1 Legal work is tied to AGS and the Attorney‑General’s Department if it involves:
(a) constitutional law issues
(b) national security issues, or
(c) the following matters (referred to as ‘Cabinet work’):
(i) legal advice which is to be considered by Cabinet or relied on in preparing a Cabinet submission or memorandum, or
(ii) legal advice on a legislative proposal to be considered for adoption by government or on draft legislation for introduction into Parliament.
Public international law work Public international law work
Public international law work
2 Public international law work of the following kinds is tied to the Attorney‑General’s Department, AGS and also, in relation to sub‑paragraphs (a) to (d), the Department of Foreign Affairs and Trade.
(a) International litigation and arbitration (ie Government to Government)
This work covers proceedings before the International Court of Justice, a World Trade Organisation dispute panel or appellate body, an arbitral tribunal or some other form of internationally constituted tribunal.
(b) Advice involving Australia’s or another country’s obligations under international law
This work covers requests concerning Australia’s or another country’s obligations under international law generally or under a particular treaty to which Australia or the country is a party. It also, more indirectly, covers requests for advice under legislation which implements a treaty where the obligations under that treaty are an issue. For example, a request for advice about whether certain conduct by the Commonwealth is permitted by legislation which implements a treaty might give rise to a question whether Australia had met its international law obligations under that treaty. However, it does not cover advice on procedural aspects of an exercise of power under the legislation where those procedural aspects are unrelated to a question of Australia’s international law obligations.
(c) Advice on treaty negotiation
This work covers legal advice preparatory to, or in the course of, treaty negotiations.
Note: Australian treaty practice, as reflected in the Department of Foreign Affairs and Trade manual Negotiation, Conclusion and Implementation of International Treaties and Arrangements, will be relevant to this category of advice.
(d) Advice on implementing a treaty (including bilateral agreements)
This work includes advice on changes to legislation and practice necessary to become a party to a treaty.
(e) Domestic litigation involving a significant public international law issue
This work covers litigation where a court will or may decide whether Australia or another country has acted in conformity with its international law obligations (including as an incidental or indirect aspect of the case). Litigation involving legislation which implements a treaty will not be tied if it merely involves interpretation of that legislation or of the treaty for the purposes of applying that legislation and it does not raise the question whether Australia has complied with its international obligations.
Note 1: A reference to a ‘treaty’ in this paragraph includes international instruments of less than treaty status (eg memoranda of understanding between Australia and other countries and non‑binding declarations and recommendations adopted by international organisations).
Note 2: Litigation referred to in the second sentence of sub‑paragraph (e) is to be referred to OLSC if it raises significant issues as described in paragraph 3.1 of the Directions.
Drafting work Drafting work
Drafting work
3 Drafting work is tied so that only the Office of Parliamentary Counsel is to undertake, or arrange for, the drafting of the following:
(a) government Bills;
(b) government amendments of Bills;
(c) regulations;
(d) Ordinances and regulations of external Territories and Jervis Bay Territory;
(e) other legislative instruments made or approved by the Governor‑General.
Meaning of ‘tied work’ and ‘tied provide Meaning of ‘tied work’ and ‘tied provider’
Meaning of ‘tied work’ and ‘tied provider’
3A Work of a kind described in paragraphs 1, 2 or 3 of this Appendix is ‘tied work’, and legal services providers who, in accordance with those paragraphs, are permitted to undertake tied work are ‘tied providers’.
Providers other than tied providers may Providers other than tied providers may be approved to do tied work
Providers other than tied providers may be approved to do tied work
3B The Attorney‑General may give approval for a legal services provider other than a tied provider to undertake tied work. An approval may be subject to conditions, for example:
(a) that any advice prepared by the provider is to be settled in consultation with, and reflecting any comments made by, a tied provider, and
(b) that the instructing Commonwealth agency pay the costs of the tied provider to consider and prepare comments about the advice.
Briefing counsel and other legal experts Briefing counsel and other legal experts
Briefing counsel and other legal experts
4 Briefing counsel or other legal experts such as academics on constitutional, national security, Cabinet and public international law work is to be done through AGS, the Attorney‑General’s Department in respect of areas where the Department undertakes tied work and the Department of Foreign Affairs and Trade in respect of work it undertakes on public international law.
Categories of work not covered by the ti Categories of work not covered by the tied work rules
Categories of work not covered by the tied work rules
5 The tying of constitutional, national security, Cabinet, public international law and drafting work is not intended to affect:
(a) the role of the Director of Public Prosecutions or any statutory rights conferred on Commonwealth agencies concerning the conduct of their legal affairs
(b) the in‑house work currently undertaken by Commonwealth agencies in the negotiation of standard bilateral treaties such as double taxation and social security agreements
(c) international law work where the Attorney‑General has approved the use of the agency’s in‑house legal area in the performance of that work, or
(d) the role of the Solicitor‑General.
Note: Where a Commonwealth agency in‑house legal unit was exempt from the tied work rules in relation to public international law work under paragraph 5 (b) of the Legal Services Directions issued in 2005 because a relevant category of public international law work was ‘currently undertaken’ at the commencement of those Directions, and that work is not exempt under paragraph 5 (b) of these Directions, an exemption may be sought from the Attorney‑General if the agency has recognised expertise in relation to that category of tied legal work.
Public international law work — further Public international law work — further rules
Public international law work – further rules
6 The in‑house work referred to in paragraph 5 (b) refers to the in‑house preparation of bilateral agreements on specific matters (eg social security) in a standard format which has already been the subject of international law advice from the Office of International Law in the Attorney‑General’s Department, AGS or the Department of Foreign Affairs and Trade. However, it does not extend to Commonwealth agencies using in‑house lawyers to undertake constitutional work or, in the absence of approval, court litigation.
When to consult with the Office of Inter When to consult with the Office of International Law
When to consult with the Office of International Law
7 Where a Commonwealth agency requests advice on a public international law issue from AGS, the agency is to notify the Office of International Law to ensure that the Office of International Law has the opportunity to express a view on the matter (whether from a policy or legal perspective).
Note: This requirement is intended to ensure compliance with Australia’s international obligations and avoid any risk that Australia might take inconsistent positions on international matters which might arise from portfolio‑specific policy approaches.
Non‑tied providers doing tied work are t Non‑tied providers doing tied work are to provide copies of opinions to OLSC
Non‑tied providers doing tied work are to provide copies of opinions to OLSC
8 If:
(a) the Attorney‑General gives an approval under paragraph 5 (b) for a provider other than a tied provider to do tied work, and
(b) in the course of doing the work, that provider prepares an opinion or advice relating to tied work,
the opinion or advice is to be given to OLSC in an electronically searchable form.
9 OLSC may give an opinion, which it has received under paragraph 8, to any tied provider of the relevant category of legal work.
Appendix B—The Commonwealth’s obligation to act as a model litigant
The obligation The obligation
The obligation
1 Consistently with the Attorney‑General’s responsibility for the maintenance of proper standards in litigation, the Commonwealth and Commonwealth agencies are to behave as model litigants in the conduct of litigation.
Nature of the obligation Nature of the obligation
Nature of the obligation
2 The obligation to act as a model litigant requires that the Commonwealth and Commonwealth agencies act honestly and fairly in handling claims and litigation brought by or against the Commonwealth or a Commonwealth agency by:
(a) dealing with claims promptly and not causing unnecessary delay in the handling of claims and litigation
(aa) making an early assessment of:
(i) the Commonwealth’s prospects of success in legal proceedings that may be brought against the Commonwealth; and
(ii) the Commonwealth’s potential liability in claims against the Commonwealth
(b) paying legitimate claims without litigation, including making partial settlements of claims or interim payments, where it is clear that liability is at least as much as the amount to be paid
(c) acting consistently in the handling of claims and litigation
(d) endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible, including by giving consideration in all cases to alternative dispute resolution before initiating legal proceedings and by participating in alternative dispute resolution processes where appropriate
(e) where it is not possible to avoid litigation, keeping the costs of litigation to a minimum, including by:
(i) not requiring the other party to prove a matter which the Commonwealth or the agency knows to be true
(ii) not contesting liability if the Commonwealth or the agency knows that the dispute is really about quantum
(iii) monitoring the progress of the litigation and using methods that it considers appropriate to resolve the litigation, including settlement offers, payments into court or alternative dispute resolution, and
(iv) ensuring that arrangements are made so that a person participating in any settlement negotiations on behalf of the Commonwealth or a Commonwealth agency can enter into a settlement of the claim or legal proceedings in the course of the negotiations
(f) not taking advantage of a claimant who lacks the resources to litigate a legitimate claim
(g) not relying on technical defences unless the Commonwealth’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement
(h) not undertaking and pursuing appeals unless the Commonwealth or the agency believes that it has reasonable prospects for success or the appeal is otherwise justified in the public interest, and
(i) apologising where the Commonwealth or the agency is aware that it or its lawyers have acted wrongfully or improperly.
Note 1: The obligation applies to litigation (including before courts, tribunals, inquiries, and in arbitration and other alternative dispute resolution processes) involving Commonwealth Departments and other Commonwealth agencies, as well as Ministers and officers where the Commonwealth provides a full indemnity in respect of an action for damages brought against them personally. Ensuring compliance with the obligation is primarily the responsibility of the Commonwealth agency which has responsibility for the litigation. In addition, lawyers engaged in such litigation, whether AGS, in‑house or private, will need to act in accordance with the obligation and to assist their client agency to do so.
Note 2: In essence, being a model litigant requires that the Commonwealth and Commonwealth agencies, as parties to litigation, act with complete propriety, fairly and in accordance with the highest professional standards. The expectation that the Commonwealth and Commonwealth agencies will act as a model litigant has been recognised by the Courts. See, for example, Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133 at 342; Kenny v State of South Australia (1987) 46 SASR 268 at 273; Yong Jun Qin v The Minister for Immigration and Ethnic Affairs (1997) 75 FCR 155.
Note 3: The obligation to act as a model litigant may require more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations.
Note 4: The obligation does not prevent the Commonwealth and Commonwealth agencies from acting firmly and properly to protect their interests. It does not therefore preclude all legitimate steps being taken to pursue claims by the Commonwealth and Commonwealth agencies and testing or defending claims against them. It does not preclude pursuing litigation in order to clarify a significant point of law even if the other party wishes to settle the dispute. The commencement of an appeal may be justified in the public interest where it is necessary to avoid prejudice to the interests of the Commonwealth or a Commonwealth agency pending the receipt or proper consideration of legal advice, provided that a decision whether to continue the appeal is made as soon as practicable. In certain circumstances, it will be appropriate for the Commonwealth to pay costs (for example, for a test case in the public interest.)
Note 5: The obligation does not prevent the Commonwealth from enforcing costs orders or seeking to recover its costs.