Page 3410 - Week 09 - Wednesday, 19 August 2009
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
Attorney-General and the government to issue directions that high ethical standards are expected and that the lawyers who abide by them will be supported. It also requires processes for reporting to ensure compliance, something Mrs Dunne’s bill begins to address. The Greens are pleased that in Mrs Dunne’s bill there is a mechanism for reporting and for that reporting to occur formally, as clearly this is the first step to being accountable. It will assist in reviewing whether there is a need for specific measures to improve compliance.
We will be supporting Mrs Dunne’s amendment that outlines more clearly how this reporting process will result in the Chief Executive of JACS being able to gather compliance reports from all agency heads and collate them into the JACS annual report. The Greens believe it will usefully assist public scrutiny for the JACS annual report to contain a compilation of information about compliance measures and breaches of the guidelines. The Greens are concerned Mrs Dunne’s bill does not make it clear who is responsible for ensuring compliance, and it is for this reason that we have tabled our amendment.
The guidelines that have already been issued by the Attorney-General make it clear that the government believes issues relating to compliance or noncompliance with the guidelines are matters for the Attorney-General. The guidelines also make it clear that the government believes that compliance is not for any court, tribunal or other body. However, the elevation of the guidelines to mandatory status—and Mrs Dunne’s bill is explicit that anyone performing territory legal work must comply with the model litigant guidelines—means that it would also be prudent to elevate the issues of enforcing compliance into the legislation, and this is what the Greens amendment seeks to do. If we do not do this, it remains open as to whether a complainant could seek redress on a breach of compliance of the guidelines in the court system. While we have some sympathy with the idea that action could be taken in a court of law by someone aggrieved with a government litigant’s behaviour, we do not believe this matter has been canvassed in sufficient detail to take that step at this time.
As the current bill has no offence provisions, it is also unclear how compliance would be enacted in the court system, aside from perhaps remedying the original complaint. However, it is not as if judges have not in the past taken into account the obligations on the state to conduct themselves as a model litigant. In Kenny v South Australia, the Chief Justice made an order against the state after ongoing breaches of time limits, stating that the Crown Solicitor’s Office should, in fact, be setting an example to the private legal profession and be more expeditious in its conduct. However, it is a very different thing for the courts to take into account the existence of the guidelines in regard to the proceedings that are before them than it is to rule on compliance issues under administrative law in the context of a civil or criminal trial.
If compliance with the guidelines is able to be heard in the courts, we may well risk delays as complainants make new applications being taken out in another. This could lead to interminable clogging of the courts if substantive issues were sent off to an administrative law court. This just demonstrates at this point that we do not know enough and we have not sufficiently considered the issues in leaving this open. The Greens would suggest that further investigation and consultation with stakeholders would need to be undertaken before opening up this scenario. We would welcome further dialogue on this issue if, in the short term, there were ongoing problems raised
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .