LEGAL SERVICES DIRECTIONS 2025

EXPLANATORY STATEMENT

Issued by the Attorney-General

under section 55ZF of the Judiciary Act 1903

Authority

Section 55ZF of the Judiciary Act 1903 (Judiciary Act) enables the Attorney‑General to issue directions (Legal Services Directions):

1.       that are to apply generally to Commonwealth legal work, or
2.       that are to apply to Commonwealth legal work being performed, or to be performed in any manner the Attorney-General considers appropriate.

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Purpose and operation

Legal Services Directions were initially issued in 1999 and are administered by the Attorney‑General through the Office of Legal Services Coordination (OLSC) in the Attorney-General’s Department. OLSC provides policy advice to agencies about the operation of the Legal Services Directions. In December 2025, OLSC also published relevant guidance material about the Legal Services Directions on the Attorney-General’s Department’s website: https://www.ag.gov.au/legal-system/office-legal-services-coordination.

The power to issue Legal Services 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, including Commonwealth litigation and the provision of legal advice to Cabinet.

The Legal Services Directions set out the requirements for sound practice in the performance of Commonwealth legal work. They are also an important mechanism to manage, in a whole‑of‑government manner, legal, financial and reputational risks to the Commonwealth’s interests. They give agencies the discretion to manage their own risks, which agencies are in the best position to judge, while providing a framework of good practice.

For example, the rules about the conduct of tied work recognise that certain kinds of legal work have certain sensitivities and risks or are otherwise so bound to the work of the Executive that it is appropriate that they be conducted by centralised legal services providers.

The Legal Services Directions aim to ensure that the Commonwealth receives coordinated and consistent advice on issues central to government; maintains the highest standards in litigation; and appropriately procures and manages its legal services. They also support the Attorney‑General as the First Law Officer of the Commonwealth by imposing reporting obligations on Commonwealth agencies regarding the management of significant legal issues, and the expenditure of public monies on legal services for Commonwealth legal work. The Legal Services Directions require agencies to take appropriate responsibility for managing legal risk, while providing for the Attorney‑General to influence or become involved in certain categories of Commonwealth legal work or in certain matters as necessary and appropriate.

The Legal Services Directions 2017 (2017 Directions) commenced on 1 April 2017 and were last amended on 1 July 2018. The Legal Services Directions 2025 (2025 Directions) will repeal and replace the 2017 Directions.

Review of the 2017 Directions

The Royal Commission into the Robodebt Scheme (Robodebt Royal Commission) recommended that the 2017 Directions be reviewed and simplified (recommendation 19.7). The Government accepted this recommendation and committed to review of the 2017 Directions. This was with a view to ensuring the Legal Services Directions are fit‑for-purpose in supporting agencies to undertake Commonwealth legal work and manage legal risk in an effective, consistent and whole-of-Commonwealth manner.

The following provisions of the 2017 Directions were identified as priorities for review:

• tied work (Paragraph 2 and Appendix A)
• reporting and settling significant issues (paragraph 3)
• handling monetary claims (paragraph 4.4 and Appendix C)
• jurisdiction of State and Territory tribunals (paragraph 4.6A)
• engagement of counsel (paragraph 6 and Appendix D)
• assistance to Commonwealth employees in legal proceedings (paragraph 9 and Appendix E)
• procurement of legal services (paragraph 9A and Appendix F)
• sharing of advice within Government (paragraph 10), and
• extended application of the Directions to other bodies or persons (paragraph 12).

The following ancillary matters were also identified as benefiting from review:

• clarifying which corporate Commonwealth entities are treated as non-corporate Commonwealth entities for the purposes of the Legal Services Directions, and
• the application of the Legal Services Directions to criminal law prosecutions and related proceedings (contained at the end of Part 4—Dictionary under General Note 4).

Independent review of discretionary decisions and compliance with the Legal Services Directions

Under section 55ZF of the Judiciary Act, the Legal Services Directions apply to Commonwealth legal work (as defined in subsection 55ZF(3)) and bind any person or body undertaking that work. Decisions made under the Legal Services Directions generally affect Commonwealth entities, or persons or bodies, conducting Commonwealth legal work on their behalf and are not decisions that impact directly on the rights of private individuals. Accordingly, any decisions made by the Attorney‑General under the Legal Services Directions (for example, granting exemptions, approvals or modifications) are not merits reviewable decisions.

Section 55ZG of the Judiciary Act provides the legislative basis for enforcing compliance with the Legal Services Directions and subsection 55ZG(2) states that compliance with a direction is not enforceable, except by, or on application of, the Attorney-General. Further, the issue of non‑compliance with the Legal Services Directions cannot be raised in any proceedings (whether they are proceedings before courts, tribunals, inquiries, in arbitration or other alternative dispute resolution processes) except by, or on behalf of, the Commonwealth (subsection 55ZG(3) of the Judiciary Act). It is not intended that litigants opposed to the Commonwealth should be able to rely on the Legal Services Directions to challenge Commonwealth actions. The Attorney-General’s powers to address any instances of non-compliance are outlined in Part 10, Division 2 of the Legal Services Directions.

Consultation

The Attorney-General’s Department consulted all Commonwealth entities and a small number of peak representative bodies external to the Commonwealth, including the Law Council of Australia, on those provisions in the 2017 Directions agreed as priorities for review.

Commencement

The Legal Services Directions 2025 is a disallowable legislative instrument for the purposes of the Legislation Act 2003 and commences on 2 March 2026.

Details of the Legal Services Directions 2025 are set out in Attachment A.

The Legal Services Directions 2025 is compatible with human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment B.

Attachment A

Details of the Legal Services Directions 2025

PART 1—Preliminary

Division 1—General

Section 1 – Name

Section 1 provides that the name of the instrument is the Legal Services Directions 2025 (2025 Directions).

Section 2 – Commencement

Section 2 provides that the instrument commences on 2 March 2026.

Section 3 – Authority

Section 3 provides that the legislative authority of the instrument is section 55ZF of the Judiciary Act 1903 (Judiciary Act).

Section 4 – Dictionary  

Section 4 provides a dictionary of definitions that are used in the 2025 Directions. Many of these terms draw upon definitions used in the Legal Services Directions 2017 (2017 Directions) and includes several new terms—claim, counsel, entity, external legal services provider, non-corporate Commonwealth entity and settlement. The Note at the start of the dictionary explains that some expressions are as defined in the Judiciary Act. This ensures consistency in understanding and application.

accountable authority has the meaning given by subsection 12(2) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

Act means the Judiciary Act.

administering entity has the meaning given under section 23. It means the Department of State who has responsibility for the legislation under the current Administrative Arrangements Order (AAO). This term is used in Part 3—Sharing advice within Government.

AGS (the Australian Government Solicitor) has the meaning given by section 2 of the Judiciary Act.

claim means the assertion of a legal right or entitlement by or against the Commonwealth or entity. This definition is intended to clarify the scope of what is considered a claim, capturing litigated, non‑litigated and foreshadowed claims, encompassing all civil law matters, (including administrative law matters, matters arising under general law or statute, and civil prosecutions), and is not limited to monetary claims.

Commonwealth agency means a non-corporate Commonwealth entity (as defined in these Directions), a corporate Commonwealth entity (as defined in these Directions) or a Commonwealth company as per subsection 89(1) of the PGPA Act. This term clarifies the application or provisions across the 2025 Directions.

Commonwealth company has the meaning given by subsection 89(1) of the PGPA Act. This term clarifies the application or provisions across the 2025 Directions.

Commonwealth entity has the meaning given by section 10 of the PGPA Act. This term clarifies the application or provisions across the 2025 Directions.

Commonwealth Procurement Rules means the Commonwealth Procurement Rules (CPRs) in force under subsection 105B(1) of the PGPA Act (in December 2025).

Corporate Commonwealth entity (CCE) has the meaning given by paragraph 11(a) of the PGPA Act but does not include a person or body that is taken to be a non-corporate Commonwealth entity (NCCE) for the purposes of the finance law. This term clarifies the application or provisions across the 2025 Directions.

counsel includes a legal practitioner who is engaged as counsel to provide legal service. It does not include a legal practitioner who is engaged in any other capacity to provide legal services. This definition (also included in Note 2 to section 70), is intended to clarify when a legal practitioner is working in the capacity of counsel and therefore, when their engagement is subject to the obligations about the engagement of counsel. This definition also includes a Note that acknowledges that in some jurisdictions a person may be admitted as both a barrister and solicitor, with a further note to clarify that the term counsel captures a person who, although not from the bar, is engaged in the capacity of counsel to conduct or advise on litigation or provide advice.

engaging entity means a Commonwealth entity not including a Government Business Enterprise (GBE) who engages counsel. This term is used in Part 7—Engagement of counsel.

entity means:

1.       a non-corporate Commonwealth entity;
2.       the Australian Human Rights Commission;
3.       the Australian Pesticides and Veterinary Medicines Authority;
4.       the Independent Health and Aged Care Pricing Authority;
5.       the Murray-Darling Basin Authority; and
6.        the National Offshore Petroleum Safety and Environmental Management Authority.  

This definition clarifies that prescribed former Financial Management and Accountability Act 1997 agencies, despite being CCEs pursuant to the PGPA Act, have the same obligations as NCCEs under the 2025 Directions. It also captures the bodies falling within the definition of NCCE.

external legal services provider clarifies that an external legal services provider does not include counsel or government legal services providers, such as AGS, the Office of International Law (OIL) and the Office of Parliamentary Counsel (OPC), that provide legal services to other Commonwealth entities.

finance law has the meaning given by section 8 of the PGPA Act. This term is used in the dictionary and clarifies the application of provisions across the 2025 Directions. This term is also used in the Note to the dictionary to remind entities of their obligations under finance law when arranging the provision of legal services.

GBE means a government business enterprise within the meaning of the PGPA Act. This term clarifies the application or provisions across the 2025 Directions. GBEs are captured under subsection 15(2) and sections 53, 114 and 115.

government legal services provider means AGS, or an entity or part thereof that provides legal services to other entities. It clarifies that this term does not capture the in-house legal team of an entity providing advice to that entity. This term is used in Part 3—Sharing advice within Government and Part 8—Procurement of external legal services providers to clarify the scope of obligations within those parts. It is also used in Part 6—Settling monetary claims to clarify from whom legal advice may be obtained to confirm that the settlement is in accordance with legal principle and practice.

legal services expenditure means an entity’s internal and external legal services expenditure, which includes expenditure on counsel and expenditure on legal services obtained from a government legal services provider such as AGS or OPC. This term is used in Part 10—Entity responsibility and compliance.

litigation means that unless otherwise indicated, this term includes proceedings before courts, tribunals, inquiries, in arbitration and other alternative dispute resolution processes, and the preparation for such proceedings.

model litigant obligation has the meaning given under section 40 which explains the nature and scope of the Commonwealth’s obligation to act as a model litigant, which has received long-standing recognition in Australian common law.

non‑corporate Commonwealth entity has the meaning of NCCE in paragraph 11(b) of the PGPA Act and extends to persons or bodies that are taken to be NCCEs for the purpose of the finance law, such as bodies including the Australian Competition and Consumer Commission. This term clarifies the application of provisions across the 2025 Directions.

OLSC means the Office of Legal Services Coordination (OLSC) in the Attorney‑General’s Department (the department), or any person within the department on whom the Secretary confers the functions of administering the Legal Services Directions.

pro bono legal work has the same meaning as “pro bono legal services” in the Australian Pro Bono Manual: A practice guide and resource kit for law firms developed by the Australian Pro Bono Centre. In December 2025, the guide was available on the Australian Pro Bono Centre’s website (https://www.probonocentre.org.au). This term is used in Part 8—Procurement of external legal services providers (section 83).

requesting entity has the meaning given under section 23 and means an entity that is proposing to obtain legal advice on the interpretation of legislation administered by another entity. This term is used in Part 3—Sharing advice within Government.

routine, in relation to a matter, has the meaning given under subsection 26(1) and refers to a matter where it is considered that advice on the matter is likely to involve no more than the application of a settled interpretation of the law to particular facts. Subsection 26(3) clarifies the application of the provision by giving examples of circumstances where a matter is not routine. This term is used in Part 3—Sharing advice within Government.

settlement – this definition clarifies that the settlement obligation in section 36 also captures the settling of litigation. The Note clarifies that settlement includes settlements that are facilitated by a mediator, or, though consensual, will be the subject of further consideration or orders by a court, tribunal or other person or body, and provides a non-exhaustive list of examples of what may constitute a settlement, including a class action settlement, consent orders for the resolution of the matter or joint party submissions on relief to be ordered.

tied provider has the meaning given by section 12 and specifies the limited group of legal services providers permitted to carry out categories of Commonwealth legal work (known as tied work). This term is used in Part 2—Tied areas of Commonwealth legal work.

tied work has the meaning given by section 12 and defines the categories of Commonwealth legal work that are ‘tied’ to specific legal service providers, being:

1.       Cabinet work;
2.       constitutional law work;
3.       national security legal work;
4.       public international law work; and
5.       tied drafting work.

This term is used in Part 2—Tied areas of Commonwealth legal work.

General notes

This part of the legislative instrument includes general notes that provide examples, interpretative assistance and further information on issues concerning or closely relating to the 2025 Directions. General notes 1-4 reflect content from the General notes (1, 2, 2A and 3) after Part 4 of the 2017 Directions but have been updated to remove outdated references. Assistance and information captured by these notes are:

1.        Lawful expenditure – draws entities’ attention to obligations under finance law when arranging for the provision of legal services, for example, the obligation under section 15 of the PGPA Act on the accountable authority of a non-corporate Commonwealth entity to promote the proper use of public resources.
2.        Who can institute proceedings in the name of the Commonwealth – draws entities’ attention to section 61 of the Judiciary Act which concerns the institution of proceedings on behalf of the Commonwealth.
3.        Who can receive service in proceedings to which the Commonwealth is a party – clarifies that lawyers providing legal services to the Commonwealth or its entities who are appointed by the Attorney-General under section 63 of the Judiciary Act are the only persons able to receive service on behalf of the Commonwealth.
4.        Other relevant rules and policies – draws entities’ attention to other rules and policies that may be relevant to the provision of legal services.
5.        Co-ordinated procurement arrangements – draws agencies’ attention to requirements under the CPRs when procuring legal services, and points to the Whole of Australian Government Legal Services Panel (Panel) which existed in December 2025. General Note 5 makes clear that the CPRs (not the 2025 Directions) are the source of the obligation to use the Panel. In December 2025, information about the Panel was available at the website address specified in the Note (https://www.ag.gov.au).

Section 5 – Schedules

Section 5 provides that Schedule 1 to this instrument has effect. It also sets out that each instrument that is specified in Schedule 2 to this instrument is amended or repealed as set out in the applicable items in that Schedule, and any other item in that Schedule has effect according to its terms.

Section 6 – Simplified outline of these Directions

Section 6 provides an overview of the purpose of the 2025 Directions and provides the reader with a plain English guide to the structure of the instrument. This includes:

• that these Directions are a binding set of rules about Commonwealth legal work, issued by the Attorney-General under section 55ZF of the Judiciary Act
• that these Directions set out important rules for entities to manage legal, financial and reputational risks to the Commonwealth whilst giving entities the discretion to manage their particular risks
• a reminder that arrangements made by an entity for the provision of legal services are to ensure the delivery of efficient and effective services
• where information about the application of these Directions can be located, and
• a high-level summary of the topics captured under each part.

Division 2—Application of these Directions

Section 7 – Who is required to comply with these Directions?

Section 7 provides for the application of provisions in the 2025 Directions. It also sets out the persons and bodies that the 2025 Directions apply to. This provision draws upon existing obligations under the 2017 Directions (in paragraphs 12.2, 12.4 and 12.5). This will clarify the application of the 2025 Directions to bodies and persons other than entities in specified circumstances. This section supplements the simplified outlines across the instrument, and Schedule 1, to explain the application of provisions to Commonwealth entities and the legal work being undertaken. The Note clarifies that the simplified outlines and Schedule 1 broadly summarise the persons and bodies to which provisions apply but are not a comprehensive statement of the application of the 2025 Directions.

Section 8 – The Attorney-General may grant exemptions and modifications

Section 8 provides that the Attorney-General has the discretion to provide an exemption to a body from complying with all or part of the 2025 Directions or modify the application of the 2025 Directions to a body. Subsection 8(3) makes explicit that an exemption or modification to the application of a direction is subject to any conditions imposed by the Attorney-General. This provision builds on paragraph 13.1 of the 2017 Directions.

This provides the Attorney-General with oversight of Commonwealth legal services, balanced against appropriate flexibility in circumstances warranting the modified application of the 2025 Directions.

Section 9 – Application—criminal prosecutions and related proceedings

Section 9 clarifies the application of the 2025 Directions to criminal prosecutions and related proceedings. The provision provides that the 2025 Directions do not apply to the actions of a Commonwealth prosecuting authority when undertaking criminal prosecutions or related proceedings but do apply to the actions of a Commonwealth agency (as relevant, according to the terms and scope of each provision) when subject to a criminal prosecution or related proceedings. This clarifies General Note 4 of the 2017 Directions.

Excluding the actions of a Commonwealth prosecuting authority when undertaking criminal prosecutions or related proceedings from the application of the 2025 Directions reflects the principle that the conduct of these matters by Commonwealth prosecuting authorities should not be subject to direction or influence by other parts of Executive Government.

The application of the 2025 Directions to the actions of a Commonwealth agency (as relevant, according to the terms and scope of each provision) when subject to a criminal prosecution or related proceedings enables the Attorney-General to have oversight of such matters and mitigate any legal risks.

‘Related proceedings’ is considered to comprise any substantive legal work in which a prosecuting authority is exercising its independent functions. Examples include bail proceedings, extradition processes, committal proceedings, and subpoena proceedings issued in a criminal prosecution. Guidance material on what may be considered ‘related proceedings’ will be available on the department’s website: (https://www.ag.gov.au/legal-system/office-legal-services-coordination).  

The Note at the end of this section encourages consultation between Commonwealth prosecuting authorities, AGS and the department on constitutional law issues or the interpretation of Australia’s or another country’s obligations under international law that arise in the conduct of criminal prosecutions and related proceedings. The purpose of the Note is to support the Commonwealth advancing and maintaining a consistent and clear position on such matters.

Section 10 – Interaction with functions of Commonwealth agencies

Section 10 clarifies the interaction between the 2025 Directions and any legislative requirement or authority concerning the functions of Commonwealth agencies. This reflects General Note 5 of the 2017 Directions. The purpose of the provision is to preserve the independence of a Commonwealth agency where this is provided for in legislation, by stating that the 2025 Directions are not intended to override any legislative requirement or authority concerning a Commonwealth agency’s functions (in particular, the role of the Commonwealth Director of Public Prosecutions).

Part 2—Tied areas of Commonwealth legal work

This part provides that specific categories of Commonwealth legal work must be carried out by one of a limited group of legal services providers (tied providers), namely the department, AGS, the Department of Foreign Affairs and Trade (DFAT), and OPC, depending on the category of tied work.

Division 1—Preliminary

Section 11 – Simplified outline—who must comply with this Part?

Section 11 sets out the entities that Part 2 applies to. This supports clarity in application and compliance with obligations under this part.

Section 12 – Meaning of tied work

Section 12 creates categories of Commonwealth legal work that must be carried out by or is ‘tied’ to one of a limited group of legal services providers (tied providers). The categories of work defined as tied work are:

• Cabinet work;
• constitutional law work;
• national security legal work;
• public international law work; and
• tied drafting work.

This provision recognises that certain kinds of work are particularly sensitive, create particular risks or are otherwise so bound to the work of the Executive that it is appropriate that they be conducted by centralised legal service providers to ensure coordination and consistency.

The definitions set out the scope of what constitutes each category of tied work. This provision draws on the definitions of tied work in the 2017 Directions (paragraph 2, subclause 1(c) and clauses 2, 3 and 3A of Appendix A).

Cabinet work refers to legal advice that was, at the time it was obtained, intended to be considered by Cabinet or relied on in preparing a Cabinet submission or memorandum. Cabinet work also captures legal advice on a legislative proposal (other than a proposal for subordinate legislation) to be considered for adoption by government, or on draft legislation (other than subordinate legislation) for introduction into Parliament. This definition builds on clause 1(c) of Appendix A of the 2017 Directions.

The definition of constitutional law work reflects that Constitutional law work comprises the interpretation and application of the Constitution and constitutional principles.

National security law work refers to any Commonwealth legal work of which national security interests form a material aspect. ‘National security interests’ captures the safety of Australians, for example the safety of government, economy and citizens. National Security tied work should not include legal work where the national security context is coincidental, such as the application of workplace relations law to employees of national security entities where there is no material national security aspect at play.

The definition of public international law together with the examples in the Notes set out a detailed list of what constitutes public international law work. The definition reflects an updated version of clause 2 of Appendix A of the 2017 Directions.

The definition of tied drafting work specifies the categories of instruments that fall within scope of tied drafting work. This builds on clause 3 of Appendix A in the 2017 Directions and includes the drafting of commencement proclamations. This work is tied in recognition of the importance of legislation being of high quality and consistent across the statute book.

The definition of tied provider specifies that this term refers to the entity to which work is tied to under this part. This clause draws on clause 3A of the 2017 directions. 

Division 2—Directions about tied work

Section 13 – Direction relating to tied work

Section 13 provides detail about who an entity may obtain tied work from, including that a legal services provider can undertake tied drafting work where this has been arranged by OPC. This provision draws on Paragraph 2, and clauses 3, 3A and 3B in Appendix A of the 2017 Directions. This provision recognises that, based on the potential risks associated with the legal work defined as tied work, it is appropriate that there be rules that govern who may conduct tied work. The section and Note specifies that a tied provider may, for the work in which they are a tied provider, engage counsel or another legal expert without an approval from the Attorney-General. The term ‘another legal expert’ captures those who provide a function equivalent to counsel, for example, the engagement of an academic or legal expert to provide a one-off legal advice. It also captures the appearance of an expert witness in legal proceedings.

Sections 14-16 – Providers of tied work

Subsection 14(1) provides that Cabinet work, constitutional law work and national security legal work is tied to AGS and the department. This replicates the providers for those categories of tied work listed in the 2017 Directions.

Subsections 14(2) provides exceptions from the obligation in respect to Cabinet work in subsection 14(1). Subsection 14(2) provides that legal advice that was obtained from a legal services provider other than a tied provider may be provided to the Cabinet in particular circumstances. Paragraph 14(2)(a) permits legal advice that was obtained from a legal services provider other than a tied provider and prior to there being an intention to take the matter to Cabinet, to be considered by Cabinet. This provides for Cabinet to benefit from advice obtained prior to there being an intention that the matter be considered by Cabinet. The Note clarifies that an example of this situation arising may be where a matter has been the subject of litigation prior to being brought to Cabinet for decision.

Paragraph 14(2)(b) permits an entity to obtain support or guidance from its in-house legal team, including for the in-house team to provide routine advice to the entity, being no more than the application of a settled interpretation of the law to particular facts on legislation administered by the entity, in preparing a Cabinet submission or memorandum. This recognises that in-house legal teams may hold specific expertise on the legislation administered by the entity but limits the advice to the settled interpretation of the law to particular facts noting the complexity and breadth of some legislation.

Paragraph 14(2)(c) provides that an entity’s in-house legal area may advise Cabinet on whether legislation is required (other than legislation to authorise spending) to implement a proposal prepared by that entity for consideration by Cabinet. This will support the operation of Rule 1.16 of the Budget Process Operational Rules (BPORs) (in December 2025 the BPORs were available on the Department of Finance’s website at www.finance.gov.au/government/federal-budget/budget-process). Under the BPORs, there is no requirement for an entity to seek any legal advice to support a statement in a Cabinet submission that legislation is required (other than for spending). Allowing an in-house legal area to provide such advice would be an advance on the current arrangements (which only allow a statement without legal advice, or with AGS advice).

Paragraph 14(3) provides that where advice has been obtained from a provider other than a tied provider and provided to Cabinet, that Cabinet be expressly advised that this has occurred. This enables Cabinet to be fully apprised of the source and date of the advice provided.

Paragraph 14(3)(b) makes explicit that the exceptions in this provision do not extend to legal advice that is within another category of tied work, such as constitutional law advice, which continues to be subject to the requirement that it be done by the relevant tied provider. Guidance on the operation of section 14 will be available on the department’s website (https://www.ag.gov.au).

Subsection 15(1) provides that public international law work is tied to the department, AGS, or for some matters, DFAT. Subsection 15(1) is to be read together with the definition of public international law work in section 12. Subsection 15(2) places obligations on an entity, a CCE or a Commonwealth company when requesting public international law work from AGS. This provision draws on clauses 2 and 7 of Appendix A of the 2017 Directions, with subsection 15(2) clarifying that the obligation extends to CCEs and Commonwealth companies. Note 1 reflects the purpose of the provision is to ensure compliance with Australia’s international law obligations and avoid any risk that Australia may take an inconsistent position on international matters. Guidance on the operation of section 15 will be available on the department’s website (https://www.ag.gov.au).

Section 16 provides that tied drafting work be undertaken or arranged by the OPC. Section 16 is to be read together with the definition of drafting work in section 12 and reflects the requirements for tied drafting work set out in clause 3 of Appendix A of the 2017 Directions. The requirement for the OPC to undertake or arrange tied drafting work recognises the specialist expertise of OPC in legislative drafting.

Section 17 – Briefing counsel and other legal experts

Section 17 provides that entities must seek agreement from AGS, the department or DFAT (as appropriate) to brief counsel and other legal experts on tied work. This provision builds on clause 4 in Appendix A of the 2017 Directions. This requirement supports oversight and ensures counsel and other legal experts undertaking tied work have the requisite expertise to undertake tied work.

Section 18 – Providers other than tied providers may be approved to do tied work

Section 18 provides the Attorney-General the discretion to approve a non-tied provider doing work that would otherwise be tied. This provision builds on clause 3B of Appendix A in the 2017 Directions and makes explicit that an approval is provider specific (i.e. stating that the Attorney‑General may approve a particular legal services provider). Note 2 clarifies that tied providers require approval to engage a legal services provider to undertake tied work, but that a tied provider does not require approval to engage counsel or another legal expert.

Section 18 also specifies that an approval may be subject to conditions, with Note 1 providing examples of the types of conditions that may be imposed. The inclusion of conditions allows flexibility whilst managing the sensitivities of tied work in particular cases.

Section 19 – Categories of work not covered by the tied work rules

Section 19 lists certain categories of legal work that are not covered by the tied work rules, namely: in-house work undertaken in negotiating standard bilateral treaties; public international law work where approval has been given by the Attorney-General for an entity to use in-house legal, and the role of the Solicitor-General. The Note clarifies the application of paragraph 19(a).

This provision builds on clause 5 in Appendix A of the 2017 Directions, with subsection 19(b) supporting the practical management of tied work by permitting in-house legal teams to identify when a tied work issue emerges and to support engagement with a tied provider in respect of that issue.

Section 20 – Tied work not performed by tied providers: entities must give copies of advice to OLSC

Section 20 requires entities to provide a copy of advice to OLSC when requested when tied work has been performed by a provider that is not a tied provider. This requirement draws on clauses 8 and 9 in Appendix A of the 2017 Directions. This provision supports operational efficiency by only requiring entities to give a copy of advice to OLSC when requested to do so and facilitates oversight and consistency in advice on tied matters.

Part 3—Sharing advice within Government

This part promotes collaboration and information-sharing across government on the interpretation of legislation. It aims to ensure consistency in statutory interpretation across the Commonwealth. It provides that where an entity seeks legal advice on legislation administered by another entity, the administering entity must be consulted before the advice is requested, subject to certain exceptions.

Part 3 builds on paragraph 10 of the 2017 Directions which was the focus of recommendation 19.10 of the Royal Commission into the Robodebt Scheme (Royal Commission), which recommended that OLSC issue guidance material on the obligations to consult on and disclose advice in paragraph 10 of the 2017 Directions.

Division 1—Preliminary

Section 21 – Simplified outline—who must comply with this Part?

Section 21 sets out the entities that this part applies to. This supports clarity in application and compliance with obligations under this part.

Division 2—Sharing advice within Government

Section 22 – Purpose of part and general policy on consulting and sharing

Section 22 provides an overarching purpose statement, in the form of an informational note, to emphasise that Part 3 is intended to promote consultation, collaboration and information sharing across government on the interpretation of legislation. This provision draws on Note 1 to paragraph 10.8 of the 2017 Directions but has been promoted to a substantive provision to emphasise the general expectation that entities consult, collaborate and share advice within government, consistent with the expectations of the Royal Commission. The requirements to consult and share advice minimise the likelihood of duplication of work and the chance of inconsistent positions being taken by agencies on the same legislative provisions.

Section 23 – Consultation

Section 23 places an obligation on an entity that proposes to obtain legal advice on the interpretation of legislation, or parts/provisions in legislation, administered by another entity to consult with that other entity. This is to enable the administering entity to have the opportunity to assess the proposal and the advice sought, identify if legal advice already exists, review and be involved in discussions on the draft advice, and review the finalised advice. As part of this process, the requesting entity must provide the administering entity with the proposal to seek advice, a copy of the request for advice, the draft advice (if applicable) and the final advice. The Notes provide entities with information to support the practical operation of this provision.

This provision draws on paragraph 10.1 of the 2017 Directions with revisions providing more specific detail about the scope of the obligations to support entity compliance. The obligation to consult facilitates the efficient and effective use of resources as well as a whole-of-government approach to legislative interpretation.

Sections 24-27 – Exceptions to consultation requirement

Sections 24 to 27 inclusive provide exceptions to the consultation requirements in section 23. It also sets out the process entities should follow when applying these exceptions. These provisions build on paragraphs 10.2, 10.3 and 10.4 of the 2017 Directions. Exceptions to the consultation requirements are:

• where advice is needed urgently (section 24)
• where disclosure would constitute a breach of law or an inappropriate disclosure of a Cabinet, law enforcement or national security matter (section 25)
• when advice is about a routine matter (section 26), or
• where there is a written agreement between entities about how consultation and sharing will operate, that has been notified to OLSC (section 27).

Sections 24 and 25 make clear that even where an exception to the requirement to consult is applicable (for example urgency or confidentiality), the administering entity is still to be consulted and informed as far as circumstances allow.

Section 26 provides an exception to the consultation requirements in section 23 where the advice sought is considered to relate to a routine matter and provides detail on what is generally considered not to be routine and what to do where a matter is subsequently identified to not be routine. Noting the volume of Commonwealth legislation that has not been considered by a court, the obligation in this section it is not intended to require consultation in every instance. Where the crux of the advice is interpreting legislation that has not been considered by a court, the obligation to consult would arise. This permits a degree of discretion and subjectivity in determining whether to consult in these circumstances. However, in accordance with the overarching purpose of Part 3 of the 2025 Directions, entities are encouraged to consult and share as far as possible, even when not expressly required.

Section 27 provides an exception to the consultation requirement in section 23 where there is a written agreement between entities on alternative sharing and consultation arrangements that is notified to OLSC, to the extent that the requesting entity complies with the requirements. This provision codifies a standing exemption previously issued by the Attorney‑General permitting such written agreements.

Section 28 – Responsibility of administering entity upon consultation

Section 28 imposes on an administering entity an obligation to consider advice that is given about its legislation, and whether that advice indicates that action should be taken to clarify its intent. This provision reflects paragraph 10.5 of the 2017 Directions. This provision enables an administering entity to benefit from insights gained from the advice provided to a requesting entity, including resolving difficulties or deficiencies identified by the advice, as well as ensuring maximum advantage is obtained from the Commonwealth’s expenditure on the advice.

Section 29 – Resolving disagreements about interpretation of legislation

Section 29 provides a mechanism by which to resolve disputes about the correct interpretation of legislation. This provision replicates paragraph 10.6 of the 2017 Directions. The provision requires entities to refer the matter to OLSC if unresolved issues are to be referred to the Solicitor-General for advice. This provision supports cooperation between entities to achieve consistent positions on interpreting legislative provisions.

Section 30 – Sharing advice with the Attorney-General

Section 30 provides for the Attorney-General to exercise the power, subject to any legislative restriction, to request a copy of legal advice from an entity. This provision replicates paragraph 10.7 of the 2017 Directions. The Note clarifies that legal professional privilege is not waived by providing advice to the Attorney-General in accordance with the 2025 Directions because of the operation of subsection 55ZH(4) of the Judiciary Act. This supports the Attorney‑General’s oversight and visibility of Commonwealth legal risk as First Law Officer.

Section 31 – Sharing advice that may be significant to other Commonwealth agencies

Section 31 provides that entities must share advice that may be significant to other Commonwealth agencies to support consistency across the Commonwealth. The obligation is not limited to sharing advice on the interpretation of legislation. This provision builds on paragraph 10.8 of the 2017 Directions. This clarifies that draft and final advice is captured by the provision and specifies that an entity must take steps to notify the other agency as well as make the advice available.

Note 1 clarifies that situations may arise where it is reasonable not to notify another Commonwealth agency of the advice or make it available, for example where it would be inappropriate or unlawful to do so as per subsection 25(1) or 26(1). Note 2 clarifies that the obligation extends to sharing advice with operational and portfolio agencies where the entity considers that the advice is likely to be significant to them. This section supports all affected agencies to benefit from insights gained from the advice and facilitates consistency in legislative positions being taken by agencies.

Division 3—Advice on constitutional law issues

Section 32 – Advice on constitutional law issues

Subsection 32(1) imposes an obligation on entities that seek advice from AGS or from counsel briefed by AGS on a constitutional law issue to give a copy of the request to the department. The Note clarifies that the department or AGS may consult with the Solicitor-General about whether the advice should be given by the Solicitor-General or AGS. Generally, only very complex or otherwise significant requests for advice would be dealt with by the Solicitor-General. Subsection 32(2) requires AGS, or counsel briefed by AGS, to provide a copy of any final legal advice on a constitutional law issue to the department and make it available to the Solicitor-General. The Notes propose the mechanism under which the Solicitor-General may receive the advice, and that advice provided by the Solicitor‑General be given to the department and AGS.

This section builds on the existing obligations set out in paragraph 10A of the 2017 Directions. The purpose of this provision is to ensure that the department is aware of requests for advice, and advice about constitutional law issues. This reflects the Attorney-General and the department’s responsibility for constitutional law work under the AAOs. The requirements in this provision enable the department to coordinate requests for advice across agencies where appropriate and avoid unnecessary duplication. It enables that the department and the Attorney-General have up-to-date advice on constitutional law issues. It also ensures that the Solicitor-General is appropriately involved.

Part 4—Reporting on significant issues

The reporting of significant legal issues gives the Attorney-General, through OLSC, visibility of the most important legal issues affecting the Commonwealth, as a means of ensuring that they are managed consistently, effectively, and in accordance with government policy.

Division 1—Preliminary

Section 33 – Simplified outline—who must comply with this Part?

Section 33 sets out the entities that this part applies to. This supports clarity in application and compliance with obligations under this part.

Section 34 – Purpose of this Part

Section 34 sets out the overarching purpose of the significant issues reporting regime under the 2025 Directions and takes the form of an informational note.

Division 2—Directions about significant issues

Section 35 – Reporting on significant issues

This provision imposes an obligation on entities to report to the Attorney-General or OLSC, as soon as possible, about significant issues that arise in the performance of Commonwealth legal work. The provision sets out a non-exhaustive list of factors which are to be considered in determining whether an issue is significant for the purposes of the 2025 Directions. The provision draws on paragraphs 3.1(a)-(e) of the 2017 Directions and expands on the factors which are to be considered in determining whether an issue is significant. Language has also been revised to clarify that the reporting obligation applies to all legal services (wording now refers to Commonwealth legal work), reflecting that it captures for example, the provision of legal advice, handling of claims and conduct of litigation. The purpose of imposing the obligation is to facilitate the development of a whole of government approach to matters of broad legal or policy significance and ensure the Attorney-General has oversight of the most significant legal issues.

Section 36 – Settling claims and litigation that give rise to significant issues

Section 36 imposes an obligation on entities to seek approval from the Attorney-General prior to settling the claim or litigation reported as significant under section 35. This provision reflects paragraph 3.2 of the 2017 Directions, with language amended to clarify that the obligation applies to the handling of a claim as well as the conduct of litigation. The purpose of imposing this obligation is to enable the Attorney-General, through OLSC, to have oversight of and the ability to direct how the Commonwealth approaches the resolution of claims and litigation which are reported under section 35 to ensure they are managed consistently, effectively and in accordance with government policy.

Part 5—Claims and litigation

This part imposes obligations on the Commonwealth, and certain Commonwealth entities, in the handling of claims and conduct of litigation. These obligations reflect the need to protect the legal and financial interests of the Commonwealth, while acting in accordance with the model litigant obligation.

Division 1—Preliminary

Section 37 – Simplified outline of this Part

Section 37 is an informational note that summarises the content of each division within this part and provides the reader with a plain English guide to the structure of the part.

Division 2—The model litigant obligation

Division 2 explains the nature and scope of the Commonwealth’s obligation to act as a model litigant, which has long-standing recognition in Australian common law. Division 2 does not substantively change the existing model litigant obligation set out in paragraph 4.2 and Appendix B of the 2017 Directions but replaces the term ‘agencies’ with ‘entities’ in accordance with the application provision at section 7.

Section 38 – Simplified outline—who must comply with this Division?

Section 38 sets out the application of this division. This supports clarity in application and compliance with obligations under this division.

Section 39 – Informational note—policy of this Division

Section 39 takes the form of an informational note and sets out the policy of the Commonwealth model litigant obligation. This provision draws on clause 1 in Appendix B of the 2017 Directions.

Sections 40-43 – The model litigant obligation

Sections 40-43 provide that the Commonwealth and Commonwealth entities other than GBEs are to behave as model litigants in the handling of claims and the conduct of litigation. The model litigant obligation recognises that the Commonwealth should act as a model litigant given its power, resources and role of acting in the public interest. The Commonwealth’s obligation to act as a model litigant has long-standing recognition in Australian common law, with the obligations in this division generally replicating Appendix B of the 2017 Directions.

Section 41 sets out the nature of the obligation and lists behaviours and actions expected of the Commonwealth and Commonwealth entities other than GBEs as part of being a model litigant.

Section 42 makes explicit the requirement that the model litigant obligation extends to the Commonwealth and Commonwealth entities other than GBEs in merits review proceedings.

Section 43 makes explicit that court proceedings must not be commenced unless other methods of dispute resolution have been considered. This provision reflects the Commonwealth’s commitment to the appropriate use of alternative dispute resolution.

Division 3—Claims and litigation by or against the Commonwealth or entities

Section 44 – Simplified outline—who must comply with this Division?

Section 44 sets out the entities that Division 3 applies to. This supports clarity in application and compliance with obligations under this division.

Section 45 – Entities must comply with instructions from the Attorney‑General

Subsection 45(1) provides that an entity must comply with any instructions given by the Attorney‑General about the handling of claims or the conduct of litigation and reflects paragraphs 4.1 and 4.8 of the 2017 Directions. This provision recognises that for the Attorney-General to discharge the functions of First Law Officer (particularly in ensuring Commonwealth legal work is consistent and coordinated), it may be necessary to give instructions to request an entity to provide information, documents or records that relate to the provision of advice or to the conduct of legal proceedings.

Note 1 provides an example of where the need to give instructions may arise and clarifies that where costs are incurred to comply with an instruction issued by the Attorney-General, those costs are the responsibility of the entity. Note 2 points to other provisions in the 2025 Directions which may be relevant to the handling of a claim by or against the Commonwealth. This assists entities to comply with obligations under the 2025 Directions in the handling of claims or the conduct of litigation.

Subsection 45(2) makes explicit the power of the Attorney-General to make guidelines about the allocation of responsibility for litigation or how litigation managed by more than one entity is to be managed. In December 2025, the Guidelines referenced in subsection 45(2) were available on the department’s website (https://www.ag.gov.au).

Section 46 – Acting in accordance with legal principle and practice

Section 46 provides that an entity must handle claims and conduct litigation in accordance with legal principle and practice, considering the legal rights of the parties and the financial risk to the Commonwealth and the entity of pursuing their rights. This provision recognises the Attorney‑General’s responsibility for ensuring that legal services provided to the Commonwealth are consistent and coordinated. This provision draws on paragraph 4.3 of the 2017 Directions.

Note 1 provides examples of what is captured by handling claims and conducting litigation in accordance with legal principle and practice, whilst Note 2 draws attention to the obligations placed on accountable authorities of NCCEs concerning recovery of amounts owing to the Commonwealth under the PGPA Act. This Note reflects the importance of entities’ awareness of the range of constraints and accountabilities imposed on conduct relating to claims and litigation concerning the Commonwealth.

Section 47 – Disclosure of terms of settlement

Section 47 establishes requirements for an entity when agreeing to confidentiality arrangements in relation to a settlement. This reflects paragraphs 4.5 and 4.5A of the 2017 Directions. This provision reflects the Commonwealth’s general position that settlements involving the Commonwealth should be transparent, and confidentiality should only be sought where necessary to protect the Commonwealth’s interests. Subsection 47(2) imposes an obligation on an entity to tell other parties to confidential settlements that disclosure of the settlement may nevertheless be required by law. The Note provides an example of when it may be in the Commonwealth’s interests to agree to a confidential settlement.

Section 48 – Entities to receive written legal advice before starting court proceedings

Section 48 provides that written legal advice (or oral advice in urgent cases) is required prior to commencing proceedings to establish there are reasonable grounds to commence proceedings. This provision draws on paragraph 4.7 of the 2017 Directions. This provision reflects the importance of the Commonwealth not commencing court action without a sound basis for doing so and provides transparency and accountability in decision-making.

Section 49 – Suppression orders

Section 49 clarifies the circumstances in which an entity must not apply for a suppression order. This provision draws on paragraph 4.9 of the 2017 Directions. This provision reflects that the Commonwealth’s general position should be to take a transparent approach to proceedings, and suppression orders should only be sought where necessary to protect the Commonwealth’s interests. Subsection 49(2) provides that those entities must not apply for such an order only to avoid the disclosure or publication of evidence or information that may be embarrassing to the Commonwealth or its entities. This is to ensure clarity on the circumstances in which the Commonwealth or entities should not seek suppression orders from the court. The Notes clarify that an entity must still comply with the relevant rules court for an application and that this section does not prevent an application for a suppression order for evidence or information that may be embarrassing if there are legitimate Commonwealth interests to protect.

Division 4—Obligations of corporate Commonwealth entities with respect to claims and litigation

Section 50 – Obligations of corporate Commonwealth entities

Section 50 imposes obligations on CCEs other than GBEs with respect to claims or litigation. This provision reflects subparagraphs 12.3(a) and 12.3(b) of the 2017 Directions. The obligations focus on ensuring the Attorney-General has appropriate oversight of constitutional law issues arising in litigation, as well as claims or litigation involving another Commonwealth agency.

Division 5—Jurisdiction of State and Territory bodies

Section 51 – Simplified outline - who must comply with this Division?

Section 51 sets out the entities that this division applies to. This supports clarity in application and compliance with obligations under this division.

Section 52 – Attorney-General must approve objection to the jurisdiction of State and Territory courts

Section 52 provides that the Attorney-General must give approval to an entity to object on behalf of the Commonwealth to the jurisdiction of a State or Territory court on the basis that it is not a court authorised under section 56 of the Judiciary Act. The Note provides information about how this provision interacts with findings made by the High Court about when the Commonwealth can object to jurisdiction. This provision replicates paragraph 4.6 of the 2017 Directions. The purpose of this provision is to ensure consistency and correctness across the Commonwealth with respect to the application to the Commonwealth of the jurisdiction of State and Territory courts.

Section 53 – Attorney-General must approve submission or objection to the powers of State and Territory bodies

Section 53 provides that the Attorney-General must give approval to the Commonwealth or a Commonwealth agency before it can submit or object to the exercise of compulsory powers or decision-making powers by a State or Territory body that is not a court within the meaning of Chapter III of the Constitution. Bodies captured by this section include state and territory administrative tribunals, royal commissions, commissions of inquiry and integrity commissions. This section also provides that the Attorney-General must give approval to the Commonwealth or a Commonwealth agency to agree to submit or object to the exercise of such powers. This provision draws on paragraph 4.6A of the 2017 Directions. Note 1 explicitly states that the purpose of the provision, whilst Note 2 serves as a reminder on who is captured by the term Commonwealth agency.

Division 6—Use of in-house lawyers for court litigation

Section 54 – Simplified outline—who must comply with this Division?

Section 54 sets out the entities that this division applies to. This supports clarity in application and compliance with obligations under this division.

Section 55 – Use of in-house lawyers for court litigation

Section 55 provides that the Attorney-General must give approval to an entity for it to use in-house lawyers to conduct court litigation as solicitor on the record. This provision replicates paragraph 5 of the 2017 Directions. The Note to subsection 55(2) makes clear that the factors listed as not an exhaustive list of what the Attorney-General may consider when granting an approval. The purpose of this provision is to ensure that the Commonwealth only appears in court with a legal team with sufficient expertise and support to properly advance its case and assist the court. Further, the approval arrangement supports the efficient and effective use of resources for those entities.

Division 7—Public interest immunity

Section 56 – Simplified outline—who must comply with this Division?

Section 56 sets out the entities that this division applies to. This supports clarity in application and compliance with obligations under this division.

Section 57 – Public interest immunity

Section 57 provides directions to entities on the handling of public interest immunity (PII) claims. This provision draws on paragraphs 7.1 and 7.2 of the 2017 Directions. The Note provides an example of how the provision works in practice and supports identification of the appropriate PII entity or Minister by providing a list of entities commonly involved in PII claims.

The provision facilitates PII claims being dealt with in a consultative way between the entity making the claim and the entity with administrative responsibility for the ground on which the immunity is claimed. The section also provides a mechanism for resolving disputes about claims of PII. This reflects the importance placed by the Commonwealth on a whole of government approach to the making of PII claims in litigation.

Division 8—Reliance on limitation periods

Section 58 – Simplified outline—who must comply with this Division?

Section 58 sets out the entities that this division applies to. This supports clarity in application and compliance with obligations under this division.

Section 59 – Reliance on limitation periods

Section 59 provides directions to entities on pleading limitation period defences and opposing applications for an extension of a limitation period. This provision substantively replicates paragraphs 8.1 to 8.4 of the 2017 Directions. Subsection 59(1) provides that or oppose an application for an extension of a limitation period. Paragraphs 59(1) and 59(2) provide that the Attorney‑General must give approval for the entity not to plead a defence based on the expiry of an applicable limitation period, or to not oppose an application for an extension of a limitation period.

The starting point is that when the Commonwealth or an entity is a party to a claim, it should plead a limitation period defence, or oppose an application to extend a limitation period, if this is available to it. If the Attorney-General approves an application from an entity to not plead a defence based on the expiry of a limitation period, or to not oppose an application for an extension of a limitation period, the plaintiff’s claim may proceed even when the applicable statutory limitation period has expired. Providing the ability for the Attorney-General to give this approval in certain circumstances is consistent with the Commonwealth’s model litigant obligations (Part 5, Division 2). The Notes across these provisions highlight that Attorney-General approval will normally be given only in exceptional circumstances.

Paragraph 59(1)(b) outlines circumstances where an entity proposing to settle a claim is not required to plead the limitation period defence.

Section 59(3) clarifies the scope of the term ‘limitation period’ by identifying certain matters (such as time limits applicable to procedural steps in litigation) to which the term does not apply.

Part 6—Settling monetary claims

This part imposes rules about the settling of monetary claims brought by and against the Commonwealth. This includes rules about the circumstances in which settlement might be reached. This part reflects paragraph 4.4 and Appendix C of the 2017 Directions, with the title amended from ‘handling monetary claims’ to ‘settling monetary claims’ to more appropriately reflect the subject matter and obligations in this part. Obligations for settling claims brought by and against the Commonwealth or an entity, have also been separated to clarify their operation. The obligations in this part reflect the importance of protecting the legal and financial interests of the Commonwealth and having a consistent approach to the handling and settling of monetary claims. Monetary claims include but are not limited to a claim for damages or compensation, recovery of a debt and some costs disputes. The obligations in this part apply to all monetary claims, including monetary claims which are not reported as significant issues under Part 4 of the 2025 Directions.

Division 1—Preliminary

Section 60 – Simplified outline—who must comply with this Part?

Section 60 sets out the entities that this part applies to. This supports clarity in application and compliance with obligations under this division.

Section 61 – Purpose of this Part

Section 61 provides an overarching purpose statement, in the form of an informational note, to clarify that the part does not confer any power to enter arrangements or make commitments to spend public money to settle a monetary claim, and that those powers exist elsewhere. The provision explicitly refers to the obligations of accountable authorities under the PGPA Act, including the duty in paragraph 15(1)(a) to promote the proper use and management of public resources.

Section 62 – Claims in respect of which this Part applies

Section 62 sets out the types of monetary claims to which Part 6 applies. The purpose of this section is to ensure clarity in operation and reflects the importance placed by the Commonwealth on having a consistent approach to the handling and settling of monetary claims.

Subsection 62(1) clarifies that the obligations do not apply to claims determined under a legislative or contractual mechanism. The Note assists entities through examples of where this may arise. This provision replicates clause 1 in Appendix C of the 2017 Directions.

Subsection 62(2) provides that the obligations in Part 6 also apply when legal assistance is provided to eligible Commonwealth employees and officials in accordance with Part 9 of the 2025 Directions. This assists entities to understand the intersection of these parts.

Division 2—Directions about settling monetary claims

Section 63 – Settling monetary claims involving the Commonwealth or an entity

Section 63 provides that an entity must not settle a monetary claim involving it or the Commonwealth except in accordance with this part. This provision reflects paragraph 4.4 of the 2017 Directions. The provision and Note make explicit that the obligations in this part operate in addition to, and do not override, those under Part 4 in relation to significant issues.

Section 64 – Criteria for settling monetary claims against the Commonwealth or an entity

Section 64 sets out the obligations that apply to monetary claims brought against the Commonwealth or an entity. These provisions reflect the need to protect the legal and financial interests of the Commonwealth.

Paragraph 64(1)(b) provides that in limited circumstances the Commonwealth or an entity is permitted to settle a monetary claim brought against it without there needing to be a meaningful prospect of liability being established against the Commonwealth. This permits, for example, the Commonwealth to accept a ‘walkaway offer’ i.e. an agreement between the entity and the claimant that the claim be dismissed, discontinued or otherwise resolved or agree to settlement without making financial or other commitments to the claimant, or the making of any concessions (apart from own costs), to allow timely and more expedient settlement where appropriate. This provision builds on clause 2 in Appendix C of the 2017 Directions.

Subsection 64(2) is an avoidance of doubt provision to clarify that it is not consistent with subsection 64(1) for an entity to settle a clearly spurious claim merely to avoid the cost of defending it, unless the exceptions in 64(1)(b) could be relied on. This provision builds on clause 2 in Appendix C of the 2017 Directions.

Subsection 64(3) provides that where a meaningful prospect of liability is established, entities must consider certain factors in assessing a fair settlement to ensure that the settlement is in accordance with legal principle and practice. The factors listed are not an exhaustive list. The Note assists by providing an example of what may be captured by prejudice to the Commonwealth. This provision builds on clause 2 in Appendix C of the 2017 Directions.

Subsection 64(4) provides that for settlements not exceeding $100,000, an accountable authority or their delegate may approve the settlement, once satisfied that the settlement is in accordance with legal principle and practice. Settlement of any matter reported as significant under section 35 will still require the approval of the Attorney-General, irrespective of the quantum of the settlement sum.

Subsection (64)(5) imposes an obligation on the Commonwealth or an entity to obtain external legal advice from AGS, an external legal services provider or counsel to settle a monetary claim exceeding $100,000. This provision builds on clause 4 in Appendix C of the 2017 Directions. Settlements exceeding $100,000 (inclusive of any taxes (as applicable) and related claims) require the external legal advice to confirm that the settlement is in accordance with legal principle and practice. Where legal advice has been obtained confirming the settlement is in accordance with legal principle and practice, and the accountable authority of an entity, or the accountable authority’s delegate, agrees with the settlement, they may approve the settlement. Like subsection 64(4), settlement of any matter reported as significant under section 35 will still require the approval of the Attorney-General.

Section 65 – Criteria for settling monetary claims commenced by the Commonwealth or an entity

Section 65 sets out the obligations that apply to monetary claims commenced by the Commonwealth or an entity. The obligations in this provision build on clauses 2-4 in Appendix C of the 2017 Directions, clarifying the application to monetary claims brought by the Commonwealth. For example, section 65 does not require there to be a meaningful prospect of liability being established against the Commonwealth to facilitate settling a claim it commences, as this does not make practical sense when the claim is commenced by the Commonwealth. Instead, paragraph 65(1)(b) requires that if the Commonwealth wishes to settle a monetary claim it commences, this must be in accordance with legal principle and practice and the interests of the Commonwealth.

Subsection 65(2) sets out, for the purposes of section 65(1), the factors that must be considered in assessing a fair settlement. The factors listed are not an exhaustive list. The Note assists by providing an example of what may be captured by prejudice to the Commonwealth.

Subsection 65(3) provides that for settlements involving a concession that does not exceed $100,000, an accountable authority or their delegate may approve the settlement, once satisfied that the settlement is in accordance with legal principle and practice. Concession refers to the amount claimed by the Commonwealth or the amount assessed by the Commonwealth’s legal services provider as being payable to the Commonwealth if the claim was successful, compared to the total settlement sum accepted. Settlement of any matter reported as significant under section 35 will still require the approval of the Attorney-General, irrespective of the quantum of the settlement sum.

Like subsection 64(5), subsection 65(4) imposes an obligation on the Commonwealth or an entity to obtain legal advice from AGS, an external legal services provider or counsel to settle a monetary claim where it involves a concession exceeding $100,000 (inclusive of any taxes (as applicable) and related claims). This is based on the monetary concession by the Commonwealth, rather than the settlement sum.

The Note to subsections 65(3) and (4) provides guidance on how entities are to assess the value of a concession, reflecting that it is intended to be the difference between the total settlement sum and either the amount claimed by the Commonwealth or the amount assessed as payable by the Commonwealth’s legal representatives if the claim was successful (whichever is lesser). For example, the Commonwealth would be required to seek external legal advice, when settling a claim, if it proposed to concede more than $100,000 of the claimed amount or amount assessed as payable by its lawyers.

Section 66 – Exceptional circumstances – referral to OLSC

Section 66 provides a mechanism to depart from the obligations in Part 6 where an entity considers there are exceptional circumstances that justify a reason to do so. This provision reflects clause 5 in Appendix C of the 2017 Directions. This purpose of this provision ensures that OLSC has oversight of the proposed approach to support the management of whole-of-government legal risk and recognises the complexity and breadth of legal matters across the Commonwealth.

Section 67 – Release and indemnity

Section 67 provides that entities must consider release and indemnity arrangements when settling a monetary claim. Subsection 67(1) provides that an entity must settle a monetary claim on terms that include a condition that the claimant sign a suitable release and, if appropriate, provides an indemnity against any claims by third parties arising from the event that gave rise to the settlement. This provision reflects clauses 6 and 6A in Appendix C of the 2017 Directions. Paragraph 67(2)(b) provides the flexibility to not require a release or indemnity when an entity is satisfied that exceptional circumstances exist that justify these not being a requirement. A release or indemnity arrangement protects the legal and financial interests of the Commonwealth by, for example, preventing duplicative claims from being bought against the Commonwealth (and its officers or agents of the Commonwealth) or claims being made against the Commonwealth where it has discharged its liabilities to a third party.

Part 7—Engagement of counsel

This part imposes rules about the engagement of counsel by and on behalf of Commonwealth entities other than a GBE. The purpose of this part is to ensure that counsel briefed by or on behalf of the Commonwealth are selected on merit, comply with the model litigant obligation, and provide services that offer value for money.

Division 1—Preliminary

Section 68 – Simplified outline - who must comply with this Part?

Section 68 sets out the entities that this part applies to. This supports clarity in application and compliance with obligations under this division.

Section 69 – Commonwealth policy on selecting and engaging counsel

Section 69 reflects the Commonwealth’s policy of encouraging entities to brief a wide range of counsel, with the aim of ensuring that the Commonwealth obtains high quality legal services. This provision draws on clauses 1, 2 and 15 in Appendix D of the 2017 Directions, listing additional diversity indicators to encourage entities to consider a broader range of candidates when selecting counsel for a brief. It also supports the Commonwealth to have a broad pool of counsel available to undertake matters and enhances the quality of legal services by bringing more varied experiences, perspectives, and talents to the practice of law and the administration of justice.

Section 70 – Engagements to which this Part applies

Section 70 clarifies the engagements to which this part applies, explicitly stating the part applies to engagements in respect of litigation and briefs to advise. The Notes clarify what is defined as litigation and counsel to support understanding and compliance. This provision draws on clauses 3 and 4 in Appendix D of the 2017 Directions.

Division 2—Engagement of counsel

Sections 71-73 – Content of briefs

Sections 71 to 73 provides the elements that must form part of a brief to counsel. These are (1) the provision of information about the model litigant obligation, (2) the marking of a brief with a rate (either an hourly rate up to a maximum daily rate or a fee on brief where it is considered more economical to do so), and (3) requiring counsel to warrant that they have not, at any time, become bankrupt. These provisions draw on paragraph 6.2 and clauses 4, 4A and 4B of Appendix D to the 2017 Directions.

Entities must not engage counsel who has, at any time, become bankrupt, and a professional body has made an adverse disciplinary finding about the circumstances of that bankruptcy, without the Attorney-General’s approval. Entities should have appropriate arrangements in place when engaging counsel to ensure this requirement is met.

These requirements ensure that counsel comply with the model litigant obligation, provide services that offer value for money and support the Commonwealth to engage counsel who conduct themselves to the highest ethical and professional standards.

Section 74 – Directions about the selection of counsel

Section 74 provides that entities must consider certain factors when selecting counsel. This provision builds on clauses 2, 4C and 4D in Appendix D of the 2017 Directions and gives effect to the Commonwealth’s policy of encouraging entities to brief a wide range of counsel to ensure a more equitable, diverse and inclusive legal profession in Australia. By requiring the consideration of a broad range of counsel, the Commonwealth is better able to ensure that there will always be appropriately qualified counsel to be instructed in Commonwealth matters. The diversity criteria listed in subparagraphs 71(1)(c) also contribute to a diverse and inclusive profession that reflects the diversity of the community it serves.

Subparagraph 74(2)(d) explicitly encourages Commonwealth entities to consider selecting women counsel with relevant seniority, expertise, and experience in the relevant practice area, with a view to achieving at least 40% of the volume and value of an entity’s briefs. The Note encourages entities to publish information annually to enable assessment of whether the briefing targets in subparagraphs 74(2)(d)(i) and (ii) are being met. The inclusion of targets reflects the Commonwealth’s commitment to increasing the briefing rates of women barristers. Encouraging entities to consider the engagement of women counsel also aligns with the Law Council of Australia’s Equitable Briefing Policy, which in November 2025, was available at www.lawcouncil.au/policy-agenda/advancing-the-profession/equal-opportunities-in-the-law/national-model-gender-equitable-briefing-policy.

Sections 75 – Daily rates and other fees payable to counsel

Section 75 sets the maximum daily fees payable to counsel without the Attorney-General’s further approval. This provision draws on clauses 5, 7 and 8 in Appendix D of the 2017 Directions.

Subsection 75(1) provides that an engaging entity must not, without the Attorney-General’s approval, pay senior or junior counsel a daily rate more than those specified in the provision. This gives the Attorney-General oversight of higher fees and the matters to which these relate, as well as supporting the Commonwealth to achieve value for money. The provision elaborates that rates will be indexed every 2 years as set out in section 80, with the Note clarifying that the relevant indexed daily rates will be published on the department’s website (https://www.ag.gov.au/legal-system/office-legal-services-coordination).

The restrictions on entities with respect to cancellation fees and payment of retainers in subsections 75(2)-(4) again support the Commonwealth to place downward pressure on the cost of legal services to achieve value for money. The Note to subsection 75(2) provides an example of what may constitute exceptional circumstances that warrant the payment of a cancellation fee.

Section 76 – Negotiating hourly rates  

Section 76 provides that entities must negotiate an appropriate hourly rate as part of negotiations on a daily rate. This provision draws on clause 6 in Appendix D of the 2017 Directions. The provision directs entities to negotiate an appropriate hourly rate in accordance with the nature and complexity of the brief and value for money principles. Notwithstanding any agreed hourly rate, the total fees payable to counsel cannot exceed the relevant daily rate.

Section 77 – Other matters regarding counsel fees 

Section 77 provides guidance on other matters to support entities to negotiate appropriate rates for engaging counsel. Subsection 77(1) highlights that the daily rates in subsection 75(1) are not to be the standard or starting point for negotiations. This provision draws on clause 12 in Appendix D of the 2017 Directions. The Note explicitly states that in many cases, the normal market rates for counsel may be less than the threshold rates specified in 75(1). Subsection 77(1) is intended to clarify that the rates in 75(1) should be considered a ‘ceiling’ when negotiating daily rates, unless the matter warrants an application for an approval of a one-off rate. Subsection 77(2) specifies that an entity must not pay counsel more than the reasonable costs of accommodation or travel, and points to the relevant rates for Senior Executive Service in the Australian Public Service as a guide on what may be appropriate. This provision is intended to place downward pressure on rates and deliver value for money to the Commonwealth.

Section 78 – Entity must give information to OLSC

Section 78 provides that an entity must, where requested, provide certain information about the engagement of counsel to OLSC. This provision draws on clause 16 in Appendix D of the 2017 Directions. This requirement will generally be enlivened where an entity requires approval from the Attorney-General under subsection 73(2), subsection 75(1) or subsection 75(4). The provision of information to OLSC will support efficient handling of requests for approval, contributing to the effective and efficient management of Commonwealth legal work.

A request for information will generally be through a counsel rate application form requiring disclosure of personal information including name, gender, phone number and commercial rate. Counsel may also voluntarily disclose whether they identify as First Nations, culturally and linguistically diverse, a person with a disability and/or LGBTIQA+, and whether they hold a security clearance. The form requires confirmation that counsel agree to the collection and disclosure of information in the form and includes a privacy collection notice. The form also explicitly states how information may be used, including that de-identified information may be used to inform statistics for internal reporting processes or for inclusion in the Legal Services Expenditure Report published by the department.

Section 79 – Seeking approvals regarding counsel rates

Section 79 stipulates the steps that apply to requesting an approval under section 75(1) to pay a rate above the thresholds and the relevant factors that will be considered in deciding the request. This provision reflects clauses 9-11 in Appendix D of the 2017 Directions. This ensures the Attorney‑General has visibility of requests for higher rates and that they are handled consistently, with rates above the threshold paid only where appropriate considering the particular circumstances of the brief.

Sections 80-81 – Indexing daily rate thresholds and Meaning of index number

Sections 80-81 provide a mechanism to revise daily rate thresholds every two years commencing on 1 July 2027, in line with the Consumer Price Index (CPI), to better reflect changing market conditions over time. The Note to section 80 specifies that OLSC will publish the indexed amounts on the department’s website (https://www.ag.gov.au).

Section 81 stipulates the relevant index number for the purpose of calculating the daily rate threshold increase. CPI is used to ensure rates are reflective of market conditions into the future, and in recognition that CPI is commonly used by government to adjust prices charged for goods and services to counter the effects of inflation.

Part 8—Procurement of external legal services providers

This part places obligations on a Commonwealth entity other than a GBE to consider a legal service provider’s involvement in pro bono work when determining whether to engage a particular legal services provider. The obligation to consider pro bono performance when engaging legal services providers aligns with the Commonwealth’s commitment to access to justice for all.

Division 1—Preliminary

Section 82 – Simplified outline—who must comply with this Part?

Section 82 sets out the entities that this part applies to. This supports clarity in application and compliance with obligations under this part.

Section 83 – Meaning of pro bono legal work

Section 83 specifies that the meaning of pro bono legal work mirrors the Australian Pro Bono Centre’s (APBC) definition of ‘pro bono legal services’. The Note specifies where the APBC’s manual incorporating the definition is available. This provision draws on clause 2 in Appendix F of the 2017 Directions and ensures alignment between the 2025 Directions and pro bono obligations under the Whole of Australian Government Legal Services Panel in effect in 2025.

Division 2—Procurement of external legal services providers

Section 84 – Pro bono and other matters to be taken into account in selecting external legal services providers

Section 84 provides the matters that Commonwealth entities must consider when engaging a legal services provider to undertake Commonwealth legal work. This provision reflects clause 5 in Appendix F of the 2017 Directions. This includes but is not limited to the amount and kind of pro bono legal work that has been undertaken or will be undertaken, and whether the provider has signed up to the National Pro Bono Target of the APBC. The Note clarifies where information on the National Pro Bono Target was available in 2025.

The obligation to consider the amount and kind of pro bono performance should not detract from the selection of a legal services provider that can provide the required legal services to the necessary standard and that the engagement provide value for money. Further, the obligation to consider pro bono performance when engaging an external legal services provider does not extend to the engagement of counsel or government legal service providers who provide legal services to other entities, such as AGS or OIL, noting government to government legal services do not have the same value for money considerations.

Section 85 – Obligation to provide assistance, documents and information

Section 85 requires a Commonwealth entity other than a GBE to provide all reasonable assistance to the Attorney-General (or other person where authorised) or the department in response to an inquiry about procurement of legal services from an external legal services provider. This provision reflects clause 8 in Appendix F of the 2017 Directions. The purpose of this provision is to ensure appropriate oversight of procurement practices.

Part 9—Assistance to eligible Commonwealth employees and officials in legal proceedings etc.

Part 9 imposes rules about how to handle requests for assistance in relation to legal proceedings by:

• persons who are, or who have been, current and former entity employees,
• current and former accountable authorities, 
• statutory officer-holders of entities,
• and persons currently and formerly employed as a member of a Minister’s staff under the Members of Parliament (Staff) Act 1984 (MOPS Act).

Part 9 also stipulates how the obligations in this part interact with other aspects of the 2025 Directions. This part reflects paragraph 9 and Appendix E of the 2017 Directions. Part 9 supports consistency in the management of requests for assistance and protects the Commonwealth’s financial and general interests by requiring that the primary consideration is that the provision of assistance is of some benefit to the Commonwealth.

Division 1—Preliminary

Section 86 – Simplified outline—who must comply with this Part?

Section 86 sets out the entities that this part applies to. This supports clarity in application and compliance with obligations under this part. CCEs and Commonwealth companies are not required to comply with Part 9, but this does not prevent those bodies from providing financial assistance for legal proceedings to their employees.

Section 87 – Purpose of this Part

Section 87 takes the form of an informational note, setting out the underlying policy of Part 9 and the purpose and effect of the provisions. The provision makes explicit that Part 9 does not in itself create a scheme or fund for legal assistance or confer a power on a decision maker to spend money or grant indemnities, and that this power is found elsewhere. This provision generally reflects paragraph 9.1 of the 2017 Directions.

Section 88 – Key terms

Section 88 defines key terms used in Part 9 to ensure clarity in application and support compliance.

Section 89 – Requests to which this Part applies

Section 89 makes explicit that Part 9 applies to a request from an eligible person for assistance for a civil or criminal proceeding (including a potential proceeding), an inquest or inquiry, or to respond to a compulsory notice where the proceedings arise out of, or in connection with, the individual’s performance of their official role. This provision draws on clause 1A in Appendix E of the 2017 Directions. Provided other eligibility criteria are met, requests for assistance from Australian Defence Force members are captured under Part 9. Requests from labour-hire or contractors are not within scope. Subparagraphs 89(b)(iii) and (iv) make explicit that requests from accountable authorities or members of an accountable authority and statutory office holders who were officials are in scope. The Note clarifies the application of the provision to a person employed under the MOPS Act. Applications for assistance may be made retrospectively but may not be approved where the eligible person failed to give notice of the proceeding in a reasonable time (see section 97). This provision supports consistency in the management of requests for assistance.

Section 90 – Matters outside the scope of this Part

Subsection 90 provides that some requests for assistance and types of matters fall outside of the scope of Part 9. Subsection 90(1) makes explicit that Part 9 does not apply in relation to financial assistance under certain legislation or schemes. The Notes provide general information about the legislation and schemes specified in paragraphs 90(1)(a) and (b). Subsection 90(2) provides that some types of challenges and proceedings fall outside of the scope of Part 9. Paragraph 90(2)(a) clarifies that given the Commonwealth funds the defence of administrative law challenges that do not include damages claims, it is not necessary for an individual to seek assistance under Part 9. The Note clarifies that where an administrative law challenge is coupled with a damages claim, Part 9 may apply in respect of the damages claim. This provision reflects clauses 2 and Note 2 to clause 25 in Appendix E of the 2017 Directions. Paragraph 90(2)(b) makes explicit that requests for financial assistance in respect of a disciplinary proceeding against an eligible person that is initiated by, or on behalf of, the responsible entity is excluded, noting this would be inconsistent with the underlying policy of Part 9 that approving assistance is of some benefit to the Commonwealth. This provision reflects clause 2A in Appendix E of the 2017 Directions.

Division 2—Who is the decision-maker?

Section 91 – Decision-maker

Section 91 provides that requests for assistance must be decided by a person who holds the power to grant approvals. This reflects the operation of this part as set out section 87, with the Note to subsection 91(1) supporting NCCEs to identify who may hold the relevant power to be a decision‑maker. This provision draws on clauses 21 and 21A in Appendix E of the 2017 Directions.

Subsection 91(2) makes explicit that the appropriate decision-maker is usually the accountable authority or Minister. This draws on clauses 21 and 21A in Appendix E of the 2017 Directions. The provision clarifies that requests for assistance from a former accountable authority or statutory officer‑holder can be considered by a current accountable authority, provided there is no conflict of interest. Subsection 91(3) recognises that circumstances will arise in which it will be inappropriate for the ordinary decision-maker to decide on the assistance, with subsection 91(4) clarifying arrangements for a substitute decision-maker. Subsection 91(4) ensures that if the responsible accountable authority or Minister are unable to consider a request, the request must be referred to the Attorney-General to choose a substitute decision-maker. The Note encourages decision-makers to use their best endeavours to consider requests for assistance in a timely and responsive manner, noting the potential impact of delays on the individual concerned. This provision supports the efficient and effective handling of requests for assistance by identifying the appropriate decision-maker and requiring decision-makers to make best endeavours to provide certainty on the outcome of applications.

Division 3—General rules: when approvals must not be granted

Section 92 – Cases in which decision-maker must not grant approval

Section 92 sets out the circumstances in which a decision-maker must not grant approval. This draws on clauses 3 and 20, and part of clause 7, in Appendix E of the 2017 Directions. The cases where approval must not be granted are generally where the individual should be otherwise indemnified or insured (paragraphs 92(a) and (d)) or where it is not appropriate for the Commonwealth to fund assistance for certain causes of action (paragraphs 92(b) and (c)). The Note makes explicit that approval must not be provided even if the employee offers to pay the responsible entity any damages. This provision protects the Commonwealth’s financial interests by ensuring Part 9 is applied appropriately.

Section 93 – Cases in which decision-maker needs Attorney-General’s approval -challenges to validity or conduct of inquiries

Section 93 provides that an entity must obtain the Attorney-General’s approval to grant an approval for a challenge to the validity or conduct of an inquiry, for example where there are jurisdictional issues about the inquiry’s ability to compel the Commonwealth. The Note clarifies that applications for the Attorney-General’s approval should be made to OLSC. This provision replicates clause 16A in Appendix E of the 2017 Directions. The purpose of this provision is to ensure the Attorney-General has oversight with respect to any challenges to the validity or conduct of inquiries and that a consistent approach can be taken to responding.

Division 4—General rules: what financial assistance may be granted?

Section 94 – Types of costs that may be approved

Section 94 provides for the types of costs that may be approved. This provision reflects clauses 11 and 11A in Appendix E of the 2017 Directions. The Note to subsection 94(1) reminds the decision‑maker that some types of assistance, particularly approval to pay damages, fines or penalties, may amount to granting an indemnity. For NCCEs, section 60 of the PGPA Act applies, which requires the Minister for Finance to grant the indemnity, unless they have delegated this power. Subsection 94(2) provides that an approval for costs does not apply to an appeal or consideration of a possible appeal unless expressly stated in the approval. This provision ensures that any grant of assistance for indemnities is supported by the appropriate spending power, protecting the Commonwealth’s financial interests.

Section 95 – Amount of assistance that may be approved

Section 95 provides that a decision-maker may only grant an approval to pay an amount that is reasonable in relation to the proceeding. This reflects aspects of clauses 12, 16, and 17 in Appendix E of the 2017 Directions. Subsection 95(1) ensures that a decision-maker has regard to what is reasonable in relation to a particular matter when approving assistance.

Subsection 95(2) places an obligation on the decision-maker to ensure that any costs approved for counsel fees are in accordance with Part 7 (engagement of counsel). The Note provides guidance on the practical application of the obligation. In tandem with subsection 99(4) and section 106, this ensures consistency in the engagement of counsel on behalf of the Commonwealth and places downward pressure on counsel fees. The overall effect of section 95 is to protect the financial interests of the Commonwealth.

Division 5—Decision-making process: considerations relevant to grant of approvals

Section 96 – Granting approvals—the primary consideration

Subsections 96(1) and (2) provide that the decision-maker’s primary consideration is that the provision of assistance is of some benefit to the Commonwealth as a result of the protection of its financial or general interests. This provision reflects clause 4 in Appendix E of the 2017 Directions. Reference to whether an individual has acted reasonably and responsibly in paragraph 96(2)(b) is not intended to prevent a decision-maker approving assistance where an eligible person is alleged to have acted negligently or where there is an allegation of wrongdoing, provided that approving assistance would still be of some benefit to the Commonwealth.

Subsection 96(3) provides an example of when assistance would usually not be of some benefit to the Commonwealth and reflects aspects of clause 6 in Appendix E of the 2017. The Note explains that subsection 96(3) would likely be relevant where the individual’s conduct involved serious or wilful misconduct or culpable negligence. This provision protects the Commonwealth’s financial interests and general interests as an employer.

Section 97 – Refusing application where employee failed to give notice in reasonable time

Section 97 provides that a decision-maker may refuse to grant an approval where the eligible person failed to notify the responsible entity of the proceeding within a reasonable time, and that the delay may prejudice the entity’s position. This replicates clause 9 in Appendix E of the 2017 Directions. This provision protects the Commonwealth’s financial and legal interests.

Division 6—The decision-making process: deferral, conditions and consultation

Section 98 – Deferral of approvals

Section 98 provides that there may be circumstances where it is appropriate for a decision-maker to defer a decision on all or part of a request for assistance. For example, a decision-maker may approve assistance for legal costs and related expenses but decide to defer a decision on other expenses or costs until the outcome of the litigation is known. Subsection 98(1) and the Note reflect aspects of clause 7 in Appendix E of the 2017 Directions. Subsection 98(2) requires that where a request relates to criminal proceedings, a decision-maker must, unless they consider it inappropriate in the circumstances, defer the decision as to whether to grant an approval to the eligible person for any damages, fines, penalties or costs awarded against them until the proceedings are concluded. This replicates clauses 13 and 14 in Appendix E of the 2017 Directions. Subsection 98(3) places an obligation on a responsible entity to have separate legal representation where a decision has been wholly or partly deferred and the responsible entity is or becomes a party to the proceeding. This reflects aspects of clause 23 in Appendix E of the 2017 Directions. The purpose of this provision is to support the efficient and effective handling of requests for assistance whilst also protecting the Commonwealth’s financial and general interests.

Section 99 – Placing conditions on approvals

Section 99 provides that a decision-maker may impose conditions on approvals for assistance where it is considered necessary to do so. Subsection 99(1) provides that a decision-maker must consider whether it is appropriate to impose conditions on approvals, with the Note serving as a reminder that there must be a power elsewhere to impose the conditions.

Subsection 99(2) provides the opportunity for an entity to be consulted (where appropriate) on the disclosure or non-disclosure of official documents or information, including where a person is giving evidence voluntarily, for example the preparation of a witness statement or affidavit. This builds on clause 18 in Appendix E of the 2017 Directions. The purpose of this provision is to ensure the Commonwealth can take an appropriate position when disclosing Commonwealth information.

Subsection 99(3) provides that any conditions on the approval enable the entity to comply with the obligations under Part 6 (settling monetary claims). This replicates clause 15 in Appendix E of the 2017 Directions. The Note clarifies that rules about settling monetary claims in Part 6 apply, with modified effect, where approval is granted for settlement costs. This means that any settlement of a monetary claim by or against the eligible person must, at a minimum, be in accordance with legal principle and practice, and will require external legal advice prior to settlement where the settlement amount exceeds $100,000. This is to ensure that any settlement is handled consistently with the obligations on NCCEs, is supported by legal advice and is appropriate in the circumstances.

Subsection 99(4) and the associated Note provide that where a decision-maker proposes to grant an approval that covers the costs of an eligible person’s legal representation, they must consider placing conditions on the approval to assist the responsible entity to comply with its obligations under Part 7 (engagement of counsel). This reflects aspects of clauses 12 and 23 in Appendix E of the 2017 Directions. This obligation recognises that the 2025 Directions do not impose obligations on eligible persons, but that a decision-maker may impose conditions to ensure consistency with the counsel rate regime. In tandem with subsection 95(2) and section 106, this ensures consistency in the engagement of counsel on behalf of the Commonwealth.

Section 100 – Conditions on approvals for certain costs—civil proceedings

Section 100 provides that a decision-maker must impose specific conditions on a grant of approval for certain costs in civil proceedings. This provision replicates clauses 8 and 22 in Appendix E of the 2017 Directions. The Note clarifies the intent and effect of the relevant conditions. This provision protects the Commonwealth’s financial interests and assists in the proper conduct of the proceedings.

Section 101 – Conditions that must not be placed on approval—criminal proceedings

Section 101 provides that a decision-maker cannot require the eligible person to agree to the responsible entity controlling the conduct of the defence, where assistance is granted for costs or a penalty in a criminal proceeding. This provision supports the proper administration of justice by balancing the preservation of an employee’s autonomy in the conduct of a defence in relation to criminal proceedings and protecting the Commonwealth’s general interests. This provision reflects clause 8A in Appendix E of the 2017 Directions. The Note clarifies that even where a decision-maker cannot impose a condition to control the conduct of the defence in criminal proceedings, they must still comply with and have regard to the other requirements under Part 9, for example subsections 95(1), 98(2) and 99(1).

Section 102 – Consultation with OLSC in sensitive cases

Section 102 provides that a decision-maker must consult with OLSC before deciding whether to grant an approval where they consider the request raises sensitive matters. A request may raise sensitivities that are legal, political, or policy, or some combination, in nature. This provision reflects clause 24 in Appendix E of the 2017 Directions. The requirement to consult enables OLSC to have appropriate oversight and visibility of these requests, and to support whole of Commonwealth consistency to requests for approval in certain circumstances. This obligation is distinct from the obligation to report significant legal issues set out in Part 4 of the 2025 Directions.

Section 103 – Seeking exemption from requirements of this Part —exceptional circumstances

Section 103 provides that where the decision-maker considers the request raises exceptional circumstances that would justify a departure from the requirements of Part 9, the matter must be referred to OLSC. This provision reflects clause 25 in Appendix E of the 2017 Directions. The Note clarifies that the Attorney-General permitting a departure from the normal policy and rules set out in Part 9 would, in practice, be an exemption under section 8 of the 2025 Directions. This provision recognises that there will be occasions where the nature of a matter may warrant alternative handling and supports oversight and consistency in handling exceptional circumstances.

Division 7—Obligations where assistance has been approved

Section 104 – Entity must monitor costs on an ongoing basis

Section 104 provides that where assistance is granted, the responsible entity must monitor the conduct of the matter to ensure the costs, and the entity’s ultimate exposure to liability, are within reasonable limits. The Note outlines that legal advice may assist to determine whether a particular payment is reasonable and may be consistent with an accountable authority’s duties under section 15 of the PGPA Act. This provision draws on clause 12 in Appendix E of the 2017 Directions. This provision reflects the general expectation that Commonwealth resources are used efficiently and effectively.

Section 105 – Refusing to pay assistance where condition not followed

Section 105 provides that if conditions on an approval are not complied with, the person administering the relevant arrangement with the employee must consider whether to refuse further payments under the approval. This provision generally reflects clause 10 in Appendix E of the 2017 Directions. This provision protects the Commonwealth’s legal and financial interests.

Section 106 – Ensuring that counsel are engaged in accordance with Part 7

Section 106 provides that the responsible entity must use its best endeavours to ensure that counsel for the eligible person is engaged in accordance with Part 7 (engagement of counsel). This reflects aspects of clause 23 in Appendix E of the 2017 Directions. In tandem with subsections 95(2) and 99(4), the requirement ensures consistency in the engagement of counsel at appropriate daily rates.

Section 107 – Compliance with model litigant obligation 

Section 107 provides that the responsible entity must use its best endeavours to ensure that a claim approved for the costs of legal representation and at least one other type of costs is handled in accordance with the model litigant obligation (see Division 2 of Part 5). This draws on clause 23 in Appendix E of the 2017 Directions which states that the model litigant obligation applies where the employing body provides a full indemnity. This obligation reflects the expectation that where the Commonwealth agrees to pay for more than just legal representation, the claim or litigation should be handled consistent with the standards of all Commonwealth legal work.

Part 10—Entity Responsibility

This part sets out the obligations on accountable authorities of NCCEs and CCEs to comply with the 2025 Directions and related matters. In part, the obligations in this part reflect the obligations imposed on accountable authorities by the PGPA Act and emphasise the general requirement that Commonwealth resources be used efficiently and effectively.

Division 1—Responsibilities of accountable authorities

Subdivision 1 – Preliminary

Section 108 – Simplified outline—who must comply with this Division?

Section 108 sets out the entities that this division applies to. This supports clarity in application and compliance with obligations under this division.

Subdivision 2—Responsibilities of entities and their accountable authorities

Section 109 – Responsibilities of accountable authority—compliance with directions and related matters

Section 109 sets out the obligations imposed on accountable authority of an NCCE or an entity prescribed in paragraph 7(1)(a) of the 2025 Directions. The obligations largely replicate those in paragraphs 11 and 12 of the 2017 Directions.

Paragraph 109(1)(a) imposes an obligation that an entity’s arrangements for legal services, especially any litigation for which the entity is responsible for, are handled efficiently and effectively. Paragraph 109(1)(b) imposes an obligation that accountable authorities put in place appropriate management strategies and practices to ensure their entity complies with the 2025 Directions. These provisions ensure that entities have appropriate arrangements to handle litigation efficiently and effectively and to achieve compliance.

Paragraphs 109(1)(c)-(e) require accountable authorities to take responsibility for the proper recording and reporting of entities’ legal services expenditure. Note 1 to the provision clarifies that the legal services expenditure to be reported captures internal and external legal expenditure, including on government legal services providers, such as AGS and OIL, and counsel. Proper recording enhances the ability of accountable authorities to engage in appropriate decision-making about legal resources and making records about expenditure publicly available enhances transparency and accountability.

Paragraph 109(1)(f) ensures external legal services providers and counsel are made aware of their obligations under the 2025 Directions and their role in supporting entity compliance.

Paragraph 109(1)(g) makes clear that an entity must promptly report any possible or apparent breach of the 2025 Directions and the corrective steps, whether proposed or already undertaken, to the Attorney-General or OLSC. This emphasises the importance that the Commonwealth places on compliance with the 2025 Directions, and on the need for the Attorney-General to be aware of instances where there has been alleged or actual non-compliance by entities or their legal services providers.

Paragraph 109(1)(h) requires the entity to report to OLSC about the entity’s legal services and expenditure, using a specified template, at the end of each financial year. This provision supports the accurate analysis of Commonwealth legal services expenditure.

Paragraphs 109(1)(i) and 109(1)(j) ensure matters for approval by the Attorney-General and matters which are required to be reported to OLSC are raised promptly. These provisions support the efficient and effective conduct of Commonwealth legal work, and support the Attorney-General, in their role as First Law Officer, to have oversight of Commonwealth legal work.

Note 2 directs entities and legal services providers to the Protective Security Policy Framework. The Note enhances the awareness of entities and legal services providers of the requirements for the handling of classified material and encourages entities to include obligations on providers in legal services contracts to comply with those requirements.

Subsections 109(2) and 109(3) impose an obligation on accountable authorities to certify, on an annual basis, that their entity (and their legal service providers) have complied with the 2025 Directions and, where non-compliance is assessed, to give details of any action taken to address the causes of the non-compliance. This builds on paragraphs 11.1 and 11.2 of the 2017 Directions. While paragraph 109(1)(g) requires entities to report as soon as practicable about any alleged or apparently non-compliance with the 2025 Directions, if an entity identifies any apparent or possible non-compliance that was not previously reported to OLSC during the financial year, it should report it in the annual reporting process. Paragraph 109(3)(c) also requires entities to report on their use of any persons appointed under section 63 of the Judiciary Act to receive service in proceedings to which the Commonwealth is a party. The annual reporting obligations promote entity oversight and monitoring of compliance reporting and reporting on legal expenditure.

Section 110 – Responsibilities of accountable authority—pro bono work by legal services providers

Section 110 provides that accountable authorities must ensure that when procuring legal services providers, the entity does not adversely discriminate, subject to an actual conflict of interest arising, against legal services providers that have acted, or may act, pro bono for clients in legal proceedings against the Commonwealth or its entities. This provision replicates paragraphs 11.3-11.5 of the 2017 Directions.

Section 111 – Third parties

Section 111 provides that where possible, third parties who enter into relationships with the Commonwealth are bound by the 2025 Directions when exercising a right of subrogation. This replicates paragraph 11A of the 2017 Directions. This provision addresses the situation in which third parties are entering into litigation in circumstances in which there may be a perception (or a reality) that they represent the Commonwealth. To the extent that the legal, financial or reputational interests of the Commonwealth are at stake, it is desirable to bind such third parties to act as a model litigant and to consult the Commonwealth on tied work (e.g. constitutional) issues and requests for advice on the interpretation of Commonwealth legislation.

Subdivision 3—Accountable authorities of certain corporate Commonwealth entities

Section 112 – Responsibilities of accountable authority of certain corporate Commonwealth entities

Section 112 provides for the application of certain obligations under the 2025 Directions to certain CCEs. This provision replicates subparagraph 12.3(f) of the 2017 Directions. The obligations, while modified to reflect the different character of the bodies to which they apply, are designed to protect the legal, financial and reputational interests that underpin the 2025 Directions. Requiring CCEs to report their legal services expenditure enables OLSC to have more comprehensive information about legal services purchasing for whole of government.

Division 2—Addressing non-compliance with these Directions

Section 113 – Simplified outline—who must comply with this Division?

Section 113 sets out the entities that this division applies to. This supports clarity in application and compliance with obligations under this division.

Section 114 – Contractual provisions regarding penalties for non-compliance with these Directions

Section 114 provides that Commonwealth agencies must ensure that contracts entered for legal services provides for the imposition of appropriate penalties for breach of the 2025 Directions to which the legal services provider has contributed. An example can be found in the Head Agreement under the Whole of Australian Government Legal Services Panel that existed in 2025 which provides for termination of a legal services provider that acts in a manner that results in or contributes to non-compliance with any applicable requirement relating to the 2025 Directions. The Note clarifies the entities captured by this provision. This provision replicates paragraph 14.2 of the 2017 Directions. This provision reflects the Attorney-General’s intent in issuing directions to support sound practice in the provision of legal services to the Commonwealth and to manage, in a whole-of-government manner, legal, financial and reputational risks to the Commonwealth’s interests.

Section 115 – Issuing instructions in relation to non-compliance 

Section 115 provides that where a person or body has not complied with the 2025 Directions, they must comply with any instruction given by the Attorney-General in relation to that non-compliance. This provision draws on paragraph 14.1 of the 2017 Directions. This provision reflects the Attorney‑General’s role as First Law Officer and their powers under the Judiciary Act to issue directions on Commonwealth legal work and enforce compliance.

Part 11—Obligations of persons appointed under section 63 of the Judiciary Act

Section 116 – Obligations of persons appointed under section 63 of the Act to receive service

Subsection 116(1) imposes an obligation on persons appointed under section 63 of the Judiciary Act to receive service on behalf of the Commonwealth. This provision replicates paragraph 12A of the 2017 Directions. Subsection 116(1) imposes an obligation on a person or body appointed by the Attorney-General under section 63 to accept service, and to report to the agency on whose behalf service has been accepted about the receipt of the service using a template approved by OLSC. The use of a standard Notice ensures that agencies are aware that, although a particular provider has accepted service, agencies are free (subject to the tied work rules in the 2025 Directions) to instruct the legal services provider of their choice to have carriage of the matter. Subsection 116(2) imposes an obligation on the person or body accepting service to report to OLSC where it is unclear which agency the person must report to. The Note clarifies these arrangements apply where the Commonwealth is a party to a suit. This provision supports the efficient and effective delivery of Commonwealth legal work.

Part 12—Application, transitional and savings provisions

Part 12 provides for a seamless transition between the 2017 Directions and the 2025 Directions.

Section 117 – Decisions and instruments made before commencement

Section 117 provides that a decision or instrument that was in force under a provision of the 2017 Directions will be treated as if it were a decision or instrument made under the equivalent provision of the 2025 Directions.

A wide range of decisions were made under the 2017 Directions. Subsection 117(2) provides examples of types of decisions such as:

• granting exemptions
• giving an agreement, approval or permission and any conditions upon it, and
• giving an instruction or issuing guidelines.

Section 117 preserves the validity of all such decisions or instruments, consistent with maintaining existing arrangements for the management of Commonwealth legal services.

Section 118 – Processes begun before commencement

Section 118 provides that a process that began under a provision of the 2017 Directions that was not completed when the 2017 Directions were repealed is to be treated as if it had begun under the equivalent provision of the 2025 Directions.

The Note provides examples of processes covered by the provision. This provides certainty to entities that processes undertaken in compliance with the 2017 Directions and completed after the commencement of the 2025 Directions, will also satisfy the relevant provision of the 2025 Directions.

Section 119 – Obligations incurred before commencement

Section 119 provides that any obligation incurred under a provision of the 2017 Directions continues under the corresponding provision of the 2025 Directions. The Note provides examples of obligations covered by the provision.

Section 120 – Financial years

Section 120 ensures that any reference to a financial year is understood to be a reference to a financial year that ends after commencement.

Section 121 – Non-compliance with the Legal Services Directions 2017 

Section 121 ensures that the Attorney-General may, with appropriate modifications, continue to address any non-compliance with the 2017 Directions after those Directions are repealed.

Section 122 – References to the Legal Services Directions 2005 or the Legal Services Directions 2017

Section 122 provides that where an instrument or document refers to the Legal Services Directions 2005 or the 2017 Directions prior to the commencement of the 2025 Directions, the reference will be read after the commencement of the 2025 Directions as a reference to the 2025 Directions. Section 122 ensures continuity and removes doubt about the validity of any instrument or document that references earlier versions of the Directions.

Schedule 1 – Summary of application of these Directions

Schedule 1 provides a summary of the application of each provision of the 2025 Directions. The Schedule works in tandem with the application provision in section 7 and simplified outlines at the start of each Part or Division (as applicable) to support clarity in the application of provisions. The Note clarifies the application of some items in the table and specifies that in the case of any inconsistency between the Schedule and the direction mentioned in column 2 of the table, the direction prevails.

Schedule 2 – Repeals

Schedule 2 specifies that the whole of the Legal Services Directions 2017 is repealed by this instrument.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Legal Services Directions 2025

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legal Services Directions 2025

The Attorney-General has the power under section 55ZF of the Judiciary Act 1903 to issue a set of binding rules (Legal Services Directions) about Commonwealth legal work. The Legal Services Directions:

• were initially issued in 1999 and are administered by the Attorney-General through the Office of Legal Services Coordination in the Attorney-General's Department
• set out the requirements for sound practice in the performance of Commonwealth legal work
• are an important mechanism to manage, in a whole‑of‑government manner, legal, financial and reputational risks to the Commonwealth’s interests, and
• give agencies the discretion to manage their particular risks, which agencies are in the best position to judge, while providing a framework of good practice.

Legal Services Directions were last issued by the Attorney-General in 2018 as an amendment to the Legal Services Directions 2017 (2017 Directions). The Legal Services Directions 2025 (2025 Directions), repeal and replace the 2017 Directions. The 2025 Directions implement recommendation 19.7 of the Royal Commission into the Robodebt Scheme which called for the 2017 Directions to be reviewed and simplified.

Human rights implications

This legislative instrument engages the following rights:

• protection against discrimination as engaged by Article 26 of the International Covenant on Civil and Political Rights (ICCPR)
• the rights of persons with disabilities to work on an equal basis with others as engaged by Article 27 of the Convention on the Rights of Persons with Disabilities (CRPD)
• protection against racial discrimination in all its forms, including just and favourable conditions of work and equal pay for equal work as engaged by Article 5 of the International Convention on the Elimination of all Forms of Racial Discrimination (CERD)
• the right to fair wages and equal remuneration for work of equal value as engaged by Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and
• the freedom from discrimination in employment as engaged by Article 11 of the Convention on the Elimination of All forms of Discrimination against Women (CEDAW).

Part 7 of the 2025 Directions seeks to bring about cultural change within the legal profession’s briefing practices by encouraging genuine consideration of more diverse counsel including women, gender-diverse counsel, counsel who identify as First Nations, counsel who identify as culturally and linguistically diverse, and counsel who identify as a person with a disability. The specific provisions in Part 7 that promote the rights recognised or declared in the listed international instruments are as follows:

• Article 26 of the ICCPR provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination of any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. These rights are promoted through the Commonwealth policy on selecting and engaging counsel as set out in section 69 of the 2025 Directions.
• Article 27 of the CRPD provides for steps to be taken to promote employment opportunities for people with disabilities and protect their rights, on an equal basis with others, to equal opportunities and equal remuneration for work of equal value. These rights are promoted through the Commonwealth policy set out in section 69 and the directions about the selection of counsel (see subparagraph 74(1)(c)(ii)).
• Article 5 of the CERD highlights the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, including the rights to just and favourable conditions of work and to equal pay for equal work. These rights are promoted through the Commonwealth policy on the selection and engagement of counsel as set out in section 69 of the 2025 Directions and the directions about the selection of counsel at section 74.
• Article 7 of ICESCR includes providing all workers, as a minimum, with fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work. Article 11 of the CEDAW provides for measures that eliminate discrimination against women in the field of employment to ensure, on a basis of equality of men and women, the same rights, including the right to equal remuneration and equal treatment in respect of work of equal value. These rights are promoted through the direction about selecting women counsel (see paragraph 74(2)(d)) which promotes the selection of women counsel of suitable seniority, expertise and experience by setting a target for the volume and value of briefs to women counsel. The targets specified in paragraph 74(2)(d)) are reasonable to promote equitable briefing. The target is sufficiently precise to ensure that it addresses only those matters that it is intended to capture.

Conclusion

This legislative instrument is compatible with human rights because it promotes equality when selecting and engaging counsel and aligns with Australia’s human rights treaty obligations.