Attorney-General Robert McClelland has spoken publicly about his personal commitment to ensuring the Commonwealth operates to the highest possible standards as a Model Litigant. Here’s the relevant extracts from his speech to a seminar in Canberra in late-August 09.
THE OBLIGATION TO ASSIST MODEL LITIGANTS
The topics being discussed today are essential elements of the Australian Government’s goal of providing all Australians with access to justice through our system of courts and tribunals.
Today, I’d like to speak on some key issues…including about the Commonwealth’s model litigant obligation, as found within the Legal Services Directions.
I have asked my Department to consider how our current means of reviewing the legality of administrative decisions is operating, and whether improvements could be made. I have also sought the expert advice of the Administrative Review Council on a range of related issues.
The aim of this work is to gauge whether this aspect of our administrative law system can be enhanced to improve access to justice for ordinary Australians.
The Government takes seriously its responsibility to ensure the system is working effectively and is accessible to people – and recognises that the way agencies behave within the system is an important aspect of achieving this.
The Legal Services Directions and the Model Litigant Obligation
I think it’s important to reflect on what the Legal Services Directions require from Commonwealth agencies as parties to Tribunal proceedings. And also the underlying values reflected in the model litigant obligation.
The Directions set out, in broad terms – the requirement that the Commonwealth and its agencies are to uphold the highest possible standards of fairness, honesty and integrity – going beyond the required ethical or professional standards of lawyers appearing before a court or tribunal.
Specifically, the model litigant obligation requires that the Commonwealth and its agencies:
- act honestly and fairly;
- deal with claims promptly;
- pay legitimate claims without litigation;
- act consistently in the handling of claims and litigation; and
- consider alternative dispute resolution.
The obligation also requires generally keeping costs to a minimum and not taking advantage of claimants who lack resources to litigate a legitimate claim.
This however does not require the Commonwealth to take a soft approach to legal proceedings. The Commonwealth is able to act firmly and properly to protect its interests.
The obligation also doesn’t prevent the Commonwealth from legitimately seeking to recover its costs where appropriate.
Clearly, holding the Commonwealth and its agencies to a high standard is not a new concept.
Although the model litigant obligation was formally articulated in its current form in 2005 – reference is often made in courts and tribunals to the 1912 case of Melbourne Steamship v Moorhead, where Chief Justice Griffith made the following observation:
I am sometimes inclined to think that in some parts – not all – of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.[2]
Almost a century later, this statement is still relevant to Commonwealth’s obligation to act as a model litigant and participant in AAT proceedings.
The old-fashioned standard of fair play remains.
Maintaining a High Standard
As Attorney-General, I am ultimately responsible for ensuring that the Commonwealth maintains a high standard of conduct in proceedings before courts and tribunals.
This means making sure that the Commonwealth and government agencies are aware of, understand, and comply with, the model litigant obligations.
As a result, individuals who seek review of government decisions can be assured of the high standards of conduct of the Commonwealth, and this includes the provision of swift and effective review.
And in line with this, the AAT has expressed its goals in these terms:
to provide a national high quality merits review process that contributes to community confidence in a system of open and accountable government.[3]
The Duty to Assist
Over time, reforms to the Directions have placed an additional obligation, in the duty to assist, on the Commonwealth when appearing before Tribunals, such as the AAT.
These reforms were echoed in the AAT Amendment Bill 2004, requiring Government decision-makers to use their best endeavours to assist the Tribunal to make its decision in relation to the proceeding.[4]
The obligation to provide extra assistance to the Tribunal when an applicant is self-represented is an excellent example of the high standard of conduct expected of the Commonwealth.
This was highlighted in the recent Federal Court matter of Kasupene v Minister for Immigration and Citizenship.[5]
Justice Flick recognised that in some cases, an unrepresented applicant to the Tribunal may be disadvantaged. They may not have advanced evidence within their control, or evidence of central relevance to the decision to be made, and may not have made submissions covering all the material before the Tribunal.
This places both the Tribunal and the unrepresented party at a disadvantage, and makes the task of the Tribunal in coming to the correct and preferable decision more difficult.
The extent of the obligation on the Commonwealth to assist the Tribunal when dealing with an unrepresented party will, of course, differ from case-to-case.
However, Kasupene presents a clear statement that the Commonwealth respondent is obliged to address available evidence that is centrally relevant to the matter, even where it is not advanced by the unrepresented applicant.
This facet of the obligation to assist plays an important part in ensuring access to justice and equality between parties. And it underlines that matters before the Tribunal should not be conducted in an adversarial manner.
Member Webb commented in the 2005 matter of Pitkin that:
it is expected that the model litigant policy will be upheld and that cases will be properly prepared, with due regard to issues of procedural fairness, in order to assist the Tribunal to come to the correct or preferable decision.[6]
I agree, and expect, along with members of the general public, that the Commonwealth must demonstrate model conduct in proceedings, and be assessed on its performance as a model litigant and as an assistant to the Tribunal.
Conclusion
I would like to re-emphasise that the Government and the community expect courts and tribunals reviewing administrative decisions to work effectively and efficiently.
In order to achieve this, it is incumbent on the Commonwealth, and indeed all parties in the process, to demonstrate the highest possible standards of conduct.
The strong interest in this seminar is itself encouraging.
I feel confident that we can continue to work together to develop our justice system to guarantee accessible, efficient and just outcomes that benefit all of us.
Thank you.