Dedicated to my colleague and long-time associate ‘S’, with sincere thanks for the insights and contributions made to this work.

By Andrew Klein

I. Introduction: A Promise on Paper

The Australian government is said to be bound by the Model Litigant Rules — a set of obligations requiring government agencies to act honestly and fairly, handle claims promptly, avoid unnecessary delays, and refrain from using their vast resources to take advantage of individuals.

Yet between the promise and the reality lies a chasm. The rules are not enforceable by citizens. They provide no mechanism for those harmed by government misconduct to hold the state to account. They rely on the government’s voluntary compliance — and the government, it seems, is not always willing to comply.

As one commentator put it: “The rules are useless. No private litigant — or anyone outside government — can enforce them to ensure the government and its agencies are behaving properly in court and are using taxpayers’ money properly.”

II. The Origins of the Rules: Intent and Limitations

The Model Litigant Policy was first issued by the Commonwealth Attorney-General pursuant to section 55ZF of the Judiciary Act 1903 in 1999. Victoria, Queensland, New South Wales, the Australian Capital Territory, and South Australia have since adopted similar schemes.

The core principle of the policy is that the Commonwealth and its agencies should act as model litigants in litigation. The specific obligations include:

· Acting honestly and fairly.

· Handling claims promptly and avoiding unnecessary delays.

· Not taking advantage of a claimant’s lack of resources.

· Not relying on technical defences.

· Not appealing unless there is a reasonable prospect of success or it is in the public interest.

· Apologising when the government has acted wrongly or improperly.

This last obligation — the duty to apologise — reveals the true nature of the rules. They are designed for a government that is rational, responsible, and accountable. Such a government, it seems, does not always exist.

As one legal commentator noted, some of the obligations imposed by the model litigant policy go beyond those of private litigants and are “more about good governance and administration than about behaviour in court”.

III. The Weaponisation of the Rules: The State’s Sword and Shield

The central problem with the Model Litigant Rules is a fundamental contradiction: they require the government to act fairly, yet place enforcement entirely in the government’s own hands.

3.1 Financial Warfare: Taxpayer Funds as a Weapon

The state can outspend private litigants indefinitely, using its limitless resources to force opponents into bankruptcy. As one commentator observed: “Government departments seem happy to use taxpayers’ money to run out the clock on civil disputes.”

3.2 Delay Tactics: Time as a Weapon

Government lawyers drag out cases, knowing that individuals cannot afford the wait. This is a direct violation of the rules’ requirement that claims be dealt with promptly and without unnecessary delay.

3.3 Denying Legitimate Claims: Forcing Litigation

The government sometimes forces claimants to fight in court for what they are owed, rather than paying promptly. The live cattle export ban class action is a case in point: the government lost the case but has still not paid damages. The matter has dragged on for over three and a half years, with interest costs to the taxpayer continuing to accumulate.

IV. The Unenforceable Rules: A Deliberate Design Flaw

4.1 No Penalties, No Consequences

There are no consequences for breaching the Model Litigant Rules, making non-compliance a low-risk strategy. The government can behave badly in court without fear of sanction.

4.2 Blaming the Victim

Government lawyers can even claim the rules do not apply and argue that individuals should have considered the costs before taking legal action. In the case of whistleblower Ron Shamir, the Australian Government Solicitor argued that the Model Litigant Guidelines did not apply, and that Shamir should have considered the costs of losing before pursuing his case. Shamir was left with an $88,000 legal bill, jobless, bankrupt, and in poor health.

4.3 The Irony of the “Model”

As Chris Merritt noted: “It is as if the officials who handle these matters for the government are completely unaware that there are rules requiring them to act as model litigants so as not to use their superior resources to run down challengers in court.”

V. The Real Cost: Who Pays for the System?

5.1 Whistleblowers: The Ron Shamir Case

Former Australian Taxation Office official Ron Shamir was sacked, bankrupted, and faced legal costs after exposing the ATO’s “secret” operations against taxpayers. Independent Senator Nick Xenophon argued that Shamir — a former tax official — had “pure motives” and should be protected from being sacked or further pursued by the Commonwealth. The ATO’s conduct is exactly what the Model Litigant Rules were designed to prevent — using unlimited resources to crush an individual. Yet the rules did not protect him.

5.2 Veterans: Systemic Failure at DVA

The Department of Veterans’ Affairs (DVA) faces persistent allegations of breaching the Model Litigant Rules. One FOI request asked: how many veterans who lodged a Model Litigant complaint later took their own lives?

The Royal Commission found that DVA’s failings increased risk factors for veterans. The family of one veteran believed that DVA’s refusal of his compensation claim contributed to his suicide. The systemic failure of DVA towards veterans is further evidence of the Model Litigant Rules’ failure.

5.3 Small Business: The Live Cattle Export Ban

In 2011, the live cattle export ban imposed by former Agriculture Minister Joe Ludwig was found by the Federal Court to be invalid and to constitute negligence. Yet the government has still not paid millions of dollars in damages. The government has offered $215 million in settlement, while claimants seek $510 million plus interest and costs — the final bill is estimated at approximately $900 million. In the meantime, the government’s delay continues to add interest costs for the taxpayer.

5.4 NDIS Participants

NDIS participants, families, and lawyers have alleged that the NDIA is breaching its Model Litigant obligations. Participants and their families are engaged in “David and Goliath” litigation at the Administrative Appeals Tribunal. The cost and stress of fighting a government agency are devastating for people already facing significant challenges.

VI. Parliament and the Complicity of Power

6.1 The Productivity Commission Recommendation (2014)

In June 2013, the Productivity Commission was asked to inquire into access to justice. In its September 2014 report, the Commission recommended that model litigant obligations be made enforceable and that a formal complaint mechanism be established through the Commonwealth Ombudsman.

6.2 The Government’s Rejection (April 2016)

The government rejected the recommendation, arguing that compliance is a matter between the Attorney-General and the relevant Commonwealth agency. The government argued that any other approach could lead to technical arguments, additional costs, and delays. However, this ignored the fact that the existing obligations include not relying on technical arguments, minimising costs, and avoiding delay. The government’s logic — that more enforceability would lead to more delay is contradicted by the spirit of the rules themselves.

6.3 The Senate’s Failure (2017-2018)

In 2017, Senator David Leyonhjelm introduced the Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017, which sought to make Commonwealth litigants subject to enforceable Model Litigant obligations.

The Senate Legal and Constitutional Affairs Legislation Committee recommended that the Senate not pass the bill in its current form. The Committee acknowledged the bill had “merit” but rejected it in its current form. Another opportunity for reform was lost.

VII. The Systemic Bias: Why Big Business Is Immune

The abuse of the Model Litigant Rules is, in some ways, selective. It disproportionately affects:

· Whistleblowers

· Veterans

· People with disabilities

· Small business owners

· Welfare recipients

Large corporations, defence contractors, mining and resources companies, and other powerful interests seem largely unaffected. The reason is simple: they have the resources and legal influence to match the government. The Model Litigant Rules were designed to protect the vulnerable from state power — but they only seem to protect those who already have power.

VIII. Conclusion: The Paper Tiger’s Teeth

The Model Litigant Rules are a paper tiger — they look fierce, but they cannot bite. They can be used by the government against citizens, but they cannot be used by citizens against the government.

Key Facts:

· Origins: Introduced by the Commonwealth in 1999

· Legal Basis: Section 55ZF of the Judiciary Act 1903

· Applicability: All Commonwealth agencies

· Enforceability: Only by the Attorney-General; private litigants cannot enforce

· Productivity Commission Recommendation: Make them enforceable (2014)

· Government Response: Rejected (2016)

· Parliamentary Bill: Introduced in 2017, not passed

The failure of the Model Litigant Rules is not just a legal loophole — it is by design. It is a system that is designed to make the government look fair, while allowing it to continue to use its limitless resources to crush citizens.

It is time for the paper tiger to grow real teeth. When government conduct that is meant to be exemplary repeatedly becomes a tool of oppression, the system does not need tinkering — it needs rebuilding.

Andrew Klein

References

1. Eugene Wheelahan, Model Litigant Obligations: What Are They and How Are They Enforced? Federal Court Ethics Seminar Series, 15 March 2016.

2. Alison Xamon MLA, Model Litigant Guidelines Needed.

3. Chris Merritt, Government Must Obey the Model Litigant Rules, Rule of Law Australia, 19 January 2024.

4. Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017 Explanatory Memorandum.

5. Tax Office Tries to ‘Crush’ Whistleblower with $88,000 Legal Bill, Brisbane Times, 4 November 2016.

6. Under FOI I request all reports to the Office of Legal Services regarding Breaches of the Model Litigant Rules by DVA for 2018/24, Right to Know.

7. Senate committee rejects Leyonhjelm’s bill to enforce model litigant obligations in current form, Lawyers Weekly, 10 December 2018.

8. Commonwealth Attorney-General’s Department, Legal Services Directions 2025.

9. NDIS, Our Model Litigant Guidelines.

10. NDIS participants ‘traumatised’ in David and Goliath style litigation at the AAT, lawyer says, ABC News, 14 October 2022.

11. Jesse Bird: Department of Veterans’ Affairs failed suicidal veteran, inquiry finds, ABC News, 14 October 2017.

12. Department of Veterans’ Affairs accused of contributing to digger’s suicide, ABC News, 20 July 2017.