Speeches
2009 Alternative Dispute Resolution Conference
Opening address
Justice Andrew Greenwood
24 September 2009
Introduction
1 Ladies and gentlemen, I am delighted to be able to give this opening address and share with you some of my views
about the critical role alternative dispute resolution processes play in building consensus and thus putting an end to disputes between citizens whether individuals, or corporate citizens engaged in business activities.
2 This conference is timely. I note from ABC Radio News this morning that the Commonwealth Attorney‑General
yesterday evening launched the Federal Government’s “Access to Justice” Report and a “Strategic Framework
for Access to Justice” to guide future policy and reforms in our civil justice system. Obviously enough, I have not yet seen
the proposals or recommendations but I am sure that greater utilisation of ADR processes will be central to the recommendations.
Approach
3 I thought the most useful way of doing this is to share with you, in a fairly practical way, my experience in
dispute resolution both in the traditional determination of disputes by courts, and by other means, whether by mediation, conciliation,
arbitration, neutral evaluation, case appraisal or any combination of mechanisms which might enable disputing parties to be brought
together not only on the particular matter giving rise to the immediate problem but in a way which might solve underlying grievances which have thrown up the particular dispute.
4 I should immediately confess my strong belief in the virtue of a mix of these ADR processes in facilitating
the resolution of very many classes of dispute both in the courts and at so many other levels of consultation within our various
communities. I also confess a central belief in the role that courts provide for the resolution of the appropriate classes of complex
disputes. However, it should also be noted that there are many complex disputes which necessarily come before courts which also can be resolved through engaged case management and a mix of these ADR processes.
Background and the lessons of organisational resolution
5 Some background however is necessary in explaining my views.
6 I was appointed to the Federal Court on 4 August 2005. I had been a partner in one of the large international
law firms for 25 years. I was a dispute resolution partner with particular emphasis in corporations work, take‑overs, intellectual
property and competition law work.
7 An international law firm with offices throughout Australia and offices in London, Hong Kong, Beijing, Shanghai,
New York and the west coast of the United States, can only function efficiently and well through leadership and consensus. Such
an organisation cannot function, to take up an analogy, as a collection of Balkan States, by which I mean a collection of individual
practice groups all implementing differential views about the focus of a large practice.
8 The point is that there must be a coherent vision for the organisation. That vision is a function of the horizon
the organisation looks to. As an applied partner working in dispute resolution and as a member of the national leadership group
(the Management Committee), the vision had to be articulated and a consensus built for resolving strongly held competing views about
the direction the organisation should take. For example, what resources should be deployed in China or Asia more generally or New
York and the United States and why? What are the likely trends in the international economy?
9 Similarly, governments must articulate a vision about a nation (including the nature of its international role)
or a people (such as finding solutions to the problems confronting Aboriginal people) and take their people with them. People will
have strong views but a consensus must be built that enables inter‑relationships to function and societal cohesion to be built
especially in a diverse democratic society where debate, contest, differences, argument and free speech are highly valued for the
simple reason that through these processes minority views might one day find broader support and form the majority view.
10 That is the essence of a democracy.
11 All of this takes place against the background of constitutionally guaranteed responsible and representative democracy
and the rule of law and especially, in the case of the Federal judiciary, a jurisdiction to determine whether the Federal executive
has exceeded its jurisdiction in the exercise of executive power or whether a law of the Commonwealth Parliament is a valid law of the Commonwealth referable to a head of power and otherwise consistent with the Constitution. A responsible free press is also central to our democracy.
ADR and consensus building
12 Just like consensus building within organisations or a society, there is no doubt that recourse to a range of
alternative dispute resolution processes serves consensus building by bringing parties together and therefore serves the public interest.
13 We know that many classes of disagreement between citizens can be resolved very effectively and efficiently without
recourse to the formal processes of litigation. They include matters such as housing disputes, tenancy issues, consumer complaints,
neighbourhood disputes, some industrial issues, accident and injury issues, credit and debt issues and difficult family disputes
of many kinds.
14 Many formal disputes that begin their life in courts are also resolved without the necessity of a court hearing
or a judgment. Some complex disputes which seem incapable of resolution are aided by engaged case management, early identification
of the real issues, limitations upon the scope of some interlocutory processes and particularly processes relating to discovery of documents,
scheduling conferences and directions hearings and referral to mediation or a mix of ADR processes either annexed to the court and
supervised by the court, or an entirely external process selected by the parties.
15 Some of the processes of expedition are best reflected in the new practice directions relating to Fast Track matters, Patent matters and the case supervision of Tax and Revenue matters. However, quite apart from these practice directions the court has expansive direction powers to provide expedited trial
dates to the parties and supervise the timely completion of appropriate steps.
16 Often parties to litigation will be reluctant to throw up the possibility of mediation or the use of any of the
ADR processes previously mentioned, out of a fear of being seen by the other side to be weak or vulnerable or to have formed a view
that their case is unmeritorious. The court can seize the day by suggesting the exploration of any one or more of these ADR processes
without either side being seen to have compromised their position in any way, whether the perception is real or illusory.
17 ADR methods must be deployed as early as possible to ensure that every disagreement or contest between citizens
that can be resolved without the necessity of a trial and the judgment of a court, is resolved at the earliest possible point on the continuum between the events giving rise to the disagreement and the finality of a
court determination, if that be necessary. There are many classes of disputes which lend themselves to non‑court resolution
and some of them I have just mentioned.
18 I particularly note the experiments in Singapore and many of the States of the United States throughout the 1980s
and 1990s in implementing a multi‑door courthouse approach. Although the role of the court (and the resolution of disputes
by courts) is unique in our constitutional framework, the clearing house approach throws up practical examples of many methods of
solving a wide range of community disputes without engaging formal court processes and thus providing citizens with access to resolution
services without the consumption of large public resources and the private resources of the parties in dispute. I also note the
developments in the Land and Environment Court towards the adoption of a multi‑door courthouse approach as discussed by Justice
Preston in a speech published in the “Alternative Dispute Resolution Journal” in 2008 ((2008) 19 ADRJ 72; and 19 ADRJ 144).
Examples of major disputes illustrative of an approach
19 Let me now give you four particular examples in complex matters selected from the two year period before my appointment
to the court.
20 In the first example, I acted for Energex in conducting a large claim for damages suffered as a result of Energex
having acquired electricity transformers for the conduct of its electricity distribution business from companies that had engaged
in a price fixing cartel and bid rigging. The ACCC had taken proceedings against the cartel members and substantial pecuniary penalties
had been awarded against the cartel members by the Federal Court.
21 Nevertheless the damages claim was a separate matter and had to be properly formulated, pleaded and a method adopted
for assessing the amount of the damages. In principle, the damages were represented by the excess price paid by Energex above and
beyond the market price Energex would have been likely to have paid but for the cartel conduct. Energex contended that the cartel
conduct had persisted for a long period of time. You can immediately see that the claim was complex, extended over a lengthy period
and was likely to involve many documents and a complex methodology for calculating damages based on expert economic evidence. Such
a case was potentially very large and likely to consume many months of court sitting time.
22 I will return to the resolution of these matters after having given you the other examples.
23 The second example involved substantial patent and confidential information proceedings relating to very significant
capital investment in a large industrial reduction process. The listed company that had deployed its capital in the industrial process
was confronted with a claim that its process infringed a suite of Australian patents (mirroring international patents) and involved
breaches of confidentiality obligations in relation to information obtained from another company. There were many patents involved
and tens of thousands of documents relating to the development and installation of industrial processes. Formal court proceedings
would have involved substantial pleadings, expert engineering evidence, a contest as to infringement and challenges to the validity
of patents quite apart from the detailed analysis of the information said to be used in breach of an obligation of confidence.
24 The third example involved a contract dispute between the Commonwealth and a large industry professional body.
The dispute was putting the relationship between the industry body and the Commonwealth at risk and was influencing unfavourably
the resolution of an important agreement which would provide the foundation for public expenditure by the Commonwealth for a number
of years, on behalf of users of the particular Commonwealth service. Plainly enough, each side wanted to resolve the issues and
sustain an enduring good working relationship in a climate of trust and good faith.
25 The fourth example involved a dispute concerning the public performance rights in music embedded within films
exhibited in Australia. The rights owners in the musical works contained within films screened in Australia (whether particular
songs or thematic background music) contended that a particular level of licence fee ought to be paid by each of the film exhibiters
(for example, Greater Union, Village etc) for musical works in films screened in Australia, on the footing that exhibiting the film
necessarily involved a public performance of the musical works.
26 Notwithstanding that the film exhibitors had secured a distribution right from the studios to exhibit the films,
the musical rights owners remained entitled to a licence fee for the use of their musical works when the film was actually screened.
For present purposes, the particular copyright framework that brings about that result in Australia does not require analysis.
The licence fee had previously been calculated on a particular basis and the rights owners sought to increase the amount of the fee.
The increase was strongly resisted by the film exhibitors.
27 You can see that the issues were complex and commercially difficult and were likely to produce significant court
proceedings.
Why do I mention these matters?
28 The point of these four examples of complex litigation is that each one of them was resolved without trial or judgment by a court and at a point early in the process. The Energex matter settled through mediation processes. The parties identified the core issues,
the scope of the conduct, the essence of the complaint and the method for calculating damages. A statement of issues and contentions
was exchanged with the key documents and a mediation process was undertaken which brought the parties to a consensual position.
29 The contract dispute with the Commonwealth also settled through a structured mediation process. Again, we were
able to isolate the core issues, exchange the central documents and open up surrounding concerns which were influencing the matter
more broadly. The musical rights issues were resolved through industry negotiation processes aided by the lawyers. A number of
preliminary meetings had taken place at which the essential commercial and industry issues were examined as were the commercial issues
confronting the rights owners. The patent proceeding was settled through a combination of mediation and a carefully structured protocol
which set up an informal arbitration mechanism.
30 Each process adapted to its own circumstances brought about a resolution of the issues.
31 In order to make the ADR processes work efficiently, issues were properly defined and key documents were exchanged.
A statement of the central facts, the perceived issues and the contentions arising out of those facts and issues was laid out.
You would be familiar with these processes. An experienced mediator conducted the caucusing between each side.
32 The informal arbitration worked particularly well. Independent patent attorneys were appointed by each side.
They examined the patents and agreed about those which were no longer in issue. The patent attorneys exchanged reports which were
the subject of a reply and agreement was reached to reduce the field of the patents enormously. The information said to be confidential
was examined (under confidentiality deeds). A time was set for the experts reaching an opinion about the matters not in issue.
A process was developed for reducing the issues to the core questions in contest. A claim which involved well over $1 billion of
capital investment and a potential threat to a further investment of almost the same amount over a three year horizon was resolved.
The litigation of that contest would have consumed enormous court time, involved large discovery and a wide range of complex issues.
33 These are good examples of reductionist ADR processes which resolved for complex cases without large public and
private expense. In each case, the parties were able to sustain a continuing relationship having reached finality through the ADR
processes.
34 It is important to realise, of course, that the fundamental independent role of the courts provided the framework against which settlement was possible in each of these matters. Each party knew that absent a bona fide commitment to seeking a
solution to the problem, each party might take recourse to formal court proceedings. In the Energex matter, proceedings had been
commenced and an unsuccessful attempt had been made by the transformer manufacturers to strike out the statement of claim. However,
the matter settled at mediation before any of the large scale costs of discovery were incurred.
35 In the musical works proceeding, a Federal Court proceeding had been commenced on behalf of the exhibitors (my
client). The musical rights owners had commenced a proceeding in the Copyright Tribunal. Both of these proceedings were adjourned
by consent immediately after filing the documents to enable conferences to take place between the parties to explore the underlying
commercial issues. The rights owners were required to apply to the ACCC for particular determinations and within the framework of
those applications, a resolution to the issues was found without taking any of the court proceedings any further. Again, the solution
provided a basis for a proper working relationship between the parties.
36 So, the reason I mention these matters is that they provide a good working illustration of how ADR processes even
in complex situations can work well. Many classes of dispute lend themselves to resolution other than by trial and judgment. Some
do not. Most however do so.
The core of ADR
37 ADR processes are conducive to focus, immediacy in terms of timing, a recognition of the commercial imperatives influencing the matters in issue, relationship preservation and a sense of, “let’s get this done if we can”. ADR processes also provide certainty and finality. Resolution by these processes avoids the time delays to a hearing (although great strides have been made in the Federal Court in facilitating early trial dates) and the uncertainty of
an appeal from any judgment. Importantly, disputes settled by ADR have a prospect of resolving a range of issues which may not be the precise issue giving rise to the particular dispute. In that sense, there may be a wider permanent resolution of the difficulties confronting particular parties and there is a prospect that the parties will be able to work together in the future especially if a continuing business relationship is important to both sides.
38 My own view is that there is a natural balance between the role of the courts, the “institution” of
litigation and the many structured ADR paths to resolving a conflict between citizens which might be elevated to a dispute or ultimately to an actual piece of litigation.
39 There is a natural progression in the evolution of disputes. Many disputes can and should be settled early, quickly
and efficiently without recourse to court processes. Other disputes may commence their life with a formal application to a court
and a statement of the material facts supporting a particular claim. Steps can be taken to ensure that the issues in such matters
are properly framed and key documents exchanged so that the ADR process has the best chance of bringing about a solution.
40 All decisions must necessarily be informed decisions. Participants have to be in a position to understand whether assumptions they may have made about events or people are right or wrong or whether their view of their position is right or wrong. Aided by a mediator, a conciliation process, third party advice, neutral evaluation or other processes, participants
to those disputes might well reach (and often do reach), common positions. The quality of the information and the cost incurred in producing it needs to be carefully considered in every case. This is a real challenge.
Courts and the rule of law
41 The rule of law is central to our democracy.
42 In the Federal system, based on a written constitution with a separation of powers and an independent judiciary
exercising the judicial power of the Commonwealth, with a constitutionally guaranteed power in Federal Courts to correct errors of
executive and legislative power, the courts form an essential part of our representative and responsible government. Courts stand
between the citizen and the executive or the State. They are places where the organs of the State must act responsibly and discharge
recognised duties. Obviously enough, it is not every case that involves the citizen against the State but independence of the courts and public confidence in the courts is critical to all cases.
43 Although the constitutions of the various States do not embody a separation of powers, the State Supreme Courts
operate within an appellate structure which involves the High Court at the apex of the appellate arrangements and thus decisions
of State Supreme Courts must reflect the essential qualities of independence and separation characteristic of the exercise of judicial
power.
What courts do
44 Courts apply a decision‑making process which is sometimes described as the principle of legality although
that term might sound unnecessarily formal. It involves an examination of a dispute between citizens so as to ask the question,
what are the sources of the law applicable to this problem? Are the sources of the law to be found in the Australia common law,
legislative enactments of the Parliament or, in some cases, in the Constitution itself? Having identified the sources of the applicable law, the court examines the factual controversy between the parties and
seeks to resolve the facts by making findings of fact as to what occurred. The courts then apply the relevant law to the facts as
found to determine whether a party is entitled to particular orders of the court or “relief” from the court arising out
of a proven claim. Alternatively, the court will determine that a claim is unmeritorious and dismiss it.
Key analogous structural elements of ADR
45 ADR processes also rely on the rule of law entrenched by the courts in our civil organisation. In that sense,
ADR processes depend upon securing the confidence of the client participants. They depend upon the professionalism of the participants whether lawyers, mediators or other professional participants. ADR processes must reflect proper standards. There must be a credible process and a recognised method. There must be training and accreditation processes which will guarantee standards. ADR processes, just like court processes, must be approached in a way which best suits the issue, is timely and done well. It must also be proportionate in its cost and as efficient as possible.
46 I know that you are going to be talking about training and accreditation issues in the course of your conference.
These are important issues.
Court annexed ADR
47 There has been some recent discussion about ADR court‑annexed processes. In some of those discussions suggestions
have been made that Judges might act as mediators. Plainly enough, a Judge of the court would not conduct a mediation in a matter
which is within the docket or list management of that Judge and is likely to be heard and determined by that Judge. Suggestions
have been made that Judges might however act as mediators in matters which are on the list or docket of another Judge. Personally,
I am not persuaded that Judges acting as mediators is an appropriate course to take. I suspect that the balance in the mediation which is necessary between two parties aided by an independent mediator is likely to be unhelpfully influenced by
observations made by a person who enjoys the status of a Judge.
48 I should also add that there is a distinction between mediations conducted under the supervision of the court
in the sense of court annexed mediation and mediations undertaken by the parties through an entirely external mediation arrangement.
There are some classes of matters which lend themselves to mediation through the court’s trained mediators in what might loosely
be called a mediation secretariat. Other classes of dispute might sensibly be referred to external mediators. Alternatively, the
parties might, with the encouragement of the court, put in place a mediation protocol and reach agreement about all of the elements
of the mediation process. I note that mediation processes have been undertaken in proceedings between ASIC and respondents to particular
proceedings arising out of the “Westpoint” matters and that mediation processes have been undertaken in connection with
issues arising out of the “Storm Financial” matters.
Native title matters
49 As you know, the Commonwealth Parliament has recently passed the Native Title Amendment Act 2009. The Federal Court is charged with the responsibility of applying its sophisticated case management processes to each of the claims
before the court for determination of native title according to the traditional laws and customs of the relevant claimant group.
The court is required to supervise the mediation processes to be applied in seeking early resolution of the various claims. These
processes might identify specific issues that might be isolated for speedy determination in order to enable a mediation of the broader
claim to take place. The court is presently examining how those processes might be best applied. The court is also considering the role that the National Native Title Tribunal might play in aiding the court in accelerating the resolution of particular claims.
50 The court is considering selecting a number of examples which reflect the common elements of most claims and trialling
a number of different mediation processes to test the efficiency and utility of each process. The court has already conducted in
each State (except Tasmania) a Native Title Forum to gather together all interested parties to clearly identify any problems confronting
the efficient resolution of the various claims. I have personally been involved in the court supervision of many claims in the Cape
York region and have case managed three claims to consent determinations involving claims by the Strathgordon “mob” (being
a term which describes a collection or grouping of peoples), the Kuuku Ya’u People and the Wik and Wik Way People (Kerindun & Ors on their own behalf and on behalf of the Wik and Wik Way Native Title Claim Group v State of Queensland & Ors [2009] FCA 789; 258 ALR 306; Deborah Hobson & Ors on behalf of the Kuuku Ya'u People v State of Queensland & Ors [2009] FCA 679; and Timothy James Malachi on behalf of the Strathgordon Mob v State of Queensland & Ors [2007] FCA 1084).
Key legislative changes
51 I want to say something about the very important changes which are the subject of the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009. The Legal and Constitutional Affairs Legislation Committee of the Senate has very recently this month published its recommendations
in relation to the Bill. The Bill contains a definition of “alternative dispute resolution process” which means a procedure
or service for the resolution of disputes not involving the exercise of the judicial power of the Commonwealth. As you know, the
Federal Court of Australia Act 1976 and the Federal Court Rules already deal with the reference of particular matters to mediation or arbitration. A new s 53A(1) provides that the court may, by
order, refer proceedings in the court, or any part of them or any matter arising out of them to an arbitrator for arbitration, or to a mediator for mediation, or to a suitable person for resolution by an alternative dispute resolution process; in accordance with the Federal Court Rules.
52 A critical provision is s 37M which is in these terms:
37M The overarching purpose of civil practice and procedure provisions
(1) the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution
of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) without limiting the generality of subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the court;
(b) the efficient use of the judicial and administrative resources available for the purposes of the
Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of
the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty
imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the
overarching purpose.
53 The civil practice and procedure provisions are defined to include the Federal Court Rules and provisions made under the Federal Court of Australia Act 1976 or any other Act dealing with practice and procedure of the court.
54 Section 37N creates what is described as a “new duty” imposed upon parties to a civil proceeding. The parties “must conduct
the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent
with the overarching purpose”. That obligation is the fundamental obligation and the lawyers for a party must take account
of the duty and assist the party to comply with the duty (s 37N(2)). The remaining subsections of s 37N are all directed to securing that objective. Section 37P sets out the scope for making directions by the court in any proceeding. The orders contemplated by s 37P(3) are wide in their scope but do not limit the general power to give directions.
55 What is clear is this.
56 The overarching purpose of civil practice and procedure is to resolve disputes according to law and as quickly,
inexpensively and efficiently as possible and the civil practice and procedure provisions must be interpreted and exercised in a
way that best promotes the overarching purpose. One method that is very likely to serve the overarching purpose is the utilisation
of ADR processes. In the Explanatory Memorandum (“EM”) accompanying the Bill in the House of Representatives, the Attorney‑General
noted that a “key objective” of the reforms is to bring about “a cultural change in the conduct of litigation”
so as to resolve disputes as cheaply and quickly as possible with a view to reducing the costs of litigation and securing the allocation
of resources in proportion to the complexity of the issues whilst avoiding unnecessary delays.
57 The EM notes that ADR processes might include conciliation, neutral evaluation or case appraisal. The new definition
does not include references to arbitration or mediation as these are specifically dealt with by the Act already.
58 Paragraph 16 of the EM notes that s 37M will provide support to Judges “so they can confidently employ active case management powers”. Paragraph 23 of the EM
notes that the duty of the parties to act consistently with the overarching purpose “is important to ensure that everyone involved
in litigation is focusing on the real issues in dispute and resolving them as early and quickly as possible. If the parties conduct
settlement negotiations and/or participate in alternative dispute resolution with this goal in mind, they may not need to proceed to a hearing”.
59 Section 37P(4) provides that the court in considering whether to give directions under s 37P, may also consider whether an order ought to be made for reference to mediation, arbitration or other alternative dispute resolution
processes.
60 These provisions will heighten, in my view, the importance as part of the overarching purpose consistent with
the “new duty”, of deploying appropriate ADR processes to seek out the “just resolution of disputes according to
law and as quickly, inexpensively and efficiently as possible”.
61 Accordingly, all attendees at this conference and all of you who are actively engaged in shaping, applying and
using ADR processes in the resolution of disputes should think about how your processes might best be adapted or used so as to advance
the “overarching purpose”.
International arbitration
62 I now want to say something briefly about arbitration.
63 Commercial arbitrations are a fundamental element of Australia’s engagement in international trade and commerce.
The International Arbitration Act 1974 (Cth) gives the force of law in Australia to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) and the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law (“UNCITRAL”). Important questions of law arising
in the course of an international arbitration or arising out of the agreement giving rise to the arbitration are referred under the
International Arbitration Act 1974 to the court for determination. Until recently, the jurisdiction under that Act has been conferred solely on State Supreme Courts
although it is now conferred concurrently on the Federal Court and State Supreme Courts.
64 The Commonwealth Government is currently considering the question of whether the jurisdiction should be conferred
in the longer term concurrently on the Federal Court with the State Supreme Courts or exclusively on the Federal Court of Australia.
65 We are now living in a globalized world.
66 Every facet of the national economy is influenced by international trade and commerce in goods and services and
by international banking and international financial arrangements. The national government stands at the centre of a national response
to the global financial crisis. Australia is on the cusp of establishing an international regime within which the G20 group of nations
will become the primary international organ of international monetary policy and consensus building for the global economy. Australia
will be an active participant within the G20 group of nations.
67 Whether a person lives in the Derwent Valley or Sale, the Margaret River region or Alice Springs, Townsville,
Dubbo or any of the capital cities, each of us (since Federation and especially in 2009) are first and foremost Australians, conditioned, of course, by place, the way we engage in our particular communities and (although not properly understood in the day
to day life of Australians), the distribution of power between the Commonwealth and the States effected by the Commonwealth Constitution as interpreted by the High Court (the most recent significant examples of which are, as to the interpretation of the scope of Commonwealth
power, Australian Workers’ Union & Anor v The Commonwealth (the Work Choices case) [2006] HCA 52; (2006) 229 CLR 1 and Pape v Commissioner of Taxation [2009] HCA 23; (2009) 83 ALJR 765 as to the scope of the executive power of the Commonwealth; and Betfair Pty Limited & Anor v State of Western Australia [2008] HCA 11, 27 March 2008, as to the principles governing s 92 of the Constitution).
68 Regional rivalry played out on the WACA, Gabba, MCG, the Adelaide Oval or the Sydney Stadium focuses spirit and
identity and plainly enough, is often exciting. Regional rivalry however in the exercise of legislative power (and regulatory oversight and governance) concerning matters of national interest serve no long term public interest. The regional rivalry that caused Canberra to be placed midway between Sydney and Melbourne
must be a thing of the past.
69 The resolution by the Council of Australian Governments (COAG) of many years of inter‑jurisdictional rivalry
in the framework for determining water entitlements, water allocations and the management of the Murray Darling Basin Catchment,
is the most recent example.
70 We must recognise that in the modern world of globalized trade and commerce in goods and services, the national
government is the only polity that can exercise the jurisdiction and governance necessary to deal with matters of national importance
which affect and influence the lives of every one of us.
71 When it comes to international arbitrations which are simply a subset of international trade and commerce, it
is equally important that Australia seize the opportunity to become a centre for international commercial arbitrations particularly
having regard to trade and commerce expressed in commercial agreements as they relate to the Asia‑Pacific region. There is
no reason why London or New York must necessarily be the place where major international arbitrations are conducted. Australia has
the skill sets and a cohort of experienced individuals who are perfectly capable of efficiently conducting and determining with intellectual
rigour international commercial arbitrations.
72 However, it is important that there be a regime of national consistency. The national government has an important role to play here. The jurisdiction in courts to deal with matters arising in relation
to international arbitrations ought to be vested, in my view, by the International Arbitration Act 1974 (Cth) in the Federal Court of Australia exclusively. Doing so will provide national focus and direction and establish a jurisprudence
through a national court exercised in the original jurisdiction by a national panel of experienced Judges familiar with arbitration
issues, subject to an appellate jurisdiction within one court. This is not to express in any sense whatsoever any disrespect to
the Supreme Courts of the States which are great institutions. Domestic arbitrations under State Arbitration Acts properly vest
jurisdiction in those matters in State Supreme Courts.
73 However, it seems to me that our national government ought to support the development of a commercial arbitration
centre in this country and in this region and that objective will be enhanced and, in a real sense, enabled by a national perspective with a national court exercising the jurisdiction.
74 As I indicated earlier, the vision one has of a country is in large part a function of the horizon one looks to
and in respect of international arbitrations it is important that we lift our vision beyond State boundaries and outward from our
own shores and create a framework that contributes to international commercial arbitrations being attracted to Australia as a centre
for such dispute resolution work especially within the Asia‑Pacific region.
The Winston Churchill principle
75 For many years leading up to the outbreak of the second world war, Winston Churchill had been a strong critic
of the British Government’s policy of failing to equip the defence forces in a way which might enable Britain to be responsive
to the escalation in rearmament by the German Administration. Churchill’s criticisms in that respect were shown to be well‑placed.
Not long after being commissioned to form a government Churchill sought to bring people he had criticised on that issue together
and he observed in the House of Commons that “if we continue to concentrate on the disputes of the past all we will lose is
our future”.
76 That principle underlies ADR processes. Participants to a dispute need to think about the origins and merits
of the dispute but also need to move beyond the dispute and concentrate on the best method of resolution because if they do not do
so, all they will lose is their future if they allow themselves to be consumed by the dispute itself.
77 I thank you for listening to these remarks and I wish you well in your conference.
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