By Terence Loko, Government Lawyer, Legal Services (Services Australia)
Whether it’s been from the findings of the Robodebt Royal Commission, the creation of the National Anti-Corruption Commission (NACC) or various significant amendments to public sector laws, the public have become increasingly interested in how public servants, and in particular, government lawyers, are regulated.
But what duties and responsibilities apply to government lawyers? Where do these requirements come from? And how do they fit with the existing frameworks already governing public servants?
Paramount duty to the court
The cornerstone of legal practice has always been the vital role of lawyers in upholding the rule of law and maintaining the integrity of the justice system. This effectively means lawyers owe their loyalties to the court and where there is a conflict between this duty and any other, such as to a client, their duty to the court must always prevail. This duty also means lawyers must always maintain a level of integrity and professional independence in how they conduct themselves in not just their professional, but also their private lives.
Ethical and professional standards
In Australia, both public and private sector lawyers are generally governed by a set of ethical and professional standards, set by the state or territory law society of the jurisdiction in which they work. Most of these professional conduct standards are modelled off the Australian Solicitors’ Conduct Rules or equivalent barrister standards. A general summary of these key rules are duties to act with:
- Integrity
- Competence
- Diligence
- Client Confidentiality
- Avoidance of conflicts of interest
- Fidelity
- Advocacy and representation
- Justice
- Trust and Confidence in the Legal Profession
Public sector regulation
In addition to the general rules applying to lawyers, government lawyers, like other public servants, are also subject to further duties that are tied to the public interest. Some of these further duties include, but are not limited to, complying with:
- the Australian Public Service (APS) Code of Conduct under the Public Service Act 1999 (PS Act) (or equivalent codes under non-APS enabling legislation)
- duties under the Public Governance, Performance and Accountability Act 2013 (PGPA Act)
- rules on how government legal services are to be performed under the Legal Services Directions 2017 (LSDs)
- duties not to engage in corrupt conduct under the National Anti-Corruption Commission Act 2022 (NACC Act)
Model litigant obligations
One notable set of obligations that apply generally to Commonwealth entities, and by extension, to lawyers acting for the Commonwealth, include what’s known as the model litigant obligations.
These obligations can be found under both the general law and the LSDs, and mandate that monetary claims and litigation brought against the Commonwealth should be dealt with by the Commonwealth with honestly and fairness through actions such as dealing with claims and litigation promptly, engaging in alternative dispute resolution and settling matters early when appropriate.
Some examples of when the model litigant rules apply to lawyers, include when acting for the Commonwealth in a tribunal or court dispute involving a taxpayer challenging an income tax assessment by the Australian Taxation Office, or where a parent objects to a child support assessment by Services Australia.
Where do I find out more?
You can find more information about general legal professional conduct by contacting the Law Council of Australia or the law society of the state or territory you live in.
For information around the APS Code of Conduct under the PS Act, or duties under the PGPA Act, you can contact the Australian Public Service Commission or the Department of Finance, respectively.
For more information on the LSDs or the NACC Act, contact the Office of Legal Services Coordination or the NACC, respectively.