7. Being a model litigant
The Legal Services Directions are a set of binding rules issued by the Attorney-General about the performance of legal work for the Commonwealth, whether performed in-house, by the Australian Government Solicitor (AGS), or by other external legal service providers. The directions help to ensure that the ATO receives consistent and well-coordinated legal services that are of a high standard, that uphold the public interest, and that are sensitive to their context of Commonwealth interests which are broader than any one agency. In turn, this approach protects the Commonwealth's legal and financial position.
The directions cover matters such as:
- briefing the Solicitor-General
- recovery of costs
- reporting on legal services expenditure
- reporting on significant issues
- principles of constitutional litigation involving Commonwealth Authorities and Companies Act 1997 (Cth) bodies
- use of in-house lawyers for court litigation
- model litigant.
As a model litigant, the ATO, its officers, solicitors and counsel are required to act with complete propriety, fairly and in accordance with the highest professional standards in handling claims. This also requires the ATO not to start legal proceedings unless it is satisfied that litigation is the most suitable method of dispute resolution.
Taxpayers and their representatives are advised of our model litigant obligations at the commencement of litigation. Similarly, external legal service providers and counsel representing the ATO are informed of their model litigant obligations when they are engaged to represent the ATO.
Since 2007-08, there have been 38 alleged breaches of the Legal Services Directions reported for the ATO, 28 (74%) of these were identified and self reported by the ATO, the remainder were reported by the taxpayer.
Of the 38 alleged breaches, the Office of Legal Services Coordination (OLSC) within the Attorney-General's department is yet to determine 14 (37%) of these alleged breaches. 4 breaches have been found in the 24 determined, 3 of which were administrative in nature.
The ATO provides regular training to our legal services officers in the model litigant obligations detailed in the OLSC Legal Services Directions.
Figure 7.1 Alleged breaches
Figure 7.2 Model litigant statistics