Time for Roxon to upset the litigation trough
Attorney-General Nicola Roxon. Photo: Andrew Meares
Putting the snout in the trough is far too gentle a metaphor to describe what the private legal profession has done to the Australian government, and therefore the Australian people, in the past 15 years.
In 1997 the new Howard government privatised almost all the conduct of litigation on behalf of the Commonwealth and widened the use of private lawyers in giving government departments legal advice.
The escalation in the sums going to the private legal profession since has been eye-popping.
In 1997, the litigation work was estimated to be worth about $50 million. In the first full year of privatisation, 1998-99, it swelled to $80 million.
After that the government monitored the costs of all out-sourced legal advice and for the purposes counted departmental briefing of the Australian Government Solicitor as outsourced advice.
By 2002-03 the total of all Commonwealth outsourced legal costs had risen to $180 million.
In those four years, moreover, internal government lawyers began to learn from their private-sector colleagues and expanded their work to fill the seemingly ample time and space in which it could be completed. In the first four years of privatisation, the cost of internal public-service legal advice shot from $143 million to $243 million.
Presumably, more public-sector lawyers were needed to keep tabs on the private-sector lawyers contracted to government.
If only it were a matter of more snouts in the trough. But it is not. The contracted lawyers seem to have found the wherewithal to make the trough even bigger.
In the last financial year of the Howard government - 2006-07 - the lean, mean, downsizing, privatising Coalition had managed to allow the cost of legal services to the Australian government to expand to an appalling $408 million.
The Australian Government Solicitor retains 40 per cent of the litigation work. It is counted as a private provider when a government agency engages it because it charges the agency in the same way as a private provider would, including the GST.
In theory, the continuation of the AGS in the field (rather than full privatisation) was supposed to put a brake on excessive charging by the private sector. It has not happened. To the contrary, AGS charges seem to have risen to private-sector levels, rather than the other way around.
Since 2007, Labor has been as ineffectual at narrowing the trough, reducing the swill and pulling out the snouts as was the Coalition before it.
Then attorney-general Robert McClelland piously announced an inquiry after the costs blew out to $510 million in 2007-08. But nothing much has come of it.
True, all agencies have been required to gather and report more information about the costs of the outsourcing. That has merely added further costs to the whole exercise.
And so it was that a few days before Christmas, when virtually no mainstream media was watching, the Attorney-General's Department published the annual figures on legal outsourcing - the Commonwealth Legal Services Expenditure Report 2011-12. It runs to 56 pages.
It tells us that the costs of legal services provided to Commonwealth departments and agencies have risen to $722 million, up 8.4 per cent on the previous year.
The opposition, of course, could not beat up another exaggerated bleat about Labor-induced public-sector blowouts because it was the party that began this idiocy in the first place.
In 1997, litigation costs for the Commonwealth amounted to about $50 million and other legal advice perhaps as much again.
So, in the 15 years since then Coalition attorney-general Daryl Williams fulfilled the election promise to make more use of the private sector for more cost-effective provision of legal services to the government, the costs seemed to have blown out about sevenfold.
In releasing the report, the Attorney-General, Nicola Roxon, said: "The message for department and agency heads is they must get better at sourcing good legal advice more efficiently and effectively."
Pah. It is in her hands to abandon the self-inflating folly of outsourcing and provide a sound group of lawyers in the Attorney-General's Department to give all the legal advice any department or agency needs and all the solicitors' services they need, perhaps permitting the briefing of private barristers once the court process starts My guess is it would not cost $722 million.
The private legal firms do not do it better. Private firms work on the principles of "my client right or wrong", "defend the client to the hilt" and "take every point you can and take no prisoners". That engenders a fortress and bureaucratic-empire mentality in departments and agencies to defend their positions.
The difference is simple. A public servant legal officer in the Attorney-General's Department has one client - the public interest. A private-sector law firm sees its client as an individual agency and will defend that agency and its officers despite the public interest, even when they are manifestly in the wrong and when it would be better to settle and fix any maladministration.
Commonwealth litigation in the past 15 years contains some ugly scenes of legalism, undue defensiveness and prolonged litigation. It is in the public interest the Commonwealth be a model litigant.
The legal profession might well argue the government should pay for the best possible legal advice because it will be cheaper in the long run. No so. The past 15 years is littered with examples of unnecessary Commonwealth obstinacy based upon self-serving we-must-win advice from private law firms.
Outsourcing has resulted in costly disputes, nit-picking and bum covering that simply would not be necessary if departmental officers had free access to a group of paid public-service lawyers in the Attorney-General's Department who had the public interest at heart - rather than their fees.
Roxon should upend the trough and send the big private firms of solicitors packing.
■ ■ ■ Cyclone season has begun. Cyclone Oswald is the most recent. Now, I ask you, what sort of name is that to give a cyclone - cyclone Lily-Livered, Limp-Wristed, Wet-Behind-the-Ears Oswald? They should give up naming cyclones according to the Women's Weekly Booklet of Nice Names for Your Baby.
Instead, they should be given names that reflect reality, such as cyclone Fury, cyclone Shatter, cyclone Tribulation or cyclone Ruinous. Crispin Hull is a commentator, author and former editor of The Canberra Times.