Australia: Maximising the value of written legal advice to local government

Last Updated: 7 September 2015
Article by Brenton Oakley

A large part of the service that Local Government lawyers provide to Local Government is the giving of written advice.

That advice can be wide and varied dealing with any matter with a legal component including building and construction, asset sales, governance, planning, prosecutions, roads, rates, statutory interpretation, tendering and procurement.

This article provides a brief overview of how and why lawyers provide the advice in the manner and form that they do and what you can do to maximise the value of that advice to your Local Government.

Instructions

Instructions or questions are critical. They guide the advice giver in understanding the purpose of the advice and the limits on its scope. This enables the lawyer to deliver precisely what is needed by the Local Government.

Consequently, it is highly desirable that the Local Government give considerable thought to carefully articulating its request and any specific questions it seeks answers to or advice on. The written advice itself will often commence with a section headed "Instructions". Here the lawyer sets out the request to be answered. The purpose of this is to make it clear to any reader of the advice what it is intended to cover and by implication what it does not intend to cover.

Documents

The materials provided by the Local Government to the lawyers will usually consist of correspondence, officer reports, photographs, extracts from policies and/or extracts from local laws or legislation.

It saves considerable time and cost if these materials are provided in chronological order and clearly identified with appropriate dates. Sometimes it may be useful to have a cover page that identifies the document, its date and who authored it. It is quite often important, for example, to know who took a photograph and on what date.

It may also be useful and time saving in more complex matters for the Local Government to provide a chronology of material events or background to the matter. This enables the lawyer to reach an overall understanding of a complex matter much quicker thereby saving time and money in preparing the advice.

The Facts

The facts are very important to the lawyer as this forms the basis for the advice. These facts are usually received by the lawyer via a statement, overview or letter from the Local Government and of course from the brief or documents received.

The advice will usually recite the material facts in the advice itself. Local Governments may sometimes wonder why facts that they have given lawyers are recited back to them in the advice. There is a very good reason for this that is not well understood. What the lawyer is doing is reciting those facts that are material to the advice being given.

In its completed form the advice can stand alone so that a reader knows precisely the basis upon which the advice has been made.

It is also important that the instructing Local Government checks the facts recited in the advice to ensure that no error or omission has occurred in communicating those facts as this could change the advice that has been given.

Legislation and Case Law

The lawyer will often set out specific extracts from legislation, local law or policy that they believe will apply to the advice. These extracts are sometimes set out separately so that the lawyer is free later on in the advice to discuss their application without having to also recite them in the 'Analysis' section.

In many instances the legislation or local law is clear enough for the lawyer to give his advice without the need for any case law.

An examination of case law is undertaken mostly to see if the courts have made any comments or remarks on the application of any particular legislation to aid in its interpretation. Where the courts have done this and it is useful and relevant the lawyer may recite relevant extracts from individual cases in the advice separately in much the same way that relevant legislation can be set out separately.

Analysis or Advice

In this section the lawyer sets out the reasoning or arguments used by applying the material facts to the law. In some cases there may be competing arguments and the lawyer will attempt in those cases to state which are the stronger or weaker arguments.

In a lengthy or complex advice the 'Analysis' may constitute a separate section to the 'Advice'. If that is the case the 'Advice' section will distil or narrow the discussion to the main points or questions that need to be answered. In a short or simpler advice these sections may be combined together.

Conclusion or Summary

A conclusion or summary is usually set out either at the beginning or at the end of the advice. This is the place where the questions are either definitively answered or the separate arguments are set out together with their relative strengths.

In some cases, depending on the nature of the matter, it may also be appropriate for the lawyer to set out options which are open to the Local Government and the consequences that may follow by adopting one of the options. In other cases it may be appropriate for the lawyer to actually make recommendations and if this is the case they will usually be set out separately.

In all cases if the Local Government is uncertain about the meaning or effect of all or any part of the advice they should not hesitate to either discuss this with the writer or to seek further clarification or explanation from them.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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