Guidance Note 17 – Assistance to eligible Commonwealth employees and officials in legal proceedings etc

The key topics covered in this note are:

• the purpose of the rules when providing financial assistance to eligible persons
• who are eligible persons and the types of requests covered by Part 9 of the Legal Services Directions 2025 (Directions)
• the appropriate decision-maker for requests and decision‑making considerations, and
• the scope of assistance that can be provided, including conditions.

Who does Part 9 apply to?

1. The rules in Part 9 apply to entities as defined in the Directions and the decision‑makers responsible for considering requests from eligible persons.¹

2. While Part 9 does not apply to corporate Commonwealth entities (CCEs) or Commonwealth companies, it does not prevent those bodies from providing financial assistance for legal proceedings to their employees. They are not required to comply with Part 9 when doing so.

What is the purpose of Part 9?

3. Part 9 of the Directions sets out the framework for entities to provide financial assistance to current and former entity employees, current and former accountable authorities and statutory office‑holders of entities, and persons currently or formerly employed as a member of a Minister’s staff under the Members of Parliament (Staff) Act 1984 (MOPS Act). Under Part 9, financial assistance can be provided for civil and criminal proceedings, as well as inquests, inquiries or in responding to compulsory notices connected with their employment.

4. Part 9 operates in connection with and in addition to entities’ obligations under the Public Governance, Performance and Accountability Act 2013 (PGPA Act) about the proper use of public resources and the spending of public money or granting of indemnities in the context of financial assistance to eligible persons. It is not in itself a power or authority to spend public money or grant indemnities. These powers are found elsewhere, such as sections 23 or 60 of the PGPA Act.

5. The purpose of Part 9 is to deliver consistency in how entities manage requests for assistance, in addition to meeting PGPA Act obligations, by setting out:

• circumstances in which assistance cannot be provided
• factors a decision-maker should take into account when considering a request, and
• conditions that should be placed on approvals.

6. Part 9 also operates to protect the Commonwealth’s financial and general interests, including its interests in acting properly as an employer, by requiring that the primary consideration is that the provision of assistance is of some benefit to the Commonwealth.

7. It is ultimately a matter for the decision-maker whether to provide assistance, and the framework in Part 9 supports a degree of discretion and judgement in making that decision.

Eligible persons and requests covered by Part 9

Who is an eligible person?

8. Section 89 provides that the rules in Part 9 apply to requests for assistance from an individual who, at the time of the event giving rise to the proceedings, was an employee in an entity, an accountable authority or member of an accountable authority, a statutory office‑holder who was an official of an entity, or a ministerial staff member employed under the MOPS Act.

9. Employees, statutory office‑holders and accountable authorities should contact the human resources area (or equivalent), within the entity where they were employed at the time of the events giving rise to the proceedings, about requests for assistance.

10. Applications by ministerial MOPS Act employees should be made to the Department of Finance at mpshelp@finance.gov.au.

11. Provided other eligibility criteria are met, requests for assistance from Australian Defence Force members are also covered by Part 9.

12. Entities will have their own processes for considering requests. When individuals make a request, they should provide as much information as possible and any supporting documents (such as copies of compulsory notices or letters of demand etc.).

Who is not an eligible person?

13. Requests for assistance from non‑ministerial MOPS Act employees or from ministerial MOPS Act employees in relation to proceedings arising as a result of other duties, such as electoral duties, are not within scope.

14. Requests from labour hire or independent contractors are also not within scope.

15. If there is uncertainty as to whether an applicant is an eligible person, the responsible entity should consult with the Office of Legal Services Coordination (OLSC) within the Attorney‑General’s Department (AGD) and may also need to seek independent legal advice.

Requests within scope

16. Part 9 allows decision-makers to grant assistance to eligible persons for civil and criminal proceedings (including potential proceedings), as well as inquests, inquiries and responding to compulsory notices, such as subpoenas, arising in the performance of an eligible person’s official role. For example:

• an employee could be issued a notice to give information to a Royal Commission about matters relating to their role, or
• an accountable authority could be named a party to civil proceedings about actions they undertook in their role.

17. For ministerial MOPS Act employees, the individual’s official role refers to their duties assisting the Minister in performing ministerial duties.

Requests outside of scope

18. As set out in section 90, Part 9 does not apply to financial assistance under the Public Service Act 1999 (Public Service Act), the Special Circumstances Scheme administered by AGD, or other similar schemes.

• Requests for assistance under this legislation or schemes is considered in accordance with the legislation or rules set out by the relevant scheme.

19. Part 9 also does not apply to requests for assistance for an administrative law challenge that does not include a claim for damages (paragraph 90(2)(a)).

20. For administrative law challenges that do not include damages claims, the Commonwealth funds the costs of defending these proceedings.

21. For matters where Part 9 does not apply or assistance is declined, an individual may wish to consider whether applying for assistance under a mechanism listed in section 90 is appropriate for their circumstances and may wish to seek independent legal advice. 

Disciplinary proceedings

22. Part 9 does not apply to disciplinary proceedings initiated by, or on behalf of, the responsible entity (paragraph 90(2)(b)).

23. This means that individuals cannot apply for financial assistance in accordance with Part 9 for code of conduct investigations of individuals conducted by the responsible entity under the Public Service Act(or equivalent for eligible persons not employed under that act), or such an investigation conducted by the Australian Public Service Commissioner (APSC) or the Merit Protection Commissioner on behalf of the responsible entity.

24. Individuals may apply for financial assistance for the following types of proceedings related to employment misconduct matters, taken by bodies other than the responsible entity, provided other Part 9 criteria are met:

• reviews undertaken by the APSC under paragraph 41(2)(k) of the Public Service Act
• professional conduct investigations by a professional regulatory body, e.g. a law society
• referrals to or notices issued to an eligible person to attend or respond to the National Anti‑Corruption Commission (NACC)²
• referrals to or notices issued to an eligible person to attend or give evidence at a Royal Commission.

Decision-maker

Who is the responsible entity?

25. The responsible entity is the person or body with responsibility for assistance sought by, or provided to, an eligible person. In most cases, this is the Commonwealth.

26. As such, requests for assistance should be made to and managed by, as far as possible, the entity who is, or was, the employing body (for example the relevant department) at the time of the events giving rise to the proceedings. Requests from ministerial MOPS Act employees are generally managed by the Department of Finance.

27. If complexities arise or it is otherwise unclear which entity is appropriate to consider a request, generally:

• If an eligible person is employed by a different entity when the proceedings arise, the request for assistance should be directed to the employing body at the time of the events giving rise to the proceedings.
• If the eligible person’s employment has been impacted by Machinery of Government changes, a request for assistance should be directed to the entity with policy responsibility for the matters giving rise to the proceedings.
• In certain circumstances, a decision-maker in the current employing body may be able to approve assistance, provided they have the power to do so.
  • For example, where multiple Commonwealth entities are involved in the same proceedings or where the current employing body considers it appropriate to provide assistance where they are also providing other support to the individual in question (such as leave to attend proceedings etc).

28. It is also open to entities to consult and agree among themselves how to manage a request for financial assistance, provided the entity that ultimately considers the request has the power to provide assistance.

29. If there is uncertainty about who is the responsible entity, entities can contact OLSC to discuss. It may also be necessary or appropriate to seek legal advice about who is the responsible entity for a particular request.

Who is the decision-maker?

30. The person making the decision on a request for assistance must hold the power to approve any expenditure or grant indemnities, and will be one of the following:

• the current accountable authority, for requests from a current or former employee, or a former statutory office-holder and accountable authority
• a Minister in the relevant portfolio, for requests from a current statutory office‑holder or accountable authority
• the Minister with responsibility for the MOPS Act, after consultation with the Attorney‑General, for requests from a current or former ministerial MOPS Act employee.

31. Entities should have arrangements in place to enable a person of appropriate seniority with the relevant powers to approve assistance. For example, the accountable authority may delegate this power to another senior officer within the entity, in accordance with the PGPA Act.

32. Requests should be considered in a timely and responsive manner. While it may be necessary to seek further information from an applicant or defer a decision on assistance, decision‑makers and responsible entities should use their best endeavours to provide certainty to individuals about the status and outcome of requests for assistance.

Alternative decision-makers

33. There may be circumstances where an ordinary decision‑maker cannot consider a request for assistance, for example where:

• the decision-maker has a conflict of interest, or
• it would not be appropriate for the decision-maker to consider the request.
  • This could arise where the decision-maker is also involved in the proceedings or there are reasons to use an alternative decision-maker, such as maintaining the applicant’s anonymity in certain circumstances.

34. If an ordinary decision-maker is unable to consider a request, subsection 91(4) sets out who the appropriate decision‑maker is. Generally:

• When an accountable authority cannot consider the request, the decision-maker is a relevant portfolio Minister. If this circumstance arises, the entity should make appropriate arrangements to support the management of the request. If there is any uncertainty about what may constitute appropriate arrangements, particularly for small entities, the entity should contact OLSC.
• When the responsible Minister/s cannot consider the request, the Attorney-General will decide who should consider the request. If this circumstance arises, the entity should contact OLSC to progress a request to the Attorney-General.

Who is the decision‑maker for indemnities?

35. Approval of damages or legal costs awarded against an employee or a fine or penalty imposed on an employee is likely to amount to an indemnity under section 60 of the PGPA Act. The indemnity must be approved by the Finance Minister, unless the Finance Minister has delegated the decision-making.³

36. As of March 2026, the Finance Minister’s delegation under section 60 of the PGPA Act allows accountable authorities to approve indemnities in the context of approving financial assistance for employees or former accountable authorities or statutory office‑holders in accordance with the Directions. This authority can be sub-delegated to other officers within an entity.

37. This delegation does not authorise ministers other than the Finance Minister to approve indemnities when considering requests from statutory officer-holders or accountable authorities. The Finance Minister must approve these requests.

38. For clarity, the Finance Minister’s delegation does not extend to the accountable authorities of the entities listed in subparagraphs 7(1)(a)(ii)-(vi) of the Directions. As those entities are CCEs for PGPA Act purposes, they are subject to different rules about the approval of indemnities and authority is not required to allow them to approve indemnities.

Cases where assistance must not be provided

39. There are certain cases where assistance should not be provided, generally where the individual should be otherwise indemnified or insured (paragraphs 92(a) and (d)) or where it is not appropriate for the Commonwealth to fund assistance for certain causes of action (paragraphs 92(b) and (c)).

40. A decision-maker also cannot approve assistance to challenge the validity or conduct of an inquiry without the Attorney-General’s approval, for example where there are jurisdictional issues about the inquiry’s ability to compel the Commonwealth (section 93).

What types of assistance can be approved?

41. A decision-maker may only approve assistance to cover:

• the costs of legal representation in connection with the proceedings, such as legal costs incurred to engage a solicitor or barrister to provide legal advice or appear on behalf of the eligible person in proceedings
• other costs related to the eligible person’s involvement in the proceedings, such as travel costs (including airfares, accommodation or transportation) for them to attend proceedings in person when required or travel costs for an eligible person to have a support person when attending proceedings, where appropriate
• costs awarded against the eligible person
• an amount payable by the eligible person in the settlement of proceedings, or
• damages awarded against, or fines or penalties imposed on, the eligible person.

42. Section 94 requires that approval only be given for an amount that is reasonable, having regard to the nature of the proceedings.

• For example, the decision-maker should consider the entity’s usual travel policies if approving travel and related costs. Further information about monitoring costs for reasonableness is set out below.

43. The decision-maker must also ensure that any costs approved for counsel fees, as relevant, are consistent with Part 7 of the Directions (Engagement of counsel).

44. There is no prescribed form an approval should take. Decision-makers should ensure the scope of the approval, and any conditions, are clearly set out for the individual receiving assistance.

The decision-making process

Decision-making considerations

45. The primary consideration for granting an approval is that the provision of assistance would be of some benefit to the responsible entity, which is generally the Commonwealth (subsection 96(1)).

46. A variety of factors can be relevant to this determination. This is ultimately a matter of subjective judgement for the decision‑maker.

47. For example, assistance would generally be of some benefit where it would protect the Commonwealth’s financial interests, particularly its interests in avoiding or limiting vicarious liability, or the Commonwealth’s general interests, in particular its interests in acting properly as an employer in supporting an eligible person who has acted reasonably and responsibly.

48. ‘Reasonably and responsibly’ is not intended to prevent a decision-maker approving assistance where an eligible person is alleged to have acted negligently or where there is an allegation of wrongdoing. It would generally not be in the Commonwealth’s interest to provide assistance where the eligible person’s conduct involved serious or wilful misconduct or culpable negligence.

49. This criterion is intended to ensure that the provision of assistance is in the Commonwealth’s interests and provide discretion for the decision-maker in considering the request. Broader considerations, such as supporting a fair trial, the proper administration of justice or supporting a Royal Commission to undertake its inquiry, may also be relevant.

50. It is a matter for the decision-maker to balance these considerations in the context of an application. For example:

• It may be appropriate to approve assistance where an eligible person has not acted reasonably and responsibly, or, where this is unclear, if providing assistance is otherwise of some benefit to, or in the interests of, the responsible entity.
• This may encompass broader considerations than an eligible person’s actions, such as ensuring the proper administration of justice through there being a fair trial or protecting the entity’s own legal liability including where it is likely to be vicariously liable for the eligible person’s actions.

51. Assistance may also be provided retrospectively. Section 97 provides that it may be appropriate for a decision-maker to refuse retrospective assistance where the eligible person failed to notify the entity of the proceedings within a reasonable time, and that the delay may prejudice the entity’s position.

Deferral of approvals

52. It may be appropriate for a decision-maker to defer a decision on assistance.

• This may arise where the decision-maker does not have enough information to properly consider the request.

53. Subsection 98(2) also explicitly states that a decision-maker must, for requests related to criminal proceedings, defer a decision to provide assistance for damages, fines, penalties or costs awarded against the eligible person until those proceedings have concluded.

54. In some circumstances, it may be appropriate for a decision-maker to approve assistance for legal costs and related expenses, but to defer a decision on other expenses or costs.

• For example, the decision‑maker may agree to fund the eligible person’s defence but defer a decision on whether to fund any costs or damages payable by the eligible person to another party until after the facts are ascertained (such as after the court proceedings).

55. Where a decision is wholly or partly deferred, the eligible person and the entity must have separate legal representation, if they are both party to the proceedings.

Conditions on approvals

56. Decision-makers must consider if it is appropriate to impose conditions on approvals, subject to the decision-maker having the power to impose conditions (such as through an agreement with the eligible person pursuant to section 23 of the PGPA Act).

• For example, a decision-maker may place a monetary cap on the amount of assistance that is granted, with the eligible person required to seek further approval if that cap is exceeded.

57. Subsection 99(2) requires, where assistance is provided, that the decision-maker impose the condition, where appropriate, that the eligible person consult the responsible entity in relation to the disclosure or non-disclosure of official documents or information.

• The purpose of this condition is to ensure the Commonwealth has the opportunity to take an appropriate position when disclosing Commonwealth information, such as considering whether a claim of public interest immunity should be made or if there are any secrecy concerns with disclosing the information.

58. Subsections 99(3) and (4) set out conditions that must be imposed to enable compliance with obligations under Part 6 (Settling monetary claims) and Part 7 (Engagement of counsel), including caps on counsel fees.

• The rules about settling monetary claims in Part 6 apply, with modified effect, where approval is granted for settlement costs. This means that any settlement of a monetary claim against the eligible person must, at a minimum, be in accordance with legal principle and practice and will require external legal advice prior to settlement where the settlement amount exceeds $100,000. This is to ensure that any settlement is appropriate and in the Commonwealth’s interests. See Part 6 for more information.

59. Section 100 requires a decision‑maker to only approve assistance for costs or damages or settlement costs in a civil claim if the eligible person agrees that:

• the responsible entity will control their defence
• they will provide all assistance necessary to the entity, and
• if the entity also becomes or is party to the proceedings, they will have the same legal representation.

60. Section 101 prevents the decision-maker from requiring that the eligible person agree to the responsible entity controlling the conduct of the defence, where assistance is granted for costs or a penalty in a criminal proceeding.

Consultation in sensitive and exceptional circumstances

61. If a request for assistance raises sensitive legal, political, or policy issues, the decision‑maker must consult with OLSC before deciding whether to approve assistance.

• This may arise where the request for assistance raises novel issues or is particularly sensitive (for example, the proceedings arise out of findings of a Royal Commission or inquiry).

62. If this circumstance arises, entities should contact OLSC at OLSC@ag.gov.au and provide information about the request for assistance. It may be appropriate for a decision‑maker to authorise someone else, such as an official in the entity that is progressing the request for the decision-maker’s consideration, to undertake this consultation on the decision‑maker’s behalf.

63. Where a decision-maker considers a request raises exceptional circumstances that may justify a departure from the requirements in Part 9, the decision-maker must refer the matter to OLSC.

• The Attorney-General may make a decision on whether departure from Part 9 is appropriate and, if so, grant an exemption under section 8 of the Directions.

Obligations on entities where assistance has been approved

64. Where assistance is granted, the responsible entity must monitor the conduct of the matter to ensure the costs, and the entity’s ultimate exposure to liability, are within reasonable limits (section 104). This may involve:

• reviewing itemised invoices to ensure the work relates to the proceedings
• considering the time spent on tasks and the seniority of the legal professionals performing tasks
• requesting itemised invoices for disbursements, including travel and accommodation, and
• where appropriate, seeking additional information from the eligible person or their legal services provider to enable the entity to monitor and assess the reasonableness of costs.

65. The responsible entity is responsible for paying any expenditure incurred under the approval out of the entity’s ordinary appropriation.

66. The responsible entity must also:

• ensure that the engagement of counsel is in accordance with Part 7, and
• use its best endeavours to ensure that the claim or litigation is handled in accordance with the model litigant obligation (see Division 2 of Part 5), where assistance has been granted for legal representation and at least one other type of cost.

67. The responsible entity must refuse payment under the approval where an eligible person does not comply with conditions on their approval.

68. The requirement to use the Whole of Australian Government Legal Services Panel only applies where the responsible entity is controlling the conduct of the proceedings.

69. Entities must also include any payments associated with approvals in their legal services expenditure reporting, as appropriate. Further information about legal services expenditure reporting is available on the Attorney-General’s Department website.

Where can I get further help?

70. If you have any questions about Part 9 of the Directions, 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 Entities are defined in section 4 of the Legal Services Directions 2025 (Directions) as a body that is taken to be a non-corporate Commonwealth entity (NCCE) under finance law and 5 other corporate Commonwealth entities. Section 91 sets out who is the decision-maker under Part 9 of the Directions.

² Persons who are ineligible or are refused assistance in accordance with Part 9 for NACC proceedings may be able to apply for assistance under Part 4 of the National Anti‑Corruption Commission Regulations 2023.

³ See, Resource Management Guide 414: Indemnities, guarantees and warranties by the Commonwealth for more information about indemnities generally.