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Wednesday, 9 February 2005
Page: 38


Senator LUDWIG (12:12 PM) —We note that the amendments were originally included in part 19 of the Family Law Amendment Bill 2004, which was introduced into parliament on 1 April 2004—always try a different date from that, in my view. The original Senate Legal and Constitutional Legislation Committee unanimously supported the provisions we now have before us. The government did not proceed with the passage of this bill last year and has now chosen to incorporate in the Bankruptcy and Family Law Legislation Amendment Bill 2004 [2005] the part 19 amendments, which attempt to prevent concocted financial agreement or marriage breakdowns being used to avoid obligations to creditors. It also includes a provision to entitle a third party to become a party to proceedings where their interests in fact may be affected.

The revisions require parties to sign a separate declaration stating that there is no reasonable likelihood of them resuming cohabitation. It is aimed at protecting the rights of third-party creditors by preventing debtors who in fact are otherwise in ongoing marriages from transferring assets to their spouses by way of sham transactions designed to defeat the interests of genuine creditors. We note that these amendments include a minor clarification to section 79F which was not included in the original form of this bill. It now incorporates a suggestion by the Law Council of Australia which was unanimously supported by the Senate Legal and Constitutional Legislation Committee report.

That highlights one of the areas which I always comment on during these committee stages of bills, especially where committees come up with recommendations that the government adopts. I congratulate the government on allowing the bill to be referred to the committee and on subsequently seeing the sense of what came out of the committee process. It is always worth noting that it is a significant process. It does sometimes delay bills for a period while the committee process is gone through but it does allow public scrutiny and people to make submissions. In many instances—and this is just one of them—there are times when, even with all the expertise of government and sometimes the will of the opposition, some things are not seen clearly as some submitter might say, and they clarify and add to the process. In this instance, the Law Council of Australia provided an improvement to the bill which was adopted by the government.

I think that is the true worth of the committee process. In my view, it is sometimes worth the time and effort that is put in by everybody in that process to ensure that the result that comes out of it means that there is an improvement in legislation, that there is an improvement in the process for the people who have to finally deal with the legislation and that we do not end up with people coming back to the government and saying, ‘This bill which is now legislation might work better if we have an amendment.’ There are then minor amendments and you sometimes end up with minor consequential amendment legislation down the track to try to fix these things. So it is one of those areas where I think the machinery of government works better when that happens.

We accept that the provisions which have previously been introduced will attract bipartisan support. I think the government has met at least the intention of trying to improve the bill in this instance. However, the process is sometimes a little disappointing. It would be appreciated if the government could provide these matters on a better time line. I do not know whether it is mismanagement on behalf of the government—and I do not like to bandy that phrase around too easily—or whether it is incompetence or a difficulty in being able to put all your ducks in a row and move them through, but it never ceases to amaze me that we sometimes end up with the government looking like it is acting in a bit of a loose way in how it works through this process rather than with a comprehensive, clear strategy from go to whoa.

We have had a number of different reports in this area, with those reports being finalised and another one on its way. You sometimes think that, if we had started it in 2000-01 and dedicated ourselves to getting all the parties around the table in a strategic way and working through what needs to be done, we would certainly have got there a lot earlier. I suspect we still are running the race and we have not even got there yet. Indeed, if we had been able to see some of these amendments a bit earlier, then we could have had a much more pragmatic approach to them and taken a bit longer in the committee stage than we otherwise have today.

Labor will support these amendments, as we understand that they are necessary, but we again call on the government to get its act together in this area. It is one of those areas where I understand Minister Ellison’s position in all of this. I am not sure whether I can sheet it home to him, but if I could I would. In this instance, the only blame I can lay on him is that, although we have been dealing with it for a long time, perhaps he needs to address it a little more closely to get it moving.