Schedule Sch 1 - Legal Services Directions 2017 - to this instrument sets out Directions made by the Attorney‑General under section 55ZF of the Judiciary Act 1903. | Zoe
Schedule 1 to this instrument sets out Directions made by the Attorney‑General under section 55ZF of the Judiciary Act 1903.
Part 1 Non‑corporate Commonwealth entities
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)
(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
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.
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:
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.
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
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.
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.
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.
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.
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.
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.
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:
(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
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:
(b) the Attorney‑General’s Department and the Australian Security Intelligence Organisation for national security matters
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.
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 is expected that the application will succeed (in which case not consenting would be likely to result in unnecessary costs and delay).
8.3 Although paragraph 8.1 requires a non‑corporate Commonwealth entity to plead a defence based on the expiry of an applicable limitation period, this does not prevent the entity from settling a claim involving a limitation period without the approval of the Attorney‑General in the following circumstances:
(a) where legal advice has been obtained recommending settlement of a claim, based (among other things) on an assessment of the plaintiff’s prospects of success regarding the limitation period issue, and
(b) to the extent that there are perceived to be weaknesses in the plaintiff’s position in that regard, these weaknesses are taken into account when determining an appropriate discount to the offer of settlement.
8.4 Reference to the term ‘limitation period’ in paragraphs 8.1 and 8.2 is intended to cover only the initial commencement of court proceedings where the court is exercising original jurisdiction. It is not intended to cover, for example:
(a) time limits applicable to procedural steps in litigation (eg time for filing a statement of claim or providing discovery)
9.1 Financial assistance to a Commonwealth employee for legal proceedings in which the employee is involved is to be provided in accordance with the Directions on Assistance to Commonwealth Employees for Legal Proceedings, at Appendix E.
9A.1 A non‑corporate Commonwealth entity must comply with the directions on legal services procurement at Appendix F when procuring legal services from external legal services providers.
10.1 If a non‑corporate Commonwealth entity (the requesting entity) wishes to obtain legal advice (whether from an in‑house or external source) on the interpretation of legislation administered by another non‑corporate Commonwealth entity (the administering entity), the requesting entity is to provide the administering entity with:
(c) a reasonable opportunity to consult on the matter prior to the advice being finalised, including consultation with the requesting entity’s legal services provider, as required by the administering entity, and
10.2 The requesting entity is not required to provide an opportunity for prior consultation if advice is needed urgently (eg to enable a response to an urgent request by a Minister or a request arising without notice in litigation). However, the requesting entity is to consult the administering entity and copy the request for advice and the advice to the administering entity as soon as practicable thereafter.
10.3 Prior consultation is not required, and the request for advice and the advice do not have to be copied to the administering entity, if:
Where paragraph 10.3 (a) or (b) is applicable, the requesting entity is to inform the administering entity that a request for advice covered by subparagraph 10.3 has been made, and to disclose the substance of advice it receives to the extent that is possible without disclosing information which needs to remain confidential.
Where paragraph 10.3 (c) is applicable, the requesting entity is to comply with any conditions to which the exemption is subject.
10.4 Consultation and disclosure are not required for advice on a routine matter which does no more than advise on the application of the law to particular facts, by relying on the settled interpretation of the legislation. Without limiting the requirement, consultation would, however, be required where:
(a) advice relates to legislative provisions that have not been considered by the courts, is contrary to existing policy or could raise new policy issues in respect of the legislation
10.5 If an administering entity is consulted in accordance with this paragraph, it is to carefully consider the advice given to the requesting entity, to determine whether the advice indicates an ambiguity or other issue in the legislation that should be addressed by remedial action to be taken by the administering entity (such as proposing a legislative amendment to the responsible Minister).
10.6 Any disagreement as to the correct interpretation of legislation is to be resolved as far as possible by negotiation between the requesting entity and the administering entity. Issues should be referred to OLSC if further advice is sought from the Solicitor‑General to resolve the matter.
10.7 The Attorney‑General is entitled to obtain access to any legal advice obtained by the non‑corporate Commonwealth entity (subject to any legislative restriction).
Note: Legal professional privilege is not waived by providing advice to the Attorney‑General in accordance with these Directions: see section 55ZH of the Judiciary Act 1903.
10.8 If a non‑corporate Commonwealth entity receives legal advice that it considers is likely to be significant to other Commonwealth agencies, it is to take reasonable steps to make that advice available to those agencies, subject to paragraph 10.4.
Note 1: The purpose of paragraph 10 is to promote consultation between Commonwealth agencies on the interpretation of legislation with the aim of reaching, as far as possible, consistency in statutory interpretation across the Commonwealth. Non‑corporate Commonwealth entities are not to act in a manner that may be inconsistent with or undermine Commonwealth policy in respect of a particular piece of legislation. Concerns about interpretation are to be raised with the administering entity so that it has the opportunity to consider whether the policy requires change, and entities are to seek to minimise cost by first seeing if the administering entity has an answer to their question rather than commissioning fresh advice.
Note 2: To find out the non‑corporate Commonwealth entity that administers particular legislation, see the Administrative Arrangements Orders.
10.9 The Attorney‑General may exempt a Commonwealth agency from compliance with paragraph 10, or particular requirements in this paragraph.
10A.2 The Attorney‑General’s Department or AGS may consult with the Solicitor‑General about whether the advice should be given by the Solicitor‑General or AGS.
10A.3 AGS must give a copy of any final advice it gives on a constitutional law issue to the Attorney‑General’s Department and to the Solicitor‑General.
(a) the entity’s arrangements for legal services, especially any litigation for which the entity is responsible, are handled efficiently and effectively
(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
Note: The protection that is to be given to classified material is set out in the Protective Security Policy Framework (PSPF). 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 PSPF can be made using the contact details provided at www.protectivesecurity.gov.au.
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:
(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:
(v) the date on which the entity or OLSC was advised of the receipt of service of each document by the appointed person; and
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.
(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.
11A.1 A non‑corporate Commonwealth entity is required, when entering into a contract with a third party that includes a right of subrogation in favour of the third party, to use its best endeavours to ensure that the contract includes a provision requiring the third party, and its agents:
(b) to consult with that entity if any matters relevant to paragraphs 2 and 10 of the Directions arise in the course of undertaking that litigation on behalf of the Commonwealth.
11A.2 The operation of these Directions extends to any legal services which the non‑corporate Commonwealth entity has the ability to control as a result of an indemnity given to, or an arrangement made with, another body or person.
12.1 This paragraph deals with the application of the Directions to a body or person that is not a non‑corporate Commonwealth entity.
Note: This paragraph deals with the application of the Directions to bodies and persons such as corporate Commonwealth entities and Commonwealth companies, as well as other bodies and persons.
12.2 A body or person that handles claims, or conducts litigation in the name of, or on behalf of, the Commonwealth, is to comply with the Directions in respect of such claims and litigation.
(a) inform the Attorney‑General or OLSC of the details of any litigation (including threatened or proposed litigation) which gives rise to constitutional issues and comply with any specific instructions given by the Attorney‑General concerning the conduct of the litigation (including as to the choice of lawyers to be used and the arguments to be put on constitutional issues)
(b) inform the Attorney‑General or OLSC of any claim or litigation proposed to be brought against, or involving, another Commonwealth agency
(c) handle claims and conduct litigation in accordance with the Directions on The Commonwealth’s Obligations to Act as Model Litigant, at Appendix B
12.4 In addition, the Attorney‑General may decide that a particular body or person is to comply with some or all of the Directions that apply to non‑corporate Commonwealth entities.
12.5 If the Attorney‑General makes a decision under paragraph 12.4, the Attorney‑General is to tell the body about the decision.
12A.1 Persons appointed by the Attorney‑General under section 63 of the Judiciary Act 1903 to receive service are to report to the Commonwealth agency on behalf of which they have received service:
12A.2 If documentation that is served on a person appointed under section 63 of the Judiciary Act 1903 is not clear as to which Commonwealth agency the person is to report, the person is to report to OLSC using the template mentioned in paragraph 12A.1 (b).
13.1 The Attorney‑General may decide, in relation to a particular non‑corporate Commonwealth entity or other body, that it:
13.2 If the Attorney‑General makes a decision under paragraph 13.1, the Attorney‑General is to notify the entity or body about the decision.
Note: Examples demonstrating the range of sanctions and the manner in which OLSC approaches allegations of non‑compliance with the Directions are set out in material on compliance published by OLSC. Allegations of non‑compliance with the Directions may be raised with OLSC at olsc@ag.gov.au.
14.2 When entering into a contract for legal services, Commonwealth agencies are to include a provision stating that the contract includes appropriate penalties in the event of a breach of the Directions to which the legal services provider has contributed, including the termination of the contract in an appropriate case.
accountable authority has the meaning given by subsection 12(2) of the Public Governance, Performance and Accountability Act 2013.
Commonwealth company has the meaning given by subsection 89(1) of the Public Governance, Performance and Accountability Act 2013.
corporate Commonwealth entity means a corporate Commonwealth entity within the meaning of paragraph 11(a) of the Public Governance, Performance and Accountability Act 2013, but does not include an entity that was an FMA agency.
FMA agency means a Commonwealth entity that was an Agency (within the meaning of the Financial Management and Accountability Act 1997) on 30 June 2014.
government business enterprise has the meaning given by section 8 of the Public Governance, Performance and Accountability Act 2013.
litigation, unless otherwise indicated, includes proceedings before courts, tribunals, inquiries and in arbitration and other alternative dispute resolution processes, and the preparation for such proceedings.
non‑corporate Commonwealth entity means a non‑corporate Commonwealth entity within the meaning of paragraph 11(b) of the Public Governance, Performance and Accountability Act 2013 and includes an entity that was an FMA agency.
OLSC means the Office of Legal Services Coordination in the Attorney‑General’s Department, or any person within the Department on whom the Secretary confers the function of administering these Directions.
Note: 1 In addition to the requirements in these Directions, non‑corporate Commonwealth entities must comply with the finance law when making arrangements for the provision of legal services. For example, under section 15 of the Public Governance, Performance and Accountability Act 2013, the accountable authority of a non‑corporate Commonwealth entity has a duty to promote the proper use of public resources (i.e. the efficient, effective, economical and ethical use of public resources) by the entity. Also, under section 21 of that Act, the accountable authority must govern the entity in a way that is not inconsistent with the policy of the Australian Government. These duties will apply in relation to arrangements for the provision of legal services to the entity.
Note: 2 If a non‑corporate Commonwealth entity wishes to institute proceedings in the name of the Commonwealth, the proceedings will need to be instituted by a person appointed by the Attorney‑General under section 61 of the Judiciary Act 1903. In these circumstances, if a relevant appointment is not in place, the details should be forwarded to OLSC to enable the issue of an appointment under section 61 to be referred for decision by the Attorney‑General.
Note: Appointments under section 61 include appointments of accountable authorities of non‑corporate Commonwealth entities.
Note: 2A Lawyers providing legal services to the Commonwealth or Commonwealth agencies may be appointed by the Attorney‑General under section 63 of the Judiciary Act 1903.
Note: 3 In addition to these Directions, other rules and policies are relevant for the provision of legal services, including:
(a) the policy on what legal work is undertaken by AGS and the Attorney‑General’s Department on a non‑billable basis (information on this policy can be obtained from OLSC and its website)
(b) the policy on giving indemnities and guarantees by the Commonwealth and Commonwealth agencies (information on this policy can be obtained from the Department of Finance or OLSC)
(c) the policy on insurance and handling of liability claims by Commonwealth agencies that operate under the Commonwealth’s self‑managed fund for insurable risks, Comcover (information on Comcover can be obtained from the Department of Finance)
(d) the Parliamentary Entitlements Regulations 1997 which deal with the provision of assistance to Ministers for legal proceedings (information on these Regulations can be obtained from OLSC), and
(e) Judiciary Act 1903, section 63, which deals with service of process when the Commonwealth or a State is a party to a suit.
Note: 4 The Directions are not intended to cover the handling of criminal prosecutions and related proceedings unless expressly referred to.
Note: 5 The Directions are not intended to override any legislative requirement or authority concerning a Commonwealth agency’s functions (in particular, the role of the Director of Public Prosecutions).
1 Arrangements for legal services
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 Tied work
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 Reporting on significant issues
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)
(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
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.
4 Claims and litigation by or against the Commonwealth or non‑corporate Commonwealth entities
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:
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.
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
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.
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.
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.
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.
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.
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.
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 Use of in‑house lawyers for court litigation
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:
(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
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 Engagement of counsel
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 Public interest immunity
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:
(b) the Attorney‑General’s Department and the Australian Security Intelligence Organisation for national security matters
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.
8 Reliance on 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 is expected that the application will succeed (in which case not consenting would be likely to result in unnecessary costs and delay).
8.3 Although paragraph 8.1 requires a non‑corporate Commonwealth entity to plead a defence based on the expiry of an applicable limitation period, this does not prevent the entity from settling a claim involving a limitation period without the approval of the Attorney‑General in the following circumstances:
(a) where legal advice has been obtained recommending settlement of a claim, based (among other things) on an assessment of the plaintiff’s prospects of success regarding the limitation period issue, and
(b) to the extent that there are perceived to be weaknesses in the plaintiff’s position in that regard, these weaknesses are taken into account when determining an appropriate discount to the offer of settlement.
8.4 Reference to the term ‘limitation period’ in paragraphs 8.1 and 8.2 is intended to cover only the initial commencement of court proceedings where the court is exercising original jurisdiction. It is not intended to cover, for example:
(a) time limits applicable to procedural steps in litigation (eg time for filing a statement of claim or providing discovery)
9 Assistance to Commonwealth employees in legal proceedings
9.1 Financial assistance to a Commonwealth employee for legal proceedings in which the employee is involved is to be provided in accordance with the Directions on Assistance to Commonwealth Employees for Legal Proceedings, at Appendix E.
9A Procurement of legal service providers
9A.1 A non‑corporate Commonwealth entity must comply with the directions on legal services procurement at Appendix F when procuring legal services from external legal services providers.
10 Sharing of advice within Government
10.1 If a non‑corporate Commonwealth entity (the requesting entity) wishes to obtain legal advice (whether from an in‑house or external source) on the interpretation of legislation administered by another non‑corporate Commonwealth entity (the administering entity), the requesting entity is to provide the administering entity with:
(c) a reasonable opportunity to consult on the matter prior to the advice being finalised, including consultation with the requesting entity’s legal services provider, as required by the administering entity, and
10.2 The requesting entity is not required to provide an opportunity for prior consultation if advice is needed urgently (eg to enable a response to an urgent request by a Minister or a request arising without notice in litigation). However, the requesting entity is to consult the administering entity and copy the request for advice and the advice to the administering entity as soon as practicable thereafter.
10.3 Prior consultation is not required, and the request for advice and the advice do not have to be copied to the administering entity, if:
Where paragraph 10.3 (a) or (b) is applicable, the requesting entity is to inform the administering entity that a request for advice covered by subparagraph 10.3 has been made, and to disclose the substance of advice it receives to the extent that is possible without disclosing information which needs to remain confidential.
Where paragraph 10.3 (c) is applicable, the requesting entity is to comply with any conditions to which the exemption is subject.
10.4 Consultation and disclosure are not required for advice on a routine matter which does no more than advise on the application of the law to particular facts, by relying on the settled interpretation of the legislation. Without limiting the requirement, consultation would, however, be required where:
(a) advice relates to legislative provisions that have not been considered by the courts, is contrary to existing policy or could raise new policy issues in respect of the legislation
10.5 If an administering entity is consulted in accordance with this paragraph, it is to carefully consider the advice given to the requesting entity, to determine whether the advice indicates an ambiguity or other issue in the legislation that should be addressed by remedial action to be taken by the administering entity (such as proposing a legislative amendment to the responsible Minister).
10.6 Any disagreement as to the correct interpretation of legislation is to be resolved as far as possible by negotiation between the requesting entity and the administering entity. Issues should be referred to OLSC if further advice is sought from the Solicitor‑General to resolve the matter.
10.7 The Attorney‑General is entitled to obtain access to any legal advice obtained by the non‑corporate Commonwealth entity (subject to any legislative restriction).
Note: Legal professional privilege is not waived by providing advice to the Attorney‑General in accordance with these Directions: see section 55ZH of the Judiciary Act 1903.
10.8 If a non‑corporate Commonwealth entity receives legal advice that it considers is likely to be significant to other Commonwealth agencies, it is to take reasonable steps to make that advice available to those agencies, subject to paragraph 10.4.
Note 1: The purpose of paragraph 10 is to promote consultation between Commonwealth agencies on the interpretation of legislation with the aim of reaching, as far as possible, consistency in statutory interpretation across the Commonwealth. Non‑corporate Commonwealth entities are not to act in a manner that may be inconsistent with or undermine Commonwealth policy in respect of a particular piece of legislation. Concerns about interpretation are to be raised with the administering entity so that it has the opportunity to consider whether the policy requires change, and entities are to seek to minimise cost by first seeing if the administering entity has an answer to their question rather than commissioning fresh advice.
Note 2: To find out the non‑corporate Commonwealth entity that administers particular legislation, see the Administrative Arrangements Orders.
10.9 The Attorney‑General may exempt a Commonwealth agency from compliance with paragraph 10, or particular requirements in this paragraph.
10A Advice on constitutional law matters
10A.2 The Attorney‑General’s Department or AGS may consult with the Solicitor‑General about whether the advice should be given by the Solicitor‑General or AGS.
10A.3 AGS must give a copy of any final advice it gives on a constitutional law issue to the Attorney‑General’s Department and to the Solicitor‑General.
11 Entity responsibility
(a) the entity’s arrangements for legal services, especially any litigation for which the entity is responsible, are handled efficiently and effectively
(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
Note: The protection that is to be given to classified material is set out in the Protective Security Policy Framework (PSPF). 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 PSPF can be made using the contact details provided at www.protectivesecurity.gov.au.
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:
(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:
(v) the date on which the entity or OLSC was advised of the receipt of service of each document by the appointed person; and
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.
(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.
Part 2 Extended and modified application of the 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)
(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
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.
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:
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.
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
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.
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.
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.
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.
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.
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.
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:
(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
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:
(b) the Attorney‑General’s Department and the Australian Security Intelligence Organisation for national security matters
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.
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 is expected that the application will succeed (in which case not consenting would be likely to result in unnecessary costs and delay).
8.3 Although paragraph 8.1 requires a non‑corporate Commonwealth entity to plead a defence based on the expiry of an applicable limitation period, this does not prevent the entity from settling a claim involving a limitation period without the approval of the Attorney‑General in the following circumstances:
(a) where legal advice has been obtained recommending settlement of a claim, based (among other things) on an assessment of the plaintiff’s prospects of success regarding the limitation period issue, and
(b) to the extent that there are perceived to be weaknesses in the plaintiff’s position in that regard, these weaknesses are taken into account when determining an appropriate discount to the offer of settlement.
8.4 Reference to the term ‘limitation period’ in paragraphs 8.1 and 8.2 is intended to cover only the initial commencement of court proceedings where the court is exercising original jurisdiction. It is not intended to cover, for example:
(a) time limits applicable to procedural steps in litigation (eg time for filing a statement of claim or providing discovery)
9.1 Financial assistance to a Commonwealth employee for legal proceedings in which the employee is involved is to be provided in accordance with the Directions on Assistance to Commonwealth Employees for Legal Proceedings, at Appendix E.
9A.1 A non‑corporate Commonwealth entity must comply with the directions on legal services procurement at Appendix F when procuring legal services from external legal services providers.
10.1 If a non‑corporate Commonwealth entity (the requesting entity) wishes to obtain legal advice (whether from an in‑house or external source) on the interpretation of legislation administered by another non‑corporate Commonwealth entity (the administering entity), the requesting entity is to provide the administering entity with:
(c) a reasonable opportunity to consult on the matter prior to the advice being finalised, including consultation with the requesting entity’s legal services provider, as required by the administering entity, and
10.2 The requesting entity is not required to provide an opportunity for prior consultation if advice is needed urgently (eg to enable a response to an urgent request by a Minister or a request arising without notice in litigation). However, the requesting entity is to consult the administering entity and copy the request for advice and the advice to the administering entity as soon as practicable thereafter.
10.3 Prior consultation is not required, and the request for advice and the advice do not have to be copied to the administering entity, if:
Where paragraph 10.3 (a) or (b) is applicable, the requesting entity is to inform the administering entity that a request for advice covered by subparagraph 10.3 has been made, and to disclose the substance of advice it receives to the extent that is possible without disclosing information which needs to remain confidential.
Where paragraph 10.3 (c) is applicable, the requesting entity is to comply with any conditions to which the exemption is subject.
10.4 Consultation and disclosure are not required for advice on a routine matter which does no more than advise on the application of the law to particular facts, by relying on the settled interpretation of the legislation. Without limiting the requirement, consultation would, however, be required where:
(a) advice relates to legislative provisions that have not been considered by the courts, is contrary to existing policy or could raise new policy issues in respect of the legislation
10.5 If an administering entity is consulted in accordance with this paragraph, it is to carefully consider the advice given to the requesting entity, to determine whether the advice indicates an ambiguity or other issue in the legislation that should be addressed by remedial action to be taken by the administering entity (such as proposing a legislative amendment to the responsible Minister).
10.6 Any disagreement as to the correct interpretation of legislation is to be resolved as far as possible by negotiation between the requesting entity and the administering entity. Issues should be referred to OLSC if further advice is sought from the Solicitor‑General to resolve the matter.
10.7 The Attorney‑General is entitled to obtain access to any legal advice obtained by the non‑corporate Commonwealth entity (subject to any legislative restriction).
Note: Legal professional privilege is not waived by providing advice to the Attorney‑General in accordance with these Directions: see section 55ZH of the Judiciary Act 1903.
10.8 If a non‑corporate Commonwealth entity receives legal advice that it considers is likely to be significant to other Commonwealth agencies, it is to take reasonable steps to make that advice available to those agencies, subject to paragraph 10.4.
Note 1: The purpose of paragraph 10 is to promote consultation between Commonwealth agencies on the interpretation of legislation with the aim of reaching, as far as possible, consistency in statutory interpretation across the Commonwealth. Non‑corporate Commonwealth entities are not to act in a manner that may be inconsistent with or undermine Commonwealth policy in respect of a particular piece of legislation. Concerns about interpretation are to be raised with the administering entity so that it has the opportunity to consider whether the policy requires change, and entities are to seek to minimise cost by first seeing if the administering entity has an answer to their question rather than commissioning fresh advice.
Note 2: To find out the non‑corporate Commonwealth entity that administers particular legislation, see the Administrative Arrangements Orders.
10.9 The Attorney‑General may exempt a Commonwealth agency from compliance with paragraph 10, or particular requirements in this paragraph.
10A.2 The Attorney‑General’s Department or AGS may consult with the Solicitor‑General about whether the advice should be given by the Solicitor‑General or AGS.
10A.3 AGS must give a copy of any final advice it gives on a constitutional law issue to the Attorney‑General’s Department and to the Solicitor‑General.
(a) the entity’s arrangements for legal services, especially any litigation for which the entity is responsible, are handled efficiently and effectively
(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
Note: The protection that is to be given to classified material is set out in the Protective Security Policy Framework (PSPF). 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 PSPF can be made using the contact details provided at www.protectivesecurity.gov.au.
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:
(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:
(v) the date on which the entity or OLSC was advised of the receipt of service of each document by the appointed person; and
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.
(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.
11A.1 A non‑corporate Commonwealth entity is required, when entering into a contract with a third party that includes a right of subrogation in favour of the third party, to use its best endeavours to ensure that the contract includes a provision requiring the third party, and its agents:
(b) to consult with that entity if any matters relevant to paragraphs 2 and 10 of the Directions arise in the course of undertaking that litigation on behalf of the Commonwealth.
11A.2 The operation of these Directions extends to any legal services which the non‑corporate Commonwealth entity has the ability to control as a result of an indemnity given to, or an arrangement made with, another body or person.
12.1 This paragraph deals with the application of the Directions to a body or person that is not a non‑corporate Commonwealth entity.
Note: This paragraph deals with the application of the Directions to bodies and persons such as corporate Commonwealth entities and Commonwealth companies, as well as other bodies and persons.
12.2 A body or person that handles claims, or conducts litigation in the name of, or on behalf of, the Commonwealth, is to comply with the Directions in respect of such claims and litigation.
(a) inform the Attorney‑General or OLSC of the details of any litigation (including threatened or proposed litigation) which gives rise to constitutional issues and comply with any specific instructions given by the Attorney‑General concerning the conduct of the litigation (including as to the choice of lawyers to be used and the arguments to be put on constitutional issues)
(b) inform the Attorney‑General or OLSC of any claim or litigation proposed to be brought against, or involving, another Commonwealth agency
(c) handle claims and conduct litigation in accordance with the Directions on The Commonwealth’s Obligations to Act as Model Litigant, at Appendix B
12.4 In addition, the Attorney‑General may decide that a particular body or person is to comply with some or all of the Directions that apply to non‑corporate Commonwealth entities.
12.5 If the Attorney‑General makes a decision under paragraph 12.4, the Attorney‑General is to tell the body about the decision.
12A.1 Persons appointed by the Attorney‑General under section 63 of the Judiciary Act 1903 to receive service are to report to the Commonwealth agency on behalf of which they have received service:
12A.2 If documentation that is served on a person appointed under section 63 of the Judiciary Act 1903 is not clear as to which Commonwealth agency the person is to report, the person is to report to OLSC using the template mentioned in paragraph 12A.1 (b).
13.1 The Attorney‑General may decide, in relation to a particular non‑corporate Commonwealth entity or other body, that it:
13.2 If the Attorney‑General makes a decision under paragraph 13.1, the Attorney‑General is to notify the entity or body about the decision.
Note: Examples demonstrating the range of sanctions and the manner in which OLSC approaches allegations of non‑compliance with the Directions are set out in material on compliance published by OLSC. Allegations of non‑compliance with the Directions may be raised with OLSC at olsc@ag.gov.au.
14.2 When entering into a contract for legal services, Commonwealth agencies are to include a provision stating that the contract includes appropriate penalties in the event of a breach of the Directions to which the legal services provider has contributed, including the termination of the contract in an appropriate case.
accountable authority has the meaning given by subsection 12(2) of the Public Governance, Performance and Accountability Act 2013.
Commonwealth company has the meaning given by subsection 89(1) of the Public Governance, Performance and Accountability Act 2013.
corporate Commonwealth entity means a corporate Commonwealth entity within the meaning of paragraph 11(a) of the Public Governance, Performance and Accountability Act 2013, but does not include an entity that was an FMA agency.
FMA agency means a Commonwealth entity that was an Agency (within the meaning of the Financial Management and Accountability Act 1997) on 30 June 2014.
government business enterprise has the meaning given by section 8 of the Public Governance, Performance and Accountability Act 2013.
litigation, unless otherwise indicated, includes proceedings before courts, tribunals, inquiries and in arbitration and other alternative dispute resolution processes, and the preparation for such proceedings.
non‑corporate Commonwealth entity means a non‑corporate Commonwealth entity within the meaning of paragraph 11(b) of the Public Governance, Performance and Accountability Act 2013 and includes an entity that was an FMA agency.
OLSC means the Office of Legal Services Coordination in the Attorney‑General’s Department, or any person within the Department on whom the Secretary confers the function of administering these Directions.
Note: 1 In addition to the requirements in these Directions, non‑corporate Commonwealth entities must comply with the finance law when making arrangements for the provision of legal services. For example, under section 15 of the Public Governance, Performance and Accountability Act 2013, the accountable authority of a non‑corporate Commonwealth entity has a duty to promote the proper use of public resources (i.e. the efficient, effective, economical and ethical use of public resources) by the entity. Also, under section 21 of that Act, the accountable authority must govern the entity in a way that is not inconsistent with the policy of the Australian Government. These duties will apply in relation to arrangements for the provision of legal services to the entity.
Note: 2 If a non‑corporate Commonwealth entity wishes to institute proceedings in the name of the Commonwealth, the proceedings will need to be instituted by a person appointed by the Attorney‑General under section 61 of the Judiciary Act 1903. In these circumstances, if a relevant appointment is not in place, the details should be forwarded to OLSC to enable the issue of an appointment under section 61 to be referred for decision by the Attorney‑General.
Note: Appointments under section 61 include appointments of accountable authorities of non‑corporate Commonwealth entities.
Note: 2A Lawyers providing legal services to the Commonwealth or Commonwealth agencies may be appointed by the Attorney‑General under section 63 of the Judiciary Act 1903.
Note: 3 In addition to these Directions, other rules and policies are relevant for the provision of legal services, including:
(a) the policy on what legal work is undertaken by AGS and the Attorney‑General’s Department on a non‑billable basis (information on this policy can be obtained from OLSC and its website)
(b) the policy on giving indemnities and guarantees by the Commonwealth and Commonwealth agencies (information on this policy can be obtained from the Department of Finance or OLSC)
(c) the policy on insurance and handling of liability claims by Commonwealth agencies that operate under the Commonwealth’s self‑managed fund for insurable risks, Comcover (information on Comcover can be obtained from the Department of Finance)
(d) the Parliamentary Entitlements Regulations 1997 which deal with the provision of assistance to Ministers for legal proceedings (information on these Regulations can be obtained from OLSC), and
(e) Judiciary Act 1903, section 63, which deals with service of process when the Commonwealth or a State is a party to a suit.
Note: 4 The Directions are not intended to cover the handling of criminal prosecutions and related proceedings unless expressly referred to.
Note: 5 The Directions are not intended to override any legislative requirement or authority concerning a Commonwealth agency’s functions (in particular, the role of the Director of Public Prosecutions).
11A Third parties
11A.1 A non‑corporate Commonwealth entity is required, when entering into a contract with a third party that includes a right of subrogation in favour of the third party, to use its best endeavours to ensure that the contract includes a provision requiring the third party, and its agents:
(b) to consult with that entity if any matters relevant to paragraphs 2 and 10 of the Directions arise in the course of undertaking that litigation on behalf of the Commonwealth.
11A.2 The operation of these Directions extends to any legal services which the non‑corporate Commonwealth entity has the ability to control as a result of an indemnity given to, or an arrangement made with, another body or person.
12 Extended application of Directions to other bodies or persons
12.1 This paragraph deals with the application of the Directions to a body or person that is not a non‑corporate Commonwealth entity.
Note: This paragraph deals with the application of the Directions to bodies and persons such as corporate Commonwealth entities and Commonwealth companies, as well as other bodies and persons.
12.2 A body or person that handles claims, or conducts litigation in the name of, or on behalf of, the Commonwealth, is to comply with the Directions in respect of such claims and litigation.
(a) inform the Attorney‑General or OLSC of the details of any litigation (including threatened or proposed litigation) which gives rise to constitutional issues and comply with any specific instructions given by the Attorney‑General concerning the conduct of the litigation (including as to the choice of lawyers to be used and the arguments to be put on constitutional issues)
(b) inform the Attorney‑General or OLSC of any claim or litigation proposed to be brought against, or involving, another Commonwealth agency
(c) handle claims and conduct litigation in accordance with the Directions on The Commonwealth’s Obligations to Act as Model Litigant, at Appendix B
12.4 In addition, the Attorney‑General may decide that a particular body or person is to comply with some or all of the Directions that apply to non‑corporate Commonwealth entities.
12.5 If the Attorney‑General makes a decision under paragraph 12.4, the Attorney‑General is to tell the body about the decision.
12A Obligations of persons appointed under section 63 of the Judiciary Act 1903 to receive service
12A.1 Persons appointed by the Attorney‑General under section 63 of the Judiciary Act 1903 to receive service are to report to the Commonwealth agency on behalf of which they have received service:
12A.2 If documentation that is served on a person appointed under section 63 of the Judiciary Act 1903 is not clear as to which Commonwealth agency the person is to report, the person is to report to OLSC using the template mentioned in paragraph 12A.1 (b).
12B Transition from Legal Services Directions 2005
13 Exemptions from complying with Directions
13.1 The Attorney‑General may decide, in relation to a particular non‑corporate Commonwealth entity or other body, that it:
13.2 If the Attorney‑General makes a decision under paragraph 13.1, the Attorney‑General is to notify the entity or body about the decision.
Part 3 Sanctions for non‑compliance
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)
(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
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.
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:
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.
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
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.
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.
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.
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.
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.
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.
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:
(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
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:
(b) the Attorney‑General’s Department and the Australian Security Intelligence Organisation for national security matters
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.
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 is expected that the application will succeed (in which case not consenting would be likely to result in unnecessary costs and delay).
8.3 Although paragraph 8.1 requires a non‑corporate Commonwealth entity to plead a defence based on the expiry of an applicable limitation period, this does not prevent the entity from settling a claim involving a limitation period without the approval of the Attorney‑General in the following circumstances:
(a) where legal advice has been obtained recommending settlement of a claim, based (among other things) on an assessment of the plaintiff’s prospects of success regarding the limitation period issue, and
(b) to the extent that there are perceived to be weaknesses in the plaintiff’s position in that regard, these weaknesses are taken into account when determining an appropriate discount to the offer of settlement.
8.4 Reference to the term ‘limitation period’ in paragraphs 8.1 and 8.2 is intended to cover only the initial commencement of court proceedings where the court is exercising original jurisdiction. It is not intended to cover, for example:
(a) time limits applicable to procedural steps in litigation (eg time for filing a statement of claim or providing discovery)
9.1 Financial assistance to a Commonwealth employee for legal proceedings in which the employee is involved is to be provided in accordance with the Directions on Assistance to Commonwealth Employees for Legal Proceedings, at Appendix E.
9A.1 A non‑corporate Commonwealth entity must comply with the directions on legal services procurement at Appendix F when procuring legal services from external legal services providers.
10.1 If a non‑corporate Commonwealth entity (the requesting entity) wishes to obtain legal advice (whether from an in‑house or external source) on the interpretation of legislation administered by another non‑corporate Commonwealth entity (the administering entity), the requesting entity is to provide the administering entity with:
(c) a reasonable opportunity to consult on the matter prior to the advice being finalised, including consultation with the requesting entity’s legal services provider, as required by the administering entity, and
10.2 The requesting entity is not required to provide an opportunity for prior consultation if advice is needed urgently (eg to enable a response to an urgent request by a Minister or a request arising without notice in litigation). However, the requesting entity is to consult the administering entity and copy the request for advice and the advice to the administering entity as soon as practicable thereafter.
10.3 Prior consultation is not required, and the request for advice and the advice do not have to be copied to the administering entity, if:
Where paragraph 10.3 (a) or (b) is applicable, the requesting entity is to inform the administering entity that a request for advice covered by subparagraph 10.3 has been made, and to disclose the substance of advice it receives to the extent that is possible without disclosing information which needs to remain confidential.
Where paragraph 10.3 (c) is applicable, the requesting entity is to comply with any conditions to which the exemption is subject.
10.4 Consultation and disclosure are not required for advice on a routine matter which does no more than advise on the application of the law to particular facts, by relying on the settled interpretation of the legislation. Without limiting the requirement, consultation would, however, be required where:
(a) advice relates to legislative provisions that have not been considered by the courts, is contrary to existing policy or could raise new policy issues in respect of the legislation
10.5 If an administering entity is consulted in accordance with this paragraph, it is to carefully consider the advice given to the requesting entity, to determine whether the advice indicates an ambiguity or other issue in the legislation that should be addressed by remedial action to be taken by the administering entity (such as proposing a legislative amendment to the responsible Minister).
10.6 Any disagreement as to the correct interpretation of legislation is to be resolved as far as possible by negotiation between the requesting entity and the administering entity. Issues should be referred to OLSC if further advice is sought from the Solicitor‑General to resolve the matter.
10.7 The Attorney‑General is entitled to obtain access to any legal advice obtained by the non‑corporate Commonwealth entity (subject to any legislative restriction).
Note: Legal professional privilege is not waived by providing advice to the Attorney‑General in accordance with these Directions: see section 55ZH of the Judiciary Act 1903.
10.8 If a non‑corporate Commonwealth entity receives legal advice that it considers is likely to be significant to other Commonwealth agencies, it is to take reasonable steps to make that advice available to those agencies, subject to paragraph 10.4.
Note 1: The purpose of paragraph 10 is to promote consultation between Commonwealth agencies on the interpretation of legislation with the aim of reaching, as far as possible, consistency in statutory interpretation across the Commonwealth. Non‑corporate Commonwealth entities are not to act in a manner that may be inconsistent with or undermine Commonwealth policy in respect of a particular piece of legislation. Concerns about interpretation are to be raised with the administering entity so that it has the opportunity to consider whether the policy requires change, and entities are to seek to minimise cost by first seeing if the administering entity has an answer to their question rather than commissioning fresh advice.
Note 2: To find out the non‑corporate Commonwealth entity that administers particular legislation, see the Administrative Arrangements Orders.
10.9 The Attorney‑General may exempt a Commonwealth agency from compliance with paragraph 10, or particular requirements in this paragraph.
10A.2 The Attorney‑General’s Department or AGS may consult with the Solicitor‑General about whether the advice should be given by the Solicitor‑General or AGS.
10A.3 AGS must give a copy of any final advice it gives on a constitutional law issue to the Attorney‑General’s Department and to the Solicitor‑General.
(a) the entity’s arrangements for legal services, especially any litigation for which the entity is responsible, are handled efficiently and effectively
(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
Note: The protection that is to be given to classified material is set out in the Protective Security Policy Framework (PSPF). 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 PSPF can be made using the contact details provided at www.protectivesecurity.gov.au.
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:
(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:
(v) the date on which the entity or OLSC was advised of the receipt of service of each document by the appointed person; and
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.
(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.
11A.1 A non‑corporate Commonwealth entity is required, when entering into a contract with a third party that includes a right of subrogation in favour of the third party, to use its best endeavours to ensure that the contract includes a provision requiring the third party, and its agents:
(b) to consult with that entity if any matters relevant to paragraphs 2 and 10 of the Directions arise in the course of undertaking that litigation on behalf of the Commonwealth.
11A.2 The operation of these Directions extends to any legal services which the non‑corporate Commonwealth entity has the ability to control as a result of an indemnity given to, or an arrangement made with, another body or person.
12.1 This paragraph deals with the application of the Directions to a body or person that is not a non‑corporate Commonwealth entity.
Note: This paragraph deals with the application of the Directions to bodies and persons such as corporate Commonwealth entities and Commonwealth companies, as well as other bodies and persons.
12.2 A body or person that handles claims, or conducts litigation in the name of, or on behalf of, the Commonwealth, is to comply with the Directions in respect of such claims and litigation.
(a) inform the Attorney‑General or OLSC of the details of any litigation (including threatened or proposed litigation) which gives rise to constitutional issues and comply with any specific instructions given by the Attorney‑General concerning the conduct of the litigation (including as to the choice of lawyers to be used and the arguments to be put on constitutional issues)
(b) inform the Attorney‑General or OLSC of any claim or litigation proposed to be brought against, or involving, another Commonwealth agency
(c) handle claims and conduct litigation in accordance with the Directions on The Commonwealth’s Obligations to Act as Model Litigant, at Appendix B
12.4 In addition, the Attorney‑General may decide that a particular body or person is to comply with some or all of the Directions that apply to non‑corporate Commonwealth entities.
12.5 If the Attorney‑General makes a decision under paragraph 12.4, the Attorney‑General is to tell the body about the decision.
12A.1 Persons appointed by the Attorney‑General under section 63 of the Judiciary Act 1903 to receive service are to report to the Commonwealth agency on behalf of which they have received service:
12A.2 If documentation that is served on a person appointed under section 63 of the Judiciary Act 1903 is not clear as to which Commonwealth agency the person is to report, the person is to report to OLSC using the template mentioned in paragraph 12A.1 (b).
13.1 The Attorney‑General may decide, in relation to a particular non‑corporate Commonwealth entity or other body, that it:
13.2 If the Attorney‑General makes a decision under paragraph 13.1, the Attorney‑General is to notify the entity or body about the decision.
Note: Examples demonstrating the range of sanctions and the manner in which OLSC approaches allegations of non‑compliance with the Directions are set out in material on compliance published by OLSC. Allegations of non‑compliance with the Directions may be raised with OLSC at olsc@ag.gov.au.
14.2 When entering into a contract for legal services, Commonwealth agencies are to include a provision stating that the contract includes appropriate penalties in the event of a breach of the Directions to which the legal services provider has contributed, including the termination of the contract in an appropriate case.
accountable authority has the meaning given by subsection 12(2) of the Public Governance, Performance and Accountability Act 2013.
Commonwealth company has the meaning given by subsection 89(1) of the Public Governance, Performance and Accountability Act 2013.
corporate Commonwealth entity means a corporate Commonwealth entity within the meaning of paragraph 11(a) of the Public Governance, Performance and Accountability Act 2013, but does not include an entity that was an FMA agency.
FMA agency means a Commonwealth entity that was an Agency (within the meaning of the Financial Management and Accountability Act 1997) on 30 June 2014.
government business enterprise has the meaning given by section 8 of the Public Governance, Performance and Accountability Act 2013.
litigation, unless otherwise indicated, includes proceedings before courts, tribunals, inquiries and in arbitration and other alternative dispute resolution processes, and the preparation for such proceedings.
non‑corporate Commonwealth entity means a non‑corporate Commonwealth entity within the meaning of paragraph 11(b) of the Public Governance, Performance and Accountability Act 2013 and includes an entity that was an FMA agency.
OLSC means the Office of Legal Services Coordination in the Attorney‑General’s Department, or any person within the Department on whom the Secretary confers the function of administering these Directions.
Note: 1 In addition to the requirements in these Directions, non‑corporate Commonwealth entities must comply with the finance law when making arrangements for the provision of legal services. For example, under section 15 of the Public Governance, Performance and Accountability Act 2013, the accountable authority of a non‑corporate Commonwealth entity has a duty to promote the proper use of public resources (i.e. the efficient, effective, economical and ethical use of public resources) by the entity. Also, under section 21 of that Act, the accountable authority must govern the entity in a way that is not inconsistent with the policy of the Australian Government. These duties will apply in relation to arrangements for the provision of legal services to the entity.
Note: 2 If a non‑corporate Commonwealth entity wishes to institute proceedings in the name of the Commonwealth, the proceedings will need to be instituted by a person appointed by the Attorney‑General under section 61 of the Judiciary Act 1903. In these circumstances, if a relevant appointment is not in place, the details should be forwarded to OLSC to enable the issue of an appointment under section 61 to be referred for decision by the Attorney‑General.
Note: Appointments under section 61 include appointments of accountable authorities of non‑corporate Commonwealth entities.
Note: 2A Lawyers providing legal services to the Commonwealth or Commonwealth agencies may be appointed by the Attorney‑General under section 63 of the Judiciary Act 1903.
Note: 3 In addition to these Directions, other rules and policies are relevant for the provision of legal services, including:
(a) the policy on what legal work is undertaken by AGS and the Attorney‑General’s Department on a non‑billable basis (information on this policy can be obtained from OLSC and its website)
(b) the policy on giving indemnities and guarantees by the Commonwealth and Commonwealth agencies (information on this policy can be obtained from the Department of Finance or OLSC)
(c) the policy on insurance and handling of liability claims by Commonwealth agencies that operate under the Commonwealth’s self‑managed fund for insurable risks, Comcover (information on Comcover can be obtained from the Department of Finance)
(d) the Parliamentary Entitlements Regulations 1997 which deal with the provision of assistance to Ministers for legal proceedings (information on these Regulations can be obtained from OLSC), and
(e) Judiciary Act 1903, section 63, which deals with service of process when the Commonwealth or a State is a party to a suit.
Note: 4 The Directions are not intended to cover the handling of criminal prosecutions and related proceedings unless expressly referred to.
Note: 5 The Directions are not intended to override any legislative requirement or authority concerning a Commonwealth agency’s functions (in particular, the role of the Director of Public Prosecutions).
14 Sanctions for non‑compliance
Note: Examples demonstrating the range of sanctions and the manner in which OLSC approaches allegations of non‑compliance with the Directions are set out in material on compliance published by OLSC. Allegations of non‑compliance with the Directions may be raised with OLSC at olsc@ag.gov.au.
14.2 When entering into a contract for legal services, Commonwealth agencies are to include a provision stating that the contract includes appropriate penalties in the event of a breach of the Directions to which the legal services provider has contributed, including the termination of the contract in an appropriate case.
Part 4 Dictionary
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)
(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
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.
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:
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.
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
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.
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.
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.
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.
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.
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.
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:
(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
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:
(b) the Attorney‑General’s Department and the Australian Security Intelligence Organisation for national security matters
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.
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 is expected that the application will succeed (in which case not consenting would be likely to result in unnecessary costs and delay).
8.3 Although paragraph 8.1 requires a non‑corporate Commonwealth entity to plead a defence based on the expiry of an applicable limitation period, this does not prevent the entity from settling a claim involving a limitation period without the approval of the Attorney‑General in the following circumstances:
(a) where legal advice has been obtained recommending settlement of a claim, based (among other things) on an assessment of the plaintiff’s prospects of success regarding the limitation period issue, and
(b) to the extent that there are perceived to be weaknesses in the plaintiff’s position in that regard, these weaknesses are taken into account when determining an appropriate discount to the offer of settlement.
8.4 Reference to the term ‘limitation period’ in paragraphs 8.1 and 8.2 is intended to cover only the initial commencement of court proceedings where the court is exercising original jurisdiction. It is not intended to cover, for example:
(a) time limits applicable to procedural steps in litigation (eg time for filing a statement of claim or providing discovery)
9.1 Financial assistance to a Commonwealth employee for legal proceedings in which the employee is involved is to be provided in accordance with the Directions on Assistance to Commonwealth Employees for Legal Proceedings, at Appendix E.
9A.1 A non‑corporate Commonwealth entity must comply with the directions on legal services procurement at Appendix F when procuring legal services from external legal services providers.
10.1 If a non‑corporate Commonwealth entity (the requesting entity) wishes to obtain legal advice (whether from an in‑house or external source) on the interpretation of legislation administered by another non‑corporate Commonwealth entity (the administering entity), the requesting entity is to provide the administering entity with:
(c) a reasonable opportunity to consult on the matter prior to the advice being finalised, including consultation with the requesting entity’s legal services provider, as required by the administering entity, and
10.2 The requesting entity is not required to provide an opportunity for prior consultation if advice is needed urgently (eg to enable a response to an urgent request by a Minister or a request arising without notice in litigation). However, the requesting entity is to consult the administering entity and copy the request for advice and the advice to the administering entity as soon as practicable thereafter.
10.3 Prior consultation is not required, and the request for advice and the advice do not have to be copied to the administering entity, if:
Where paragraph 10.3 (a) or (b) is applicable, the requesting entity is to inform the administering entity that a request for advice covered by subparagraph 10.3 has been made, and to disclose the substance of advice it receives to the extent that is possible without disclosing information which needs to remain confidential.
Where paragraph 10.3 (c) is applicable, the requesting entity is to comply with any conditions to which the exemption is subject.
10.4 Consultation and disclosure are not required for advice on a routine matter which does no more than advise on the application of the law to particular facts, by relying on the settled interpretation of the legislation. Without limiting the requirement, consultation would, however, be required where:
(a) advice relates to legislative provisions that have not been considered by the courts, is contrary to existing policy or could raise new policy issues in respect of the legislation
10.5 If an administering entity is consulted in accordance with this paragraph, it is to carefully consider the advice given to the requesting entity, to determine whether the advice indicates an ambiguity or other issue in the legislation that should be addressed by remedial action to be taken by the administering entity (such as proposing a legislative amendment to the responsible Minister).
10.6 Any disagreement as to the correct interpretation of legislation is to be resolved as far as possible by negotiation between the requesting entity and the administering entity. Issues should be referred to OLSC if further advice is sought from the Solicitor‑General to resolve the matter.
10.7 The Attorney‑General is entitled to obtain access to any legal advice obtained by the non‑corporate Commonwealth entity (subject to any legislative restriction).
Note: Legal professional privilege is not waived by providing advice to the Attorney‑General in accordance with these Directions: see section 55ZH of the Judiciary Act 1903.
10.8 If a non‑corporate Commonwealth entity receives legal advice that it considers is likely to be significant to other Commonwealth agencies, it is to take reasonable steps to make that advice available to those agencies, subject to paragraph 10.4.
Note 1: The purpose of paragraph 10 is to promote consultation between Commonwealth agencies on the interpretation of legislation with the aim of reaching, as far as possible, consistency in statutory interpretation across the Commonwealth. Non‑corporate Commonwealth entities are not to act in a manner that may be inconsistent with or undermine Commonwealth policy in respect of a particular piece of legislation. Concerns about interpretation are to be raised with the administering entity so that it has the opportunity to consider whether the policy requires change, and entities are to seek to minimise cost by first seeing if the administering entity has an answer to their question rather than commissioning fresh advice.
Note 2: To find out the non‑corporate Commonwealth entity that administers particular legislation, see the Administrative Arrangements Orders.
10.9 The Attorney‑General may exempt a Commonwealth agency from compliance with paragraph 10, or particular requirements in this paragraph.
10A.2 The Attorney‑General’s Department or AGS may consult with the Solicitor‑General about whether the advice should be given by the Solicitor‑General or AGS.
10A.3 AGS must give a copy of any final advice it gives on a constitutional law issue to the Attorney‑General’s Department and to the Solicitor‑General.
(a) the entity’s arrangements for legal services, especially any litigation for which the entity is responsible, are handled efficiently and effectively
(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
Note: The protection that is to be given to classified material is set out in the Protective Security Policy Framework (PSPF). 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 PSPF can be made using the contact details provided at www.protectivesecurity.gov.au.
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:
(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:
(v) the date on which the entity or OLSC was advised of the receipt of service of each document by the appointed person; and
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.
(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.
11A.1 A non‑corporate Commonwealth entity is required, when entering into a contract with a third party that includes a right of subrogation in favour of the third party, to use its best endeavours to ensure that the contract includes a provision requiring the third party, and its agents:
(b) to consult with that entity if any matters relevant to paragraphs 2 and 10 of the Directions arise in the course of undertaking that litigation on behalf of the Commonwealth.
11A.2 The operation of these Directions extends to any legal services which the non‑corporate Commonwealth entity has the ability to control as a result of an indemnity given to, or an arrangement made with, another body or person.
12.1 This paragraph deals with the application of the Directions to a body or person that is not a non‑corporate Commonwealth entity.
Note: This paragraph deals with the application of the Directions to bodies and persons such as corporate Commonwealth entities and Commonwealth companies, as well as other bodies and persons.
12.2 A body or person that handles claims, or conducts litigation in the name of, or on behalf of, the Commonwealth, is to comply with the Directions in respect of such claims and litigation.
(a) inform the Attorney‑General or OLSC of the details of any litigation (including threatened or proposed litigation) which gives rise to constitutional issues and comply with any specific instructions given by the Attorney‑General concerning the conduct of the litigation (including as to the choice of lawyers to be used and the arguments to be put on constitutional issues)
(b) inform the Attorney‑General or OLSC of any claim or litigation proposed to be brought against, or involving, another Commonwealth agency
(c) handle claims and conduct litigation in accordance with the Directions on The Commonwealth’s Obligations to Act as Model Litigant, at Appendix B
12.4 In addition, the Attorney‑General may decide that a particular body or person is to comply with some or all of the Directions that apply to non‑corporate Commonwealth entities.
12.5 If the Attorney‑General makes a decision under paragraph 12.4, the Attorney‑General is to tell the body about the decision.
12A.1 Persons appointed by the Attorney‑General under section 63 of the Judiciary Act 1903 to receive service are to report to the Commonwealth agency on behalf of which they have received service:
12A.2 If documentation that is served on a person appointed under section 63 of the Judiciary Act 1903 is not clear as to which Commonwealth agency the person is to report, the person is to report to OLSC using the template mentioned in paragraph 12A.1 (b).
13.1 The Attorney‑General may decide, in relation to a particular non‑corporate Commonwealth entity or other body, that it:
13.2 If the Attorney‑General makes a decision under paragraph 13.1, the Attorney‑General is to notify the entity or body about the decision.
Note: Examples demonstrating the range of sanctions and the manner in which OLSC approaches allegations of non‑compliance with the Directions are set out in material on compliance published by OLSC. Allegations of non‑compliance with the Directions may be raised with OLSC at olsc@ag.gov.au.
14.2 When entering into a contract for legal services, Commonwealth agencies are to include a provision stating that the contract includes appropriate penalties in the event of a breach of the Directions to which the legal services provider has contributed, including the termination of the contract in an appropriate case.
accountable authority has the meaning given by subsection 12(2) of the Public Governance, Performance and Accountability Act 2013.
Commonwealth company has the meaning given by subsection 89(1) of the Public Governance, Performance and Accountability Act 2013.
corporate Commonwealth entity means a corporate Commonwealth entity within the meaning of paragraph 11(a) of the Public Governance, Performance and Accountability Act 2013, but does not include an entity that was an FMA agency.
FMA agency means a Commonwealth entity that was an Agency (within the meaning of the Financial Management and Accountability Act 1997) on 30 June 2014.
government business enterprise has the meaning given by section 8 of the Public Governance, Performance and Accountability Act 2013.
litigation, unless otherwise indicated, includes proceedings before courts, tribunals, inquiries and in arbitration and other alternative dispute resolution processes, and the preparation for such proceedings.
non‑corporate Commonwealth entity means a non‑corporate Commonwealth entity within the meaning of paragraph 11(b) of the Public Governance, Performance and Accountability Act 2013 and includes an entity that was an FMA agency.
OLSC means the Office of Legal Services Coordination in the Attorney‑General’s Department, or any person within the Department on whom the Secretary confers the function of administering these Directions.
Note: 1 In addition to the requirements in these Directions, non‑corporate Commonwealth entities must comply with the finance law when making arrangements for the provision of legal services. For example, under section 15 of the Public Governance, Performance and Accountability Act 2013, the accountable authority of a non‑corporate Commonwealth entity has a duty to promote the proper use of public resources (i.e. the efficient, effective, economical and ethical use of public resources) by the entity. Also, under section 21 of that Act, the accountable authority must govern the entity in a way that is not inconsistent with the policy of the Australian Government. These duties will apply in relation to arrangements for the provision of legal services to the entity.
Note: 2 If a non‑corporate Commonwealth entity wishes to institute proceedings in the name of the Commonwealth, the proceedings will need to be instituted by a person appointed by the Attorney‑General under section 61 of the Judiciary Act 1903. In these circumstances, if a relevant appointment is not in place, the details should be forwarded to OLSC to enable the issue of an appointment under section 61 to be referred for decision by the Attorney‑General.
Note: Appointments under section 61 include appointments of accountable authorities of non‑corporate Commonwealth entities.
Note: 2A Lawyers providing legal services to the Commonwealth or Commonwealth agencies may be appointed by the Attorney‑General under section 63 of the Judiciary Act 1903.
Note: 3 In addition to these Directions, other rules and policies are relevant for the provision of legal services, including:
(a) the policy on what legal work is undertaken by AGS and the Attorney‑General’s Department on a non‑billable basis (information on this policy can be obtained from OLSC and its website)
(b) the policy on giving indemnities and guarantees by the Commonwealth and Commonwealth agencies (information on this policy can be obtained from the Department of Finance or OLSC)
(c) the policy on insurance and handling of liability claims by Commonwealth agencies that operate under the Commonwealth’s self‑managed fund for insurable risks, Comcover (information on Comcover can be obtained from the Department of Finance)
(d) the Parliamentary Entitlements Regulations 1997 which deal with the provision of assistance to Ministers for legal proceedings (information on these Regulations can be obtained from OLSC), and
(e) Judiciary Act 1903, section 63, which deals with service of process when the Commonwealth or a State is a party to a suit.
Note: 4 The Directions are not intended to cover the handling of criminal prosecutions and related proceedings unless expressly referred to.
Note: 5 The Directions are not intended to override any legislative requirement or authority concerning a Commonwealth agency’s functions (in particular, the role of the Director of Public Prosecutions).
15 Dictionary
accountable authority has the meaning given by subsection 12(2) of the Public Governance, Performance and Accountability Act 2013.
Commonwealth company has the meaning given by subsection 89(1) of the Public Governance, Performance and Accountability Act 2013.
corporate Commonwealth entity means a corporate Commonwealth entity within the meaning of paragraph 11(a) of the Public Governance, Performance and Accountability Act 2013, but does not include an entity that was an FMA agency.
FMA agency means a Commonwealth entity that was an Agency (within the meaning of the Financial Management and Accountability Act 1997) on 30 June 2014.
government business enterprise has the meaning given by section 8 of the Public Governance, Performance and Accountability Act 2013.
litigation, unless otherwise indicated, includes proceedings before courts, tribunals, inquiries and in arbitration and other alternative dispute resolution processes, and the preparation for such proceedings.
non‑corporate Commonwealth entity means a non‑corporate Commonwealth entity within the meaning of paragraph 11(b) of the Public Governance, Performance and Accountability Act 2013 and includes an entity that was an FMA agency.
OLSC means the Office of Legal Services Coordination in the Attorney‑General’s Department, or any person within the Department on whom the Secretary confers the function of administering these Directions.
Note: 1 In addition to the requirements in these Directions, non‑corporate Commonwealth entities must comply with the finance law when making arrangements for the provision of legal services. For example, under section 15 of the Public Governance, Performance and Accountability Act 2013, the accountable authority of a non‑corporate Commonwealth entity has a duty to promote the proper use of public resources (i.e. the efficient, effective, economical and ethical use of public resources) by the entity. Also, under section 21 of that Act, the accountable authority must govern the entity in a way that is not inconsistent with the policy of the Australian Government. These duties will apply in relation to arrangements for the provision of legal services to the entity.
Note: 2 If a non‑corporate Commonwealth entity wishes to institute proceedings in the name of the Commonwealth, the proceedings will need to be instituted by a person appointed by the Attorney‑General under section 61 of the Judiciary Act 1903. In these circumstances, if a relevant appointment is not in place, the details should be forwarded to OLSC to enable the issue of an appointment under section 61 to be referred for decision by the Attorney‑General.
Note: Appointments under section 61 include appointments of accountable authorities of non‑corporate Commonwealth entities.
Note: 2A Lawyers providing legal services to the Commonwealth or Commonwealth agencies may be appointed by the Attorney‑General under section 63 of the Judiciary Act 1903.
Note: 3 In addition to these Directions, other rules and policies are relevant for the provision of legal services, including:
(a) the policy on what legal work is undertaken by AGS and the Attorney‑General’s Department on a non‑billable basis (information on this policy can be obtained from OLSC and its website)
(b) the policy on giving indemnities and guarantees by the Commonwealth and Commonwealth agencies (information on this policy can be obtained from the Department of Finance or OLSC)
(c) the policy on insurance and handling of liability claims by Commonwealth agencies that operate under the Commonwealth’s self‑managed fund for insurable risks, Comcover (information on Comcover can be obtained from the Department of Finance)
(d) the Parliamentary Entitlements Regulations 1997 which deal with the provision of assistance to Ministers for legal proceedings (information on these Regulations can be obtained from OLSC), and
(e) Judiciary Act 1903, section 63, which deals with service of process when the Commonwealth or a State is a party to a suit.
Note: 4 The Directions are not intended to cover the handling of criminal prosecutions and related proceedings unless expressly referred to.
Note: 5 The Directions are not intended to override any legislative requirement or authority concerning a Commonwealth agency’s functions (in particular, the role of the Director of Public Prosecutions).