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A Bill for an Act to provide for enforcement of Commonwealth model litigant obligations, and for related purposes
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Registered 16 Nov 2017
Introduced Senate 15 Nov 2017
Table of contents.

2016‑2017

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017

 

No.      , 2017

 

(Senator Leyonhjelm)

 

 

 

A Bill for an Act to provide for enforcement of Commonwealth model litigant obligations, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 2

Schedule 1—Enforcement                                                                                                3

Judiciary Act 1903                                                                                                      3

Schedule 2—Ombudsman                                                                                                 6

Ombudsman Act 1976                                                                                                 6

 

 


A Bill for an Act to provide for enforcement of Commonwealth model litigant obligations, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Judiciary Amendment (Commonwealth Model Litigant Obligations) Act 2017.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Enforcement

  

Judiciary Act 1903

1  Section 2

Insert:

Commonwealth litigant means a person or body referred to in subsection 55N(1), not including the AGS when providing services under subsection 55N(2).

model litigant obligations means requirements in Legal Services Directions relating to acting as a model litigant.

2  After subsection 55ZF(2)

Insert:

          (2A)  The Attorney‑General must ensure that there are Legal Services Directions applying generally to Commonwealth legal work that contain requirements for Commonwealth litigants, and persons acting for Commonwealth litigants, in relation to acting as a model litigant (other than in criminal prosecutions and related proceedings).

          (2B)  Subsection (2A) does not prevent the Attorney‑General from issuing Legal Services Directions containing model litigant obligations for other persons, or in relation to criminal prosecutions and related proceedings.

3  At the end of subsections 55ZG(2) and (3)

Add “or in accordance with section 55ZGA or 55ZGB”.

4  After section 55ZG

Insert:

55ZGA  Model litigant obligations: stay of proceedings

             (1)  This section applies if a party to a proceeding (the applicant) has made a complaint to the Commonwealth Ombudsman that a Commonwealth litigant, or a person acting for a Commonwealth litigant in relation to the proceeding, has contravened or is likely to contravene the model litigant obligations in relation to the proceeding.

             (2)  On the application of the applicant, the court may, if in the opinion of the court it is desirable to do so, by order, stay the proceeding or a part of the proceeding, for the period, and subject to any conditions, the court considers appropriate.

55ZGB  Model litigant obligations: orders

             (1)  This section applies if:

                     (a)  a party to a proceeding (the applicant) has made a complaint to the Commonwealth Ombudsman that a Commonwealth litigant, or a person acting for a Commonwealth litigant in relation to the proceeding, has contravened or is likely to contravene the model litigant obligations in relation to the proceeding; and

                     (b)  any of the following has occurred:

                              (i)  the Ombudsman completes an investigation of the contravention or potential contravention;

                             (ii)  the Ombudsman informs the applicant of a decision not to investigate or continue to investigate the contravention or potential contravention and has not transferred the complaint;

                            (iii)  a person to whom the Ombudsman has transferred the complaint completes an investigation of the contravention or potential contravention;

                            (iv)  a person to whom the Ombudsman has transferred the complaint informs the applicant of a decision not to investigate or continue to investigate the contravention or potential contravention;

                             (v)  60 days (or a longer period agreed between the applicant and the Ombudsman) pass since the complaint was made.

             (2)  If, in a proceeding to which the applicant and the Commonwealth litigant are party, the court is satisfied, on the application of the applicant, that the Commonwealth litigant or person acting for the Commonwealth litigant contravened or is likely to contravene the model litigant obligations as referred to in the complaint, the court may make any order it considers appropriate.

5  Subsection 55ZI(2)

Omit “, or in good faith in purported compliance,”.

6  At the end of section 55ZI

Add:

             (3)  Subject to sections 55ZGA and 55ZGB, a person (other than the Attorney‑General) is not liable to an action or other proceeding, whether civil or criminal, for or in relation to an act done or omitted to be done by the person in good faith in purported compliance with a Legal Services Direction.

7  Application

The amendments made by this Schedule do not apply in relation to contraventions of the model litigant obligations occurring before the commencement of this item.

Schedule 2Ombudsman

  

Ombudsman Act 1976

1  Subsection 3(1)

Insert:

Commonwealth litigant has the meaning given by section 2 of the Judiciary Act 1903.

model litigant obligations has the meaning given by section 2 of the Judiciary Act 1903.

2  After section 5A

Insert:

5B  Model litigant functions of the Ombudsman

             (1)  For the purposes of this Act, legal work performed by or for a Commonwealth litigant is, to the extent that it relates to compliance with the model litigant obligations, taken to be action that relates to a matter of administration.

             (2)  For the purposes of the application of this Act to the action:

                     (a)  if, apart from this paragraph, the Commonwealth litigant is not:

                              (i)  a Department; or

                             (ii)  a prescribed authority; or

                            (iii)  a person or body whose action is deemed (other than under paragraph (b)) to have been taken by a Department or prescribed authority;

                            the Commonwealth litigant is taken to be a prescribed authority; and

                     (b)  the action is to be treated as if it were action taken by:

                              (i)  if the Commonwealth litigant is a Department or a prescribed authority (including as a result of paragraph (a))—the Commonwealth litigant; or

                             (ii)  if the Commonwealth litigant is a person or body whose action is deemed (other than under this paragraph) to have been taken by a Department or prescribed authority—the Department or prescribed authority; and

                     (c)  the action is taken not to relate to a commercial activity of the Commonwealth litigant; and

                     (d)  the action is taken not to be tax administration action (within the meaning of subsection 6D(1)).

             (3)  The annual report prepared by the Ombudsman and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include details of:

                     (a)  complaints made to the Ombudsman in the period in relation to compliance with the model litigant obligations; and

                     (b)  action taken by the Ombudsman, Departments and prescribed authorities in relation to the complaints.

             (4)  This section does not limit or otherwise affect any other power, function or duty of the Ombudsman.

3  Application

The amendments made by this Schedule apply in relation to legal work performed after the commencement of this item.