What are the Legal Services Directions?
The Legal Services Directions 2025 (Directions) commence on 2 March 2026. The Directions expand and clarify existing obligations and introduce some new requirements.
The Directions are issued under the Judiciary Act 1903 (Cth) and are a set of binding rules about the performance of Commonwealth legal work. They are administered by the Office of Legal Services Coordination (OLSC), within the Attorney-General’s Department.
The Directions apply to non-corporate Commonwealth entities and certain other entities (s 7; s 9; see also Sch 1).
This alert summarises some of the key updates. For updated guidance on the Directions, see here.
Tied work (pt 2)
The categories of tied Commonwealth legal work have been clarified. There are new and expanded definitions of Cabinet work, constitutional law work, national security legal work, public international law work and tied drafting work (s 12). These expanded definitions provide guidance to non-corporate Commonwealth entities and certain other entities when briefing legal services providers.
Tied providers are set out in ss 14-16. Consistent with the previous Directions, the Attorney-General may approve a legal services provider other than a tied provider to undertake tied work – that approval may be subject to one or more conditions (s 18). If tied work is performed by a non-tied provider, the entity must give a copy of the advice to OLSC if it is requested (s 20).
Advice sharing within Government (pt 3)
The Directions expand and codify obligations in relation to information and advice sharing on legislative interpretation within government.
If an entity proposes to obtain legal advice on the interpretation of legislation administered by another entity, that entity must follow a process to provide the administering entity a reasonable opportunity to consult on the advice (s 23). There are exceptions to the consultation requirement, including where disclosure would be inappropriate or unlawful (for example, Cabinet, law enforcement or national security matters) (s 25) and if the requesting entity has a written agreement with alternative consultation arrangements and OLSC has been notified of that agreement (s 27) and if the advice is required on an urgent basis, in which case consultation can occur ‘as soon as practicable’ (s 24).
An entity must also, upon request and subject to any restrictions, give the Attorney‑General a copy of legal advice
(s 30), and take reasonable steps to notify and make the advice available to other Commonwealth agencies if it is likely to be significant (ss 30,31).
Reporting on significant issues (pt 4)
Entities who perform 'Commonwealth legal work' must report to the Attorney-General, via OLSC, legal issues that arise if they are ‘significant issues’, as soon as practicable (s 35(1)). Part 4 of the Directions clarifies and codifies the OLSC’s Guidance Note 5 (Reporting on Significant Issues).
Section 35 clarifies the meaning of ‘significant issues’ with an inclusive definition which captures sensitive legal, political or policy issues and formal dispute processes under public international law (s 35(2)).
If a significant issue arises in the handling of a claim or conduct of litigation, an entity must not settle the claim or litigation without the Attorney-General’s approval (s 36).
For guidance and a template for reporting significant issues, see here.
Claims and litigation (pt 5, 6, 7)
Part 5 reaffirms the model litigant obligation: the standards of honesty and fairness that the Commonwealth, and certain Commonwealth entities, must comply with when handling claims and conducting litigation (ss 40-41).
Part 6 clarifies the criteria for settling monetary claims. If a settlement amount against the Commonwealth (together with any related claims) would exceed $100,000, it may be approved with written advice from AGS, an external legal services provider or counsel confirming that the settlement accords with legal principle and practice, and the accountable authority (or delegate) agrees with the settlement (s 64). Settlement of a monetary claim commenced by the Commonwealth must be in accordance with legal principle and practice and ‘in the interests of the Commonwealth’ (s 65). If ‘exceptional circumstances’ exist to justify a departure from ss 64 or 65, an entity must refer to OLSC (s 66).
Part 7 sets requirements for the engagement of counsel: an engaging entity must consider a broad range of counsel candidates, including counsel of diverse gender identity, sexual orientation, race or religion, counsel with disability, and counsel who identify as First Nations (s 74(1)). There is also a new 40% target for briefing women counsel (previously it was 25%) (s 74(2)).
The daily rates for counsel are increased: $5,000 for senior counsel and $3,300 for junior counsel (incl GST), aiming to improve the government’s choice of high-quality counsel (s 75(1)).
Pro bono matters (pt 8)
Commonwealth entities (other than Government Business Enterprises (GBEs)) must consider:
- the amount and kind of pro bono legal work undertaken by a legal services provider, and
- whether the provider has signed up to the National Pro Bono Target
when deciding whether to engage a legal services provider to undertake Commonwealth legal work (s 84).
