The regulation of government litigants and their lawyers: the regulatory force of Victoria’s model litigant guidelines

Abstract

ABSTRACT Victoria’s Model Litigant Guidelines (MLGs) aim to regulate the conduct of government parties in civil disputes in a manner that goes beyond the ethical duties of ordinary litigants. Despite the sheer number of disputes involving the Victorian government to which the regime applies, little academic attention has been given to Victoria’s MLGs. The article explores the nature and extent of the regulatory force exerted by the MLGs by applying regulatory theory to the MLG regime. Particular attention is given to applying Ayers and Braithwaite’s theory of Responsive Regulation that includes situating the guidelines within their regulatory pyramid. The analysis finds that in the absence of a distinct regulator, the MLG regime is predominantly self-regulatory. The responsiveness of the MLGs appears to be restricted owing to an absence of public involvement in the MLG regime. The article also highlights that likely challenges to the MLG regime as a mode of regulation include the nature of the regulatory context, the decentralisation of government services, the lack of publicly available information on the government’s adherence to the MLGs and the content of the MLGs themselves.