The Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017 was introduced into the Senate, as a private members bill on 15 November 2017 and on 7 December 2017 the Senate referred it to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 8 May 2018.
The Bill, proposes to:
- amend the Judiciary Act 1903 to:
- (i) require the Attorney-General to issue directions applying generally to Commonwealth legal work that contain requirements for Commonwealth litigants to act as model litigants (model litigant obligations); and
- (ii) enable a court to order a stay of proceedings or make orders in relation to contraventions of model litigant obligations; and
- amend the Ombudsman Act 1976 to:
- (i) require the Commonwealth Ombudsman to investigate complaints in relation to contraventions of model litigant obligations; and
- (ii) provide for annual reporting requirements.
Of particular interest to practitioners will be the enforcement provisions: new s55ZGA & s55ZGA of the Judiciary Act. Respectively, they would:
- Allow a party to apply for a stay of the proceedings, whilst the Ombudsman investigated a breach.
- Allow the Court to make such orders as it saw fit, when it determines that the Commonwealth litigant has breached or is likely to breach its ‘model litigant’ obligations.
This is a very valuable step forward, if the Parliament will back this private member’s bill.
[APH website – Bills Tracker; Bill; EM; LTN 235, 7/12/17; Tax Month Dec 2017]
Extract from Explanatory Memorandum
JUDICIARY AMENDMENT (COMMONWEALTH MODEL LITIGANT OBLIGATIONS) BILL 201 7
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 avenue s 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.
Extract from the Bill
Insert into the Judiciary Act:
55ZGA Model litigant obligations : stay of proceedings
(1) This section applies if a party to a proceeding (the applicant ) has 28 made a complaint to the Commonwealth Ombudsman that a
Commonwealth litigant, or a person acting for a Commonwealth litigant in relation to the proceeding, has contravened or is likely to contravene the model litigant obligations in relation to the proceeding.
(2) On the application of the applicant, the court may , if in the opinion 5 of the court it is desirable to do so, by order , stay the proceeding or 6 a part of the proceeding, for the period , and subject to any conditions , the court considers appropriate.
55ZGB Model litigant obligations: orders 9
( 1 ) This section applies if:
(a) a party to a proceeding (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 the proceeding, has contravened or is likely to contravene the model litigant obligations in relation to the proceeding ; and
(b) any of the following has occurred:
(i) the Ombudsman completes an investigation of the contravention or potential contravention;
(ii) the Ombudsman informs the applicant of a decision not to investigate or continue to investigate the contravention or potential contravention and has not transferred the complaint;
(iii) a person to whom the Ombudsman has transferred the complaint completes an investigation of the contravention or potential contravention;
(iv) a person to whom the Ombudsman has transferred the complaint informs the applicant of a decision not to investigate or continue to investigate the contravention or potential contravention;
(v) 60 days (or a longer period agreed between the applicant and the Ombudsman) pass since the complaint was made.
( 2 ) If, in a proceeding to which the applicant and the Commonwealth litigant are party, the court is satisfied, on the application of the applicant, that the Commonwealth litigant or person acting for the Commonwealth litigant contravened or is likely to contravene the model litigant obligations as referred to in the complaint, the court may make any order it considers appropriate.