Michael Stokes Senior Lecturer, Faculty of Law

In my opinion, the Attorney-General is wrong and it is appropriate for a parliamentary committee to seek independent legal advice.

THE ABC has reported that Tasmania’s Attorney-General, Steve Kons, has described the plan of the parliamentary inquiry into the north-east log supply deal to seek independent legal advice rather than rely solely on the advice of the Solicitor-General as ‘disgraceful’ and has demanded that the committee apologise to the Solicitor-General.1

Mr Kons is reported to have said that every other time advice is provided by the Solicitor-General it is accepted. He believed that some members of that committee may want to challenge that advice and go looking somewhere else, but at this point in time they probably owe an apology to the Solicitor-General.”2

In Tasmania, the office of Solicitor-General is an office created by statute, the Solicitor-General Act 1983. Under that Act, section 7, the functions of the Solicitor-General are to:
(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 on him by or under any other Act.
It is clear that under that section, the giving of advice to parliamentary committees is not a statutory function of the Solicitor-General.

Nor is there any accepted practice that the Solicitor-General should act as legal adviser to parliamentary committees, especially committees which are scrutinising government action, as this one is. It is not always helpful to compare Tasmanian practice with that in other jurisdictions, such as that of the Commonwealth or of the United Kingdom because Tasmanian institutions have their own history and have often developed differently from those in other places. However, it is worth noting that both in the United Kingdom and the Commonwealth, the Solicitor-General does not normally give legal advice to scrutiny committees. The Commonwealth Solicitor-General is also an office created by statute, the Law Officers Act 1964 (Comm), which defines the functions of the office as:
(a) to act as counsel for:
(i) the Crown in right of the Commonwealth;
(ii) the Commonwealth;
(iii) a person suing or being sued on behalf of the Commonwealth;
(iv) a Minister;
(v) an officer of the Commonwealth;
(vi) a person holding office under an Act or a law of a Territory;
(vii) a body established by an Act or a law of a Territory; or
(viii) any other person or body for whom the Attorney General requests him or her to act;
(b) to furnish his or her opinion to the Attorney General on questions of law referred to him or her by the Attorney General; and
(c) to carry out such other functions ordinarily performed by counsel as the Attorney General requests.

Again, advising parliamentary committees, including scrutiny committees, is not listed as one of the functions of the Solicitor-General. No practice has developed under which the Solicitor-General performs that function. Instead, where a Commonwealth parliamentary committee needs legal or other specialist advice not possessed by its staff, the practice is to hire a specialist adviser to give specific advice or for the course of the particular enquiry or to utilise public servants who are seconded to the committee on a full or part time basis.3

The functions of the Solicitor-General in the UK are somewhat different because the Solicitor-General is an elected member of parliament and member of the Government of the day. As an MP rather than a statutory officer, the Solicitor-General plays an important role in giving expert opinions on the legal effects of proposed legislation in the House of Commons,4 a role which is not one of the functions of any of the Australian Solicitors-General. It is not clear on these occasions whether the Solicitor-General acts as an independent legal expert or as an advocate for the position of the government.5 Even in the UK, it is not an accepted function of the Solicitor-General to give legal advice to scrutiny committees. S/he has the right to address a standing committee of which s/he is not a member,6 but there is no practice that s/he does so as the committee’s legal adviser. Instead, as in the Commonwealth parliament, committees have the right to consult with or employ expert advisers.7

There are good reasons why it is not part of the Solicitor-General’s statutory functions to give advice to parliamentary scrutiny committees. Even if the Solicitor-General does give such advice on request, there are good reasons why committees should be able to obtain other independent legal advice. As both the Commonwealth and the State Acts make clear, the core function of the Solicitor-General is to act as counsel, that is barrister and legal adviser, for his or her government.8 Solicitors-General have customarily represented their governments as counsel in major litigation, although in Tasmania the Director of Public Prosecutions now undertakes this function except in major constitutional cases. They also act as the government’s chief legal adviser.

In my opinion, the current Tasmanian Solicitor-General sees his role as legal adviser to the government as being similar to that between any lawyer and client. For example, in an interview with Judy Tierney on The Seven Thirty Report, 2 November 1994, he stated that the role of any lawyer with respect to possible litigation was to advise his or her client on how best to protect themselves against improper legal action and that the government was entitled to legal advice that protected the public purse from such litigation. He has played an important role in recent delicate negotiations involving the government such as that with respect to the resignation of the previous Governor, Richard Butler, and the negotiations with Gunns over the pulp mill approval process.

There is nothing improper in this. The government needs high quality legal advice in such negotiations and who better to provide it than the Solicitor-General. It is not inconsistent with the role of the Solicitor-General in other jurisdictions where he or she is the chief legal adviser to the government. But it is inconsistent with any claim that the Solicitor-General should be the sole source of legal advice for parliamentary scrutiny committees. The role of these committees is to scrutinise government action and to force it to account to parliament for its actions. They should not be forced to rely for legal advice on the government’s own lawyer because their interests are often in conflict with those of the government. Their aim is to force the government to account for its actions, something governments are reluctant to do.

The Solicitor-General is faced with a conflict of interest when advising these committees in that s/he may be faced with situations in which it is not in the political interests of the government for him or her to give accurate advice. Attorneys and Solicitors-General are not new to such conflicts. They have traditionally been vested with a range of responsibilities, some political to be exercised by reference to political considerations and some legal, to be exercised in the public interest without reference to political considerations. At times it has been impossible for them to reconcile the conflicting responsibilities. For example, in the early nineteen seventies, the then Attorney-General, Mervyn Everitt, resigned when Cabinet refused to allow him to issue a writ to challenge the lawfulness of Hydro construction works with respect to the flooding of Lake Pedder. In his opinion, the decision to issue the writ had to be made on legal, public interest grounds without respect to political considerations, while Cabinet took the opposite view.

Although Attorneys and Solicitors-General have traditionally faced some conflicts of interest, there is no good reason to impose a new one where law and the traditions of the office do not require it. If the Solicitor-General is to advise parliamentary scrutiny committees, it is clear that the public interest requires that s/he advise on the law without reference to any political considerations. It is also clear that the public interest requires that s/he does not allow the interests of the government to cloud his or her interpretation of the law. Although this is clear, in practice it can place the Solicitor-General in an impossible position. For example, how does s/he fulfil his or her obligations as legal adviser to the government and give accurate advice to a scrutiny committee if that advice suggests that the government may be liable for official wrong doing, especially if s/he knows that the government intends to deny liability, at least initially? His or her advice to the committee will make it impossible for the government to pursue its preferred course. The only safe course is to decline to give advice to the committee.

If this course is adopted, there will be few occasions in which it is appropriate for the Solicitor-General to advise a scrutiny committee. Many of the government actions which a committee would want to scrutinise have the potential to end in litigation. Advice critical of the government or suggesting that it may have broken the law has the potential to fuel such litigation. Hence, a Solicitor-General who considers that it is his or her duty to protect the legal interests of the government will face a conflict of interest in these situations and would be right not to give a committee any advice.

The view that I am putting assumes that the government is entitled to act in what it sees as its own interests rather than with the utmost regard for legality and due process, regardless of political and other considerations. If the government were required to act with the utmost regard for legality and due process regardless of its own interests, it is arguable that the Solicitor-General would face no conflict of interest in advising scrutiny committees as well as the government. His or her role would be to advise the government of its legal responsibilities without fear or favour whether or not the government wants to hear the advice. If the government had a duty to act on that advice, there would be no conflict of interest if the Solicitor-General gave the same advice to a scrutiny committee. As the government’s interest in suppressing the advice could only be selfish, it would be in the public interest for the Solicitor-General to give the advice to the committee.

This view has little basis in reality. Although we may hope that governments will act with the utmost respect for legality, they have no duty to do so nor is it one of the Solicitor-General’s functions to force them to do so. A government’s duty is only to act within the law and not to knowingly break it. Hence, the Solicitor-General has a duty to give the government accurate legal advice whether or not the government wants to hear that advice. There is little value in a legal adviser who only tells you what you want to hear. But by long tradition the Solicitor-General’s opinions to government are not made public so that the government can decide how it will act on them without the embarrassment of the public’s knowing the content of the advice and whether and how it has been followed.

Hence, it is inappropriate to impose a duty on the Solicitor-General to give opinions to scrutiny committees. Such a duty would be inconsistent with the Solicitor-General’s role as counsel to the government. Equally, it is inappropriate to expect scrutiny committees to rely on the legal advice of the Solicitor-General. Their role is to scrutinise government and to hold it accountable; his/hers is to look after the legal interests of the government. Hence their roles conflict, making it inappropriate for the one to advise the other. When scrutiny committees need legal advice, they should be encouraged to hire their own independent adviser as they do when they need expertise in other areas.

If a scrutiny committee asks the Solicitor-General for an opinion, that should not preclude it from seeking other legal advice. Although the Solicitor-General’s website indicates that the government should, for the sake of consistency, accept the Solicitor-General’s advice,9 a scrutiny committee is not bound by that as it a part of the parliament, not the government. Where there is doubt about the interpretation of the law, or differing opinions have been made public, a second opinion will help in determining whether there is any real uncertainty. If there is, it is in the public interest for the committee to highlight the uncertainty in its report, and, if necessary, recommend that the legislation be amended to remove the doubts. For example, I disagree with the Solicitor-General on whether employment implications have to be considered in the sale of wood from joint ventures, but I concede he has a reasonable argument. In my opinion, the legislation needs to be clarified so that joint venturers know exactly what the position is. The lack of clarity is likely to discourage investment. But I may be wrong. Another opinion can only help clarify the position or indicate that there is a need to change the law to remove the doubts.

1ABC Online
A-G attacks log supply inquiry over calls for independent legal opinion. 03/04/2007. ABC News Online
[This is the print version of story http://www.abc.net.au/news/newsitems/200704/s1889011.htm]
Last Update: Tuesday, April 3, 2007. 9:31pm (AEST)
2See fn 1.
3Harris (ed) House of Representatives Practice (5 ed) (Department of the House of Representatives Canberra, 2005)
4Edwards The Law Officers of the Crown (Sweet & Maxwell, London 1964) 51-3.
5See fn 4.
6 Lidderdale Erskine May Parliamentary Practice (19 ed) (London Butterworths 1976) 622.
7fn 6 at 655
8The Tasmanian Solicitor-General’s website describes the functions of the office in the following terms”
The role of the Solicitor-General is to provide legal advice to Ministers, agencies and instrumentalities of the Crown. It also includes the important function of representing the State of Tasmania in any Constitutional litigation.
Last update: Wed 11 April 2007 at 5.20pm.)
9 http://www.crownlaw.tas.gov.au/solicitorgeneral/about_us
Last update: Monday 16 April 2007 at 11.05am.