Guidance on the use of draft legal advice within government

This guidance concerns the provision and use of draft legal advice within government. It applies to all legal advice provided to the Commonwealth.

Government lawyers have a central role with respect to Commonwealth legal advice, in terms of both providing advice to clients and facilitating advice from external legal services providers. This guidance is primarily directed to government lawyers and government officials who provide instructions to lawyers. However, its principles are also relevant to all government officials and ministers.

Principles

• The provision of considered legal advice to decision makers is indispensable to sound public administration and the rule of law.
• Government lawyers must be free to provide frank, fearless and independent legal advice to decision makers.
• All lawyers owe a paramount duty to the court and the administration of justice. In discharging these duties, government lawyers are also guided by additional considerations, including those reflected in the Legal Services Directions 2017, model litigant obligations, their obligations as public servants, the Statement of Expectations of Australian Government Lawyers and the General Counsel Charter.

Guidance

• Legal advice cannot be disregarded merely because it is in draft form.
• While legal advice should be sought with an intention to receive final advice, there are occasions when it will be appropriate to seek and provide legal advice initially in draft form; for example, so as to confirm that complex facts or policies have been accurately understood, to identify issues on which further instructions are required, or to facilitate proper consultation under the Legal Services Directions 2017.
• However, once all queries and clarifications have been conveyed to the advice author, the author should finalise the draft advice. If the author is instructed not to finalise the draft advice, the instructing official must clearly document the reasons for that instruction.
• Every draft advice must be finalised, or instruction given not to finalise the advice (and the reasons for that instruction documented), within three months of the draft advice being provided.
• It is never acceptable for legal advice not to be finalised on the basis that the advice may be inconvenient or unwelcome.
• If a lawyer is instructed or feels pressured to not finalise legal advice in circumstances in which they consider keeping it in draft is not warranted, they should refer the issue to the person with professional responsibility for the provision of that advice (eg the agency’s General Counsel), who can engage with the Office of Legal Services Coordination in the Attorney-General’s Department for guidance.
• As a matter of sound public administration and to avoid unnecessary dispute as to its status, draft advice should be finalised before it is relied upon to make decisions.

If agencies require support or guidance in any aspect of managing their legal work, in terms of complying with the Legal Services Directions 2017 and otherwise acting consistently with the expectations of the Attorney-General, please contact the Office of Legal Services Coordination in the Attorney-General’s Department on olsc@ag.gov.au or 6141 3642.

Office of Legal Services Coordination
Issued: December 2023