Nick Sherry (Tasmania, Australian Labor Party, Assistant Treasurer) Share this | Link to this | Hansard source

I move:

That the committee does not insist on Senate amendment no. 6 disagreed to by the House and agrees to the amendment made by the House in place of amendment no. 6.

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

The Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 is principally directed to the case management processes of the Federal Court of Australia, with some relatively minor amendments also directed to the Family Court and the Federal Magistrates Court. Case management is the practice whereby judges control the progress of a case through the preliminary stages prior to trial so as to ensure that the parties keep to an appropriate timetable so that the issues in the dispute are narrowed and that unnecessary costs and delays are avoided.

The Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 introduces an overarching purpose test to case management, which is:

… to facilitate the just resolution of disputes:

(a)

according to law; and

(b)

as quickly, inexpensively and efficiently as possible.

This is further defined, inter alia, to require ‘the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute’. Parties to a dispute must conduct the litigation in a way consistent with the overarching purpose, and legal practitioners will be obliged to assist their clients to comply with that duty. Costs orders will be used to compel compliance and they will also be available against lawyers personally in certain circumstances. Other sanctions may include orders for the dismissal of proceedings or limitation of the case a party may wish to present. In addition, there are amendments to curtail appeal rights in respect of interlocutory orders to refer any matter for alternative dispute resolution and to charge the heads of each federal court with responsibility for the effective discharge of the business of the court.

At the time the bill was first introduced, there was a particular concern that it did not sufficiently recognise the tension that can exist between the concepts of efficient case management and the interests of justice. This issue was highlighted by the High Court in its decision in the State of Queensland v JL Holdings Pty Ltd in 1997. However, the court revisited the issue in Aon Risk Services Australia Ltd v Australian National University on 5 August 2009. That decision recognises that the function of case management is the delivery of justice and provides guidance to lower courts to prevent their processes being distorted and thus frustrating the proper functions of the courts. This bill sits happily with that clarification.

The last time this bill was before the Senate, it was amended in a small number of respects. An amendment was proposed by my colleague Senator Abetz and by Senator Bob Brown to the effect that the Tasmanian District Registry of the Federal Court would be required to include a full-time registrar. It was a matter of some disquiet to the legal profession in Tasmania when the Federal Court abolished the position of district registrar in Hobart and assigned the responsibilities to the district registrar in Melbourne. While the case load of the Hobart registry is obviously not as heavy as those of the registries in the other state capitals, the functions of a registrar are important ones and it is not acceptable to Tasmanian practitioners and unrepresented litigants in that state that those functions should be outsourced to the Melbourne registry of the court.

As my colleague Senator Abetz remarked in October, in the basics of Federal Court administration there should be ‘equity between the states’ and all states should ‘have a full-time registrar’. At Senate estimates, we heard that the abolition of the position represented at the very greatest a saving of about $200,000, which, in terms of the inconvenience to the Tasmanian legal profession and litigants in that state, seems a false economy indeed. Accordingly, I am delighted to note that yesterday in the House of Representatives the government conceded the opposition’s position on this matter, accepting the Senate’s amendment with respect to the position of the Tasmanian registrar by moving its own amendment to this bill. As I understand it, the deputy registrar’s case load will be supplemented by responsibility for the Administrative Appeals Tribunal. This is a very sensible outcome, and I am delighted that both the government and the Federal Court administration were able to see the force of the position taken by the opposition and, in particular, by my colleague Senator Abetz and his Tasmanian Liberal colleagues in the Senate.

In its amended form, protecting as it does the interests of the state of Tasmania in that particular respect, I commend the bill to the Senate.

Nick Sherry (Tasmania, Australian Labor Party, Assistant Treasurer) Share this | Link to this | Hansard source

I thank Senator Brandis for his contribution to the positive outcome that has been achieved.

Question agreed to.

Progress reported; report adopted.

Ron Boswell (Queensland, National Party) Share this | Link to this | Hansard source

by leave—I got cut off when time ran out. I seek leave to incorporate the rest of my speech in Hansard. I have shown it to the minister; he has no problems with it.

Leave granted.

The remainder of the speech read as follows—

The world carbon club is very, very small. In fact, prime minister rudd is its leader and australia is the only member to put the boot into our best industries and competitive advantages, such as cheap energy.

I have previously put out a statement on agriculture being excluded from emissions trading. Farmers are not excluded from being hit by an ets, they are just excluded from having to pay for their emissions on top of everything else. They still have to pay higher energy costs for all their inputs like fuel, power, fertiliser and chemicals. Their products will be processed in a higher electricity cost environment meaning they are less cost competitive. And farmers will be made to pay some other way for their emissions, through levies or regulations, it just won’t be a direct emission dollar trade.

The prime minister may be a friend of the chair, but he is no friend of the farmer.

Any amendment won in the debate next week, any concession granted by the government tomorrow, can all be reversed in a future senate where labor and the greens have the majority.

Once the ets is established, it then becomes the legislative toy-thing of the labor green alliance.

So the value of such amendments or concessions is ephemeral, transient and not to be relied upon.

Passing the ets puts all the levers in place for future senate tinkering.

A concession granted today is only one senate vote away from being abolished tomorrow.

So be warned, all who think they’ve got a good deal out of the government - all those peak industry groups or companies who have been bought off by the government in return for their support for the cprs, for you will face a monster of your own creating down the senate track.

Some, like rio tinto are speaking out. Rio tinto’s chief executive, tom albanese, said on the weekend that australia's planned introduction of a carbon cap-and-trade scheme would hurt the economy. He said rio, the world's second largest miner and a major coal producer, preferred a common global approach to cutting carbon emissions.

"we do admire the leadership that australia has taken,” he said, “but i think australia has to recognise it has now put itself at a competitive disadvantage from a regional perspective, particularly on energy in terms of export industries.

"it will have a negative effect on the australian economy and on australian jobs."

Today we learn that the canadian government will not be releasing its emission reduction plans till next year because of the lack of a binding treaty at copenhagen. Today we learn also that the us senate has also delayed the debate on its emissions reduction measures till at least march next year.

It is increasingly reckless of the government to pursue australia’s ets ahead of the rest of the world. It is really dangerous for us. And the australian people know it.

Some commentators are wise to the dangers ahead.  This week robert gottliebsen writes under the heading “industry in jeopardy”:

“this is one of the most frightening comments i have ever written for business spectator. Three months after our first meeting, representatives of most of the power players in australia – but particularly connected to victorian power generation – including banks and analysts again met with alan kohler, steve bartholomeusz and myself under the 'chatham house rule' to explain what would happen if the carbon trading legislation was passed in its present form today.

Three months ago they were apprehensive, now as disaster looms they are ringing the alarm bells.”

He said that there was total agreement with the morgan stanley and kpmg reports which state that the current legislation would have an $8 billion adverse impact on four latrobe valley power generators which is offset by $2 billion in current credits – a net enterprise value reduction of $6 billion. He writes:-

“within a week of the current proposed legislation being passed, the boards of each of the companies that own the latrobe generators will meet with their auditors on whether the companies’ debt covenants have been broken. Almost certainly a majority, if not all the boards, will decide to appoint official administrators.

“it is highly unlikely that the international and local banks who are owed about $5 billion by the generating companies would want to contract forward so they will sell all their power on a spot basis. …

“in south australia earlier this month a power break down sent the spot price for electricity from the long-term contract price of around $45 a per megawatt hour to $10,000 per megawatt hour for about two hours. Once hedge contracts and long-term arrangements are not in place then a break-down in the latrobe valley could see the spot price go very high with huge losses to retailers who can’t pass on the cost. And as long-term maintenance is run down the power interruptions will become more and more prevalent with enormous cost to industry.” Gottliebsen says that victoria will suck as much power as it can from nsw but the line connecting the two states has limited capacity so victorian industry will bear the brunt although it will affect the whole nation.

He states: “the victorian government has explained to the federal government what will happen but the level of understanding in canberra is very poor and they have not yet grasped the implications.

“john brumby has not gone public apparently because he hopes that either the legislation will not be passed or it will be passed in a way that minimises the danger to victorian electricity supply. But if it looks like being passed in its present form, he has to choose between raising the alarm and minimising his own electoral damage or ‘copping it sweet’ and receiving his full measures of federal money in many other areas.”

It is almost beyond belief that a federal government would legislate to wreak such havoc with the nation’s electricity infrastructure.

Because it is so unthinkable, people don’t think it. That’s where the danger lies. Everything must be questioned, every claim scrutinised and every assumption investigated. It is real and it is happening here before our eyes in the senate.

But not on my vote.