ADDITIONAL COMMENTS BY LIBERAL SENATORS

1.1        Liberal senators support the intention of the Civil Dispute Resolution Bill 2010 and two of the three recommended amendments to the Bill made in the majority report. However, Liberal senators consider that there were persuasive arguments raised in the evidence for the term 'reasonable steps' to be used rather than 'genuine steps'. For example, Mr John Emmerig, Law Council of Australia, considered that 'genuine' was not the best way forward and that the term 'reasonable' allows 'one to apply well-established principles of objectivity in the assessment' of the steps taken. 'Genuine' was seen to introduce a subjective element.[1] In addition, submitters commented that the term 'reasonable' is well understood and used in many areas of the law.[2]

1.2        Liberal senators also note that the term 'reasonable' is used in the Victorian Civil Procedure Act 2010 and is proposed for amendments to the NSW Civil Procedure Act 2005. This was noted by submitters[3] with the Federal Court commenting that it was concerned that 'any difference in terminology is likely to lead to arid disputes in interpreting comparative legislative provisions'.[4] Liberal senators are also concerned that the use of different terms will undermine consistency between jurisdictions.

1.3        Liberal senators conclude that the term 'reasonable steps' should be used instead of 'genuine steps' as this term has a well understood meaning, does not contain a subjective element and, importantly, would ensure legislative consistency across jurisdictions.

Recommendation 1

1.4        Liberal senators support the Chair's report and the intentions of the Bill, however, recommend that the Civil Dispute Resolution Bill 2010 be amended to remove the word 'genuine' and to insert the term 'reasonable'.

Senator Guy Barnett

Deputy Chair

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