Commonwealth of Australia Explanatory Memoranda

[Index] [Search] [Download] [Bill] [Help]

CIVIL DISPUTE RESOLUTION BILL 2011

                                 2010 - 2011







               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA







                                   SENATE




                     CIVIL DISPUTE RESOLUTION BILL 2010





                    SUPPLEMENTARY EXPLANATORY MEMORANDUM



             Amendments to be moved on behalf of the Government



              (Circulated by authority of the Attorney-General,
                    the Honourable Robert McClelland MP)










GENERAL OUTLINE

The Bill encourages parties to take genuine steps to seek to resolve their
disputes where possible, before commencing proceedings in the federal
courts.  It seeks to improve access to justice by focusing parties and
their lawyers on the early resolution of disputes.

The Government amendments respond to recommendations from the recent report
by the Senate Standing Committee on Legal and Constitutional Affairs on the
Bill.  The Senate Report recommended:
    . that the Bill be amended to provide for an inclusive definition of the
      word 'genuine' to better reflect the intention of the National
      Alternative Dispute Resolution Advisory Council's report, The resolve
      to resolve - Embracing ADR to improve access to justice in the federal
      jurisdiction
    . that the Bill be amended so that the court, when taking into
      consideration the genuine steps that have been taken by a person when
      it is exercising its powers or performing its functions, also takes
      into account the circumstances of disadvantaged litigants, and
    . that the Bill be amended so that information disclosed during the
      genuine steps obligation cannot be used for any other purpose outside
      the resolution of the dispute at hand.


FINANCIAL IMPACT

There is no direct financial impact on Government revenue arising from
these amendments.
NOTES ON AMENDMENTS

Amendment 1

1. In response to the inquiry of the Senate Standing Committee on Legal and
   Constitutional Affairs, this amendment inserts a definition of 'genuine
   steps'.

2. The definition provides that 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.

3. This offers guidance to litigants that actions that they take which they
   wish to include in a genuine steps statement to be filed in accordance
   with clause 6 or clause 7 of the Bill, should constitute a sincere and
   genuine attempt to resolve the dispute.

4. Similarly, the amendment provides guidance to a court in considering
   whether a person took genuine steps and that those steps should
   constitute a sincere and genuine attempt to resolve the dispute.

5. In addition, the amendment provides that litigants and the courts in
   considering what steps, if any, may be appropriate, should have regard to
   the circumstances of the litigants and the dispute itself.

Amendment 2

6. Clause 14 of the Bill which provides that Part 3 of the Bill does not
   affect the operation of section 131 of the Evidence Act 1995 is removed
   from this Bill.

7. This is because the effect of the provision is contained in the new
   provision outlined below.

Amendment 3

8. This amendment inserts a new provision which provides that the Bill does
   not exclude or limit the operation of any existing Commonwealth or State
   or Territory laws, or any existing common law rules or rules of equity in
   relation to the use or disclosure of information, the production of
   documents or the admissibility of evidence.

9. The intention of this amendment is to make it explicitly clear that all
   current provisions dealing with the use or disclosure of information, the
   production of documents or the admissibility of evidence are not affected
   by the Bill.

10. This includes for example, section 131 of the Evidence Act 1995,
   section 53B of the Federal Court of Australia Act 1976 and section 34 of
   the Federal Magistrates Act 1999.

11. Recommendation 3 of the Senate Standing Committee on Legal and
   Constitutional Affairs has not been fully implemented as such a change
   would be significant and would potentially depart from many existing laws
   that protect 'without prejudice' type communications.  The Bill is not
   intended to have any effect on any existing provisions or rules.

12. The recently completed report of the National Alternative Dispute
   Resolution Advisory Council on the Integrity of ADR processes,
   specifically addresses the need, if any, for new legislative provisions
   covering confidentiality and/or inadmissibility of communications in ADR.
    The Committee's recommendation will be further considered in light of
   this report.