Page 3409 - Week 09 - Wednesday, 19 August 2009
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
Yet over 100 years later, it is not as if things have necessarily improved. In 2008, in the case of Morgan v State of Victoria, Justices Nettle and Ashley said:
… Victoria’s position was hardly that of the model litigant which it purports to be and should have been. Throughout, whatever be the explanation for it, Victoria’s position towards the appellant was very aggressive, repayment being sought prematurely and otherwise inappropriately, and contempt proceedings being threatened on several occasions and ultimately being brought when on proper analysis contempt could not be established.
The concerns and examples I have been referring to are not confined to the ACT or to this point in time. Essentially, the model litigant code is little more than the idea that government litigants and their agencies should act with complete propriety, fairly and in accordance with the highest professional standards.
Why should the code apply to the state and its representatives? It has long been recognised in the courts that the state must conduct its legal dealings to the very highest of standards so as to gain the confidence of the public it serves and represents. Indeed, Conrad Lohe, Crown Solicitor in Queensland, has described this role of the state as the fountain and origin of justice that should not at any time use its power as a means of public oppression, even through litigation. The way in which the government, the public service and the AFP prosecuted their case against the unfortunate Dr Haneef stands as a stark reminder that freedom needs more than eternal vigilance; it needs strong legislative support, a well-informed public, a free press and politicians who rise above the urge to use fear to serve their purposes. It also requires us as legislators to support and encourage the legal profession to stand up to the pressure to win at all costs.
For the public service lawyers who act on behalf of the state, the authority that is granted to them is, as one lawyer has described, held in trust. They act on behalf of the state, specifically the Attorney-General and, as such, they represent the duty of the state in upholding respect for the rule of law. They must act as exemplar litigants, upholding the basic principles of fairness and justice in their actions.
The model litigant guidelines oblige public service lawyers to act in a way that avoids delays and cost, avoids litigation where possible and treats claimants fairly. It also requires the application of procedural fairness so as to not take further advantage of those claimants who are already disadvantaged. Public service lawyers must not rely on defence strategies that delay or circumvent the fundamental issues involved in the litigation. Avoiding costs to claimants is not the only consideration. While the state clearly has deep pockets, they are not unending, and there are responsibilities for governments to spend taxpayers’ money wisely. The community expects that governments should not be throwing money up against the wall to fund unjustified legal processes when they could be easily avoided, perhaps by pursuing and being receptive to equitable and practical settlements which achieve policy objectives while ensuring that the law is upheld and the public revenue protected.
While it can be easy to spout the principles involved in the model litigant guidelines, it is often much harder to apply them on a day-to-day basis. It requires rigour from our public officials and the implementation of a number of rules of practice. It requires the
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .