HON ALISON XAMON (North Metropolitan) [9.47 pm]: I rise tonight to pick up on another issue on integrity of government. I have spoken about this issue previously in this place, but it really needs to be expounded—that is, the need to finally get model litigant guidelines in this state. Western Australia does not have them and they are long overdue. It is a failure on the part of WA that we do not have them. “Model litigant guidelines” is not a particularly sexy name. For members who may not be aware, model litigant guidelines impose a duty on governments and government agencies, including oversight agencies such as the Corruption and Crime Commission, to act honestly, fairly and with complete propriety and in accordance with the highest standards. These guidelines arise from the recognition that the state has significant power and resources at its disposal, including statutory powers to investigate and compel people to provide information. The state has substantial experience and specialist expertise at its fingertips. As a result, it creates a substantial imbalance when individuals enter into litigation against the state. Unfortunately, we also know that we cannot always rely on the state to do the right thing when it comes to actions against individuals and members of the public. We also cannot always rely on the state to make decisions based on the public interest. Model litigant guidelines recognise and pre-empt this by providing a set of standards that governments are expected to abide by. The commonwealth first issued model litigant guidelines back in 1999, so I am talking 20 years ago, and that has been followed by other states, but not here in Western Australia. We have seen model litigant guidelines in Victoria, Queensland, New South Wales, the Australian Capital Territory and South Australia. The commonwealth model litigant policy, which takes the form of a legal service direction that has been issued by the federal Attorney-General, sets out specific obligations, including that as a model litigant the commonwealth should deal with claims promptly. It needs to make an early assessment of the prospects of the matter and pay legitimate claims without litigation. It needs to ensure that it is acting consistently and endeavouring to avoid litigation where appropriate. It should not take advantage of a claimant who lacks resources, and I am not talking about people, of course, who have full access to the State Solicitor’s Office. It should not rely on technical defences; and, importantly, it should apologise when its agents have acted wrongfully or improperly.

Trust in our governments and public institutions is at an all-time low, and I think there are some pretty good reasons for the lack of trust. History has proven that we cannot always rely on the state to do the right thing, so although most people would be completely horrified at the prospect of the government using its power to pursue individuals unfairly, we know that this does occur. I note in particular a 2006 Inspector-General of Taxation report that identified cases in which the tax office had apparently engaged in poor behaviour that would be prohibited by model litigant guidelines, including causing long delays, inconsistent actions, taking advantage of taxpayers, pursuing appeals when the tax office did not believe it had any reasonable prospects of success but doing it anyway, not making any effort to resolve disputes outside the litigation process, relying on technical defences and refusing to apologise for wrongdoing. In WA, we have had a prime example of this, unfortunately, in recent times. It was a prime example of the state behaving badly. That was, of course, the treatment of Dr Cunningham and Ms Atoms. That was despite serious criticisms of what was termed and recognised as a “demonstrably flawed police investigation”. The state organised a defence, in a joint initiative with the police, against Dr Cunningham and Ms Atoms. The state did not make an early assessment of the prospects of the case and did not act consistently. In fact, it ended up changing its position after eight years of this couple trying to seek justice—after eight years, the state changed its position. In appealing the Cunningham and Atoms decision, this Attorney General was quoted as saying that the state wanted to determine a legal principle, instead of acting like a model litigant and choosing to do what was right and clearly in the public interest. Two individuals, two members of the public, literally paid for the luxury of the state pursuing a legal principle. They were ultimately found to be in the right, and ultimately found to be right on appeal, but it cost them hundreds of thousands of dollars, not to mention the toll it took on their lives. If only the Corruption and Crime Commission would do its job and retract its trenchant opposition to doing anything to investigate what happened to these poor people. It is just very disappointing.

In this state, we absolutely need to have safeguards such as model litigant guidelines, yet last year, in an answer to a question I put in this place, the Attorney General said that he had no plans to issue model litigant guidelines because he thought that the state of Western Australia and its practitioners had a duty to act fairly and honourably in the conduct of litigation. I am a lawyer; I know this. Of course they have a duty to do that, but that does not mean that is what is actually happening in practice. That is precisely why states and the commonwealth have implemented model litigant guidelines, and I think it is highly problematic that we are an outlier that refuses to do that. This response from the Attorney General does not recognise that the state and its agencies are different from other litigants and that the obligations on the state to act as a model litigant go beyond the ordinary obligations that lawyers have to act in accordance with their ethical obligations.

As I have already noted, firstly, the state has more resources and powers at its disposal than other litigants and, secondly, the interest of the state as a model litigant is solely what is in the public interest and, as such, it is rightly different from other litigants. The state acting as a model litigant is an important integrity issue and I think that model litigant guidelines are an important integrity safeguard that WA absolutely needs to follow other jurisdictions in adopting. I am starting to feel that this is becoming more important than ever. There is decreasing faith in our oversight bodies to demonstrate that the extraordinary powers that have been entrusted in them are able to be used appropriately, and I think it is important for integrity of government that we ensure that our public institutions behave in the public interest and behave fairly to all individuals. I do not think we are there. In fact, I think we are going in the wrong direction. If the Attorney General were to prioritise the establishment of model litigant guidelines to bring us in line with the rest of the country, it would be a sign of good faith. It is really important, and I think we are showing that it is incredibly overdue.


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