Submission to the Attorney-General’s Department Review of the Legal Services Directions
(30 April 2004)
1.The Australian Law Reform Commission (ALRC) makes the following submission in response to the Issues Paper Review of the Legal Services Directions. The submission is based on the ALRC’s work and experience gained from previous and present inquiries.
2. As a government agency, the ALRC’s experience in applying the Legal Services Directions has been satisfactory, finding that the obligations in the Directions are consistent with the conduct the ALRC would otherwise exhibit (and require its legal service providers to exhibit) in conducting litigation. However, the ALRC has no particular comment to make in relation to the review of the Directions from an organisational perspective.
Issue 7. Pro bono work
3. The concern that private sector lawyers undertaking pro bono work against the Commonwealth might be prejudiced in the selection of legal service providers to government was raised in the Report of the National Pro Bono Task Force to the Commonwealth Attorney-General[1]—the Task Force having been chaired by ALRC President Professor David Weisbrot. The ALRC notes the continuing work on this issue by the National Pro Bono Resource Centre, and the recommendation to amend the Legal Service Directions in the Attorney-General’s Department’s Federal Civil Justice Strategy Paper.[2]
4. The ALRC supports an amendment to the Legal Service Directions affirming that, short of a direct conflict of interest, there will be no disadvantage in seeking to provide legal services to government for lawyers who have undertaken pro bono work against the Commonwealth. Such an amendment will make the position clear for government agencies and private sector lawyers.
Issue 8. Obligations in relation to security of information
5. This issue is related to the ALRC’s current reference on Classified and Security Sensitive Information. A discussion paper (DP 67) was released in January 2004,[3] and a final report is due by 31 May 2004.
6. Question 8–1 in DP 67 asked whether the Legal Services Directions should specify the approach that the Australian Government and its agencies should take in dealing with proceedings involving classified and security sensitive information, including any specific or additional duties which arise in fulfilling the duty to act as a model litigant. The issue was raised initially by the NSW Law Society in a submission to the inquiry.[4] In response to the question, the Law Council of Australia has submitted that the ALRC should develop model guidelines for government agencies. At this stage, the ALRC does not consider it appropriate to develop guidelines as a part of its current inquiry. However, it is clear that the need for some guidance for agencies is required. While the ALRC has not yet finalised its view, it is likely that the ALRC will include a recommendation that the Legal Services Directions should include (and explain in commentary if required) an obligation on government agencies to take reasonable steps to ensure that legal service providers maintain an adequate level of security for in-confidence and sensitive material.
Issue 11. Clarification of the model litigant obligation
7. As noted in the Issues Paper, the ALRC report Managing Justice recommended a number of changes to the Legal Services Directions in order to clarify the model litigant obligation.[5] In particular, the ALRC recommended the adoption of commentary to provide clearer, more practical guidance on the working and application of the Directions.
8. The ALRC continues to support adoption of a commentary approach for these purposes. An Australian example of where this has been successfully implemented is the Law Society of New South Wales’ Representation Principles for Children’s Lawyers.[6] The Notes to Appendix B of the Legal Services Directions already reflect a commentary approach, although it is not comprehensive.
9. Paragraph 51 of the Issues Paper suggests that the commentary approach may lead to an over-emphasis on the matters expressly commented upon to the detriment of an understanding of and compliance with the obligation generally. The commentary—and any examples included in the commentary—should be an elaboration of the general principles rather than an exclusionary focus on a particular situation or possible outcome. This can be avoided through careful drafting. Despite these concerns, the ALRC considers that clarification of the obligation, and terms such as ‘unnecessary delay’, ‘technical defences’ and avoiding ‘taking advantage of a claimant who lacks resources’, would enhance the overall understanding and application of the obligation.
10. In relation to the duties of government agencies in the conduct of federal review tribunal proceedings, the ALRC reiterates the reasons for its recommendation to specify these duties in the Legal Services Directions.[7] The duties in tribunal proceedings exceed those in court proceedings due to the duty to assist the tribunal in reaching the correct decision. Concerns regarding the role of government agency representatives were raised throughout the Managing Justice inquiry by members of the Administrative Appeals Tribunal (AAT), the AAT itself (in submissions to the inquiry), and solicitors representing individual applicants.[8] The AAT has suggested (and was supported in this by the Law Council of Australia) that a form of ‘counsel assisting’ role should be explicitly mandated in legislation. The ALRC adopted a less prescriptive option by recommending the amendment of the Legal Services Directions. The duty to assist the tribunal in reaching a correct decision, and an explanation of what this means in practical terms, should be set out in a clear manner. While it may be a well-established principle, it is not always well known or well publicised. The aim is to ensure that government agency representatives (whether from within the agency itself or the private sector) are aware of the role and responsibilities of the government in tribunal proceedings.
Issue 12. Dispute resolution
11.The ALRC supports inclusion of some guidance on the use of ADR in an Appendix to the Legal Services Directions. However, the ALRC considers that a more comprehensive approach to dispute resolution is required, such as was recommended in the Managing Justice report.[9]
12.The ALRC’s recommendations were aimed at development of best practice for dispute avoidance, management and resolution. In the government response to the Managing Justice report,[10] the government supported the thrust of the recommendations. It was noted, however, that the question of which department or agency should coordinate the development of a best practice blueprint applicable to dispute avoidance, management and resolution for all federal departments and agencies would be a matter for further government consideration.
13.The ALRC encourages the OLSC to continue work on the development of government awareness of dispute avoidance, management and resolution issues through inclusion of appropriate guidance in the Legal Services Directions, but also through broader attempts such as the establishment of an interagency working group (as recommended by the ALRC). It was noted in the government response to the Managing Justice report that the OLSC would convene a meeting of relevant departments and agencies to explore opportunities for sharing knowledge and experiences. The ALRC trusts that this will lead to improved awareness of dispute resolution issues and practices across the whole of government.
Issue 13. Use of media in litigation14. As noted in the Issues Paper, the ALRC has considered the use of the media by government agencies in connection with litigation in its inquiry on civil and administrative penalties.[11] There was significant public interest in the issue, particularly in relation to the Australian Competition and Consumer Commission (ACCC). The use of the media by the ACCC was considered in detail by the Dawson Committee’s Review of the Trade Practices Act 1974 (Cth).[12]
15. Throughout the ALRC’s civil and administrative penalties inquiry, the focus was on regulatory bodies and the use of the media as an informal adjunct to their powers to impose or seek penalties and in pursuit of their educational roles. Consistently with other recommendations made in the Principled Regulation report, the ALRC’s recommendation in relation to use of media sought to govern the conduct of all Australian Government regulators while at the same time retaining flexibility for each regulator to tailor its conduct to its particular circumstances. Thus the recommendation encouraged the development (and publication) of guidelines by each regulator, subject to some basic principles set out in recommendation 16–4.
16. The Dawson Committee suggested that principles regarding the use of media could be considered for inclusion in the Legal Service Directions.[13] The ALRC agrees that similar principles to those outlined in recommendation 16–4 of the Principled Regulation report could be expounded to any government agency involved in litigation. The ALRC also agrees that these principles could usefully be included in the Legal Service Directions. However, the ALRC still would encourage federal regulators, and any other agency that regularly uses media in connection with legal proceedings, to develop and publish more detailed guidelines for the use of media by that particular agency. It may be appropriate to note in the Directions that agencies are, where appropriate, encouraged to develop guidelines for themselves that are consistent with the principles set out in the Directions.
Issue 22. Non-compliance with Legal Services Directions
17.The Issues Paper suggests that the Legal Services Directions could include a reference to the Compliance Strategy for the Enforcement of the Legal Services Directions in order to clarify that sanctions exist for non-compliance.
18.Consistently with its recommendation in the Managing Justice report,[14] the ALRC considers that the Directions should include more than a mere reference to the Compliance Strategy document. While the ALRC does not have any particular criticisms of the document, there is a need to state the basic consequences of non-compliance in the Directions themselves. This provides teeth for the Directions, which are noted in the Compliance Strategy document as being ‘more than mere policy or guidelines’. While it may not be possible (or appropriate) to prescribe the sanctions for particular actions of non-compliance comprehensively, the Directions should state that non-compliance can lead to a number of consequences, and set out what those consequences may be. The Compliance Strategy then can be referred to in order to provide guidance to agencies and legal service providers regarding the role of agencies and the OLSC in preventing and remedying breaches.
[1] Report of the National Pro Bono Task Force to the Commonwealth Attorney-General (2001), 18.
[2] Attorney-General’s Department, Federal Civil Justice Strategy Paper (2003), recommendation 14.
[3] Australian Law Reform Commission, DP 67 Protecting Classified and Security Sensitive Information (2004).
[4] A quote from the submission is reproduced in Australian Law Reform Commission, DP 67 Protecting Classified and Security Sensitive Information (2004), [8.286].
[5] Australian Law Reform Commission, ALRC 89 Managing Justice: A Review of the Federal Civil Justice System (2000), recommendation 23.
[6] The first edition, which included commentary, were published in 2000. The second edition was published in 2002. A copy is available at <http://www.lawsociety.com.au/uploads/filelibrary/1038355147282_0.5690935283305489.pdf>.
[7] Australian Law Reform Commission, ALRC 89 Managing Justice: A Review of the Federal Civil Justice System (2000), [9.72]–[9.83] and recommendation 121.
[8] See also M de Rohan Submission 175.
[9] Australian Law Reform Commission, ALRC 89 Managing Justice: A Review of the Federal Civil Justice System (2000), recommendations 68–70.
[10] Government Response to Recommendations of Australian Law Reform Commission Report Managing Justice: A Review of the Federal Civil Justice System (ALRC 89) (June 2003).
[11] Australian Law Reform Commission, ALRC 95 Principled Regulation: Federal Civil & Administrative Penalties in Australia (2002), recommendation 16–4.
[12] Review of the Competition Provisions of the Trade Practices Act (January, 2003).
[13] Ibid, Ch 12.
[14] Australian Law Reform Commission, ALRC 89 Managing Justice: A Review of the Federal Civil Justice System (2000), recommendation 24.