Last Friday, the Australian government announced the abolition of NADRAC, the National Alternative Dispute Resolution Council.  NADRAC’s functions will be absorbed into the federal Attorney-General’s Department.

Whichever way you look at it, the abolition of NADRAC  just doesn’t make sense.

An account of the reasons is dutifully provided on the NADRAC homepage.

Following the Australian Government’s announcement on 8 November 2013 to abolish or rationalise a number of non-statutory bodies, the National Alternative Dispute Resolution Advisory Council will close. The closure of this group is a whole-of-government decision that was taken to simplify and streamline the business of government.

NADRAC advises the Attorney-General and federal courts and tribunals on dispute resolution matters and also provides high quality dispute resolution information to the Australian public and dispute resolution community.  One of NADRAC’s central roles is promoting Alternative Dispute Resolution (ADR) within the Australian community.

From NADRAC’s own website we can see something of its nature and history

NADRAC was established in October 1995 and had its origins in the 1994 report of the Access to Justice Advisory Committee chaired by the Hon Justice Ronald Sackville, Access to Justice – an Action Plan. The report recognised the need for a national body to advise the Government and federal courts and tribunals on ADR issues with a view to achieving and maintaining a high quality, accessible, integrated federal ADR system.

NADRAC is a non-statutory body. Funding is provided through the Australian Government Attorney-General’s Department.

NADRAC played a central role in creating the National Mediator Accreditation Scheme and the Mediator Standards Board which have both helped develop quality standards for mediation practice and enabled the professionalisation of this important dispute resolution process. This work helps thousands of Australians access high quality and fair negotiated solutions to their problems, making less and less relevant the ‘alternative’ part of the label Alternative Dispute Resolution, .

One look at NADRAC’s publications page reveals a wealth of high quality information available there (around 45 substantial publications). In particular NADRAC’s 2012 Your Guide to Dispute Resolution stands out as an important part of a system wide access to justice strategy for providing accessible information for ordinary Australians about dispute resolution options. One of my favorite and most used NADRAC publications is NADRAC’s 2003 paper Dispute Resolution Terms, which is useful in a practice-led field such as ADR to assist with the development of quality standards for diverse dispute resolution practices around Australia.

We do not know what will happen to the valuable contents of the NADRAC website. You can access an archived copy of the NADRAC website from 6 November (before the decision was announced) here (via). Very clever sorts have archived via Dropbox almost the entire contents of the NADRAC publication treasure trove here and as a general zip file here.

The work of NADRAC is unique in Australia in working towards a high quality, accessible, integrated federal ADR system. Its role cannot be adequately replaced by individual players within the justice system, either the courts, tribunals, dispute resolution practitioners, lawyers, academics or even the Attorney-General’s Department.

Two of the most outstanding aspects of NADRAC’s position as an arms-length adviser to the Attorney-General are its independence and its grounded expertise. NADRAC’s independence enables it to advise government on important but unpopular aspects of civil justice policies, advice which it may not be possible to be given by the Department itself. Coming from an independent non-statutory body as NADRAC is, this advice need not conform with government policy but may lead the way towards higher quality dispute resolution processes. Sometimes even unwelcome advice is important in leading to better policy outcomes for Australians.

The grounded expertise of NADRAC comes primarily from the professional expertise of individual Council members, who, according to the NADRAC website ‘come from around Australia and bring to the council a broad range of experience in the area of dispute resolution.’ Subject matter experts draw their expertise from the diverse fields in which they work and so by definition, are not always employed by government departments. The Council format enables subject matter experts to routinely provide grounded advice to government in a manner compatible with their professional positions, efficiently harnessing their expertise to improve government policy.

 The Australian government’s stated reasons for the closure of the 21 non-statutory bodies centre around boosting productivity and cutting unnecessary red tape. Shutting NADRAC’s doors will not reduce regulation — it’s Charter does not include regulation in its purposes, but is limited to advice and information dissemination.

The government’s reasons for the closure of the 21 bodies also state: 

Many of these non-statutory bodies have outlived their original purpose or are not focused on the Government’s policy priorities. As a result, their work is best carried out by the relevant government departments or agencies.

If promotion of (as NADRAC’s charter demands)  ‘high quality, economic and efficient ways of resolving or managing disputes without the need for a judicial decision’ is no longer relevant or is not a government policy priority, then I am deeply concerned for the future of our federal civil justice system. This is a major shift in government policy that was not announced before the election and has not been foreshadowed since. 

Access to justice has been a stated priority of successive federal governments since the 1990s, regardless of political persuasion. Most recently at Commonwealth level, the Access to Justice Taskforce produced a report in 2009 which led to the Civil Dispute Resolution Act 2011 (Cth) which requires litigants to take genuine steps to resolve a dispute before commencing legal proceedings in the Federal Court and Federal Circuit Court. The Australian Productivity Commission has a current project, to report in September 2014, looking at access to justice and civil dispute resolution.  There is a long history in jurisdictions around the world of using ADR as part of a holistic access to justice strategy.

Promotion of ADR, one of NADRAC’s core functions, may increase justice efficiency. In the context of recent questions around timeliness and litigation delays as well as litigation cost increases, the promotion of appropriate, high quality ADR as part of a broader civil justice policy doesn’t just make sense, it saves dollars. It is hard to see how abolishing NADRAC will lead to real cost savings.

This decision raises serious questions about the direction of Australia’s civil justice policy. The demise of NADRAC means we have less independent, reliable information and advice to help answer those questions.

If you would like to protest the decision to close NADRAC, my colleague Anne Sutherland-Kelly, a mediator and dispute resolution community leader, has drafted a form letter you may wish to copy and send to the Commonwealth Attorney-General, Senator the Hon George Brandis QC (senator.brandis@aph.gov.au) or to the Prime Minister, the Hon Tony Abbott MP (tony.abbott.mp@aph.gov.au)

The Hon Tony Abbott

The Prime Minister

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

Fax: 02 6273 4100

or

Senator the Hon George Brandis QC

The Attorney General

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

Fax: 02 6273 4102

 

10 November 2013

 

 Dear Prime Minister/Attorney-General,

 Re: Reverse closure of NADRAC

 The announcement, made on 8 November 2013, to close The National Alternative Dispute Resolution Advisory Council (NADRAC), is shocking in itself and in the manner in which it was done.

 The closure was announced without consultation with ADR organisations. The Chair and members of NADRAC were told of the closure on Friday, not having been alerted previously that this closure was under consideration.

 Cost savings in the administration of justice are being driven by ADR more than any other single factor. NADRAC is a key contributor to the development of ADR in Australia. Closing NADRAC is false economy. By withdrawing this support for the development of ADR, this decision will  increase government costs, both federal and state.

NADRAC has been a global leader in the development of alternative dispute resolution (ADR) policy and regulation. It is looked to regionally and internationally as a model of ADR leadership.

 Since NADRAC’s creation in 1995, it has given an exemplary service to successive Australian governments, providing independent policy advice of the highest quality to Commonwealth Attorneys-General on the development and regulation of ADR including providing coordinated and consistent advice on achieving and maintaining a high quality, accessible, integrated Commonwealth ADR system.

 Included among NADRAC’s many contributions are the following:

•  NADRAC provided vital support and assistance in establishing the Mediator Standards Board and the National Mediator Accreditation System (NMAS) under which ADR practitioners are nationally accredited.
• NADRAC has undertaken many significant projects and extensive research that have helped to promote a culture of collaboration and greater use of ADR.
• NADRAC has produced a body of scholarly and practical publications of the highest quality relied upon by practitioners, students and administrators throughout Australia and internationally. The NADRAC website lists 45 substantive publications over its 18 year history.
• The NADRAC 2012 publication Your Guide to Dispute Resolution provides a comprehensive and easily understood resource for the Australian community.

 Legal systems all over the world are recognising the benefits of strong, well regulated, ADR practice as an adjunct to courts and tribunals. The proven benefits include:

•  efficiency and cost saving in the administration of justice
• increased access to justice
• dispute resolution that meets community needs by resolving, rather than just determining, conflict between citizens

 NADRAC has been a key body in making Australia a global leader in this international trend. When the international legal world is looking to follow Australia’s leadership in the development and regulation of ADR, it is difficult to understand why this key body would lose the support of its own government.

 I urgently request that the government revisit this ill-advised decision.

 Yours sincerely,