David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to table an explanatory memorandum relating to the bill.

Leave granted.

I table an explanatory memorandum. I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

I introduce the Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017.

The purpose of the bill is to subject Commonwealth litigants to enforceable model litigant obligations.

The Attorney-General already has discretion to issue obligations for Commonwealth litigants to act as a model litigant.

He exercised this discretion most recently in March 2017, requiring the Commonwealth to assess and deal with claims promptly, to pay legitimate claims, to consider alternative dispute resolution, to keep the costs of litigation to a minimum, for example by not requiring the other party to prove a matter the Commonwealth knows to be true, to not take advantage of a claimant lacking resources to litigate a legitimate claim, and to apologise when the Commonwealth has acted wrongfully.

In its Access to Justice Arrangements report of 2014, the Productivity Commission recommended that each government should impose enforceable model litigant obligations on its agencies, given government's power, resources, 'frequent-player status' and role of acting in the public interest. The Commission noted that this would not prevent governments from acting firmly to protect their interests.

In 2016 the Commonwealth Government dismissed this recommendation based on fears of increased costs and delays.

However, model litigant obligations include obligations to reduce costs and delays, and making these obligations enforceable is likely to translate this theory of reduced costs and delays into reality.

My bill would compel future Attorneys-General to maintain the practice of issuing binding obligations to act as a model litigant, and would make these obligations enforceable.

Firstly, the bill establishes a process by which the Commonwealth Ombudsman can investigate a complaint about a Commonwealth litigant failing to act in accordance with its obligations as a model litigant.

Secondly, the bill empowers a court to order a stay of proceedings while the Ombudsman considers a complaint. Thirdly, the bill provides that, if the court is satisfied that the Commonwealth litigant has contravened or is likely to contravene the model litigant obligations, the court may make any order it considers appropriate.

For example, the court could make an order with regards to the Commonwealth litigant's future conduct, or it could issue a costs order against the Commonwealth litigant in response to a past failure to act as a model litigant.

This bill demonstrates that the Productivity Commission's recommendation can be enacted responsibly. It shows that the Commonwealth Government's theoretical fears about increased costs and delays are misplaced, and that an opportunity for reduced costs and delays beckons.

This bill is modest, sensible and practical, and I commend it to the Senate.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.