Reforming zeal in Australia
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21 January 2014
They may be at opposite ends of the world but, when it comes to law reform, Australia and England have strikingly similar agendas.
Incorporation, Alternative Dispute Resolution (ADR), deregulation of professional indemnity insurance and the increased politicisation of judges, are all hot topics for lawyers in both countries. The similarities extend to the smallest detail - last December the New South Wales Law Society published a report entitled Access to Justice.
People with experience of working in both countries believe that, in terms of reform, Australia might well be stealing a march on England.
British law reformers, they say, are increasingly looking to their antipodean counterparts for direction.
Perhaps the best example of why the British are now looking down under to see how things are done, can be seen in the way in which Australian lawyers use ADR as a major tool in the litigators' armoury.
Lawyers estimate that Australia is five years ahead of the UK on the issue.
ADR exploded onto the Australian scene between 1993 and 1995 in a way which is expected to happen here, following the introduction of the Woolf reforms.
Miryana Nesic, an Australian senior associate and ADR specialist at Allen & Overy, has been in London for 18 months and can outline some of the many ways UK lawyers need to develop to get in tune with international practice.
According to Nesic, the two principal reasons for Australia's advanced approach to ADR are that "Australian clients are a lot more pro-active and interventionist" and "judges in Australia adopt a more hands-on approach and are more case-management focused".
Australian judges, she says, have a history of pushing lawyers down different routes. In Queensland, when the judges were criticised for delays, and demands were made to improve access to justice, there was a successful drive to make ADR as cheap, quick and easy to use as possible.
The approach of the law firms themselves is also different, says Nesic. Each firm will usually have a partner to co-ordinate the firm's use of ADR. And a culture of ADR is instilled at student level, with ADR representing part of every student's university training. This means that most lawyers know when and how to use it.
There are about 500 ADR organisations in Australia and any new or amended legislation will, where appropriate, almost certainly make provision for the use of ADR.
Nesic says studies and experience in both the US and Australia have found that the use of ADR brings overall costs down, even when it does not work.
A failed attempt at ADR brings most parties closer to reaching a settlement, she says, because they have both had a chance to get a good look at the evidence.
She says Australian law societies are "extremely active" in setting standards for solicitor mediators and in publishing promotional materials to improve the public perception of solicitors.
In Australia, the ADR approach of a firm can be crucial in establishing and maintaining client loyalty. "It has developed so much, that brokering organisations have been established to find the most suitable ADR company for you," says Nesic.
ADR is also seen as a perfect opportunity to increase the profile of solicitors. There are "settlement weeks" where cases are thrown out of court and solicitors, working on a pro bono basis, attempt to resolve disputes using ADR.
"The way in which the legal profession has embraced ADR is good for the profile of lawyers generally," says Nesic.
Nesic and others like her are starting to have an impact in English law firms. Allen & Overy, for example, aims to adopt a culture of using ADR wherever possible. The firm now has 10 accredited mediators and is training its lawyers to recognise cases that might be suitable for ADR.
Another area in which the Australian legal profession appears to be one step ahead of its British equivalent is incorporation of solicitors' and barristers' practices.
Jeremy Kriewaldt, London partner of Australian firm Blake Dawson Waldron, says the arguments about incorporation are much the same in the two countries, but things are developing more quickly in Australia.
"The debate is a little further advanced over there - the public and the profession have got used to the idea, and it is now just an issue of convincing the politicians."
It will not all be plain sailing however. Australia operates on an independent state basis and so mutual recognition of a "national profession" is crucial to success.
Inevitably some of the smaller states fear for their sovereignty - the Attorney-General of Victoria for one has been accused of dragging his heels.
Another possible cause for delay are reviews currently underway in other areas of law, such as business taxation laws and directors' duties, which could have implications on the desirability of incorporation.
However, most lawyers believe there is generally a consensus on the issue, and that the benefits of incorporation will outweigh the disadvantages.
A report published by the Attorney General of New South Wales in December, recommended, among other things, allowing incorporation.
Robert Hanley, partner of leading Australian firm Minter Ellison, believes most lawyers are very keen on incorporation, because it would allow them to raise money from outside investors and so have capital to spend on new premises, information technology and staff.
He points out that it is already possible to set up limited liability partnerships in NSW and expects to see incorporated practices nationwide within the year.
Kriewaldt believes one reason for his country taking the lead on these initiatives is the adventurous spirit displayed by Australia, New Zealand and Canada in the second half of this century.
He argues that where they have become more experimental, so the English have become very conservative in their approach. "No one in the world has followed the UK's Financial Services Act, whereas 50 or 60 years ago it would have been adopted across the Commonwealth," he says.
But, when it comes to the judiciary, many antipodeans would welcome a little British conservatism.
The Australian judiciary has recently been heavily criticised for pursuing social and political agendas in their judgments. Politicians have slated some of their decisions as "insane" and have described judges as off on a "legal frolic".
One much-cited example of this judicial adventurism is the Teoh case, in which the High Court decided that a ratified convention not enacted into Australian law, nevertheless had force.
The trouble, says Kriewaldt, is that some judges have gone from a position of gauging current community standards and applying them, to the point of guessing what they will be, or what the majority believe they might be in the future.
The "hands-on" approach of Australian judges could provide an interesting lesson for British judges who, following incorporation of the European Convention on Human Rights, due early next year, will have to make decisions based on social policy and morality.
Overall, the message from lawyers who have worked on both sides of the hemisphere is that Australia is increasingly becoming a source of ideas.
But although the two professions appear to be moving in a similar direction, albeit at different paces, they retain their distinctive cultural characteristics.
Hanley spent four years with a leading British firm between 1988 and 1992 and confesses that he "never worked so hard in [his] life".
"The difference is one of attitude," he says. "Our firm prides itself on being people-oriented in terms of staff and clients and, on the internal side, we discourage working late nights and weekends.
"Yes, we want to make money and improve our rating, but not at the expense of everything. If a Minter Ellison lawyer is working all hours God sends, then he has too much work, or is not working efficiently."
The differences are not just over hours, he says. Typically an Australian firm will operate an open policy, so employees can gauge how they are faring.
"It is my impression that as an English lawyer, certainly as a non-partner, you will have little access to how the firm is doing financially, whereas an Australian firm will make sure you know how you, your group and the firm are doing."
Australian firms are just as good as the English, but have a different style, says Hanley. "People are expected to have a sporting life and a social life. The quality of work is comparable, but we don't flog people quite as hard."