Guy Aitken QC
Guy Aitken QC
Earlier this year, AGS's Chief General Counsel Guy Aitken was appointed as Commonwealth Queen's Counsel. He has an established reputation as an outstanding counsel and adviser to the Australian Government and is respected across the Commonwealth. Here, he talks about his life in government law.
Born in Canberra, there is a sense it was inevitable.
'People tend to make the assumption that you would make a good lawyer if you've been interested in debating,' Guy said, 'and I was. I liked talking in public – so they assume you'll end up in a court room. But probably it was my older brother Lee who influenced me the most. From an early age, say 11 or 12 years old, he had a great interest in law and English barristers like Norman Birkett and Sir Patrick Hastings and their famous victories in criminal trials.'
So Guy found himself studying law part-time at the Australian National University (ANU) while working in the Commonwealth Public Service.
'At 18 years old, I was a Clerk Class 1 in the Department of the Capital Territory for 2 and a half years,' he said. 'Because it had huge numbers of junior staff under the age of 20, it was like one long Contiki tour.'
Guy took a year off mid-way through his studies to travel. 'I spent most of 1981 travelling in Europe and the USA,' Guy recalls. 'I sent my mother a postcard saying I had seen Bruce Springsteen in Munich and then again in Rotterdam. She was pleased I had caught up with a friend and wondered whether Bruce had attended Campbell Primary.'
He then returned to the ANU and studied full-time to finish his degree.
After graduating in 1983, Guy got a job in the Attorney-General's Department (AGD) and there was quite an adjustment. It was quiet and studious. 'I enjoyed the legal issues and found the work suited me,' he said. 'It seemed like the place to be if you were interested in constitutional law.'
He commenced in what is now the Office of General Counsel (OGC) in AGS, which he leads, but was then known as the General Counsel Division of AGD. There was much to learn for a young lawyer – and some memorable early mentors.
'My Branch Head Denis Jessop was a good lawyer and wrote particularly well – he was very clear and concise in his writing,' Guy recalled. 'I also learnt a lot from my Principal Legal Officer Ian Deane; and 2 years later, Dennis Rose again became Head of the Division and he had wonderful analytical skills; and, oddly, the Secretary Pat Brazil – I say oddly because I probably had more to do with him, as Secretary then, than I've had with any Secretary since. He had a great interest in the machinery of government and statutory interpretation.'
After 8 years in General Counsel, Guy moved to the Office of Litigation where he learnt much about general litigation from Peter MacDonald and Barry Leader. 'I also learnt much about constitutional litigation and the intellectual rigour required to analyse different and contestable legal issues from David Bennett,' he said.
Guy has extensive experience in representing the Commonwealth and its agencies before a wide range of courts, including the High Court and Federal Court.
Looking back, Guy says, 'The pace of work has changed – along with technology, of course. Obviously, when I started, we didn't have computers. Matters were received by post and not even acknowledged. There was a standard response time of 2 months. Now there is an expectation that you will be accessible.'
'It would be wrong, however, to assume that people couldn't move quickly in the good old days – that is simply not true. They could move very quickly and well. Despite the extremely complicated legal issues involved, Dennis Rose and OPC produced the Commonwealth Places Act in 3 weeks,' Guy recalled. 'But there is no doubt that the environment was more relaxed in those days.'
Working effectively across the Public Service
Guy provided advice on the government's legislative response to the adverse decision by the High Court in Lane v Morrison (2009) 239 CLR 230, which response was upheld in Haskins v Commonwealth (2011) 85 ALJR 836.
'In Lane and Morrison, the High Court struck down the Australian Military Court as being unconstitutional, which invalidated all the actions of the Military Court,' Guy said. 'While the result was not a complete surprise, it required close collaboration with Defence lawyers, particularly Paul Cronin (now of AGD's Office of International Law).
'Paul and his team, along with the Office of Parliamentary Counsel (OPC), had to produce complicated legislation to ensure the sanctions imposed on people who had been convicted by the Military Court could stand and to provide continuity of Defence discipline.
'This was all achieved over a 2- or 3-week period and showed the Public Service working very well. Defence Legal was under enormous pressure to get all the policy and principles right – and they accepted our rather inconvenient advice that allowed the sanctions to be reviewed. But the legislation was introduced and passed within 4 weeks of the decision being handed down.
'Later, it was very gratifying to see it survive a High Court challenge,' Guy said.
Working in constitutional law
Guy has advised the Government on complex and difficult legal matters across the full range of constitutional issues. He has also demonstrated his expertise in areas of special importance to the Government – judicial review of administrative actions, public finance, national security and anti-terrorism measures, and parliamentary practice – as well as the development of many significant legislative initiatives.
He was head of the Constitutional Policy Unit of OGC when it was first established and was head of the Finance and Revenue Unit in OGC from 1998 to 2006. He was subsequently appointed as Special Counsel and then Deputy General Counsel.
At the end of January 2014, he commenced acting as Chief General Counsel, and was permanently appointed to that position in May 2014.
'Constitutional law has got a political dimension to it,' Guy says. 'That lends it a great deal of interest. There is also the range of issues that you need to consider – precedent, for example. But understanding that precedent won't control the result; though it will inform the issue. It is intellectually challenging to identify those considerations.'
As Chief General Counsel, Guy has advised the Commonwealth on an extraordinary range of public law matters, including the most complex constitutional and statutory interpretation matters. He provided advice on the Government's response to the possible adverse decision in Williams v Commonwealth, on the actual decision, and on the development of the Financial Framework Legislation Amendment Act (No.3) 2012.
He advised the Department of Health and Ageing about the National Health Reform Amendment (Administrator and National Health Funding Body) Bill 2012, which (in conjunction with State legislation) established the National Health Funding Pool, the Administrator of the National Health Funding Pool and the National Health Funding Body.
He has advised on a range of issues raised by minority government, including the limitations on the role of the Senate in the law-making process (s 53 of the Constitution), the need for a message from the Governor-General in relation to laws appropriating revenue (s 56), and other issues about the status of the government in the House of Representatives.
He advises on most of the legislative proposals that raise significant constitutional or legal issues – for example, the Fair Work Amendment (Respect for Emergency Services Volunteers) Bill; the Plebiscite (Same Sex) Marriage Bill; the Criminal Code Amendment (High Risk Terrorist Offenders) Bill; and the Government Procurement (Judicial Review) Bill.
'We have worked on national security legislation and anti-terrorism measures and work closely and well with AGD colleagues who develop the policy,' Guy said. 'The advice is often the relatively easy part. They have to ensure that the legislation is workable.'
'We have also worked with the Department of the Prime Minister and Cabinet on constitutional matters related to royal succession and what happens on the demise of the Crown, as well as the Sovereign's approval of royal marriages.'
Commencing with the landmark constitutional case of Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188, Guy has appeared as junior counsel in a range of important matters. These have included Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 concerning the executive power of the Commonwealth to spend money; Attorney-General (WA) v Marquet (2003) 217 CLR 545 involving a range of issues concerning the Western Australian Constitution, the Australia Act 1986 (Cth), and a manner and form provision in the Electoral Distribution Act 1947 (WA); and Williams v Commonwealth [No. 2] (2014) 252 CLR 416 concerning the scope of the executive power under s 61 of the Constitution, and the power to provide benefits to students under s 51(xxiiiA).
Guy has also appeared as counsel in some of the most significant Australian cases dealing with parliamentary privilege, including Egan v Willis (1998) 195 CLR 424; Laurance v Katter  1 Qd R 147; and Rann v Olsen (2000) 72 SASR 450.
He has demonstrated in his role as counsel a high level of skill, a broad knowledge and deep understanding of Commonwealth and public law, and a great ability to develop sophisticated arguments in support of the Commonwealth's interests.
The role of professional leader
Guy also tries to put significant effort into training and developing government lawyers in AGS and across the Commonwealth.
'There is a range of things you can do to lead, but the demands of this position limit your time,' he admits. 'I present publicly on matters when I can – and a substantial presentation is expected. I'm very aware that such presentations demonstrate that AGS is a professional leader with a unique set of skills.'
In developing lawyers within AGS, he says, 'I try to keep my door open and I encourage the view that I can always be consulted – not just by OGC, but by the other practices as well. What I have learnt is that a lot of skills traverse the work of the different practices. I work with a wide range of lawyers and try to pass on what I've learnt professionally. I try to engage closely on the details of the advice and also on the general approach to the advice – but I am sensitive that comments be constructive so as not to discourage others.
'Pushing yourself and exposing yourself to new challenges,' is part of the reward for being in his present role, he says. 'I am pleased to have had the opportunity to be Chief General Counsel, to be part of an excellent team and to have had the responsibility to get it right – though, of course, that is also the burden of the role – the potential for getting it wrong.'
If he was to offer some tips to other lawyers, they would include, 'Be honest about your interests and capabilities. The study of law is obviously not a definitive test of intelligence and not for everybody. You need to have the intellectual tenacity – but also recognise whether you are enjoying the work enough to make a career out of it.
'One necessary characteristic, at least in being a happy lawyer, which I think is sometimes overlooked is an element of humility – because your views are going to be challenged, assessed and discussed. There should be a cooperative and respectful atmosphere in such discussions, but people can get agitated if that cooperation is missing and take setbacks to heart.'
Guy loves VS Naipaul's 1961 novel, A House for Mr Biswas. 'It's a great book about a man's comic but dignified struggle for self-identity,' he says.
Perhaps it was inevitable that Guy would end up where he is.
Deputy General Counsel
Damian advises clients on a broad range of constitutional and public law issues, including the operation and effect of Commonwealth privacy and secrecy laws, telecommunications interception legislation, health and social security law, defence and national security legislation, and the application of State and Territory law to the Commonwealth. He has been closely involved in assisting clients to develop significant legislative schemes and amendments. While outposted to an intelligence agency for several years, he gained significant experience in advising on the effect of national security legislation.
'A notable matter is the work we have done with the Department of Defence in relation to the contamination of Defence land and nearby properties with PFAS, a chemical substance in firefighting foams previously used by Defence. The issue has generated widespread public concern and led to class actions against the Commonwealth. With Defence's support and encouragement, we assembled a small team of lawyers to advise Defence on a wide range of significant and complex public law issues, often in summary form in light of the volume of legislation that needed to be considered. The team approach means that we have been able to respond very promptly and bring relevant expertise to the tasks. Although this approach has not "solved the problem" of PFAS contamination, it has helped to identify a range of potential legal and legislative issues early and provided reassurance for Defence on particular issues so that it is able to concentrate on more immediate policy responses and the class actions.'
Senior General Counsel
Wancy works primarily in statutory interpretation, legislation development, constitutional law and administrative law (particularly privacy). She has a master's degree in international law. As an outposted AGS lawyer, Wancy has worked in 8 client agencies and advised on a wide spectrum of issues relevant to the Australian Government. In 2016, Wancy led a legal team assisting with reform of the governance framework for Norfolk Island.
'As a veteran in AGS's outpost practice, I have had the opportunity to be closely involved in numerous exciting projects in areas ranging from climate change and foreign aid to the regulation of therapeutic products. But managing the legislative project for the Norfolk Island reform in the final months before its commencement on 1 July 2016, to complete the legal foundation within a compressed timeframe to transition Norfolk Island from its own legislative regime to a new regime consisting of Commonwealth laws and applied New South Wales laws, proved to be one of the biggest challenges. The scale of the project and the mind-boggling legal intricacies meant many long days in the office, often 7 days a week. The grand finale saw us working over the Easter long weekend, together with our instructors in the Department and the drafters in the Office of Parliamentary Counsel, racing against the clock to get across the finishing line.'
Senior General Counsel
Adam advises on statutory interpretation, administrative law, constitutional law and legislative development. His experience includes developing and implementing complex legislation, such as the regulatory framework for the structural reform of the telecommunications industry and amendments to the telecommunications-specific access arrangements under the Competition and Consumer Act 2010.
'Recently I've been part of the small team of lawyers advising about possible legal measures to address the anticipated shortfall in gas in the domestic market. This has involved providing advice on a range of constitutional, international and administrative law matters, frequently on an urgent basis, and working closely with our clients in the Department of Industry, Innovation and Science to find solutions to address an important issue for the Government.'