Page 3411 - Week 09 - Wednesday, 19 August 2009
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
by the community in regard to accessing justice under the model litigant guidelines. It may well be that the obligation to comply with these guidelines should be raised to an actionable right, but I am not aware of any other Australian jurisdiction that operates in that manner, and I do not think it prudent to proceed down such a path without extensive deliberation and public consultation.
In real terms, the efficacy of the model litigant guidelines may well rely on the Attorney-General’s capacity and determination to enforce them and to follow up on reports of noncompliance. It is less clear at this stage that the processes for ensuring compliance in a constructive way are fully integrated into the practice of the department. It may be that the Ombudsman or Public Advocate should be given a watching brief over compliance with these guidelines. This is a matter for future consideration.
The federal government has for some time had legal service directions in place—that is, binding rules that guide the performance of legal work of the commonwealth for which the Attorney-General is responsible. The commonwealth also has a compliance strategy for enforcement of the legal services directions that outlines a clear process of ensuring that all legal staff are fully informed about the standards, aims to avoid breaches of the standards and seeks to manage complaints and remedy breaches when they do occur. As a last resort, when breaches cannot be easily remedied, the federal Attorney-General has the capacity to remove firms or counsel on legal panels that breach legal service directions or to raise serious breaches with the responsible minister. Furthermore, the federal Attorney-General is able to take action to enforce the legal services directions. I would urge the Attorney-General here to replicate such a process. It is worth noting that under the Howard government compliance with the guidelines seemed to become almost discretionary. This demonstrates that the form of the guidelines is perhaps not the most crucial element; it is the will of the Attorney-General and his government to ensure that their legal officers and private lawyers employed to act on their behalf uphold the requisite standards of behaviour.
One way of identifying breaches of the guidelines, clearly, is the collection of complaints from those who have grievances. The ACT has had only a handful of complaints that relate to breaches of the guidelines over the past three years, and the government’s position is that none of those were found to disclose a breach of the guidelines. Rather, they were cases where claimants had grievances about the outcome of the substantive case. I suspect that most litigants who feel aggrieved by government legal practices are unaware that the government’s lawyers were supposed to be bound by higher ethical standards.
Additionally, I suspect that they would feel that complaining would be of no use, and could well result in what they would perceive as further victimisation. I am unaware that any serious attempt has been made to canvass the views of those who may have grievances about the behaviour of government legal representatives. I would urge the government in that context to undertake such research and also to invite the judiciary to give their impressions of how government legal representatives measure up to the model litigant standards. I think that would be a constructive and informative approach to take.
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .