Reforming the Commonwealth’s model litigant obligations: addressing challenges and enhancing ethical litigation

Research output: Contribution to journalArticlepeer-review

Abstract

Despite obligations to act with the highest integrity, fairness, and professionalism, the Commonwealth of Australia’s role as a model litigant faces significant limitations. This article critically examines these challenges, highlighting issues such as the unenforceable nature of the model litigant rules, ambiguities causing inconsistent application, conflicts between fair conduct and protecting state interests, insufficient training for legal practitioners, lack of penalties for breaches, and difficulties in monitoring compliance. To enhance effectiveness, the article proposes reforms including enforcing penalties for non-compliance, clarifying guidelines, mandating training for legal representatives, improving monitoring and reporting mechanisms, emphasising alternative dispute resolution, establishing a complaint process for aggrieved parties, and addressing power imbalances in litigation involving the state. By implementing these recommendations, the Commonwealth can better fulfil its role as a model litigant, ensuring ethical conduct, reinforcing public trust in the legal system, and promoting more equitable dispute resolution.
Original languageEnglish
Pages (from-to)154-164
Number of pages11
JournalAustralian Journal of Administrative Law
Volume31
Issue number3
Publication statusPublished - 2024

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