Guidance Note 13 – Jurisdiction of State and Territory bodies

Key topics covered in this note are:

• the purpose and operation of sections 52 and 53 of the Legal Services Directions 2025 (Directions)
• the State and Territory bodies that are captured by these sections, and
• the process for engaging with the Office of Legal Services Coordination (OLSC), in the Attorney-General’s Department (AGD) on sections 52 and 53 of the Directions.

1. Interactions between State and Territory courts, adjudicative and investigative bodies and Commonwealth entities should be approached in a coordinated and consistent manner to ensure that the Commonwealth’s interests are protected. This is because an entity’s approach may have broader implications for other Commonwealth entities.

2. OLSC’s role is to coordinate this approach and facilitate entities’ compliance with sections 52 and 53 of the Directions. Section 52 applies to non-corporate Commonwealth entities (NCCEs) and prescribed corporate Commonwealth entities (CCEs), and section 53 applies to NCCEs, CCEs and Commonwealth companies.

Section 52 – objection to the jurisdiction of State and Territory courts

3. The purpose of section 52 of the Directions is to ensure that the Commonwealth takes a consistent approach when it objects to the jurisdiction of a State or Territory court based on section 56 of the Judiciary Act 1903 (Cth) (Judiciary Act). Section 56 of the Judiciary Act specifies the State or Territory courts in which a person can bring a suit in contract or in tort against the Commonwealth.

4. The Commonwealth might object to proceedings being brought in State or Territory courts which are not authorised to hear a particular matter, for example because the claim arose in a different State or Territory. A decision to object should be made having regard to the Commonwealth’s interests and the model litigant obligation.

5. Section 52 of the Directions requires entities to obtain the approval of the Attorney General (or their delegate) prior to objecting to the jurisdiction of a State or Territory court on the basis that it is not a court authorised under section 56 of the Judiciary Act.

6. Considering whether to object to the jurisdiction of a court on the basis that the court is not authorised by section 56 of the Judiciary Act will not generally involve tied work. Where issues arise as to the proper interpretation or effect of section 56, entities should raise this with OLSC as this may involve tied work.

Section 53 – submission or objection to the powers of State and Territory bodies

7. Section 53 requires agencies² to obtain the approval of the Attorney General (or their delegate) prior to submitting or objecting to the exercise of compulsory powers, or decision making powers, by a State or Territory body.

8. The purpose of section 53 of the Directions is to ensure any engagement with the State and Territory bodies captured by this section is consistent. The Commonwealth aims to take a consistent position on the question of whether it is subject to the powers of State or Territory bodies, under the Constitution and relevant legislation.

9. Wherever possible, the Commonwealth generally seeks to assist and cooperate with State and Territory adjudicative and investigative bodies³. Section 53 of the Directions is intended to ensure that this is done in a consistent and coordinated manner. It is aimed at ensuring appropriate oversight and support is provided to agencies where such a body exercises, or purports to exercise, coercive or compulsive powers over the Commonwealth, its officers and employees.

10. Generally, considerations about Commonwealth engagement with a State or Territory body will involve tied work as it will be necessary to consider constitutional law issues. OLSC encourages agencies to seek advice from the Australian Government Solicitor (AGS) if they intend to seek approval under section 53.

To which State and Territory bodies does this apply?

11. ‘State or Territory body’ is not defined in the Directions, but is best understood as any State or Territory body that has the power to investigate or adjudicate disputes, and is not ‘a court of a State’ within the meaning of Chapter III of the Constitution.⁴ This is a very broad category and includes a large range of State and Territory bodies. Unless OLSC advises otherwise, approval should be sought under section 53 in relation to the following, non-exhaustive, list of bodies:

• civil and administrative tribunals (for example, the ACT Civil & Administrative Tribunal; the Victorian Civil and Administrative Tribunal; the New South Wales Civil and Administrative Tribunal; etc.)
• Royal Commissions
• Commissions of Inquiry (depending on their function and purpose)
• Special Commissions (depending on their function and purpose)
• coronial inquiries
• workplace health and safety commissions
• security of payment tribunals
• Human Rights Commissions
• Auditor-General investigations
• Parliamentary Committees, and
• other adjudicatory or investigative bodies.

12. If there is any doubt as to whether the body an agency is interacting with is captured by section 53 of the Directions, please consult OLSC.

When is approval required?

13. Approval under section 53 is only required if a State or Territory body that is not a court of a State (within the meaning of Chapter III of the Constitution) purports or proposes to exercise compulsory or decision-making powers.

14. Examples of a State or Territory body exercising compulsory or decision-making powers include:

• the agency is a party to proceedings filed in the State or Territory body
• the State or Territory body joins an agency as a party to proceedings
• the State or Territory body directs an agency to make submissions in a matter to which the agency is not a party
• the State or Territory body serves a summons on the agency ordering production of documents
• the State or Territory body purports to compel an agency to appear in or attend proceedings, or
• the State or Territory body serves the agency with any sort of notice, order or summons to give evidence.

15. If the agency seeks to submit or object to the exercise of the power, approval is required under section 53.

When is approval not required?

16. Approval under section 53 is not required if an agency intends to cooperate voluntarily with a State or Territory body on the express basis that the agency does not concede the Commonwealth is bound.

17. Approval under section 53 may not be required if:

• the operation of a Commonwealth Act prevents the Commonwealth from complying with the exercise of powers, for example because of secrecy or privacy provisions, or
• the exercise of powers is of no effect due to section 109 of the Constitution.

18. Paragraphs 19-23 below contain guidance on when these circumstances may apply. An agency should consult OLSC if they have any uncertainty about whether approval under section 53 is required.

Voluntary compliance

19. If an agency intends to cooperate voluntarily with a State or Territory body purporting to exercise compulsory decision-making powers, for example by providing summonsed documents, this is not considered submitting to these powers and section 53 approval is not required.

• Note: In these circumstances, the agency’s response should expressly provide that engagement or the provision of documents is on a voluntary basis, and that the agency otherwise reserves its position on the question of the State or Territory body’s jurisdiction in any matter in which the Commonwealth is a party.
• Note: If an agency intends voluntarily to provide information or documents to a State or Territory body, consideration must be given to any limits on voluntary cooperation arising from restrictions on disclosure of documents and information under Commonwealth laws such as privacy and secrecy laws. Agencies should seek legal advice on this.

20. If an agency intends to cooperate on a voluntary basis, it must give OLSC advance notice so that OLSC can ensure a consistent Commonwealth approach is taken.

Constraints of Commonwealth legislation

21. An agency may be prevented from complying with the exercise of compulsory decision-making powers by a State or Territory body due to the operation of a Commonwealth Act, such as due to secrecy or privacy provisions. An agency should consider whether the relevant Commonwealth Act operates to prevent compliance entirely or only in part.

22. If a State or Territory body purports to exercise compulsory powers or decision-making powers over the Commonwealth under State or Territory legislation, and this legislation is inconsistent with relevant Commonwealth legislation, it is of no effect due to section 109 of the Constitution.

23. If an agency thinks either of the above two circumstances apply, it must seek advice from AGS prior to engaging with OLSC, as this advice would involve tied work.

How do entities apply for approval?

24. Applications for approval under section 52 or section 53 should be made at least 2 weeks prior to the date on which a decision is needed. OLSC will seek to expedite consideration of urgent requests where necessary.

25. Requests for approval should be sought by completing the request form on the department’s website and emailing it to OLSC@ag.gov.au. Any request for approval should:

• include background information about the proceedings
• specify the State or Territory court or body to which the approval relates
• identify the action the entity or agency wishes to take (e.g. object or submit), supported by the rationale and justification for this approach, and
• be accompanied by any relevant supporting documentation (e.g. copy of summons or legal advice).

Where can I get further help?

26. If you have any questions about the jurisdiction of state and territory bodies, 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 7 of the Legal Services Directions 2025.

² Commonwealth agency is defined in section 4 of the Directions to mean a non-corporate Commonwealth entity (NCCE), a corporate Commonwealth entity (CCE) or a Commonwealth company.

³ Where the Commonwealth is not legally bound, it may decide to cooperate voluntarily, subject to any other applicable laws (e.g. the Privacy Act 1988). 

⁴ Some State or Territory bodies referred to as ‘courts’ may not be courts for the purposes of Chapter III of the Constitution.