Premier & Cabinet

Type:
Premier's Memorandum
Identifier:
M1993-05
Status:
Archived

M1993-05 Seeking of Opinions from the Solicitor-General and the Crown Solicitor to Satisfy a Contractual Obligation

Detailed Outline

Our colleague the Attorney-General has drawn to my attention that on a number of occasions over the past 12 months the Solicitor-General, and sometimes the Crown Solicitor, have been called upon to give an opinion in relation to the statutory or contractual rights of a Minister or public authority where the opinion is required to satisfy a contractual obligation.

I understand that the purpose of such contractual provisions is to protect certain non-Government parties to contracts by relying upon the Solicitor-General's opinion. These provisions have been included without the knowledge or consent of either the Attorney-General or the Crown Law Officers and give rise to a serious question of liability for both the Law Officers and vicariously for the Crown.

The Solicitor-General and Crown Solicitor are more than willing to provide legal advice to any Minister or public authority about their obligations in any transaction. What is of concern to the Attorney-General and to me is that this growing practice of giving formal status in contractual documents to the opinions of Crown Law Officers is not in the interests of the Crown. By, for example, making the Solicitor-General's opinion a condition precedent to a particular event, the non-Government party obtains a right to sue for any loss it may incur as a result of any negligence in the giving of that opinion. It is normal, of course, for both parties to obtain their own legal advice on their rights and responsibilities under contractual arrangements.

Another matter of concern about arrangements such as theseis that the Solicitor General, in particular, is frequently engaged in the conduct of matters of particular importance to the State and is not always immediately available to resolve these sorts of contractual difficulties.

If it is considered essential for either the Solicitor-General or the Crown Solicitor to be specifically mentioned in contractual provisions, then this should only be done with the approval of our colleague the Attorney-General. I ask that all Ministers bring this matter to the attention of agencies within their portfolios.

John Fahey
Premier

Overview

Compliance

Not Mandatory

AR Details

Date Issued
Jan 20, 1993
Review Date
Jul 17, 2016
Replaces
Replaced By

Contacts

Contact
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Phone
02 9228 5555
Publishing Entity
Department of Premier and Cabinet
Issuing Entity
Department of Premier and Cabinet