1 March 2012
Recommendations from a review of the role of the Solicitor General published this week include a number of organisational changes but no major constitutitonal or substantive structural shifts.
The Deans and Cochrane recommendations are that Crown Law remains a Public Service department with the Solicitor General as a chief executive subject to State Services Commissioner oversight. The Solicitor General should remain the trusted adviser to government and principal advocate in Crown litigation. Separating those functions is not considered desirable.
Organisational proposals include enacting provisions for a fixed term appointment with constitutitonal independence for some Solicitor General responsibilities, having a deputy chief executive to manage the Crown Law Office, and a deputy solicitor general designated as the director of public prosecutions with responsibility for tighter coordination of prosecutions.
The reviewers do not recommend any amalgamation of departmental legal services into a centralised government law firm.
The review underpins the importance of a whole of government approach. It explores the work that should be undertaken by Crown Law, what can be done elsewhere, the governing processes, and whether Crown entities should come within the mandate. The report suggests revising the 1993 Cabinet Directions on the Conduct of Crown Legal Business, and includes a draft which makes clear that the application is only to ministers and departments. The proposal would strengthen Crown Law authority by prohibiting agencies from departing from advice unless the agreement of the Solicitor-General or Attorney-General is first obtained.
The report concludes with a reference to the “No Surpises” obligation which the Cabinet Manual places on all agencies. Regardless of where legal advice is being sourced, all agencies, including State Owned Enterprises, are subject to the requirement in Ch 3.50; ” Employees in the state sector must act with a spirit of service to the community and meet high standards of integrity and conduct in everything they do. In particular, employees must be fair, impartial, responsible, and trustworthy.” This includes ensuring that on a “no surprises” basis, Ministers receive honest, impartial, and comprehensive advice.