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Across the borders

Across the borders

The meetings of all Australian state and territory attorneys-general last week rang a new pitch. The annual get together, or the Standing Committee of Attorneys-General (SCAG), gathered for the…

The meetings of all Australian state and territory attorneys-general last week rang a new pitch. The annual get together, or the Standing Committee of Attorneys-General (SCAG), gathered for the first time since the election of the Rudd Labor Government. And for the first time in nearly two decades, the A-Gs were unified in what to do with Australia’s laws.

Federal Attorney-General Robert McClelland has now welcomed the strong support of state and territory attorneys-general to embark on an ambitious program of legal harmonisation across the country. This is a far cry from recent years’ post-SCAG commentary, which often saw the federal A-G condemn the various jurisdictions for their inability to establish unity.

This year, harmonisation of Australia’s laws was key on the agenda, with at least one upshot being the plan for SCAG to convene a one-day conference in 2008 to work on harmonisation, to be attended by academics, private practitioners and government lawyers.

But decisions also fell around reforms of personal property securities law, interstate fine enforcement, a judicial exchange program, Indigenous justice, harmonisation of criminal laws, litigation funding, and victims of crime and work towards a national register of suppression orders.

In a statement to the press, McClelland welcomed a “new era of cooperation”, and suggested that with Labor governments on all sides, the year would bring effective legal reform. If Australia is to become a “commercial hub of our region”, the SCAG agenda would have to focus on where real gains could be made in law reform, he said. And in this, harmonisation is key.

“This is important in developing a modern economy because it will remove numerous inconsistencies between jurisdictions that currently exist in a multitude of areas,” McClelland said.

“I would like to see fresh ideas brought to the table and governments engage fully and effectively with the legal profession and stakeholders.”

While his words seemed to herald a new era, they echoed those spoken by former federal attorney-general Philip Ruddock, whose long-time focus was on the legal profession.

Ruddock believed that if Australia was to become a hub for legal services, the government must be able to sell the country as an attractive place to do legal business, free from the weight of jurisdictional differences.

Discussions progressed early last year, when the United States Conference of Chief Justices resolved to open access to Australian lawyers to the US legal system, including the possibility of allowing Australian university graduates to sit American Bar exams.

But Ruddock appeared embarrassed by Australian progress towards this option, hindered by the states and territories’ inabilities to come to mutual agreement.

“When I talk to my overseas counterparts and ask them to remove barriers in their jurisdictions — particularly in relation to the admission of Australians to practise in their jurisdiction — I find it unsatisfactory that they can point to our own differences.

“I will not regard Australia as having a truly national profession until lawyers can move freely between the states without having to check the Legal Profession Act [in each jurisdiction] for differences,” he said.

The Australian legal profession has long been a thorn in Ruddock’s side, and while he took pride in the implementation of arrangements for the national profession, he blamed the state governments for persisting with nuances of difference.

“[This has] led to it being a little less than perfect, but nevertheless the change is very significant in itself and it points the way to greater harmonisation of laws within the federation,” he said as the election approached.

Labor’s then shadow attorney-general Joe Ludwig also pointed to where lawyers’ attention would be focused; he wanted a national profession to encourage competition and provide further benefits to consumers.

“It’s to enable integrated delivery of legal services — it’s about cutting red tape, it’s about ensuring that existing and future market demand for legal services is on an Australia-wide basis, it’s about streamlining state and territory regulations to allow lawyers to practise seamlessly within Australia,” Labor’s Ludwig said.

Ahead of last year’s federal election, Ruddock told Lawyers Weekly in October that the then Howard government would make strong progress towards harmonisation of laws generally if it was re-elected. He listed personal property security legislation and potentially eliminating 70 pieces of legislation in the statute books as agenda items. He also claimed evidence law, statutory declaration, powers of attorney and issues in relation to conveyancing as priorities.

“There is a framework of law in all of the states and anybody who has to deal in those jurisdictions and has to trade across borders, can only function with high level legal advice as to what the import of those differences might be,” he said at the time.

But Ludwig was able to cast more power to the states, saying he’d be happy to have SCAG identify harmonisation priorities. Instead, he promised consistency and no “harmonisation for harmonisation’s sake”, thereby shifting attention to making life easier for businesses.

“It’s like the FOI harmonisation reference by the attorney-general — where is the red tape that will be cut across state boundaries with that? Where is the business clamour for that outcome? So if we look at that I would expect that if there are inefficiencies that require consistency then they would be identified and prioritised and acted upon.”

Ludwig claimed the then attorney-general, Ruddock, should be looking where to cut red tape, which “relieves a burden on business and will facilitate business”.

But Ruddock has long pointed his finger at the states, blaming them for the inability to establish harmonised laws.

Speaking at the Australian Legal Convention in March last year, Ruddock advised the attorneys-general that they “should not be uttering motherhood statements, [rather] they should be grasping the opportunity afforded to a chief law officer to make a difference to people’s lives”.

He called the harmonisation of state and territory jurisdictions across the nation “the most fundamental law reform in the next decade”, though said he viewed efforts made as merely a qualified success.

But with Labor governments in all jurisdictions, McClelland looks set to ensure that under his administration, harmonisation of Australia’s laws will be more successful.

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Across the borders
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