AGS's in-house counsel practice provides a highly-valued service representing clients before commissions, enquiries, courts and tribunals.

AGS Dispute Resolution's advocacy practice is led by Chief Counsel Dispute Resolution Tom Howe PSM QC and comprises specialist counsel and lawyers appearing as solicitor advocates.

Clients choose in-house advocates because:

  • they are specialists in areas of law and practice relevant to Commonwealth clients
  • they are familiar with the needs of Commonwealth clients, including special requirements such as model litigant obligations
  • some are both advocate and solicitor, bringing their close involvement in matter preparation to the hearing and their familiarity with related proceedings for that client
  • AGS advocates and solicitors work together closely to obtain the best outcome for clients.

Examples of work by AGS in-house counsel in 2014–15 include:

National security

Senior Executive Lawyers Tim Begbie and Andrew Berger, and Senior Lawyer Peter Melican appeared for the Australian Security Intelligence Organisation and the Department of Foreign Affairs and Trade before the Administrative Appeals Tribunal (AAT) and Federal Court in challenges to adverse security assessments and decisions to refuse or cancel passports on security grounds. These cases involved security assessments relating to acts of politically motivated violence and people smuggling. Andrew Berger also appeared for the Australian Federal Police (AFP) on several occasions to obtain control orders against a number of individuals, to substantially assist in preventing terrorism acts in Australia.

Administrative law

AGS advocates appeared in matters nationally before the AAT and Federal Court to defend challenges to administrative decisions in a variety of contexts (FOI and Archives Act matters before the AAT and in appeals before the Federal Court). This work was undertaken by a broad group of lawyers including Tom Howe PSM QC, Senior Executive Lawyers Andrew Berger, Tim Begbie and Andrew Dillon, Senior General Counsel Dispute Resolution Damien O'Donovan, Senior General Counsel Dispute Resolution Peter Macliver, Special Counsel Dispute Resolution Andras Markus, Senior Executive Lawyers Justin Davidson and Justin Hyland, and Senior Lawyer Andrew Schatz. They appeared in important cases raising complex questions of statutory and regulatory interpretation.

Advocacy at Royal Commissions and international fora

Tom Howe PSM QC and Damien O'Donovan appeared as counsel for the Commonwealth in the Royal Commission into the Commonwealth's Home Insulation Program.

Damien O'Donovan appeared for the Commonwealth in World Trade Organization proceedings brought by the Dominican Republic, Honduras, Indonesia and Cuba against Australia, alleging that Australia's tobacco plain packaging legislation involves a breach of a number of Australia's international treaty obligations.

High profile matters

Tom Howe PSM QC appeared as senior counsel in high-profile expedited trial and appeal proceedings before a single judge and Full Federal Court (respectively) concerning challenges to the Australian Sports Anti-Doping Authority's conduct of a joint investigation with the Australian Football League into the alleged use of banned substances. This matter is discussed in a dedicated case study on pages 16 and 17.

In DPP (Cth) v Galloway (a pseudonym) & Ors [2014] VSCA 272 Peter Melican of AGS, with senior counsel from the Victorian Bar, advised and appeared for the AFP on a novel issue involving legal professional privilege in a sensitive criminal prosecution. The outcome was a favourable decision in the Victorian Court of Appeal, which preserved the AFP's ability to claim legal professional privilege in such proceedings.

Available for instruction by legal firms for Commonwealth clients irrespective of AGS's involvement in a matter as solicitor

AGS counsel are available for briefing by private firms undertaking Commonwealth work. By way of example, since 2012 Tom Howe PSM QC has represented the Department of Health and Ageing (instructed by Corrs Chambers Westgarth) to act for the Commonwealth in several matters principally concerned with the ability of the Commonwealth to recover certain moneys paid by it under schemes for pharmaceutical benefits, pursuant to the 'usual undertakings as to damages' offered by originator companies when interlocutory injunctions are obtained to restrain generic products from entering the market. Tom Howe, Andrew Berger and Andrew Dillon were also regularly briefed by private law firms acting for Comcare and statutory licensees under the Safety, Rehabilitation & Compensation Act 1988.

This is an extract from the 2014–15 AGS annual report