Chris Merritt drew attention to this issue in his Australian article “ABC not a model litigant in Andrew Laming defamation,” which was later picked up by ABC Executive Director David Anderson at the Senate Estimate Hearing the following week. In response, Chris Merritt called for the reintroduction of model litigants into legislation in his article “ABC must be up to the standard of `model litigant`”, stating: 7. Essentially, the fact requires that the State and its authorities, as parties to a dispute, act in a manner that is entirely correct, equitable and in accordance with the highest professional standards. The expectation that the State and its organs act as exemplary litigants has been recognized by the courts. See, for example, Melbourne Steamship Limited v Moorhead (1912) 15 CLR 133, p. 1. 342; Kenny v. State of South Australia (1987) 46 SASR 268-273; Yong Jun Qin v. Minister of Immigration and Ethnic Affairs (1997) 75 FCR 155.
The Model Litigator Policy is designed to provide best practice guidance to government agencies in civil litigation. It is based on the concepts of ethical, fair and honest conduct to model best litigation practices. Under this policy, government agencies are required to: The Office for the Coordination of Legal Services (OLSC) monitors the government`s compliance with the Model Guidelines for Litigants. Complaints about violations can be directed to the OCOL, which also becomes aware of these issues through media reporting, judicial statements, and self-disclosures by government agencies. The Attorney General may impose sanctions for violations of the Model Guidelines for Litigants. However, there is no formal complaints system and publicly available information on violations or their investigations is not available. If a government agency such as a department or agency is involved in litigation, it is expected to act as an exemplary litigator. This means adhering to the highest ethical and professional standards by acting honestly and fairly and trying to resolve the dispute as quickly as possible.
Government agencies are recognized as having more power than individuals and corporations, and therefore should not be seen as an abuse of power that comes with their greater experience, resources, and authority. In Australia, there are model guidelines for litigants that apply both at the Commonwealth level and in each state and territory. This article describes the guidelines for litigants of the Commonwealth model. For local governments that do not have requirements similar to those in New South Wales, the obligations are imposed by common law model litigants. If a court was satisfied that a Commonwealth litigant had breached or was likely to violate the model rules for litigants, it would have had the power to make any order it deemed appropriate. The strength of this approach is that law enforcement is not politicized. Ordinary people who were in dispute with government agencies would have a way to ensure that the financial weight of the Commonwealth could not be abused by bureaucrats. Summarizes the main cases in which the standard obligations of litigants arise. In the case of the Commonwealth, provision is made for the Attorney General`s enforcement of the Act.
There is no equivalent provision for state MLOs. The Attorney General may impose sanctions for non-compliance with the Legal Services Directive under Section 55ZG (2) of the Judicial Act 1903 (Cth). However, these provisions do not require the Attorney General to take steps to ensure compliance. Organizations must notify the Office for the Coordination of Legal Services of any actual or potential non-compliance with the 2017 Legal Services Directives. Any government agency or agency that is a party to any form of litigation in any area of law is bound by the Model Guidelines for Litigants. This applies regardless of whether the government is the plaintiff or the defendant and regardless of the court before which the case is pending. It applies in both criminal and civil matters. As an Australian government agency, the ATO applies the highest standards of ethical conduct when involved in litigation. As a result, our litigation obligations go beyond those imposed on private litigants.