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Commonwealth legislation
This Act has been repealed and is no longer in force. It is retained for historical reference.
The Legal Services Directions 2017 are binding Attorney‑General rules that control how Commonwealth entities handle legal work, litigation and use of lawyers. They affect non‑corporate and corporate Commonwealth entities, private law firms engaged by the government, and certain third parties acting for the Commonwealth.
They require sensitive legal work to remain with designated government lawyers, impose a “model litigant” duty of fairness, mandate reporting and Attorney‑General approvals for high‑risk matters, promote advice‑sharing, set procurement/pro‑bono expectations, and require annual transparency and compliance reporting.
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Direct links to the current provisions in Legal Services Directions 2017.
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
This instrument is the Legal Services Directions 2017.
This instrument is made under section 55ZF of the Judiciary Act 1903.
Schedule 1 to this instrument sets out Directions made by the Attorney‑General under section 55ZF of the Judiciary Act 1903.
Schedule 1—Legal Services Directions
1.1 Arrangements made by a non‑corporate Commonwealth entity for the provision of legal services are to ensure the delivery of efficient and effective services.
2.1 Constitutional, Cabinet, national security, public international law and most drafting work undertaken for a non‑corporate Commonwealth entity is tied to government providers of legal services, in accordance with the Directions on Tied Areas of Commonwealth Legal Work, at Appendix A.
Note: For the application of this provision to Australian Government bodies other than non‑corporate Commonwealth entities, see paragraph 12.
3.1 A non‑corporate Commonwealth entity is to report as soon as possible to the Attorney‑General or OLSC on significant issues that arise in the provision of legal services, especially in handling claims and conducting litigation. These issues will include matters where: (a) the size of the claim, the identity of the parties or the nature of the matter raises sensitive legal, political or policy issues (b) a dispute or disagreement exists between the Commonwealth and a Commonwealth agency or between different Commonwealth agencies (other than matters arising under legislation which contemplates that the Commonwealth or Commonwealth agencies may be on different sides in a case) (c) a significant level of coordination between different Commonwealth agencies is required (d) a significant precedent for the Commonwealth or other Commonwealth agencies could be established, either on a point of law or because of its potential significance for the Commonwealth or other Commonwealth agencies, or (e) a dispute exists with an agency of a State or Territory government.
Note 1: In dealing with personal or sensitive information, non‑corporate Commonwealth entities need to comply with the Privacy Act 1988, the Freedom of Information Act 1982, the Archives Act 1983 and the Crimes Act 1914.
Note 2: The obligation to report significant issues also requires the relevant non‑corporate Commonwealth entity to regularly update the Attorney‑General or OLSC on any developments involving the significant issue. There may also be more than one issue that should be reported as a significant issue over the course of a proceeding.
Note 3: A fresh obligation to report to the Attorney‑General or OLSC will arise on appeal if the significant issue remains relevant to the appeal. The making of an appeal may itself constitute a significant issue.
Note 4: The obligation to report on significant issues extends beyond handling claims and conducting litigation, and includes all significant issues that arise in the provision of legal services.
Note 5: If a non‑corporate Commonwealth entity is unsure about whether an issue is a significant issue that should be reported, it should contact OLSC to discuss the issue.
Note 6: For the application of this provision to Australian Government bodies other than non‑corporate Commonwealth entities, see paragraph 12.
3.2 A claim that is required to be reported by a non‑corporate Commonwealth entity to the Attorney‑General or OLSC under paragraph 3.1 is not to be settled without the agreement of the Attorney‑General.
Entities to comply with instructions from the Attorney‑General 4.1 A non‑corporate Commonwealth entity is to comply with any instructions by the Attorney‑General about the handling of claims or the conduct of litigation. In particular, the entity is to comply with an instruction to provide information about a particular claim or litigation, or to provide copies of, or access to, material relating to the claim or litigation.
Note 1: An instruction could relate to such matters as the arguments to be put to the court and the lawyers to handle the matter. (In extreme cases, it could require that the entity change its lawyers in a matter). The need to give instructions could occur, for example, where constitutional or ‘whole of government’ issues arise or where the proposed conduct of a matter might be inconsistent with the Attorney‑General’s First Law Officer role (eg the Attorney‑General’s responsibility for ensuring that the Commonwealth acts as a model litigant). The entity will be responsible for any costs incurred by it or the lawyers involved in complying with the instruction.
Note 2: Other provisions of the Directions may also be relevant to the handling of a claim by or against the Commonwealth, including the requirements:
(a) to act in accordance with the Directions on The Commonwealth’s obligation to act as a model litigant, at Appendix B
(b) to handle monetary claims in accordance with the Directions on Handling monetary claims, at Appendix C, and
(c) for counsel to be engaged in accordance with the Directions on Engagement of counsel, at Appendix D.
The Model Litigant Obligation 4.2 Claims are to be handled and litigation is to be conducted by the entity in accordance with the Directions on The Commonwealth’s Obligation to Act as a Model Litigant, at Appendix B, noting that the entity is not to start legal proceedings unless it is satisfied that litigation is the most suitable method of dispute resolution.
Note: For the application of this provision to Australian Government bodies other than non‑corporate Commonwealth entities, see paragraph 12.
Acting in accordance with legal principle and practice 4.3 Claims are to be handled and litigation is to be conducted by the entity in accordance with legal principle and practice, taking into account the legal rights of the parties and the financial risk to the Commonwealth (including the entity) of pursuing its rights.
Note 1: Some examples of handling claims and conducting litigation in accordance with legal principle and practice are:
(a) acting in the Commonwealth’s financial interest to defend fully and firmly claims brought against the Commonwealth where a defence is properly available, subject to the desirability of settling claims wherever possible and appropriate, and
(b) generally enforcing costs orders in favour of the Commonwealth.
Note 2: In addition to the obligations arising under these Directions, section 11 of the Public Governance, Performance and Accountability Rule 2014 requires accountable authorities of non‑corporate Commonwealth entities to pursue the recovery of debts owing to the Commonwealth.
Handling monetary claims 4.4 Monetary claims by and against the Commonwealth or the entity (other than claims that are to be determined under a legislative or contractual mechanism) are to be handled in accordance with the Directions on Handling Monetary Claims, at Appendix C. Disclosure of terms of settlement 4.5 The entity is only to agree that the terms of settlement are confidential and cannot be disclosed where this is necessary to protect the Commonwealth’s interests. Before imposing or agreeing to such a condition, the entity is to satisfy itself, including by raising the matter with a party requesting the condition, that the condition is necessary. The entity should also seek to incorporate an exception to enable voluntary disclosure of the settlement (in whole or in part) to the Parliament or to a Parliamentary Committee. Where practicable, the responsible Minister is to be consulted before the entity agrees to a settlement inhibiting voluntary disclosure to the Parliament or to a Parliamentary Committee. 4.5A The entity is to tell the other party to a confidential settlement that disclosure of the settlement may nevertheless be required by law; in particular, to the Parliament or to a Parliamentary Committee which has power to compel disclosure.
Note: An example of when it may be in the Commonwealth’s interests to agree to a confidential settlement is if the Commonwealth seeks to settle a claim against it on condition that the terms of settlement not be disclosed, with a view to avoiding prejudice in responding to other similar claims against it.
Jurisdiction of State and Territory courts and tribunals 4.6 An objection on behalf of the Commonwealth to the jurisdiction of a State or Territory court on the basis that it is not a court authorised under section 56 of the Judiciary Act 1903 is not to be made by the entity without the approval of the Attorney‑General.
Note: The High Court has held that section 56 of the Judiciary Act does not limit the jurisdiction conferred on State courts by subsection 39(2) of that Act, but enables the Commonwealth to object to a court proceeding which is not authorised under section 56: Breavington v Godleman and others (1988) 169 CLR 41. An objection is normally only to be taken if the Commonwealth is prejudiced by the plaintiff’s choice of court (eg due to location of witnesses or differences in applicable law).
4.6A The Commonwealth or a Commonwealth agency is not to submit, or object, to the jurisdiction of a State or Territory tribunal, unless approval has been given by the Attorney‑General for that position to be taken. Entities to receive written legal advice before starting court proceedings 4.7 A non‑corporate Commonwealth entity is not to start court proceedings unless the entity has received written legal advice from lawyers whom the entity is allowed to use in the proceedings indicating that there are reasonable grounds for starting the proceedings. In urgent cases, the entity may start court proceedings on the basis of oral legal advice that there are reasonable grounds for starting the proceedings. Confirmation of that advice is to be obtained in writing at the earliest opportunity. Responsibility for litigation 4.8 In addition to the power to issue directions under section 55ZF of the Judiciary Act 1903, the Attorney‑General may issue guidelines governing the allocation of responsibility for litigation between non‑corporate Commonwealth entities, and the handling of litigation where more than one non‑corporate Commonwealth entity may be involved. Suppression orders 4.9 A non‑corporate Commonwealth entity that applies for an order to prohibit or restrict the disclosure or publication of evidence or information (a suppression order) in a proceeding: (a) may apply for a suppression order only if it considers suppression of the evidence or information to be reasonably necessary to protect the interests of the Commonwealth; and (b) must not apply for a suppression order only to avoid the disclosure or publication of evidence or information that may be embarrassing to the Commonwealth or Commonwealth agencies.
Note 1: A non‑corporate Commonwealth entity must comply with the relevant rules of court for an application to the court.
Note 2: Paragraph (a) does not prevent an application for a suppression order for evidence or information that may be embarrassing to the Commonwealth or Commonwealth agencies, if there are legitimate Commonwealth interests to protect.
5.1 A non‑corporate Commonwealth entity may only use an in‑house lawyer to conduct court litigation as solicitor on the record or as counsel with the approval of the Attorney‑General. Factors relevant to giving approval will include: (a) whether the entity is able to demonstrate a capacity to conduct the litigation properly and efficiently (b) whether the entity is able to conduct the litigation at a lower cost than using external solicitors, taking into account accrual accounting and, where relevant, competitive neutrality principles, and (c) whether the entity has a statutory charter which gives it an operation independent of government. 5.2 The use of in‑house lawyers may be approved, either in specific cases or generally, subject to compliance with conditions specified by the Attorney‑General.
6.1 Counsel are to be engaged by or on behalf of a non‑corporate Commonwealth entity in accordance with the Directions on Engagement of Counsel, at Appendix D.
Note: For the application of this provision to Australian Government bodies other than non‑corporate Commonwealth entities, see paragraph 12.
6.2 Briefs to counsel in matters covered by the model litigant policy are to enclose a copy of the Directions on The Commonwealth’s Obligation to Act as a Model Litigant, at Appendix B, and instruct counsel to comply with the policy.
7.1 If a request or demand to provide documents or information in the conduct of litigation being handled by a non‑corporate Commonwealth entity (the litigating entity) could give rise to a claim of immunity on a public interest ground for which another non‑corporate Commonwealth entity has administrative responsibility (the PII entity), the litigating entity is to refer the decision whether to make the claim to the PII entity or the PII entity’s Minister.
Note: The appropriate PII entity or Minister will vary according to the nature of the material, and more than one entity or Minister may need to be involved. The following entities are commonly involved in a claim for public interest immunity:
(a) the Australian Federal Police for some law enforcement matters
(b) the Attorney‑General’s Department and the Australian Security Intelligence Organisation for national security matters
(c) the Department of the Prime Minister and Cabinet for Cabinet matters (see also the Cabinet Handbook), and
(d) the Department of Foreign Affairs and Trade for matters relating to relations with foreign countries.
Note: For example, in the course of litigation about a contract with a foreign government agency, a Cabinet document relating to international relations might be identified as relevant to the proceedings. In such a case, the litigating entity is to refer the document in question to the Departments of the Prime Minister and Cabinet and Foreign Affairs and Trade for decision about any public interest immunity claim that might be made.
7.2 If a claim for public interest immunity is being resisted by another party in litigation, the PII entity is to be responsible for the handling of the claim after consultation with the litigating entity. If a disagreement arises as to the handling of the claim, the matter is to be referred to the Attorney‑General or OLSC.
Note: For the application of this provision to Australian Government bodies other than non‑corporate Commonwealth entities, see paragraph 12.
Entities to get approval before waiving or agreeing to extend limitation periods 8.1 A defence based on the expiry of an applicable limitation period is to be pleaded by a non‑corporate Commonwealth entity, unless approval not to do so is given by the Attorney‑General. Approval will normally be given only in exceptional circumstances, for example, where the Commonwealth has through its own conduct contributed to the delay in the plaintiff bringing the claim. 8.2 An application for an extension of a limitation period is to be opposed by the entity unless approval to consent to the application is given by the Attorney‑General. Approval will normally be given only in exceptional circumstances which would justify not pleading a limitation defence or where it i
This is an opening excerpt, not the complete document.