Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017
The submission to the Senate Legal and Constitutional Affairs Committee regarding the Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017 was prepared by the Law Council with assistance from the Law Society of Western Australia and the Law Society of South Australia.
The Law Council acknowledges the importance of the Commonwealth maintaining proper standards in the way it undertakes legal work, including the way it conducts itself in litigation. The Law Council supports the standards to be observed by the Commonwealth, as set out in the Legal Services Directions 2017 (Legal Service Directions), and in particular, the Model Litigant Obligations in Appendix B of the Directions.
The Law Council observes that the Legal Services Directions deal with two broad themes:
- the first concerns administrative and governance matters such as: agency responsibilities for legal services, reporting on legal services expenditure and the legal work undertaken by agencies; the tied areas of Commonwealth legal work; assistance to Commonwealth employees for legal proceedings; procurement of legal services; and the power of the Attorney-General to impose sanctions for noncompliance with the Directions.
- the second concerns litigation, including: efficiency and effectiveness; not starting litigation unless satisfied it is the most suitable method of dispute resolution; not starting litigation unless legal advice is received that there are reasonable grounds for starting proceedings; and the Commonwealth’s obligation to act as a model litigant.
The proposed amendments to the Judiciary Act 1903 (Judiciary Act) seek to introduce statutory qualifications and controls over the proceedings and processes of the courts (and tribunals) in circumstances where a party to proceedings has lodged a complaint about the conduct of the Commonwealth and/or its advocates representing it in those proceedings to an (albeit statutorily independent) agency of the Executive (the Commonwealth Ombudsman).
The Law Council notes that the way litigation before the courts (and tribunals) is conducted is ultimately controlled and managed through the inherent powers of the courts to control the conduct of proceedings, the rules of the courts (and tribunals), the duties and other professional obligations of legal practitioners and the common law.
On the other hand, the primary purpose of the Commonwealth Ombudsman is to investigate actions that relate to matters of administration, and to report on his or her opinions concerning the matters investigated, including his or her opinion on how a matter might be addressed, corrected or remedied.1
While the Law Council supports, as a matter of principle, the importance of effective mechanisms to ensure that the Commonwealth and its agencies comply with the model litigant obligation, the Law Council does not support the proposed amendments as an effective way of achieving this outcome.
You can read the full submission below.