11Entity responsibility

11 Entity responsibility

11.1 The accountable authority of a non‑corporate Commonwealth entity is responsible for ensuring that: (a) the entity’s arrangements for legal services, especially any litigation for which the entity is responsible, are handled efficiently and effectively (b) appropriate management strategies and practices are adopted so as to achieve compliance with these Directions (ba) the entity’s legal services purchasing, including expenditure, is appropriately recorded and monitored and that, by 30 October each year, the entity makes publicly available records of its legal services expenditure for the previous financial year (c) lawyers (whether AGS, the Attorney‑General’s Department, private lawyers, counsel or in‑house lawyers) providing legal services to the entity are aware of, and are required to assist in ensuring that the entity complies with, these Directions (including compliance by legal services providers with these Directions through contractual arrangements wherever possible) (d) the entity gives reports as soon as practicable to the Attorney‑General or OLSC about any possible or apparent breaches of the Directions by the entity, or allegations of breaches by the entity of which the entity is aware, and about any corrective steps that have been taken or are proposed to be taken, by the entity (da) the entity reports to OLSC about the legal services expenditure and legal work of the entity, using a template approved by OLSC that specifies the matters to be reported, within 60 days after the end of each financial year (e) any matters required to be approved by the Attorney‑General are raised promptly, and (f) any other matters of which the Attorney‑General or OLSC is required to be informed are notified promptly.

Note: The protection that is to be given to classified material is set out in the Protective Security Manual (PSM). It is advisable that the entity’s contracts with legal services providers require the providers to maintain an appropriate level of security for classified material (including electronic material) that comes into their possession, as well as material that is subsequently provided by the legal services provider to a third party, in the course of providing services to the entity. Any questions about the requirements of the PSM are to be directed, in the first instance, to the Assistant Secretary, Policy and Services Branch, Protective Security Coordination Centre, Attorney‑General’s Department.

11.2 The accountable authority of a non‑corporate Commonwealth entity is responsible for giving to OLSC, within 60 days after the end of each financial year, a certificate setting out the extent to which the accountable authority believes there has been compliance by the entity with the Directions. The certificate should: (a) give details of any apparent or possible breach of the Directions not previously reported to OLSC (b) give details of actions taken to address the causes of any breaches of the Directions during the financial year (ba) give details of the following aspects of the entity’s use of persons appointed by the Attorney‑General under section 63 of the Judiciary Act 1903 to receive service in proceedings to which the Commonwealth is a party: (i) the names of appointed persons who have received service; (ii) the title of proceedings in which appointed persons have received service; (iii) the issues raised in proceedings in which appointed persons have received service; (iv) the nature of each document served on an appointed person and the date on which it was served; (v) the date on which the entity or OLSC was advised of the receipt of service of each document by the appointed person; and (vi) any other information requested by OLSC, and (c) set out any other information relevant to the entity’s compliance with the Directions. Pro bono work by legal services providers 11.3 The accountable authority of a non‑corporate Commonwealth entity is responsible for ensuring that the entity, when selecting and retaining legal services providers, does not adversely discriminate against legal services providers that have acted, or may act, pro bono for clients in legal proceedings against the Commonwealth or Commonwealth agencies. 11.4 Paragraph 11.3 does not apply if, were a legal services provider to be selected or retained by the entity, an actual conflict of interest would arise between the legal services provider and the entity because of the pro bono work of the legal services provider. 11.5 For paragraph 11.4, circumstances in which an actual conflict of interest would arise include the following: (a) if a legal services provider already acts for the Commonwealth or a Commonwealth agency in legal proceedings and accepts a request to act pro bono in those proceedings for another client, and (b) if a legal services provider has, because it has previously provided legal services to the Commonwealth or a Commonwealth agency, confidential information about the Commonwealth or a Commonwealth agency that would make it unreasonable for the provider to act pro bono for another client against the Commonwealth or Commonwealth agency.