disregarded because it is in draft form and that it is never acceptable for legal advice not to be finalised on the basis that the advice may be inconvenient or unwelcome. The Attorney-General's Department is reviewing the guidance in light of the observations made by the Royal Commission.
Services Australia should issue a direction that legal advice is to be left in draft form only to the extent that the administrative step of finalising it has not yet been undertaken by lawyers or there are remaining questions to be answered in relation to the issues under consideration and that, if the administering agency decides that a draft advice need not be provided in final form, that decision and the reasons for it must be documented. One of those steps – finalisation, or a documented decision against finalisation–should have been taken within three months of the receipt of the draft advice.
The Government accepts this recommendation.
The Government agrees that legal advice cannot be disregarded because it is in draft form and it is never acceptable for legal advice not to be finalised on the basis that the advice may be inconvenient or unwelcome.
The Chief Counsel of Services Australia has issued internal Legal Practice Standards on obtaining external legal advice, including draft advice. Legal Officers are required to have regard to the Chief Counsel's expectation that draft legal advice will ordinarily be finalised, that legal advice cannot be disregarded on the basis that it is in draft form, that it is never acceptable for draft legal advice not to be finalised because it may be unwelcome or inconvenient, and that draft legal advice should be finalised before it is relied upon to make decisions. Where finalisation of draft advice is not practicable, Legal Officers must place a file note on the relevant file confirming the reason the advice was not finalised.
The Government also considers it is important that the treatment of draft legal advice is consistent across agencies. On 15 May 2023, the Secretary of the Attorney-General's Department circulated initial guidance to all the heads of legal services functions across the APS on the use of draft legal advice within government, making it clear that legal advice cannot be disregarded because it is in draft form and that it is never acceptable for legal advice not to be finalised on the basis that the advice may be inconvenient or unwelcome. The Attorney-General's Department is reviewing the guidance in light of the observations made by the Royal Commission.
The Legal Services Directions 2017 should be reviewed and simplified.
The Government accepts this recommendation.
The Legal Services Directions 2017 play an important function setting out the requirements for sound practice in the provision of legal services to the Australian Government.
