Guidelines for Seeking Advice

ATTORNEY-GENERAL THE HON. BRIAN WIGHTMAN M.P.

Guidelines For Seeking Advice From the Office of the Solicitor-General

Background 1. As Attorney-General and pursuant to the Administrative Arrangements Order (No. 2) 2011, I am responsible for the administration of the Solicitor-General Act 1983 and have responsibility for matters concerning the Solicitor-General.

2. Section 7 of the Solicitor-General Act 1983 provides that 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 on him by or under any other Act.

3. The Solicitor-General provides advice on matters of significance to the Tasmanian Government and appears as counsel in cases of constitutional significance and other cases of special government interest.

4. These guidelines have been developed to assist Ministers, agencies and other instrumentalities when seeking advice from the Solicitor-General or other counsel within the Office of the Solicitor-General.

For the purposes of these guidelines the expression “Agency” should be taken to include all agencies within the meaning of the State Service Act 2000 and all statutory officers, instrumentalities and bodies whether incorporated or not, who or which, enjoy the privileges and immunities of the Crown in right of Tasmania. Who may seek advice from the Solicitor-General 5. As a matter of constitutional theory only the Attorney-General, acting on behalf of the Crown, may seek advice from the Solicitor-General and all advice given by the Solicitor-General is given to the Attorney- General. However, that position has been altered by the provisions of section 7 of the Solicitor-General Act 1983 (referred to above) which authorise the Attorney-General to direct and request the Solicitor- General to act on behalf of others.

As the Solicitor-General acts on behalf of and advises the Crown then unless expressly directed by the Attorney-General to do so, the Solicitor- General cannot act on behalf of, or advise, any body or person who is not an Agency. So, for example, the Solicitor-General does not provide advice to individual members of parliament, to political parties (including the party or parties in government from time to time) or to members of the public. Nor does the Solicitor-General provide advice to Ministers or State servants in relation to personal matters.

Generally speaking, State-owned companies and statutory bodies which do not enjoy the privileges and immunities of the Crown are not entitled to seek advice from the Solicitor-General.

Where genuine doubt exists about whether a person or body is entitled to seek advice from the Solicitor-General, the matter should be referred to the Solicitor-General who will then seek instructions from the Attorney-General.

6. In theory, but subject to any specific guidelines or policies within individual Agencies, any employee of any Agency may, on behalf of the Crown, seek advice from the Office of the Solicitor-General.

7. Nevertheless, every Agency is strongly encouraged to nominate a small number of designated officers through whom all requests for advice from that Agency to the Solicitor-General are to be directed and by whom all advice given by the Solicitor-General is to be received in the first instance. In addition, individual Agencies are encouraged to maintain an organised collection or database of all advice that is received by that Agency from the Solicitor-General. 8. It is intended that the adoption of these measures will result in greater efficiency and a more structured approach to the obtaining, recording and dissemination of legal advice within Agencies by ;  improving the ability of individual officers within an Agency to ascertain what, if any, advice that Agency has previously requested and/or received from the Solicitor-General.  reducing the potential for multiple requests from the same Agency for the same advice.  enabling designated officers to become skilled in the concise and accurate formulation of requests for advice and the interpretation, dissemination and implementation of that advice.  assisting counsel in the Office of the Solicitor-General by drawing attention to any previous advice which may be relevant to a current request for advice.

Seeking advice from the Solicitor-General 9. If an Agency wishes to seek advice from the Office of the Solicitor- General then a considered and appropriately detailed request for advice will need to be forwarded to the Solicitor-General’s Office.

10. Subject to any specific guidelines or policies within the requesting Agency, this may be done electronically. However, the facility to make a request for advice via e-mail does not mean that such requests need not comply with these guidelines in all relevant respects. In particular, it does not mean that such requests should be seen by Agencies as being an easy or informal means of seeking advice.

11. The information that will be required to be included in a request for advice will vary according to the nature, subject-matter and complexity of the request for advice. Nevertheless, every request for advice should;  identify both the Agency and the individual officer or employee requesting the advice,  outline the main issues,  describe any relevant factual background to the matter,  include an analysis of the issue(s),  clearly set out the question or questions that need to be answered, and  if advice is required by a specific date, indicate the date by which the advice is desired AND provide a brief explanation of the circumstances which are said to justify the matter being given priority over others. (While every effort will be made to respond to genuinely urgent requests by the stipulated date, this may not always be possible. Ordinarily requests for advice will be dealt with in the order in which they are received).

Where appropriate, a request for advice should also;  include copies of or otherwise refer to any relevant legal advice(s) previously received from any source,  list and include, in chronological order, copies of all relevant documents including correspondence, departmental guidelines, circulars, policy statements, file notes etc.,  refer to the relevant provisions of any Acts and/or Regulations (and, where appropriate, to any recent amendments), proclamations, orders, notices etc.,  where possible, describe any competing and/or tentative views within the agency concerning the matter.

(A pro forma ‘Request For Advice’ checklist is attached as a schedule to these guidelines.)

Urgent matters 12. In exceptional cases of real urgency oral advice may be given in response to an abbreviated written request or, in a genuine emergency, in response to an oral request where it is possible to do so. If that occurs, written confirmation of the substance of the request and of the oral advice provided will be created and forwarded to the relevant Agency or Agencies.

Conjectural advice 13. Conjectural, hypothetical or “informal” advice will not be given.

Disclosure of Solicitor-General’s opinions 14. All communications between Agencies and the Office of the Solicitor- General, including opinions, are made to, or at the direction of, the Crown. They are to be treated as confidential legal communications between the Crown as client and the Solicitor-General as the Crown’s legal adviser.

The following is a summary of the applicable principles. (a) Disclosure within the Crown is generally permitted Generally speaking, but subject to considerations or personal privacy and confidentiality, advice received from the Solicitor-General may be disclosed to any body or person who is an Agency or an employee of an Agency, whether of the same or another Agency AND who has a proper interest in receiving the advice.

(b) Disclosure outside the Crown generally prohibited Unless express written permission to do so has been obtained from the Attorney-General;

 Neither the original nor any copy of any request for advice or of any advice provided by the Solicitor–General may be disclosed either orally or in writing to any body or person who is not an Agency or an employee of an Agency.

 The substance or “gist” of advice received from the Solicitor- General must not be disclosed to any body or person who is not an Agency or an employee of an Agency if that advice is attributed to the Solicitor-General or “Crown Law” etc. or is described as “legal advice”.

(c) Unattributed repetition of advice is generally permitted However, legal advice received from the Solicitor-General and the substance or gist of advice received from the Solicitor-General may be disclosed either orally or in writing PROVIDED that it is not attributed to the Solicitor-General or to “Crown Law” etc. and is not described or referred to as “legal advice” but is advanced on the basis that it is the view or position taken by the Agency. For example, the statements “The Solicitor-General has advised that as you are under 18 years of age you are not entitled to a permit.” and “The Minister has received legal advice to the effect that you are not entitled to a permit.” would probably amount to an improper disclosure of the advice. On the other hand, the statements “As you are under 18 years of age the Minister has concluded that you are not entitled to a permit.” and “In the Minister’s opinion, you do not meet the legal requirements necessary for the issue of a permit.” would be unlikely to be found to involve the disclosure of any legal advice.

(d) Consequences of improper disclosure If legal advice, or even only some part of legal advice, received from the Solicitor-General is disclosed to any body or person who is not an Agency or an employee of an Agency in circumstances which a court considers were inconsistent with the maintenance by the Crown of its client legal privilege in that advice, the Crown is likely to be found to have impliedly waived its privilege and may be obliged to disclose not only the whole of that advice but also the contents of any documents which are referred to in, or which were used in connection with, the preparation of the advice, even if those documents are themselves confidential and/or legally privileged.

Brian Wightman Attorney-General February 2012 SOLICITOR-GENERAL

REQUEST FOR LEGAL ADVICE - CHECKLIST

1. Does the request for advice:

 Identify the Agency requesting the advice,

 Identify the person or persons requesting the advice,

 Contain a summary or outline of the main issue or issues,

 Set out any factual background that is relevant to the request,

 Include an analysis of the legal issue or issues raised by the request,

 Set out the specific question or questions that need to be answered, and

 Indicate EITHER that the matter is not urgent OR that advice is desired by a specified date together with a brief explanation of the circumstances which are said to justify the request being given priority over requests from others.

2. Does the nature of the request for advice make it necessary or desirable to:

 Refer to and/or include copies of any advices previously received from the Solicitor-General or other sources,

 Include a list and copies (in chronological order) of all relevant documents such as correspondence, file notes, proclamations, orders, notices, reports, contracts, instruments of delegation and relevant departmental guidelines and policies etc., or

 Draw attention to the relevant provisions of any Act, Regulations or other statutory instrument (e.g. State Policy, Planning Scheme, Management Plan etc.) and where appropriate to any recent amendments.

 Set out any tentative or competing views that may have been expressed by those likely to be interested in or affected by the advice.