Core Legal Work
NSW Government Core Legal Work Guidelines
Premier's Memorandum 2016-04 NSW Government Core Legal Work Guidelines which supersedes Premier's Memorandum 95-39 provides clearer guidelines for identifying the types of legal matters that are regarded as 'core legal work', and therefore that must be referred to the NSW Crown Solicitor.
NSW Government Core Legal Work Guidelines (the Guidelines) have been prepared to help agencies identify and manage core legal work.
The Guidelines have been developed in consultation with agencies and provide guidance on:
- what constitutes core legal work;
- the types of legal matters that are regarded as core legal work;
- who pays for core legal work; and
- the circumstances in which core legal work may be performed by private sector legal practitioners.
The Guidelines can be accessed at the DPC website under
M2016-04 NSW Core Legal Work Guidelines.
What work falls within 'core legal work'?
Although Government agencies are able to procure legal services from the private sector in respect of certain matters arising within their administration, arrangements have long been in place to ensure that the core legal work of Government is referred to the Crown Solicitor to be managed in a consistent and co-ordinated way.
Core Legal Work comprises legal matters which, because of their complexity, sensitivity or the need to be handled or managed centrally on behalf of the Government, must be referred to the Crown Solicitor's Office.
Agencies must refer core legal work to the Crown Solicitor in accordance with the Guidelines. The Crown Solicitor is also able to be engaged by agencies for legal matters that are not core legal work, although this work will not be funded from the Attorney General’s Legal Fund.
The Guidelines apply to all NSW government agencies, excluding entities incorporated under the State Owned Corporations Act 1989.
A matter will constitute core legal work where:
(a) the best interests of the Government as a whole require a single source of authoritative legal advice and central management; or
(b) it relates to the statutory or common law functions of the Attorney General.
Disputes over classification
The Leader of the relevant Practice Group in the Crown Solicitor's Office classifies legal work as core or non-core (that is, general work). If an agency disagrees with the classification, the classification is reviewed by the Crown Solicitor.
An agency may request a review of the Crown Solicitor's decision by the Secretary of the Department of Communities and Justice.
Core legal work referred by General Government Sector agencies will generally be paid for from the Attorney General’s Legal Fund (formerly the Core Legal Fund) unless a different source of funding is available, for example:
- work paid for by the Treasury Managed Fund; and
work undertaken in respect of Australia’s obligations under the Hague Convention and paid for by the Commonwealth Government.
The Attorney General’s Legal Fund is jointly administered by the Secretary of the Department of Communities and Justice and the Crown Solicitor.
Core legal work referred by non-General Government Sector agencies will not be paid for from the Attorney General’s Legal Fund. Non-General Government Sector agencies are, however, required to refer core matters to the Crown Solicitor. The costs of such matters must be met by the relevant agency or someone else on the agency’s behalf (for example, the Treasury Managed Fund).
Disputes over billing
Clients should check each bill carefully to ensure the matter has been billed appropriately.
Where a client feels they have not been billed appropriately by the Crown Solicitor's Office, the client should raise the issue with the relevant lawyer, or their supervisor. If the client is not satisfied with the response, they should raise the issue with the Secretary of the Department of Communities and Justice.
With regard to settlement of costs orders in matters funded from the core legal fund, the following requirements apply:
- Where the Attorney General's Legal Fund is liable to pay costs in excess of $50,000 under a costs settlement (whether or not the costs are payable under a costs order), the Crown Solicitor must approve the settlement of the claim.
- Where the Attorney General's Legal Fund is to benefit from a costs settlement (whether or not the costs are payable under a costs order), the Crown Solicitor must approve the settlement where the amount of costs foregone will exceed $50,000.
- Before approving the settlement of the above claims the Crown Solicitor must be satisfied it is appropriate to do so, having regard to the conduct of the proceedings and the impact on the Attorney General's Legal Fund.
- Where the amount recovered by the client under the settlement is in excess of $500,000, the Crown Solicitor may require the client to pay the amount of the costs met from the Attorney General's Legal Fund (to the extent that these costs are not otherwise covered by the settlement), such amount to be credited to the Attorney General's Legal Fund within 21 business days.