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

The key topics covered in this note are:

• the obligation for corporate Commonwealth entities (CCEs) (other than a government business enterprise (GBE) to inform the Attorney-General or the Office of Legal Services Coordination (OLSC), within the Attorney-General’s Department (the department) of litigation giving rise to constitutional issues
• what happens when the Attorney‑General decides whether to intervene in a constitutional proceeding, and
• costs for intervention or non-intervention.

Reporting and managing constitutional issues in litigation

1. CCEs (other than a GBE) must inform the Attorney-General (through OLSC) of the details of any litigation which gives rise to constitutional issues and comply with instructions given by the Attorney-General concerning the conduct of such litigation.¹

2. Reporting of constitutional issues raised in litigation supports the Attorney-General as First Law Officer of the Commonwealth and enables the department, which has responsibility for constitutional law policy, to identify matters that have potential ‘whole of government’ significance.

• Entities must inform the Attorney-General (through OLSC) as soon as it becomes aware of a constitutional issue that arises in litigation (including threatened or proposed litigation).
• Early reporting provides the department with the maximum opportunity to consider the constitutional issue and advise on how it should be dealt with. This includes consideration of draft pleadings, the relevant facts, and procedural questions about how and when the constitutional issue might be dealt with.
• Once a report has been made, OLSC will consult within the department and with the Australian Government Solicitor (AGS).

3. The Attorney-General (or the department on their behalf) may give instructions about the handling of the constitutional issue in a litigated matter. The entity must comply with the instructions, even if the Attorney-General decides not to intervene in proceedings. This may include the choice of lawyers to be used and the arguments to be put on the constitutional issues.

Intervention by the Attorney-General

4. When a constitutional issue is raised in litigation, a notice of the issue must be circulated to the Attorneys-General of the Commonwealth, the states and territories, pursuant to section 78B of the Judiciary Act 1903 (Judiciary Act). The Attorney-General has a right to intervene in matters arising under the Constitution or involving its interpretation under section 78A of the Judiciary Act.

5. If the Attorney-General decides to intervene, the entity must not put any submissions on the constitutional issues without the prior approval of the Attorney‑General.

6. The department or AGS (at the request of the department) will consult with the entity on the implications of the constitutional issue for that entity. The entity will be given an opportunity to comment on the submissions to be put on behalf of the Attorney-General on the constitutional issues.

7. If the Attorney-General decides not to intervene in the proceedings, the entity should:

• Clear any submissions and pleadings on constitutional issues with the department and/or AGS, and
• Comply with any instructions from the Attorney-General or the department concerning the conduct of the litigation.

Costs

8. If the Attorney-General intervenes in a matter under section 78A of the Judiciary Act, the department will usually meet the costs of the intervention.

9. The entity will usually be responsible for the costs associated with legal work on the constitutional issues in the matter prior to any decision on intervention, or if the Attorney‑General does not intervene. This includes any costs arising from the involvement of AGS other than costs associated with the Attorney-General’s decision on intervention.

Where can I get further help?

10. If you have any questions about constitutional litigation involving corporate Commonwealth entities, 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 section 50 of the Legal Services Directions 2025.