Legal Services Directions
7
and Accountability Act. The presence of this note reflects the importance of
agencies’ awareness of the range of constraints and accountabilities imposed on
conduct relating to claims and litigation concerning the Commonwealth.
Three new subparagraphs are included in these Directions. Paragraph 4.6A has been
added to clarify the relationship between paragraph 4 and paragraph 3.1 (f).
Paragraph 4.7 has been added to require written legal advice before the
commencement of court proceedings by a Financial Management and Accountability
Act agency. This provision reflects the importance of the Commonwealth not
commencing court action without a sound basis for doing so, and provides
transparency and accountability of decision-making. New paragraph 4.8 makes
explicit the power to make guidelines about the allocation of responsibility for
litigation. These guidelines can be found at www.ag.gov.au/olsc.
Paragraph 5 (Use of in-house lawyers for court litigation)
This provision restricts the use by agencies of in-house lawyers as solicitor on the
record or as counsel. This restriction is a measure which provides an assurance, first,
that independent legal advice is being obtained by agencies. Second, by requiring (in
effect) the use of specialist litigators, the provision is aimed at maintaining a high
level of quality litigation assistance. However, if an agency demonstrates that its
in-house lawyers are able to provide assistance of the requisite independence and
quality, the Attorney-General may grant an exemption from this provision.
Exemptions have been granted in the past, where the relevant criteria were fulfilled.
No change has been made to this provision.
Paragraph 6 (Engagement of counsel)
This provision imposes requirements on engagement of counsel, by reference to
Appendix D to the Directions. The purpose of this provision 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.
No substantive change has been made to this provision. However, a new note has
been included to refer to paragraph 12 as the source of rules in relation to non-
Financial Management and Accountability Act agencies.
Paragraph 7 (Public interest immunity)
This provision imposes requirements about the handling of possible public interest
immunity claims. It is intended to ensure that claims in relation to particular
documents are dealt with in a consultative way between the agency making the claim
and the agency with administrative responsibility for the ground on which the
immunity is claimed. The provision also provides a mechanism for resolving disputes
about claims of public interest immunity. This reflects the importance placed by the
Commonwealth on a whole of government approach to litigation, and on the making
of public interest immunity claims, in particular.
No substantive change has been made to this provision. However, the language of the
provision has been clarified and a new note has been included to refer to paragraph 12