Legal Services Amendment (Repeal of Solicitor‑General Opinions) Direction 2016
EXPLANATORY STATEMENT
Issued by the Attorney‑General
in compliance with section 15G of the Legislation Act 2003
INTRODUCTION
Under subsection 55ZF(1)(a) of the Judiciary Act 1903, the Attorney-General may issue Legal Services Directions (the Directions) applying generally to Commonwealth legal work (as defined in that section).
The power to issue the Directions was conferred having regard to the Attorney-General’s responsibility, as First Law Officer, for matters relating to the performance of Commonwealth legal work by, and on behalf of, the Commonwealth and its agencies.
Under subsection 33(3) of the Acts Interpretation Act 1901, the power to issue such Directions includes the power to repeal, rescind, revoke, amend or vary those Directions.
OUTLINE
Section 55ZF of the Judiciary Act 1903 empowers the Attorney-General to issue the Directions, which are to apply generally to Commonwealth legal work, or that are to apply to Commonwealth legal work being performed, or to be performed, in relation to a particular matter.
Paragraph 12(b) of the Law Officers Act 1964 provides that the functions of the Solicitor‑General, in addition to acting as counsel, include furnishing opinions to the Attorney-General on questions of law referred by the Attorney-General.
The purpose of this legislative instrument is to amend the Directions to repeal paragraph 10B of the Legal Services Directions 2005.
PROCESS BEFORE THIS LEGISLATIVE INSTRUMENT WAS MADE
Regulatory impact analysis
The Office of Best Practice Regulation (OBPR) has advised that a Regulation Impact Statement is not required as the Directions are machinery in nature and do not change the regulatory burden placed on businesses or the non-profit sector (OBPR ID 20861).
Statement of compatibility with human rights obligations
Before this instrument was made, its impact on human rights was assessed using tools and guidance published by the Attorney‑General’s Department. It is fully compatible with human rights as defined in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Consultation before making
Before this instrument was made, the Attorney‑General consulted the Acting Solicitor‑General.
Statutory preconditions and Parliamentary undertakings relevant to this legislative instrument
There are no other preconditions relevant to the making of this legislative instrument.
PROCESSES FOR REVIEW OF THIS LEGISLATIVE INSTRUMENT
This instrument is subject to tabling and disallowance under Chapter 3 of the Legislation Act.
OTHER ISSUES
Matter incorporated by reference
This instrument does not apply, adopt or incorporate other matter by reference.
More information
A provision by provision explanation of this legislative instrument is provided in Attachment A.
NOTES ON SECTIONS ATTACHMENT A
Section 1 Name of the Legal Services Amendment (Repeal of Solicitor‑General Opinions) Direction 2016
This section provides for the instrument to be named as the Legal Services Amendment (Repeal of Solicitor‑General Opinions) Direction 2016. The legislative instrument may be cited by that name.
Section 2 Commencement
This section provides for the instrument to commence on the day that it is registered on the Federal Register of Legislation. In accordance with section 3 of the Acts Interpretation Act 1901 this means that it will commence from the first minute of the day on which it is registered. The instrument will operate from the beginning of the day it was registered. It does not enliven any of the retrospectivity issues that subsection 12(2) of the Legislation Act 2003 seeks to address.
Section 3 Authority
This section identifies the Act that authorises the making of the legislative instrument as the Judiciary Act 1903.
Section 4 Schedule
This section provides that the instrument specified in the Schedule is amended or repealed according to the terms of that Schedule.
Schedule 1
This Schedule repeals paragraph 10B of the Legal Services Directions 2005.
Overview
The Legal Services Amendment (Repeal of Solicitor-General Opinions) Direction 2016 was introduced by the Attorney-General in accordance with the powers granted under the Judiciary Act 1903 and the Legislation Act 2003. This instrument addresses a specific gap by repealing paragraph 10B of the Legal Services Directions 2005, which previously required the Solicitor-General to provide opinions to the Attorney-General on questions of law referred by the Attorney-General. The repeal seeks to streamline the process of obtaining legal opinions for the Commonwealth by removing the requirement for the Solicitor-General's involvement in certain legal matters, potentially enhancing efficiency and flexibility in handling Commonwealth legal work.
The enactment of this Direction by the Attorney-General aligns with the policy objective of optimising the administration of Commonwealth legal services. The Office of Best Practice Regulation confirmed that the Directions are machinery in nature and do not alter the regulatory burden on businesses or the non-profit sector. This legislative instrument has been reviewed for compatibility with human rights obligations and was found to be fully compliant. The Direction is subject to parliamentary scrutiny and disallowance processes as outlined in the Legislation Act 2003.
Scope and Application
The Legal Services Amendment (Repeal of Solicitor-General Opinions) Direction 2016 applies to Commonwealth legal work, defined under the Judiciary Act 1903, and specifically affects the provision of legal services to the Commonwealth and its agencies. This legislative instrument is issued under the authority of the Attorney-General and concerns the repeal of certain opinions previously furnished by the Solicitor-General to the Attorney-General on questions of law. This repeal is achieved by amending the Legal Services Directions 2005, specifically targeting paragraph 10B. The instrument operates on a national level within the Commonwealth jurisdiction, affecting legal practitioners and entities engaged in providing legal services to the Commonwealth. It does not apply to state or territory legal matters or to private sector legal work. There are no specific exclusions or thresholds mentioned within the text, but the repeal is limited to the particular function of providing legal opinions by the Solicitor-General as outlined in the Law Officers Act 1964. The application of this Direction can be extended or restricted through subordinate instruments, as permitted by the Judiciary Act 1903.
Key Provisions
The Legal Services Amendment (Repeal of Solicitor-General Opinions) Direction 2016 (the Direction) operates under section 55ZF of the Judiciary Act 1903, which empowers the Attorney-General to issue directions concerning Commonwealth legal work. Specifically, this Direction aims to repeal paragraph 10B of the Legal Services Directions 2005 (the Directions), thereby amending the previous requirements regarding opinions from the Solicitor-General on questions of law. The Directions, as machinery instruments, were designed to apply generally to Commonwealth legal work or to specific matters. This amendment simplifies the process by removing the requirement for the Solicitor-General to furnish opinions to the Attorney-General on legal questions, a function previously outlined in the Law Officers Act 1964.
The Direction imposes certain obligations on the parties involved. The most notable change is the elimination of the need for the Solicitor-General to provide legal opinions to the Attorney-General. This amendment shifts the responsibility and processes around legal advice within Commonwealth legal work, potentially streamlining decision-making processes. The Direction also requires compliance with all other existing provisions of the Legal Services Directions 2005 unless specifically amended or repealed by this instrument. The repeal of paragraph 10B does not introduce new obligations but modifies existing ones by removing a specific duty.
There are no explicit offences, penalties, or civil/criminal consequences outlined within the Direction itself for non-compliance with the repealed provisions. The Direction focuses on amending existing machinery provisions rather than introducing new regulatory burdens. However, any failure to comply with the overall Legal Services Directions 2005 could potentially lead to consequences as per the provisions of the Judiciary Act 1903. The repeal of paragraph 10B aims to simplify and possibly expedite the legal advice process within the Commonwealth without introducing additional punitive measures.