Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Wednesday, 4 December 1974
Page: 3125

Senator GREENWOOD (Victoria) - I rise again because I feel that answers to questions that I have been asking for are not being given. It may be that the answers will not be forthcoming, but let that be the record if the answers are not forthcoming. I want to know, firstly, why we are engaging in validation. Why must we validate situations which have existed in the past in which certain persons have secured certain rights? Secondly, if we are engaging in this validation for good and proper reason why does the validity apply only to existing proceedings? I understand that there are people who have relied upon their rights under the old banking exchange regulations and who have secured judgments or have had judgments entered against them. No alteration is being made to that position. There are persons who may be contemplating, because they are in a position to contemplate, what action they may take but who on 3 December had not instituted proceedings. They would find that their rights are taken away.

Thirdly, we have the position in which proceedings have been taken and, providing the proceedings are on foot at 3 December of this year, those proceedings may be completed and rights will be determined on the basis of the preexisting law- on the basis of what people did or did not do under the earlier banking exchange regulations. Fourthly, as a result of the amendment that has now been brought in the Government is giving a discretion to a court to say that some of those proceedings may be regarded as able to be completed and judgment entered for a successful plaintiff, and other proceedings may not be completed because it will be left to the court to decide what is just and equitable.

This concept of what is just and equitable by and large is opposed by lawyers. We certainly find that judges do not like exercising powers of this character because out of the blue, as it were, they have to decide what is a just and worthy case and what is not. Without guidelines, discretion and criteria to govern the situation one finds that some injustices can arise. One judge may find, on a particular set of facts, that the action is just and equitable but another judge, on the same set of facts, may find precisely the opposite.

I regret very much the way in which this matter is developing. I regret very much that the Government has not been forthcoming with any explanation and I regret very much the way in which retrospectivity is being applied in a manner which can work injustice. Again I ask the Minister representing the Treasurer to explain how it is that these international ramifications are to be overcome. This amendment does not deal with those international questions. It merely accentuates some of the problems which will arise where, as I have said, there is a guarantor who will be made liable in Australia as a result of this amendment and has no redress available to him when he seeks to recover his principal debt overseas. Is that fair? I ask the Minister to give some explanation.

Suggest corrections