Legal Services Amendment (Solicitor-General Opinions) Direction 2016

Administered by Attorney-General's Department

Legislation au F2016L00645 Not in force Legislative Instrument

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Legal Services Amendment (Solicitor-General Opinions) Direction 2016

EXPLANATORY STATEMENT

Issued by the Attorney‑General
in compliance with section 15G of the Legislation Act 2003

 

INTRODUCTION

Under subsection 55ZF(1)(a) of the Judiciary Act 1903, the Attorney-General may issue Legal Services Directions (the Directions) applying generally to Commonwealth legal work (as defined in that section).

The power to issue the Directions was conferred having regard to the Attorney-General’s responsibility, as First Law Officer, for matters relating to the performance of Commonwealth legal work by, and on behalf of, the Commonwealth and its agencies.

OUTLINE

Section 55ZF of the Judiciary Act 1903 empowers the Attorney-General to issue the Directions, which are to apply generally to Commonwealth legal work, or that are to apply to Commonwealth legal work being performed, or to be performed, in relation to a particular matter.

Paragraph 12(b) of the Law Officers Act 1964 provides that the functions of the Solicitor‑General, in addition to acting as counsel, include furnishing opinions to the Attorney-General on questions of law referred by the Attorney-General.

The purpose of this instrument is to amend the Directions to insert new provisions about seeking opinions on questions of law by the Solicitor-General. The new provisions clarify the circumstances in which an opinion on a question of law may be sought from the Solicitor-General pursuant to paragraph 12(b) of the Law Officers Act 1964 and regularise the process by which referrals to the Solicitor-General for opinions are made.

PROCESS BEFORE THE INSTRUMENT WAS MADE

Regulatory impact analysis

 

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 20861). 

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. It is fully compatible with human rights as defined in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Consultation before making

Before this instrument was made, the Attorney‑General considered the general obligation to consult imposed by section 17 of the Legislative Instruments Act 2003.

Section 55ZF of the Judiciary Act 1903 empowers the Attorney-General to issue Directions, which are to apply generally to Commonwealth legal work, or that are to apply to Commonwealth legal work being performed, or to be performed, in relation to a particular matter. As the Direction relates to the process for referring a question of law to the Solicitor‑General, the Attorney‑General has consulted the Solicitor-General.

Statutory preconditions and Parliamentary undertakings relevant to this instrument

There are no other statutory preconditions or Parliamentary undertakings relevant to the making of this instrument.

Further detail is provided in Attachment A.
NOTES ON SECTIONS             ATTACHMENT A

Section 1 Name of legislative instrument

This section provides for the legislative instrument to be named as the Legal Services Amendment (Solicitor-General Opinions) Direction 2016. The legislative instrument may be cited by that name.

Section 2  Commencement

This section provides for the legislative instrument to commence on the day after it is registered on the Federal Register of Legislation.

Section 3 Authority

This section identifies the Act that authorises the making of the legislative instrument as the Judiciary Act 1903.

Section 4 Schedule

The schedule outlines the process that will apply to how questions of law are referred to the Solicitor‑General for an opinion.

The process will apply to people or bodies referred to in paragraph 12(a) of the Law Officers Act 1964 which is slightly broader in application than the Directions. This difference is not expected to have any practical impact on the approach to referring questions of law to the Solicitor‑General.

 

Overview

The Legal Services Amendment (Solicitor-General Opinions) Direction 2016 was introduced to refine and clarify the process of seeking legal opinions from the Solicitor-General, ensuring that such requests are handled in a consistent and formal manner. Enacted by the Attorney-General in compliance with section 15G of the Legislation Act 2003, this instrument was designed to address a gap in the procedural framework for legal advice within the Commonwealth. The objective is to align the process with the Solicitor-General's statutory role as outlined in the Law Officers Act 1964, specifically in furnishing legal opinions to the Attorney-General. This legislative direction aims to regularise the referral process, thereby enhancing the efficiency and transparency of legal services provided by Commonwealth entities.

Scope and Application

The Legal Services Amendment (Solicitor-General Opinions) Direction 2016 applies to individuals and bodies engaged in Commonwealth legal work, as defined in the Judiciary Act 1903, and is issued under the authority of the Attorney-General pursuant to section 55ZF of that Act. The Direction is designed to regulate the process of seeking legal opinions from the Solicitor-General, as outlined in paragraph 12(b) of the Law Officers Act 1964. It specifies the circumstances under which opinions on questions of law can be requested from the Solicitor-General and formalises the referral process. This instrument applies across the Commonwealth, impacting entities and persons involved in providing legal services to the Commonwealth government and its agencies. The Direction does not impose any additional regulatory burden on businesses or the non-profit sector, as confirmed by the Office of Best Practice Regulation. There are no exclusions or exemptions noted within the Direction itself, although its application may vary slightly due to the broader scope of applicability to persons or bodies as per paragraph 12(a) of the Law Officers Act 1964. The Direction is expected to have a minimal practical impact due to this slight variance in scope.

Key Provisions

The Legal Services Amendment (Solicitor-General Opinions) Direction 2016 amends the legal framework governing Commonwealth legal work, clarifying and regularising the process for seeking opinions from the Solicitor-General on questions of law (section 1). Specifically, it modifies the Legal Services Directions under section 55ZF of the Judiciary Act 1903 by adding provisions that detail when and how opinions may be requested from the Solicitor-General (section 4). This amendment ensures that the process for referring legal questions to the Solicitor-General is both clear and standardised, aligning with their statutory role as outlined in paragraph 12(b) of the Law Officers Act 1964. The obligations imposed by the Direction include ensuring that any request for a Solicitor-General's opinion on a legal matter follows the process outlined in the schedule. This means that legal practitioners or entities must adhere to the specified procedures when seeking legal advice from the Solicitor-General, ensuring consistency and transparency in the referral process (section 4). The Direction applies to persons or bodies referred to in paragraph 12(a) of the Law Officers Act 1964, which includes certain Commonwealth officials and agencies. Failure to comply with the requirements set out in the Direction could result in procedural irregularities or inefficiencies in legal services provided to the Commonwealth. While the Direction does not explicitly outline specific offences, penalties, or consequences for non-compliance, deviations from the prescribed process could lead to internal disciplinary actions or other administrative consequences within the relevant departments or agencies. The precise nature of these consequences would depend on the specific circumstances of the non-compliance and the policies of the governing bodies.

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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.