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This is a Bill, not an Act. For current law, see the Acts databases.
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
No. , 2017
Judiciary Amendment (Commonwealth Model Litigant Obligations)
Bill 2017
i
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
No. , 2017
Judiciary Amendment (Commonwealth Model Litigant Obligations)
Bill 2017
1
A Bill for an Act to provide for enforcement of
1
Commonwealth model litigant obligations, and for
2
related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the Judiciary Amendment (Commonwealth Model
6
Litigant Obligations) Act 2017.
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2 Commencement
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(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Judiciary Amendment (Commonwealth Model Litigant Obligations)
Bill 2017
No. , 2017
1
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
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
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3 Schedules
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Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
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Enforcement Schedule 1
No. , 2017
Judiciary Amendment (Commonwealth Model Litigant Obligations)
Bill 2017
3
Schedule 1--Enforcement
1
2
Judiciary Act 1903
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1 Section 2
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Insert:
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Commonwealth litigant means a person or body referred to in
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subsection 55N(1), not including the AGS when providing services
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under subsection 55N(2).
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model litigant obligations means requirements in Legal Services
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Directions relating to acting as a model litigant.
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2 After subsection 55ZF(2)
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Insert:
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(2A) The Attorney-General must ensure that there are Legal Services
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Directions applying generally to Commonwealth legal work that
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contain requirements for Commonwealth litigants, and persons
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acting for Commonwealth litigants, in relation to acting as a model
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litigant (other than in criminal prosecutions and related
17
proceedings).
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(2B) Subsection (2A) does not prevent the Attorney-General from
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issuing Legal Services Directions containing model litigant
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obligations for other persons, or in relation to criminal prosecutions
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and related proceedings.
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3 At the end of subsections 55ZG(2) and (3)
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Add "or in accordance with section 55ZGA or 55ZGB".
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4 After section 55ZG
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Insert:
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55ZGA Model litigant obligations: stay of proceedings
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(1) This section applies if a party to a proceeding (the applicant) has
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made a complaint to the Commonwealth Ombudsman that a
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Schedule 1 Enforcement
4
Judiciary Amendment (Commonwealth Model Litigant Obligations)
Bill 2017
No. , 2017
Commonwealth litigant, or a person acting for a Commonwealth
1
litigant in relation to the proceeding, has contravened or is likely to
2
contravene the model litigant obligations in relation to the
3
proceeding.
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(2) On the application of the applicant, the court may, if in the opinion
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of the court it is desirable to do so, by order, stay the proceeding or
6
a part of the proceeding, for the period, and subject to any
7
conditions, the court considers appropriate.
8
55ZGB Model litigant obligations: orders
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(1) This section applies if:
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(a) a party to a proceeding (the applicant) has made a complaint
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to the Commonwealth Ombudsman that a Commonwealth
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litigant, or a person acting for a Commonwealth litigant in
13
relation to the proceeding, has contravened or is likely to
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contravene the model litigant obligations in relation to the
15
proceeding; and
16
(b) any of the following has occurred:
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(i) the Ombudsman completes an investigation of the
18
contravention or potential contravention;
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(ii) the Ombudsman informs the applicant of a decision not
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to investigate or continue to investigate the
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contravention or potential contravention and has not
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transferred the complaint;
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(iii) a person to whom the Ombudsman has transferred the
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complaint completes an investigation of the
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contravention or potential contravention;
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(iv) a person to whom the Ombudsman has transferred the
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complaint informs the applicant of a decision not to
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investigate or continue to investigate the contravention
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or potential contravention;
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(v) 60 days (or a longer period agreed between the applicant
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and the Ombudsman) pass since the complaint was
32
made.
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(2) If, in a proceeding to which the applicant and the Commonwealth
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litigant are party, the court is satisfied, on the application of the
35
applicant, that the Commonwealth litigant or person acting for the
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Enforcement Schedule 1
No. , 2017
Judiciary Amendment (Commonwealth Model Litigant Obligations)
Bill 2017
5
Commonwealth litigant contravened or is likely to contravene the
1
model litigant obligations as referred to in the complaint, the court
2
may make any order it considers appropriate.
3
5 Subsection 55ZI(2)
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Omit ", or in good faith in purported compliance,".
5
6 At the end of section 55ZI
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Add:
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(3) Subject to sections 55ZGA and 55ZGB, a person (other than the
8
Attorney-General) is not liable to an action or other proceeding,
9
whether civil or criminal, for or in relation to an act done or
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omitted to be done by the person in good faith in purported
11
compliance with a Legal Services Direction.
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7 Application
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The amendments made by this Schedule do not apply in relation to
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contraventions of the model litigant obligations occurring before the
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commencement of this item.
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Schedule 2 Ombudsman
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Judiciary Amendment (Commonwealth Model Litigant Obligations)
Bill 2017
No. , 2017
Schedule 2--Ombudsman
1
2
Ombudsman Act 1976
3
1 Subsection 3(1)
4
Insert:
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Commonwealth litigant has the meaning given by section 2 of the
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Judiciary Act 1903.
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model litigant obligations has the meaning given by section 2 of
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the Judiciary Act 1903.
9
2 After section 5A
10
Insert:
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5B Model litigant functions of the Ombudsman
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(1) For the purposes of this Act, legal work performed by or for a
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Commonwealth litigant is, to the extent that it relates to
14
compliance with the model litigant obligations, taken to be action
15
that relates to a matter of administration.
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(2) For the purposes of the application of this Act to the action:
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(a) if, apart from this paragraph, the Commonwealth litigant is
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not:
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(i) a Department; or
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(ii) a prescribed authority; or
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(iii) a person or body whose action is deemed (other than
22
under paragraph (b)) to have been taken by a
23
Department or prescribed authority;
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the Commonwealth litigant is taken to be a prescribed
25
authority; and
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(b) the action is to be treated as if it were action taken by:
27
(i) if the Commonwealth litigant is a Department or a
28
prescribed authority (including as a result of
29
paragraph (a))--the Commonwealth litigant; or
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Ombudsman Schedule 2
No. , 2017
Judiciary Amendment (Commonwealth Model Litigant Obligations)
Bill 2017
7
(ii) if the Commonwealth litigant is a person or body whose
1
action is deemed (other than under this paragraph) to
2
have been taken by a Department or prescribed
3
authority--the Department or prescribed authority; and
4
(c) the action is taken not to relate to a commercial activity of
5
the Commonwealth litigant; and
6
(d) the action is taken not to be tax administration action (within
7
the meaning of subsection 6D(1)).
8
(3) The annual report prepared by the Ombudsman and given to the
9
Minister under section 46 of the Public Governance, Performance
10
and Accountability Act 2013 for a period must include details of:
11
(a) complaints made to the Ombudsman in the period in relation
12
to compliance with the model litigant obligations; and
13
(b) action taken by the Ombudsman, Departments and prescribed
14
authorities in relation to the complaints.
15
(4) This section does not limit or otherwise affect any other power,
16
function or duty of the Ombudsman.
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3 Application
18
The amendments made by this Schedule apply in relation to legal work
19
performed after the commencement of this item.
20