43Alternative dispute resolution

43  Alternative dispute resolution

 (1) The Commonwealth, or a Commonwealth entity other than a GBE, must not start court proceedings unless they have considered other methods of dispute resolution (for example, alternative dispute resolution or settlement negotiations).

 (2) When participating in alternative dispute resolution, the Commonwealth, or a Commonwealth entity other than a GBE, must ensure that its representatives:

 (a) participate fully and effectively; and

 (b) have authority to settle the matter so as to facilitate appropriate and timely resolution of a dispute.

Division 3—Claims and litigation by or against the Commonwealth or entities

44  Simplified outline—who must comply with this Division?  

45  Entities must comply with instructions from the Attorney‑General

 (1) An entity must comply with any instructions given by the Attorney-General under this subsection about the handling of claims or the conduct of litigation (whether in general or in a specific matter), including:

 (a) instructions to provide information about a particular claim or piece of litigation; or

 (b) instructions to provide copies of, or access to, material relating to the claim or litigation; or

 (c) instructions regarding the arguments that the entity must put to the court, or the lawyers who must act for the entity, in the claim or litigation.

Note 1: The need to give instructions could arise where, for example, 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 (for instance, 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 these 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 Division 2 (the model litigant obligation); and

(b) to settle monetary claims in accordance with Part 6; and

(c) to engage counsel in accordance with Part 7.

 (2) The Attorney‑General may issue guidelines about:

 (a) the allocation of responsibility for litigation between entities; and

 (b) the handling of litigation where more than one entity may be involved.