Guidance Note 2 – Tied areas of Commonwealth legal work

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, and
• the process for obtaining approval for a non-tied provider to conduct tied work.

What is tied work?

1. Tied legal work involves categories of Commonwealth legal work that can only be handled by specific legal services providers or entities. These categories of law pose the highest legal, political, financial and reputational risks for the Government. Consequently, it is essential that the Government’s position on these areas of law is consistent.

2. Part 2 of the Legal Services Directions 2025 (Directions) sets out the rules about tied legal work. Section 12 provides that Cabinet work, constitutional law work, national security legal work, public international law work and specific categories of drafting work must be undertaken by, or are ‘tied’, to specific government legal services providers. Sections 14-16 detail who the tied providers are. 

Who does the tied work regime apply to?

3. The tied work regime generally only applies to non-corporate Commonwealth entities.

4. The Directions impose other obligations on corporate Commonwealth entities and Commonwealth companies when requesting public international law advice¹, and on corporate Commonwealth entities where they become involved in litigation which gives rise to a constitutional issue.² Prosecuting entities (such as the Commonwealth Director of Public Prosecutions) should also consult with the Australian Government Solicitor (AGS) or the Attorney-General’s Department (AGD) when constitutional or public international law issues arise in the conduct of their work.³

5. The tied work regime applies to all legal services provided for and on behalf of the Commonwealth. Tied work issues can arise in the performance of legal services such as litigation, statutory interpretation, legislative drafting, advice on providing evidence to parliamentary committees, development and negotiation of commercial agreements or in the preparation of legal advice.

6. Once a tied work issue is raised, it does not matter whether there is merit to the issue or not, or whether the issue forms a substantial part of the legal matter – the entire matter immediately becomes tied work.

Categories of tied legal work

7. Section 12 of the Directions outlines the five categories of tied work:

• Cabinet work
• constitutional law work
• national security legal work
• public international law work, and
• tied drafting work.

8. Assessing whether legal services are tied work for the purpose of the Directions turns on the facts of each individual matter. The entity is responsible for identifying when a tied work issue arises or engaging with the Office of Legal Services Coordination (OLSC) where there is any uncertainty.

• NOTE: Legal advice should not be sought from non-tied providers on whether a matter involves tied work or not (as this advice can be tied work in some circumstances). OLSC can assist with consulting the relevant tied providers where there is uncertainty.

9. Entities should be mindful that sometimes more than one tied work category can arise for a legal issue and they must comply with the obligations for all relevant tied work categories.

Cabinet work

10. Cabinet work captures legal advice:

• which is intended, at the time the advice is obtained, to be relied on in preparing a Cabinet (or one of its subcommittees’) submission, memorandum, new policy proposal and related materials, or
• on legislative development proposals that will be put to government (other than a proposal for subordinate legislation). This includes legal advice obtained on the drafting of legislation but not legal advice on general options available to respond to a court decision, change a regulatory setting, or implement a policy idea (noting that if constitutional issues are raised by the options advice on these will be tied constitutional law work).

11. These obligations apply regardless of whether or not Cabinet is the decision maker (for example, it may be a decision of a subcommittee of Cabinet).

12. The Cabinet tied work obligations are intended to operate alongside the Budget Process Operational Rules administered by the Department of Finance.

13. The tied providers for Cabinet work are AGS and AGD.

Exceptions

14. Subsection 14(2) of the Directions provides 3 exceptions to the Cabinet tied work rules:

• pre-existing legal advice can be provided to Cabinet if that advice was obtained before it was intended to go to Cabinet but the entity must inform Cabinet the advice was not obtained from the tied provider, the date of the advice and who provided the advice
• an entity’s in-house legal team can provide support and guidance in preparing a Cabinet submission or memorandum, including advice on the application of a settled interpretation of law to facts for legislation administered by the entity, and
• an entity’s in-house legal team can provide advice on whether legislation is required to implement a proposal prepared by that entity for Cabinet for consideration. ⁴

15. Other tied work obligations continue to apply even if one of these exceptions can be relied on. For example, an entity’s in-house legal team cannot provide constitutional law advice in relation to whether legislation is required to implement a proposal by that entity for Cabinet’s consideration.

16. Legal work commissioned because of a decision of Cabinet is not tied work, unless that work will need to be considered by Cabinet in the future (for example, pursuant to a comeback to Cabinet).

Constitutional law work

17. Constitutional law work primarily concerns the interpretation and application of the Constitution and constitutional principles. Constitutional principles or rules define or limit the functions, powers and structures of the 3 branches of the Commonwealth government established by the Constitution and the interpretation and application of the constitutions of the States.

18. The tied providers for constitutional law work are AGS and AGD⁵. 

19. Examples of constitutional law work include legal services which concern:

• the interpretation and application of the Constitution such as:
  • the scope of the Commonwealth’s legislative powers,
  • constitutional guarantees and other constitutional limitations (for example, the requirement to provide just terms for acquisition of property)
  • the content of, and limits on, the executive power of the Commonwealth (including for example whether non-statutory executive power is conditioned by administrative law constraints)
  • the judicial power of the Commonwealth
  • the qualification of Parliamentarians
  • inconsistency between Commonwealth and state legislation, and
  • limitations on state legislative power arising from the Constitution.
• legal doctrines derived from the Constitution, such as:
  • the implied freedom of political communication
  • intergovernmental immunities (including Melbourne Corporation issues and corresponding Commonwealth immunity from state laws)
  • principles of representative and responsible government (so far as those principles are reflected in the Constitution)
  • principles of federal jurisdiction derived from Chapter III of the Constitution (for example, what laws apply in the exercise of federal jurisdiction, and whether a particular dispute gives rise to a matter (see below)), and
  • the separation of powers.
• parliamentary powers, privileges and immunities, including issues involving the:
  • the Parliamentary Privileges Act 1987 (Cth) (which operates as a ‘declaration’ for the purposes of section 49 of the Constitution), and
  • state referrals of power to the Commonwealth for the purposes of section 51(xxxvii) of the Constitution.
• legislation that uses constitutional terms such as:
  • whether a particular proceeding involves a ‘matter’ in relation to which jurisdiction has been conferred on a court, for example, b section 39(2) of the Judiciary Act 1903 (Cth) (‘matter’ being the term used in Chapter III of the Constitution)
  • whether a particular state or territory body is a ‘court’ in which federal jurisdiction has been invested
  • whether a corporation is a ‘trading or financial corporation’ within the meaning of section 51(xx) of the Constitution, and
  • whether a particular activity constitutes ‘banking’ or ‘insurance’ within the meaning of section 51(xiii) and section 51(xiv) of the Constitution.
• state constitutions, which are ‘saved’ by section 106 of the Constitution (see also section 107)
• determining whether a cause of action is within a federal court’s accrued or associated jurisdiction, for example under s 32 of the Federal Court of Australia Act 1976 (as that turns in part on the scope of the relevant ‘matter' before the court)
• determining whether a state court has federal jurisdiction in a matter, for example in light of s 38 of the Judiciary Act, and whether a matter in a state court is a ‘special federal matter’ within the meaning of s 3 of the Jurisdiction of Courts (Cross-Vesting) Act 1987
• whether a state or territory tribunal has jurisdiction over the Commonwealth
• determining whether a body is the ‘Crown’ or ‘the Commonwealth’ or ‘the State’ including for the purposes of any statutory immunity provision, or is entitled to derivative crown immunity
• the interpretation of legislation affecting the constitutional status of the Commonwealth and states, including the Australia Act 1986 and the Statute of Westminster Adoption Act 1942
• whether the Commonwealth is bound by a state or territory law. This issue can involve consideration of whether a state/territory law is inconsistent with/repugnant to a Commonwealth law, and whether the Commonwealth enjoys immunity from the operation of the State/Territory law, and
• whether a Commonwealth law applies to a state or territory.

National security legal work

20. National security legal work is Commonwealth legal work which may impact or in some way concerns Australia’s national security interests. The Directions provide that legal work falls in this tied work category if national security interests form a material aspect of the work (including because those interests substantively inform the work’s legal analysis or materially impacts the legal or factual issues relating to the work).

21. The tied providers for national security legal work are AGS and AGD.

22. What constitutes Australia’s national security interests should be assessed in the context of the national security environment at the time the legal services are being provided. In deciding whether the legal work being undertaken concerns national security interests, entities should consider:

• whether the legal services being provided concern the protection of the nation’s territory, borders, people and institutions from national security threats, including its ability to act independently in the international arena and the strength of its international relations
• if the disclosure of information in the matter could harm the safety of the general public or would prejudice national security.
• if the matter concerns the interpretation or application of national security-related legislation, and
• if the legal issue may have implications for government activities, policy development and program delivery support relating to national security.

23. Examples of the type of issues which would generally be a ‘material aspect’ include:

• the factual issues on their face relate to national security
• the forum the legal services are being provided in are specific to national security (e.g. a review body or process)
• legal matters that involve handling or work on documents classified as ‘top secret’, or with subject matter of significant national security sensitivity (regardless of classification)
• legal services being provided that include consideration of or application of national security legislation
• responding to a subpoena, notice to produce or other compulsory process that seeks production of information the disclosure of which would prejudice national security
• proceedings in which the National Security Information (Criminal and Civil Proceedings) Act 2004 has been invoked
• proceedings relating to the review of adverse security assessments or vetting decisions made under the Australian Security Intelligence Organisation Act 1979
• making public interest immunity claims or applications for protective orders on national security grounds
• advising on national security legislation, including legislation establishing national security and intelligence entities and legislation which confers functions and powers on or regulates the activities of national security and intelligence entities.
• drafting contracts in a national security context with precedential impacts for multiple entities
• drafting contracts for, or otherwise advising on, the procurement of national security infrastructure, including technology and other capabilities that are to be used for national security purposes, and
• advising on contractual protections against a change to foreign ownership/influence of a counterparty to address heightened national security concerns.

24. Generally, the tied work regime does not apply to public servants who are involved in private claims and litigation. This means, for example, that employees of national security entities will not need to comply with the tied work rules when they are involved in family law proceeding, but they may need to tell their employing entity about the proceedings and the tied work regime will apply if the entity intervenes in the proceedings to protect national security information.

Public international law work

25. Public international law tied work concerns legal services about public international law, being the body of rules and principles which govern the interactions predominantly between sovereign states (as distinct from the domestic laws of Australia or another sovereign state). It covers legal services on all aspects of public international law, including state sovereignty, human rights, international trade, and the use of force.

26. Public international law is derived from a variety of sources of law, including treaties, customary international law and general principles of law. Public international law work is tied regardless of whether it relates to the obligations of Australia, another sovereign state or any other entity under public international law.

27. The definition of ‘public international law work’ in section 12(2) of the Directions provides examples about the types of legal services that are captured by this category, which are further elaborated in Notes 1-6 under that definition.

28. The tied providers for public international law are:

• AGS and AGD (the Office of International Law), and
• the Department of Foreign Affairs and Trade for paragraphs (a) to (d) of the definition of public international law work.

29. Generally, legal work relating to the domestic law of another country, including domestic litigation or other activity involving an Australian entity/department. is not tied work under this category. However, it is possible for public international law issues to arise in this context, such as the application of state privileges and immunities, which would make the legal work tied. If an entity is unsure, then they should contact OLSC.

When is an instrument of less than treaty status (ITLS) tied work?

30. ITLS do not create legal obligations. As such, work on the negotiation, drafting, execution or implementation of ILTS generally does not constitute tied work.

31. However, if other public international law tied work arises in conjunction with the negotiation, drafting, execution or implementation of ILTS then this work must be undertaken by a tied provider. Examples where this may arise include: 

• checking whether a purported ILTS actually creates obligations
• where an ILTS is used to meet an existing international obligation, and
• where an ILTS needs to be reviewed for consistency with an existing international obligation.

Tied drafting work 

32. The Directions provide that certain categories of drafting work are tied drafting work. This category recognises:

• the importance of legislation being of high quality and consistent across the statute book, and
• that drafting work involves the importance of precise wording of laws, regulations, and other legal documents (including translating policy ideas into legally sound and effective text, ensuring clarity and consistency, and compliance with existing legal frameworks).

33. The tied provider for this category is the Office of Parliamentary Counsel (OPC). Section 16 of the Directions also provides that another legal services provider can undertake this work if arranged by OPC.

Identifying tied work

34. Tied work can arise at various stages and in different forms during the provision of legal services.

35. Examples of where a tied work issue may arise in the course of legal services include:

• Advisory stage – in-house legal teams could be requested to provide legal advice about matters which strictly concern tied work issues. Furthermore, it may be that the in-house lawyer identifies a potential tied work issue arising from the operational or policy situation which the advice concerns.
• Pre-litigation – in the management of legal disputes, parties may raise issues which touch on tied work (for example, a legal argument which may be founded in constitutional or international law).
• Upon being served with Court documents – originating documents may particularise a claim based on factual or legal circumstances which are tied work.
• During court proceedings – legal arguments or issues involving tied work could arise when a plaintiff files an amendment statement of claim which contains revised pleadings, or via oral submission to the court during hearing.
• During the course of policy design – in-house lawyers may identify that an issue they are providing legal services for will need to be considered by Cabinet, or that the matter raises alternate tied work issues (for example, constitutional or national security issues).
• Throughout the course of managing litigation – key settlement or strategy decisions about high profile litigation may need to be considered by Cabinet.

36. It is the role of the entity to identify tied work issues and to comply with the Directions.

37. If an entity is not sure whether an issue is tied then the entity should contact OLSC for guidance and/or an assessment.

38. Once a tied work issue is identified then all legal services connected to that issue become tied. For example, if a ground of review in a court application raises a tied work issue then the entire court proceeding is tied.

39. The identification of a tied work issue does not mean the entity is doing tied work.

What to do once tied work has been identified

40. When a tied work issue is identified the entity must either:

• engage with the tied providers listed in sections 14–16 of the Directions to seek legal services on the issue, or
• seek approval under section 18 of the Directions from the Attorney-General (or their delegate) for a non-tied provider to perform tied legal work.

41. If a non-tied provider has already been appointed to provide the legal services when a tied work issue arises then no further legal services are to be provided until either of the steps in paragraph 40 (above) have been complied with.

42. The entity is responsible for paying all costs associated with work done by the tied work provider on the issue.

How do entities apply for approval to have a non-tied provider perform tied work?

43. Applications for approval to use a non-tied provider under section 18 of the Directions should be made at least 2 weeks prior to the date on which a decision is needed. OLSC will seek to expediate consideration of urgent requests where necessary.

44. If a tied work issue arises during a time sensitive situation (for example, the middle of a court hearing) and a non-tied provider is providing legal services, then the entity should engage with OLSC urgently to either identify tied providers to engage with and/or obtain an interim approval to continue working on the matter.

• Note: if it not possible to do undertake the steps outlined in paragraph 44 then the entity should notify the relevant body this is new issue which has not been previously raised, the entity does not have instructions about how to respond. OLSC should be notified as soon as possible following this.

45. Requests for approval under section 18 can be sought in writing by completing the request form on AGD’s website and emailing it to OLSC@ag.gov.au. Any request for approval should:

• outline the tied work issue that has been identified
• include background information about the legal work being performed (for example, if a tied work issue has arisen in litigation, information should be provided about the substantive matter)
• identify who is proposed to be the non-tied providers doing the work (for example, which external legal service provider and counsel)
• outline reasons why a tied work approval should be granted (including the relevant qualifications or experience of the proposed non-tied provider), and
• be accompanied by any relevant supporting documentation (e.g. copy of summons or legal advice).

46. Reasons which may be relevant in determining whether to approve a non-tied provider doing tied work include: 

• the ability to mitigate risk for the Commonwealth through the imposition of appropriate conditions on the requested approval
• the factual circumstances of the legal scenario
• whether the legal issue or matter is novel or could have precedential value for the Commonwealth
• if the legal services concern a dispute, the Commonwealth’s prospects in the matter
• any relevant experience and specialist expertise of the non-tied provider in relation to the non-tied aspects of the work (the non-tied provider’s experience in the tied work aspects of the matter are not relevant)
• the capacity of the non-tied provider to consult effectively with a tied provider on tied aspects of the matter
• the practicality of the Commonwealth re-briefing the work if legal services are already being provided in the matter (for example, if the matter has a long history and the tied work has only arisen in relation to a discrete issue)
• the financial impost of re-briefing the matter, and
• the significance or importance of the legal issue for the Commonwealth.

47. This list is not exhaustive. Each application is assessed on its individual merits.

48. Where an approval under section 18 of the Directions is given, it may be subject to conditions. Examples of conditions include:

• relevant tied providers must be consulted and have the opportunity to comment on any submissions (note the approved non-tied provider will remain solicitor on the record)
• the approval is time limited, and
• the approval is specific to a particular tied issue or tied work category.

49. The entity remains responsible for compliance with any conditions that form part of the approval (and the Directions more broadly).

50. Entities should consult with the tied providers prior to sharing any advice prepared by tied providers with non-tied providers. The entity must re-engage with the relevant tied provider if it wishes to rely on previous advice provided by a tied provider in a new matter, to ensure the advice remains appropriate in the current circumstances. 

Who can approval be sought for?

51. Non-tied providers for whom an approval can be sought under section 18 can include:

• external legal services providers
• counsel
• in-house legal teams
• legal service providers engaged by a tied provider, and
• contractors, labour hire and secondment arrangements.

52. The tied work obligations do not apply where tied providers are engaging counsel, a barrister or another legal expert (such as an academic) to perform legal services for the category of tied work they are the tied provider for.⁶ However, the tied work obligations do apply where the tied provider is engaging an individual or form to provide legal services which are usually provided by a solicitor.

53. If an in-house legal team has a tied work approval in place then the approval extends to employees, contractors, secondees or any other engagement arrangement (for example labour hire) provided the professional responsibility for the tied work remains with the entity. The same applies to the tied providers.

54. An approval under section 18 is specific to the non-tied provider named in the application provided to OLSC.

55. If additional non-tied providers start working on a legal service where there is an approval in place for another non-tied provider, then the entity must seek an extension of that approval under section 18 of the Directions before that additional provider commences providing any legal services in relation to (or in connection to) the tied issue.

56. Entities should update OLSC if an approved non-tied provider ceases to provide legal services on the issue. 

The tied issue has fallen away – does the tied work regime still apply?

57. Developments can occur during the provision of legal services which mean the matter no longer involves tied work. This occurs where the tied work aspect/s of the matter are no longer pressed or otherwise fall away from the matter.

58. Examples of where a tied work issue may no longer arise include:  

• an amended statement of claim is filed which provides that the constitutional argument previously advanced by an applicant has been abandoned
• the legal advice sought will no longer need to be considered by Cabinet, and
• a policy change will be affected by amending subordinate legislation as opposed to amended by an Act of Parliament.

59. Where the legal services are deemed to no longer include tied work, the tied work regime ceases to apply and entities are at liberty to engage non-tied providers to undertake the legal work.

60. If this happens and an approval under section 18 of the Directions has been granted, then the entity should contact OLSC to confirm that no further compliance with the approval is required.

Where can I get further help?

61. If you have any questions about tied work, 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 subsection 15(2) of the Legal Services Directions 2025.

² See section 50 of the Directions and Guidance note 12: Principles of constitutional litigation involving corporate Commonwealth entities.

³ See the Note to section 9 of the Directions.

⁴ This excludes advice on whether legislation is required to authorise expenditure on a proposal.

⁵ In practice, the Office of Constitutional Law (OCL) within AGD. However, OCL does not provide legal services to other entities.

⁶ See subsection 13(3) and Note 2 to section 18 of the Directions.