Brown Study

Brown study

22 March 2014

9:00 AM

22 March 2014

9:00 AM

The next step has been taken in Victorian barristers’ consideration of changing their titles from the rather anodyne Senior Counsel to the more traditional Queen’s Counsel. Of all those eligible, more than 85 per cent have applied to make the change. It may be one small step in the lives of the barristers concerned, but it is a great leap forward in the preservation of our constitutional system of government and the recognition of the Queen as the apex of the administration of justice. It may not be quite up to the same mark as Kim Jong–un’s recent election with 100 per cent of the vote, but then the Bar did not have the inspiration of the North Korean election song ‘We March to Polling Station’. Voting is now under way on the same issue in NSW and the intervention of Jim Spigelman in favour of the loyalist cause is likely to prove pivotal as he is so widely respected. Queensland, of course, is already done and dusted and the other states will surely follow. Yet another republican setback.

While on the law, I went to the opening of the new Melbourne arbitration centre, part of the push in many parts of our region to get a slice of the lucrative work in commercial arbitration, the coming preference for dispute resolution and especially in international disputes where it is the only way of getting a decision that can be enforced; it is virtually impossible to enforce a court judgment overseas, but arbitration awards are easily enforced under an international convention. Marilyn Warren, the Chief Justice of Victoria, was bathing in the eminently deserved glory of having got this new venue up and running, as well she might, being a powerhouse for reform of the commercial courts and arbitration in Victoria after the field was vacated to Sydney. This is also a good time to have the opening of the centre, as this week the prestigious Asia Pacific Regional Arbitration Group conference is being held in Melbourne, which will put us on the arbitration map if anything will. Some of us have worked mightily to get more arbitration work for Australia and it is potentially a good means of exporting Australian services. The other thing that could give arbitration a nudge along is if the Commission of Audit take up my suggestion that the mediation and arbitration of disputes in Federal tribunals be conducted not by public servants but by members of the private profession; Joe Hockey please note: this is a good case of where government should not be doing the things that private citizens could do for themselves.


As if that were not enough of a confluence of events, the somewhat esoteric issue of investor-state arbitration is surprisingly back on the agenda and the ALP and our home-grown lefties have taken it up as one of their pet causes, or pet hates I should say, as they oppose it, being curiously in league in that regard with some of the more exotic South American and African republics; perhaps, like those countries, the ALP and its handmaidens are mesmerised by running up big debts and not paying them. Anyway, you might have noticed that during the feral march through the cities last weekend and subsequently on so-called community radio, at least in Melbourne, there was much wailing and gnashing of teeth at the Abbott government’s very wise insertion of clauses in our new trade treaties enabling the arbitration of disputes rather than requiring the parties to run litigation in the courts. According to the Left, this means that foreign companies can arbitrate to stop governments from legislating on health and other socially desirable matters; just look, they say, at the arbitration on the plain packaging of cigarettes which is seeking to punish the Australian government from protecting our good health. The opponents of this reform forget that trade treaties do not stop governments from doing anything. They also overlook the fact that it may be Australian companies who are investing overseas, building a power station or an airport and who need to look to arbitration if the host country nationalises or seizes their investment. To prohibit arbitration, as the Labor party did, means the Australian company would have to sue in the local courts of the host country. I wonder how fair a go they would get as litigants in Mugabe’s Zimbabwe; in Pakistan, the judges always seem to be on strike or in prison; litigation notoriously drags on for years in India. So, it seems reckless to deny to Australian companies the prospect of major construction work overseas by denying them the avenue of obtaining redress through arbitration if a dispute arises, as frequently happens in international projects.

It is just appalling that a state-owned media company can allow a citizen, Andrew Bolt, to be smeared as a racist on Q&A. The very fact that it can raise such an issue, patently false, allow it to be discussed, offer a mealy-mouthed apology, but in the course of all of that, generate public debate on such an allegation in an attempt to brand the man forever as a racist, must be the worst in a very long line of abuses by the ABC. And of course it is made all the worse by the smug compère on his high salary, the lynch mob of an audience baying for the blood of anyone with whom they disagree, and, hanging over the whole performance, the realisation that the government will apparently do nothing to stop these repeated excesses. Is this really the sort of Australia we want to live in?

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