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Performance measure 1.5: Manage significant legal issues and arrangements for Australian Government legal services

Oversight, coordination and assistance to Australian Government entities supports the effective management of legal risks and the delivery of high quality, consistent and efficient legal services across government.

This performance measure was achieved.

Performance targets

Result

1.5.1 Qualitative analysis shows that visibility of, and the Attorney-General’s ability to influence, significant legal matters across the Commonwealth is maintained

ACHIEVED

1.5.2 The work of the Significant Legal Issues Committee is supported by the coordination of 4 meetings each year

ACHIEVED

1.5.3 Commonwealth agencies are supported in their compliance with their obligations under the Legal Services Directions 2017

ACHIEVED

1.5.4 New arrangements to support government lawyers through the Australian Government Legal Service (AGLS) are implemented

ACHIEVED

1.5.5 Satisfaction of government lawyers with initiatives provided by the AGLS greater than 80%

NOT ACHIEVED

Source

  • Portfolio Budget Statements 2020–21, Outcome 1, Program 1.1, page 30
  • Corporate Plan 2020–24, page 25

1.5.1 The department maintained visibility of significant legal matters across the Commonwealth this year. Under paragraph 3.1 of the Legal Services Directions 2017, non-corporate Commonwealth entities report on significant issues that arise in the provision of legal services. In 2020–21, the department was notified of 532 different significant legal issues and 14 cohorts of significant legal issues that contain multiple individual claims resulting from the same factual and legal circumstances. Eleven of these significant legal issues were identified through means other than agency reports. Following engagement with the agencies involved, we were satisfied that none of these 11 instances amounted to non‑compliance and accordingly did not need to be managed under the compliance framework. We also worked with corporate Commonwealth entities, which are not obliged to report significant issues under paragraph 3.1 but are encouraged to do so on a voluntary basis. In 2020–21, corporate Commonwealth entities notified 4 significant issues.

These figures indicate that visibility of a large volume of matters across government, including matters from corporate Commonwealth entities and matters that were initially unreported, has been maintained. Visibility of these matters allows us to analyse themes of legal risk, apply influence to ensure significant matters are managed consistently and effectively and discharge other functions under the Legal Services Directions.

We also maintained the Attorney-General’s ability to influence significant legal matters. Under paragraph 3.2 of the Legal Services Directions, a claim reported by a non-corporate Commonwealth entity as significant is not to be settled without the agreement of the Attorney-General. In 2020–21, we received approval requests in respect of 126 matters, of which 120 were approved.

In 2020–21, we also worked with agencies to materially influence proposed settlement terms (either before or after a request was submitted) in respect of 26 settlement requests. Four settlement requests were withdrawn by an agency based on our advice that the proposal would not be consistent with the government’s legal interests. We also supported the development and approval of a settlement framework in respect of 2 cohorts of significant claims and worked with an agency to implement one settlement framework approved in a previous year.

We can also be substantively involved in the management of a small subset of particularly significant matters. We work with the responsible agency on aspects of the day-to-day management of the matter and assist the Attorney-General and other ministers to be aware of progress. In 2020–21, we were involved in 12 particularly significant matters in this way.

Through our role in approving settlements and managing particularly significant matters, we have effectively maintained the ability of the Attorney-General to influence significant legal matters across the Commonwealth, ensuring a consistent, whole-of-government approach to managing legal risk.

1.5.2 The Significant Legal Issues Committee plays an important role in the department’s responsibility for managing Commonwealth legal risk. The committee is comprised of the Solicitor‑General, Australian Government Solicitor, First Parliamentary Counsel, Deputy Secretary of the department’s Legal Services and Families Group and is chaired by the department’s Secretary. In 2020–21, we supported the committee to meet 4 times, during which the committee considered 12 significant issues and was provided with updates for noting on 15 further significant issues.

The meetings are a forum for agencies to consider guidance on legal strategy and risk in respect of their matters and committee members maintain oversight of the most significant matters. This promotes a consistent approach that takes into account whole-of-government legal and policy interests.

We support the committee by identifying the significant issues to be considered, preparing and providing material for the committee’s consideration and working with agencies to implement the committee’s recommendations.

1.5.3 The Legal Services Directions provide obligations for agencies when they use legal services and manage legal issues. By supporting the compliance of agencies with their obligations under the Legal Services Directions, the department improves understanding of and compliance with those obligations, which enhances the consistent and coherent management of legal matters and minimises legal risk.

We work with agencies to improve their understanding of and compliance with their obligations through education and capacity-building initiatives. We run training sessions, develop practical guidance material, provide ad hoc guidance and advice and support agencies to assess instances of non-compliance and to take corrective action.

In 2020–21, we delivered 12 training sessions, well above our target of 5. These were attended by 535 government lawyers from 15 entities, exceeding expectations.

There is no statutory requirement to publish compliance information. However, to aid transparency, we compile statistics on instances of alleged and actual non-compliance on an annual basis and aim to publish a report on the department’s website by 30 April each year. For 2019–20, the compliance statistics report was published on 28 April 2021.

1.5.4 The AGLS is the new formal professional network for lawyers who work for the Australian Government. The network supports and develops government lawyers and in-house legal areas to deliver consistency and efficiency across government. Development of the AGLS was a recommendation of the then Secretary’s 2017 Review of Commonwealth Legal Services. The department’s Secretary is the head of the AGLS.

The inaugural AGLS Board was established in November 2020 and comprised of 11 senior government lawyers from a broad range of agencies appointed by the Secretary. The AGLS commenced on 30 April 2021 with the upload of resources and videos to the AGLS website. The commencement of the AGLS is the result of a significant amount of work to develop and implement governance and administrative structures and substantive AGLS initiatives.

The AGLS delivered significant initiatives including the Foundational Australian Government Lawyer Training program, which was conducted in May 2021 for 62 government lawyers from 20 agencies. This followed pilot versions of the training delivered in May and November 2019. Work is also well advanced for the inaugural AGLS Conference, which is scheduled to be held later in 2021.

A medium-term initiative for the AGLS is the development of the Australian Government Legal Advice Database. This is intended to be a central repository of legal advices for government lawyers to encourage consistency in legal interpretation and support a whole-of-government approach to common legal issues. A functional beta version of the database, incorporating its essential functions, was completed by 30 June 2021 in accordance with the timeline for this phase of the database. The beta version of the database is a first step towards a sophisticated legal advice database for government lawyers, which will promote information sharing, efficiency and consistency in the provision of legal advice to government. It will be assessed through a closed group of testers, with feedback used to inform the development of future phases of the project.

1.5.5 The success of the AGLS depends on buy-in from its members. It is important that the AGLS and its initiatives are providing government lawyers with the support they need. We surveyed government lawyers in July 2021 to ascertain their levels of awareness of the AGLS and its initiatives, and satisfaction with the initiatives they participated in. An online, anonymous survey was used and invitations were sent to legal teams in each government agency to forward to their government lawyers. The questions were developed in consultation with the AGLS Board and covered the AGLS governance structure, administrative arrangements, initiatives and overall satisfaction.

A total of 344 government lawyers completed the survey. Overall satisfaction (‘somewhat satisfied’ or ‘very satisfied’) with the AGLS was 32%, with 5% of respondents being ‘somewhat’ or ‘very unsatisfied’, 48% being ‘neutral’ and 15% indicating that it was ‘too early to tell’. Over 80% of respondents confirm that they were aware of the AGLS. As can be expected, given the AGLS was recently launched, results showed moderate levels of awareness of specific AGLS initiatives (between 40% and 55%) and a low rate of participation. Encouragingly, respondents expressed high levels of interest in participating in future initiatives.

While the overall satisfaction with the AGLS was low, the large number of results in the ‘neutral’ or ‘too early to tell’ categories provide room to improve over the coming years. The results will assist us to devise and prioritise initiatives. This year’s results provide a baseline for future surveys.