Peter A Clarke

Yesterday the Attorney General gave a speech to the New South Wales Alternative Dispute Resolution Workshop.

It provides:

Introduction
It’s a pleasure to be with you this morning to discuss the role alternative dispute resolution plays in this Government’s ambitious agenda to improve access to justice.
I know I’m speaking to the truly committed practitioners of and advocates for ADR, when you’re willing to forgo everything a sunny Sydney Saturday morning has to offer, and spend it here instead!
Today I will, of course, speak about alternative dispute resolution – its benefits and the ways in which the Government is supporting this worthy policy area.
But, I will also emphasise how alternative dispute resolution plays an important role helping to alleviate pressure on our courts, and ensure that more Australians can access the justice system – a key priority for a Labor Government.
As such, alternative dispute resolution is a good fit within this Government’s wider cause of ensuring a fair go.
·         like our establishment of the National Disability Insurance Scheme, which Labor has chosen to launch a year early. The NDIS was put on the national agenda because Labor wanted to end the cruel lottery of disability support, where your post code determined how much help you received.
·         like our work to build the NBN, a true nation building project. While the Opposition want to take the cheap way out, robbing some Australians of access to high-speed broadband Internet, we will deliver genuine fair access to broadband.
·         and our work to improve access to legal aid to the most vulnerable Australians, which I’ll talk more about later.
This tells the story of this Labor Government, a government that is motivated by delivering basic social and economic fairness.

Improving access to justice – representation
Many in the community, when asked to describe our justice system, would immediately envisage bewigged and gowned counsel and judge, a lot of Latin phrases, the occasional banging of a gavel, and decisions handed down from a great height.
And for some criminal matters, that’s fairly accurate!
But we know that this is far from a complete picture of the options available to disputants today – although I’m sure the honourable Federal Court Justices with us this morning can think of a few examples where a gavel would have come in handy.
Today, alternatives to heading into the court are many and varied, including mediation, conciliation and arbitration to name a few.
But while these have been available for some time, Australia is yet to develop a true culture of alternative dispute resolution. There are too many litigants and lawyers alike who expect all legal disputes will be settled at the end of a long and extensive court room brawl, instead of a sensible and timely out-of-court process.
Perhaps it’s because, “I’ll see you in court!” sounds so much more exciting than, “I’ll see you in alternative dispute resolution!”
In any event, my point is simply making alternative dispute resolution available for parties isn’t enough. We must foster a meaningful dispute resolution culture within the legal fraternity and, indeed, within the wider Australian community.
Litigants need to be aware of ADR options, as well as of the benefits — in time, cost and emotional energy — of resolving matters outside of a formal courtroom setting, wherever possible.
One way we can build this culture so that parties can become properly informed of the choices that exist in dispute resolution, particularly people from disadvantaged backgrounds, is through access to legal advice and representation.
As a Labor Attorney-General, my priority is to ensure our justice system works equally well for those with few resources as for those with many.  I want a system that is geared as much to the small one?off litigant seeking redress, as it is for our large corporations who utilise the courts as an every-day part of their business.
That’s why I’m proud to say that Labor’s commitment of more than $1.3 billion in legal assistance funding is the largest commitment in over a decade and is making a real difference around the country. In my opinion, this substantial increase has not received the recognition it deserves – but I would like to acknowledge my predecessor as Attorney-General, Robert McClelland, who worked hard to provide the legal aid sector this desperately-needed funding expansion, after it had stagnated for the better part of a decade under the Howard Government.
We also know that, despite this very significant funding increase, that there is constantly growing demand on our legal aid organisations and community legal centres.
Which is why, earlier this year, I announced a comprehensive review of all Commonwealth-funded legal assistance services — Legal Aid Commissions, Community Legal Centres, Aboriginal and Torres Strait Islander legal services, and family violence prevention legal services — to ensure we are delivering the most effective and efficient services possible.
This review will inform the Government about future funding arrangements beyond  the end of the current National Partnership Agreement. We’ll know what has worked, what hasn’t, and what we can do better with finite resources.
But legal aid is only part of the story. How to promote alternative dispute resolution instead is another, looking for more creative options to use or avoid courts — and, or course, looking to the profession itself.
 As lawyers, we do well out of the profession.  Providing legal advice, advocacy and representation is a necessary and vital service.  And mostly it pays very well.  So, seeing a further contribution to the legal community as part of a lawyer’s professional standing is something that we need to foster.
 Pro bono work is one part of this. Pro bono is more than just an exercise in building legal skills and experience; it is one way to fulfil a professional obligation on each and every lawyer, to assist those who cannot afford or who are unable to access legal advice.
 But we need to push boundaries further. Lawyers joke with me sometimes that they couldn’t afford themselves! While this may get a few chuckles from some, but it does show a fundamental problem we need to address across the profession.

Knowing what alternatives exist
An important part of this is that we need to be sure that litigants who approach private counsel are aware of the alternatives that are available to them beyond the court room.
This is one of the reasons that we introduced  legislation  encouraging people to take ‘genuine steps’ to attempt to resolve a dispute in certain federal matters before going to court.  It promotes a change from the adversarial culture of dispute management, and requires lawyers to give clients information about alternatives to litigation.
A legislative kick-start, if you like, to foster an alternative dispute resolution culture.
I’m realistic, however. I know that in some intractable disputes, this just means another piece of paper filed with the Court as parties march towards a courtroom showdown.
But for the parties who thought there only option was court, it lets them take a step back, peer over the battlements, and think hard about whether they’d prefer a day of mediation to a week of hearings… And whether they’d like a say in what the outcome could look like, instead of leaving it to a judge.
The Act then allows the courts to take that statement into consideration in deciding how to handle the case. The consequences of failing to file a genuine steps statement were considered in the recent Federal Court decision of Reeves J in Superior IP International Pty Limited v Ahearn Fox Patent and Trade Marks Attorneys.
His Honour highlighted the importance of lawyers advising their clients about the requirement to file a genuine steps statement and assisting them to comply with that requirement.  In the case, both of the parties’ lawyers failed to comply with the requirement and now face potentially severe personal and professional consequences as a result.
I’ve commenced an evaluation of the legislation introducing this new step, to assess whether it is meeting its objective.  The results of the evaluation will also reflect stakeholder, consumer and practitioner views and inform future policy.
Improving public awareness is another major factor in moving people away from formal court-room resolution. Just last month I launched Your guide to dispute resolution, a handy and very accessible booklet produced by the National Alternative Dispute Resolution Advisory Council in collaboration with the Attorney General’s Department, to help raise awareness and educate people so that they know resolution of legal disputes is possible for everyone, regardless of means.

Court fee reform
Financial incentives and disincentives can also be a powerful means to get people to consider alternative approaches to resolve disputes.
Court fees, for example, have the capacity to send pricing signals that the courts should not be the first port of call for resolving disputes. But this tool has often been underused, or implemented haphazardly in the face of court costs pressures.
The modern federal court system should have a fee structure that, at every stage, encourages resolution and discourages prolonged litigation.  This is why I am conducting an over-arching assessment of court fees, and how they can be shaped to better reflect the costs associated with lengthy, resource-intensive matters. Importantly, these reforms will consider changes to the fees structure that would mean people and corporations would pay more appropriate fees for complex and lengthy matters.
Unfortunately, many of us can name too many cases that have dragged on ad nauseum, wasting valuable court resources.
Both Governments and lawyers need to discourage matters dragging out by giving parties the knowledge and opportunity to take ‘legal off ramps’ wherever possible.
Our changes to court fees will also better reflect the capacity of court users, such as big corporations, to contribute more to the cost of courts.
It surprises many that the Government currently only recovers around 15 per cent of the cost of running the courts. While I’m definitely not proposing any form of a ‘cost recovery’ model, we can’t have the difference between costs and returns continuing to diverge, with heavy court users bearing little of the burden.
I am hopeful that this adjustment will help break the habit for those that rely on the courts as a forum of first resort.
Of course there will always be individuals and industries prepared to spend what it takes to ward off precedent-setting litigation, or government action to restrict dangerous practices or products.
The most obvious example for me is the decades-long legal war big tobacco has waged against sensible and life-saving tobacco control.
Governments have the firepower, and increasingly the will to stand up to those who attempt to use the courts to stymie sensible public policy. But is this right? Should Governments be the only ones who can stand up to big corporations intent on pursuing their own agenda without concern for the wider Australian population?
This is one of the great challenges for policy making in our justice system – to ensure that people are able to access the right level of dispute resolution easily and to make sure that those with the deepest pockets can’t rely on their ability out-spend to win.
By making these changes to court fees, we are better reflecting the cost of providing court services and will encourage the efficient use of court services and to narrow issues in dispute and fully explore settlement options.

Profession support for ADR
As I’ve described, our Government has a strong track record that is prompting individuals and corporations to consider the benefits of alternative dispute resolution.
But, building a strong and lasting culture of alternative dispute resolution cannot be left to Government alone.
The profession itself needs to play a greater role in helping litigants understand the benefits of alternative dispute resolution, and finding ways to leverage better access to our legal system.
Some argue that there is a perverse incentive for lawyers to steer clients into the court room – as longer litigation equates to fatter cheques.
But, I’m sure I don’t need to remind this room of the commitment of all lawyers who are admitted to the bar make. That is, we must always act in the best interests of our clients and the courts.
As alternative dispute resolution offers so much to clients in reducing costs and providing for faster outcomes, I hope that soon we’llsee more and more lawyers attending sessions like today to further champion this worthy cause.

Litigation funding
Aside from keeping cases out of court when they can be, the Government is also keen to help Australians access legal advice in new ways – and I want to talk to you about two ways this is possible – through litigation funding and our new NBN.
Litigation funding was historically precluded in Australia, a position which was reversed by the High Court in 2006.
It’s clear to me that litigation funding has the potential to support access to justice, particularly when it comes to claims on behalf of creditors of an insolvent corporation and class actions on behalf of consumers or shareholders. It enhances access to justice by creating an option for people who might otherwise be unable to pursue a legitimate claim due to the often high costs of litigation.
The acceptance that litigation funding is a reality in Australia has prompted its considerable growth.  But, this growth has caused confusion about regulation of the industry, especially as courts have indicated that litigation funders may be subject to regulation under the Corporations Act 2001.
On 12 July 2012, the Australian Government addressed this issue by making Regulations which clarify that litigation funding arrangements are exempt from full regulation under the Corporations Act.  The Regulations also address potential conflicts between the interests of litigation funders and their clients.
It is an important balance — providing consumer protection, while encouraging the development of a stable, efficient and broad-based litigation funding market.  Over?regulation could stifle growth and competition, driving up prices and reducing consumer choice in the relatively small and new Australian litigation funding market, a market which has the potential to improve  access for strong claimants who otherwise may have never been able to seek redress.

NBN – the vehicle for speedy, low cost dispute resolution
Despite being well into the second decade of the 21st Century, court processes can sometimes feel akin to those portrayed in a Dickens novel.
I often think that a time-traveller from 1850 would be awed by our hospitals today, but right at home in some of our courts.
We need to take advantage of the modern tools now available to us, most notably high-speed internet, to take much more dispute resolution online.
Our creation and rollout of the National Broadband Network will add further impetus to the development of new possibilities for online dispute resolution.  The availability of online dispute resolution is particularly important for remote and regional communities or where people are geographically separated.
To help the legal community take some of the first steps in this area the Government earlier this year invited organisations to apply for grants the National Broadband Network (NBN) Regional Legal Assistance Program, and today I have the pleasure to announce today the successful applicants
Four grants totalling $400,000 have been awarded under the Program, which is part of the Government’s $4 million investment to improve access to legal assistance services for people living in regional Australia.  My Department will call for applications for the second funding round later this year.
The first round of successful applicants are:

·         North West Community Legal Centre (Devonport) Tasmania

·         Hobart Community Legal Service

·         Redfern Legal Centre in New South Wales

·         Welfare Rights Centre South Australia

These grants will provide the opportunity to trial innovative and collaborative ways of providing legal assistance services to disadvantaged people in regional communities throughout Australia and share expertise more effectively between legal service providers.
Particularly impressive is the extent of involvement of the broader legal profession in the projects, allowing clients in regional areas to benefit from the expertise of city-based lawyers who are offering their services on a pro bono basis.      
This Program represents an exciting opportunity to trial new technologies to provide better access to justice for people living in
non-metropolitan Australia.
One area that has embraced online opportunities has been family law. Telephone and Online processes, including video conferencing, are now standard practice for those with accessibility issues or safety concerns.  Online Family Dispute Resolution is part of the Telephone Dispute Resolution Service, which receives $3.5 million Government funding each year.  All clients need to access Online Family Dispute Resolution is a phone and a computer with every day internet software.
I believe the early progress being made with online dispute resolution for family law offers much promise for other areas of the law.

International Arbitration initiatives
On a final point, I am also considering what further initiatives we can take towards the Government’s commitment to enhance Australia’s reputation as an international commercial arbitration hub, by improving the national framework of international commercial arbitration.
As many of you here would be aware, the Australian Government has reinvigorated international arbitration arrangements by driving reforms to Australia’s international arbitration regime.
We’ve done this by reforming the legal framework, and supporting world-class facilities being available to disputants through the establishment of the Australian International Disputes Centre here in Sydney.

Conclusion
Today has been an opportunity for me to cover a range of Government priorities to improve access to justice, including the steps to provide and encourage alternative dispute resolution.
Governments can do a lot to foster a culture of alternative dispute resolution. And, since 2007, our Government has demonstrated exactly how that can occur.
We have legislated to ensure that litigants understand they should take genuine steps to keep action out of the courts where it is possible to do so.
We’ve increased legal aid funding so that those most disadvantaged in our society can not only access legal assistance, but also understand that the court room is not the only way that disputes can be resolved.
And, we’re looking to set better price signals in court fees, so that courts are not seen as an easy out for those that want to prolong a dispute, or discourage an advisory from seeking redress.
This is all about helping to deliver Labor’s agenda to provide faster and more efficient justice for small disputes between individuals, up to major litigation between multi-national corporations.