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Civil Dispute Resolution Bill 2011

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2010 - 2011

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

SENATE

 

 

 

 

CIVIL DISPUTE RESOLUTION BILL 2010

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Robert McClelland MP)

 

 

 

 

 

 

 

 

 



 

GENERAL OUTLINE

 

The Bill encourages parties to take genuine steps to seek to resolve their disputes where possible, before commencing proceedings in the federal courts.  It seeks to improve access to justice by focusing parties and their lawyers on the early resolution of disputes. 



The Government amendments respond to recommendations from the recent report by the Senate Standing Committee on Legal and Constitutional Affairs on the Bill.  The Senate Report recommended:

  • that the Bill be amended 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 - Embracing ADR to improve access to justice in the federal jurisdiction
  • that the Bill be amended 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, and
  • that the Bill be amended so that information disclosed during the genuine steps obligation cannot be used for any other purpose outside the resolution of the dispute at hand.

 

 

FINANCIAL IMPACT

 

There is no direct financial impact on Government revenue arising from these amendments. 



NOTES ON AMENDMENTS

 

Amendment 1

1.                   In response to the inquiry of the Senate Standing Committee on Legal and Constitutional Affairs, this amendment inserts a definition of ‘genuine steps’.

2.                   The definition 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.

3.                   This offers guidance to litigants that actions that they take which they wish to include in a genuine steps statement to be filed in accordance with clause 6 or clause 7 of the Bill, should constitute a sincere and genuine attempt to resolve the dispute.

4.                   Similarly, the amendment provides guidance to a court in considering whether a person took genuine steps and that those steps should constitute a sincere and genuine attempt to resolve the dispute.

5.                   In addition, the amendment provides that litigants and the courts in considering what steps, if any, may be appropriate, should have regard to the circumstances of the litigants and the dispute itself.

Amendment 2

6.                   Clause 14 of the Bill which provides that Part 3 of the Bill does not affect the operation of section 131 of the Evidence Act 1995 is removed from this Bill.

7.                   This is because the effect of the provision is contained in the new provision outlined below.

Amendment 3

8.                   This amendment inserts a new provision which provides that the Bill does not exclude or limit the operation of any existing Commonwealth or State or Territory laws, or any existing common law rules or rules of equity in relation to the use or disclosure of information, the production of documents or the admissibility of evidence. 

9.                   The intention of this amendment is to make it explicitly clear that all current provisions dealing with the use or disclosure of information, the production of documents or the admissibility of evidence are not affected by the Bill.

10.               This includes for example, section 131 of the Evidence Act 1995 , section 53B of the Federal Court of Australia Act 1976 and section 34 of the Federal Magistrates Act 1999 .

11.               Recommendation 3 of the Senate Standing Committee on Legal and Constitutional Affairs has not been fully implemented as such a change would be significant and would potentially depart from many existing laws that protect ‘without prejudice’ type communications.  The Bill is not intended to have any effect on any existing provisions or rules.

12.               The recently completed report of the National Alternative Dispute Resolution Advisory Council on the Integrity of ADR processes, specifically addresses the need, if any, for new legislative provisions covering confidentiality and/or inadmissibility of communications in ADR.  The Committee’s recommendation will be further considered in light of this report.