Important Rules for NSW Government Agencies
Agencies need to be aware of the following policies defined by Premier's Memoranda:
Guides to Assist NSW Government Agencies
The following guidelines have been prepared to assist agencies in the management of their legal services:
Briefing of Senior Counsel by Government Departments
Need Attorney General's approval
The Attorney General is required to approve the briefing of Senior Counsel and to set the rate of remuneration. This rule applies to ALL circumstances where Senior Counsel from the private bar are engaged on behalf of the Government.
At present approvals are delegated by the Attorney General to the Solicitor General.
Full details can be found in Premier’s Memorandum 89-4.
Purpose
The aim of this policy is to ensure that “Senior Counsel are selected on merit and engaged at the most appropriate rate of remuneration.”
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| Briefing the Australian Government Solicitor for legal services
Seek approval first
The written approval of the Director-General of the Attorney General's Department should be obtained by a NSW Government agency before an agency retains the Australian Government Solicitor for legal services. Full details can be found in Premier's Memorandum 2005-02.
Purpose
This important step is necessary to avoid situations where a conflict of interest may arise and ensures the necessary procedural requirements for engaging the Australian Government Solicitor are met. |
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Litigation involving Government Authorities
The guidelines
Premier's Memorandum 97-26 contains guidelines dealing with litigation involving Government authorities
The guidelines apply to Government departments and agencies, including Government Trading Enterprises, whether or not they represent the Crown. They do not apply to State Owned Corporations or local government bodies. However, State Owned Corporations are urged to adopt the guideline as part of their policy.
Aims of the guidelines
The aims of the guidelines are:
- In the prosecution of one Government authority by another the cost to the public purse is kept to a minimum;
- Only appropriate prosecution action is taken;
- Inappropriate or irrelevant defences are not pleaded;
- The Court’s time spent in resolving prosecutions or disputes involving Government authorities is kept to a minimum;
- That responsible Ministers are kept informed of pending prosecutions and possible disputes between Government authorities; and
- Government authorities act, so far as is possible, as model litigants in proceedings before the Court.
Government authorities to act as model litigants
Government authorities are to act as model litigants in proceedings before Court.
What constitutes model litigant behaviour is not set out in detail in the Premier’s Memorandum. However, In September 2004 the Director General of the Attorney General’s Department issued a Model Litigant Policy It only applies to the Attorney General’s Department and lawyers, in-house or private, engaged in civil litigation or ADR involving that Department.
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Alternative dispute resolution
ADR to be used as appropriate
Government policy is for agencies to use alternative dispute resolution (ADR) techniques “as far as appropriate”. Full details can be found in Premier's Memorandum 94-25.
Uses of ADR
It is helpful to note that ADR can be employed not only to attempt to resolve claims, but also, where an agency’s defence to a claim is particularly strong, to try and either resolve the claim without payment of money or to narrow and confine issues in dispute.
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Provision of ex gratia legal assistance
The guidelines
Premier's Memorandum 99-11 contains guidelines for the provision of ex gratia legal assistance for Ministers, public officials and Crown employees.
Application procedure
Where ex gratia assistance is sought by a Minister, the application should be made in writing directly to the Attorney General. However, where the Attorney General is the applicant, the application is to be made to the Premier.
Where an application is made by a Departmental Head, his or her application should be forwarded to his or her Minister. After considering the application, the Minister should refer those applications that are supported to the Attorney General.
Where assistance is sought by a public official, his or her application should be made to his or her Departmental Head. A thorough Departmental investigation into the circumstances giving rise to the proceedings must be undertaken.
After considering the application, the Departmental Head should refer those applications that are supported and the results of any Departmental investigation to the Director General, Attorney General’s Department. An application may be accepted from a delegate of the Departmental Head with the Director General’s prior approval.
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Core Legal Work
The guidelines
Premier's Memorandum 95-39 contains guidelines for the referral of core legal work to the Crown Solicitor's Office.
Purpose
There are certain key legal areas which, because of their complexity, sensitivity or the need to be handled or managed centrally on behalf of the Government, must be referred to the Crown Solicitor's Office. This is defined as core legal work of government and aspects of it are covered by a core legal fund managed by the Director-General of the Attorney General's Department.
Further information about the application of core work and the core fund can be found here.
This policy is currently under review.
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Model Litigant
The Model Litigant Policy contains guidelines for the appropriate conduct of litigation by government agencies. This policy was approved for adoption by all government agencies on 8 July 2008.
Purpose
There is an expectation that government lawyers behave as model litigants. The policy outlines expected models of behaviour and processes for lawyers working for government agencies. This applies to in-house lawyers and any external legal service providers engaged by an agency.
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Equitable Briefing
The guidelines
The Equitable Briefing Policy contains guidelines for the appropriate engagement of women barristers, where appropriate by government agencies. This policy was approved for adoption by all government agencies on 8 July 2008.
Purpose
The NSW Government recognises the need for equity in briefing practices. Government agencies are required to consider female barristers and ensure an equitable distribution of work to both male and female barristers.
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Review of Government Legal Services
Guidelines for the review of government legal services have been preapred to assist government agencies in reviewing legal practices.
Consultancy
Legal Management Service also provides a consultancy service for government agencies seeking to review their legal practices.
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Outsourcing of Government Legal Services
Guidelines for outsourcing government legal services have been prepared to assist government agencies in ensuring best practice methods of outsourcing their legal services.
Consultancy
Legal Management Service also provides a consultancy service for government agencies seeking to review their legal practices.
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