Explanatory Memorandum
(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)General outline
1. The purpose of the Judiciary Amendment Bill 2015 is to make legislative amendments that will consolidate the Australian Government Solicitor (AGS) into the Attorney-General's Department (AGD).
2. The Bill implements the decision made as part of the Government's Smaller Government Reform Agenda which was released at the 2014-15 Mid-Year Economic and Fiscal Outlook in December 2014.
3. The Bill amends the Judiciary Act 1903, the Director of Public Prosecutions Act 1983 and the Freedom of Information Act 1982. The specific amendments are detailed below under the heading 'Note on Clauses'.
4. The Bill comprises three schedules.
5. Schedule 1 makes amendments to the Judiciary Act. The purpose of the amendments in this schedule is to provide for:
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- the Australian Government Solicitor to be a person in the Attorney-General's Department who is engaged under the Public Service Act 1999
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- the role of the Australian Government Solicitor
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- the definition of 'AGS lawyer'
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- the ability of the AGS to charge fees
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- the repeal of references to the AGS being a statutory corporation
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- the repeal of references to the functions, powers and constitution of the former AGS, and
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- the repeal of references to the Chief Executive Officer (CEO) of the AGS.
6. Schedule 2 makes amendments to the Director of Public Prosecutions Act and the Freedom of Information Act to provide for:
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- the ongoing ability of the Director of Public Prosecutions to arrange for the AGS to perform or exercise all or any of the Director's functions or powers under the Director of Public Prosecutions Act, and
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- AGS's exemption from the Freedom of Information Act to continue to operate in respect of its activities within AGD so that AGS can compete on an even footing with private legal service providers.
7. Schedule 3 makes transitional amendments to address operational matters arising from AGS being consolidated within AGD, including:
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- the transfer of AGS's assets (including money), liabilities, contracts, reporting requirements and records to the Commonwealth
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- dealing with ongoing legal proceedings that AGS is acting in or party to immediately before consolidation
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- ensuring that stamp duty and other State or Territory tax consequences do not arise as a result of the consolidation
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- dealing with references in existing Commonwealth laws to the former AGS
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- providing for the employment conditions of staff performing AGS functions
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- preserving the ability of AGS lawyers to receive service of process in matters in which the Commonwealth is a party
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- providing for compensation for any acquisition of property arising in relation to the operation of Schedule 3 to the Bill, and
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- enabling the Minister to make transitional rules prescribing matters relating to Schedule 3 of the Bill.
Financial impact statement
8. The Bill will have nil financial impact on government departments and agencies.
9. After consolidation, the Secretary of AGD will undertake a review of Commonwealth legal services to identify efficiencies that can be gained in government legal costs.