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Wednesday, 16 June 2010
Page: 5476


Mr McCLELLAND (Attorney-General) (9:27 AM) —I move:

That this bill be now read a second time.

Introduction

Late last year the government adopted the strategic framework for access to justice to inform and shape future reforms to the federal civil justice system.

The framework is made up of five principles: accessibility, appropriateness, equity, efficiency, and effectiveness.

The Civil Dispute Resolution Bill 2010 is all about seeking to resolve disputes at the most appropriate level. It encourages parties to resolve their disputes at the earliest possible opportunity, and to do so, where possible, outside of the courts—promoting a move away from the often stressful, expensive and adversarial culture of litigation.

In introducing this bill, I would like to acknowledge that the bill implements key recommendations made by the National Alternative Dispute Resolution Advisory Council in its 2009 report, The resolve to resolve.

The council, or NADRAC as it is commonly known, is an independent body that provides me with policy advice on the development of alternative dispute resolution and promoting its use.

NADRAC’s members represent a broad range of experience in the area of dispute resolution across a number of organisations including legal and dispute resolution practitioners, the courts and government.

Obligation to take genuine steps

The key element of this bill is to encourage parties to take ‘genuine steps’ to resolve their disputes before commencing proceedings in the court.

This will be achieved by introducing a requirement that an applicant, when filing a matter in the court, will also be required to file a genuine steps statement, outlining the steps they have taken to attempt to resolve the dispute.

Where a party has been unable to take steps to resolve the dispute prior to filing the matter in court, the statement must outline the reason why that is the case.

An obligation will also be on a respondent to file a statement, either agreeing with the applicant as to the genuine steps that have been taken, or disagreeing and outlining the steps they consider to have been taken.

This simple process will encourage parties to give more consideration to resolving their disputes at an early stage and to be accountable if they have not responded to the other party’s genuine attempts to resolve the dispute outside the court system.

How the obligation will operate

What this means for matters that do progress to a court is that, through the information contained in the genuine steps statements, the courts will be better informed about the real issues in dispute, the relevant documents and what processes parties have already utilised in attempting to resolve the dispute.

At this point, a court can exercise its existing case management powers, to order parties to undertake any other steps it considers will be useful to attempt to resolve the dispute.

The bill recognises that the effective resolution of disputes is a matter for parties, the courts, and lawyers. Lawyers will therefore be required to advise their clients of the requirement to file the genuine steps statement, and to assist their clients to comply.

By encouraging parties and lawyers to seriously attempt to resolve disputes before they contemplate litigation, there will be an improvement in the early resolution of disputes.

Early resolution of cases, where possible, will leave the courts free to deal efficiently with matters that really require the courts’ determination.

Last year, the parliament passed the Access to Justice (Civil Litigation Reforms) Amendment Act 2009, which amended the Federal Court of Australia Act 1976. The amendments were to impose an overarching purpose to facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. This bill complements those objectives.

What are ‘genuine steps’

The bill takes a flexible approach to the definition of ‘genuine steps’. It will include any action that a party makes in order to try to resolve a matter or narrow the issues in dispute.

This could involve:

  • writing to the other side outlining the issues in dispute, and how you think they should be resolved
  • exchanging relevant documents and information in a timely and cost-effective manner
  • agreeing to participate in a discussion where parties can present their views about what the dispute is really about and what the important issues are for each of them, or
  • undertaking an alternative dispute resolution process such as mediation, conciliation or arbitration.

Importantly, all the while, parties will be focussing and narrowing the real issues in dispute.

The bill allows parties to tailor the genuine steps they take to the circumstances of the dispute and does not mandate what steps parties must take in any particular matter.

Where genuine steps are undertaken and are successful, the matter will never reach court; it will be resolved. And this ultimately is the objective of the bill. But where matters do progress to court, the time required for judicial determination should be reduced, saving time, costs and distress for parties, the courts and the public.

The bill does not force parties to abandon legal claims, or force settlement. As NADRAC noted at paragraph 2.51 of The resolve to resolve report, to which I have referred:

Participants must have the ability to say ‘I’ve given you a fair hearing and have listened to what you’ve had to say, I cannot agree for the reasons I’ve outlined and I continue to believe that my position is justified. I therefore propose to terminate the process’. The important consideration is that the disputant has attended the process and has shown their commitment by staying for a reasonable period to listen to the other participant and to put their own view.

Nor will the conduct of pre-action steps and confidentiality of discussions, negotiations or ADR be in issue, as the requirement to provide a genuine steps statement does not require or for that matter authorise parties to seek to adduce evidence of confidential negotiations.

Application

The bill will apply to all general federal law matters in the Federal Court of Australia and the Federal Magistrates Court.

Particular matters have been excluded from the bill’s operation. For example, proceedings under the Native Title Act 1993 and the Family Law Act 1975 where significant dispute resolution methods are already in place.

The bill also exempts particular types of matters where ADR is not appropriate such as in the case of proceedings involving civil penalties provisions and appeals to the federal courts. These exclusions have been made on the basis that undertaking steps would not be appropriate, or that through the use of an existing process, attempts to resolve the dispute and narrow the issues have already been made.

Conclusion

In conclusion, a well-equipped and better functioning justice system that is able to help people when they most need assistance, advice and guidance is a fundamental goal of the Rudd government. This bill, in combination with the significant access to justice measures announced this year, goes a long way to achieving that outcome. I commend the bill to the House.

Debate (on motion by Mr Andrews) adjourned.