DSS should provide regular training on the core duties and responsibilities to be set out in the Legal Practice Standards which should include: an emphasis on the duty to avoid any compromise to their integrity and professional independence and the challenges that may be presented to a government lawyer in fulfilling that obligation appropriate statutory and case authority references in advice writing.
The Government accepts this recommendation.
The Government recognises the importance of providing training and development to its inhouse legal officers, to ensure that they are able to deliver services in line with Legal Practice Standards.
The Department of Social Services (DSS) is establishing a regular training program for in-house lawyers that will include a focus on core studies and responsibilities laid down in DSS Legal Practice Standards. DSS is also actively taking steps to engage providers to deliver integrity and professional independence training for all lawyers in the Department. This training will be in addition to the lawyers' obligation to complete Continuing Legal Education (CLE) associated with maintaining the required Practising Certificate.
DSS has also engaged with Services Australia and other agencies within the social services portfolio regarding the opportunities for shared training for legal staff across the social services portfolio. Areas in focus include training on legal ethics, obligations of in-house lawyers and principles of advice writing.
DSS should issue a further direction providing that, if the administering agency decides that a draft advice need not be provided in final form, that decision and the reasons for it must be documented. One of those steps–finalisation, or a documented decision against finalisation – should have been taken within three months of the receipt of the draft advice.
The Government accepts this recommendation.
The Government agrees that legal advice cannot be disregarded because it is in draft form and it is never acceptable for legal advice not to be finalised on the basis that the advice may be inconvenient or unwelcome.
The Secretary of the Department of Social Services issued guidance on the practice of requesting, clarifying and finalising legal advice on 14 November 2022. The Chief Counsel of the Department of Social Services has also issued Legal Services Practice guidance on obtaining external legal advice, including draft advice, clearly articulating that external advice is not to be left in draft form indefinitely, but should be finalised as soon as is practicable.
The Government also considers it is important that the treatment of draft legal advice is consistent across agencies. On 15 May 2023, the Secretary of the Attorney-General's Department circulated initial guidance to all the heads of legal services functions across the APS on the use of draft legal advice within government, making it clear that legal advice cannot be
