EXPLANATORY STATEMENT
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
Judiciary Act 1903
Legal Services Amendment (Removal of External Legal Service Provider Reporting Requirements) Directions 2016
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 implements a recommendation from the Independent Review of Whole-of-Government Internal Regulation Report to Secretaries Committee on Transformation (August 2015).
The recommendation is to repeal the mandatory requirement under the Legal Services Directions 2005 (the Directions) to submit evaluations of Commonwealth legal work undertaken by external legal services providers.
This amendment would remove the obligations under paragraphs 6 and 7 of Appendix F to the Schedule of the Directions that relate to government agencies reporting to the Office of Legal Services Coordination concerning the rating for external legal services to the Commonwealth. Agencies feedback about legal services provider’s performance and value will still be sought, and made available, to continue to support agencies to be informed purchasers in decisions about the procurement of Commonwealth legal services.
The repealing of paragraphs 6 and 7 of Appendix F will not disturb the operation of
paragraph 8 of Appendix F which may be relied upon to obtain performance information from Commonwealth entities, including as to the performance of external legal services providers on the Legal Services Multi-Use List.
Regulatory impact
The Office of Best Practice Regulation 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 20029).
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 consulted with agencies through the General Counsel Working Group.
Overview
The Legal Services Amendment (Removal of External Legal Service Provider Reporting Requirements) Directions 2016, issued under the authority of the Attorney-General, amends the Legal Services Directions 2005, which are applied generally to Commonwealth legal work as defined in the Judiciary Act 1903. The Directions were introduced to address the need for streamlined regulatory requirements concerning external legal services providers. These amendments implement a recommendation from the Independent Review of Whole-of-Government Internal Regulation Report to Secretaries Committee on Transformation, aiming to remove the mandatory requirement for government agencies to submit evaluations of the performance of external legal services providers. This change is intended to reduce bureaucratic burdens while ensuring that agencies can still obtain necessary feedback to make informed procurement decisions.
The repealing of specific reporting obligations under the Directions does not affect other provisions that allow for the collection of performance information from Commonwealth entities. The Office of Best Practice Regulation has confirmed that a Regulation Impact Statement is unnecessary for these Directions, as they do not alter the regulatory burden on businesses or the non-profit sector. Additionally, the instrument has been assessed to be fully compatible with human rights and freedoms as recognised in international instruments. Consultation with relevant agencies was conducted through the General Counsel Working Group.
Scope and Application
The Legal Services Amendment (Removal of External Legal Service Provider Reporting Requirements) Directions 2016 applies to all government agencies engaged in Commonwealth legal work, as defined in the Judiciary Act 1903. The Directions seek to amend the Legal Services Directions 2005 by removing the mandatory requirement for agencies to submit evaluations of Commonwealth legal work undertaken by external legal services providers. Despite this amendment, agencies will still be encouraged to provide feedback on the performance and value of legal services to support informed procurement decisions. The changes do not affect the operation of other provisions, such as paragraph 8 of Appendix F, which may be used to obtain performance information from Commonwealth entities, including external legal services providers on the Legal Services Multi-Use List. This legislative instrument has a Commonwealth reach, applying to all government agencies involved in legal services procurement. The Directions do not impose any new regulatory burdens on businesses or the non-profit sector, and have been assessed as fully compatible with human rights obligations.
Key Provisions
The Legal Services Amendment (Removal of External Legal Service Provider Reporting Requirements) Directions 2016 amends the Legal Services Directions 2005 by removing certain reporting requirements concerning Commonwealth legal work. Specifically, under the new Directions, government agencies are no longer required to submit evaluations of legal services provided by external legal services providers to the Office of Legal Services Coordination (section 1). This change is intended to streamline the reporting process while still allowing agencies to obtain feedback about the performance and value of legal services to inform their procurement decisions.
Under these Directions, the obligations of government agencies are significantly altered regarding their reporting duties. While agencies must still seek and make available feedback about the performance and value of legal services, they are no longer mandated to submit formal evaluations of external legal services providers (section 1). This feedback, however, will continue to support informed decision-making in the procurement of legal services. Importantly, the Directions do not affect the ability of agencies to obtain performance information from Commonwealth entities, including those on the Legal Services Multi-Use List (section 1).
There are no specific offences, penalties, or civil or criminal consequences outlined in the Directions for non-compliance with the repealed reporting requirements. The repealed sections, paragraphs 6 and 7 of Appendix F, pertain to the mandatory submission of evaluations, and their removal does not introduce new obligations or penalties for failure to comply. However, the continued operation of paragraph 8 of Appendix F suggests that agencies may still be expected to rely on performance information to make informed decisions. Non-compliance with other provisions of the Directions could potentially lead to administrative consequences, though these are not explicitly detailed within the text of the Directions.
The Directions are considered machinery in nature, and therefore, a Regulation Impact Statement was deemed unnecessary by the Office of Best Practice Regulation (section 1). Additionally, the impact on human rights has been assessed and deemed fully compatible with international human rights obligations (section 1). Consultation with agencies was conducted through the General Counsel Working Group to ensure that the changes are practical and effective (section 1).