Many state and territory interviewees and others considered that a more role was not desirable, since it may have the capacity to disrupt systems that were working well. There were also concerns stemming from the impression that the Commonwealth has not in the past promoted, through its own conduct in negotiations or litigation, a flexible and approach to connection. Discussion The risks and challenges to a Commonwealth role in case-specific intervention are considerable. These would require any Commonwealth activity in this area to be strategically planned and sensitively implemented. Nevertheless, in the right circumstances, a well-targeted Commonwealth involvement in negotiations may make a positive contribution in the direction of greater flexibility, and more constructive negotiations. Even where the Commonwealth is not privy to the exact nature of a deadlocked claim, an NTRB could for example indicate that no activity on connection had taken place for a given number of months, and the Commonwealth could speak to the relevant state or territory with a view to identifying any problems hindering agreement. Interviewees who are involved in conducting mediations indicated that they would strongly discourage a non-party from becoming involved in negotiations, largely because of the complex and unpredictable effect it may have on the dynamics of negotiations. Recommendation is some limited scope for well-targeted Commonwealth intervention in individual cases in order to promote quicker, more flexible outcomes, most appropriately where the Commonwealth is already a party to the claim and is requested to intervene. 6.4.2 Commonwealth forms own view on connection in particular cases As an extension of Commonwealth intervention discussed in the previous section, many interviewees (not limited to those representing applicant interests) considered that there may be a role for the Commonwealth to contribute to breaking deadlocks on connection by making (on request) an independent assessment of connection. As described by interviewees, this type of intervention would proceed as follows: Applicants and the state or territory would have been negotiating for some time, and connection material would have been submitted to the state or territory for assessment. Some trigger point would occur, perhaps a request from the applicants, or a request together with the expiry of a given period of time since the last substantive communication from the state or territory about connection. The Commonwealth would then engage an expert assessor to review the material supplied by applicants. If satisfied that connection material is sufficient for consent determination, the Commonwealth would express this to parties and also to the court. A position paper could be prepared for other respondents, indicating the basis for the Commonwealth’s assessment. Underpinning this suggestion are the following assumptions:
Many state and territory interviewees and others considered that a more role was not desirable, since it may have the capacity to disrupt systems that were working well. There were also concerns stemming from the impression that the Commonwealth has not in the past promoted, through its own conduct in negotiations or litigation, a flexible and approach to connection. Discussion The risks and challenges to a Commonwealth role in case-specific intervention are considerable. These would require any Commonwealth activity in this area to be strategically planned and sensitively implemented. Nevertheless, in the right circumstances, a well-targeted Commonwealth involvement in negotiations may make a positive contribution in the direction of greater flexibility, and more constructive negotiations. Even where the Commonwealth is not privy to the exact nature of a deadlocked claim, an NTRB could for example indicate that no activity on connection had taken place for a given number of months, and the Commonwealth could speak to the relevant state or territory with a view to identifying any problems hindering agreement. Interviewees who are involved in conducting mediations indicated that they would strongly discourage a non-party from becoming involved in negotiations, largely because of the complex and unpredictable effect it may have on the dynamics of negotiations. Recommendation is some limited scope for well-targeted Commonwealth intervention in individual cases in order to promote quicker, more flexible outcomes, most appropriately where the Commonwealth is already a party to the claim and is requested to intervene. 6.4.2 Commonwealth forms own view on connection in particular cases As an extension of Commonwealth intervention discussed in the previous section, many interviewees (not limited to those representing applicant interests) considered that there may be a role for the Commonwealth to contribute to breaking deadlocks on connection by making (on request) an independent assessment of connection. As described by interviewees, this type of intervention would proceed as follows: Applicants and the state or territory would have been negotiating for some time, and connection material would have been submitted to the state or territory for assessment. Some trigger point would occur, perhaps a request from the applicants, or a request together with the expiry of a given period of time since the last substantive communication from the state or territory about connection. The Commonwealth would then engage an expert assessor to review the material supplied by applicants. If satisfied that connection material is sufficient for consent determination, the Commonwealth would express this to parties and also to the court. A position paper could be prepared for other respondents, indicating the basis for the Commonwealth’s assessment. Underpinning this suggestion are the following assumptions:
rr_strelein.duff_.bauman_2014.docx