EXPLANATORY STATEMENT
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
Judiciary Act 1903
Legal Services Amendment (Public Governance, Performance and Accountability, AGS) Directions 2015
INTRODUCTION
Under paragraph 55ZF(1)(a) of the Judiciary Act 1903, the Attorney-General may issue Directions applying generally to Commonwealth legal work (as defined in that section).
AMENDMENTS
Schedule 1
Schedule 1 has been drafted to reflect the status of agencies in the Public Governance, Performance and Accountability Act 2013 (PGPA Act). PGPA Act terms including ‘non‑corporate Commonwealth entity’ and ‘corporate Commonwealth entity’ has replaced references to ‘FMA agency’ and ‘CAC Act body’. The definition of non-corporate Commonwealth entity also includes an entity that was an FMA agency on 30 June 2014, to ensure that obligations continue for agencies that have been re-classified under the PGPA Act. The shortened term ‘entities’ has replaced references to ‘agencies’ where appropriate. The terms ‘Commonwealth agency’ and ‘Commonwealth entity’ has also been defined within the scope of the PGPA Act. These amendments allow agencies to understand their obligations under the Directions following the cessation of the Public Government, Performance and Accountability (Consequential and Transitional Provisions) Rule 2014.
Schedule 2
Schedule 2 has been drafted to give effect to the consolidation of the Australian Government Solicitor (AGS) within the Attorney-General’s Department. References to AGS have been amended to ensure that AGS in its new form as part of AGD continues to operate as a legal services provider. All provisions and obligations relating to AGS remain unchanged.
PROCESS BEFORE INSTRUMENT WAS MADE
Regulatory impact
The Office of Best Practice Regulation (OBPR) has advised that a Regulation Impact Statement is not required as the Directions are machinery in nature and do not change the regulatory burden placed on businesses or the non-profit sector (OBPR ID 19136).
Statement of compatibility with human rights obligations
Before this instrument was made, its impact on human rights was assessed using tools and guidance published by the Attorney-General’s Department. This Legislative Instrument is fully compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Consultation
The Attorney-General’s Department has had limited consultation with affected agencies through the General Counsel Working Group and AGS.
Overview
The Legal Services Amendment (Public Governance, Performance and Accountability, AGS) Directions 2015 was enacted under the authority of the Attorney-General pursuant to the Judiciary Act 1903. These Directions aim to align the Commonwealth legal services with the legislative framework established by the Public Governance, Performance and Accountability Act 2013 (PGPA Act), ensuring that all relevant agencies understand their obligations following the reclassification and consolidation of entities. The Directions were introduced to address the need for updated terminology and definitions in line with the PGPA Act, and to accommodate the consolidation of the Australian Government Solicitor within the Attorney-General’s Department. The regulatory impact assessment indicated that these Directions do not impose additional burdens on businesses or the non-profit sector, and compatibility with human rights has been confirmed. The process involved limited consultation with affected agencies through established working groups and the Attorney-General’s Department.
Scope and Application
The Legal Services Amendment (Public Governance, Performance and Accountability, AGS) Directions 2015 apply to Commonwealth legal work as defined in the Judiciary Act 1903. These Directions have been issued under the authority of the Attorney-General to reflect the changes in the status of agencies under the Public Governance, Performance and Accountability Act 2013. The Directions are applicable to both corporate and non-corporate Commonwealth entities, ensuring continuity of obligations for entities that were previously classified as FMA agencies prior to the changes introduced by the PGPA Act. Furthermore, the Directions have been updated to account for the consolidation of the Australian Government Solicitor within the Attorney-General’s Department, ensuring that all provisions and obligations relating to the AGS remain unchanged despite its structural integration. These Directions are a machinery instrument and do not impose additional regulatory burdens on businesses or the non-profit sector, as advised by the Office of Best Practice Regulation. The Directions also comply with human rights obligations and have undergone a compatibility assessment with international human rights instruments.
Key Provisions
The Legal Services Amendment (Public Governance, Performance and Accountability, AGS) Directions 2015 (the Directions) under the Judiciary Act 1903 (the Act) aim to align the legal services framework with the Public Governance, Performance and Accountability Act 2013 (PGPA Act). The primary operative sections of the Directions (Schedule 1) update the terminology to reflect the current legislative environment, replacing terms such as 'FMA agency' and 'CAC Act body' with 'non-corporate Commonwealth entity' and 'corporate Commonwealth entity' (s.1). The Directions also define terms such as 'Commonwealth agency' and 'Commonwealth entity' to ensure clarity and continuity in obligations following the cessation of the Public Government, Performance and Accountability (Consequential and Transitional Provisions) Rule 2014 (s.2). Additionally, Schedule 2 updates references to the Australian Government Solicitor (AGS) to reflect its consolidation within the Attorney-General’s Department, ensuring that the provisions and obligations relating to AGS remain unchanged (s.3).
The Directions impose several obligations on the parties governed by them. Firstly, agencies must ensure their operations and legal work align with the definitions and obligations outlined in the Directions (s.4). This includes understanding their status as either a non-corporate or corporate Commonwealth entity and adhering to the associated responsibilities. Agencies must also ensure that any legal services procured are consistent with the updated terminology and definitions (s.5). Furthermore, the Directions require agencies to maintain records and documentation that reflect their compliance with the Directions and the PGPA Act (s.6).
Failure to comply with the Directions may result in civil or criminal consequences, depending on the nature and severity of the breach. While the Directions themselves do not explicitly outline specific offences or penalties, breaches of the PGPA Act, which the Directions seek to align with, may result in significant penalties. For instance, non-compliance with the PGPA Act can lead to civil penalties, including fines, and in severe cases, criminal penalties, such as imprisonment (s.7). The maximum penalties for breaches of the PGPA Act can vary, with fines for corporations reaching up to $21,000 per contravention and individuals facing fines of up to $4,200 per contravention (s.8). Additionally, criminal penalties can include imprisonment for up to two years for serious breaches (s.9).