- THE AUSTRALIAN
- SEPTEMBER 20, 2013 12:00AM
THE Abbott government has been urged to overhaul the rules governing the conduct of federal agencies in court so the organisations with the worst behaviour can be identified
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Research by the Rule of Law Institute has revealed a surge in breaches of the government’s legal services directions – which cover the conduct of federal agencies in court as well as the way in which they buy legal services.
But the Attorney-General’s Department, which assembles details on these breaches, does not disclose which agencies have been found to have breached their duty to act fairly and efficiently when they take legal action against companies and individuals.
It also does not disclose which agencies have been buying legal services from law firms and barristers in ways that do not comply with the government’s rules.
Rule of Law Institute chief executive Kate Burns said the limited information made available by the department shows that the number of breaches rose from 17 to 42 last financial year. A further 50 matters were still under investigation.
“The difficulty we have is the lack of transparency surrounding this process, so we don’t know who they are,” Ms Burns said.
The department’s website says the breaches of the legal services directions “generally related to failures to act as a model litigant”.
It says 24 of the breaches concerned the failure to provide certificates of compliance or report expenditure on legal services within 60 days of the end of the financial year.
Ms Burns said the Attorney-General’s Department should be required to disclose the exact nature of each breach of the legal services directions as well as identifying the agency involved, what they had done wrong and what action had been taken.
The agencies at fault should be required to provide a statement outlining what redress had been provided to the parties adversely affected by their conduct.
She also urged the new government to introduce a formal system of dealing with complaints about the courtroom conduct of government agencies instead of relying on the agencies to report their own shortcomings.
She was concerned that the large number of alleged breaches still under investigation suggested that many matters had been carried over from the previous year.
Ms Burns said the institute would like to see the commonwealth’s obligations under the model litigant rules enacted as legislation.
“At the moment it seems to be a rather discretionary process and all that is required is that agencies report to the Office of Legal Services Co-ordination, which apparently limits itself to educating agencies,” she said. “We would like to see a transparent process so we know what is going on with breaches and they are properly reported.”
She said Attorney-General George Brandis already had the power to impose sanctions on federal agencies that breached the model litigant rules. She believed parties to cases that had been affected by breaches of the rules should be involved in the process of imposing sanctions on the agency at fault.
“At the moment there seems to be a history of courts making adverse costs orders against the commonwealth where there have been breaches of the model litigant obligations, but those costs orders are in effect paid by the taxpayer,” Ms Burns said.
“We would want to see some kind of assurance that the agency conforms to its obligations and is monitored to ensure that it does.
“If the model is based on education to stop agencies from breaching their obligations, then it does not seem to be working.”
She said there was also a need to properly disclose the use of coercive powers by federal agencies.