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Monday, 9 December 2002
Page: 7474


Senator LUDWIG (5:37 PM) —Now that we have the Democrats' proposed amendment to the Bankruptcy Legislation Amendment Bill 2002 before us, the opposition will take the opportunity to comment on it. We understand Senator Murray's passion in relation to this. We also understand his view that, by the look of it, the Attorney-General is playing a game of Russian answers to questions. But we have come to a conclusion, having had a long look at the amendment moved by Senator Murray. Ultimately, we were not persuaded to support the proposal; however, it is worth setting out some of the reasoning we went through to get there.

The Democrat amendment to section 271 of the Bankruptcy Act was moved by Senator Murray at the committee stage. Although this amendment is not one that we will finally accede to in this debate, it is one that we saw particular merit in. When you unpack the argument put by the government you find that the amendment would make it a defence under section 271 if a person became a bankrupt as a direct consequence of a genuine addiction to gambling or hazardous speculation. In essence, the government has argued that prosecutions are only brought under section 271 where there has been a blatant attempt to defeat creditors by a person who patently does not have a gambling addiction. The government has stated that in the majority of cases it only takes a reference under section 271 by a bankruptcy trustee to prompt debtors to remember where they really disposed of their money. That is the shallow argument that was put.

That may be. But the government still fails to acknowledge the advice of the financial counselling community, which fears prosecution under section 271. In the opposition's view, in this instance it could act as a disincentive to problem gamblers facing insolvency to admit their problem and turn their lives around. Looking at section 271, this amendment does not appear to us to add anything to the offence or the evidentiary burden of the prosecution. The government's view is that it would undermine the effectiveness of section 271. To our mind, this amendment would place a not-insubstantial burden on a defendant to prove on the balance of probabilities not only that they had a genuine addiction to gambling but also that this was a direct cause of their bankruptcy.

Therefore, save from the conclusion we finally came to, although it sounds an argument in support—we think the original motion is very good and the amended one is also good—in the end, the difficulty we have is that we accept there should be a period of consultation on the motion and the proposed amendments, which would allow the matter to be fully aired and be in a better position to be able to become effective. We then find that, in response, the government has accepted the task of doing a review, and we understand that Senator Abetz will outline that at the committee stage of the debate. We accept that the review will include this option. We then say, perhaps both to the government and as encouragement to Senator Murray, that we will reserve our right to revisit all of these issues, including the ones that we have not insisted on today, such as the proposed amendment to section 271, and to take another look at it the next time these matters are before the chamber.