The Tasmanian Office of the Solicitor-General has adopted a position that does not reflect the traditional client-solicitor relationship, the child sexual abuse commission of inquiry has heard.
The office's role in various aspects of dealing with allegations and cases of abuse has been referred to throughout the commission's hearings so far.
Concerns have been raised about it being the sole source of legal advice to most government entities, the power it has in dealing with civil claims of child sexual abuse, and its approach to dealing with civil cases.
The commission has spent the past few days focusing on the state's justice system, and on Friday heard from Solicitor-General Sarah Kay SC and Assistant Solicitor-General Paul Turner SC.
"Their evidence revealed the problematic nature of the current system, including, firstly, the Office of the Solicitor-General adopting a position, with the acquiescence of the government, which does not reflect the current and traditional client-solicitor relationship, where the client instructs and decides and the lawyer advises," counsel assisting the commission Rachel Ellyard said.
"Instead it's clear that consistent with evidence you've heard in these hearings that the Office of the Solicitor-General both advises and decides on the conduct of civil litigation involving child sex abuse matters, including the amount of compensation that might be paid, despite what might be the contrary views of a secretary or department head.
"Even though the office both advises and decides, it appears from the evidence that it only considers legal and financial considerations, and not other matters, like the state's reputation or values, morality, the public interest.
"It was suggested that these were policy matters for cabinet or the Attorney-General. It's clear that they're not matters about which the state is presently being advised by its lawyers when it responds to child sex abuse matters."
Ms Ellyard said there was also a "lack of trauma-informed practice" about the way child sexual abuse matters were dealt with.
The role of the Solicitor-General
The Solicitor-General has two roles in Tasmania — one is to advise the government on legal matters, and the other is to conduct civil litigation.
If, for example, someone has a claim that they were abused as a child while in the care of the state — at a public school or hospital, in out-of-home care or in detention — a lawyer from the Solicitor-General's office will be involved in negotiations and/or appear in court to represent the state.
The Financial Management Act means all advice to government — including departments and agencies — must come from the Solicitor-General's Office.
Civil litigation
Lawyer Angela Sdrinis, whose firm specialises in child sexual abuse cases, told the commission of inquiry in a statement that "whilst the Solicitor-General's Office lawyers are good lawyers, their approach to responding to child sexual abuse matters has been noticeably different to that of government lawyers we deal with in other Australian jurisdictions".
"Whatever the background to this approach, it is clear that arguments should be made with a therapeutic approach in mind, especially when the victim-survivor is present," Ms Sdrinis said.
Ms Sdrinis has also been critical of the Solicitor-General's practice of keeping medical reports of those bringing civil claims confidential.
Several times during the hearings, questions have been raised about decision-making in civil cases.
In all other states and the Northern Territory, the Solicitor-General or equivalent takes instructions from their "client" department or agency. (The ABC is yet to receive a response from the ACT.)
The secretaries of Tasmania's Education Department — Tim Bullard — and Justice Department — Ginna Webster — both told the commission it was the Solicitor-General who had the decision-making power when it came to civil cases.
Ms Sdrinis said such a situation "would be entirely inappropriate and completely misunderstanding the solicitor/client relationship; clients give instructions, solicitors give advice".
She said it was inappropriate "because the solicitors don't have to wear the consequences of those decisions, clients have to wear the consequences".
Giving evidence on Friday, Mr Turner was asked about the decision-making role of the government solicitors in Tasmania.
He said it was "nuanced" and discussions were had when there was disagreement.
Agencies bound by advice
Tasmanian government agencies — departments, organisations such as the Teachers Registration Board, and most oversight bodies — are required to get their legal advice from the Solicitor-General, and are bound by that advice.
The commission has heard about what could be perceived as tension between the Education Department and the Teachers Registration Board, where the Education Department would not release documents because of advice it had from the Solicitor-General.
The board did not agree, but could not get external legal advice.
Not having access to documents means the board may need to do its own investigations of teachers accused of misconduct and potentially re-interview vulnerable children.
Ms Ellyard asked Ms Kay about this.
How does it work in other states and territories?
Around the country, the structures within which solicitors-general and their offices operate vary, but none appear to be as restrictive as that in Tasmania.
In Western Australia, government departments and agencies can source independent legal advice, rather than using State Solicitor's Office (SSO).
WA departments and agencies are under no obligation to accept SSO advice.
In South Australia, public authorities can not use the services of a legal practitioner other than that state's Crown Solicitor without first seeking the advice of the Crown Solicitor on whether the use of a private practitioner is appropriate.
It's a similar situation in the ACT. SA government departments are not bound to accept legal advice from the Crown Solicitor's Office.
In Queensland and NSW, some types of legal work must be sent to the relevant government solicitors, but departments and agencies can seek advice elsewhere for other types of work. Statutory bodies are generally able to seek external legal advice.
The Victorian Government Solicitor's Office competes in the market for legal services, with the exception of particular exclusive services.
Northern Territory government entities are not obliged to seek advice from the Solicitor-General, and while government agencies are not strictly bound to accept legal advice from the Solicitor-General, it is, by convention, treated as determinative.
Oversight bodies interstate are also more able to seek legal advice from private firms than is the case in Tasmania.
Potential for change
Asked about who had the power to change the model within which Tasmanian government solicitors operate, Ms Kay said that was "primarily a question for the Attorney-General".
She said the Justice Department secretary was leading a review of the way civil litigation is conducted, and practices in other jurisdictions were being considered.
"We're always looking for improvement … anything that we can do to be more sensitive to the claimants and their circumstances, we'll definitely be willing to take on board," Ms Kay said.
The commission of inquiry next sits on July 28.
