Senate Notice Paper Question Nos 2327 & 2356
Schedule Number: 300254 & 300255 		Publication Date: 17 November 2009
Hansard: Pages 8134-6

Defence: Legal Advice

 Senator: Barnett

Senator Barnett asked the Minister for Defence, upon notice, on 17 September 2009:

  1. How much has the department and relevant agencies spent on legal advice for the 2008‑09 financial year.
  2. How much was spent on: (a) internal; and (b) external, legal advice.
  3. What was the nature, duration, cost and method of procurement and the name of the lawyers or law firm that provided the legal advice.

Senator Faulkner - The answer to the honourable senator’s questions are as follows:

  1. Defence, including the Defence Materiel Organisation (DMO) and Defence Housing Australia (DHA), spent a combined $76.43 million on legal services in 2008-09. As DMO and DHA are separate agencies for Financial Management and Accountability Act 1977 purposes, the component figures are identified separately below.
  2.  
    1. Internal advice: $36.83 million:

      Defence – $34.6 million
      DMO – $2.2 million
      DHA  – $0.03 million
    2. External advice: $39.6m:

      Defence – $24.9 million
      DMO – $14.4 million
      DHA – $0.3 million

    The DHA amounts do not include DHA's transactional conveyancing, which includes disbursements and per transaction legal fees for the following items: Sale and Leaseback of DHA constructed properties, disposal of surplus DHA and Defence properties, leasing third party properties and the acquisition of properties which meet Defence specifications. As there is a large disbursement component in the conveyancing costs which are not separately tracked, and given these amounts are deducted from the sale proceeds directly by the firms, the amounts have not been included.

  3. Defence and DMO:


    Please note that it is the policy of the Government to not generally disclose the content or nature of legal advice, where it may constitute an unreasonable diversion of government resources to do so. A broad, strategic overview of the nature of legal services is provided below. Its collation did not constitute an unreasonable diversion of government resources.

    Nature and Duration:

    Advice – 47 per cent
    Representation – 9 per cent
    Drafting – 5 per cent
    Knowledge Transfer – 2 per cent
    Secondment – 1 per cent
    Strategic Commercial – 36 per cent (managed by DMO)

    The duration of legal services for Defence and DMO varied according to the subject matter.

    Cost:

    Refer to 2 (a) and 2 (b).

    Method:

    Defence has established a standing offer panel currently consisting of 12 law firms (panellists). Low value matters are generally sole sourced (ie only one quotation is sought) and high value or complex matters are competitively tendered among the panellists (ie all firms on the panel are given the opportunity to quote). In accordance with the Legal Services Directions, for tied work matters, Defence uses the Attorney General’s Department, the Australian Government Solicitor (AGS) or the Department of Foreign Affairs and Trade.

    For tied work matters during 2008-09, Defence engaged the Attorney General’s Department and AGS.

    There were two non-panel engagements in this period.  One was to Mallesons Stephen Jaques who were engaged to provide advice on a legal aspect of the Defence Legal Panel arrangements. Given the issue, it would not have been appropriate for any firm on the existing panel to have provided this advice.  DMO also engaged Tresscox Lawyers to provide specialist patent advice.

    Details of law firms used by Defence and DMO:

    DHA:


    Nature and Duration:

    Commercial Property Law
    Intellectual Property
    Procurement and Contracts
    Human Resources

    The duration of legal services for DHA varied according to the matter.

    Cost:

    Refer to 2 (a) and 2 (b).

    Method:

    DHA has legal panels established by tender processes. Under the terms of those panels, other firms can be used where there are specialist requirements; such as for constitutional matters, AGS is consulted.

    Details of law firms used by DHA:

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