Sensitive and exceptional casesSensitive and exceptional cases

Sensitive and exceptional cases

24 Any request for assistance which raises sensitive legal, political or policy issues is to be reported to OLSC as soon as possible in writing by the employing body. The requests are not to be approved without consultation with OLSC. 25 If an employing body considers that a request raises exceptional circumstances which justify a departure from the normal policy, it is to refer the matter to OLSC. The Attorney‑General may permit a departure from the normal policy, but may impose different or additional conditions as the basis for doing so.

Note 1: Expenditure in a manner that is inconsistent with this policy may contravene the finance law. For example, section 15 of the Public Governance, Performance and Accountability Act 2013 requires accountable authorities of non‑corporate Commonwealth entities to govern their entities in a way that promotes the proper use and management of public resources and section 21 of that Act requires them to govern their entities in a way that is not inconsistent with the policies of the Australian Government.

Note 2: In addition to the assistance in relation to legal proceedings that may be provided to employees under this policy, other assistance may also be available. Some examples are set out below.

(a) Section 73 of the Public Service Act 1999 enables payments to be made to persons in relation to Commonwealth employment. The equivalent power in the Public Service Act 1922 was rarely used, but section 73 provides a discretion to enable the reimbursement of legal costs incurred by staff in the course of, or in connection with, their employment in exceptional circumstances.
(b) The Guidelines for the Provision of Financial Assistance for Legal Costs before Commissions and Inquiries enable payments to be made in accordance with the criteria set out in the Guidelines. The Guidelines are administered by the Legal Assistance Branch in the Attorney‑General’s Department and apply where the Attorney‑General has Ministerial responsibility for the subject‑matter of the Commission or inquiry. (Where the Attorney‑General does not have this responsibility, assistance may be available from the responsible Minister.) Specific guidelines have also been approved for certain Commissions.
(c) The Special Circumstances Scheme, also administered by the Legal Assistance Branch, enables financial assistance for legal costs and related expenses to be given to an employee in various circumstances where no other scheme is available. Funding in respect of proceedings brought by or against the employee may be provided, in accordance with the criteria specified in the guidelines for the Scheme.

Appendix F—Procurement of Commonwealth legal work