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Wednesday, 23 March 2011
Page: 1657

Senator CHRIS EVANS (Minister for Tertiary Education, Skills, Jobs and Workplace Relations) (5:52 PM) —I was going to thank all senators for their contribution to the debate on the Civil Dispute Resolution Bill 2010, but I will just thank Senator Brandis; it seems there are no other contributions. In summing up, I will put some remarks on the record. I think Senator Brandis’s assessment of where we are at in terms of amendments is correct. The government will be moving three amendments to respond to the concerns raised as a result of the committee process, but he is right to identify that we still have a disagreement over the terminology about reasonableness. I am hoping that Senator Ludwig will be in the chamber for that debate when we get to it in the committee stage, because for a non-lawyer it seems a little arcane. I will of course support the government’s position, but I do not feel capable of going toe to toe with Senator Brandis about what lawyers do or do not understand by those terms, as interesting as that debate is.

I would like to thank the Senate Standing Committee on Legal and Constitutional Affairs, which delivered their report on the bill on 2 December last year. That committee noted that the introduction of the bill is an important initiative in ensuring that there is a focus on resolving a matter before costly and time-consuming litigation is undertaken. Even when matters are not resolved, there will be a benefit to parties if the issues in dispute are clarified and narrowed. As Senator Brandis made clear, the committee made three specific recommendations. The first was to amend the bill to provide for an inclusive definition of the word ‘genuine’ to better reflect the intention of the National Alternative Dispute Resolution Advisory Council’s report, The resolve to resolve. The second recommendation was to amend the bill so that the court, when taking into consideration the genuine steps that have been taken by a person when it is exercising its powers or performing its functions, also takes into account the circumstances of disadvantaged litigants.

The government has responded to both these recommendations by proposing a definition of ‘genuine steps’, which provides that a person takes genuine steps to resolve a dispute if the steps taken by the person in relation to the dispute constitute a sincere and genuine attempt to resolve the dispute having regard to the person’s circumstances and the nature and circumstances of the dispute. The government believes this new provision gives effect to the committee’s intentions and those of NADRAC. It will clarify for prospective litigants what may constitute genuine steps and will make it clear that it is to be determined in the light of their particular circumstances and those of their dispute. It will make it clearer that it is not the government’s intention to impose onerous or prescriptive obligations.

The third recommendation was to amend the bill so that information disclosed while taking genuine steps to resolve a dispute cannot be used for any other purpose outside the resolution of the dispute at hand. The government has responded to this recommendation by proposing a government amendment to the bill to explicitly provide that nothing in the bill excludes or limits the operation of a law of the Commonwealth, a law of a state or territory or the common law, including the rules of equity, relating to the use or disclosure of information, the production of documents or the admissibility of evidence. The bill is not intended to diminish the effect of any existing provisions or rules that may protect communications made in an attempt to resolve the dispute. This provision will ensure that the status quo is maintained. While this may not fully implement the committee’s recommendation, the government proposes to consider the matter further in the context of NADRAC’s recent report on the integrity of ADR processes, which specifically addresses these issues.

As I said, we will not be supporting the opposition’s amendments. The government considers the term ‘genuine’ provides more meaningful guidance to parties about the types of actions they can include in their genuine step statements, but obviously we will debate that when we get to the amendments at the committee stage. One of the government’s highest priorities is improving access to justice. This bill is an important step in that direction. It complements the strategic framework for access to justice as it encourages the early resolution of disputes at least cost. We appreciate the support around the chamber for the bill and we thank the committee for its work. I commend the bill to the Senate. The government will move three amendments and will also consider the opposition’s amendments during the committee stage.

Question agreed to.

Bill read a second time.