DIRECTIONS FOR THE PROVISION OF LEGAL SERVICES TO GOVERNMENT DEPARTMENTS AND AGENCIES

COMMONWEALTH ATTORNEY-GENERAL

1 JULY 1995

APPLICATION OF THESE DIRECTIONS

1. These Directions indicate the areas in which Commonwealth departments and agencies are free to obtain legal services, other than prosecution services performed by the Director of Public Prosecutions, from sources other than the Attorney-General’s Department or their own in-house legal staff. The Directions have been considered and endorsed by Cabinet and are binding on those Departments and agencies to whom they are directed.

2. These Directions distinguish between the position of those agencies that have a close connection to the central functions of Government and those that have a less central role. A distinction has been drawn between those agencies that operate on the Commonwealth Public Account and are staffed, or supported, by staff appointed or employed under the Public Service Act 1922 and those agencies that are resourced under other arrangements indicating a lower level of connection to the Government. The latter may exercise a choice between use of Government legal services and private sector legal services.

ROLE OF THE ATTORNEY-GENERAL

3. The Attorney-General is the First Law Officer and is the legal adviser to Cabinet.

4. The Judiciary Act 1903 confers responsibilities on the Attorney-General or persons appointed by him to bring suits on behalf of the Commonwealth and, under the Act, service of legal process is to be made on the Attorney-General or one of the Attorney-General’s appointees.

5. By convention the Attorney-General has the right, subject to any applicable statutory provisions to the contrary, to have access to any legal advice which may be obtained by any Commonwealth Minister, Department or agency. As part of the exercise of the Attorney-General’s responsibilities, the Attorney-General may issue or approve guidelines for the provision of legal services to Commonwealth Ministers, Departments and agencies by in house lawyers and by external legal advisers.

6. All Commonwealth legal services are to be provided within a broad general framework which is consistent with the role of the Attorney-General.

GENERAL DIRECTIONS

7. General Directions for the provision of legal services to Government Departments and agencies are as follows:

(a) All arrangements for the provision of legal services to Commonwealth Departments and agencies must recognise the central role of the Attorney-General.

(b) The Attorney-General is the First Law Officer and is the legal adviser to Cabinet and has the right, if necessary, to unfettered access to any legal advice that may be obtained by a Commonwealth Department.

(c) Arrangements for the provision of legal services to the Commonwealth are to ensure delivery of efficient and effective legal services.

(d) Departments and agencies are to comply with these Directions and guidelines issued by the Attorney-General and are responsible for ensuring compliance by their external legal service providers.

ROLE OF THE ATTORNEY-GENERAL'S LEGAL PRACTICE

8. Legal services will be provided by the Attorney-General’s Legal Practice in three categories:

(a) Charge/Choice - chargeable legal work that can be performed by any lawyer, subject to compliance with guidelines issued by the Attorney-General;

(b) No Charge/No Choice - the Budget funded work of the Attorney-General’s Department; and

(c) Charge/No External Choice - chargeable legal work that the Government has decided should be performed only by its own employees.

9. Where the Attorney-General’s Legal Practice is unable to provide services required by a Minister, Department or agency of the kind described above in a no choice area the Attorney-General may agree the basis on which alternative legal services are provided.

USER-CHARGING AND USER-CHOICE

No Charge/No Choice

10. There are some services provided by the Attorney-General’s Legal Practice which are not subject to the user pays system and in relation to which there is no choice of service provider. These services are the subject of normal Budget funding to the Attorney-General’s Legal Practice:

(a) legal advice to Cabinet, or to Ministers or Departments on existing or proposed Cabinet Submissions or Cabinet Memoranda and on legislative proposals or draft legislation;

(b) policy advice on matters within the Attorney-General’s portfolio;

(c) participation by officers of the Attorney-General’s Legal Practice in Government policy, program or administrative development for the purpose of providing policy advice from the Attorney-General’s portfolio perspective;

(d) public international law and treaties services (subject to standing arrangements with the Department of Foreign Affairs and Trade on responsibilities for delivery of such services);

(e) drafting of subordinate legislation, Proclamations, and other types of legislative instruments; and

(f) prosecution services conducted by agreement on behalf of the Director of Public Prosecutions.

Charge/Choice

11. This type of legal work is done by the Attorney-General’s Legal Practice but departments and agencies will be able to choose to have such work done by an in-house or private sector lawyer:

(a) general legal advice eg administrative law, most interpretation of legislation or determinations, advice on the powers of officers, advice on secrecy provisions, settling of minor claims, advice in specialised areas such as social welfare law and questions of statutory interpretation relating to the expenditure or receipt of public money;

(b) all matters involving legal agreements or contracts other than those referred to in the section below on Charge/No External Choice;¹ and

(c) all work in tribunals (eg in the Administrative Appeals Tribunal or more specialised Tribunals; matters before other bodies, such as Parliamentary Inquiries and the Human Rights and Equal Opportunity Commission or the Privacy Commissioner).²

Charge/No External Choice

12. Subject to statutory exceptions and special arrangements agreed to by the Attorney-General, the Attorney-General’s Legal Practice is the sole external provider of legal services to Commonwealth Departments and agencies in the following areas:

(a) Constitutional advice

Advice on the provisions of the Constitution arising otherwise than for the purposes of a No Charge/No Choice matter or in litigation;

(b) Litigation

Litigation in courts by or against the Commonwealth, Commonwealth Ministers, other Commonwealth officers or employees and agencies which operate on the Commonwealth Public Account and which are staffed, or supported, by staff appointed or employed under the Public Service Act 1922, including:



(i) appeals;

(ii) matters in which the Commonwealth might be vicariously liable;

(iii) matters which, if not settled, could result in damages claims in courts;³

(iv) damages claims that may be settled by alternative dispute resolution techniques; and

(v) claims for the non production of evidence or material to courts or tribunals on the grounds of public interest immunity.

(c) Legal Agreements

Matters involving legal agreements which are to be approved by Cabinet.

Maintenance of the Commonwealth’s legal position on the Government Information Technology Conditions (GITC), in conjunction with other responsible Departments.⁴

(d) Matters on which legal services are to be provided to Ministers or Departments in relation to any area of dispute between Commonwealth Departments or agencies;

(e) Questions of statutory interpretation of legislation affecting more than one Commonwealth Department or agency;

(f) Matters having national security implications; and

(g) Government to Government work, both domestic and international.

POLICY STATEMENT

13. There are some special responsibilities that the Attorney-General has in relation to the provision of Government legal services. These include the matters described below:

(a) Litigation - the Judiciary Act 1903 confers responsibilities on the Attorney-General or persons appointed by him to bring suits on behalf of the Commonwealth; under the Act service of legal process against the Commonwealth is to be made on the Attorney-General or one of his appointees.

(i) The effective conduct of these Ministerial responsibilities requires that the appointees of the Attorney-General be persons who are responsible to him and not to some other Minister.

(ii) By reason of these responsibilities and his other responsibilities in relation to constitutional matters, the Attorney-General is able effectively to coordinate Commonwealth litigation and to maintain Commonwealth standards. For example -

• as to being a model litigant;
• ensuring the Commonwealth maintains a consistent approach in its arguments or submissions in courts; and
• ensuring that independent and objective legal advice taking account of all special Commonwealth interests is available to Departments.
(iii) The Finance Directions provide -
• for certain responsibilities of the Secretary of the Attorney-General’s Department (and persons appointed by him) in relation to claims against the Commonwealth; and
• coordination of claims work by the Attorney-General’s Department ensures that, where legal liability of the Commonwealth is in issue, the Commonwealth is adequately protected and, if liability should be conceded, that is done at reasonable cost to the Commonwealth but consistently with fairness being afforded to the citizen.
(iv) However, there are many small claims which, in accordance with Finance Direction 21/3 can be settled by Departments themselves, on the basis that a Secretary is satisfied that the Commonwealth is liable.

(b) Government Contracts - Consistently with the role of the Attorney-General as the legal adviser to Cabinet, any agreement the subject of which is to be considered by Cabinet is to be the subject of advice from the Attorney-General through the Attorney-General’s Department.

(c) Legislation - The Cabinet Handbook confers responsibilities on the Attorney-General’s Department in relation to certain advice on new legislative proposals. Through such means the Department is able to assist Departments and Cabinet by advising on whether legislation is necessary, and is able to maintain consistency in areas such as rights to review Government decisions and the levels of penalties for offences.

14. Apart from those special responsibilities, there are numerous areas in which the Attorney-General’s Legal Practice acts as consultant to or provides support for in-house lawyers in Departments. In disputes between Departments or agencies on legal issues, the Attorney-General’s Legal Practice also assists in providing advice and, in such circumstances, can operate as an independent means of resolution of such disputes.

FOOTNOTES

1. The exceptions relate to agreements that have a special significance for the Government.

2 . Subject to the provisions of the Finance Directions in relation to settlement of claims.

3 . Finance Directions 21/3-21/6 deal with the procedures for the settlement of claims.

4 . The Attorney-General’s Legal Practice has a primary responsibility for the legal aspects of the GITC and should be consulted on all questions affecting those conditions.