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AG McClelland criticises FCA for overly complex rules designed to facilitate or make life easier for judges

The Australian
4 July 2008

Call for unity in backing Federal Court status
By Chris Merritt

Attorney-General Robert McClelland has singled out the Federal Court to be the primary focus for Australia's attempt to counter Singapore's growing status as a regional commercial hub.

In doing so, Mr McClelland has rejected moves by the Supreme Courts of NSW and Victoria to claim national pre-eminence in commercial dispute resolution.

He said Australia needed to counter Singapore as a commercial centre but those efforts were being hampered by the federal system and the conflicting ambitions of different courts.

That conflict should be resolved in favour of the Federal Court, he said.

"We have the Supreme Court of NSW putting up its hand and saying it should be the centre of resolution of regional commercial disputes," Mr McClelland said.

"Melbourne is putting up its hand and the Federal Court is putting up its hand.

"We have to make up our mind and it is my view that the Federal Court - the federal system - needs to be that focus and that is why I'm looking at some reforms there."

Mr McClelland nominated the Federal Court to be the focus of moves to counter Singapore in an extensive interview with The Australian in which he also:

- Criticised the Family Court for making overly complex rules.

- Flagged a far more cautious approach to whether tax deductions for corporate legal expenses should be abolished.

- Revealed he planned to continue the approach that former attorney-general Philip Ruddock had taken to opening Asian markets for Australian lawyers.

- Outlined his plan for cultural change within the public sector that will give government lawyers greater confidence and authority.

 He also flagged his intention of ensuring that the coming changes at the Federal Court did not result in so much extra cost that corporate litigation became excessively expensive. "There certainly is the possibility of legislative change and I mean that at the very broad level," he said.

"There is a case for having a very broad object - an object of the court is to ensure fast, efficient and cost-effective delivery of service."

He believed there might also be a case for empowering judges, either through legislation or regulations, so they could take more control of proceedings.

But he cited the Family Court as a classic example of a court that had "over-technocratted themselves" to the point where the court had fallen out of favour with the profession and arguably with the former government.

"To facilitate or make life easier for judges they introduced a whole range of rules, procedures, processes and regulations.

"We have to be very careful that we don't prescribe that or encourage it," he said.

Instead, the most desirable reforms would be those that would have given former Federal Court judge Ron Sackville the power to "cut through some of the nonsense" in the massive C7 litigation.

For the legal profession, he planned to adopt much of the market-opening strategy of the previous government.

"I have asked the department to prepare a brief for me to replicate what Philip Ruddock did in his term - and that is to have a roving mission to China, India, Indonesia and perhaps Malaysia."

He said the goal of this roving mission would be "to flog our wares" but also to keep the Australian profession informed about options and opportunities in the Asian region.

He believed there had never been more opportunities throughout the region for Australian lawyers. But the ability of the profession to capitalise on those opportunities largely depended on the extent to which "we get our own act together and that is really thinking in national terms, rather than parochial local terms".

He said he recently had talks with the visiting Indian Commerce Minister Kamal Nath about allowing lawyers from both countries to have access to each other's markets.

But Mr McClelland had to explain that the ability of Indian lawyers to practise in Australia was complicated by the fact that there were eight separate jurisdictions. "I think we have to come to terms with that and the national legal profession needs to come to terms with it," he said.

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