Judge not lest ye be judged: the trials of a model litigant

Under the "Legal Practice Guidelines on Values, Ethics and Conduct", the Australian Taxation Office ("ATO" as a Commonwealth agency is required to operate as a "Model Litigant", and to act "with complete propriety, fairly and in accordance with the highest professional standards" in litigation in which the ATO is involved. The Guidelines play an important role in promoting support for the rule of law and respect for the Australian Taxation Office and the tax system as a whole – key elements in promoting voluntary compliance with the self-assessment tax system. Appropriately, the Guidelines set "an extremely high bar to jump over", and the ATO has not always succeeded in satisfying these requirements. Two recent decisions of the Full Federal Court provide stark illustrations of ATO failures to comply with the Guideline requirements. In FC of T v Indooroopilly Childcare Services (Qld) Pty Ltd, the Court was extremely critical of the ATO's failure to follow a series of single judge Federal Court decisions, while in LVR (WA) v Administrative Appeals Tribunal, a differently constituted Court was critical of the failure by counsel for the ATO to advise the judge at first instance that the AAT’s reasons for its decision were almost wholly copied verbatim and without attribution from the Commissioner's submissions to the AAT. While no doubt lapses such as these do not reflect well on the ATO, they offer rich opportunities for analysis of multi-dimensional legal, policy and related issues. How tax teachers "frame" the analysis of such issues may influence the perception and values which students take with them into the real world. Accordingly, as intellectual gatekeepers and moral exemplars, legal academics owe a duty to their students and their profession to approach the analysis of these issues in a critical but balanced way.