George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) to (29) on sheet 7047 together:

(1)    Clause 3, page 2 (line 12), omit “genuine”, substitute “reasonable”.

(2)    Heading to clause 4, page 2 (line 14), omit “Genuine”, substitute “Reasonable”.

(3)    Clause 4, page 2 (line 16), omit “genuine”, substitute “reasonable”.

(4)    Clause 4, page 3 (line 18), omit “genuine”, substitute “reasonable”.

(5)    Clause 5, page 4 (line 3), omit “genuine”, substitute “reasonable”.

(6)    Heading to Part 2, page 5 (line 1), omit “genuine”, substitute “reasonable”.

(7)    Heading to clause 6, page 5 (line 4), omit “Genuine”, substitute “Reasonable”.

(8)    Clause 6, page 5 (line 6), omit “genuine”, substitute “reasonable”.

(9)    Clause 6, page 5 (line 8), omit “genuine”, substitute “reasonable”.

(10)  Clause 6, page 5 (line 18), omit “genuine”, substitute “reasonable”.

(11)  Clause 6, page 5 (line 20), omit “genuine”, substitute “reasonable”.

(12)  Heading to clause 7, page 5 (line 24), omit “Genuine”, substitute “Reasonable”.

(13)  Clause 7, page 5 (line 25), omit “genuine”, substitute “reasonable”.

(14)  Clause 7, page 5 (line 27), omit “genuine”, substitute “reasonable”.

(15)  Clause 7, page 5 (line 29), omit “genuine”, substitute “reasonable”.

(16)  Clause 7, page 5 (line 30), omit “genuine”, substitute “reasonable”.

(17)  Clause 7, page 6 (line 1), omit “genuine”, substitute “reasonable”.

(18)  Heading to clause 8, page 6 (line 4), omit “Genuine”, substitute “Reasonable”.

(19)  Clause 8, page 6 (line 5), omit “genuine”, substitute “reasonable”.

(20)  Clause 9, page 6 (line 9), omit “genuine”, substitute “reasonable”.

(21)  Clause 10, page 6 (line 16), omit “genuine”, substitute “reasonable”.

(22)  Heading to clause 11, page 7 (line 3), omit “genuine”, substitute “reasonable”.

(23)  Clause 11, page 7 (line 8), omit “genuine”, substitute “reasonable”.

(24)  Clause 11, page 7 (line 11), omit “genuine”, substitute “reasonable”.

(25)  Clause 12, page 7 (line 17), omit “genuine”, substitute “reasonable”.

(26)  Clause 12, page 7 (line 20), omit “genuine”, substitute “reasonable”.

(27)  Clause 18, page 11 (line 7), omit “genuine”, substitute “reasonable”.

(28)  Clause 18, page 11 (line 8), omit “genuine”, substitute “reasonable”.

(29)  Clause 18, page 11 (line 10), omit “genuine”, substitute “reasonable”.

Opposition amendments (1) through to (29) are in common form and in each case the effect of the amendment would be to delete the word ‘genuine’ and to insert in its place the word ‘reasonable’. Let me elaborate for a moment, if I may, on why this is an issue that does matter. It may sound to Senator Evans like an arcane lawyer’s dispute and I will try and lead him through it gently. It is a very important difference, in considering whether appropriate—if I may use a neutral word—steps have been taken in accordance with the scheme of the bill to resolve a dispute, whether the test to be applied in making that determination is an objective test or a subjective test. In the opposition’s view, consistent with similar legislation—including equivalent legislation in the states of Victoria and New South Wales, it is obvious that an objective test should be applied.

The notion of reasonableness is one of the most well-known notions in the law. It has operation across the entire area of the law, whether it be the law of tort, whether it be revenue law, whether it be criminal law. The notion of reasonableness is well known to lawyers and to courts. A huge body of jurisprudence and doctrine has developed which enables courts to make fine and accurate judgments about reasonableness. To put it very simply, reasonableness is an objective test.

Genuineness is a subjective test which is accompanied by no equivalent body of legal doctrine, precedence or jurisprudence at all. It is a layman’s word. It is not a word which has a specialist legal meeting which would make its application easy or free of difficulty by a court of law that was seized of a controversy about the matter. If anything, the government’s proposed amendment (1), which would introduce a definition of genuine steps, makes the matter worse. If I can anticipate and refer to the government’s proposed amendment (1), which the opposition will oppose, the proposed amendment would give a definition of ‘genuine steps to resolve a dispute’ as being ‘steps taken by the person in relation to the dispute that constitute a sincere and genuine attempt to resolve the dispute’. That is, with all due respect to the draftsman who drew it, a dreadful piece of legislative drafting. We know that these are about steps to resolve a dispute, so that part of the definition is surplusage. To define genuine steps as genuine is circular. So one is left with the remaining element of the definition, ‘sincere’. Genuine is defined essentially as sincere.

The term ‘sincerity’, like the term ‘genuineness’, has no understood or well received legal meaning. But what it does do is it introduces a subjective criterion to determine whether the appropriate steps have been complied with. That is absolutely the wrong way to test these matters. The right way to test these matters is to test them objectively, to ask the question that courts so commonly do: what would a reasonable person so circumstanced do in these circumstances? It is for that reason, primarily, that the opposition urges the government to reconsider this rather artless approach to the drafting of the legislation.

As well, if I can repeat a point I made in the second reading debate, it is very important that there be comity between the federal jurisdiction and the state jurisdictions. This legislation is largely modelled on similar legislation which exists in the states of Victoria and New South Wales. In both of those jurisdictions, the test is one of reasonableness and the legislation uses the expression ‘reasonable steps’. For some reason, unbeknownst to the opposition, some creative mind has decided that the federal judiciary will under Commonwealth legislation be applying a different test than the state courts—a test which has no received legal meaning at all and is therefore attended by enormous uncertainty. How paradoxical is it that the purpose of this bill is to make the resolution of disputes quicker, cheaper and more efficient and yet the test which the Commonwealth proposes to introduce is a test which, because of its novelty and ambiguity, will in fact make the process of making that judgment more ambiguous, costly and complex?

Whosesoever was the directing mind that settled upon this form of words has made an artless and foolish decision. I might say that that was the evidence to the Senate committee as well, which made a recommendation along the lines of the opposition’s amendment. The Law Council of Australia made a submission to the effect of the observations I have made in this contribution. So did the Castan Centre for Human Rights Law. Its witness, Ms Penovic said:

I do prefer the Victorian formulation of reasonable steps. I think it is broader and it is a more meaningful way of gauging the steps that have been taken. Genuine steps may extend to steps that are genuinely taken by parties but may not fall within the threshold of reasonableness.

So we have this rather bizarre situation: a law designed to facilitate and expedite the resolution of legal disputes is to be handicapped by an inappropriate definition of the appropriateness of those steps—a definition that is inconsistent with equivalent state law. It is a definition that has no well understood or received legal meaning and has been criticised not only by the professional association, the Law Council of Australia, but also by the Human Rights Law Resource Centre. It is a friendless formulation, so I would, at this late stage, urge the government not to hamper the very appropriate legislative intent of this bill by using this formulation but to accede to the views of the expert witnesses before the Senate committee, bring the bill into conformity or consistency with the analogous state legislation, and accept the opposition’s amendment to replace the test of ‘genuine steps’, which has no received legal meaning, with the test of ‘reasonable steps’, which has a well understood and received legal meaning and which would facilitate the purposes of the bill.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

First of all, I need to reject Senator Brandis’s accusation that this formulation is friendless. It has a friend in me and has a friend in the minister, so that outrageous accusation ought to be ruled out.

I understand that Senator Brandis’s interest and advocacy in this matter is genuine and his support for the bill is appreciated. There is a difference of view about this definitional issue but the government prefers ‘genuine’ as we think it sets a more meaningful goal for parties to consider. This is advice the government received from the National Alternative Dispute Resolution Advisory Council, who came up with this formulation. It was their recommendation. As I understand it, that council includes practitioners, those with academic expertise and those with experience as registrars in this field. So it is a body of people who have expertise in this area and they have recommended to the government the use of the word ‘genuine’.

I understand that that body is chaired by Murray Kellam, a retired justice of the Victorian Court of Appeal. So the government does rely on some expert advice in this matter. We think it provides more meaningful guidance to parties about the types of actions they can include in their genuine statements. Courts have tended to say that ‘reasonable’ means ‘not unreasonable’. In that light it might not be unreasonable for a lawyer to write a formal notice outlining their side of the dispute and asking the other side to capitulate, but that may not constitute a genuine attempt to resolve the dispute.

We think changing the term ‘genuine’ to ‘reasonable’ would go beyond what was recommended by the NADRAC and what was recommended by the majority of the committee. We think, consistent with NADRAC’s advice, that ‘genuine steps’ is a phrase that can usefully be given its ordinary meaning in the circumstances of any particular dispute. It is a term that should be well understood by Australians from every walk of life. Consequently, the government is of the view that there are significant advantages in the use of the term ‘genuine’ rather than ‘reasonable’. We think the phrase ‘reasonable steps’ has a more legal connotation and, while well understood and familiar to lawyers like Senator Brandis, may be less transparent for ordinary Australians. I have been advised that the term ‘genuine’ is also used in the Family Law Act in the context of resolving disputes. That provides some support for the government’s position in the sense that it has not been the cause of any difficulties in the family law context.

I note that Senator Brandis rightly drew attention to the views of the Law Council. They are obviously important views in a debate such as this. We think, though, that the advice of NADRAC is important. It noted in its report that mandatory pre-action protocols may also impose unnecessarily high costs on people who would otherwise settle their dispute without the need for a court hearing. The bill has been crafted to avoid imposing prescriptive pre-action requirements. It does not introduce mandatory ADR or any onerous obligations. It does not require parties to take any particular genuine steps; instead it encourages the people in the dispute to consider what steps, if any, are appropriate in the circumstances to attempt to resolve the matter.

Consistent with existing case management principles, the judge who finally hears the matter if it proceeds to court will also have the discretion to consider whether the steps that a party took were sufficient in the circumstances. This just reinforces good practice and is a measured and appropriate encouragement for parties and their lawyers to do the sensible thing. As I said, the standing committee supported the government’s position.

The Victorian Civil Procedure Act, I am advised, establishes a more prescriptive regime. Chapter 3 of that act requires the parties to take reasonable steps to resolve their dispute. While that requirement will be repealed by the passage of the Victorian amendment bill, the court will retain the power to consider the extent to which parties have complied with any mandatory or voluntary pre-litigation processes and the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute. This position is consistent with the Civil Dispute Resolution Bill 2010, which also includes powers for the court to take into account whether a person took genuine steps to resolve their dispute.

On the basis of the advice from the National Alternative Dispute Resolution Advisory Council and the government’s own advice, we think that the proposition put forward by the government to retain ‘genuine’ as a more meaningful goal for parties to consider is the right one. As I say, I accept that Senator Brandis’ arguments for what he sees as an improvement to the bill are made in good faith, but the government’s advice is that we ought to maintain the use of the word ‘genuine’ rather than ‘reasonable’. It is a debate I have learned a lot more about in the last 10 or 15 minutes, and I rely very much on the advice provided to me in this debate. But, as I say, I think there is clearly goodwill in trying to get this legislation right. I appreciate that, but the government intends to persist with its view about the use of the term ‘genuine’ rather than ‘reasonable’, and will therefore oppose the opposition amendment.

Question negatived.

I move:

(1)    Clause 4, page 2 (after line 14), before subclause (1), insert:

     (1A)    For the purposes of this Act, a person takesgenuine 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.

This is the amendment that addresses both recommendations 1 and 2 from the recent report on the bill by the Senate Legal and Constitutional Affairs Legislation Committee. We have accepted the view of the committee, but we think the committee’s objective may be implemented in a more meaningful and helpful way by giving greater guidance in what is meant by ‘genuine steps’. I am happy to provide further explanation but I understand we have opposition support for the amendments.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Not for this one.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

Sorry; perhaps I will provide some more information as I was not aware that that was the case. The government accepts the view of the committee that greater guidance could be given to what is meant by ‘genuine steps’. However, a definition of ‘genuine’ may provide little guidance for parties as it would do little more than provide the equivalent of a dictionary meaning of the term. So in the government’s view the objective of the committee is given better force by giving greater guidance about what is meant by ‘genuine steps’.

NADRAC noted in the report that it considered ‘genuine steps’ as a phrase that can usefully be given its ordinary meaning in the circumstances of any particular dispute. Accordingly, the government proposes to insert a provision that makes it clear that a person takes genuine steps to resolve a dispute if the steps taken by a person in relation to the dispute constitute a sincere and genuine attempt to resolve the dispute. The proposed definition incorporates the ordinary meaning of the term ‘genuine’, as suggested by NADRAC, and will give prospective litigants greater comfort about what actions they can take that will constitute genuine steps and can be included in a genuine steps statement.

In relation to the second recommendation, the committee noted submissions that raised concerns about disadvantaged litigants and their participation in the civil justice system. In particular, the committee was influenced by the views that stressed that cost and delay should be minimised for disadvantaged litigants, and that the requirements of the bill should not add to them. To ensure that disadvantaged litigants are not further disadvantaged by having to take inappropriate additional steps, the committee recommended amending the bill so that courts can take into account the circumstances of disadvantaged litigants when exercising their powers or performing their functions.

The government accepts the Senate committee’s view. It is not the intention of this bill to impose prescriptive or mandatory requirements on prospective litigants that will simply add to costs and delay. Rather, it is intended that genuine steps that people take should be appropriate to their personal circumstances and their particular dispute. For that reason, the government proposes that the new definition of ‘genuine steps’ include the words:

… having regard to the person’s circumstances and the nature and circumstances of the dispute.

This will ensure that all parties who undertake genuine steps are considered in their own circumstances in the dispute at hand when deciding what action is appropriate for them to take. The court will also take this into account when it considers whether parties took genuine steps and what those steps were. Accordingly, the government is moving the amendment at clause 4(1A) to insert a new definition of ‘genuine steps’ which will read:

For the purposes of this Act, 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.

Government amendment (1), as I say, is designed to respond to the sentiment of recommendations 1 and 2 in the committee’s report on the bill. We think this gives effect to the sentiment expressed by the committee.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The opposition opposes the government’s amendment for reasons I outlined in my remarks on the opposition’s amendments. Briefly, this amendment is afflicted by the triple vices of circularity, redundancy and vagueness. It is circular because it defines genuineness in terms of genuineness. It is redundant because it defines genuine steps in terms of steps taken in seeking to resolve the dispute, which is the object of the bill in any event. It is vague because ultimately the only new element of meaning that is introduced by the definition is the concept of sincerity.

The rules of court are not romantic novels. Human sentiment has no part in their dry and dusty pages. If the draftsmen were seeking some notion of good faith then they could have used the term ‘good faith’, which has a received legal meaning. If the opposition’s proposal had been adopted then the term ‘reasonableness’ would necessarily have implied good faith because it is difficult to imagine that a step could be reasonable unless it were also genuine or, by the extended definition of ‘genuine’, sincere. So we think this is a poor definition. It is very sloppy and it applies the wrong test. For those reasons, we oppose it.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I appreciate that Senator Brandis is not taken by this, that he prefers the dry and dusty concepts of the law rather than the more colourful and sentimental approach that I tend to take to these matters.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

It will cost a lot of people a lot of money.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

We both share the view that we do not want to increases costs or litigation as part of this process, but we believe there is greater benefit in defining ‘genuine steps’. NADRAC states in its report that ‘genuine steps’ is a phrase that can usefully be given its ordinary meaning in the circumstances of any particular dispute. Clearly, there is a difference of view in regard to these matters. I acknowledge Senator Brandis’s interest and knowledge in these matters, but the government’s advice is that its approach will give a better result and responds to the committee’s concerns in way that we think will improve the legislation.

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

The question is that government amendment (1) on sheet C9280 be agreed to.

Question agreed to.

The Temporary Chairman:

We now move to government amendments to clause 14 and before clause 18. I gather you want to move these amendments together but deal with them separately?

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

by leave—Yes, Madam Temporary Chairman. I thank you and Senator Brandis for your cooperation. I move:

(2)    Clause 14, page 8 (lines 1 to 3), to be opposed.

(3)    Page 11 (before line 3), before clause 18, insert:

17A  Act does not exclude or limit law relating to disclosure of information, etc.

                 To avoid doubt, this Act does not exclude or limit 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.

I understand the opposition will be supporting these amendments so I will not delay the chamber unduly. I appreciate that support. The amendments respond to the committee’s third recommendation, although they probably do not go as far as the committee recommended. As I say, we think these amendments improve the bill and we agree with the committee and the organisations that made submissions to it that the bill should not diminish any existing provisions or rules that may protect communications made in an attempt to resolve a dispute. Amending the bill to make this explicit is appropriate.

I thank the opposition for its support for these two amendments that will improve the bill. I indicate that I should have earlier tabled the supplementary explanatory memorandum relating to the government’s amendments to be moved to this bill. I think the memorandum was circulated in the chamber but I have not formally tabled it, so I do so now.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

As Senator Evans has indicated, the opposition does support these amendments for the reasons foreshadowed in my speech on the second reading.

The Temporary Chairman:

The question now is that clause 14 stand as printed.

Question negatived.

The Temporary Chairman:

The question now is that amendment (3) be agreed to.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.