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

Compliance and enforcement strategy

OLSC is responsible for monitoring compliance with, and enforcement of, the Legal Services Directions. Since the Office was first established in 1997, there have been a number of requests for assistance, complaints and queries.  In light of this experience we have developed a Compliance Strategy for Enforcement of the Legal Services Directions.  The strategy has three aspects education, prevention and enforcement.

 

Compliance Strategy for Enforcement of the Legal Services Directions

  1. The Attorney-General has issued Legal Services Directions under section 55ZF of the Judiciary Act 1903 which set out requirements for the way in which the Commonwealth and its agencies conduct their legal affairs.
  2. The Directions are made as a statutory instrument and have the force of law. They are therefore more than mere policy or guidelines. Failure to comply results in an agency and those public sector employees responsible being in breach of the law.
  3. The Directions help managers to implement, manage and benefit from reforms to the Commonwealth legal services market and ensure that these reforms do not come at the expense of the public interest or without regard to the responsibilities of the Attorney-General as the Government’s First Law Officer.
  4. To a large extent the Directions clarify and formalise practices and policies that have been in place for many years. The Directions consolidate all the relevant policies and practices into a single statement.
  5. The Directions apply in different ways to 2 categories of agencies. They are principally directed at Commonwealth agencies falling within the scope of the Financial Management and Accountability Act 1997 (the FMA Act) but they also apply to a lesser extent to agencies other than GBEs covered by the Commonwealth Authorities and Companies Act 1997 (the CAC Act).
  6. The Office of Legal Services Coordination in the Australian Government Attorney-General's Department (OLSC) is responsible for the administration and enforcement of the Directions. The Office’s strategy in carrying out these functions has three main elements: education, prevention and enforcement.


    Education

  7. The key to compliance with the Directions is ensuring that agencies and their advisers are familiar with the Directions and understand their requirements. OLSC places a high priority on providing information and assistance to agencies and legal services providers to ensure that their employees appreciate the scope and content of the Directions.
  8. In this regard officers of OLSC welcome the opportunity to speak at functions, in-house training sessions, CLE training sessions and other information sessions to provide an overview of the Directions and to provide the opportunity for those who work with the Directions to ask questions.
  9. OLSC also maintains a website of information about the Directions and other material to assist agencies and their advisers on issues that can arise in Commonwealth legal work. The website, www.ag.gov.au/olsc, is also linked to speeches by OLSC officers on the Directions, and, via the Australian Law Online website, to speeches by the Attorney-General. OLSC is happy for this material to be reproduced by any means for further dissemination among agencies and among legal advisers. OLSC will provide hard copies of the Directions on request.


    Prevention

  10. OLSC can assist agencies and their legal advisers where they may be uncertain as to the effect of the Directions on proposed courses of action, in order to prevent possible breaches. This assistance is available at both a general and a more specific level and can range from assistance in purchasing legal services generally to answering queries about the application of the Directions in specific cases.
  11. While the Office cannot recommend particular legal services providers, the Office can provide advice to assist agencies in developing requests for tender for legal services and draft contracts to ensure that their contractual arrangements will facilitate compliance with the Directions. Draft clauses for tenders and contracts that ensure an agency provides tied work to government lawyers in accordance with paragraph 2 and Appendix A of the Directions are at www.ag.gov.au/olsc.
  12. OLSC also monitors advertisements for legal services to the Commonwealth and requests for tender to determine whether they take sufficient account of the Directions. Where OLSC becomes aware that an agency is seeking legal services in a way that could lead the agency to breach the Directions, or in a way that fails to ensure that legal services providers abide by the Directions, OLSC will take the matter up with the agency in question.
  13. OLSC may, from time to time, seek information from agencies in order to monitor compliance with the Legal Services Directions.
  14. OLSC is also happy to assist agencies and their legal advisers in any day to day queries they may have about the effect of the Directions in relation to a particular matter. In this way agencies and their advisers may avoid breaching the Directions. For example, OLSC is happy to assist agencies with queries about how the Direction on the Settlement of Monetary Claims may operate in a particular case and in particular how the requirement that there be a meaningful prospect of liability may be met.


    Remedying Breaches

  15. In taking remedial action, OLSC’s primary focus is on ensuring that the Commonwealth meets the high standards required of it under the Directions. In addition, any remedial action should, as far as possible, include steps that can assist in ensuring that future, similar breaches do not occur.
  16. In addition to the obligation to report breaches that are not remedied under paragraph 11 of the Legal Services Directions, OLSC encourages legal services providers and agencies to self-report their own breaches of the Directions so that OLSC can assist those advisers and agencies to avoid further breaches.
  17. OLSC investigates the complaints it receives about the conduct of the Commonwealth in its legal affairs. These complaints come to OLSC through representations from members of Parliament to the Attorney-General, legal advisers acting against the Commonwealth and members of the public. OLSC also monitors media coverage and reported cases for any concerns expressed as to Commonwealth conduct.
  18. Where OLSC or the Attorney-General receives a complaint about the Commonwealth’s conduct in its legal affairs, a report will usually be sought in the first instance from the agency concerned. In preparing that report agencies should discuss the complaint with their legal advisers, where the agency is represented in the matter, and seek information and advice on the matters raised in the complaint from those advisers. At the very least, an agency’s legal advisers should be given an opportunity to accept or comment upon matters raised in any report prepared by the agency, to the extent that the report refers to conduct by those advisers. In this regard section 55ZH of the Judiciary Act prevents disclosure of information to the Attorney-General or to OLSC in these circumstances constituting a breach of confidence or waiver or loss of legal privilege.
  19. In the event of a breach, in many cases there is a readily identifiable and appropriate remedy available to OLSC and the agency concerned. Where, for example, an agency gives tied work to a private legal services provider, OLSC will normally require that the work be handed over to a government legal services provider or that a government legal services provider will be consulted on the work that has been undertaken to date.
  20. In other cases there may not be an immediate or obvious remedy. Where, for example, counsel have been retained at a rate in excess of the rates determined under the Directions, it may not be possible or appropriate to renegotiate a new fee with the counsel concerned where the work has already been done. In these cases, however, OLSC will generally require that the counsel concerned be advised that they have been briefed at an excessive rate.
  21. If, however, an agency has repeatedly breached the Directions or has breached the Directions in a particularly significant or irresponsible way, further action may be taken.
  22. Under paragraph 55ZF(1)(b) of the Directions, the Attorney-General is able to issue directions that apply to Commonwealth legal work in relation to a particular matter. In the case of extreme or repeated breaches of the Directions it would be open to the Attorney-General to issue a Direction directed to the use of particular advisers or requiring the agency to change its legal advisers in a particular matter. The Attorney-General may also wish to raise serious breaches of the Directions with the Minister responsible for the agency in relation to which the legal work is being performed. Further, the Attorney-General is able to take action under section 55ZG(2) to enforce the Legal Services Directions.


    Contacting OLSC

  23. The Office welcomes comments and suggestions on this strategy and more generally on the Directions themselves.
  24. We can be contacted on:

Mail: Assistant Secretary
Office of Legal Services Coordination
Australian Government
Attorney-General's Department
Robert Garran Offices
National Circuit
BARTON ACT 2600

Phone:(61-2) 6250-6611
Facsimile:(61-2) 6250-5968
Email:olsc@ag.gov.au