Resources on the Model Litigant Rules

Explains the nature of the Commonwealth’s model litigant obligations and details the oversight and compliance undertaken by the Attorney-Generals Department, with RoLIA’s critique of the current compliance framework.

Summarises key cases in which model litigant obligations arise. Last updated: May 2014

What are the model litigant rules?

Model litigant rules, or model litigant obligations, are guidelines for how a government body ought to behave before, during, and after litigation with another government body, a private company, or an individual.

These guidelines are integral to the rule of law, because there is sometimes a substantial imbalance of power in litigation with the government. Government bodies may have access to substantial resources, powers to investigate and compel people to provide information, and more experience and specialist expertise in dealing with complex and contentious legal matters.

It is vital that government bodies should not be ‘out to get’ people, but should be acting in the public interest, according to law.

As a result, governments at a State and Federal level across Australia have produced a range of guidelines known as model litigant rules. At their heart, these guidelines focus on:

  • Acting honestly, consistently, and fairly in the handling of claims and litigation;
  • Dealing with claims promptly;
  • Making an early assessment of the government’s prospects of success;
  • Paying legitimate claims without litigation;
  • Not taking advantage of a claimant who lacks resources;
  • Not relying on a merely technical defence against a claim; and
  • Considering alternative dispute resolution (ADR) options.

However, these guidelines are not designed to prevent the government body from “acting firmly and properly to protect their interests,” taking “all legitimate steps” to pursue or defend claims, or even from “pursuing litigation in order to clarify a significant point of law even if the other party wishes to settle the dispute.

The guidelines are designed to tread a middle ground. On the one hand, they recognise that a government body is often better-resourced than small companies or individuals, and is supposed to lead by example, protecting the public interest as opposed to its own private interest.

On the other hand, the guidelines also must recognise that government bodies pursuing or defending claims are doing so on behalf of the public, and the public’s rights ought not to be undermined in the face of genuine litigation. This is particularly so when the government body is up against, for example, a very well-resourced individual or company.

Advocacy for Model Litigant Rules

In 2015, the Institute made a submission to the Inspector-General of Taxation’s Review into the Taxpayers’ Charter and Taxpayer Protections, arguing that:

“Taxpayers need to be confident that the tax laws will be administered fairly. The model litigant rules seek to impose the basic duty of fairness on all Commonwealth agencies, including the ATO. These rules should be enforceable and complaints dealt with transparently.”

Download the submission: Submission to the Review into the Taxpayers’ Charter and Taxpayer Protections.

The Institute will continue to promote community awareness and understanding of the importance of the model litigant rules at both a State and Federal level, with a view to securing the consistent compliance of government bodies with their model litigant obligations.

Further reading