In April last year, it was announced that Phillips Fox would analyse the key aspects of the Howard Government’s Digital Agenda amendments to the Copyright Act 1968. This analysis would form part of the Government’s broader review of these reforms. The analysis was to be conducted over nine months, the most controversial aspects of the changes analysed by Phillips Fox from legal, technical and economic points of view.

In an interview with Lawyers Weekly, Senator Ludwig said he would like to discover what had been done so far, and how much money had been spent, as “it seems to have been going on for some time and little has been heard”.

A spokesperson at Phillips Fox asked Lawyers Weekly to refer to the firm’s website, in lieu of a comment from Matthew Hall, IT partner, who was in court in Brisbane as this issue went to press, and was therefore unavailable for comment. The spokesperson said that a commitment had been made to the firm’s client to “make all information available on the Phillips Fox website”.

The site reports that “the analysis is expected to run from the beginning of April for a period of nine months”, and “the delivery of the final report is expected by the beginning of 2004”. Further information, it is said, “will be available through this website”.

The most recent instalment regarding the Digital Agenda reforms was placed on the site on 12 September last year, entitled ‘The Australian Digital Agenda — 3 years on’. When pressed to confirm that this was indeed the last instalment, the Phillips Fox spokesperson said that it was, but that any other questions would have to be directed to Matthew Hall, who was the only person who could discuss with the media the work Phillips Fox was doing.

In October last year, Senator Ludwig asked the Minister representing the Attorney General in the Senate what probity requirements had been sought from Phillips Fox about the review, and whether the Government required the firm to ensure that it had appropriate safeguards in place to separate its business interests from its work on the review.

Last Tuesday, the A-G gave a detailed response on the issue of conflict of interests. Speaking for the A-G, Senator Ellison said that “specification of actual or perceived conflicts of interest was a mandatory criterion of the Request for Tender”.

Senator Ludwig said the initial questions had been posed because they wanted to know how the tender had come about. “We had noted the reform was under external consultation but were curious as to how a law firm conducted a major review”.

“If you’re going to have a law firm conduct a significant review then you would expect safeguards to be in place to ensure it could separate its business interest from that of the work of the review,” Ludwig said.

From the outset, the A-G denied any suspicions that there had been preference for the firm to do the work, or some sort of cronyism, and pointed out there had been a Request for Tender (RFT). Ludwig said he didn’t want to single out this issue, “because there had been an RFT, there was nothing more to consider regarding whether things were done legitimately”.

But he said he had further questions regarding this matter, claiming it “seems unusual, and only unusual, that Phillips Fox is doing [the work]”. Ludwig said he would like to know, with the Government having chosen to use an external body for the work, that it was the correct path to take.

His comments followed reports the Australian Government was reconsidering its decision in 1999 to open up the Commonwealth legal services market to competition from private law firms. In fact, Ruddock later claimed these reports were incorrect in a letter to the Australian Financial Review.

The A-G said the Government had not revisited the fundamental direction of policies which had led to a competitive market for Commonwealth legal work.

Senator Ludwig’s final question to the Minister representing the A-G concerned “which government agencies or departments have Phillips Fox acting on their behalf”. Ruddock’s response last week was that the names of the firm’s clients are subject to legal professional privilege. “The Department is therefore unable to provide information about which government departments and agencies have engaged Phillips Fox to perform legal work for them,” Ellison said.

Ludwig said he was aware that Phillips Fox had legal professional privilege, but noted “if I took the issue from the other side and asked each [government] department, I would not imagine the government departments were under a similar privilege”. “We will see,” he said.