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