorney-General, or where the AGS made a determination, for a purpose for which the Commonwealth has power to make laws. This is intended to make clear that the AGS can only provide services to third parties (for example, where it provided pro bono or other legal services to private companies) where it is within Commonwealth constitutional power do so.
40. Items 10 and 11 amend section 55P to clarify that the AGS will charge fees on behalf of the Commonwealth. Once the AGS ceases to be a separate legal entity and becomes part of the Commonwealth, it will only charge fees on behalf of the Commonwealth.
41. Item 12 inserts new subsections 55P(3) and 55P(4).
42. The addition of new subsection 55P(3) clarifies that fees charged by the AGS (other than fees that are 'notionally payable' by the Commonwealth) are debts due to the Commonwealth and are recoverable by the Commonwealth in a court of competent jurisdiction.
43. The addition of new subsection 55P(4) makes it clear that fees charged to the Commonwealth (or to a part of the Commonwealth) are 'notionally payable' by the Commonwealth (or by the part of the Commonwealth). This provision recognises that the Commonwealth is not able to legally impose fees on itself, but that parts of the Commonwealth make 'notional' payments to other parts of the Commonwealth. It expressly states that subsection 55P(3) does not apply to such fees because the Commonwealth cannot legally owe a debt to itself.
44. Item 13 amends subsection 55Q(4) by omitting the words 'the lawyer's position as an employee of the AGS' and substituting the words 'his or her position as an AGS lawyer'.
45. This amendment reflects the new definition of 'AGS lawyer' as defined in Item 2 of Schedule 1 to this Bill.
46. Item 14 repeals Divisions 4 (Appointment and terms and conditions of CEO and staff) and 5 (Money) of Part VIIIB (The Australian Government Solicitor) of the Judiciary Act.
47. The amendments reflect that AGS will cease to be a statutory corporation and will be consolidated into AGD.
48. Item 15 repeals paragraph 55ZF(3)(a) and substitutes the words 'any work performed by or on behalf of the AGS in providing services in accordance with section 55N'.
49. This amendment updates the definition of 'Commonwealth legal work' to reflect the fact that AGS will no longer have specific statutory functions (because section 55K of the Judiciary Act will be repealed). It ensures that the AGS continues to be required to comply with legal services directions made by the Attorney-General under Part VIIIC of the Judiciary Act.
50. Item 16 omits 'CEO' from paragraph 55ZG(1)(d) and instead refers to the 'AGS'. This amendment is necessary because the position of CEO will no longer exist.