REGULATION OF GOVERNMENT LAWYERS - REPORT TO THE ATTORNEY-GENERAL
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REGULATION OF
GOVERNMENT LAWYERS
REPORT TO THE
ATTORNEY-GENERAL
By Susan Campbell and John Lynch
2009Regulation of Government Lawyers: report to the Attorney-General 2009 ISBN-13 978-1-921028-89-2 John Lynch Crown Counsel and Susan Campbell Consultant Address: Level 25, 121 Exhibition Street, Melbourne, Victoria 3000 Phone: (03) 8684 0898 Fax: (03) 8684 0449 DX: 210077 Website: http://www.justice.vic.gov.au © Copyright State of Victoria Department of Justice 2009 The publication is copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968.
Regulation of Government Lawyers
TABLE OF CONTENTS
EXECUTIVE SUMMARY 4
SUMMARY OF RECOMMENDATIONS 6
GLOSSARY OF ABBREVIATIONS 7
1. INTRODUCTION 8
1.1 Background 8
1.2 Terms of reference 9
1.3 Consultation Process 9
2. GOVERNMENT LAWYERS IN LEGAL PRACTICE 10
2.1 Role of government lawyers 10
2.2 Profile of Government Lawyers in Legal Practice 11
3. GOVERNMENT LAWYERS AND LEGAL PROFESSION REGULATION 12
3.1 Regulation of government lawyers under the Legal Profession Act 12
3.2 Principles of legal professional conduct 15
3.2.1 Legal practitioners generally 15
3.2.2 Lawyers in government service 17
4. GOVERNMENT LAWYERS AND PUBLIC SECTOR REGULATION 18
4.1 Public sector lawyers and the Public Administration Act 18
4.2 Public sector ethics and values 19
4.3 Public sector discipline and regulation 19
5. FURTHER REGULATION OF GOVERNMENT LAWYERS 21
5.1 Government lawyers and practising certificates 21
5.2 Directions and Guidance notes 31
6. CONCLUSION 33
Appendix A 35
CONSULTATIONS AND INTERVIEWS 35
Appendix B 38
TABLE OF COMPARATIVE JURISDICTIONS 38
Appendix C 39
RULES AND REGULATION OF GOVERNMENT LAWYERS 39
3Regulation of Government Lawyers
EXECUTIVE SUMMARY
This Review has its origins in the 2002 National Practice Model Law Project of the Standing Committee of
Attorneys-General. This Project developed nationally consistent standards and rules for the regulation of
the legal profession and ultimately resulted in the development of the National Legal Profession Model
Bill in 2003.
Victoria implemented the Model Bill through the Legal Profession Act 2004 (LPA).
The Model Bill and the LPA did not specifically address the regulation of government lawyers and the
LPA retains the pre-existing exemption of government lawyers from the obligation to hold a practising
certificate and the obligations which flow from that.
The purpose of this Review therefore is to examine the current position regarding the regulation of
lawyers employed by government or by statutory agencies whose work involves a form of legal practice.
Examination of the LPA reveals that, although government lawyers are not required to hold a practising
certificate even if their work constitutes legal practice, they are nonetheless bound by the general ethical
and professional duties prescribed by common law and can be subject to the disciplinary regime created
by the LPA. The Review therefore focussed specifically on the issue of whether government lawyers
should be required to hold a practising certificate.
The Review process involved extensive consultation with lawyers currently employed by government
Departments and a number of statutory agencies, with staff of the Legal Services Board and bodies
representing the profession. An analysis of the comparable position in other Australian jurisdictions, New
Zealand and England and Wales was also conducted.
The principal recommendation of the Review is that the current exemption of government lawyers
from the obligation to hold a practising certificate is no longer appropriate and should be removed.
Government lawyers constitute a significant sector of the legal profession and it is in their interests that
they be recognised as meeting the same professional standards as all other lawyers.
A survey of the equivalent legislation in other Australian jurisdictions and in the United Kingdom and
New Zealand indicates that there is no adequate policy basis for retaining the exemption from the
obligation to hold a practising certificate.
An important obligation flowing from the holding of a practising certificate is the requirement to fulfil
the Continuing Professional Development Rules applying to all other lawyers. If government lawyers are
required to meet the same professional development obligations as other lawyers, this will enhance the
quality of legal services provided to government and the professional status of government lawyers.
The Review identifies a number of other advantages which it is believed will flow from the requirement
for government lawyers to hold practising certificates. The holding of a practising certificate is one factor
considered by the courts in determining whether legal advice provided to government by its in-house
lawyers is protected by Legal Professional Privilege.
Government lawyers who hold practising certificates will be entitled to provide prescribed pre-admission
training for law graduates seeking to qualify for admission to practice and this capacity will enhance the
recruitment of graduates into government practice. Generally the holding of a practising certificate will
provide a degree of career flexibility and enable government lawyers to move from government practice
to private or corporate practice if desired.
The Review notes that not all legally qualified staff employed by government are engaged in work which
could be described as ‘legal practice’. Clearly only those employees who are engaged in ‘legal practice’
should be required to hold practising certificates and the Review provides a set of indicators which assists
in determining which employees come within this category.
The Review considers which type of practising certificate is appropriate for government lawyers and
recommends that generally they should hold a ‘corporate legal practitioner’ certificate. It recommends
4Regulation of Government Lawyers
that minor amendments be made to the Transport Accident Act 1986, the Accident Compensation Act 1985
and the State Trustees (State Owned Company) Act 1994 to make it clear that legal officers employed by
the Transport Accident Commission, the Victorian Workcover Authority and State Trustees who hold
corporate practising certificates are able to act for third parties if directed to do so by their employers.
The Review concludes that the cost to government of obliging all government lawyers engaged in legal
practice to hold a practising certificate will be minimal.
The Review also makes recommendations regarding the structure of Legal Units within Departments
and agencies to ensure as far as possible the capacity of government lawyers to provide independent
professional advice.
Finally the Review notes the role played by Guidance Notes issued by the Office of Legal Services Co-
ordination within the Commonwealth Attorney-General’s Department. It suggests that Guidance Notes
could be introduced to provide guidance on professional standards to Victorian government lawyers.
Since lawyers are employed in a range of departments and agencies, the Review suggests that the
Victorian Government Solicitor’s Office (VGSO) would be the appropriate body to produce such Notes
for the assistance of all government lawyers, given the VGSO’s role in providing legal services across
Government.
5Regulation of Government Lawyers
SUMMARY OF RECOMMENDATIONS
Recommendation 1:
The current exemption for government lawyers from the requirement to hold practising certificates
should be removed.
Recommendation 2:
As far as possible, the structure of a Legal Branch or Unit within a Department or government agency
should follow a law firm model. This means that:
t lawyers within the Unit should report to the Head of the Unit who should hold a practising certificate;
t the Head of Unit should be directly accountable to the Department Secretary or Agency Head;
t advice requested by a business unit should be provided direct to the business unit;
t legal files should be housed separately from other department files and should be clearly identified
as confidential legal files.
Recommendation 3:
Lawyers providing legal services should be identified as “Lawyers” or “Legal Officers” rather than as, for
example, Policy Officers or Managers.
Recommendation 4:
Departments and agencies should ensure that a clear understanding of the role of government lawyers,
in particular the independent nature of their advice, is developed and maintained.
Recommendation 5:
Government lawyers should take out a practising certificate if they undertake any of the following
functions as part of their professional role:
t provision of legal advice, that is advice on the legal meaning or legal effect of legislation or
documents;
t preparation of documents involving legal rights and obligations;
t conduct of litigation or proceedings before a court or tribunal;
t drafting and preparation of legislation, and settling of regulations, statutory instruments and other
forms of subordinate legislation.
Recommendation 6:
The Position Descriptions of government lawyers engaged in legal practice should refer to the
requirement to hold or be eligible to hold a practising certificate.
Recommendation 7:
The Transport Accident Act 1986, the Accident Compensation Act 1985 and the State Trustees (State Owned
Company) Act 1994 should be amended to make it clear that a legal officer employed by the Transport
Accident Commission, the Victorian Workcover Authority or State Trustees Limited who holds a corporate
practising certificate is able to act for third parties if directed to do so by his or her employer.
Recommendation 8:
If the requirement to hold a practising certificate is introduced, the practising certificate fee should be
paid by the Department or statutory authority.
6Regulation of Government Lawyers
Recommendation 9
The VGSO should develop a practice of issuing guidance notes for government lawyers on issues relevant
to their legal practice.
Recommenda tion 10:
Government Legal Services should develop a pro bono service delivery model for government lawyers in
consultation with relevant agencies.
GLOSSARY OF ABBREVIATIONS
Abbreviations used in this report
AGS: Australian Government Solicitor
CLE: Continuing Legal Education
CPD: Continuing Professional Development
GLG: Government Lawyers’ Group (a committee of the Law Institute Council)
LIV: Law Institute of Victoria
LPA: Legal Profession Act 2004
LPAR: Legal Profession (Admission) Rules 2008
LSB: Legal Services Board
OLSC: Office of Legal Services Co-ordination
OPP: Office of Public Prosecutions
PAA: Public Administration Act 2004
SRO: State Revenue Office
SSA: State Services Authority
TAC: Transport Accident Commission
VGS: Victorian Government Solicitor
VGSO: Victorian Government Solicitor’s Office
VLA: Victoria Legal Aid
VPS: Victorian Public Sector
VPSA: Victorian Public Service Agreement 2006
VWA: Victorian Workcover Authority
WRA: Workplace Relations Act 1996 (Cth)
7Regulation of Government Lawyers
1. INTRODUCTION
1.1 Background
The Review of the Regulation of Government Lawyers (the Review) was commissioned by the Attorney-
General for Victoria, the Hon Rob Hulls MP in February 2007.
The Review has its origins in the 2002 National Practice Model Laws Project of the Standing Committee of
Attorneys-General. This Project developed nationally consistent standards and rules for the regulation of
the legal profession and ultimately resulted in the development of the National Legal Profession Model
Bill in 2003 (the Model Bill).
Victoria adopted the Model Bill which became the Legal Profession Act 2004 (LPA). The Model Bill did not
specifically address the regulation of government lawyers. The Victorian Cabinet briefly considered the
issue when the Legal Profession Bill was being considered for in-principle approval.
Cabinet considered that the employment characteristics particular to government lawyers and the
impact of including them within the scope of the then proposed LPA warranted further investigation.
It was also decided to defer consideration of these issues pending completion of the review of post-
admission legal training which was completed in 2006.
The employment characteristics and regulatory issues identified at the time included:
t government lawyers had similar characteristics to corporate lawyers in that for the most part, their
principal client was also their employer;
t government lawyers performed a range of functions not all of which could be regarded as “legal
services” within the meaning of the LPA;
t government lawyers are generally exempt from a range of regulatory requirements imposed on
legal practitioners in private and corporate legal practice, such as practising certificates, professional
indemnity insurance, and fidelity fund levies and insurance.
At about the same time, government lawyers were becoming increasingly organised within the
mainstream profession. In October 2003, the Government Lawyers’ Group (GLG) was established
as a committee of the Law Institute Council. Its mission was to foster and promote the professional
development of government lawyers from all levels of federal, State and local government whether or
not they held a practising certificate. The GLG subsequently became the Government Lawyers’ Section.
In December 2004, the GLG published a position paper which set out a framework for the Group’s future
direction, and in November 2005 published the results of an on-line survey of government lawyers which
identified a range of concerns among government lawyers including the provision of pro bono services,
continuing professional development, practising certificates and ethics.1
These issues were subsequently the subject of discussions and correspondence between the Law
Institute of Victoria (LIV) and the Attorney-General.
The Attorney-General’s request for a review of the regulation of lawyers employed by the Victorian
Government and by statutory agencies established under Victorian legislation should be seen in light of
the national initiatives for the reform of the legal profession and the issues raised by the LIV.
While this Review attempts to address the various issues noted above, its scope is limited to the extent
that, for constitutional reasons, we were not able to consider the regulation of lawyers employed by the
Commonwealth Government practising in Victoria.
Similarly, we have not considered issues affecting lawyers employed within local government in any
detail as this group was strictly outside our terms of reference. Our inquiries indicate that the issues
relating to local government lawyers are essentially the same as those relating to lawyers employed by
State Government Departments and agencies.
1. For a summary of the survey, see “Government Lawyers Surveyed” (2006) 80(03) LIJ 15.
8Regulation of Government Lawyers
1.2 Terms of reference
The Attorney-General’s terms of reference requested a review of the regulation of lawyers employed by
the Victorian Government and by statutory agencies established under Victorian legislation.
We were requested to identify and consider the current regulatory arrangements of government lawyers
and to report on:
t whether it is desirable to regulate the professional activities of government lawyers having regard to
their employment characteristics and to current professional issues; and
t if so, options for their regulation.
The Attorney-General asked us to consider:
t whether government lawyers should be regulated to an equivalent level to those in private legal
practice in areas such as:
t holding current practising certificates; and
t undertaking mandatory continuing professional development;
t whether regulatory options would enhance the quality and security of in-house legal services and
advice, having regard to:
t existing public sector regulation; and
t the possible cost to Government of such options.
We were requested to consult widely within Government and with key non-Government stakeholders
and to report by 31 July 2007.
1.3 Consultation Process
As noted, the Terms of Reference required us to consult widely within Government and with key non-
Government stakeholders.
The consultation process commenced in April 2007 by the Secretary of the Department of Justice
writing to all other Departmental Secretaries, advising them of the Review and asking them to nominate
appropriate persons within their Department whom we could interview.
Following these letters, we arranged to interview representatives of all Departments. Broadly the persons
we interviewed were senior legal officers or the directors of legal services units within Departments.
We also arranged to interview representatives of the State Services Authority (SSA) and the larger
statutory agencies, including the Office of Chief Parliamentary Counsel, the Office of Public Prosecutions,
State Trustees, the Transport Accident Commission, the Victorian Workcover Authority, Victoria Legal Aid
and Victoria Police.
In addition we met with the Victorian Government Solicitor, the Manager of Government Legal Services,
the Director of Civil Law Policy, Department of Justice and the Director of Consumer Affairs.
We also met with senior staff from the State Revenue Office (SRO) (who subsequently provided us with a
very helpful written submission), staff of the Legal Services Board and the Legal Services Commissioner,
the Law Institute of Victoria, the Director of the Melbourne office of the Australian Government Solicitor
and representatives of the Australian Corporate Lawyers Association.
In total we conducted 28 face-to-face interviews and 10 telephone or email discussions (see Appendix A).
In the interviews with Departments and agencies, we sought details of the number of lawyers employed
in the Department or agency who could be said to be engaging in legal practice, whether or not they hold
practising certificates and the opinion of the interviewee on the issues specified in the Terms of Reference.
9Regulation of Government Lawyers
In the later part of the Review, we met with the Executive Committee of the LIV’s Government Lawyers’
Section to discuss some specific issues and concerns.
Shortly after many of these interviews, the issues were further discussed at a regular scheduled
meeting of the Government Lawyers Forum, convened by the Executive Director, Legal and Equity,
Department of Justice.
We also obtained information from the United Kingdom and New Zealand on the system of regulation
of government lawyers in those jurisdictions and have compiled details of the comparable position in all
other Australian jurisdictions under the National Legal Profession Model Bill legislation to the extent that
it has been introduced (Appendix B).
2. GOVERNMENT LAWYERS IN LEGAL PRACTICE
2.1 Role of government lawyers
The government is a very special client and a lawyer instructed by the government
faces particular issues and duties.2
Departments and statutory agencies employ a large number of legally qualified staff but not all of them work
in positions which require the use and application of their legal knowledge for the purpose of legal practice.
Of those who hold positions requiring legal knowledge, a significant number work in policy development
or other areas which could not be said to constitute “legal practice”. There would be no justification to
consider professional regulation of this category of legal staff.
In this Review, therefore, we have focussed on issues relating to those lawyers employed by government
and statutory agencies whose work can be said to constitute “legal practice” and we use the term
“government lawyers” to refer to this category of staff. We discuss in Section 5.1.6 below the difficulties
of defining this term and our recommended approach for those staff whose work combines both “legal
practice” and other categories of legal work, such as policy development.
In their professional role government lawyers share many characteristics and obligations with their
private and corporate sector counterparts.
All lawyers are bound by the fundamental ethical duties – to the client, the court, the profession and the
administration of justice (see Section 3.2.1). But the application of these duties may differ according to
the context in which a lawyer practises. For example, a private practitioner has many clients and the duty
to avoid a conflict of interest between clients may arise quite frequently and clearly.
A corporate lawyer has one client only – the corporation which employs him or her. The issue of conflict
of interest is less likely to arise, although if the corporate lawyer is consulted by two separate corporate
departments, he or she may receive conflicting instructions. But the lawyer’s client is the corporation itself
and this must dictate how the corporate lawyer handles advising different corporate departments (or the
employing corporation and a related or subsidiary corporation).
A government lawyer working in a statutory agency is unlikely to be confronted by a conflict of interest.
But a lawyer working in the legal unit of a Department may frequently receive instructions or requests for
advice from more than one business unit within the Department. Lawyers working in the VGSO are even
more likely to confront this situation.
In theory the government lawyer has one client: the Crown or the State.3 This means that a government
lawyer faced with conflicting or inconsistent instructions may face some particularly challenging issues.
Although the underlying issue of “Who is the client?” is the same for government and corporate lawyers,
a more abstract analysis is required of government lawyers who must try to identify the interests of the
government as a whole.
2. Selway, B, “ The Duties of Lawyers Acting for Government” (1999) 10 Public Law Review 114
3. Ibid, p.116
10Regulation of Government Lawyers
Another factor in government legal practice, which exists also in corporate practice, is the relevance of
policy. Some government lawyers may be able to work in the defined structure of a “Legal Branch” within the
department or agency in order to insulate themselves from the intermingling of policy questions and legal
questions. But not all government lawyers will be in a position to confine themselves to strictly legal work.
Others hold positions where the lawyer is expected to work on policy development as well as legal issues.
Similar issues arise for corporate lawyers asked to advise on business or management issues.
In private legal practice, commercial lawyers may be expected to develop a familiarity with a client’s
business so that the lawyer’s advice may take into account business objectives. But the great majority
of private practitioners have little difficulty confining themselves to legal advice.
This issue is of central importance when the client seeks to claim legal professional privilege over advice
provided by the lawyer. The courts have emphasised that privilege may only be successfully claimed over
legal advice and if the lawyer’s role mingles policy or business advice with legal advice, privilege may not
be upheld (see Section 5.1.3).
The third factor which differentiates government lawyers on the one hand from their corporate and
private colleagues on the other is that government lawyers owe a duty to assist their client in upholding
the rule of law and advancing the public interest. Although all lawyers owe a duty to the administration
of justice, and may not assist their clients to break the law, government itself has a duty to uphold the rule
of law and advance the public interest. Government lawyers must therefore assist their client in this role.4
This concept raises particular considerations for government lawyers. It is not for government lawyers
to advance their personal view of what constitutes the public interest. They must not cross the line
from giving advice in relation to the appropriateness of government processes to giving advice about
the appropriateness of government policy choices.5 But they are obliged to advise in the context of the
“accepted moral beliefs and practices of the relevant government system”.6
Issues and duties such as these rarely confront the private or corporate lawyer.
The experienced government lawyers whom we interviewed for this Review were very conscious of
all these aspects of their role and regarded the particular challenges of government legal practice as
contributing to their professional and career satisfaction.
2.2 Profile of Government Lawyers in Legal Practice
In our consultations we attempted to ascertain the approximate numbers of government lawyers
employed in each Department or agency. For several reasons, the numbers are only approximate, but
they do indicate the general size of the “government lawyer” sector, which is relevant to the potential cost
of any changes in regulation which might be adopted.
We estimate that there are approximately 175 government lawyers employed by Departments (including
separate units such as the VGSO and the SRO).
The statutory agencies in total employ approximately 600 government lawyers. However, if we subtract from
this figure the 210 lawyers employed by Victoria Legal Aid (VLA) (which is separately regulated by its own
legislation), the total for the agencies is 390. The great majority of these are employed by the Office of Public
Prosecutions (OPP), the Transport Accident Commission (TAC) and the Victorian Workcover Authority (VWA).
The total figure for statutory agencies includes 33 lawyers employed in smaller agencies and Boards
whom we surveyed by telephone but did not formally interview.
4. De Gruchy, R, Australian Government Solicitor, “Australian Government Lawyers Advancing the Public Interest”, paper delivered
at the 2007 Law Institute of Victoria Government Lawyers Conference, 6 July 2007.
5. Selway, op.cit. p.121
6. Selway, op.cit. p.122
11Regulation of Government Lawyers
The approximate total of government lawyers employed by Departments and statutory agencies,
therefore, is 565.7
A further 7 - 8 are understood to be employed by local government municipalities.
As to the nature of the legal work carried out by government lawyers, it varies according to the role of the
Department or agency but it includes;
t general legal advice
t advice on the interpretation of applicable legislation
t transactional work, including preparation of contracts and other commercial documents
t prosecutions and representation in tribunals such as VCAT
t drafting regulations and statutory instruments
t briefing of external counsel.
In the process of preparation for the consultations, it became clear to us that a key issue would be
whether government lawyers, although not currently obliged to do so, hold practising certificates issued
by the Legal Services Board (LSB), so we included this question in our interviews.
Approximately 200 of our total of 560-570 government lawyers (excluding VLA) hold practising
certificates, almost all of them being “corporate legal practitioner” certificates. A corporate legal
practitioner is defined by the LPA s.1.2.1 as an “Australian legal practitioner who engages in legal practice
as an employee of a person who, or body that, is not an Australian legal practitioner...or a law practice and
who provides legal services only to, and for the purposes of, his or her employer.”
VLA employs about 215 lawyers. The Legal Aid Act 1978 deems VLA to be an incorporated legal practice
and applies the LPA’s provisions relating to trust moneys and fidelity cover to VLA’s legal practice.
Accordingly, the VLA Managing Director holds a “full” local practising certificate. Other VLA lawyers hold
employee practising certificates. These arrangements reflect the fact that a major focus of VLA’s activities
is the direct provision of legal services to third parties, that is legally assisted persons.
At least three other agencies, the TAC, VWA and State Trustees, also act for “third party” clients: the TAC
and VWA for nominated driver defendants and employers, and State Trustees for administrators of
estates. This raises issues about the appropriate type of practising certificates held by lawyers working in
agencies such as these and we will return to this point later in this report.
Consultation also indicated that government lawyers, with the exception of the VGSO and VLA, do not
operate trust accounts. In addition, because the Victorian Government self-insures and because of the
relatively low-risk nature of their work, Government legal practices generally do not hold professional
indemnity insurance. The exception is VLA which obtains professional indemnity insurance through the
Victorian Managed Insurance Authority.
3. GOVERNMENT LAWYERS AND LEGAL PROFESSION REGULATION
3.1 Regulation of government lawyers under the Legal Profession Act
The extent to which government lawyers are regulated by the LPA is not immediately apparent.
LPA s.2.2.2 (1) contains the general prohibition on unqualified legal practice:
A person must not engage in legal practice in this jurisdiction unless the person
is an Australian legal practitioner.
7. In 2006 the Manager Government Legal Services compiled a Table of “In-House Legal Capacity” in relation to Departments only.
In this survey lawyers are included according to the percentage of their time devoted to “Legal Advising and Court Work” so the
resulting total is less than ours, where we have calculated numbers of individual staff whose work includes ‘legal practice’.
12Regulation of Government Lawyers
An Australian legal practitioner is defined in LPA s.1.2.3(a) as an “Australian lawyer who holds a current
local practising certificate or a current interstate practising certificate”.
But government lawyers are exempt from the prohibition in LPA s.2.2.2(1). By subsection (2) the
prohibition does not apply to;
(g) a person who does anything in the course of their employment with the Crown
or a public authority or in the performance of duties under an appointment by
the Governor in Council.
Thus government lawyers, even those whose work unarguably amounts to engaging in legal practice, are
not required by the Act to hold a practising certificate.
This exemption has been carried over from previous legal profession legislation and is replicated to
varying degrees in the legislation in other jurisdictions (see below).
The exemption appears to have originated from introduction of the practising certificate system in the
1940s as a means of regulating solicitors’ trust accounts. The Legal Profession Practice Act 1958 required
every solicitor who intended to practise to hold a current practising certificate.
In Blackall v Trotter No.18, the Victorian Supreme Court held that the solicitor to the Insurance
Commissioner was not required to hold a practising certificate because he was an officer of the Crown. In
performing the duties of office, he was not engaged in legal practice on his own account and accordingly
not a “solicitor” within the meaning of the 1958 Act. The Court noted that officers of the Crown were
not included in the practising certificate scheme because the scheme was a means of effectuating trust
account audits and examination which was assumed to be inapplicable to them.
After the repeal of the 1958 Act, the Legal Practice Act 1996 s.315(1)(d) specifically provided that persons
acting in the course of their employment with the Crown or a public authority were taken not to be
engaged in legal practice and accordingly exempted from the requirement to hold a practising certificate.
However, it appears that LPA Chapter 4, Complaints and Discipline, applies to government lawyers
regardless of whether they hold a practising certificate.
LPA s. 4.1.3 (1) provides:
This Chapter applies to Australian lawyers and former Australian lawyers in relation
to conduct occurring while they were Australian lawyers, but not Australian legal
practitioners, in the same way as it applies to Australian legal practitioners and former
Australian legal practitioners, and so applies with any necessary modifications.
An “Australian lawyer” is a person who is admitted to the legal profession under this Act or a
corresponding law (LPA s.1.2.2(a)).
Thus, all lawyers employed by government and public authorities who have been admitted to practice
are subject to the Complaints and Discipline jurisdiction of the LPA regardless of whether they hold
practising certificates.
It should also be noted that the fact of admission makes the lawyer an officer of the Supreme Court (LPA
s.2.3.9) and subject to the inherent jurisdiction of the Supreme Court.
The scope of regulation under the LPA’s Complaints and Discipline provisions and under the Court’s
inherent jurisdiction will be examined in the next section of this report. But the effect of such regulation
is that the focus of our review became the relatively specific question of whether government lawyers
should continue to be exempt from the prohibition on unqualified legal practice or whether they should
be obliged to hold practising certificates.
8. [1969] VR 939.
13Regulation of Government Lawyers
Mandatory Continuing Professional Development (CPD)
All Victorian lawyers who are Australian legal practitioners are required to complete a prescribed amount
of Continuing Professional Development (CPD) (solicitors and barristers). Each branch of the profession
has passed Rules (with the approval of the LSB) which constitute professional rules within the meaning of
LPA s.3.2.9. Failure to comply with applicable professional rules is capable of constituting unsatisfactory
professional conduct or professional misconduct (LPA ss.4.4.4(a)).
As a consequence of the exemption of government lawyers from the obligation to hold a practising
certificate, they are not subject to the CPD Rules which apply to their branch of the profession. (Although
the great majority of government lawyers do solicitors’ work, a small number, such as lawyers in the Office
of Chief Parliamentary Counsel, do work which would more closely align them with barristers.)
The fact that under the present requirements government lawyers are not subject to any mandatory
continuing profession development obligations is an important factor in our consideration of whether
the exemption from practising certificates should be maintained.
Comparison with other jurisdictions
Despite the development of the Model Bill, the position of government lawyers, and in particular whether
they are obliged to hold practising certificates if they are engaged in work which constitutes “legal
practice’’, varies. All jurisdictions maintain the prohibition on unqualified practice but the extent to which
government lawyers are exempted from the prohibition varies. It also appears that, in those jurisdictions
where government lawyers are not formally required to hold practising certificates, many choose to do
so, as in Victoria. Appendix B is a Table of the relevant provisions in other Australian jurisdictions.
Australian Capital Territory
The prohibition on unqualified practice does not apply to a public employee, a member of the Australian
Public Service or a member of the defence force preparing an instrument, or carrying out any other
activity, in the course of his or her duties.
New South Wales
Government lawyers are exempt from the prohibition on unqualified practice and so are not required
by the Legal Profession Act 2004 (NSW) to hold a practising certificate. However it is government policy
that all government lawyers who might be said to be engaging in legal practice should in fact take out
practising certificates.
Northern Territory
There is no provision exempting government lawyers from the prohibition and other provisions referring
to government lawyers’ practising certificates mean that they are required to hold a certificate.
Queensland
The prohibition does not apply to “government legal officers” engaged in “government work” (as defined
in the legislation).
South Australia
There is no provision exempting government lawyers from the prohibition on unqualified practice.
Government lawyers are therefore required to hold a practising certificate.
Tasmania
Under the Legal Profession Act 2007 (TAS), the prohibition does not apply to legal practice engaged in
pursuant to employment under the State Service Act 2000.
14Regulation of Government Lawyers
Western Australia
Under the Legal Profession Act 2008 (WA) the prohibition does not apply to a public officer doing “legal
work” in the course of his or her duties (as defined in the legislation).
Commonwealth
The issues relating to lawyers employed by the Commonwealth Government and Commonwealth
statutory agencies are obviously different from those affecting their State and Territory counterparts.
Commonwealth lawyers do not have a “home” jurisdiction to which they could be answerable but it may
not be constitutional for State and Territory legislatures to require Commonwealth government lawyers
practising within their jurisdiction to hold a practising certificate. And as a matter of practicality, as
Commonwealth employees may be posted to offices across Australia, it would be extremely inconvenient
if Commonwealth lawyers were required to comply with a different regulatory regime according to the
differing locations of the offices to which they were assigned.
Our inquiries indicate that the Commonwealth Office of Legal Services Co-ordination within the Attorney-
General’s Department has directed Departments and agencies to make their own decision as to whether
their legal employees should take out a practising certificate in the jurisdiction in which they work. We
understand that the number of Commonwealth lawyers who in fact hold practising certificates is very low.
Special provisions govern the position of lawyers employed in the Attorney-General’s Department and
the Australian Government Solicitor’s office. Under the Judiciary Act 1903 (Cth), both categories of lawyers
are “not subject to a law of a State or Territory that relates to legal practitioners except to the extent that
such laws impose rights, duties or obligations on legal practitioners in relation to their clients or to the
courts or provide for disciplinary proceedings in relation to the misconduct of legal practitioners.”9
Thus the position of these lawyers is in effect the same as that of Victorian government lawyers under
our present legislation: they are not required to take out practising certificates but may be subject to the
professional discipline regime of the State or Territory where they practise.
England and Wales
Lawyers working in Government Departments and in some statutory agencies are all employed by
the Government Legal Service. They are subject to the general regulation of the professional bodies
but solicitors are exempt from the requirement to hold a practising certificate, although barristers are
required by the Bar Council to hold a certificate.
New Zealand
There is no special provision for government lawyers. They are required to hold a practising certificate
and are subject to the same regulatory regime as all other practitioners.
3.2 Principles of legal professional conduct
3.2.1 Legal practitioners generally
The common law imposes on lawyers four traditional categories of ethical or professional conduct duties:-
t the duty to the client;
t the duty to the court;
t the duty to other practitioners; and
t the duty to the administration of justice.
9. ss.55E and 55Q
15Regulation of Government Lawyers
Duty to the client
The fundamental duty to the client is to act in the client’s interest, within the limits imposed by the law
(and by other duties). This therefore requires the lawyer to be competent (not to accept a retainer unless
the lawyer has the skill and knowledge to carry it out); to maintain the client’s confidences (the duty of
confidentiality); and to avoid conflicts of interest (the duty of loyalty).
Duty to the court
This is often referred to as the duty of candour, or the duty not to mislead the court.
Thus a lawyer may not make a statement of fact to the court which he or she knows to be incorrect or
untrue, even though he or she may have been expressly instructed to do so by the client.
Similarly the lawyer may not lead evidence which he or she knows to be untrue (such as a fabricated alibi)
or submit false documents, such as affidavits.
The duty even extends to forbidding lawyers from creating a “misleading impression” in the mind of the
court by statements which are half-truths.
The duty to the court takes precedence over the duty to the client, so that a lawyer may not mislead the
court for the purpose of advancing the client’s interest. The duty is founded on the lawyer’s role as an
officer of the court and has been described as a “touchstone of the adversary system.”10
Duty to other practitioners
This encompasses acting with honesty, fairness and courtesy in dealing with other practitioners and
includes honouring undertakings. Once again it can be seen that this duty may limit a lawyer’s capacity
to advance the client’s interest.
Duty to the administration of justice
This duty is broader than the duty to the court. The fundamental principle is that a lawyer must uphold
the law, and must act lawfully.
However it can also be seen to be inclusive of the duty to the court, because it includes a duty not to
abuse the process of the court, by, for example, commencing civil proceedings which have no legal
foundation11 or by engaging in unnecessary delay and thereby wasting the court’s and the community’s
time and money.
These common law principles of a lawyer’s ethical obligations underlie the concepts of “unsatisfactory
professional conduct” and “professional misconduct”. These concepts can be the subject of disciplinary
proceedings under LPA Chapter 4. This chapter applies to Australian lawyers, as well as to legal practitioners,
(see Section 3.1 above). Government lawyers, as officers of the court (LPA s.2.3.9) are bound by these
common law duties and may be the subject of complaints under LPA Chapter 4 if they breach them.
Professional Conduct Rules
Both professional associations have passed professional rules governing Professional Conduct and
Practice.12
These rules apply to Australian legal practitioners, that is, those who hold a practising certificate as either
a solicitor or a barrister.
Both sets of rules have two basic functions. They elaborate upon the common law duties by dissecting
each duty into its specific elements and providing examples. Secondly, they include rules on issues such
as costs and fees, which would not normally be regarded as the subject of ethical duties but rather are
10. Dal Pont, G, Lawyers’ Professional Responsibility (3rd ed), Lawbook Co, Sydney, 2006, p.385.
11. Flower & Hart (a firm) v White Industries (Qld) Pty. Ltd. (1999) 87 FCR 134
12. Law Institute of Victoria, Professional Conduct and Practice Rules 2005; Victorian Bar Inc, Practice Rules 2005
16Regulation of Government Lawyers
rules of practice. For example, the Law Institute Rules include rules on such matters as hours of practice
and practice names13 while the Bar Rules cover the administration of fees and the role of clerks.14
Because the professional conduct rules apply to Australian legal practitioners, they do not apply to
government lawyers unless they have chosen to take out a practising certificate.
3.2.2 Lawyers in government service
As well as the duties noted above, Government lawyers are also required to comply with the ethical
duties of public servants. The public sector values of responsiveness, integrity, impartiality, accountability,
respect, leadership and commitment to human rights are contained in s.7 of the Public Administration Act
2004 (PAA). The key ethical duties of public servants have been summarised by Selway15 as follows:
Selflessness Decisions should be made solely in terms of the public interest. Decisions should not
be based upon any financial gain to the decision-maker, his or her family or friends.
Integrity Officials should not be under any financial or other obligations to outside individuals
or organisations that might influence them in the performance of their official duties.
Objectivity Officials should make choices on merit.
Honesty Officials have a duty to disclose any conflicts of interest and to take steps to resolve
the conflict in a way that protects the public interest.
Legality Officials have a duty to comply with the law and with any lawful direction given
to them.
Government lawyers also have particular professional duties to the judicial system, judicial independence
and some special considerations relating to government legal practice. Selway summarises these as
follows:
Duty to the judicial system. The Crown is expected to be a model litigant. Government lawyers have
duties to the court
t PGEJTDMPTVSF
t OPUUPBCVTFUIFDPVSUTQSPDFTT
t OPUUPDPSSVQUUIFBENJOJTUSBUJPOPGKVTUJDF BOE
t UPDPOEVDUDBTFTFóDJFOUMZBOEFYQFEJUJPVTMZ
Duty relating to judicial A government lawyer (including the Attorney-General) has a duty to
independence protect and safeguard the independence of the judiciary.
Special considerations relating Government lawyers are subject to the other ethical duties of the
to government practice profession but only to the extent they are properly applicable. For
example, it would not be considered unethical for a government lawyer
carrying out an investigation pursuant to statute to communicate with
an unrepresented person.
3.3 Lawyers’ discipline and complaints: principles and structures
3.3.1 Misconduct and unsatisfactory conduct
As noted in Section 3.1, government lawyers who are admitted to the profession are subject to the
inherent jurisdiction of the Supreme Court as officers of the Court. This means that they may be
sanctioned by the Supreme Court for misconduct, that is conduct “which would reasonably be regarded
13. Rule 36
14. Part VIII
15. Op. cit., p. 122.
17Regulation of Government Lawyers
as disgraceful or dishonourable by professional brethren of good repute and competency”.16 Sanctions
could include striking a lawyer off the roll of practitioners.
In addition, LPA ss.4.4.3, 4.4.4 and 4.4.6 define misconduct as including:
t unsatisfactory conduct which amounts to a substantial or consistent failure to reach reasonable
standards of competence and diligence;
t conduct (whether occurring within a law practice or otherwise) which would justify a finding that a
person was not a fit and proper person to practise law;
t wilful or reckless contravention of the LPA or regulations;
t committing serious offences, tax offences or offences involving dishonesty;
t becoming insolvent;
t becoming disqualified from managing a corporation;
t wilful or reckless failure to comply with a condition of a practising certificate; and
t failure to comply with certain undertakings.
Government lawyers may also be guilty of unsatisfactory conduct which LPA s.4.4.2 defines as “conduct
... that falls short of the standard of competence and diligence that a member of the public is entitled to
expect of a reasonably competent Australian legal practitioner”. Unsatisfactory conduct is generally less
serious types of conduct and includes a number of the behaviours noted above (LPA s.4.4.4, 4.4.5).
3.3.2 The Legal Profession Act disciplinary framework
The behaviour of government lawyers may be investigated by the Legal Services Commissioner or a
prescribed body such as the LIV and the Victorian Bar (LPA Part 4.4 Div 3).
In investigating a complaint against a government lawyer, the Commissioner or her delegate may require
the lawyer to provide a written explanation or produce relevant documents (LPA s.4.4.11), and depending
on the seriousness of the matter, take no action or refer the complaint to the Legal Practice List of VCAT
(LPA s.4.4.13).
VCAT may make a recommendation to the Supreme Court that a government lawyer be struck off the
roll of practitioners, or may suspend or cancel his or her practising certificate, or impose conditions,
restrictions or limitations on a practising certificate (LPA s.4.4.17).
VCAT may also make a wide range of other orders including fining a government lawyer up to $10,000,
ordering the lawyer to undergo further legal education, supervised legal practice or periodic inspection.
VCAT may also reprimand or admonish the lawyer (LPA s.4.4.19).
In addition, the LSB may amend, suspend or cancel a government lawyer’s practising certificate if
it considers that the lawyer is no longer a fit and proper person to hold a practising certificate, or if
appropriate arrangements have not been made in relation to the lawyer’s professional indemnity
insurance (LPA ss.2.4.19-2.4.29).
4. GOVERNMENT LAWYERS AND PUBLIC SECTOR REGULATION
4.1 Public sector lawyers and the Public Administration Act
The PAA regulates the public sector, that is the public service, public entities (bodies created by
legislation, the Governor in Council or a minister and owned by government such as statutory authorities,
or entities where government has control of a board of directors such as corporations and incorporated
associations), and “special bodies” (bodies which operate with a level of autonomy in their functions, such
as the Ombudsman, the Auditor-General and Victoria Police).
16. Re a Solicitor [1912] 1 KB 302, 311.
18Regulation of Government Lawyers
The PAA also creates a small category of exempt bodies to which the Act does not broadly apply, such as
the courts, local government, universities, the OPP, parliamentary committees and inter-jurisdictional and
intergovernmental entities. The OPP’s status as an exempt body which is not broadly subject to the PAA is
subject to s.40(3) of the Public Prosecutions Act 1994 which deems OPP staff to be employed under the PAA.
It follows that lawyers employed within the public sector are subject to the provisions of the PAA.
As a result, government lawyers are bound by a range of public sector values and principles intended to
ensure the provision of frank and impartial advice, and codes of conduct, and are subject to particular
disciplinary and regulatory provisions.
4.2 Public sector ethics and values
4.2.1 Public sector values and employment principles
Our consultation indicated that it was generally accepted that the statutory public sector values and
employment principles are not inconsistent with the principles of legal professional conduct set out in
Section 3.2.1, although the two sets of principles do have different focuses.
As noted in Section 3.2.2, the seven key public sector values of responsiveness, integrity, impartiality,
accountability, respect, leadership and commitment to human rights are set out in PAA s.7. Although the
values do not of themselves create any legal rights or give rise to any civil cause of action, Department
Secretaries and other public sector body heads are required to promote the values.
Public sector employment principles are intended to ensure that employment decisions are merit based,
and that employees are treated fairly and have equal employment opportunity and reasonable avenues
of redress against unfair or unreasonable treatment. The employment principles also oblige public service
heads to foster the development of a career public service (PAA s.8).
4.2.2 Codes of conduct
The Public Sector Standards Commissioner, a member of the SSA, may issue codes of conduct to promote
adherence to the public sector values (PAA s.63).
Codes of conduct are binding on public sector employees and other public officials. A contravention of
the code can constitute misconduct.
The current principal code of conduct is contained in Code of Conduct for Victorian Public Sector Employees
(No.1) 2007. The 2007 Code prescribes the behaviour expected of public sector employees by describing
the behaviours which meet the public sector values in PAA s.7.
4.3 Public sector discipline and regulation
4.3.1 Regulatory and disciplinary principles and structure
Victorian Department Secretaries and other VPS heads have all the powers and duties of an employer
on behalf of the Crown, including assigning work and discipline. These powers must be exercised in
accordance with the public sector values, codes of conduct and public sector employment principles
noted above (PAA s.20).
Public sector employment heads are bound by the public sector employment principles noted above
including the requirements for employment processes which ensure merit-based employment decisions
and fair and reasonable treatment of public sector employees (PAA s.8).
The SSA has developed binding standards in relation to the public sector employment principles in PAA
s.8, as well as guidelines to assist public sector organisations in the application of the standards.17
As well as the PAA, VPS employment is also governed by the Victorian Public Service Agreement 2006
(VPSA) which is made under the Workplace Relations Act 1996 (Cth)(WRA).
17. www.ssa.vic.gov.au accessed 11/7/07
19Regulation of Government Lawyers
Clause 13 of the VPSA applies s.170CM (now s.661) of the WRA and allows termination of employment
for reasons set out in PAA s.33. Grounds for termination include redundancy, criminal behaviour, serious
misconduct, inefficiency and incompetence, and abandonment of employment (PAA s.33(1)).
‘Serious misconduct’ is not defined in the PAA. However, WRA s.661 describes “serious misconduct” as
misconduct of such a nature that it would be unreasonable to require the employer to continue the
employment of the employee concerned during the required period. This definition has been held to be
broadly consistent with its definition at common law.18
VPSA clause 13 also sets out notice periods and other procedural aspects relating to employment
termination.
The combined effect of PAA ss. 8, 20 and 33 requires Departmental Secretaries and other VPS heads to
afford fair and reasonable treatment to an employee who is to be or is being dismissed.19 This is reinforced
by VPSA clause 17 which requires VPS employees to be afforded procedural fairness for matters involving
unsatisfactory work performance or behaviour.
Regulations may be made to establish procedures for dealing with allegations of employee misconduct,
and to impose a disciplinary regime (PAA s.22).
Public servants have a right to have a review of any action taken in relation to their employment (PAA
s.64). The Public Administration (Review of Actions) Regulations 2005 prescribe procedures for reviewing
actions relating to the employment of public sector employees. These include an initial departmental
review process and referral to the Public Sector Standards Commissioner.
4.3.2 Are the LPA and PAA disciplinary principles and structures inconsistent?
The fact that lawyers who are employed within the VPS to provide legal services will be regulated by
both the LPA and the PAA raises the question of whether there could be inconsistencies between the two
regulatory regimes.
Our consultations indicated general acceptance that the systems operate satisfactorily side-by-side. Most
interviewees felt there was a degree of compatibility and congruency between the LPA and the PAA in
this regard.
A number of interviewees noted that corporate lawyers faced similar issues in that they are regulated
under the Corporations Law and the LPA. It was also felt that other professional occupations within
the VPS faced the same issue as government lawyers: occupational regulation with regard to the
performance of their professional activities, and regulation under the PAA with regard to their activities as
public sector employees.
These responses probably reflect the different focuses of the LPA and the PAA. The disciplinary and
regulatory arrangements in the PAA may be seen in the context of the PAA’s purpose in recognising that
the fundamental role of the public sector is to serve the public interest. It was noted in the Bill’s Second
Reading Speech that an objective and impartial public service is fundamental to the Westminster system
of government since loss of impartiality ultimately leads to an erosion of trust in government. To this end,
the PAA is intended to strengthen the principles of public sector employment and the need to provide a
more integrated service delivery across government.20
On the other hand, the disciplinary and regulatory structures in the LPA are directed at lawyers’
relationships with and obligations to the client, the community and the court. Conduct which constitutes
unsatisfactory professional conduct and professional misconduct includes breaches of standards of
18. Paras v Department of Infrastructure [2006] FCA 622 (Unreported, Young J, 19 May 2006), [10]. Note that regulations may be made
under the PAA to establish procedures for dealing with allegations of ‘misconduct’. For these purposes, ‘misconduct’ is defined
as improper conduct, a contravention of a lawful direction, the improper use of office for personal gain and the improper use of
information (PAA s.22).
19. Ibid. [6]. Courts will also imply a duty on public sector employers to comply with procedural fairness before dismissing an employee:
Jarratt v Commissioner for Police for NSW (2005) 221 ALR 95.
20. Victoria, Parliamentary Debates, Legislative Assembly, 16 November 2004 (Steve Bracks, Premier).
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