Page 3408 - Week 09 - Wednesday, 19 August 2009
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win-at-all-costs mentality. A commitment to good process was abandoned in favour of the private sector imperative to get results and for managers to achieve performance measures based on dollars saved or cases won. Lawyers acting on behalf of the government found themselves under pressure to put their duty as officers of the court behind their corporate objectives. Of course, this approach is unlikely to serve the best interests of either claimants or the public interest, which, in the case of action taken by governments, should be of paramount importance.
Having formal statutory guidelines for behaviour to refer to will be a welcome relief for public sector lawyers who want to resist such unwelcome pressure to compromise their professional standards. I am not saying that most or even many public sector lawyers in the ACT have failed to live up to the higher ethical standard required of them, but putting these requirements in place should ensure we do not reach that point where it is in question.
Having said that, the Greens, and I am sure the opposition, have heard of cases where ACT government agencies appear to be using legal action or the threat of legal action to intimidate and break down the will of their opponent by enmeshing them in seemingly endless and expensive court or tribunal proceedings. There have been unfavourable comments made by the Ombudsman about the approach taken by some ACT government agencies to ensure that their statutory interpretations are based on sound and up-to-date advice. It is often the case that the people against whom the might of the Crown is wielded are the least capable of resisting such pressure.
We have also witnessed criticisms of the way in which the Crown in the ACT undertakes its prosecutions. Often this is put down to a lack of resources in the DPP, a lack of coordination between the DPP and ACT Policing, or a lack of experience on the part of DPP prosecutors. But sometimes it is more serious than that. There have been a number of cases where the judiciary has been critical of the way in which the Crown has gone about trying to establish its case.
In the recent Supreme Court case of Abuaagla, Chief Justice Higgins expressed concern that the prosecution counsel had coached their witness to “misremember” a crucial fact, which was the timing of an event. He expressed concern that the prosecution had failed to call another witness who was present at the scene because they knew that the second witness could contradict the witness they had called and whose testimony turned out to be thoroughly unreliable. I wonder whether the Attorney-General has taken action to investigate these concerns expressed by the Chief Justice or whether he has even been briefed on them. Hopefully, the passage of today’s bill will go some way to ensuring that such practices will not happen in the ACT in the future.
An early explanation of the principle behind the model litigant rules exists in the observations of Sir Samuel Griffith, the Chief Justice of the High Court, in his ruling in Melbourne Steamship Co Ltd v Moorehead. The Chief Justice said, in expressing his surprise about a technicality, that the Attorney-General had put to the court:
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 … is either not known or thought out of date.
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