Guidance Note 1 – Application of the Directions in criminal proceedings

What is the purpose of section 9?

1. Section 9 of the Legal Services Directions 2025 (Directions) clarifies when the Directions will apply to an entity when carrying out Commonwealth legal work that involves a criminal prosecution or related proceeding.

2. Section 9 aims to balance the Attorney-General’s role in the administration of justice, with the independence of prosecuting authorities, including that the conduct of criminal prosecutions by Commonwealth authorities should not be subject to direction or influence by the Executive Government. In doing so, it complements section 10 of the Directions, which provides that the Directions are not intended to override any legislative requirement or authority concerning a Commonwealth agency’s functions (in particular, the role of the Director of Public Prosecutions (Cth)).

What is a Commonwealth Prosecuting Authority?

3. A Commonwealth Prosecuting Authority includes the Commonwealth Director of Public Prosecutions and Commonwealth entities responsible for conducting a prosecution or related proceeding. This may include an entity instructing a legal services provider to carry out legal work on its behalf.

• Note: a Commonwealth Prosecuting Authority is not a Commonwealth entity who is responsible for investigating offences and referring the matter to the Commonwealth Prosecuting Authority.

4. The Directions apply to a Commonwealth Prosecuting Authority when undertaking any legal work that does not involve instituting and carrying on criminal proceedings or related proceedings. This includes claims brought against a prosecution authority or its officers, including negligence, malicious prosecution or misfeasance in public office.

5. The Directions do not apply to Commonwealth legal work carried out by a Commonwealth Prosecuting Authority that involves instituting and carrying on criminal prosecutions and related proceedings.

• Note: Commonwealth Prosecuting Authorities should engage with the Australian Government Solicitor and the Attorney-General’s Department when making submissions on behalf of the Commonwealth on areas of tied work. This includes constitutional law issues and international law issues¹. The Commonwealth Prosecuting Authority is responsible for any legal costs associated with this consultation.

Application of the Directions when the Commonwealth is defending criminal prosecutions and related proceedings

6. The Directions apply to an entity when undertaking Commonwealth legal work in response to or when defending criminal prosecutions and related proceedings (as relevant, according to the terms and scope of each provision).

7. The Directions also apply to a Commonwealth entity involved in a criminal prosecution or related proceeding as a third party or intervenor. For example, where responding to a subpoena, or making a public interest immunity claim over documents or information that is relevant to the prosecution.

What is a ‘related proceeding’?

8. Proceedings in which a Commonwealth Prosecuting Authority is exercising its functions, and are substantively connected to a criminal prosecution, constitute ‘related proceedings’. This may include, but is not limited to, the following:

• bail proceedings and extradition processes
• committal proceedings
• interlocutory proceedings directly connected to the criminal prosecution (e.g. applications to exclude evidence, provide for witnesses, or for a stay of proceedings etc)
• appeal proceedings
• subpoena proceedings
• seeking non-publication or suppression orders over documents/information relevant to a prosecution (except under the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act)), and
• proceedings related to a breach of a sentence order, or parole proceedings.

9. Generally if an entity who is not a Commonwealth Prosecuting Authority undertakes this work or becomes involved, then the Directions will apply. If unsure, the entity should engage with the Office of Legal Services Coordination (OLSC) about the application of the Directions.

10. Commonwealth legal work that derives from but is removed from the prosecution process is not a related proceeding. This includes, but is not limited to, the following:

• civil penalty proceedings, such as contempt proceedings
• condemnation proceedings
• orders for compensation or legal costs, such as orders for reparation under section 21B of the Crimes Act 1914
• referrals for warrants and criminal assets confiscations
• orders sought by a Commonwealth Prosecuting Authority under the National Security Information (Criminal and Civil Proceedings) Act 2004 (NSI Act) or seeking to vary orders under the NSI Act in an unrelated criminal prosecution for the purposes of another criminal prosecution
• applying for continuing detention orders or extended supervision orders
• challenges to the issuing or execution of warrants (unless forming part of the prosecution, such as an interlocutory application to exclude evidence)
• judicial review of a committal proceeding or other decisions related to criminal justice decisions under section 39B of the Judiciary Act 1901
• work connected to the corporate functions of prosecution authorities
• legal advice obtained by prosecution authorities unrelated to the prosecution process, and
• claims for liability made against the prosecution authority or its officers.

When is a criminal proceeding ‘significant’?

11. Whether a criminal prosecution or related proceeding is a significant issue for the purposes of section 35 of the Directions will depend on the circumstances of the matter (see Guidance note 5: Reporting on significant issues).

12. The prosecution of an entity will generally be considered a significant issue and should be reported by the entity.

What is a ‘settlement’ in a criminal proceeding?

13. If the matter is a significant issue, an entity is required to seek approval from the Attorney‑ General prior to settling the litigation under section 36 (see Guidance note 6: Settling matters reported as significant issues).

14. The Directions define ‘settlement’ as the ‘consensual resolution of a claim or litigation’ (see section 4: Dictionary). In the context of a criminal prosecution or related proceeding, settlement will usually constitute the consensual resolution of the ultimate issue and any consequential orders which are negotiated or consented to. This includes, but is not limited to:

• the entering of a guilty plea
• negotiating charges or plea bargaining (including an undertaking in lieu of prosecution)
• negotiating the discontinuance/dismissal of a prosecution or related proceeding if it involves a concession by the entity or agreement between the parties (including on costs)
• negotiating penalties, and
• negotiating reparations.

Notification of intention to enter plea

15. Entities are required to notify OLSC (and/or the Office of Constitutional Law) prior to entering a plea, as there may be constitutional considerations (e.g. whether the state or territory laws bind the Commonwealth) or other relevant considerations which may apply.

• NOTE: Entities should be mindful that the requirements under Part 5, Division 5 of the Directions (in particular section 53) may also apply.

16. While a settlement request is not required for entering a not guilty plea, an entity should update OLSC in advance of entering a not guilty plea consistent with an entity’s reporting obligations under section 35 of the Directions.

Where can I get further help?

17. If you have any questions about whether the Directions apply to a criminal prosecution or related proceeding, please contact OLSC at olsc@ag.gov.au.

Office of Legal Services Coordination
Phone: 02 6141 3642
E-mail: olsc@ag.gov.au 
Issued: March 2026

This guidance material is of a general nature only and does not convey or contain legal advice.

Endnotes

¹ See Note to section 9 of the Legal Services Directions 2025 and Guidance note 2: Tied areas of Commonwealth legal work.