Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share 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.