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Performance measure 1.3: Constitutional policy and related public law advice

Constitutional policy and related public law advice to the government and its entities assists them to identify and manage constitutional and related legal risks in order to support the constitutional functioning of the Commonwealth.

This performance measure was achieved.

Performance targets

Result

1.3.1 Stakeholder and client satisfaction greater than 80% in relation to:

  • effectiveness (expertise and quality of relationship)
  • efficiency (timeliness and responsiveness)

ACHIEVED

1.3.2 Qualitative analysis shows the effectiveness of policy advice in strengthening policy decisions and managing constitutional or related legal risk

ACHIEVED

1.3.3 Qualitative analysis shows that the Office of Constitutional Law is effective in managing litigation to protect the Commonwealth’s constitutional policy interests

ACHIEVED

Source

  • Portfolio Budget Statements 2020–21, Outcome 1, Program 1.1, page 30
  • Corporate Plan 2020–24, page 23

1.3.1 In response to questions related to this target in the department’s stakeholder survey, 100% of respondents rated our effectiveness and efficiency positively. A detailed explanation of the stakeholder survey methodology and results is at Appendix 2: Methodologies.

Based on survey responses, an important factor was the department’s provision of advice within tight timeframes and our responsiveness to requests for assistance that may have limited instructions. Another strength was the way we collaborated with other areas of the department to better assist government entities to identify and manage constitutional and related legal risks.

1.3.2 To assess achievement of the effectiveness of policy advice in strengthening policy decisions and managing risk, a panel evaluated 6 work samples against 4 quality standards, namely whether the document:

  • explained why the decision-maker was getting the document and the broader context of the issues raised and its purpose
  • was clear, logical and based on evidence
  • was informative and included the full details
  • identified next steps.

Each sample was rated between 1 (very poor) and 5 (excellent). The baseline target for this performance measure was to achieve an average score of 3 out of 5 for the policy work, which would indicate that while there may have been some shortfalls, the advice met each of the quality standards and overall strengthened policy decisions and managed constitutional or related legal risk. To achieve a rating of ‘excellent’, the work sample needed to meet all 4 quality standards and also add something extra, making it extremely effective in strengthening policy decisions and managing constitutional or related legal risk. The panel assessed 2 work samples as being of very good quality (4 out of 5) and the remaining 4 as being between very good and excellent quality (between 4 and 5 out of 5).

Several factors contributed to this positive result. In preparing COVID-19 briefings, we positioned the document within the broader context of the pandemic. Similarly, in providing submissions to the Attorney-General, we explained the purpose for the submission, including identifying priorities and connections across government. The policy advice articulated the relevant problem, policy objectives and rationale for the recommended course of action.

The panel’s comments revealed that in providing advice, we identified constitutional and related legal risks and outlined possible mitigation options. While policy advice is effective in strengthening policy decisions and managing legal risks, there is scope for improvement to ensure advice is communicated as concisely as possible and that constitutional and related legal risks are clearly identified early rather than raised as part of the more general discussion.

Overall, this sound performance contributes to the effective implementation and advancement of Australia’s constitutional policy and legal interests.

Further information on the assessment process is at Appendix 2: Methodologies.

1.3.3 The same panel assessed this target by considering a case study of a constitutional litigation matter. An officer involved in managing the matter made a presentation to the panel outlining the nature of the case and work over the course of the litigation. The panel asked questions to determine whether:​

  • the Commonwealth’s constitutional policy interests had been promoted
  • the interests of stakeholders were recognised and managed
  • deadlines were managed to permit considered analysis of the issues
  • costs associated with the litigation were reasonable.

A rating was given between 1 (very poor) and 5 (excellent) for management of the matter. The baseline target for this measure was to achieve a score of 3 out of 5, which would indicate that our performance when assessed against each of these 4 elements had been adequate in effectively managing litigation to protect the Commonwealth’s constitutional policy interests. The panel collectively gave a rating of 5 out of 5 for performance achieved based on the case study, which indicates excellent effectiveness in managing the matter to protect the Commonwealth’s constitutional policy interests. The panel observed that constitutional policy interests had been successfully identified and a strategic approach taken to work with other agencies. The panel acknowledged that our early and ongoing engagement with stakeholders to prepare decision-makers for short turnaround times helped to balance work required against other demands.

Another strength identified by the panel was our proactive briefing and preparation of material in a timely manner. This ensured compliance with court-imposed deadlines and allowed sufficient time for the Attorney-General to consider significant or sensitive issues. An area of strong performance was the close attention paid to monitoring costs associated with the litigation. We regularly reviewed the cost of non-government legal services and claims for costs made by other parties to the litigation.

Further information on the assessment process is at Appendix 2: Methodologies.