The introduction of ‘pro bono conditions’ in relation to the Commonwealth Government’s Legal Services Multi-Use List (LSMUL) has been a significant factor contributing to the growth in law firm pro bono in Australia.
Although the LSMUL ceased on 30 June 2018, in the interim Commonwealth entities were still required to take into account a legal services provider’s pro bono contribution and commitment when deciding whether to engage them to provide legal services until the new arrangements commenced.
On 16 August 2019, the new Whole of Australian Government Legal Services Panel arrangements commenced. There are currently 60 firms listed on the Commonwealth Panel. For details on changes to the pro bono conditions, please see below.
The Commonwealth Government implemented reforms to the Commonwealth’s procurement of legal services on 1 July 2008. The reforms sought to further the efficient resolution of disputes and to provide greater transparency and competition in the Commonwealth legal services market. The reforms were implemented by amendments to the Legal Services Directions 2005, which have now been replaced by the Legal Services Directions 2017(Directions).
The previous pro bono provisions
The 2008 reforms introduced ‘pro bono conditions’ which required Commonwealth agencies, departments and statutory authorities (together, ‘agencies‘) to take into account a firm’s pro bono commitment when making their decision as to whether or not to engage that firm (see clause 5 of Appendix F to the Directions).
The operation of these pro bono conditions was broadened with the introduction of the Commonwealth LSMUL arrangements that were in place from 1 June 2012 to 30 June 2018. From 1 June 2013, most Commonwealth agencies were required to purchase legal services under these arrangements.
As part of the LSMUL application process, all firms were required to:
confirm that they subscribe to the National Pro Bono Resource Centre’s (as the Centre was formerly known) Aspirational Target; or
nominate a target value of Pro Bono Work over a financial year.
From 1 July 2014, firms with 50 or more lawyers were required to become signatories to the Target and were no longer able to nominate their own target value of Pro Bono Work.
The LSMUL ceased on 30 June 2018, and with it some of the conditions that formally encouraged firms to undertake pro bono legal work.
In the interim, between 30 June 2018 and 16 August 2019, under Paragraph 5 of Appendix F to the Directions, a Commonwealth entity still needed to take into account a number of matters when choosing a particular legal services provider, including:
the amount and kind of pro bono legal work the provider has undertaken, or will undertake
whether the provider has signed up to the Target.
The definition of “pro bono legal work” in Appendix F of the Directions is based on the Centre’s definition of “pro bono legal services”.
The new Whole of Australian Government Legal Services Panel
A new procurement model for external legal services has been developed and is called a “Whole of Australian Government Legal Services Panel”. These new arrangements commenced on 16 August 2019.
The new Commonwealth Panel Head Agreement requires all legal services providers to sign up to the Centre’s National Pro Bono Target, use their best endeavours to meet or exceed it, and maintain records and report on Pro Bono Work at the end of the financial year. Pro Bono Work is defined consistently with the Centre’s definition of pro bono legal services. The Attorney-General’s Department agrees that legal service providers may act against the Commonwealth in Pro Bono Work where there is no conflict of interest.
As with Victoria, New South Wales, and Queensland (all of which have whole-of-government panel models of legal service procurement), the number of firms on the new Commonwealth Panel is significantly less than those that were on the LSMUL. Unfortunately, this means that many firms who formally made a pro bono commitment as required by the LSMUL will no longer be bound by that commitment.
However, the Centre expects that these firms (many of them now Target signatories) will continue their commitment to pro bono work.
Further information on the new Commonwealth Government Legal Services Panel can be found here.
You can also find more discussion of pro bono provisions in government tender arrangements, including a comparison of the arrangements put in place by the Commonwealth, Victorian, New South Wales and South Australian Governments here.