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Monday, 9 December 2002
Page: 7472


Senator MURRAY (5:27 PM) —The Attorney-General in the House of Representatives is a thoroughly nice man, but I think he has one terrible flaw. I think in his education he was trained in the school of Russian negotiation, which consists of just one word: no. I have had dealings with the Attorney-General for different bills over a number of years and I have never seen a proposition go down to the House, to the Attorney-General, to which he has found the ability to say yes. Only numbers are ever able to beat the Attorney-General. Despite being an astonishingly nice fellow, I do think he has a flaw in his character and I hope that at some time he will take some therapy to try to address it.

Here we are again. We have eight good opposition amendments and two good Democrat amendments and, essentially, the House of Representatives has sent back a message which is longspeak for the Attorney-General's no. There are some inconsistencies in the arguments. For instance, some good points were made in the attempts by Senator Ludwig and his party to address part X, and that is why we supported them. But if you read through the summary of the House's views the logic is quite strange. Referring to Senate amendments (2), (3), (4), (5), (6) and (7), sheet No. 6 says:

The Government has announced a comprehensive review of Part X which is currently under way. It is appropriate to wait for the findings of that review ...

That is quite a reasonable approach. You would expect them to say: `We think you may have a point but we really need to look into this a little more deeply. We'd rather put it aside and address it again later on.' Instead they say, `The amendments will add to the cost and complexity of Part X arrangements,' and, `There is no evidence that these amendments are needed,' et cetera. They are going to look awfully silly if the review of part X agrees with the opposition. Frankly, what it signals to me is an attitudinal issue. It is quite reasonable to say, `There's a review under way and we'll hold off an opinion until then,' but it seems to me a little inconsistent.

I briefly draw attention to Senate amendment (10). The Senate has made that amendment, I think, four or five times— certainly three or four times—and each time the House has rejected it. This bill did amend the Corporations Act; otherwise you could not have put that amendment in there. The amendment addresses the Senate's very real concern with the intersection of insolvency and related corporations. To simply say, `The House of Representatives doesn't accept the amendment because it is inappropriate to make amendments to this bill,' runs away from the very issue that it is attempting to address.

Whatever the House of Representatives may think of senators or their parties, the fact is that neither Labor nor we—and I am quite sure it is true of all other parties and Independents—will make amendments for the fun of it. The amendment reflects a concern expressed to us from the constituencies whereby it is believed that the legislation needs to be changed. I remind the chamber that Senate amendment (10) comes from the 1988 Harmer Law Reform Commission recommendation. It is well grounded in a review process. I would hope that the rejection of our amendments has a little more substance in the future.

Turning to Senate amendment (9), the House of Representatives message stated— and it summarised the amendment—that the intention of the Senate was to repeal section 271 of the Bankruptcy Act. Section 271 is the criminal offence provision, whereby gambling or speculations are regarded as criminal in nature. We argued, and the opposition agreed with us, that where gambling or speculation derives from an addiction it is absolutely inappropriate—probably to use that word inappropriately—to jail somebody or to have the potential of a criminal conviction arising from it. Addictions are things people cannot help. Lo and behold, when I looked at the wording of the House of Representatives message I was quite excited, because they actually accepted the proposition. They said:

The offence—

that is, the existing offence in section 271—

is not directed at gambling which results from addiction and removing the offence will not address problems relating to such addiction. The existence of the offence also assists some trustees in the administration of estates. Trustees and creditors report that some mischievous bankrupts will often claim that they have incurred losses `at the races' or `at the casino' when they are questioned about what has happened to money they have borrowed. When trustees mention the offence, the bankrupt will often come up with a more truthful answer which helps locate assets.

We do not disagree with the government— you do want to nab the crooks, the fraudulent and the people who abuse the offences—but we were merely trying to address the issue of addiction.

We have decided to say, `We'll accept your rejection of our amendment and simply produce an amendment which acknowledges in legislation the very argument that the House of Representatives accept and that is that the offence is not directed at gambling which results from an addiction.' So we propose an amendment which very narrowly and succinctly confines and reflects our concern. Since the House of Representatives, in their remarks on Senate amendment (9), accept that that is the policy purpose of the act, we see no reason why the government should not support it. Although the remarks in the message from the House of Representatives confirm what government policy is, neither the act nor the new bill does. We therefore propose putting into law a clear intention which they acknowledge and which is not yet in the legislation. Accordingly, I move Democrat amendment (1) on sheet 2766:

Add, “but agrees to the following amendment:

(1) Schedule 1, page 42 (after line 3), after item 182, insert:

182A At the end of section 271

Add:

(2) It is a defence to the offence in subsection (1) if the person became bankrupt as a direct consequence of a genuine addiction to gambling or hazardous speculations.

I seek the support of the opposition for this amendment. I advise the government that, despite our passionate concern about the Attorney-General's saying no, we will not insist on the remainder of the amendments.


Senator Abetz —Mr Temporary Chairman, on a point of order: if the three of us are agreeable, can we debate both the motion and the amendment at once so as to save time and avoid canvassing the issues again?


The TEMPORARY CHAIRMAN (Senator Cook)—I see nodding heads around the chamber, and I am guided by the chamber.