Legal Briefing

Number 48

(15 July 1999)


Until the mid 1990s, legal services to Commonwealth departments and agencies were solely provided by the Australian Government Solicitor as part of the Attorney-General's Department.

In recent years that work has progressively become untied from AGS and has been opened to private solicitors, in competition with AGS. Tribunal and advisings work has generally been untied since
1 July 1995. The final stage of untying is about to occur.

On 1 September 1999, all Commonwealth legal work will be untied, except:

  • constitutional matters
  • national security matters
  • cabinet matters
  • public international law matters.

It is expected that further details of the extent of the remaining tied work will be provided in Legal Services Directions to be issued by the Attorney-General.

Untying will occur in accordance with arrangements made under amendments to the Judiciary Act 1903.


Implications for Clients

Departments and agencies will be able to instruct external solicitors of their choice, but in-house lawyers are not able to conduct litigation in courts without the Attorney-General's approval.

Departments and agencies will be responsible for the proper conduct of claims and litigation within their areas of responsibility and, more broadly, will need to make arrangements to ensure that they receive efficient and effective legal services.

Departments and agencies will be required to comply with policies which it is expected will be incorporated in Legal Services Directions issued by the Attorney-General. Within the Attorney-General's Department, the Office of Legal Services Coordination will be responsible on behalf of the Attorney-General for administering the new arrangements.

Prior to untying of litigation, Commonwealth policies have already been developed by the Attorney-General in relation to the Commonwealth's involvement in and handling of litigation and claims.


Commonwealth Dispute Resolution Policies

The following are summaries of some of the most commonly applicable Commonwealth policies relating to dispute resolution. The summaries are necessarily brief and not comprehensive. AGS would be happy to amplify any of them on request.

Model Litigant Policy

The Commonwealth, through its instructing officers and lawyers, is required to act as a model litigant. Basically, this means that the Commonwealth must act fairly, but is not precluded from acting firmly. For example:

  • acting consistently
  • not taking purely technical points when no prejudice has been suffered
  • avoiding undue delay
  • making part payments where appropriate
  • not requiring the other party to prove facts which the Commonwealth knows to be true
  • nevertheless, properly testing claims against it
  • not caving in to spurious demands
  • generally pursuing costs awarded in the Commonwealth's favour.

The requirement to act fairly is not met simply by complying with applicable professional conduct requirements (eg. Bar Association rules or Law Society rules).

Alternative Dispute Resolution

The Commonwealth should continually consider whether a dispute is susceptible to ADR (eg. mediation or arbitration) and should promote or agree to ADR wherever appropriate.

Settling Claims Against the Commonwealth

The fundamental criterion for settling a claim against the Commonwealth is that the settlement be in accordance with legal principle and practice. In particular:

  • there must be at least a meaningful prospect of Commonwealth liability (ie. clearly spurious claims should not be settled merely to avoid the cost of defending them)
  • the amount of the settlement should reflect the prospects of the claim succeeding in court, and the prejudice to the Commonwealth (by way of costs or otherwise) of continuing to defend the claim.

The Chief Executive Officer of the relevant department or agency, or the CEO's authorised officer, has authority to settle claims against the Commonwealth within the responsibility of that department or agency, where settlement is considered to be in accordance with legal principle and practice.

However, a settlement for more than $10,000 cannot be made without written advice, from a legal adviser external to the agency, that the settlement is in accordance with legal principle and practice.

Settlements should only include non-disclosure provisions where this is necessary to protect the Commonwealth's interests. Before imposing or agreeing to such a condition, a department or agency should satisfy itself, including by raising the matter with a party requesting the condition, that the condition is necessary.

The department or agency should also seek to incorporate an exception to enable voluntary disclosure of the settlement (in whole or in part) to the Parliament or to a parliamentary committee.

Where practicable, the responsible Minister is to be consulted before an agency agrees to a settlement inhibiting voluntary disclosure to the Parliament or to a parliamentary committee.

The other party to a confidential settlement should be made aware that disclosure may nevertheless be required by law, in particular, to the Parliament or to a parliamentary committee which has power to compel disclosure.

Examples of when it could be in the Commonwealth's interests to agree to a confidential settlement include:

  • a person against whom the Commonwealth has made a claim makes an attractive offer of settlement, but only on condition that the terms not be disclosed, or
  • the Commonwealth seeks to settle a claim against it on condition that the terms of settlement not be disclosed, with a view to avoiding prejudice in responding to other similar claims against it.

Relying on Statutes of Limitations

The Commonwealth's policy is to rely on a statute of limitations defence, and to oppose applications for extension of limitations periods, unless approval not to do so is given by the Attorney-General or the Attorney-General's delegate. Such approval will normally be given only in exceptional circumstances or where it is expected that the application would succeed.

Engagement of Counsel

The Commonwealth's policy for engagement of counsel applies both to AGS and private solicitors acting for the Commonwealth. In particular, the policy:

  • requires briefing as widely as practicable
  • provides for limits on amounts payable without approval from the Office of Legal Services Coordination in the Attorney-General's Department:
    • those amounts being $2250 per day for senior counsel and $1500 per day for junior counsel
    • approval for amounts above $3200 per day is required from the Attorney-General.

Amendments under consideration to the policy would provide that retainers and cancellation fees should only be agreed in exceptional circumstances (eg. where a long trial is cancelled by a settlement shortly before its proposed commencement).

Briefs to counsel should incorporate and require compliance with the model litigant policy.

Advice on Legislation Administered by another Agency

There is a Commonwealth policy regarding consultation to be undertaken when a department or agency seeks advice on the interpretation of legislation administered by another department or agency.

Acting for Ministers and Officers

There are some circumstances where lawyers (whether AGS or private lawyers) cannot act for ministers or officers at Commonwealth expense without certain approval having been given.

Briefly, specific approval is necessary for the Commonwealth funding:

  • the defence of a present or former Minister or officer of a damages claim
  • the participation of a present or former Minister or officer in an inquiry
  • the response of a former Minister to a subpoena relating to a former ministerial portfolio, and the response of a present Minister to a subpoena relating to an earlier ministerial portfolio held by that Minister
  • the response of a present or former officer to a subpoena.

The basic criteria for approval are that the matter relates to official duties and, in the case of litigation, that the Minister or officer acted reasonably.

The preceding restrictions do not apply to a lawyer acting at Commonwealth expense for ministers or officers in the defence of administrative law or other challenges to their decisions or conduct, where no damages claim is included.

It is contrary to Commonwealth policy for the Commonwealth to fund a Minister or officer to take or threaten defamation proceedings. However, Commonwealth funding could be provided merely to assist in a rebuttal of the allegations or criticism of concern, provided this was not done in the context of an express or implied threat of a defamation claim: eg. a demand for an apology would be understood as an implied threat of a defamation claim.


AGS Dispute Resolution Services

AGS has already been administratively separated from the Attorney-General's Department and will become legally separated from that department by becoming a statutory authority, with its own legal identity. AGS will operate in competition with private solicitors for untied Commonwealth legal work.

AGS' knowledge of and experience with government will continue to contribute to its ability to provide expert and comprehensive dispute resolution services to Commonwealth departments, ministers, officers and agencies.

AGS is a truly national practice and, because the operations of all its offices are integrated, AGS offers high-level litigation and dispute services in locations across the country.

Please contact the lawyers listed below for further information on AGS dispute resolution services, including:

  • coordination of litigation in courts and tribunals across Australia
  • independent, objective litigation advice
  • resolving intra-Commonwealth conflicts
  • achieving consistent, successful outcomes in litigation or dispute resolution
  • dealing with ministerial correspondence, ombudsman complaints and parliamentary questions relating to litigation
  • using AGS advocates.

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided for general information only and should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of any of the material in this briefing.

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