LEGAL SERVICES DIRECTIONS COMPLIANCE FRAMEWORK

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1 LEGAL SERVICES DIRECTIONS COMPLIANCE FRAMEWORK Purpose of the Compliance Framework 1. The purpose of this Framework is to set out: the approach of the Office of Legal Services Coordination (OLSC) to achieving compliance across the Commonwealth with the Legal Services Directions 2005 (Directions), including the aim of its compliance activities and the principles that guide OLSC s actions, and how OLSC prioritises its compliance activities. Office of Legal Services Coordination responsibility 2. OLSC is responsible for the administration of the Directions. The Directions are a legislative instrument made by the Attorney-General under the Judiciary Act 1903 (Judiciary Act). They give effect to the Attorney-General s responsibilities as First Law Officer for arrangements governing the delivery and management of Commonwealth legal work. In administering the Directions, OLSC s responsibilities include: monitoring and supporting agency and legal service provider compliance with the Directions administering the Legal Services Multi-Use List (LSMUL) advising the Attorney-General on the delivery of legal services to and by government providing policy guidance to agencies and their legal service providers on the operation of the Directions, and advising the Attorney-General on the operation of the Directions, including any need for adjustment to the content or application of the Directions. This may include advice on possible directions to a Commonwealth agency in relation to a particular matter or in relation to the conduct of a certain category of legal work. 3. OLSC is not responsible for the provision of legal advice to agencies on the application of the Directions in particular circumstances, or for the handling of agency legal issues, their legal matters, or the legal risk of agencies. Agency and legal service provider responsibility 4. The Directions apply to all non-corporate Commonwealth entities within the meaning of paragraph 11(b) of the Public Governance, Performance and Accountability Act 2013 and includes an entity that was an FMA agency The Directions specify that agencies, on behalf of the Commonwealth, are responsible for ensuring that their arrangements for legal services, including claims or disputes for which the agency is responsible, are handled efficiently and effectively. 6. Commonwealth agencies are responsible for the: 1 Please see paragraph 12 of the Directions for details on extended application of the Directions to other bodies or persons that are not non-corporate Commonwealth entities or an entity that was an FMA agency. 1

2 timely identification and treatment of legal risk to the Commonwealth procurement and quality of their legal services (including in-house legal services), and management and handling of legal issues, claims and disputes affecting or involving the Commonwealth, and ensuring compliance with the obligations contained within the Directions, including the model litigation obligation. 7. The Directions support this devolved model of agency responsibility for legal services by establishing rules and principles to assist agencies to: minimise or avoid the risk of inconsistent or uncoordinated legal action on behalf of the Commonwealth whilst ensuring that the legal interests of the agency and the Commonwealth are protected promote the adoption and integration of behaviours and practices within agencies that ensure agencies appropriately identify, coordinate, consult on, and manage legal issues and legal risk within their agency, and more broadly across the Commonwealth protect the public interest by ensuring consistency in the proper management and handling of legal issues, and ensure their use of legal services (both internal and external) is efficient and effective, of high quality, and adequately responds to the needs of the Commonwealth. 8. Legal service providers to the Commonwealth are required to comply with the Directions, and to assist agencies to comply, under the Judiciary Act and the terms of the LSMUL Deed. Compliance aim, purpose and principles 9. OLSC aims to encourage and support compliance with the Directions by agencies and their legal service providers. 10. The purpose of OLSC s compliance activities is to: promote awareness of, and compliance with, the Directions among agencies and their legal service providers monitor compliance with the Directions and, in doing so, (i) obtain feedback on the operation of the Directions to identify any areas for development and/or clarification, and (ii) identify common or systemic issues affecting compliance monitor and support the development of better compliance practices within agencies and by their legal service providers through integration of the requirements of the Directions into systems, practices and behaviours, including through the recognition and promotion of better compliance strategies encourage agencies to take appropriate action to respond to possible or actual non-compliance (including allegations of non-compliance) obtain information about the operation of the Commonwealth legal services market to monitor risk and identify emerging issues, and develop an understanding of collective responsibility amongst agencies and providers for the appropriate management of legal risk and legal issues, both from individual 2

3 agency and whole of government perspectives, in support of the Attorney-General s role as First Law Officer. 11. In supporting compliance with the Directions OLSC has regard to the following principles: 12. Cooperation support agencies and legal service providers to help achieve compliance maintain productive working relationships with agencies and legal service providers understand the operating environment of agencies and legal service providers 13. Proportionality promote the implementation and use of compliance activities that are targeted, costeffective and reasonable consider that compliance responses reflect the history of compliance, compliance capacity and compliance attitude of each agency or legal service provide 14. Transparency make actions and decisions with impartially and integrity 15. Consistency respond consistently about the operation of the Directions develop explanatory materials and guidance on the operation of the Directions 16. Accountability report to the public on the compliance activities of the Commonwealth through Senate Estimates and the Attorney-General Department s annual report Prioritisation of compliance activities 17. OLSC prioritises compliance activities that support and enhance understanding of, and compliance with, the Directions by agencies and their legal service providers. 18. OLSC will prioritise a compliance response, the strength of the response, and escalation, with reference to the extent to which a compliance issue: is of serious or significant concern to the Commonwealth poses risk to the Commonwealth as a whole (including new or emerging risks) is of public interest suggests systemic issues within an agency, and/ or indicates a potential compliance risk (including areas of developing weakness) across agencies. 19. In prioritising its compliance activity OLSC considers: targeting resources to activities which are likely to have the greatest overall benefit to the Commonwealth and the public interest the agency or legal service providers compliance history, attitude to compliance, and compliance capacity 3

4 whether action by OLSC is likely to be meaningful, cost-effective and promote the primary aim of achieving optimal sustained compliance, and factors which may influence or motivate the compliance of an agency or legal service provider. 20. Priority is also given to matters where intervention is required in the handling of legal issues by agencies. Pursuant to s 55ZF(1)(b) of the Judiciary Act, the Attorney-General may issue a direction to an agency that is to apply generally to Commonwealth legal work, or in relation to a particular matter. Such a direction may be made in order to enforce and/or direct compliance with an existing requirement under the Directions, or to address a risk not adequately addressed by the Directions. 21. A direction would only be made where there is no other more effective means of addressing the identified risk to the Commonwealth. The issuing of such a direction is likely to be exceptional. Compliance model (informed by Ayres & Braithwaite (1992) and ATO and EPA Victoria compliance models). Decide not to comply (unwilling but able) Number of agencies Few Compliance effort High Don t want to comply (unwilling and unable) Try but don t always succeed (willing but unable) Consistently do the right thing (willing and able) Many Low 4

5 Compliance strategies and tools Strategy 1 Support awareness through education 22. Support and enhance ongoing agency and legal service provider awareness, understanding, and compliance with the Directions, including supporting the development of capacity within agencies to integrate the requirements of the Directions into their better practice models to ensure their own compliance. 23. Education tools: publication of guidance material and provision of policy advice about the intention, operation and application of the Directions training about the Directions presentations at government and public forums, and checklists and reminders in relation to obligations (particularly reporting requirements). Strategy 2 Information gathering 24. Gather information on the operation of the Directions and compliance issues, and the operation of the Commonwealth legal services market generally, in order to: identify any need for improvement to the Directions understand issues that may affect agency or legal service provider compliance, and identify new or emerging issues that may require policy response from the Commonwealth. 25. Information gathering tools: compliance reports from agencies (including notifications and annual compliance certificates) engagement with agencies and legal service providers about compliance issues feedback from agencies and legal service providers about the operation of the Directions significant issues reports exemption and approval requests under the Directions General Counsel Working Group Government Legal Network requests from agencies for policy guidance about the operation of the Directions annual legal service expenditure reports, and commentary sourced from the public domain, including from courts and tribunals. 5

6 Strategy 3 Monitor (and where necessary verify) agency compliance 26. Monitor agency compliance with the Directions in order to assess the effectiveness of agency compliance efforts, and to identify better practice which can be shared across the Commonwealth. 27. Tools: compliance notifications and annual compliance certificates, which include particulars of: o o o agency arrangements for managing compliance matters remedial actions considered necessary to be taken, and outcomes reached information from agencies outside of formal reporting requirements about the handling of concerns raised with reference to the Directions, including planned arrangements targeted at the management of such concerns, and planned actions considered in order to remedy possible or actual non-compliance (including allegations of non-compliance). Complaints about non-compliance with the Directions 28. Consistent with agency responsibility and accountability for achieving compliance with the Directions, agencies are expected to have arrangements in place to consider and appropriately respond to allegations of non-compliance, and to take necessary remedial action to ensure better practice in compliance with the Directions. 29. OLSC does not conduct reviews in relation to, or resolve, complaints from members of the public about agency compliance. Complaints received from members of the public are forwarded to the relevant agency for appropriate action. 30. OLSC obtains information from agencies about compliance complaints, resolution, and remedial action to identify systemic issues or areas of risk to the Commonwealth or public interest through: notification from agencies about possible or actual non-compliance (including allegations of non-compliance) annual compliance certificates additional requests for information from OLSC, and other reporting mechanisms employed, as appropriate. 6