Jack Waterford | Robodebt royal commission should affirm one thing about govt legal advice

On paper, one would think that requirements imposed under the Commonwealth's legal service directions, focused at ensuring that the Commonwealth is a "model litigant," would seem to make clear that the government's legal advisers have a primary duty to the public interest, and to the public as much as to the government.

The professional obligations of lawyers are quite clear and provide protection for the lawyer-public servant giving an agency advice that is unwelcome, or unresponsive (as illegal) to the enthusiasm of some superior or politician.

That does not mean that lawyers should not be creatively involved in assisting an agency to resolve a practical problem of the administration of legislation or legal requirement.

But it does mean that government lawyers should not be looking for lawyers seeking loopholes or clever tricks to avoid the plain words or intention of the law.

It also means that lawyers should never be party to means of avoiding the operation of the law.

That includes an agency policy of avoiding appeals to superior courts in cases where administrative tribunals have found a scheme (for example robodebt) to be unlawful.

It has been said that the Department of Social Services did not "recognise" as binding adverse decisions in the AAT, and that a policy decision to ignore unfavourable decisions meant that the agency did not have to deal with what were in effect judicial findings about unlawfulness.

As it happens, the commission is soon examining a former minister for social security, and later attorney-general, Christian Porter.

One would think that he must have been briefed by Social Services or his private office about serious doubts about the legality of robodebt. Or perhaps he himself had the legal insight to recognise such problems.

Later, one might have expected that the first law officer would have been briefed by his department, assuming it was doing its job, about a sequence of decisions by judges and quasi-judicial officers finding the robodebt mulchings to be unlawful.

So far, however, no evidence has emerged about what he knew and when, or more importantly, what he did when he became aware. At that point, it was not an academic question because the attorney-general has, or ought to have, a special obligation to protect the rule of law.

Perhaps "ought to have" is the right word, because Porter always seemed to have a strange view of his duties as attorney-general. In recent days, the Department of Prime Minister and Cabinet has lost an FOI case in the AAT (from an appeal lodged by former senator Rex Patrick, an indefatigable FOI campaigner) over the advice provided to Scott Morrison about his appointment to multiple ministries.

Having laboured mightily and in detail against disclosure, the department is now reported to have said that it is having difficulties locating the advice in question!

Porter has also refused to explain or show copies of advice he is said to have given Morrison about the right of ministers to override departmental recommendations and procedures laid down by law in giving out grants.

His advice was said to be based on the ultimate constitutional fact that ministers are responsible for departments. Not a single lawyer or scholar has supported his view, even though he was providing the government's alibi.

A recent British parliamentary report on the role of British law officers has cast scorn on an operating principle said to have infected British advising.

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This suggested that lawyers should support executive action if "a respectable argument" could be mounted about its being lawful.

An argument in short that could be mounted to serve the government's interests, even if it was not thought the best or the right argument. Several judges commented that this is not a very high standard, and comes well short of model litigant status.

The new British approach, which I fear has percolated here, was said to reflect criticisms of a former attorney-general, Suella Braverman, that "government lawyers were too cautious, and this has hampered ministerial policy objectives needlessly."

She said lawyers had to move from a "the computer says no" approach to encourage a "solutions-based approach and to use innovative legal thinking," with a "private sector approach to client service."

What we want and what we need is an affirmation by the robodebt commission that the "client" is never the narrow interests of the department or the minister. The client is the public and the public interest. Lawyers and public servants who forget that should lose the protection of the law.