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Monday, 9 December 2002
Page: 7475


Senator ABETZ (Special Minister of State) (5:41 PM) —The government has previously explained why it does not support the amendments made by the Senate when it considered the Bankruptcy Legislation Amendment Bill 2002. Those reasons have been confirmed by the House of Representatives. As the reasons for disagreeing with the amendments are set out in the statement from the House of Representatives, I will not repeat them; however, I urge the committee to pass the bill today. From the contributions of honourable senators, I understand that that is what will happen. The measures have broad support amongst stakeholders in the bankruptcy industry. The bill was first introduced in 2001 and industry has been waiting for these changes since then.

I will turn to the Democrat amendment. Can I say to Senator Murray that I thought he was unusually grumpy in his contribution. Something that may cheer him up is that, on the news on Sydney radio this morning, Mr Barns indicated that he is going to allow his membership of the Democrats to lapse. That will undoubtedly come as very good news and cheer Senator Murray up. The government does not support the Democrats' amendment to section 271. As we have said previously, in practice very few people are prosecuted for this offence. The reasons for our wanting that section to remain in its current form have been indicated in previous contributions. More thought needs to be given to the amendment.

The application of the Criminal Code may in fact make the amendment quite unnecessary—I refer to section 7.3 of the Criminal Code. The Criminal Code generally provides a range of generic defences, including the defence of mental impairment. These defences may apply to these circumstances. I am not sure as to whether they do or not, but they may apply—it would depend whether an addiction is seen as a mental impairment or not. But that also raises the issue of whether an addiction should, of itself, provide a full excuse in relation to other matters that excite the attention of the criminal law. But that is undoubtedly a debate for another day.

I am happy to indicate to the committee that the Attorney-General will ask his department and Insolvency and Trustee Service Australia, ITSA, to examine section 271 of the Bankruptcy Act and determine whether an amendment to address the issues raised by financial counsellors is required. The Attorney will ask ITSA to consult with relevant stakeholders, including financial counsellors and the Director of Public Prosecutions, in its examination of the issue. In light of this, I suggest to the chamber that the amendment proposed by the Democrats is not required at this stage. Should the examination determine that an amendment is required, this can be considered in the context of future legislation that amends the Bankruptcy Act.