The strangely silent Attorney-General. There was a time when Attorneys-General saw one of their functions as defending the judiciary from unfair criticism. No longer it seems. Federal Attorney-General Nicola Roxon has been absent from the debate about the role of the Family Court in upholding Australia’s international legal obligations to return abducted children to Italy. It is hard to understand why.

The role of the Attorney-General as a defender of the judiciary was summarised in a speech given  in 2008 by Ross Ray QC, president, Law Council of Australia.

An aspect of the traditional role of the Attorney-General is as the “public defender of the judiciary”. The Attorney-General traditionally assumed the role of defender of the judiciary by instituting contempt of court proceedings.

Further, in Australia, the Attorney-General, by convention, defends the judiciary from unjustified political attacks. This role stems from the importance of the independence of the judiciary and the need to maintain public confidence in the rule of law.

In the mid-1990s, the then Attorney-General, the Honourable Daryl Williams QC, argued that given the separation of powers and the maintenance of an independent judiciary under the Constitution, it is no longer appropriate for the Attorney-General, as a member of the Executive, to defend the judiciary from political criticism. In his view, the role of defending the judiciary must be performed by the judiciary itself.

A former Chief Justice of Australia has a different view and he expressed it in his 1997 State of the Judicature Address when he said:

“The Court does not need an Attorney-General to justify their reasons for decisions. That is not the function of an Attorney-General. But why should an Attorney not defend the reputation of the judiciary, explain the nature of the judicial process and repel attacks based on ground irrelevant to the rule of law.”

Central to the Chief Justice’s position is that if the attack is from a political source, the response must be from a political identity. This must be so in order for the judiciary to remain aloof from the political arena.

Despite the intervening years, this issue has not yet been resolved in the Australian context. It is very much a “work in progress”.

Defending the importance of our courts in upholding the Hague convention on family law is surely an appropriate thing for Roxon to be doing.

Abolish patents and, in the meantime … A thought-provoking paper published by the Federal Reserve Bank of St Louis in the United States deserves to provoke a serious debate about the usefulness of the international patents system. The paper, The Case Against Patents, persuasively argues that there is no empirical evidence that patents serve to increase innovation and productivity, “unless the latter is identified with the number of patents awarded — which, as evidence shows, has no correlation with measured productivity.”

In its conclusions, the authors argue:

Abolishing patents may seem “pie-in-the-sky” and there are certainly many interim measures that can be taken to mitigate the damage: properly interpreting obviousness, requiring genuine disclosure of working methods and an independent invention defence against patent infringement are useful and — among economists — relatively uncontroversial measures. But why use a Band-Aid to staunch a major wound? Economists fought for decades — and ultimately with great success — to abolish trade restrictions.

It will not escape the careful reader that patents are very much akin to trade restrictions as they prevent the free entry of competitors in national markets, thereby reducing the growth of productive capacity and slowing down economic growth. The same way that trade restrictions were progressively reduced until reaching (almost complete) abolition, a similar (albeit, hopefully less slow) approach should be adopted to “get rid” of patents. Moreover the nature of patents as time-limited makes it relatively easy to phase them out by phasing in ever shorter patent durations. This conservative approach has also the advantage that if reducing patent terms indeed has a catastrophic effect on innovation the process can easily be reversed.

A political advertorial. Talk about tacking your political colours to your mastheads! The News Limited tabloids took partisan support for a politician to a new extreme this morning.

A meaningful US election and you can vote in it! From the Rock and Roll Hall of Fame come the nominees for 2013.

You can vote in the real thing here but I’m also curious about the musical tastes of Crikey readers so I’ve set up a Crikey Readers Survey as well. Will publish the results in the snippets on Monday.

News and views noted along the way:

Peter Fray

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