Explanatory Memorandum
(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)Schedule 2 - consequential amendments
51. Schedule 2 to the Bill makes consequential amendments to the Director of Public Prosecutions Act and the Freedom of Information Act.
Amendments to the Director of Public Prosecutions Act 1983
52. The Bill makes consequential amendments to the Director of Public Prosecutions Act to reflect the changes to the Judiciary Act made by this Bill. The amendments ensure that the Director of Public Prosecutions Act continues to operate as it does currently.
53. Item 1 repeals and replaces paragraph 11(1)(b) to replace the words 'the Chief Executive Officer of the Australian Government Solicitor' with the words 'the Australian Government Solicitor'.
54. This amendment allows the Director of Public Prosecutions to continue to give directions, or furnish guidelines to the AGS with respect to the prosecution of offences against the laws of the Commonwealth.
55. Item 2 amends subsection 32(1) by omitting the words 'the Chief Executive Officer of the AGS' and substituting the words 'the Australian Government Solicitor (the AGS)'.
56. This amendment allows the Director of Public Prosecutions to continue to arrange for the AGS to perform or exercise, in a State or Territory, all or any of the Director's functions or powers under the Director of Public Prosecutions Act.
57. Item 3 repeals subsection 32(4) to remove reference to the definition of the former AGS in the Judiciary Act.
58. Item 4 repeals and replaces paragraph 32A(5)(a) to replace the words 'the Chief Executive Officer of the AGS' with the words 'the Australian Government Solicitor (the AGS)'. It also repeals and replaces paragraph 32A(5)(b) to replace the words 'a person employed under subsection 55ZB(1) of the Judiciary Act 1903' with the words 'another AGS lawyer (within the meaning of section 55I of the Judiciary Act 1903)'. This amendment reflects the new definitions of the AGS and AGS lawyer inserted by this Bill.
59. Item 5 repeals subsection 32A(6) to remove reference to the definition of the former AGS in the Judiciary Act.
60. Item 6 amends paragraph 33A(b) by omitting the words 'the Chief Executive Officer of the AGS (within the meaning of Part VIIB of that Act)' and substituting the words 'the Australian Government Solicitor'. The amendment reflects the new definition of the AGS inserted by this Bill.
Amendments to the Freedom of Information Act 1982
61. The Bill makes consequential amendments to the Freedom of Information Act so that AGS's activities remain exempt from the operation of the Act. This will ensure AGS can continue to compete on an even footing with private legal service providers.
62. Item 7 amends Division 1, Part I of Schedule 2 by omitting the reference to the 'Australian Government Solicitor'.
63. Item 8 amends paragraph (b) of the current exemption in Division 1, Part II of Schedule 2 for documents held by the Attorney-General's Department (AGD) that relate to commercial activities undertaken by the AGS, by omitting the word 'commercial'.
64. The effect of this amendment is to exempt AGD from the operation of the Freedom of Information Act in relation to 'documents in respect of activities undertaken by the Australian Government Solicitor'. For example, documents held by AGS lawyers and other persons working under the supervision or direction of the AGS (such as legal support staff) would be covered by the exemption.
65. This amendment is intended to provide the continued operations of the AGS with the same level of exclusion from the Freedom of Information Act that existed when the AGS was a separate statutory authority operating as a government business enterprise.