Assistance provided to Commonwealth regulatory and enforcement agencies for legal proceedings
Guidance to regulatory and enforcement agencies on the circumstances where it would be inappropriate for them to receive assistance in the conduct of legal proceedings is provided in the following policy approved by the Attorney-General.
Regulatory and enforcement agencies may in some circumstances appear to be biased or partial or to be subject to conflicts of interest if they permit other interested parties to assist them (whether by way of financial subsidy or otherwise) in the conduct of legal proceedings. These difficulties could arise where, for example, the party assisting with the legal proceedings is a business competitor of the person who is the subject of the legal proceeding. Government agencies have an obligation to be independent, and to be seen to be free from any undue influence by the interests they regulate.
A recent Federal Court case (Boys v Australian Securities Commission (1997) 24 ACSR 1) illustrates the difficult issues that can arise in this area. Although the Court found that the provision of assistance under examination by it was not unlawful, one of the Judges indicated that "the acceptance by a regulatory agency of free services ... can be fraught with difficulty and should only occur after careful consideration has been given to taking appropriate steps to ensure that there is no conflict of interest or duty or appearance of partiality involved".
The type of proceedings in which these concerns can arise is not limited to prosecutions and other enforcement action, but includes any proceeding in which regulatory and enforcement agencies are involved in supporting the validity or correctness of their decisions.
The question whether assistance is inappropriate should be determined according to whether the assistance could reasonably give rise, in all the circumstances, to perceptions that the agency is or could be biased or partial. Whether assistance is inappropriate will therefore depend on all the circumstances.
The provision of assistance of the type ordinarily provided to parties in the course of preparing for litigation, and not involving the provision of legal representation, would usually not be inappropriate. Examples include assistance with inquiries and the provision of factual material, expert evidence and witness statements.
However, more exceptional arrangements that involve a third party providing resources (eg financial assistance, legal staff) for the agency to use at its discretion in the legal proceedings would require more careful consideration by agencies, as suggested by the Boys decision.
The Office of Legal Services Coordination in the Attorney-General's Department is available to assist agencies to identify whether any proposed assistance should be regarded as inappropriate.