Australia: Commonwealth litigation – an in-depth look at the Model Litigants Bill

Last Updated: 18 January 2018
Article by Scott Alden, Greg Wrobel, Victoria Gordon and Jack Collins
Most Read Contributor in Australia, March 2019

Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017

The Australian legal system is premised on parties having equal bargaining power. However, the wealth of power and economic resources afforded to governments, as well as their level of experience within the justice system, means that opposing parties are often placed at a disadvantage in legal proceedings.

On 15 November 2017, the Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017 (the Bill) was introduced into Parliament which, if passed, will subject Commonwealth litigants to enforceable model litigant obligations.


The Bill is in response to a 2014 report by the Commonwealth Productivity Commission (Commission) into access to justice in Australia. In their report, the Commission recommended that governments, as well as their agencies and representatives, should be subject to model litigant obligations, with compliance to be monitored and enforced through an independent mechanism for dealing with complaints.

However, in 2016 the Commonwealth Government dismissed the Commission's recommendation on the basis that the increased burden placed upon Commonwealth litigants could give rise to technical arguments that would subsequently result in additional costs and delays in litigation and therefore be inconsistent with the overriding purpose of our justice system to provide just, quick and cheap resolution of legal proceedings.

This standpoint failed to recognise that the Commission's recommended model litigant obligations include specific requirements requiring claims to be dealt with promptly and keep costs to a minimum. Further, the obligations also preclude litigants from relying unnecessarily on technical arguments. Therefore, on one view, the introduction of the model litigant obligations into legislation is likely to translate into reduced costs and delays for those seeking to access justice.

Effects of the Bill

If passed, the Bill will make amendments to the Judiciary Act 1903 (Cth) that enact the Commission's recommendations requiring the Attorney-General to oblige Commonwealth litigants to act as model litigants, in line with current practice.

A 'commonwealth litigant' would include the Commonwealth, a person suing or being sued on behalf of the Commonwealth, a Minister (or former Minister) of the Commonwealth, a person holding office (or who held office) under an Act or a law of a Territory, a member (or former member) of the Defence Force and a company in which the Commonwealth has a controlling interest. It does not include the Australian Government Solicitor when providing certain state government services.

If passed, the requirement to act as a model litigant would also extend to persons acting for Commonwealth litigants, but does not extend to criminal prosecutions and related proceedings.

The obligations do not apply to non-Commonwealth government counter-parties in any proceedings.

The model litigant obligations are defined by reference to the Commonwealth's obligations to act as model litigants under the Commonwealth Legal Services Directions 2005 and include:

  • acting honestly and fairly in handling claims and litigation brought by or against the Commonwealth;
  • dealing with claims promptly and not causing unnecessary delay;
  • making an early assessment of the Commonwealth's prospects of success and potential liability in legal proceedings;
  • paying legitimate claims without litigation;
  • acting consistently in the handling of claims and litigation;
  • endeavouring to avoid, prevent and limit the scope of legal proceedings wherever possible including through alternate dispute resolution;
  • keeping the costs of litigation to a minimum;
  • not relying on technical defences unless the Commonwealth would be prejudiced otherwise;
  • not pursuing appeals unless there are reasonable prospects for success or the appeal is otherwise justified in the public interest; and
  • apologising where the Commonwealth is aware that it or its lawyers have acted wrongfully or improperly.

The Bill would also amend the Ombudsman Act 1976 (Cth) (Ombudsman Act) to establish a process by which the Ombudsman can investigate alleged contraventions of these obligations and impose upon the Ombudsman a requirement to include the details of any such complaints in annual reports.

Under the current Ombudsman Act, the Ombudsman has scope to either cease investigating or not to investigate a complaint if the actions subject to the complaint relate to a commercial activity of a Department or prescribed authority. If passed, the Bill would remove this decision making power from the Ombudsman when it receives a complaint about legal work, by excluding legal work from the ambit of a commercial activity of the Commonwealth litigant.

Moreover, Courts would be empowered to order a stay of proceedings should they be satisfied that these obligations have been contravened, or are likely to be contravened and the Court may make any order they deem appropriate. This could include an order with regards to the litigant's future conduct, or alternatively a costs order could be issued against the Commonwealth litigant, reprimanding them for failing to operate in accordance with these obligations.


If passed, the Bill would reinforce existing model litigant obligations on the Commonwealth and establish an independent mechanism for dealing with complaints.

Private litigants should be aware of these obligations that will likely be imposed on Commonwealth litigants and their legal counsel under the Bill, and be prepared to invite the Court to enforce this higher standard and hold the Commonwealth to account.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Scott Alden
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