Legal Services Directions and guidance notes

The key topics covered in this guidance note are:

• what is a Commonwealth Prosecuting Authority
• application of the Directions to criminal prosecutions and related proceedings
• information about when criminal proceedings may be considered a significant issue and actions which may constitute a settlement
• what is considered a ‘related proceeding’.

Guidance Note 1 - Application of the Legal Services Directions in criminal proceedings

The key topics covered in this guidance note are:

• what is tied legal work (including the different categories of tied work)
• how to manage legal work that is tied
• the process for obtaining approval for a non-tied provider to conduct tied work.

Guidance Note 2 – Tied areas of Commonwealth legal work

The key topics covered in this guidance note are:

• the purpose of the obligations to consult and share legal advice
• information about how entities can meet their obligations to consult and share legal advice, including sharing advice that may be significant and maintaining legal professional privilege (LPP)
• information about exceptions to the requirements to consult and share legal advice
• what to do when there is a disagreement about the interpretation of legislation.

This guidance note responds to recommendation 19.10 of the Royal Commission into the Robodebt Scheme.

Guidance Note 3 – Sharing advice within Government

The key topics covered in this guidance note are:

• entities’ obligation to share requests for legal advice on a constitutional law issue with the Attorney General’s Department (AGD)
• the Australian Government Solicitor’s (AGS) obligation to share copies of any final advice to entities on a constitutional law issue with AGD
• circumstances where the Solicitor-General should be consulted on a request for advice.

Guidance Note 4 – Advice on constitutional law matters

The key topics covered in this guidance note are:

• the purpose and operation of the significant issues reporting obligation
• identifying significant issues (including the types of issues that may be significant)
• the process for reporting a significant issue.

Guidance Note 5 – Reporting on significant issues

The key topics covered in this guidance note are:

• what is a settlement
• when settlement approval is required for a significant issue, and
• the process for obtaining settlement approval.

Guidance Note 6 – Settling significant issues

This guidance note applies to all Commonwealth entities involved in proceedings before the ART. The key topics covered in this guidance note are:

• the obligation for Commonwealth entities to assist the ART
• additional actions that entities can take in tribunal proceedings to ensure the review process runs efficiently
• how decision-makers participate in proceedings through the election notice framework and the obligations on a non-participating party under the Administrative Review Tribunal Act 2024.

Guidance Note 7 – Obligation to assist the Administrative Review Tribunal (ART)

The key topics covered in this guidance note are:

• the obligations to consider alternative dispute resolution (ADR)
• the benefits of using ADR and considerations when commencing this process
• types of ADR processes
• choosing an ADR practitioner.

Guidance Note 8 – Use of alternative dispute resolution by Commonwealth entities

The key topics covered in this guidance note are:

• what the caretaker conventions are and what they mean for Commonwealth agencies
• the use of alternative dispute resolution during the caretaker period
• guidance on engaging in litigation during the caretaker period.

Guidance Note 9 – Dispute resolution during caretaker period

This guidance note sets out the principles for Commonwealth entities when responding to civil claims involving institutional child sexual abuse.  The key topics covered in this guidance note are:

• the purpose of the guiding principles
• principles about the handling of claims
• principles about the management and resolution of any claim (litigated or non-litigated).

Guidance Note 10 – Guiding Principles for Commonwealth entities responding to civil claims involving allegations of institutional child sexual abuse

The key topics covered in this guidance note are:

• when a Commonwealth entity should seek to recover costs in court proceedings
• seeking costs for the use of in-house lawyers
• seeking costs for the Solicitor-General’s time.

Guidance Note 11 – Recovery of costs in court proceedings

The key topics covered in this guidance note are:

• the obligation for corporate Commonwealth entities (other than a government business enterprise) to inform the Attorney-General or OLSC of litigation giving rise to constitutional issues
• what happens when the Attorney-General decides whether to intervene in a constitutional proceeding
• costs for intervention or non-intervention.

Guidance Note 12 – Principles of constitutional litigation involving corporate Commonwealth entities

The key topics covered in this guidance note are:

• the purpose and operation of sections 52 and 53 of the Legal Services Directions
• the state and territory bodies that are captured by sections 52 and 53 of the Legal Services Directions
• the process for engaging with OLSC on sections 52 and 53 of the Legal Services Directions.

Guidance Note 13 – Jurisdiction of State and Territory bodies

The key topics covered in this guidance note are:

• what is a monetary claim for the purpose of Part 6 of the Directions
• when entities are required to seek legal advice to support a decision to settle a monetary claim
• factors to be considered when deciding whether to settle a monetary claim.

Guidance Note 14 – Settling monetary claims

The key topics covered in this guidance note are:

• selection of counsel and briefing requirements
• negotiating a daily rate with counsel
• the process to obtain approval of a daily rate over the daily rate thresholds.

Guidance Note 15 – Engagement of counsel

This guidance note is to be read together with the Head Agreement for the Whole of Australian Government Legal Services Panel and its pro bono requirements.

The key topics covered in this guidance note are:

• the obligation to consider pro-bono performance when selecting a panel or non-panel provider for external legal services,
• information and guidance to assist entities to consider pro-bono performance when selecting a panel or non-panel provider.

Guidance Note 16 – Considering pro-bono work when engaging external legal services 

The key topics covered in this guidance note are: 

• the purpose of the rules when providing financial assistance to eligible persons
• who are eligible persons and the types of requests covered by Part 9 of the Legal Services Directions
• the appropriate decision-maker for requests and decision-making considerations
• the scope of assistance that can be provided, including conditions.

Guidance Note 17 – Assistance to eligible Commonwealth employees and officials in legal proceedings etc

The key topics covered in this guidance note are:

• the role of the OLSC in administering and monitoring compliance with the Legal Services Directions
• the responsibilities of entities in monitoring and reporting on compliance
• the responsibilities of legal services providers in ensuring compliance.

Guidance Note 18 – Compliance with the Legal Services Directions 2025

This guidance note provides information about service of documents when the Commonwealth is named as a party in court proceedings, including:

• what it means to receive service on behalf of the Commonwealth
• consequences of receiving service on behalf of the Commonwealth
• how a law firm or individual can be appointed to receive service
• reporting requirements under the Legal Services Directions.

Guidance Note 19 – Receiving service of documents on behalf of the Commonwealth (section 63 of the Judiciary Act 1903 (Cth))

The key topics covered in this guidance note are:

• requests to brief the Solicitor-General to appear in court matters
• requests to brief the Solicitor-General to seek their opinion on a question of law
• the process for seeking approval to share an opinion of the Solicitor-General.

Guidance Note 20 – Briefing the Solicitor-General