The Australian Government Solicitor was established as a body corporate by section 55E of the Judiciary Act which came into operation on 1 July 1984.
The Australian Government Solicitor is the 'firm name' under which the legal service functions of a solicitor acting for the Commonwealth and associated agencies and persons are carried out by professionally qualified officers of theAttorney-General's Department.
The Australian Government Solicitor was created to replace the personal office of the Crown Solicitor. The Australian Government Solicitor is empowered to act as solicitor for all the agencies for which the Crown Solicitor had previously been empowered to act. Hence, the Australian Government Solicitor nominally took on all the functions which had previously been the responsibility of the Crown Solicitor and the Deputy Crown Solicitors for each State and
Territory.
The background to the creation of the Australian Government Solicitor lies in a restructuring of the Attorney-General's Department in 1984. The purpose of the abolition of the Crown Solicitor and the creation of the Australian Government Solicitor was to:
- integrate the legal services provided by the Attorney-General's
Department in a more efficient way;
- enhance control of the litigation by enabling a number of
professionally qualified persons to act on behalf of the Australian
Government Solicitor; and
- devolve responsibility for the conduct of the Commonwealth's legal
work (particularly litigation) in each State and Territory to those
actually performing the work at the local level.
The work done in the name of the Australian Government Solicitor encompasses litigation in which the Commonwealth or its authorities are involved. This includes prosecutions on behalf of the Director of Public Prosecutions in those States and Territories where the Director has not established an office. The work also includes commercial and conveyancing work for departments and authorities, including major commercial work for Commonwealth procurement
authorities. Under the Judiciary Act the Australian Government is entitled to practise as a solicitor in any court, and is entitled to all the rights and privileges of a solicitor in each State or Territory.
Section 55E of the Judiciary Act empowers the Australian Government Solicitor to act for:
(a) the Crown in the right of the Commonwealth
(b) the Commonwealth
(c) a body established by a Commonwealth Act or a law of a Territory
other than the Northern Territory
(d) a Commonwealth Minister
(e) an officer of, or a person employed by:
(i) the Commonealth; or
(ii) a body established by a Commonwealth Act or a law of a
Territory other than the Northern Territory;
(f) a person holding office under a Commonwealth Act or a law of a
Territory other than the Northern Territory;
(g) a member of the Defence Force;
(h) a person suing or being sued on behalf of the Commonwealth; (i)
any other person or body for whom the Attorney-General requests
the Australian Government Solicitor to act.
The Australian Government Solicitor is, in effect, the 'firm name' under which the legal service functions of the Attorney-General's Department are performed. Under section 55E of the Judiciary Act, the Secretary to the Attorney-General's Department may act in the name of the Australian Government Solicitor. By the same legislation the Secretary is also empowered to authorise professionally qualified officers of the Department to act in the name of the Australian Government Solicitor. The Director of Legal Services in each
State and Territory and a number of senior officers in the Central Office have been so authorised. Legal documents produced in regional offices bear the name of the senior lawyer acting in the name of the Australian Government Solicitor for the region, where formerly the name of the Deputy Crown Solicitor was used.
The Judiciary Act (section 55E (9)) specifically imposes on each officer empowered to act in the name of the Australian Government Solicitor the ordinary professional duties and obligations of the solicitor. The legislation also makes officers subject to local jurisdiction over the conduct of solicitors.
All the regional business of the Attorney-General's Department is conducted by the Director of Legal Services in each of the
Department's State and Territory regional offices in the name of the Australian Government Solicitor. The Directors of Legal Services report directly to the Secretary of the Department. In this way their work in the name of the Australian Government Solicitor is controlled by the Attorney-General's Department.
Unlike the personal office of Crown Solicitor, the Australian Government Solicitor is purely a legal entity, that it, there is no actual incumbent. It is a nominal corporate body which has no members and employs no staff. All those who perform work in the name of the Australian Government Solicitor are employed under the Attorney-General's Department. (See agency registration for CA 5 and CA 4421).
From 1 July 2015 the AGS became more fully integrated within the Attorney Generals Department though it retained its own internal structure.
In July 2015 the AGS was divided into three groups:
1 Office of General Counsel - specialises in the provision of legal advice and assistance to the Commonwealth spanning the spectrum of the Commonwealth’s activities across all portfolios.
2 AGS Dispute Resolution - is the government specialist in resolving and managing disputes – through alternative dispute resolution (including mediation, arbitration and conciliation) and litigation.
3 AGS Commercial - expert in advising on areas such as taxation, information and communication technology projects, grants and funding, consumer and competition, intellectual property, media and communications, environment and resources, State and intergovernmental agreements, infrastructure, construction, property and leasing, insurance, banking and finance, procurement, tendering and contracting probity, process and risk management.
Sources
1. Commonwealth of Australia Gazette, No S25
2. Attorney-General's Department and Office of Parliamentary Counsel
Annual Reports, 1983-84, Commonwealth Parliamentary Paper, No 162
of 1985, pp 7-14
3. Attorney-General's Department and Office of Parliamentary Counsel
Annual Reports, 1984-85, Commonwealth Parliamentary Paper, No 88
of 1986, pp 109-111
4. AGS Website - 9 July 2015
Historical agency address
50 Blackall Street, Barton ACT, 2600 (as at 1 July 2015)
Legislation administeredCreation: Commonwealth of Australia Acts, No. 12 of 1984, Judiciary Amendment Act (No. 2) 1984; No. 10 of 1984, Australian Government Solicitor (Consequential Amendments) Act 1984.