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Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017

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2016-2017

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

JUDICIARY AMENDMENT (COMMONWEALTH MODEL LITIGANT OBLIGATIONS) BILL 2017

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Leyonhjelm)



JUDICIARY AMENDMENT (COMMONWEALTH MODEL LITIGANT OBLIGATIONS) BILL 2017

 

OUTLINE

 

The Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017 subjects Commonwealth litigants to enforceable model litigant obligations.

 

The Productivity Commission was tasked in June 2013 with conducting an inquiry into access to justice.  The Commission reported on its inquiry in September 2014. 

 

In its report the Commission noted that:

·          governments should act as model litigants given their power, resources, ‘frequent-player status’ and role of acting in the public interest;

·          model litigant obligations would not prevent governments from acting firmly to protect their interests;

·          while the Commonwealth has issued model litigant obligations on Commonwealth litigants, a number of parties submitted that these obligations are not always complied with;

·          ombudsmen are ‘ready-made’ independent bodies that could receive and review complaints regarding contraventions of model litigant obligations; and

·          a number of parties submitted that courts and tribunals should be empowered to enforce model litigant obligations. 

 

The Commission recommended that:

·          government, their agencies and legal representatives should be subject to model litigant obligations; and

·          compliance with these obligations should be monitored and enforced, including by establishing formal avenues of complaint to government ombudsmen for parties who consider that model litigant obligations have not been met.

 

This Bill enacts this recommendation as it relates to the Commonwealth.  It requires the Attorney-General to oblige Commonwealth litigants to act as model litigants, in line with current practice.  It establishes a process by which the Commonwealth Ombudsman can investigate complaints regarding contraventions of these obligations, and requires the Ombudsman to include details of these complaints in annual reports.  It empowers a court to order a stay of proceedings and, if it is satisfied of a contravention, to make any order it considers appropriate.

 

In its April 2016 response to the inquiry, the Government rejected the recommendation to make model litigant obligations enforceable.  The Government stated that compliance is a matter between the Attorney-General and the relevant Commonwealth agency or Department, and that any other approach could give rise to technical arguments and result in additional costs and delay in litigation involving the Commonwealth.  However, this ignores the reality that current model litigant obligations include obligations to not rely on unnecessarily technical arguments, to keep costs to a minimum and to avoid delay, with the consequence that making these obligations enforceable is likely to reduce costs, delays and the use of unnecessarily technical arguments.

 

NOTES ON CLAUSES

Clause 1: Short Title

1.           This clause provides for the Bill, when enacted, to be cited as the Judiciary Amendment (Commonwealth Model Litigant Obligations) Act 2017 .

Clause 2: Commencement

2.           This clause provides that the Bill commences on the day after Royal Assent.

Clause 3: Schedules

3.                        Each Act specified in a Schedule to this Bill is amended or repealed as is set out in the applicable items in the Schedule.  Any other item in a Schedule to this Bill has effect according to its terms.



 

Schedule 1 — Amendments to the Judiciary Act 1903

Item 1 - Section 2

4.                   Item 1 defines a Commonwealth litigant as a person or body referred to in subsection 55N(1), not including the Australian Government Solicitor when providing services under subsection 55N(2). 

5.                   Section 55N(1) refers to:

·          the Commonwealth, a body established by an Act or regulations or by a law of a Territory, and past and present officers and employees thereof ;

·          a person suing or being sued on behalf of the Commonwealth;

·          a Minister, or former Minister, of the Commonwealth;

·          a person holding office, or who held office, under an Act or a law of a Territory;

·          a member, or former member, of the Defence Force; and

·          a company in which the Commonwealth has a controlling interest.

6.                   The exclusion of the Australian Government Solicitor when providing services under subsection 55N(2) ensures that the Commonwealth Ombudsman is not tasked with investigating complaints about State Government litigants not acting as model litigants, even when the State Government litigant is represented by the Australian Government Solicitor.

7.                   The application of the Commonwealth Ombudsman’s coercive information gathering powers to State Government litigants would undermine the federation’s division of powers and violate the doctrine of intergovernmental immunities recognised by the High Court.  Whether a State Government imposes enforceable model litigant obligations on itself is a matter for that State Government.

8.                   Item 1 also defines model litigant obligations as requirements in Legal Services Directions relating to acting as a model litigant.  This currently relates to the requirements in paragraph 4.2 ( The Model Litigant Obligation ) and appendix B ( The Commonwealth’s Obligation to Act as a Model Litigant ) of Legal Services Directions 2005 .

Item 2 - After subsection 55ZF(2)

9.                   Item 2 establishes a requirement to act as a model litigant by inserting subsection 55ZF(2A). 

10.               The requirement does not extend to criminal prosecutions and related proceedings.  This approach aligns with Legal Services Directions 2005 , which states at Note 4 that the Directions are not intended to cover the handling of criminal prosecutions and related proceedings unless expressly referred to.

11.               The requirement to act as a model litigant falls on Commonwealth litigants and persons acting for Commonwealth litigants.  The inclusion of persons acting for Commonwealth litigants aligns with the model litigant obligations of Legal Services Directions 2005 , which states — at note 1, paragraph 2, appendix B — that:

“lawyers engaged in such litigation, whether Australian Government Solicitor, in-house or private, will need to act in accordance with the obligation and to assist their client agency to do so.”

12.               The requirement to act as a model litigant must be contained in Legal Services Directions applying generally to Commonwealth legal work.  Section 55ZF already allows the Attorney-General to issue Legal Services Directions that are to apply generally to Commonwealth legal work, and this power has already been used to issue Legal Services Directions containing model litigant obligations.  Item 2 converts the discretion to do this into an obligation.

13.               Item 2 also inserts subsection 55ZF(2B), which confirms that new subsection 55ZF(2A) does not prevent the Attorney-General from using Legal Services Directions for other purposes.

Item 3 - At the end of subsections 55ZG(2) and (3)

14.               Item 3 broadens the circumstances in which compliance with a Legal Services Direction is enforceable and non-compliance may be raised in a proceeding, to cover the circumstances set out by this Bill.

Item 4 - After section 55ZG

15.               Item 4 inserts section 55ZGA.  It allows a court to stay a proceeding or part of a proceeding for a period the court considers appropriate and subject to any conditions the court considers appropriate.  The court may do so provided that a party to the proceeding:

·          has made a complaint to the Commonwealth Ombudsman that a Commonwealth litigant, or a person acting for a Commonwealth litigant, has contravened or is likely to contravene the model litigant obligations in relation to the proceeding; and

·          applies for a stay.

16.               Item 4 also inserts section 55ZGB.  It allows a court to make any order it considers appropriate, provided that:

·          a party to a proceeding (hereafter called ‘the applicant’) has made a complaint to the Commonwealth Ombudsman that a Commonwealth litigant, or a person acting for a Commonwealth litigant in relation to that proceeding, has contravened or is likely to contravene the model litigant obligations in relation to that proceeding;

·          the Ombudsman, or a person to whom the Ombudsman has transferred the complaint, has completed an investigation into the complaint or has advised of a decision not to investigate, or 60 days have passed since the complaint was made; and

·          in a proceeding to which the applicant and the Commonwealth litigant are party (which is not necessarily the proceeding in which the complaint arose), the court is satisfied, on the application of the applicant, that the Commonwealth litigant, or a person acting for a Commonwealth litigant, contravened or is likely to contravene the model litigant obligations as referred to in the complaint.

17.               A court may consider it appropriate to make an order under section 55ZGB to, for example:

·          promote future compliance by the Commonwealth litigant with model litigant obligations, or

·          respond to what the court considers to be a past failure to act as a model litigant, such as through a costs order against the Commonwealth litigant.

Items 5 - Subsection 55ZI(2)

18.               Items 5 and 6 amend section 55ZI, which outlines instances where a person is not liable to an action or other proceeding, whether civil or criminal, for or in relation to an act done or omitted to be done. 

19.               Together Items 5 and 6 ensure that the protection provided by section 55ZI does not prevent the enforcement of model litigant obligations set out by this Bill.  This involves a two-step process.  Item 5 reduces protections more than what this Bill requires, and Item 6 reinserts certain protections in light of this.  The overall effect is that protections unrelated to model litigant obligations continue.

20.               Note that Items 5 and 6 do not affect subsection 55ZI(1), which protects the Attorney-General for acts done in compliance or purported compliance with a Legal Services Direction.  The enforcement of model litigant obligations should involve the parties in litigation, the Commonwealth Ombudsman and the court.  It should not involve the Attorney-General merely because the Attorney-General issues Legal Services Directions containing model litigant obligations.

21.               Subsection 55ZI(2) currently protects a person other than the Attorney-General for acts done in compliance, or in good faith in purported compliance, with a Legal Services Direction.  Item 5 removes the protection for acts done ‘in good faith in purported compliance’ with a Legal Services Direction, because ‘purported compliance’ can reflect non-compliance.  If a person were to continue to enjoy a broad protection with respect to non-compliance with a Legal Services Direction, then the purpose of this Bill would be thwarted, given that it is concerned with responses to non-compliance with model litigant obligations in a Legal Services Direction.

Item 6 - At the end of section 55ZI

22.               Item 6 inserts a limited protection in light of Item 5’s removal of a broad protection.

23.               Item 6 adds subsection 55ZI(3).   This subsection protects a person other than the Attorney-General for acts done by the person in good faith in purported compliance with a Legal Service Direction, subject to the new sections 55ZGA and 55ZGB dealing with model litigant obligations.  By subjecting this subsection to the new provisions dealing with model litigant obligations, no protection is provided that would override these new provisions.

Item 7 - Application

24.               Item 7 is an application provision ensuring that the amendments made by this Schedule 1 do not apply to contraventions of model litigant obligations occurring prior to or on the day of Royal Assent.  As such, Schedule 1 is wholly prospective.



 

Schedule 2 — Amendments to the Ombudsman Act 1976

Item 1 - Subsection 3(1)

25.               Item 1 inserts definitions for Commonwealth litigant and model litigant obligations in line with the definitions inserted by Item 1 of Schedule 1.

Item 2 - After section 5A

26.               Item 2 does a number of things.  Firstly, it inserts subsections 5B(1) and 5B(2) to require the Ombudsman to investigate complaints that a Commonwealth litigant, or a person acting for a Commonwealth litigant, has contravened or is likely to contravene model litigant obligations.   Secondly, it inserts subsection 5B(3) to require the Ombudsman’s annual reporting to include details of complaints to and action by the Ombudsman in relation to model litigant obligations.  Thirdly, it inserts subsection 5B(4) to confirm that this new section 5B does not limit or otherwise affect the Ombudsman’s other powers, functions or duties.

27.               Further explanation of newly-inserted subsections 5B(1) and 5B(2), regarding a requirement for the Ombudsman to investigate, is provided below.

28.               Subsection 5B(1) and paragraphs 5B(2)(a) and 5B(2)(b) respond to section 5of the Ombudsman Act 1976 .  Paragraph 5B(2)(c) responds to the Act’s subsection 6(12).  Paragraph responds to Act’s section 6D.  Each insertion is explained in turn.

29.               Section 5(1)(a) of the Ombudsman Act 1976 states that the Ombudsman shall investigate action that is complained about and that:

·          relates to a matter of administration ;  and

·          is taken by a Department or prescribed authority .

30.               Subsection 5B(1) and paragraphs 5B(2)(a) and 5B(2)(b) ensure that section 5 covers complaints that a Commonwealth litigant, or a person acting for a Commonwealth litigant, has contravened or is likely to contravene model litigant obligations. 

31.               Subsection 5B(1) ensures that legal work performed by or for a Commonwealth litigant that relates to model litigant obligations is always considered to be action that relates to a matter of administration .

32.               Paragraphs 5B(2)(a) and 5B(2)(b) ensure that the legal work performed by or for a Commonwealth litigant is always considered to be action taken by a Department or prescribed authority .  This is done in a two-step process.

33.               Firstly, paragraph 5B(2)(a) ensures that there are four categories of Commonwealth litigants.  It states that, if a Commonwealth litigant is not: (1) a Department, (2) a prescribed authority, or (3) a person or body whose action is deemed to be taken by a Department or prescribed authority, then the Commonwealth litigant is (4) deemed to be a prescribed authority.

34.               Secondly, paragraph 5B(2)(b) ensures that, with respect to each of these four categories, the legal work is considered to be taken by a Department or prescribed authority.

·          For categories (1), (2) and (4), sub-paragraph 5B(2)(b)(i) deems the legal work to be taken by the Commonwealth litigant, even if the action is for the Commonwealth litigant.  Note that for these categories, the Commonwealth litigant is a Department, a prescribed authority, or is deemed to be a prescribed authority.

·          For category (3), sub-paragraph 5B(2)(b)(ii) deems the legal work to be taken by the Department or prescribed authority, even if the action is for the person or body in category (3).

35.               Subsection 6(12) of the Ombudsman Act 1976 allows the Ombudsman to decide to cease investigating a complaint or to not investigate a complaint if the Ombudsman forms the opinion that the action complained about relates to a commercial activity of a Department or prescribed authority.  So that the Ombudsman cannot make such a decision when it receives a complaint about legal work performed by or for a Commonwealth litigant that relates to model litigant obligations, newly-inserted paragraph 5B(2)(c) deems the legal work to not relate to a commercial activity of the Commonwealth litigant.

36.               Section 6D of the Ombudsman Act 1976 , among other things, prohibits the Ombudsman from investigating tax administration action except in specific circumstances, and requires the Ombudsman to transfer complaints wholly in respect of tax administration action to the Inspector-General of Taxation.  So that the Ombudsman faces no such prohibition or requirement when it receives a complaint about legal work performed by or for a Commonwealth litigant that relates to model litigant obligations, newly-inserted paragraph 5B(2)(d) deems the legal work to not be tax administration action.

Item 3 - Application

37.               Item 3 is an application provision ensuring that the amendments made by this Schedule 2 do not apply to legal work performed prior to or on the day of Royal Assent.  As such, Schedule 2 is wholly prospective.



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

JUDICIARY AMENDMENT (COMMONWEALTH MODEL LITIGANT OBLIGATIONS) BILL 2017

 

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

 

Overview of the Bill

The Bill requires the Attorney-General to oblige Commonwealth litigants to act as model litigants, in line with current practice.  It establishes a process by which the Commonwealth Ombudsman can investigate complaints regarding contraventions of these obligations, and requires the Ombudsman to include details of these complaints in annual reports.  It empowers courts to order a stay of proceedings and, if it is satisfied of a contravention, to make any order it considers appropriate.



Human rights implications

In its report on access to justice, the Productivity Commission stated that:

·          governments should act as model litigants given their power, resources, ‘frequent-player status’ and role of acting in the public interest; and

·          model litigant obligations do not prevent governments from acting firmly to protect their interests.

In light of this, this Bill’s imposition of enforceable model litigant obligations on Commonwealth litigants protects the right to a fair trial. 

This right is recognised in Article 14 of the International Covenant on Civil and Political Rights, which states that, in the determination of a person’s rights and obligations, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.



Conclusion

The Bill is compatible with human rights because it protects the right to a fair trial.

 

 

Senator Leyonhjelm