TRANSCRIPT OF INTERVIEW - SKY BUSINESS LAW TV

3 February 2010

Subject: National Judiciary; National Legal Profession Reform

SCOTT: Welcome back. This week one of the country's top judges, New South Wales Chief Justice James Spigelman, used an address at the opening of the state's new law term to issue a call to arms. Australia needs an Australian judicial system, one that's neither state nor federal.

Chief Justice Spigelman went further, criticising the task force set up by Attorney-General Robert McClelland and its idea of creating a separate legal services board responsible for legal admission and discipline.

If you want to go down that road, he argued, judges, we, could quite easily establish a parallel regime of our own. Full of sound and fury or does the chief justice have a point?

I spoke with the Attorney-General, Robert McClelland, a short time ago, beginning first with Chief Justice Spigelman's remarks about how an Australian judiciary could be set up.

So broadly speaking, do you agree it's not really a constitutional argument, you just need the political will to say yes to it?

McCLELLAND: There is some political will there.

Last year, the Government introduced amendments to the Federal Court Act and Victoria introduced amendments to their relevant legislation dealing with their Supreme Court, equally in New South Wales, to try and facilitate this dual appointment arrangement. Essentially the amendments are intended to overcome any concept of there being an appointment to incompatible offices.

But it can be done. We are very much looking at how it can be done. It will involve, in the case of appointments to the Federal Court, the Commonwealth assuming primary responsibility for remuneration but there is certainly a willingness on the part of the Victorian and New South Wales Attorneys-General at least to discuss what contributions could be made to those arrangements at a State level.

There are also other issues to work through, of course, about the heads of jurisdiction cooperating as to who would provide guidance at what point in time to the allocation of the judges on the respective courts.

These are practical measures but I agree with the Chief Justice and indeed we're attempting to overcome these challenges that occur as a result of the constitutional arrangements. We are certainly exploring those opportunities.

SCOTT: What about the challenge as well when it comes to complaints handling over judges? If anything, though, Justice Spigelman would say decentralise that part of the system. Because these issues are happening locally don't try and pretend that they are national problems.

McCLELLAND: He has consistently argued that and that has been the argument of the New South Wales Attorney-General which I respect, and I must say they have a Rolls-Royce model of judicial complaint handling in that State.

The reality is, however, in respect to some smaller jurisdictions, and we're looking at a national picture, the number of judges on the court is such that there are two problems: firstly, the resources required to run such an elaborate model but, secondly, the prospect of close colleagues evaluating the performance of one another.

For that reason, a national complaints procedure based on agreed national standards is, from where I sit, from the point of view of the Australian Attorney-General, a more effective way of doing things at a national level.

Having said that, obviously States may prefer their own developed system and in the case of New South Wales, I could understand that they would do so, but that doesn't mean we should not explore it and indeed we are through the Standing Committee of Attorneys-General.

SCOTT: I appreciate that. The task force itself, you've tasked it with going out there and also looking at the profession in the round are concerns, big ones, from Chief Justice Spigelman about the dictative nature of this. He doesn't want Government getting involved in the composition and in the disciplinary part of the profession. Where do you stand on that?

McCLELLAND: Again, these are certainly points for us to look at. Their concern is that having an independent legal profession is crucial to the advocacy that they have before an independent judiciary and these points have to be listened to.

The legal profession has been very, very strong in defending what may be an unpopular cause, but nevertheless giving those who are before the courts the opportunity of presenting their case, a very important function as part of the rule of law.

SCOTT: Nonetheless, you're going into an election now. Arguably this is starting to spin out of control. So the top judges in the land, Spigelman and, of course, de Jersey from up north, coming out very publicly and saying the rule of law, our profession, our independence is threatened if we don't get a say in how we run our profession.

McCLELLAND: No, it's not spinning out of control at all. Look, all these contributions are valuable.

SCOTT: Does it need to go public, that's the point. By going public it's hardly kept it nice and measured, has it, as a debate?

McCLELLAND: I'm not offended by these comments going public and I'm big enough and ugly enough to respond to them and take them into consideration.

What we're looking at is creating a seamless national legal profession.

I think people of common sense say, well, that's a good thing and the challenge is how do you do that while preserving the independence of the profession at the same time as having effective consumer complaints procedures and the admission of lawyers, the admission of foreign lawyers, trust account regulation and disciplinary matters dealt with preferably at a local level.

SCOTT: Indeed, though the Chief Justice is saying there could be two parallel regimes if you don't indeed take on our concerns and if you really don't give us that authority we will go parallel to any system you set up. How concerned are you by that?

McCLELLAND: Well he's saying, what is again a constitutional reality. It is probably the case that the State courts under our constitutional arrangements have, and will continue to have, the authority to control proceedings including those who are admitted to appear before them.

SCOTT: And yet the task force says that the actual Legal Services Board will be the rule-making authority. How can the two co-exist?

McCLELLAND: At a national level the professions come together, that is the State and Territory professions come together at a national level to set the criteria, the rules that are then dealt with on a State and Territory level.

This is essentially the proposal that has been put forward for consideration so they can be compatible and they can work together.

[Ends]