The Commonwealth Attorney- General has recently amended
the Legal Services Directions 2005 (Cth), which apply generally to
Commonwealth legal work, to clarify the circumstances in which an
agency subject to the Financial Management and Accountability Act
1997 (Cth) (FMA agency) may apply for a suppression
The amendment inserts new paragraph 4.9 which provides, in
subparagraph (a), that an FMA agency may only apply for a
suppression order if it considers suppression of certain evidence
or information is "reasonably necessary to protect the
Commonwealth". Paragraph 4.9(b) clarifies that a suppression
order cannot be sought only to avoid a disclosure or publication
"that may be embarrassing to the Commonwealth or its
agencies". As set out in Note 2 to paragraph 4.9, the
amendment is not intended to prevent an application for a
suppression order in respect of evidence that may be embarrassing,
but only if there are legitimate Commonwealth interests to
According to the Explanatory Statement, the effect of the
amendment will be that any FMA agency seeking suppression orders to
avoid embarrassment, in the absence of a legitimate purpose, will
be in breach of the Legal Services Directions. Any breaches must be
reported to the Office of Legal Services Coordination (OLSC) in the
According to OLSC, consultation on the amendment was conducted
in 2008 and the balance of stakeholder opinion was that there was a
public interest and benefit in holding the Commonwealth to a higher
standard than other litigants, and that the amendment will assist
to ensure that information is only suppressed where necessary and
The amendment came into effect on 29 January 2010.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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