ADR in Government

Background

The Attorney-General is responsible for policy relating to the performance of legal work for the Commonwealth.  To that end the Attorney-General issues the Legal Services Directions 2005 under section 55ZF of the Judiciary Act 1903.  The Directions require that claims are to be handled and litigation conducted in accordance with the Commonwealth’s obligation to act as a model litigant.  That obligation is articulated at Appendix B of the Directions.  

Among other things, the Model Litigant Obligation imposes a requirement on agencies to:

• deal with claims promptly and not cause unnecessary delay
• pay legitimate claims without litigation
• endeavour to avoid, prevent and limit the scope of legal proceedings wherever possible including considering ADR in all cases and participating in ADR where appropriate, and
• participate fully and effectively in ADR and, wherever practicable, ensure that agency representatives have authority to settle the matter or clear instructions on possible terms of settlement.

The Government is keen to encourage greater use of ADR by government agencies.  The Attorney-General has said he believes there is a need for a different approach by government lawyers when dealing with claims against the Commonwealth and that there is an ‘opportunity for more innovation in how these claims are dealt with’. 

NADRAC’S work in this area

The issues on which NADRAC will advise on under its Charter include the quality, effectiveness and accountability of Australian Government ADR programs.  In addition, the Charter provides that in promoting the use and raising the profile of ADR, NADRAC will assist Government agencies to use ADR and encourage them to make ADR a part of their funded programs.

NADRAC and the Office of Legal Services Coordination convened an ADR in Government Forum for heads of Government agencies and their legal advisers on 4 June 2008.  The Attorney-General presented the main address at the Forum.  Justice Murray Kellam AO (NADRAC Chair), Mr Fabian Dixon SC (Convenor, NADRAC ADR in Government Committee) and Mr Tom Howe QC (Chief Counsel, Litigation, Australian Government Solicitor) also spoke.  These speeches were followed by informal discussion.