Legal Services Amendment Directions 2008 (No. 3)

Administered by Attorney-General's Department

Legislation au F2008L04253 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

 

Judiciary Act 1903

 

Legal Services Amendment Directions 2008 (No.3)

Legislative background

Under section 55ZF of the Judiciary Act 1903, the Attorney-General may issue legal services directions applying generally to Commonwealth legal work (as defined in that section) or in relation to Commonwealth legal work performed in relation to a particular matter.  The power to issue legal services directions was conferred having regard to the Attorney-General’s responsibility, as first law officer, for legal services provided to the Commonwealth and its agencies, including Commonwealth litigation, and for the provision of legal advice to Cabinet.

Legal Services Directions were initially issued under this provision in 1999.  They are administered by the Attorney-General with the assistance of the Office of Legal Services Coordination (OLSC) in the Attorney-General’s Department.  OLSC provides assistance and advice to agencies about the operation of the Directions.  OLSC also publishes relevant information about the Directions (such as Guidance Notes on their interpretation and emerging issues) on its website:  http://www.ag.gov.au/olsc .

Policy background to the Legal Services Directions

The Directions set out requirements for sound practice in the provision of legal services to the Commonwealth.  The Directions are an important mechanism to manage, in a whole-of-government manner, legal, financial and reputation risks to the Commonwealth’s interests.  They give agencies the freedom to manage their particular risks, which agencies are in the best position to judge, while providing a supportive framework of good practice.

For example, the rules about the conduct of tied work ensure that the Commonwealth minimises the risk that portfolio-specific approaches to questions of constitutional law or public international law  (for instance) will impair the Commonwealth advancing and maintaining a consistent and clear position on such matters.

Another example of how the Directions provide support for good practice can be found in paragraph 10 which sets out requirements for consultation with an agency in relation to a request for advice concerning the interpretation of legislation administered by that agency.  Such requirements minimise both the chance for unnecessary and inefficient duplication of work and the chance of inconsistent positions being taken by agencies on the same legislative provisions.

The Directions are a legislative instrument and have the force of law.  Sanctions can be imposed for non-compliance.  These sanctions may include the issue of a specific Direction by the Attorney-General, in relation to the conduct of a particular matter or the use of a particular legal services provider.  They may also include adverse comment on an agency or a legal services provider being made to the Attorney-General or the relevant Minister.


Contacting OLSC

Questions about the Directions can be directed to OLSC at:

Telephone: (02) 6250 6611 

Facsimile:  (02) 6250 5968

Mail: Assistant Secretary

 Office of Legal Services Coordination

 Attorney-General’s Department

 Robert Garran Offices

 National Circuit

 BARTON  ACT 2600

 

Email: olsc@ag.gov.au

 

Website: http://www.ag.gov.au/olsc

 

SECTIONS

Section 1

Section 1 of the instrument sets out the name of the instrument.

Section 2

Section 2 specifies that the instrument commences on the day after it is registered on the Federal Register of Legislative Instruments.

Section 3

Section 3 provides that Schedule 1 amends the Legal Services Directions 2005.

 

SCHEDULE 1: Amendment

Paragraph 10A  Advice on constitutional law matters
 

The Attorney-General and the AttorneyGeneral’s Department are responsible for constitutional law under the Administrative Arrangements Order.  New paragraph 10A is intended to ensure that the AttorneyGeneral’s Department is aware of requests for advice, and advice, about constitutional law issues.  This will enable the Department to coordinate requests for advice across agencies where appropriate, avoid unnecessary duplication and ensure the Department and the AttorneyGeneral have up-to-date information about advice on constitutional law issues.  It will also ensure that the SolicitorGeneral is appropriately involved.

 

New paragraph 10A.1 of the Directions provides that an agency which is subject to the Financial Management and Accountability Act 1997 (FMA agency) that seeks legal advice from the Australian Government Solicitor (AGS) on a constitutional law issue must give a copy of the request for advice to the Secretary of the AttorneyGeneral’s Department at the same time as the request is made to AGS.  Subparagraph 10A.1(b) provides that in the case of oral requests for advice, the FMA agency must, as soon as practicable, confirm the request in writing and give a copy of the request to the Secretary of the AttorneyGeneral’s Department.

 

New paragraph 10A.2 provides that the AttorneyGeneral’s Department or AGS may consult with the SolicitorGeneral about whether the advice should be given by the SolicitorGeneral or AGS.  Generally, only very complex or otherwise significant requests for advice would be dealt with by the SolicitorGeneral.

 

New paragraph 10A.3 provides that AGS must give a copy of any final advice to the AttorneyGeneral’s Department and to the Solicitor-General.

Overview

The Legal Services Amendment Directions 2008 (No. 3), issued under the authority of the Judiciary Act 1903, were enacted to address the need for effective management of legal, financial, and reputational risks to the Commonwealth's interests in the provision of legal services. The Directions, administered by the Attorney-General with the support of the Office of Legal Services Coordination (OLSC) within the Attorney-General’s Department, establish standards for sound practice in delivering legal services to the Commonwealth. They provide agencies with the flexibility to manage specific risks while ensuring a consistent and coordinated approach to legal matters. These amendments introduced in 2008 specifically aimed to enhance the coordination and oversight of constitutional law advice, ensuring that the Attorney-General's Department and the Solicitor-General are informed and involved in significant legal matters, thereby preventing duplication and promoting consistency across agencies.

Scope and Application

The Legal Services Amendment Directions 2008 (No.3) applies generally to all Commonwealth legal work as defined under the Judiciary Act 1903, with a particular focus on the provision of legal services to the Commonwealth and its agencies. These Directions are aimed at managing legal, financial, and reputational risks across the Commonwealth by promoting sound practice in the provision of legal services. They establish a framework that supports agencies in managing their particular risks while ensuring a consistent approach to matters such as constitutional law and public international law. The Directions also include specific provisions for the conduct of tied work and consultation requirements to avoid duplication and inconsistency in legal advice. This legislative instrument is administered by the Office of Legal Services Coordination (OLSC) within the Attorney-General’s Department, which provides guidance and support to agencies regarding the implementation of the Directions. Non-compliance with these Directions may result in sanctions, including specific directions or adverse comments to the Attorney-General or relevant Minister.

Key Provisions

The Legal Services Amendment Directions 2008 (No.3) introduces several key provisions under the Judiciary Act 1903, primarily focusing on the provision of legal services to the Commonwealth. Section 3 of the instrument specifies that Schedule 1 amends the Legal Services Directions 2005, introducing new paragraphs and subparagraphs to enhance the management of legal services. The most notable amendment is paragraph 10A, which addresses the provision of advice on constitutional law matters. According to new paragraph 10A.1, any Financial Management and Accountability Act 1997 (FMA) agency seeking legal advice on constitutional law issues from the Australian Government Solicitor (AGS) must simultaneously send a copy of the request to the Secretary of the Attorney-General's Department. In cases of oral requests, written confirmation must be provided as soon as practicable (10A.1(b)). This ensures that the Attorney-General's Department is kept informed, enabling better coordination and avoiding unnecessary duplication of advice. Additionally, paragraph 10A.2 allows for consultation between the Attorney-General's Department and AGS regarding whether the Solicitor-General or AGS should provide the advice, typically reserving the Solicitor-General for more complex or significant matters. Finally, paragraph 10A.3 mandates that AGS must furnish copies of any final advice to both the Attorney-General's Department and the Solicitor-General. The obligations imposed by the amended Directions require FMA agencies to ensure that requests for legal advice on constitutional law matters are communicated to the Secretary of the Attorney-General's Department, either simultaneously with the request to AGS or in writing if the request is oral. This obligation ensures that the Attorney-General's Department can coordinate and manage requests effectively, avoiding unnecessary duplication of efforts and ensuring consistency in the Commonwealth's legal positions. Furthermore, the requirement for AGS to share copies of final advice with both the Attorney-General's Department and the Solicitor-General ensures that all relevant parties have access to the advice provided, facilitating better oversight and coordination. Breach of the requirements set out in the amended Directions may result in sanctions. While the Directions themselves do not explicitly state the penalties for non-compliance, breaches of legal services directions can generally lead to a range of consequences, including the issuance of a specific Direction by the Attorney-General concerning the conduct of a particular matter or the use of a particular legal services provider. Additionally, adverse comments may be made to the Attorney-General or the relevant Minister regarding the non-compliant agency or legal services provider. These measures serve as deterrents to ensure adherence to the Directions and the effective management of legal services to the Commonwealth.

Legal classification tags

Area of Law
Administrative Law
Instrument
Directions
Concepts
Definitions & Interpretation
Consultation Requirements
Reporting & Disclosure Obligations

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.