Note: A number of expressions used in these Directions are defined in the Act, including the following:
(a) legal practitioner;
(b) Commonwealth legal work.
In these Directions:
accountable authority has the meaning given by subsection 12(2) of the Public Governance, Performance and Accountability Act 2013.
Act means the Judiciary Act 1903.
administering entity has the meaning given by section 23.
AGS has the meaning given by section 2 of the Act.
claim means the assertion of a legal right or entitlement by or against the Commonwealth or an entity.
Commonwealth agency means a non-corporate Commonwealth entity, a corporate Commonwealth entity or a Commonwealth company.
Commonwealth company has the meaning given by subsection 89(1) of the Public Governance, Performance and Accountability Act 2013.
Commonwealth entity has the meaning given by section 10 of the Public Governance, Performance and Accountability Act 2013.
Commonwealth Procurement Rules means the Commonwealth Procurement Rules in force under subsection 105B(1) of the Public Governance, Performance and Accountability Act 2013.
corporate Commonwealth entity has the meaning given by paragraph 11(a) of the Public Governance, Performance and Accountability Act 2013, but does not include a person or body that is taken to be a non-corporate Commonwealth entity for the purposes of the finance law.
counsel:
(a) includes a legal practitioner who is engaged as counsel to provide legal services; and
(b) does not include a legal practitioner who is engaged in any other capacity to provide legal services.
Note: Each jurisdiction has laws limiting who is entitled to engage in legal practice. In some jurisdictions, for instance, a person may be admitted as a barrister and solicitor, and may practise as both.
A reference to counsel extends to a legal practitioner who, although not from the bar, is engaged as counsel to conduct or advise on litigation, or to provide advice. It does not extend, for example, to a legal practitioner who is engaged to provide advice in their capacity as a solicitor.
engaging entity has the meaning given by section 70.
entity means the following:
(a) a non‑corporate Commonwealth entity;
(b) the Australian Human Rights Commission;
(c) the Australian Pesticides and Veterinary Medicines Authority;
(d) the Independent Health and Aged Care Pricing Authority;
(e) the Murray‑Darling Basin Authority;
(f) the National Offshore Petroleum Safety and Environmental Management Authority.
external legal services provider means a legal services provider external to the person or body to which the legal services are to be provided, but does not include counsel or a government legal services provider.
finance law has the meaning given by section 8 of the Public Governance, Performance and Accountability Act 2013.
GBE means a government business enterprise within the meaning of the Public Governance, Performance and Accountability Act 2013.
government legal services provider means:
(a) AGS; or
(b) an entity or part thereof that provides legal services to other entities.
legal services expenditure, in relation to an entity, means the entity’s internal and external legal services expenditure, including:
(a) expenditure on counsel; and
(b) expenditure on legal services obtained from a government legal services provider.
litigation, unless otherwise indicated, includes proceedings before courts, tribunals, inquiries, in arbitration and other alternative dispute resolution processes, and the preparation for such proceedings.
model litigant obligation has the meaning given by section 40.
non‑corporate Commonwealth entity has the meaning given by paragraph 11(b) of the Public Governance, Performance and Accountability Act 2013, and includes a person or body that is taken to be a non-corporate Commonwealth entity for the purposes of the finance law.
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.
pro bono legal work has the meaning given by section 83.
requesting entity has the meaning given by section 23.
routine, in relation to a matter, has the meaning given by subsection 26(1).
settlement means the consensual resolution of a claim or litigation.
Note: This includes the following:
(a) settlements that are facilitated by a mediator;
(b) settlements that, though consensual, will be the subject of further consideration or orders by a court, tribunal, or other person or body – for instance, where the settlement must be approved by a court. This includes class action settlements, agreeing to seek consent orders, and agreeing to joint party submissions on relief.
tied provider has the meaning given by section 12.
tied work has the meaning given by section 12.
General notes
Lawful expenditure
1 In addition to the requirements in these Directions, Commonwealth agencies 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 (that is, the efficient, effective, economical and ethical use of public resources) by the entity. Further, under section 21 of that Act, the accountable authority of a non‑corporate Commonwealth entity 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.
Who can institute proceedings in the name of the Commonwealth
2 If a non‑corporate Commonwealth entity that is not a body corporate wishes to institute proceedings in the name of the Commonwealth, the proceedings will need to be instituted by the Attorney-General or a person appointed by the Attorney‑General under section 61 of the Act. 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.
The Attorney-General can appoint the accountable authority of an entity as a person who may institute relevant proceedings under section 61 of the Act.
Who can receive service in proceedings to which the Commonwealth is a party
3 Section 63 of the Act provides that, where the Commonwealth is a party to a suit, all process in the suit required to be served upon it shall be served upon the Attorney‑General, or upon some person appointed by the Attorney-General to receive service. The Attorney‑General may, for that purpose, appoint a lawyer who provides legal services to the Commonwealth or a Commonwealth agency.
Other relevant rules and policies
4 In addition to these Directions, other rules and policies are relevant to the provision of legal services, including the following:
(a) the policy on giving indemnities and guarantees by the Commonwealth and Commonwealth agencies;
(b) 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;
(c) the Parliamentary Business Resources Regulations 2017, which deal with the provision of assistance to Ministers for legal proceedings;
(d) section 63 of the Act, which deals with service of process when the Commonwealth or a State is a party to a suit.
In 2025, information about the policy referred to in paragraphs (a) and (b) could be obtained from the Department of Finance’s website (https://www.finance.gov.au).
Co-ordinated procurement arrangements
5 The Commonwealth Procurement Rules also contain requirements that affect the procurement of legal services. In particular, certain bodies must, or may, use whole-of-government arrangements for procuring goods and services (co-ordinated procurement arrangements). At the time these Directions were made, there was a co-ordinated procurement arrangement for legal services, known as the Whole of Australian Government Legal Services Panel.
Information about that Panel could, in 2025, be viewed on the Attorney-General’s Department’s website (https://www.ag.gov.au). OLSC guidance material on the arrangement could be viewed on the same website.