Page 3407 - Week 09 - Wednesday, 19 August 2009
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already adopted. It will amend the Attorney-General’s functions under the Law Officer Act to express a responsibility that, as Attorney-General, I already am aware of and committed to upholding. These changes are, in general, unobjectionable restatements of existing law, and the government’s agreement to it only re-emphasises its commitment to ensuring fair and honest conduct.
MR RATTENBURY (Molonglo) (6.07): I would like to welcome Mrs Dunne’s bill today. This bill will require the Attorney-General to create binding standards of ethical behaviour for people performing legal work on behalf of the government. This is a welcome step that brings the ACT closer in line with the commonwealth, and while it will not create an actionable right against the Crown, it will establish an ethical standard by which legal practitioners will be measured.
This bill compels the Attorney-General to issue model litigant guidelines and to ensure that anyone who is performing territory legal work is at least aware that they should comply with those guidelines. The bill also serves to spell out protections from liability for people who seek to comply with the guidelines while undertaking territory legal work and instigates reporting on compliance and breaches of the code.
I would like to acknowledge initially that government already has model litigant guidelines in place, as the attorney has just outlined, but they have limited legal status. Anecdotally, we are concerned they are not always complied with. It is unfortunate that the Labor government has not seen fit to raise the model litigant guidelines to the status of a legislative instrument before. This legislation establishes a statutory requirement for the Attorney-General to issue the guidelines and for public servants and people acting on behalf of the Crown to comply with them.
This legislation establishes a statutory requirement for the Attorney-General to issue the guidelines and for public servants and people acting on behalf of the Crown to comply with them. The Greens will also be tabling an amendment to Mrs Dunne’s bill, and that has already been circulated and discussed. We believe that will add some clarity and certainty about where the responsibility for ensuring compliance of the guidelines should rest, but I will return to outline this in more detail later. I would note that I appreciate the support that has already been offered and flagged on that amendment.
In virtually every legal dispute between the government and a private citizen or corporation, the government has an overwhelming advantage both in terms of financial and legal resources and in terms of access to relevant and probative information. Our adversarial system of law encourages a no-holds-barred, winner-take-all approach to litigation, whereby any points conceded or courtesies extended can be interpreted as signs of weakness or as poor choices of tactics if they help the opponent to advance their case in any way. Some private law firms have pushed the limits of what is acceptable professional conduct in pursuit of their clients’ interests. The corporatisation of legal firms has also introduced novel challenges for lawyers in upholding their ethical responsibilities to the court at the same time as pursuing shareholder value.
Under the Howard government, ethical standards in the public sector declined as ethics and moral imperatives took a back seat to political pragmatism and a
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