The Commonwealth Government’s Legal Services Multi-Use List (LSMUL) of firms authorised to provide legal services to the Commonwealth ceased on 30 June 2018 and with it some of the conditions that formally encouraged firms to undertake pro bono legal work.
Under Paragraph 5 of Appendix F to the Legal Service Directions 2017, a Commonwealth entity must still take into account a number of matters when choosing a particular provider, including the amount and kind of pro bono legal work the provider has undertaken, and will undertake, and whether the provider has signed up to the National Pro Bono Target (Target).
A new procurement model for external legal services is being developed by a joint project team of officers from the Attorney-General’s Department and the Department of Finance. The new model is expected to be a “whole-of-government panel model” through an open tender process with the new arrangements expected to commence early or mid-2019.
Commonwealth Attorney-General, the Hon. Christian Porter stated in a letter to the Centre dated 28 February 2018 that:
The Australian Government is committed to supporting the National Pro Bono [Aspirational] target. The target will be one of a number of other broader policy considerations that will be taken into account as the new procurement arrangement is developed.
Also, recent discussions between the Centre and the Office of Legal Services Coordination (OLSC), a team within the Attorney-General’s Department, indicate an ongoing commitment by the Commonwealth to its role in requiring reporting of pro bono performance and it being taken into account in its purchasing decisions under the new arrangements. The team has indicated that “they anticipate that the Target would be the primary means by which providers demonstrate their commitment to pro bono work”.
The Centre has submitted to the project team that the current scheme should be strengthened by requiring that all firms on the new Commonwealth whole-of-government panel be signatories to the Target and continue to report annually to the Centre and to the Commonwealth.
OLSC is finalising the policy underpinning the new Panel. OLSC is consulting with Commonwealth agencies and industry. The draft head agreement for the whole-of-government panel requires legal services providers to sign up to the National Pro Bono Target and use their best endeavours to meet or exceed the National Target for Pro Bono Work per lawyer per year.
A key part of the scheme has been the requirement for annual reporting by firms. The Centre understands that firms that were previously on the LSMUL were asked to report their pro bono performance by 31 July 2018 for the 2017/2018 year.
With the new arrangements expected to commence in mid-2019, the new pro bono conditions will be in place for the 2019/2020 year.
As with Victoria, NSW, and Queensland, who all have whole-of-government panel models of legal service procurement, the number of firms on the new Commonwealth panels is likely to be significantly less than those that were on the LSMUL. Unfortunately, this means that quite a number of firms who formally made a pro bono commitment as required by the LSMUL will no longer be bound by this. The Centre will work to encourage these firms to remain, (or become) Target signatories.