Document ID: chunk:federal_register_of_legislation:F2018C00409:clause:1_4:p1
Version: federal_register_of_legislation:F2018C00409
Segment Type: clause
Provision Reference: sch 1 cl 4 (pt 1/3)
Character Range: 8628–11459

4  Claims and litigation by or against the Commonwealth or non‑corporate Commonwealth entities

Entities to comply with instructions from the Attorney‑General
4.1  A non‑corporate Commonwealth entity is to comply with any instructions by the Attorney‑General about the handling of claims or the conduct of litigation. In particular, the entity is to comply with an instruction to provide information about a particular claim or litigation, or to provide copies of, or access to, material relating to the claim or litigation.
Note 1: An instruction could relate to such matters as the arguments to be put to the court and the lawyers to handle the matter. (In extreme cases, it could require that the entity change its lawyers in a matter). The need to give instructions could occur, for example, where constitutional or 'whole of government' issues arise or where the proposed conduct of a matter might be inconsistent with the Attorney‑General's First Law Officer role (eg the Attorney‑General's responsibility for ensuring that the Commonwealth acts as a model litigant). The entity will be responsible for any costs incurred by it or the lawyers involved in complying with the instruction.
Note 2: Other provisions of the Directions may also be relevant to the handling of a claim by or against the Commonwealth, including the requirements:
(a) to act in accordance with the Directions on The Commonwealth's obligation to act as a model litigant, at Appendix B
(b) to handle monetary claims in accordance with the Directions on Handling monetary claims, at Appendix C, and
(c) for counsel to be engaged in accordance with the Directions on Engagement of counsel, at Appendix D.

The Model Litigant Obligation
4.2  Claims are to be handled and litigation is to be conducted by the entity in accordance with the Directions on The Commonwealth's Obligation to Act as a Model Litigant, at Appendix B, noting that the entity is not to start legal proceedings unless it is satisfied that litigation is the most suitable method of dispute resolution.
Note: For the application of this provision to Australian Government bodies other than non‑corporate Commonwealth entities, see paragraph 12.

Acting in accordance with legal principle and practice
4.3  Claims are to be handled and litigation is to be conducted by the entity in accordance with legal principle and practice, taking into account the legal rights of the parties and the financial risk to the Commonwealth (including the entity) of pursuing its rights.
Note 1: Some examples of handling claims and conducting litigation in accordance with legal principle and practice are:
(a) acting in the Commonwealth's financial interest to defend fully and firmly claims brought against the Commonwealth where a defence is properly available, subject to the desirability of settling