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Wednesday, 23 March 2011
Page: 1659


Senator BRANDIS (5:59 PM) —by leave—I move opposition amendments (1) to (29) on sheet 7047 together:

(1)    Clause 3, page 2 (line 12), omit “genuine”, substitute “reasonable”.

(2)    Heading to clause 4, page 2 (line 14), omit “Genuine”, substitute “Reasonable”.

(3)    Clause 4, page 2 (line 16), omit “genuine”, substitute “reasonable”.

(4)    Clause 4, page 3 (line 18), omit “genuine”, substitute “reasonable”.

(5)    Clause 5, page 4 (line 3), omit “genuine”, substitute “reasonable”.

(6)    Heading to Part 2, page 5 (line 1), omit “genuine”, substitute “reasonable”.

(7)    Heading to clause 6, page 5 (line 4), omit “Genuine”, substitute “Reasonable”.

(8)    Clause 6, page 5 (line 6), omit “genuine”, substitute “reasonable”.

(9)    Clause 6, page 5 (line 8), omit “genuine”, substitute “reasonable”.

(10)  Clause 6, page 5 (line 18), omit “genuine”, substitute “reasonable”.

(11)  Clause 6, page 5 (line 20), omit “genuine”, substitute “reasonable”.

(12)  Heading to clause 7, page 5 (line 24), omit “Genuine”, substitute “Reasonable”.

(13)  Clause 7, page 5 (line 25), omit “genuine”, substitute “reasonable”.

(14)  Clause 7, page 5 (line 27), omit “genuine”, substitute “reasonable”.

(15)  Clause 7, page 5 (line 29), omit “genuine”, substitute “reasonable”.

(16)  Clause 7, page 5 (line 30), omit “genuine”, substitute “reasonable”.

(17)  Clause 7, page 6 (line 1), omit “genuine”, substitute “reasonable”.

(18)  Heading to clause 8, page 6 (line 4), omit “Genuine”, substitute “Reasonable”.

(19)  Clause 8, page 6 (line 5), omit “genuine”, substitute “reasonable”.

(20)  Clause 9, page 6 (line 9), omit “genuine”, substitute “reasonable”.

(21)  Clause 10, page 6 (line 16), omit “genuine”, substitute “reasonable”.

(22)  Heading to clause 11, page 7 (line 3), omit “genuine”, substitute “reasonable”.

(23)  Clause 11, page 7 (line 8), omit “genuine”, substitute “reasonable”.

(24)  Clause 11, page 7 (line 11), omit “genuine”, substitute “reasonable”.

(25)  Clause 12, page 7 (line 17), omit “genuine”, substitute “reasonable”.

(26)  Clause 12, page 7 (line 20), omit “genuine”, substitute “reasonable”.

(27)  Clause 18, page 11 (line 7), omit “genuine”, substitute “reasonable”.

(28)  Clause 18, page 11 (line 8), omit “genuine”, substitute “reasonable”.

(29)  Clause 18, page 11 (line 10), omit “genuine”, substitute “reasonable”.

Opposition amendments (1) through to (29) are in common form and in each case the effect of the amendment would be to delete the word ‘genuine’ and to insert in its place the word ‘reasonable’. Let me elaborate for a moment, if I may, on why this is an issue that does matter. It may sound to Senator Evans like an arcane lawyer’s dispute and I will try and lead him through it gently. It is a very important difference, in considering whether appropriate—if I may use a neutral word—steps have been taken in accordance with the scheme of the bill to resolve a dispute, whether the test to be applied in making that determination is an objective test or a subjective test. In the opposition’s view, consistent with similar legislation—including equivalent legislation in the states of Victoria and New South Wales, it is obvious that an objective test should be applied.

The notion of reasonableness is one of the most well-known notions in the law. It has operation across the entire area of the law, whether it be the law of tort, whether it be revenue law, whether it be criminal law. The notion of reasonableness is well known to lawyers and to courts. A huge body of jurisprudence and doctrine has developed which enables courts to make fine and accurate judgments about reasonableness. To put it very simply, reasonableness is an objective test.

Genuineness is a subjective test which is accompanied by no equivalent body of legal doctrine, precedence or jurisprudence at all. It is a layman’s word. It is not a word which has a specialist legal meeting which would make its application easy or free of difficulty by a court of law that was seized of a controversy about the matter. If anything, the government’s proposed amendment (1), which would introduce a definition of genuine steps, makes the matter worse. If I can anticipate and refer to the government’s proposed amendment (1), which the opposition will oppose, the proposed amendment would give a definition of ‘genuine steps to resolve a dispute’ as being ‘steps taken by the person in relation to the dispute that constitute a sincere and genuine attempt to resolve the dispute’. That is, with all due respect to the draftsman who drew it, a dreadful piece of legislative drafting. We know that these are about steps to resolve a dispute, so that part of the definition is surplusage. To define genuine steps as genuine is circular. So one is left with the remaining element of the definition, ‘sincere’. Genuine is defined essentially as sincere.

The term ‘sincerity’, like the term ‘genuineness’, has no understood or well received legal meaning. But what it does do is it introduces a subjective criterion to determine whether the appropriate steps have been complied with. That is absolutely the wrong way to test these matters. The right way to test these matters is to test them objectively, to ask the question that courts so commonly do: what would a reasonable person so circumstanced do in these circumstances? It is for that reason, primarily, that the opposition urges the government to reconsider this rather artless approach to the drafting of the legislation.

As well, if I can repeat a point I made in the second reading debate, it is very important that there be comity between the federal jurisdiction and the state jurisdictions. This legislation is largely modelled on similar legislation which exists in the states of Victoria and New South Wales. In both of those jurisdictions, the test is one of reasonableness and the legislation uses the expression ‘reasonable steps’. For some reason, unbeknownst to the opposition, some creative mind has decided that the federal judiciary will under Commonwealth legislation be applying a different test than the state courts—a test which has no received legal meaning at all and is therefore attended by enormous uncertainty. How paradoxical is it that the purpose of this bill is to make the resolution of disputes quicker, cheaper and more efficient and yet the test which the Commonwealth proposes to introduce is a test which, because of its novelty and ambiguity, will in fact make the process of making that judgment more ambiguous, costly and complex?

Whosesoever was the directing mind that settled upon this form of words has made an artless and foolish decision. I might say that that was the evidence to the Senate committee as well, which made a recommendation along the lines of the opposition’s amendment. The Law Council of Australia made a submission to the effect of the observations I have made in this contribution. So did the Castan Centre for Human Rights Law. Its witness, Ms Penovic said:

I do prefer the Victorian formulation of reasonable steps. I think it is broader and it is a more meaningful way of gauging the steps that have been taken. Genuine steps may extend to steps that are genuinely taken by parties but may not fall within the threshold of reasonableness.

So we have this rather bizarre situation: a law designed to facilitate and expedite the resolution of legal disputes is to be handicapped by an inappropriate definition of the appropriateness of those steps—a definition that is inconsistent with equivalent state law. It is a definition that has no well understood or received legal meaning and has been criticised not only by the professional association, the Law Council of Australia, but also by the Human Rights Law Resource Centre. It is a friendless formulation, so I would, at this late stage, urge the government not to hamper the very appropriate legislative intent of this bill by using this formulation but to accede to the views of the expert witnesses before the Senate committee, bring the bill into conformity or consistency with the analogous state legislation, and accept the opposition’s amendment to replace the test of ‘genuine steps’, which has no received legal meaning, with the test of ‘reasonable steps’, which has a well understood and received legal meaning and which would facilitate the purposes of the bill.