Australian Government: Attorney-General's Department
Australian Government: Attorney-General's DepartmentAchieving a Just and Secure Society

Whats New

Commonwealth Counsel Fee Application Form

The revised application form for a Commonwealth rate or rate increase for counsel is now available.  New fields have been added to assist with decision making processes.  Guidance material is currently being prepared.

Constitutional law advice

The Attorney-General has approved an amendment to the Legal Services Directions 2005 effective from Monday, 3 November 2008. The new arrangements are designed to ensure that the Department and the Attorney General are fully informed of any current or emerging constitutional issues and able to ensure a consistent approach to constitutional advice and policy across Government.

New paragraph 10A of the Directions requires FMA agencies to provide a copy of a request for legal advice on a constitutional law issue to the Secretary of the Attorney-General's Department. It also requires the Australian Government Solicitor to give a copy of any final advice it gives on a constitutional law issue to the Attorney-General's Department and to the Solicitor-General.

Guidance material on the practical operation of the amendment to the Directions, including information about where to send copies of requests is also attached.

Common form tender package

The Commonwealth Attorney-General, the Hon Robert McClelland MP, has announced the release of a common form tender package for mandatory use by all Commonwealth agencies. The package will streamline the process for purchasing legal services. It will also require agencies to take into account the pro bono work undertaken, and proposed to be undertaken, by tendering firms.
 
A new Appendix F to the Legal Services Directions 2005 mandates the use of the tender package by Commonwealth agencies.

The common form tender documents include a template Request for Tender and a standard Deed of Standing Offer.

Guidance is also available on both the Request for Tender and the Deed of Standing Offer.

The Deed of Standing Offer requires legal services providers to report to OLSC in relation to the pro bono work that they aspire to do, and that they have done, within 30 days after the end of each financial year in a standard pro bono reporting template approved by OLSC.

A draft reporting template has been issued by OLSC to coincide with the release of the package. OLSC invites comments from legal services providers on the draft reporting template. It is intended that the template will be finalised by the end of December, and so OLSC requests any comments be provided by 28 November 2008.

OLSC Seminar Program re-launch

The OLSC Seminar Program was successfully re-launched on Friday, 1 August 2008 at Old Parliament House. 
 
The topic of the seminar was 'Recent & Future Reforms', with a particular focus on alternative dispute resolution. Guest presenters included Tom Howe (QC) of the Australian Government Solicitor & member of the National Alternative Dispute Resolution Advisory Council, Julie Coates and Nick Westerink of the Australian Taxation Office, and Janean Richards of Comcare. Further information about the presentations can be obtained by contacting OLSC.
 
Attendees at the seminar showed particular interest in the interpretation of 'meaningful prospect of liability' (see paragraph 2 of Appendix C of the Legal Services Directions 2005). OLSC took the opportunity to express general agreement with comments previously made by Tom Howe (QC) to the effect that a meaningful prospect of liability could exist, depending on the circumstances of the case, where there is a 10-20% chance of a court finding favour of a claimant. If agencies and/or their legal representatives have any concerns or doubts about the application of this principle in relation to specific monetary claims we encourage them to contact OLSC to discuss.

OLSC also announced its proposal to establish a number of working groups including one to work on categorisation of legal services expenditure. Expressions of interest in participating in the working group are being considered. We expect that the working group will have its first meeting later in the year.  

Reform of Commonwealth legal services purchasing

The Commonwealth Attorney-General, the Hon Robert McClelland MP, announced on 1 July 2008 the roll-out of the first stage of reforms to the Commonwealth’s legal services purchasing arrangements to commence 1 July 2008.

The first package of reforms will amend the Legal Services Directions 2005 to:

  • mandate the manner in which agencies are to report their legal services expenditure and provide a template for use by agencies
  • ensure legal services providers that perform pro bono work against the Commonwealth are not discriminated against by a Commonwealth agency procuring legal services
  • enable lawyers employed by private law firms that provide legal services to the Commonwealth to be appointed under section 63 of the Judiciary Act 1903
  • require all persons accepting service under section 63 of the Judiciary Act to provide a standard Notice to Commonwealth agencies when seeking instructions
  • impose an obligation on Chief Executives of Commonwealth agencies to report annually about acceptance of service pursuant to the Judiciary Act, and
  • strongly encourage agencies and legal services providers to consider, and use where appropriate, methods to resolve claims without recourse to litigation.

The Office of Legal Services Coordination has issued Guidance Notes to accompany the amendments to the Directions. In this process, OLSC has reviewed and reissued some existing Guidance Notes.