The Commonwealth’s conduct in legal cases is under pressure to improve amidst concerns it has a “win at all costs” approach, said the ‘Public Sector Informant’, the monthly newspaper ‘bible’ of the federal Public Service. Here’s the article, by CLA’s Bill Rowlings, that backs up that statement.
The very model of a model litigant
By Bill Rowlings*
Article in The Canberra Times ‘Public Sector Informant’ of 4 Nov 08.
Legal, administrative and community organisations are planning a major effort in 2009 to ensure that the government rekindles and reinforces ‘model litigant’ practices.
The aim is to revert the rhetoric surrounding the statement: ‘The government is a model litigant’ back into the reality it used to be. The ‘model litigant rule’ is that the government should behave impeccably, to the highest possible standards, in all its legal dealings. The Commonwealth is not supposed to win at all costs.
“There’s no doubt that standards of government behaviour in legal and para-legal situations have declined,” the president of Civil Liberties Australia, Dr Kristine Klugman, said. “Increasing numbers of ‘little people’ came to us complaining about how they were mistreated by the government in court cases, tribunals and general dealings where someone’s pension or entitlement depended on interpreting the law.”
CLA discussed their concerns with the Australian Institute of Public Administration (AIPA), the Law Council of Australia (LCA), the Australian Lawyers’ Alliance (ALA) and a senior counsel who had worked in the top echelons of the Attorney-General’s Department (AGD). All agreed an apparent behavioural decline by government departments and agencies was a major issue that needed urgent attention.
“We’re working on a plan to put to the Attorney-General, Robert McClelland,” Dr Klugman said. “It is totally inequitable when a 200kg gorilla like the government acts irresponsibly towards little people in society, who are absolutely powerless by comparison. Bad government behaviour should never be overlooked, even if it is legal.”
The president of the AIPA, Andrew Podger, is considering a roundtable on the model litigant principle in 2009. Already, Shadow Attorney-General George Brandis, a barrister, has said he would like to take part. The Law Council will consider adding keynote sessions to its major legal conferences in 2009 on the issue, as will the ALA, where 2009 incoming national president, Mark Blumer of Blumers Lawyers in Canberra, is taking a personal interest.
“Some observers blame a decline in government standards of behaviour on outsourcing legal services to the private sector,” Dr Klugman said. “Others say outsourcing legal services is fine, but education and training for private sector lawyers and law firms, and for lawyers and legal administrators in the Public Service (PS), is entirely inadequate.”
The AGD is well aware of problems. As Deputy Secretary Ian Govey has said: “Criticisms of the Commonwealth have covered a range of conduct, including the taking of technical points (such as the proper name of a respondent), failing to comply with procedures to serve the fair and orderly preparation of a matter for hearing, failure to act in a timely manner in respect of procedural steps and failing to give other parties the opportunity to respond to adverse evidence.”
The AGD’s Office of Legal Services Coordination (OLSC) is responsible for administering the Legal Services Directions (LSDs), under which the model litigant rules fall. The LSDs are binding rules issued by the A-G about legal work for the Commonwealth, whether performed in-house, by the Australian Government Solicitor (AGS) or by other external legal service providers.
But OLSC takes a softly-softly approach to education and enforcement, and relies on self-reporting of breaches. OLSC interest seems to have petered out in 2005, date of the last case reported on their website.
“We’re proposing a four-point plan, with $2m to be allocated in the 2009 Budget to implement it,” Dr Klugman said. The proposal is an overhaul of model litigant rules to:
- reinvigorate previous standards;
- ensure widespread education throughout government, in law firms, and in law schools;
- widely disseminate information publicly about the higher expectations on the government in litigation and para-legal situations; and
- introduce greater transparency in reporting on non-compliance, and in enforcing sanctions against secretaries and agency CEOs.
Under the plan, lawyers would need to complete ‘model litigant’ modules as part of professional development to work on government legal matters.
Some proposals are not new: ANU academic Sue Tongue proposed widespread education and publicity after conducting an inquiry in 2003. And the obligation for the government to act with absolute propriety in legal and para-legal matters is age-old:
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.
- Chief Justice Griffith (Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69; (1912) 15 CLR 333 (21 October 1912). The two other High Court judges on the case, who agreed and allowed the appeal, were also Canberra suburbs: Barton and Isaacs.
LSDs come under the Judiciary Act 1903, have more weight than guidelines and are binding on departments and agencies, according to Mr Govey: “LSDs (and model litigant rules) were part of the reforms of the Commonwealth legal services market, which also saw the Australian Government Solicitor set up as a statutory authority, separate from the AGD, and opening up of most Commonwealth litigation to competition with private sector firms.
“Chief executives are personally responsible for ensuring that strategies are in place to comply with the LSDs. Chief executives are also responsible for ensuring that all lawyers providing legal services to the agency are themselves aware of the LSDs, and that these lawyers assist the agency to achieve compliance. (It) applies to the handling of civil claims and litigation, including before courts, tribunals, inquiries and alternative dispute resolution processes,” Mr Govey said. But no government secretary or CEO has ever been hauled over the coals – so far as is publicly known – for how their legal departments manage or mismanage legal cases.
It will be interesting to see whether Defence’s hydra-headed executive, Secretary Nick Warner and Chief of the Defence Force Angus Houston, is asked to ‘please explain’ over the settling in October 2008 of four suicide cases at the direction of Defence Minister Joel Fitzgibbon. In those cases, a reportedly recalcitrant legal division’s advice held up resolution and the awarding of compensation to parents physically and mentally traumatised by the ordeal of Defence’s legalised obfuscation.
Defence has long held a reputation for playing legal hardball. CLA is aware of another case, also involving an alleged suicide but by a civilian employee, which has been stretched out for three and half years…and is still unresolved. After a police and coronial investigation, the case is on its third internal or ’external’ inquiry.
But not only Defence is at legal war with Australians. In a recent tribunal case, missing documents were the problem:
Example 1:
The former employee of a major department, battling Comcare in the Administrative Appeals Tribunal in 2008, had a case which looked decidedly shaky when Comcare tabled about 70 department-provided documents. Fortunately, the plaintiff had a full copy of her file from years earlier: two documents she had copies of, which the department did not table, were the keys to winning her case.
Was this a genuine accidental mistake by the department to miss tabling those two documents? Perhaps, but lawyers say such stories not unusual.
Example 2:
A 2003 case, from the OLSC website, shows just how concerned that judges and tribunal members can get:
The Tribunal noted that under s 66 of the Safety, Rehabilitation And Compensation Act 1988 an applicant may not submit late evidence. However the Commonwealth was not prevented from submitting late evidence: “[…] it was considered that respondents as model litigants, and because of provisions such as s 37 of the Administrative Appeals Tribunal Act 1975[2], would do the right thing without the threat of sanctions. That confidence is clearly misplaced when events such as happened here take place. This lack of symmetry between the obligations of each party before the tribunal is regrettable.”
– Moline and Comcare [2003] AATA 827: AAT Canberra, 25 August 2003, Mr M J Sassella, Senior Member: Dr M D Miller AO, Member.
In the same case, referring to the Model Litigant Rules, the Tribunal stated:
“Notes 2 and 3 (of the rules) are especially instructive. These require a standard of ethical fairness such that an emanation of the Commonwealth who is a respondent in a tribunal proceeding has an obligation to assist the tribunal to make the correct or preferable decision. That party’s role is not to win at all costs. There will be occasions where a respondent is aware of material favourable to the applicant’s case, sometimes when the applicant’s advisers are unaware of such material. There is an obligation on the Commonwealth in such cases to apprise the tribunal of this material.”
Example 3:
Centrelink in October 2008 replied less than fulsomely to a letter from CLA asking why Centrelink required a first-time age pension applicant to (a) state why he had separated from his wife, and (b) provide a copy of his will.
Centrelink’s reply went into great detail about the “Social Security Act 1991, see subsections 4(2) and 4(3)”. These subsections give the clear impression that the chance of succeeding with an application is miniscule.
What Centrelink failed completely to do was to point in its letter to the very next clause: subsection 4(3A):
The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
That clause puts a different spin on the applicant’s entitlement to fair treatment, and on how Centrelink should behave…but the agency informed its “customer” only about the clauses favorable to the Centrelink position. Perhaps the OLSC should ask Centrelink’s lawyers and chief executive to ‘Please explain’.
NOTE: CLA is collecting examples of legal behaviour by government departments and agencies which breaches model litigant rules: www.cla.asn.au
Bill Rowlings is CEO of Civil Liberties Australia. He is a former PS manager.