Litigation involving the Commonwealth
13 September 2005
The following guidelines are designed to assist agencies in the conduct of litigation involving the Commonwealth or Commonwealth agencies. They are to be read together with the Legal Services Directions issued by the Attorney-General under the Judiciary Act 1903.
OLSC can assist in determining which Department or agency should be responsible for Commonwealth litigation where this is unclear. OLSC has issued guidelines in relation to Responsibility for Handling Litigation involving the Commonwealth to assist in this regard. OLSC welcomes feedback on this guidance.
1. Allocation of responsibility for litigation
2. Comcover's role in managing litigation
3. Uncertainty regarding allocation of responsibility
4. Litigation involving shared responsibility and interests
5. Handling of issues arising in conduct of litigation
1. Allocation of responsibility for litigation
1.1 Responsibility for litigation brought or threatened against the Commonwealth or a Commonwealth agency is to be determined by reference to the distribution of responsibilities under the Administrative Arrangements Orders. Thus, the agency with functions which relate most closely to the essential issue or issues raised by the litigation should assume responsibility - both for giving instructions and for the cost of the Commonwealth's involvement in the litigation (subject to Comcover's role outlined below). In some cases it will be appropriate for more than one agency to be involved in providing instructions and meeting the costs of handling the case.
1.2 If a change in agency responsibilities has occurred since the events giving rise to the litigation, the responsible agency will generally be the agency currently responsible for the functions to which the proceedings relate, rather than the agency which had responsibility for those functions at the time of the events giving rise to the proceedings.
1.3 An agency, whose decision was the subject of review by a tribunal, will be responsible for appearing as a contradictor in any court proceedings challenging the tribunal’s decision, if the tribunal itself is not the appropriate contradictor, regardless of whether the challenge relates to the substantive dispute or is confined to the powers of the tribunal and the manner of their exercise.
1.4 There are two reasons for this. First, the High Court in The Queen v the Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 (Hardiman) held that if a tribunal becomes a ‘protagonist’ in court proceedings that arise out of a matter which is contested between parties appearing before the tribunal, this compromises the tribunal’s impartiality. The concern arises in cases where the impartiality of the tribunal would be compromised in the event that the substantive matter is remitted to the tribunal for reconsideration. The Court concluded that: ‘the presentation of a case [to the court]…by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the tribunal (at page 36).’ Therefore, the agency needs to play this role.
1.5 Second, substantive issues in relation to the underlying matter involving the agency may be reviewed by the court. In these circumstances, it is in the Australian Government’s interest to have that agency appear in the proceedings.
1.6 All submissions and contentions concerning the powers, processes, jurisdiction and legal framework for the tribunal must be settled in consultation with the agency responsible for the legislation governing the tribunal.
1.7 If an underlying factual dispute is with one agency, it remains financially responsible for the litigation even if a public interest or immunity issue becomes or might become predominant in subsequent litigation and another agency is responsible for those issues. The general handling of these public interest or immunity issues and the drafting and settling of submissions must be agreed to with the agency that has policy responsibility for them.
1.8 Payment of costs will be a matter for the agency which is responsible, subject to any arrangements with Comcover and, in respect of events prior to the commencement of Comcover on 1 July 1998, to supplementation arranged with the Australian Government Department of Finance and Administration under the Commonwealth's Accounting and Budgeting policy (see www.finance.gov.au).
2. Comcover's role in managing litigation
2.1 Comcover, the Commonwealth's self-managed fund for 'insurable risks' has responsibility for the management of claims against its members, including the management of legal services for such claims. Subject to the specific terms and conditions of the cover provided by Comcover, member agencies may be indemnified for all losses, liability and expenses for the claim.
2.2 Once Comcover accepts a claim, Comcover becomes the agency responsible for the management of the claim, including for any litigation relating to the claim. In most cases, Comcover will use its member agency's lawyers or lawyers from the member's legal panel to handle the claim. Comcover's responsibility includes developing appropriate strategies for the defence and settlement of claims in consultation with the member agency concerned and the Office of Legal Services Coordination (OLSC) in the Australian Government Attorney-General's Department.
2.3 In carrying out its work, Comcover is bound by the Commonwealth's policies and directions concerning the handling of claims and litigation, including the Legal Services Directions issued by the Attorney-General under the Judiciary Act 1903.
2.4 Member agencies need to ensure that they comply with their obligation to provide early written notification to Comcover when a claim is made on the agency, or an event occurs that may give rise to a claim against the agency. If member agencies are in any doubt over their cover, they should contact Comcover for early advice (see www.comcover.gov.au).
3. Uncertainty regarding allocation of responsibility
3.1 If no agency can be identified as appropriate and willing to accept responsibility for handling litigation, the matter is to be referred to OLSC as soon as possible. Full details should be provided of the action taken to identify the appropriate agency to take responsibility.
3.2 In consultation with the Department of the Prime Minister and Cabinet (PM&C) as necessary, OLSC will seek to identify the responsible agency and advise the agency and other relevant parties of its view.
3.3 If there is an ongoing dispute, the matter may be referred to the relevant Ministers, and ultimately the Prime Minister, for resolution.
3.4 Pending resolution of the identity of a responsible agency, action may need to be taken on an interim basis by one or more agencies or by the Australian Government Solicitor (AGS) to protect the Commonwealth's interests. This may include consulting OLSC and the Attorney-General to determine what action is in the Commonwealth's interests.
3.5 Pursuant to section 63 of the Judiciary Act 1903, the Attorney-General has appointed certain staff within AGS to receive service of initiating process on behalf of the Commonwealth. Where AGS has been served with initiating process pursuant to that appointment, the agency ultimately identified as responsible will be liable for the costs of steps taken up to that point in the proceedings, including any costs incurred in identifying the agency as client.
3.6 If OLSC agrees that no client can be identified, because of the broad or unspecified nature of the claim, OLSC will assume responsibility for instructing in the matter and for the costs incurred. OLSC will do this only where it has expressly agreed to accept this responsibility. (Before OLSC will make this decision, an agency involved or AGS will need to provide full details to OLSC, including the action taken to identify an appropriate agency to accept responsibility for the litigation.)
4. Litigation involving shared responsibility and interests
4.1 If more than one agency has an interest in particular litigation, the agencies concerned will need to ensure that they comply with the requirements in the Legal Services Directions which relate to coordination between agencies and reporting to the Attorney-General or OLSC. In particular, it is necessary to report to the Attorney-General or OLSC where:
- a dispute or disagreement exists between different agencies, or
- a significant level of coordination between different agencies is required.
See paragraph 3 of the Legal Services Directions.
4.2 In addition, under the Legal Services Directions:
- if legal advice is required on the interpretation of legislation not administered by an agency - the agency responsible for the litigation is normally required to consult the agency responsible for administering the legislation and provide copies of the request for advice and the legal advice to the administering agency (see paragraph 10 of the Legal Services Directions), and
- if a request or demand to provide documents or information could give rise to a claim of immunity on a public interest ground - the agency responsible for the litigation is required to refer the question whether to make a claim on public interest immunity grounds to the agency with administrative responsibility for that public interest immunity matter (eg a decision as to whether to claim public interest immunity in relation to a subpoena seeking production of Cabinet related documents would be referred to PM&C - see paragraph 7 of the Legal Services Directions).
4.3 Early and detailed consultation between agencies and sharing of information and legal advice will normally be appropriate.
4.4 In normal circumstances, the need to consult or involve a second agency on an aspect of the handling of a matter will not result in the second agency having to accept responsibility for a proportion of the costs incurred in handling the matter. For example, the agency responsible for litigation will normally be responsible for the costs resulting from the need to involve PM&C in resisting disclosure of a Cabinet document on public interest immunity grounds even if PM&C wishes to resist disclosure in circumstances where the other agency would not otherwise do so.
4.5 Consistent with the need to protect the Commonwealth's interests in litigation involving constitutional issues, agencies and their lawyers are required to act in accordance with the Commonwealth's position in relation to such litigation as conveyed by AGS' constitutional litigation area or the Attorney-General (or his or her delegate). The agency responsible for the litigation will normally be responsible for the costs incurred.
4.6 If more than one Financial Management and Accountability Act 1997 (FMA) agency is involved in litigation on behalf of the Commonwealth, it will not normally be appropriate to have different law firms advising the different agencies. Any proposal for different FMA agencies to engage separate legal advisers for the purpose of conducting the one piece of litigation should be referred to OLSC. For example, it may be necessary for PM&C to engage their own lawyers to advise on a claim of public interest immunity, if the lawyers handling the litigation do not have the necessary expertise to do so. (It should be noted that this guideline is not intended to prevent agencies from engaging more than one law firm to conduct litigation where the responsible agency decides that this is necessary to provide the right mix of skills and resources. Rather, it is intended to avoid different parts of the Commonwealth from adopting an approach based on individual agency interests, rather than those of the Commonwealth as a whole.)
4.7 As far as possible, the approach outlined in this Part should also apply where non-FMA agencies are involved, either with another non-FMA agency or with an FMA agency.
5. Handling of issues arising in conduct of litigation
5.1 Responses to questions asked in Parliament, including through Estimates and other Committees, are the responsibility of the agency responsible for the litigation. Where matters are raised with another agency (or another Minister), for example in Senate Estimates, the matter should, wherever practicable, be referred to the responsible agency. In some cases the Attorney-General will have a role because of his or her first law officer responsibilities eg where a breach of the Legal Services Directions is alleged.
5.2 Any legal costs incurred for work performed by AGS or a private law firm acting in relation to the litigation in responding to questions are therefore normally payable by the agency. This is the case even if the questions are asked of a Minister or the Australian Government Attorney-General's Department.
5.3 If issues concerning the conduct of litigation are raised with or by the Attorney-General (or his or her delegate) in the Attorney-General's capacity as first law officer, any work undertaken by the responsible agency's lawyers will normally be payable by the agency. Briefing of the Attorney-General (or his or her delegate) on significant matters arising in the course of litigation is similarly the responsibility of the relevant agency.
If you have any comments or questions on these guidelines, please contact OLSC at olsc@ag.gov.au
Karl Alderson
Assistant Secretary
Office of Legal Services Coordination
Telephone: (02) 6250 6611
Facsimile: (02) 6250 5968
E-mail: olsc@ag.gov.au
