Guidance Note 3 – Sharing advice within Government

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, and
• what to do when there is a disagreement about the interpretation of legislation.

What is the purpose of Part 3?

1. Part 3 of the Legal Services Directions 2025 (Directions) promotes consultation, collaboration and information-sharing across government on the interpretation of legislation. The aim of this is to reach consistency in statutory interpretation across the Commonwealth as far as possible. The obligations in Part 3 of the Direction apply to entities.¹

2. Obliging entities to consult on requests and share legal advice, both draft and final, maximises efficiencies, minimises duplication and reduces the potential for inconsistent advice and action on legal issues across the Commonwealth by:

• enabling entities to have oversight of the operation of legislation they administer
• recognising the expertise of entities on the legislation they administer
• promoting consultation between Commonwealth entities, and
• avoiding unnecessary duplication of legal expenditure.

3. The obligations in Part 3 sit in the broader context of the expectations on entities, and government lawyers, to manage legal issues with regard to the Commonwealth’s interests as a whole, and to collaborate and share information with colleagues across the Commonwealth.²

4.  Consistent with this purpose, the starting point for entities is to consult and share information across the Commonwealth, unless an exception applies.

5.  When seeking legal advice, entities should also have regard to the Guidance on the use of draft legal advice within government available at Attorney-General's Department website.

Consultation

6. Section 23 of the Directions sets out that when an entity (the requesting entity) wishes to get legal advice on the interpretation of legislation administered by another entity (the administering entity), they must consult with the administering entity to give the administering entity a reasonable opportunity to:

• assess the proposal and the advice being sought
• identify if legal advice already exists
• review and be involved in discussions on the draft advice, and
• review the finalised advice.

7. As part of this process, the requesting entity must provide the administering entity with:

• the proposal to seek advice
• a copy of the request for advice
• the draft advice (if applicable), and
• the final advice.

8. The obligations in section 23 extend to consultation on the submissions to be put forward to a court or tribunal on the legislation of an administering entity. This is consistent with the expectation that Commonwealth entities consult and collaborate to ensure consistency in statutory interpretation. By way of example, if a settlement proposal involves a concession of a position under legislation administered by another Commonwealth entity, it would be expected that the proposal has been endorsed by the administering entity.

• Where an issue of legislative interpretation arises unexpectedly, for example during the course of oral arguments, an entity should immediately seek the view of the administering entity.

What does consultation look like?

9. Consultation should be conducted consistent with the purpose set out in section 22 of the Directions – to facilitate information sharing and collaboration across the Commonwealth. This can only be achieved where there is meaningful and substantive engagement between entities, rather than treating consultation as a formality to be discharged as quickly as possible.

10. Consultation should be done in writing but may be complemented by discussions. Requesting entities should provide as much information as practicable to assist an administering entity to consider and respond to the consultation request.

11. Entities should also document and share the outcome of any discussions to confirm a common understanding of the discussion and the agreed position between entities.

What does ‘reasonable opportunity’ mean?

12. What is meant by ‘a reasonable opportunity’ will often turn on the specific circumstances in which the advice is being sought, noting that the Directions provide for modified consultation and sharing obligations when seeking advice in urgent circumstances.

13. As a starting point, requesting entities should engage with administering entities as soon as possible, and endeavour to give administering entities as much time as practicable to consider the proposal and any draft advice. Requesting entities should also provide clear timeframes for a response and rationale for those timeframes.

14. Similarly, administering entities should endeavour to respond as promptly as practicable to any consultation requests.

Responsibilities of administering entities upon consultation

15. Pursuant to section 28, when an administering entity is consulted in accordance with the Directions, it must carefully consider the request, draft advice and final advice to determine if there is any ambiguity or other issue in the legislation that they will need to resolve (such as through a legislative amendment).

16. The administering entity should also:

• use its best endeavours to advise whether it holds existing advice on the topic in question, rather than seeking to definitively state whether such advice exists
  • for example, by conducting a search of its records to ascertain, to the extent possible, if advice on a similar issue or topic has previously been sought
• consult internally with policy and legal areas to identify whether relevant advice is held and/or the request generates questions about policy intent, and
• as a general practice, have a central record or repository of advice received on legislation it administers, with appropriate access controls, to enable prompt and accurate responses to consultation requests.

17. Where an administering entity is consulted on a request for advice and is aware that another entity has an interest or responsibility for the relevant legislation, it should advise the requesting entity of this potential interest. The requesting entity should then consider if consultation or sharing with that entity should also occur.

Identifying the administering entity and appropriate contacts

18. The Administrative Arrangements Order (AAO) specifies the entity that administers a particular piece of legalisation.

19. While the AAO references Departments of State, there may be other entities that have an interest in or are knowledgeable about particular legislation. Consultation and sharing with those other entities may also be beneficial and appropriate and is encouraged.

20. If you need help locating a contact within another entity, the contact details for General Counsel and Heads of Legal across the Commonwealth are available from the Office of Legal Services Coordination (OLSC) within the Attorney-General’s Department (olsc@ag.gov.au or 02 6141 3642). Entities can also provide OLSC with the details of a central mailbox or contact point specifically to assist in dealing with requests relevant to Part 3 of the Directions.³

Exceptions to the consultation requirement and modified obligations

21. Given the nature of legal matters, it may not always be appropriate to consult on requests for legal advice. The Directions prescribe four exceptions to the requirement in section 23 to consult the administering entity.

22. These exceptions may arise when:

• advice is needed urgently (section 24)
• disclosure would constitute a breach of law or an inappropriate disclosure of a Cabinet, law enforcement or national security matter (section 25)
• advice is about a routine matter (section 26), or
• there is a written agreement between entities about how consultation and sharing will operate, that has been notified to OLSC (section 27).

23. Where uncertainties arise when applying the exceptions, the requesting entity should, where practicable, engage with the administering entity. This engagement does not need to take the form of consultation under section 23. Early engagement between entities will support entities to assess if an exception applies and how to best manage any consultation requirements. This is also consistent with the underlying policy set out in section 22.

Section 24 – urgency

24. Where a requesting entity seeks urgent legal advice, section 24 sets out the process the requesting entity must follow.

25. If the requesting entity receives draft advice in urgent circumstances, the requesting entity should, where reasonably practicable, consult with the administering entity before finalising the advice.

26. An example of when this exception is where a requesting entity needs advice to provide an urgent response to a Minister.

27. This exception does not apply if advice is sought in urgent circumstances, due to delays that could have reasonably been avoided by the requesting entity.

Section 25 – where consultation may be inappropriate or unlawful

28. Where consultation would constitute a breach of law or inappropriate disclosure of a Cabinet, law enforcement or national security matter, section 25 sets out the process the requesting entity must follow.

29. To the extent possible without giving rise to unlawful or inappropriate disclosure, the requesting entity must inform the administering entity of the advice request and disclose the substance of the advice it receives.

30. The requesting entity must provide as much detail as possible without disclosing information that must remain confidential. It may be appropriate to redact information or provide excerpts or summaries to avoid inappropriate disclosure or breach of law, but still comply with section 23.

31. An example of when the exception may apply is where an entity is seeking advice on a matter that is subject to a non-disclosure notation.

Section 26 – routine matters

32. Where an entity seeks advice on a routine matter, the entity is not required to consult with the administering entity or share the advice it receives. A routine matter is where the advice is likely to involve no more than the application of a settled interpretation of the law to particular facts.

33. Subsection 26(3) provides examples of circumstances where a matter is not routine and would require full consultation and sharing in accordance with section 23.

34. This exception does not apply to advice that relates to untested provisions (where there is no settled interpretation of the law), is contrary to existing policy, raises new policy issues, could create a precedent or identifies a weakness in the legislation.

• For example, a request could be a ‘routine matter’ where an entity is seeking advice on a legislative provision that has not been tested by a Court, but otherwise has a well understood interpretation based on previous legal advice.

35. If there is uncertainty about whether a matter is routine or not, requesting entities should consult internally, as well as with the administering entity to seek views on whether a matter is routine.

36. Where an entity subsequently discovers that a matter is not routine, subsection 26(2) requires the entity to consult and share the advice in accordance with section 23, to the extent possible in the circumstances, from that time on.

• For example, if the requesting entity seeks advice on legislation, on the basis that the matter is routine, and then receives draft advice that indicates the matter is not routine, the requesting entity should then give the administering entity:
  • a copy of the request for advice
  • a copy of the draft advice
  • a reasonable opportunity to consult on the matter before any finalised advice is provided, and
  • a copy of the final advice.

Section 27 – written agreement between entities

37. Section 27 of the Directions permits an exception to consultation where there is a written agreement between entities on alternative consultation and sharing arrangements, notified to OLSC.

38. For example, the written agreement may allow the requesting entity to seek advice on the administering entity’s legislation in certain circumstances, provided summaries of the requests for advice and copies of final advice are sent to the administering entity on a regular basis.

39. The purpose of this exception is to encourage collaboration between entities who deal with aspects of the same legislation, in a practical and pragmatic way. It supports entities to come to an agreement about consultation arrangements and provides an exception to consultation requirements where an administering entity is comfortable to not be consulted.

40. When entering a written agreement pursuant to section 27, entities should remain mindful of the need to consult on unique or significant matters that arise when seeking advice and continue to comply with section 31 – sharing advice that may be significant to other Commonwealth entities.

Sharing advice that may be significant to other Commonwealth agencies

41. Section 31 requires entities to consider the significance of legal advice it receives and take reasonable steps to share the advice with other Commonwealth agencies. This includes operational and portfolio agencies, corporate Commonwealth entities and Commonwealth companies. As per the note to section 31, there may be instances where it is not reasonable to notify the agency or share the advice, such as where disclosure would be inappropriate (as per section 25) or the advice relates to a routine matter (as per section 26).

42. It is a matter for the entity that received the advice to determine if it is likely to be significant to another agency and, if so, what steps should be taken to make that advice available to that agency. If the entity that received the advice is not the administering entity, it should consult the administering entity as a part of this process.

43. For example, advice may be significant to another agency where it:

• may impact an agency’s functions or day-to-day operations
• may change a standing approach or interpretation of the law, or
• raises a new policy or legal issue.

44. If an entity is uncertain if an advice may be significant to another Commonwealth agency, the entity should engage with the agency in the first instance to ascertain if sharing is necessary. Entities may also contact OLSC for assistance or further guidance.

45. Depending on the circumstances in which the advice has been sought, it may be appropriate to provide additional background or context to the advice request, or to redact or summarise certain information.

Legal professional privilege

46. Sharing advice between non-Commonwealth corporate entities (NCCEs) generally does not waive legal professional privilege.⁴

47. Consistent with section 55ZH of the Judiciary Act 1903, if an entity consults or shares legal advice in compliance with the Directions, legal professional privilege is taken not to have been waived in respect of such consultation or sharing.

48. Entities should remain mindful of only sharing information on a ‘need to know’ basis and ensuring any communication, including communication between legal and policy areas, has appropriate information markers and caveats around further disclosing information.

49. Where possible and consistent with section 22, OLSC encourages entities, as well as Commonwealth agencies, to model the ‘spirit’ of the obligation to share legal advice within the Commonwealth and take every opportunity to maximise consultation and act cooperatively in the interests of the Commonwealth.

50. Entities should make their own assessment as to whether sharing legal advice between non corporate Commonwealth entities and corporate Commonwealth entities may amount to a waiver of privilege, the risks, the steps that may be available to minimise those risks, and, if necessary, obtain independent legal advice. These considerations may also apply when NCCEs are sharing advice with statutory office holders or other entities who do not have a legal personality separate to the Commonwealth, but who are not themselves NCCEs, and who may be able to hold legal professional privilege in their own right.

Disagreements about interpretation of legislation

51. Where there is a disagreement about the interpretation of legislation, this should be resolved, so far as possible, through negotiation between entities. This may include entities agreeing to obtain external, independent advice such as from the Australian Government Solicitor.

52. Where agreement cannot be reached, OLSC can facilitate discussions between entities and their legal services providers to assist in resolving any disagreements.

53. If an entity wishes to seek further advice from the Solicitor-General to resolve the matter, it must contact OLSC and follow the process set out in Guidance note 20: Briefing the Solicitor-General which also sets out the rules around confidentiality of Solicitor-General opinions.

54. Entities should also consider if such a disagreement should be reported to OLSC as a significant issue, pursuant to section 35 of the Directions. See Guidance note 5: Reporting on significant issues for more information.

What happens if an entity does not consult or share advice?

55. If an entity is concerned that it was not appropriately consulted or advice was not shared in accordance with the Directions, the entity should engage with the other entity in the first instance.

56. Where concerns result in an actual or alleged instance of non-compliance with the Directions, in accordance with paragraph 109(1)(g), the entity which is the subject of the non compliance allegation must report this to OLSC.

57. See Guidance note 18: Compliance with the Legal Services Directions 2025 for more information about OLSC’s compliance function and reporting non-compliance.

Where can I get further help?

58. If you have any questions about sharing advice within Government, please contact OLSC at olsc@ag.gov.au. 

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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 ‘Entities’ is defined in section 4 of the Directions to mean non-corporate Commonwealth entities under finance law, as well as the Australian Human Rights Commission, the Australian Pesticides and Veterinary Medicines Authority, the Independent Health and Aged Care Pricing Authority, the Murray-Darling Basin Authority and the National Offshore Petroleum Safety and Environmental Management Authority.

² For example, see the General Counsel Charter and the Statement of expectations of Australian Government lawyers.

³ OLSC encourages entities to establish a central mailbox for requests to ensure that timely consultation can occur.

⁴ Australian Government Solicitor, ‘Legal briefing No.117 - Legal professional privilege and the Government’, 30 June 2021.