People often assume that government and public sector legal practice is jurisdiction centric. However, many of the issues confronting practitioners are common across jurisdictions, as I discovered through my involvement, over the years, with the Commonwealth Lawyers Association (CLA).
The CLA is a body that seeks to, “uphold the rule of law, by encouraging exchanges between members of the profession, through projects, conferences and workshops, and by driving improvements in legal education.”
The CLA’s very existence and nature also facilitates friendships between members, where they can share their experiences and ideas to better serve the needs of their respective communities and jurisdictions.
I first met Graham Leung at a CLA dinner in Kenya in 2007. Graham is a human rights lawyer and practitioner with regional and international experience. He is currently Secretary for Justice and Border Control for the Republic of Nauru. Graham has a special interest in the role of judges and lawyers in promoting the rule of law, democracy and good governance, especially for countries in transition.
He invited me to travel to Nauru in May to deliver a series of continuing legal education and training seminars to government lawyers and officials. Never one to decline an invitation to talk and share ideas with lawyers in other parts of the world, I accepted.
While we were initially expecting a small number of participants from the Department of Justice and Border Control, the turnout over the two days was three times the originally anticipated audience as representatives of other agencies became aware of the availability of the training sessions and chose to participate. despite the stunning warm weekend weather which could easily have limited attendance.
Topics formally covered in the seminar series were:
- Ø Current issues in procurement.
- Ø The who, what, when and why of contract.
- Ø Legal ethics and model litigant principles.
- Ø Contract negotiation skills and tactics.
- Ø Common commercial agreements.
- Ø Contract management, discussion and Q&A.
Procurement is a constantly developing dynamic. It is a specialist field for lawyers and for procurement practitioners. Officials of the Republic of Nauru thought it would be beneficial for its people to provide training to its staff on current developments in a larger jurisdiction.
The legislatively prescribed Procurement Handbook for the Republic of Nauru has provision for something called a Procurement Agent to have been appointed to handle much procurement on behalf of the Republic.
In doing so, that methodology, to an extent, draws upon a UK precedent of the 19th century when Crown Agents were instituted to provide procurement services to certain British Colonies. With Colonies becoming independent over the years, they had a choice of whether to continue with the Procurement Agent concept or to establish their own procurement capacity. However, the methodology has been adapted to the 21st-century. Reasons include the cost expense and time involved in developing a sophisticated procurement process for any sovereign entity.
Also, for a number of smaller island countries, there was recognised benefit in what might be described as pooling of procurement through a Procurement Agent so as to obtain better prices.
As the Republic of Nauru has developed its internal procurement capacity is often placing less reliance upon the former Procurement Agent model.
Other aspects of procurement discussed included the use of the procurement system to further social policy, such as greater involvement of indigenous suppliers into the chain of supply and the potential impact of the implementation of the recently promulgated ISO 20400 standard to do with building sustainability into the chain of supply.
Possible impact of blockchain technology on procurement was discussed, particularly in context of potential risks to sovereign entities of that type technology.
We also discussed the availability of online training in some fields relevant to government and administrative law and government procurement, as well as issues to do with overseas legal qualifications, when they will and will not be recognised in NSW. The availability of online training, of course can be much more cost effective and immediate as it avoids the not insignificant cost and inconvenience of travel and staff spending time away from Nauru and since my lectures in Nauru I have facilitated access to various training sites.
As was to be expected from the interaction with other Commonwealth Lawyers, it was a great experience to be able to share ideas with about 35 fellow Commonwealth colleagues. In addition to the Nauruan lawyers and officials attending, those present included people from Fiji, Australia, USA, and Nigeria.
We in the larger and more developed countries here, from time to time, about threats to smaller nations of rising sea levels. Whilst in naru, staying in a hotel room only two meters above the ocean made it clear to the writer how perilous the existence many of our Pacific neighbours is, with the challenge of rising sea levels and climate change. Indeed, we discussed the need, in context of Government Procurement for the Republic of Nauru for performance criteria of suppliers to touch upon and implement policies capable, long-term, of lessening adverse ecological impact of production methodologies, as may be relevant to lessening rising sea levels.
Whilst sharing common problems and issues, the day-to-day differences between practice in Nauru and Australia could hardly be greater than they are. Scarcity of public sector resources in the sense of access to current law and capacity to deal with issues is, to an extent, a shared problem, though in jurisdictions as small as the Republic of Nauru the issue is more palpable.
However, what became obvious was that lawyers and officials in both countries share a very real concern about how the rule of law is best supported with increasingly scarce resources.
Of particular significance is that, in a small jurisdiction, there is a significantly higher potential for personal and professional conflicts of interest to arise.
This led to a discussion of how lawyers might best maintain professional independence in a very small jurisdiction, where everyone is known to everyone.
Whilst lawyers have, for centuries, unable to operate as employees of corporations and Government, the important issue is to recognise the need for them to be able to exercise professional independence and judgement.
It is not simply for lawyers to facilitate at all costs.
However, that is not to say that lawyers might not, in response to a particular proposal with which they have legal policy concerns, rather than simply say “no” outline their legal concerns and say that in light of those concerns and the law/policy another way of achieving the desired outcome which does comply with the law may be available.
Options for dealing with perceived conflicts included discussing of the issues with more senior practitioners or, in the bureaucracy, one’s relevant supervisor and recognising that, both for lawyers and bureaucrats, their role is to provide advice as best they can. It is for those charged with responsibility for implementation who are to determine whether and to what extent they will accept the advice of lawyers and bureaucrats.
Visiting and presenting in Nauru raised interesting questions for me about how and why things are done a certain way in much larger jurisdictions. This included, for the writer, whether the manner in which larger jurisdictions and world financing organisations provide funding by way of grant a fair, reasonable and appropriate.
I can see significant room for improvement in how larger jurisdictions share, interact and contract with smaller jurisdictions better.