Brown Study

Brown Study

10 May 2014

9:00 AM

10 May 2014

9:00 AM

I devoted most of last weekend to attending the conference of the Institute of Arbitrators and Mediators Australia in Canberra. The Institute promotes the settlement of all forms of disputes, personal as well as commercial, by having an independent person hold the ring while the parties talk or, if that fails, using an arbitrator instead of having the dispute bogged down for years in the labyrinthine gobbledegook of expensive litigation in the courts. Mediation really works and has great potential; just think how the dogfight between James Packer and David Gyngell could have been avoided and their reputations kept intact if they had had the good sense to call in a friendly neutral to organise a beer or a cup of coffee while they talked over the dispute. (I don’t know what the fight was about, but as I think Damon Runyon said, ‘There’ll be a dame in there somewhere’). Mediation also has great potential to solve international disputes, of which there seem to be an increasing number. It is a role Australia could play by setting up a permanent international mediation commission. This would avoid the shortcomings of the present ad hoc method of drumming up mediators, because contentious issues would always be on the table and the commission would be permanently open for business without sterile arguments about preconditions, the shape of the table, who should attend and all the other nonsense that usually leads to a breakdown in negotiations, as with the hopeless Middle East negotiations under John Kerry. I have already lined up some international dispute resolvers to be involved in the new body.

Anyway, back to the conference, opened with grace and wit by George Brandis who gave the support of the government to the benefits of mediation and arbitration. The highlight of the weekend, apart from my presentation on domain name arbitration, was the after-dinner speech by the New Zealand judge, Arthur Tompkins, on the scourge of art theft, which of course had a chilling tone about it, as we were at the National Portrait Gallery, only a stone’s throw from the National Gallery and the scene of Australia’s own little brush with the looting of Indian art. Art theft, according to the judge, is out of control as shown by his aerial photos, taken before and after the mechanical diggers moved through the elegant Roman ruins of Syria, leaving whole areas hideously pockmarked; hundreds of ancient statues will soon turn up in the antique markets of the world. The judge’s solution: the present vacuum in prevention, detection and restitution should be filled by an international art crime tribunal that, of course, would have to be implemented by a treaty to give it teeth. It must surely be worth a try and ideal as a project for George Brandis, being Minister for the Arts as well as Attorney-General.


The low point of the conference was a depressing talk by a Deputy Commissioner of Taxation who was supposed to be talking about bringing mediation in to solve tax disputes. They are doing it, sort of, but by means of ‘in-house facilitators’, in other words by public servants, paid employees of one side to the dispute, rather than our well-trained and independent mediators and arbitrators. This is doubly sad. Not only is it yet another assertion that no good can be done except by the government and that the private sector can just be ignored, but it comes at a time when the Commission of Audit was expressly asked by the government to identify those activities where the burden of government could be removed and functions given over to the private sector. I put a proposal to the commission that we allow private mediators and arbitrators to handle settlement discussions in federal tribunals instead of having them run by public servants. I could not see any sign in the commission’s report that it had even thought about my proposal or the general principle involved.

When I was in the Parliament and we were in office, we had a three-week rule, or was it a three-month rule? No matter; the point was that as backbenchers, we held back for a while from taking to the battlefield to support the government on some of its more exotic and courageous proposals until it had had time to cave in to pressure and abandon the measure we had been supporting so valiantly, which it often did; our delay avoided as far as possible making ourselves look complete fools in our electorates for having supported a measure that was no longer government policy. I adopted this ‘wait-and-see’ rule after my campaign for Australia to join the OECD, which Phillip Lynch had rejected, claiming the OECD was no use to man or beast. I dutifully echoed the government line, only to find a matter of days later that the new official line was that we had to join, as the body was apparently the pinnacle of human achievement. As they say, once bitten twice shy. I mention this piece of history because when the government tables the Budget — which I hope will be as tough as it is mooted to be — there will be enormous pressure from every lobby group around to reverse one proposal or another and Tony Abbott and his team will need every ounce of support they can find. There should therefore be a firm declaration by the government that no matter what the pressure, it will stand firm and will not abandon any proposal that is in the Budget. The country needs it.

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