What a Secretary looks for in their General Counsel

I have always included my General Counsel as an integral part of the Executive team. They need a seat at the table to be most effective and that means not just as an add-on when issues go pear shaped! 

As is the case with all officers, the General Counsel added most value when they had as much context about the operating environment and contemporary issues as possible. When stepping into a new organisation, I found that the General Counsel could provide the history of key issues, which helped me avoid going down the wrong path or paths that have thrown up rocks in the past. This tends to be the case as the General Counsel will often be privy to organisational information not known by others – that quiet word before briefing a Minister about the go/no go areas is invaluable.

In my role as a Secretary with responsibility for workplace relations, I had to manage a steep learning curve and a politically-charged environment. In that environment, the expertise of my General Counsel in industrial relations law made the relationship even more vital, particularly as many of the organisations in the portfolio were investigative and regulatory, such as the Fair Work Commission, Fair Work Ombudsman and the Australian Building and Construction Commission.

I looked to my General Counsel to provide not only sound legal advice, but to be aware of the political environment in which we were working (not to be confused with being political) and to provide as many options as possible for Ministers. 

I have been fortunate to have worked with General Counsel and to have had legal support more generally from people who were prepared to listen and find ways of achieving outcomes rather than putting hurdles in the way. In short, they understood that there are many factors to consider in developing policy and while legal opinion is important, it is only one part of the picture – as long as whatever path you take is within the law.

It is also important that the General Counsel knows your risk appetite and, by implication as the Secretary, the organisation’s risk appetite. It is highly likely that there will be different risk appetites for different issues being managed by the department. For example, the risk appetite looked very different for workplace relations than employment.

The best General Counsel understand that the legal approach answer is rarely the only approach.

The relationship also needs to be one where the General Counsel is confident in being able to tell it as it is. Again, I was fortunate to have people who were willing to be brutally honest and in doing so protect the organisation and me as the accountable authority. 

The best General Counsel understand that the legal approach answer is rarely the only approach. At one point in my career, I was threatened with being held in contempt of Parliament. The General Counsel was calm in his advice to me and we worked through the legal options. However, in the end, it was the political process that resolved the issue (all involved recognised that a joint sitting of Parliament on an issue of accessing commercial-in-confidence private sector information was in no one’s interest). It was escalated to the then shadow Attorney-General and Leader of Business in the Senate. This was a good example of where understanding the legalities was vital but where in the end it was a non-legal process that proved to be the solution. 

In short, the best General Counsel see their value-add as part of an Executive to provide the legal dimension, aware of the environment in which they are working. The legal viewpoint is a critical, though not the only, part of the picture. General Counsel who are team players striving for agreed outcomes and know where to draw a line, legal or otherwise, are integral to organisational success.