The 94 page Report [PDF] is a delicious example of bureaucratic ambiguity, with something for all the major stakeholders to fight over.
It comments - no prize for savage insights - that "managing legal risk is among the most challenging tasks faced by any enterprise, including government" and that
"in general, there is inadequate attention, and a lack of strategic direction, in relation to the management of legal services across the Commonwealth". Demand for legal services has increased significantly and is "unlikely to reduce". Yes, the sun will rise and set each day. What's the basis of that demand? It's influenced by "the volume of legislation, significant changes to administrative law, moves by the Commonwealth to a 'free-market' economy and ... the resultant growth in regulatory authorities, decentralisation of legal services [supposedly reflected in "improved responsiveness of providers"], greater accountability placed on agencies ... It is also influenced by -
the increasing development of a 'rights' orientation within Australian society generally, and the related development of well-informed and well-funded community and commercial bodies able and willing to challenge government actions.One might expect that acquisition of legal services, as a 'big ticket item' (ie millions of dollars feeding the big law firms) would be tracked and analysed by the national Attorney-General's Dept. Alas, not so. The report comments that -
despite recent initiatives which have improved the quality of the data collected by the Attorney-General's Department, there is no reliable data on either the demand for, or the cost of, legal services across the Commonwealth. There is no reliable data on the cost to the Commonwealth of agencies calling for and evaluating tenders for legal services, or to service providers in responding to requests for tender. Anecdotal evidence, however, suggests that the total costs to agencies and service providers are substantial. ... data collected by AGD on the costs of legal services for the past four years almost certainly understates the true costs of providing those services.The Report suggests that -
The most significant development in recent times has been growth of large, and increasingly professional, in-house practices, particularly in the larger agencies. While it is evident that some in-house practices are well managed and efficient, there are no standards against which to measure performance between agencies or against broadly comparable external legal services providers. There are no accepted service-wide measures against which to assess whether agency practices are appropriate or efficient, or that staff are appropriately qualified or relevantly trained and experienced, in relation to the levels of responsibility required of them in providing legal services. While there have been numerous attempts to measure costs, there is nothing against which to measure the value of legal services, although each agency head is responsible for assuring themselves that the value of legal services is commensurate to the expenditure.So, we don't know how much money's being spent and whether that money's being spent effectively. Never fear, the authors of the Report conclude that savings are achievable -
Despite the fact that some agencies have already made significant savings from legal services spending by contributing to agency savings targets and are managing the role effectively, there are further savings that can be made across the Commonwealth. Those savings will largely depend on the more effective management of in-house practices; in particular, on the further development of in-house informed purchaser skills and closer cooperation between agencies.However, don't hold your breath -
We have found nothing to support any view that significant savings can be sensibly achieved ... in the short term. The imposition of additional arbitrary cuts to running costs targeting legal services would expose the Commonwealth to considerable additional risk.The response seems to be to adopt a 'more of the same' model -
In-house lawyers within Commonwealth agencies need to be professionalised – that is, to be organised, managed, supervised and trained as in-house lawyers, both in order to improve service delivery and to improve the procurement, management and cost control of externally sourced legal services.Cue sound of trumpets, as consultants march onto the stage.
professionalisation of in-house practices would be facilitated by the establishment of an Australian Government legal service network, and the network in turn would assist in developing and implementing a coordinated and strategic approach to the management of legal services across the Commonwealth.Some agencies - whether because they are big & recalcitrant or merely because they are already "effectively managing relationships with external legal service providers" - will presumably left alone when any network is constructed. Bureaucratic imperatives are reflected in the comment that -
Although it is already happening to some extent there is greater scope for agencies, particularly but not exclusively smaller agencies, to make use of the legal services arrangements of large agencies (that is, to piggy-back). There is a strong case for greater coordination of the provision of legal services across the Commonwealth, particularly through centralised support for the professionalisation of in-house practices and for development of informed purchaser skills within agencies.Outlier agencies such as the Australian Institute of Criminology may be ever so politely encouraged to make sacrifices so as fund the increased supervision by the Attorney-General's Department, which will presumably draw on outside expertise. Never fear, there's always the web. The Report chants the usual digital mantra, indicating that -
There is a need for a better system, such as the web-based Commonwealth legal services interface canvassed in this report, to provide coordinated support both to the role of the informed purchaser and the collection and management of data.Most reports are ambit claims, and this one is no exception. It comments that -
The independent and uncoordinated development of in-house legal practices has been a major factor in the erosion of the role of the Attorney-General as the First Law Officer, and as such, responsible to Cabinet for ensuring the provision of appropriate legal services across the Commonwealth.The authors modestly suggest that "a central role" for the Department is appropriate, implicitly requiring an articulation of the Department's authority and the acquisition of "the necessary management and technical skills", reflecting an assessment that
Despite the relevant recommendations of the Logan Review, the wider functions ["critical to the provision of effective legal services across the Commonwealth"] intended for AGD related to the provision of general guidance have never been adequately resourced either in terms of numbers or relevant skills..In anticipation of the response, the Report reiterates that -
The current system of agencies individually tendering for legal services is very costly both to the Commonwealth and to external service providers tendering, particularly to AGS which has little effective option but to tender for all Commonwealth work. Even under existing instructions and guidelines there would appear to be more efficient and probably cheaper procurement options. Those more efficient options would not remove from agency heads the responsibility for ensuring that the legal services procured were appropriate to the needs of their agency and represented value for money.In releasing the Report the Attorney-General stated that "growth in Commonwealth legal expenditure" declined "from 25 per cent in 2007-08 ($510 million) to nine per cent in 2008-09 ($555 million)" through improved transparency, common tender arrangements, increased competition by legal service providers and use of alternative dispute resolution in place of courts.
