CIVIL DISPUTE RESOLUTION BILL 2011 Explanatory Memorandum
CIVIL DISPUTE RESOLUTION BILL 2011
2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CIVIL DISPUTE RESOLUTION BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
Abbreviations used in the Explanatory Memorandum
ADR Alternative Dispute Resolution
Bill Civil Dispute Resolution Bill 2010
Federal Court Federal Court of Australia
Federal Court Act Federal Court of Australia Act 1976
Federal Magistrates Act Federal Magistrates Act 1999
Rules of Court Federal Magistrates Court Rules 2001
Federal Court of Australia Court Rules 1979
CIVIL DISPUTE RESOLUTION BILL 2010
GENERAL OUTLINE
This Bill encourages the resolution of civil disputes outside of the courts
and seeks to improve access to justice by focusing parties and their
lawyers on the early resolution of disputes.
This Bill seeks to ensure that, as far as possible, parties take 'genuine
steps' to resolve a civil dispute before proceedings are commenced in the
Federal Court or the Federal Magistrates Court. When commencing
proceedings in a court, parties are required to file a statement saying
what steps they have taken to resolve their dispute or, if they have not
taken any steps, the reasons why. The Bill gives examples of reasons why
steps might not be taken, including urgency, or where the safety of a
person or security of property is compromised. The court can take into
account the failure to take steps when exercising its existing case
management directions and costs powers.
The Bill does not require parties to take any particular specific step -
the most appropriate steps to take depend on the circumstances of the
particular dispute. The Bill is deliberately flexible in allowing parties
to tailor the genuine steps they take to the circumstances of the dispute.
The genuine steps statements provide additional information for the court
about attempts that have been made to resolve the dispute. Based on this
information, the court can make orders and directions under its existing
case management powers, and consider compliance with the requirement and
the extent of any steps taken in awarding costs.
Lawyers are also under an obligation to advise their clients of the
requirement and assist them to comply.
The Bill applies to all civil proceedings other than excluded matters under
Part 4. Matters are excluded if the subject matter is inappropriate, for
example a civil penalty proceeding and related matters, or if there are
already specific mandatory pre-action steps that would make further steps
inappropriate, such as under the Family Law Act 1975. Further, matters
that have already been considered by a statutory tribunal are excluded,
such as the Administrative Appeals Tribunal, Migration Review Tribunal or
Veteran's Review Board.
The Bill draws on recommendations of the National Alternative Dispute
Resolution Advisory Council (NADRAC) in its report, The Resolve to
Resolve - Embracing ADR to improve access to justice in the federal
jurisdiction (November 2009).
The Bill complements the Access to Justice (Civil Litigation Reforms) Act
2009 which amended the Federal Court of Australia Act 1976 to impose an
overarching purpose to facilitate the just resolution of disputes according
to law, and as quickly, inexpensively and efficiently as possible. It also
complements existing case management powers contained in Part 6 of the
Federal Magistrates Act 1999.
The Bill is a further step to support a cultural change in civil dispute
resolution away from adversarial litigation.
FINANCIAL IMPACT
There is no direct financial impact on Government revenue from this Bill.
CIVIL DISPUTE RESOLUTION BILL 2010
NOTES ON CLAUSES
PART 1 - Preliminary
Clause 1 - Short title
1. Clause 1 is a formal provision specifying the short title as the Civil
Dispute Resolution Act 2010.
Clause 2 - Commencement
2. Part 1 of the Bill commences on the day it receives Royal Assent.
3. Parts 2 to 5 of the Bill commence on a day to be fixed by proclamation.
The information in the commencement table further provides that if any
of the provisions do not commence within the period of 6 months from
Royal Assent, they will commence on the day after that period.
Clause 3 - Object of Act
4. Clause 3 provides that the object of the Bill is to ensure, as far as
possible, that people take genuine steps to resolve their civil dispute
before instituting proceedings in an eligible court.
5. Other sections of the Bill qualify the object to the extent that taking
steps before instituting proceedings is not appropriate in some cases,
for example as set out in subsection 6(2)(b), where the safety of a
person or security of property may be compromised by taking such steps.
6. The formulation 'genuine steps' was recommended by the National
Alternative Dispute Resolution Advisory Council (NADRAC) in its report,
The Resolve to Resolve - Embracing ADR to improve access to justice in
the federal jurisdiction (November 2009). 'Genuine steps' was preferred
over formulations such as 'good faith' or 'genuine effort'. These
concepts are more subjective and may undermine the confidentiality of
ADR processes, and, in situations where there is a power or financial
imbalance, could lead to injustice by causing some parties to feel they
have to make concessions.[1]
7. The overall aims of the Bill, as reflected in the object, are:
. to change the adversarial culture often associated with disputes
. to have people turn their minds to resolution before becoming
entrenched in a litigious position, and
. where a dispute cannot be resolved, ensuring that if a matter does
progress to court, the issues are properly identified, ultimately
reducing the time required for a court to determine the matter.
Clause 4 - Genuine steps to resolve a dispute
8. The Bill does not prescribe specific steps to be undertaken. Rather, it
is intentionally flexible to enable parties to turn their minds to what
they can do to attempt to resolve the dispute. This is to ensure that
the focus is on resolution and identifying the central issues without
incurring unnecessary upfront costs, which has been a criticism of
compulsory pre-action protocols.
9. Clause 4 provides examples of things a person may do as part of taking
genuine steps to resolve a dispute. These include:
a) notifying a person of the issues in dispute, or issues that may be in
dispute, and offering to discuss them with a view to resolving the
matter
b) responding appropriately to any notification given by a person
o The steps set out in paragraphs (a) and (b) help to identify
the interests of the parties at an early stage. In some cases,
this will be sufficient to resolve a dispute, while in other
cases it will assist to identify where other steps might be
pursued to resolve the dispute. An interests based approach
can often lead to more effective and lasting resolution than
negotiations for settlement based on asserting competing views
of legal rights once action has commenced.
c) providing relevant information and documents to the other person to
enable them to understand the issues and how the dispute could be
resolved
o Timely access to information can often lead to the early
resolution of disputes and often results in lower costs. This
has been cited as a key opportunity for improvement to the
justice system.[2]
d) considering whether the dispute can be resolved by a process
facilitated by another person, such as alternative dispute resolution
e) if a resolution process is agreed to between the parties:
i. agreeing on a particular person to facilitate the process,
and
ii. attending the process
f) if a resolution process does not result in the resolution of the
dispute, considering a different process
o Paragraphs (d) to (f) encourage a facilitated process for
resolving a dispute, such as an ADR process. The benefits of
ADR include a less adversarial process, early resolution of
disputes and identification of issues, ownership of the
outcomes for parties, flexible remedies and proportional cost
where early resolution is achieved.
g) attempting to negotiate with the other person with a view to
resolving some or all of the issues in dispute, or authorising a
representative to do so.
10. The examples listed do not limit the steps that could constitute taking
genuine steps, as noted by subsection 4(2). Further, the examples do
not limit when genuine steps should be taken. Nothing in the Bill
prevents a party who has taken genuine steps but has been unable to
resolve the dispute, from taking further genuine steps.
11. The most appropriate steps to be taken will vary depending on the
circumstances of each dispute. Parties can consider what genuine steps
are appropriate in their particular case.
Alternative dispute resolution
12. As noted at paragraph 8, what constitutes a genuine step will vary
depending on the circumstances of the case. In many cases, some form of
ADR would be a genuine step appropriate for parties to consider.
13. ADR is an umbrella term for processes, other than judicial
determination, in which an impartial person assists those in a dispute to
resolve the issues between them or narrow the issues in dispute. ADR may
also include approaches that enable participants to prevent or manage
their own disputes without outside assistance.
14. There are a range of ADR processes available to disputants, and the
level of assistance from the impartial person varies between the
different processes.
Table 1 outlines examples of ADR processes.[3]
Table 1 - examples of ADR processes
Mediation: the participants identify the issues in dispute, develop
options, consider alternatives, and endeavour to reach an agreement with
the assistance of a mediator. The mediator has no determinative role, but
may advise on the process of mediation.
Conciliation: the participants identify the issues in dispute, develop
options, consider alternatives, and endeavour to reach an agreement with
the assistance of a conciliator (who may have professional expertise in the
subject matter). A conciliator advises on the matters in dispute and
options for resolution, but does not make a determination.
Expert appraisal: an appraiser, chosen on the basis of their expert
knowledge, investigates the dispute and provides advice on the facts,
desirable outcomes, and the means by which these may be achieved.
Early neutral evaluation: the participants present arguments and evidence
to a dispute resolution practitioner who makes a determination on the key
issues in dispute and most effective means of resolving the dispute,
without determining the facts of the dispute.
Arbitration: Arbitration is used where parties have agreed on that method
to resolve their dispute. The participants, together with the arbitrator,
agree upon the procedures to be used. These are usually more flexible than
court proceedings. Participants present arguments and evidence to an
arbitrator who makes a determination.
15. Where ADR is appropriate, it may not lead to resolution in every case.
In this situation, undertaking genuine steps, such as participation in
ADR, may narrow the issues in dispute and lead to a more effective and
efficient court hearing. ADR may not be appropriate in every case.
Clause 5 - Definitions
16. Several terms are defined in clause 5:
. "applicant" is defined as the person who institutes the proceedings.
. "application" is defined as an application (however described) by
which civil proceedings are instituted. This is intended to cover all
the methods by which a matter can be commenced in the Federal Court
and Federal Magistrates Court including by way of an application,
statement of claim or affidavit.
. "civil penalty provision" is defined as a civil penalty provision
however described. A civil penalty provision is a provision that
carries a financial penalty, and is set out in a similar way to an
offence, but enforced by civil proceedings that are subject to the
procedures and rules of evidence, and are subject to proof on the
balance of probabilities.
. "Commonwealth authority" is defined as a body corporate established
for a public purpose by or under a law of the Commonwealth.
. "eligible court" is defined as the Federal Court of Australia and the
Federal Magistrates Court. Through this definition, the Bill applies
only to proceedings in those courts.
. "excluded proceedings" is defined as proceedings that have been
excluded from the Bill as outlined in Part 4.
. "genuine steps statement" is defined as a statement filed by an
applicant or a respondent under sections 6 and 7. This statement sets
out what steps a person has taken to resolve a dispute prior to the
commencement of proceedings.
. "lawyer" is defined as having the same meaning as in the Federal Court
of Australia Act 1976. This means a person enrolled as a legal
practitioner of a federal court or the Supreme Court of a State or
Territory.
. "respondent" is defined as the person against whom proceedings are
instituted.
PART 2 - Obligation to take genuine steps to resolve disputes before
proceedings are instituted
17. The key elements of Part 2 are the obligations on applicants and
respondents to inform the court of genuine steps they have taken to try
to resolve the dispute. This promotes resolution and encourages a move
away from an adversarial approach to litigation. Prospective parties
will know that steps they took or did not take will be put before the
court if action is ultimately commenced. Importantly, the court will be
in a better position to manage the matter using existing case management
powers.
18. For example, if genuine steps have been taken and have resulted in
issues being identified and positions clarified, a court may be in a
better position to decide that court ordered mediation would impose
unnecessary costs and delay. Early listing for hearing will be the best
and most cost efficient and just outcome. Alternatively, if a court is
not satisfied with the steps already taken, further case management
directions may be appropriate to ensure parties explore options for
resolving or narrowing the dispute.
19. The Bill does not force parties to abandon legal claims, or force
settlement. It encourages parties to think broadly about their dispute
and consider options for resolution.
20. The confidentiality of discussions, negotiations or ADR is not in issue
as the requirement to provide a genuine steps statement does not require
or authorise parties to seek to adduce evidence of confidential
negotiations. This is crucial, as the confidentiality of such
discussions and ADR processes is generally seen as one of the reasons why
they can be effective; allowing parties to discuss issues frankly with a
view to resolution, rather than having to assert rights and protect
positions.
Clause 6 - Genuine steps statement to be filed by applicant
21. Subsection 6(1) requires an applicant instituting civil proceedings in
the original jurisdiction of the Federal Court or Federal Magistrates
Court to file a genuine steps statement at the time of filing an
application.
22. As noted at Paragraph 12, what constitutes a genuine step will differ
depending on the circumstances of each case.
23. Subsection 6(2) provides that a genuine steps statement must specify:
a) the steps that have been taken to try to resolve the dispute,
or
b) the reasons why no steps were taken.
24. The Bill provides that factors such as urgency, or whether the safety
or security of any person or property would have been compromised are
examples of reasons why steps may not have been taken.
25. Where a matter must be dealt with urgently a person may not be in a
position to undertake genuine steps. This may be because a limitation
period will expire or an urgent action is required. Subsection 6(2)
provides that this must be explained in the genuine steps statement.
26. Where the safety or security of a person or property would be
compromised, for example, where a party considers that giving notice of
proceedings is likely to lead to that person disposing of assets to
frustrate the proceedings, this is a reason that may be given for not
having taken genuine steps before instituting the proceedings. However,
once initiated, a court will have the discretion to use its powers to
consider the suitability of the matter for certain steps to be
undertaken.
27. Some public interest factors, for instance regulatory agencies seeking
to prevent certain action from being taken in order to protect the
public, may be an example of where the circumstances of the dispute mean
that taking genuine steps would not be appropriate.
28. Similarly, pursuing a test case may constitute a reason why a judicial
determination may be required and limit the extent of genuine steps that
can be taken. However, even in such cases, there is often a benefit in
parties taking steps to confine the dispute and come to an agreement
about the scope of the evidentiary issues.
29. Subsection 6(3) makes it clear that a genuine steps statement does not
need to be filed for excluded matters. These matters are outlined in
Part 4 of the Bill.
30. Where a part of a matter is excluded through Part 4, but other parts of
a matter are not, subsection 6(4) provides that a genuine steps statement
must be filed only in connection with the part of a dispute that is not
excluded.
Clause 7 - Genuine steps statement to be filed by respondent
31. Subsection 7(1) requires a respondent who receives an applicant's
genuine steps statement to also file a genuine steps statement with the
court. This must be filed before the hearing date specified in the
application subject to any rules of court. Under the rule making power
in Clause 8, the court may make rules specifying a different timeframe
for filing of the respondent's genuine steps statement.
32. Subsection 7(2) requires that the respondent's genuine steps statement
to indicate whether the respondent:
a) agrees with the applicant's statement, or
b) disagrees with all, or a part, of the applicant's statement, and
the reasons why.
Clause 8 - Genuine steps statement must comply with Rules of Court
33. Clause 8 provides that a genuine steps statement must comply with any
additional requirements in the Rules of Court. For example, in a
particular type of matter, the court may wish to prescribe that parties
file their statement at a particular time or that a certain type of form
be completed for a certain category of matter. The court has specific
powers to make rules on the matter (see clause 18). A court may also
make rules requiring the parties to include in a statement information
about whether a specific type of step has been taken, and if not, the
reasons why that step was not taken. This gives the court flexibility
to determine the most effective way to have the information contained in
a genuine steps statement put before it.
Clause 9 - Duty of lawyers to advise people of the requirements of this Act
34. Clause 9 recognises that parties and their lawyers all have an
important role in encouraging genuine steps. Lawyers are required to
advise their clients of the requirement to file a genuine steps
statement and assist them to comply with that obligation. This is
consistent with section 37N(2) of the Federal Court Act and section 24
of the Federal Magistrates Act.
35. If, for example, a legally represented person wanted to commence legal
proceedings without seeking to resolve the matter, their lawyer will be
obliged to explain that their client is required to file a genuine steps
statement outlining the steps they have taken or identify the reasons
what such steps were inappropriate. A lawyer could advise their client
of how to take genuine steps, noting the examples in the Bill but also
inviting their client to consider their own options.
36. Where a lawyer fails to advise their client of the requirement or does
not assist them to comply, as required under section 9, subsection 12(2)
provides that costs may be awarded against a lawyer.
37. This duty is important to ensure that parties and their lawyers focus
on the real issues in dispute and attempt to resolve them as quickly and
efficiently as possible.
Clause 10 - Effect of requirements of this Part
38. Subsection 10(1) notes that the requirements in Part 2 of the Bill are
in addition to requirements imposed by any other Act, and not instead of
those requirements.
39. Subsection 10(2) provides that proceedings are not invalidated by the
failure of a person to file a genuine steps statement.
40. This provision ensures that the genuine steps requirement operates to
enhance prospects for early resolution outside of court without imposing
a barrier to justice which would disproportionately affect people without
access to legal advice or resources. It also ensures that examples of
genuine steps in section 4 are not seen as prescriptive.
41. If a party fails to provide a genuine steps statement, the court can
consider this in the context of its case management of the matter. This
is appropriate and avoids satellite litigation about the validity of the
proceeding on the basis of whether genuine steps were or were not taken
or the sufficiency of those steps. These matters will not become
substantial disputes in their own right.
PART 3 - Powers of a court
Clause 11 - Court may have regard to genuine steps requirements in
exercising powers and performing functions
42. Clause 11 provides that the court may take into consideration the
genuine steps that have been taken by a person when it is exercising its
powers or performing its functions.
43. Subsection 11(1)(a) enables the court to take into account whether a
genuine steps statement has been filed by a person in accordance with
Part 2. Subsection 11(1)(b) enables the court to take into account the
genuine steps taken by a person to resolve the dispute.
44. The genuine steps statement gives the court more information about the
steps that the parties have taken before commencing proceedings. This
allows the court to utilise its existing case management provisions to
manage proceedings where appropriate, including its active case
management powers and its powers of summary dismissal.
45. Some examples of the types of orders a court might make where it is not
satisfied that genuine steps have been taken include:
. referring the dispute or parts of the dispute to mediation,
arbitration, or other ADR processes that have not already been
undertaken by the parties (with consent where required)
. nominating an ADR practitioner where parties cannot agree on an ADR
practitioner
. setting time limits for the doing of anything, or the completion of
any part of the proceeding
. dismissing the proceeding in whole or in part
. striking out, amending or limiting any part of a party's claim or
defence
. disallowing or rejecting any evidence, and
. ordering a party to produce to it a document in the possession,
custody or control of the party.
Clause 12 - Exercising discretion to award costs
46. Clause 12 enables the court to take account of any failure to comply
with the requirements of Part 2 of the Bill (whether or not a genuine
steps statement has been filed) when exercising its discretion to award
costs against a person or a lawyer. Courts currently have powers to
make disciplinary costs orders where costs have been incurred improperly
or without reasonable cause.
47. Subsection 12(1)(a) provides that the court may take into consideration
whether or not a genuine steps statement has been filed when exercising
its discretion to award costs against a person. Subsection 12(1)(b)
enables the court to take into account the genuine steps taken by a
person to resolve the dispute in awarding costs.
48. Subsection 12(2) enables the court to consider whether or not a lawyer
complied with their duty under section 9 when exercising its discretion
to award costs against the lawyer.
49. For cases where the court has ordered that the lawyer bear costs
personally under subsection 12(2), subsection 12(3) provides that a
lawyer must not recover costs from its client through contracts about
the payment of their fees or in any other way. The purpose of this is
to ensure that lawyers take responsibility for their own failure to
comply with their duty under section 9 of the Bill.
50. The intention of clause 12 is to bring about a cultural change in the
conduct of litigation so that parties are focused on resolving disputes
as early as possible.
Clause 13 - Powers are in addition to powers under other Acts
51. Clause 13 provides that the powers given to the court by this Part are
in addition to, and not instead of, its existing powers. This section
clarifies that this Bill is not intended to limit the powers of the
court to manage proceedings on a
case-by-case basis. For example, if a dispute is not resolved through
genuine steps and proceedings are commenced, the court would exercise
its existing case management powers under Part VB of the Federal Court
Act and Part 4 of the Federal Magistrates Act.
Clause 14 - Relationship with section 131 of the Evidence Act
52. Importantly, the power of the court to consider such matters allows the
court to be informed of what steps parties have undertaken. As clause
14 provides, it does not permit disclosure of confidential settlement
negotiations under section 131 of the Evidence Act 1995 and the
settlement privilege continues to apply.
Part 4 - Exclusions
Clause 15 - Proceedings of certain kinds are excluded proceedings
53. The Bill applies to all matters of general federal law other than where
an exclusion applies. Clause 15 sets out categories of proceedings
which are excluded, while exclusions for actions under specific laws are
set out in
clause 16.
54. In certain cases, undertaking genuine steps is either not practicable
or appropriate. The exclusions in clause 15 have been made on that
basis. The exclusions are:
a) Proceedings for an order imposing a pecuniary penalty for a
contravention of a civil penalty provision
o Proceedings brought for the contravention of a civil penalty
provision are analogous to criminal proceedings and are brought
where a penalty is sought to be enforced. Civil penalty
provisions are intended to address situations where the
seriousness of misconduct requires punishment, and as such, are
not appropriate for resolution by way of genuine steps.
b) Proceedings brought by the Commonwealth or a Commonwealth authority
for an order connected with a criminal offence or the possible
commission of a criminal offence or a contravention or possible
contravention of a civil penalty provision
o The taking of genuine steps would not be appropriate where
regulators seek an order in a proceeding that is directly
related to a criminal offence or civil penalty contravention.
An example of such an order would be an injunction to stop a
person who has engaged or is engaging, or prevent someone who
is proposing to engage, in any conduct that is or would be in
contravention of a criminal offence or civil penalty provision.
c) Proceedings that relate to a decision of, or a decision that has been
subject to review by the:
i. Administrative Appeals Tribunal
ii. Australian Competition Tribunal
iii. Copyright Tribunal
iv. Migration Review Tribunal
v. Refugee Review Tribunal
vi. Social Security Appeals Tribunal
vii. Veterans' Review Board
viii. A body prescribed by the regulations
o Where matters have already been subject to merits review by
external merits review tribunals, opportunities to undertake
genuine steps will have already been available to the parties
and a further requirement is not necessary. In some cases,
conciliation or a similar process may have been undertaken as
part of the merits review process. For the Competition and
Copyright Tribunals, an extensive process between parties will
also have been undertaken.
d) Proceedings in the appellate jurisdiction of an eligible court
o Where a matter is being appealed from an earlier decision of
the Court, the parties will generally already have been subject
to the genuine steps requirement before commencing the primary
proceedings.
e) Proceedings arising from the exercise of a power to compel a person to
answer questions, produce documents or appear before a person or body
under a law of the Commonwealth
f) Proceedings in relation to the exercise of a power to issue a warrant,
or the exercise of a power under a warrant
o The use of covert, coercive, and investigative powers of law
enforcement and regulatory agencies will not be subject to the
genuine steps requirement. The exercise of such powers is for
a regulatory purpose and generally does not signify a dispute
in the relevant sense.
o In the case of a challenge to the use of covert, coercive, or
investigative powers, the primary challenge is likely to be the
lawfulness of the exercise of the power, such as a notice to
produce documents or a telecommunications interception warrant.
The matters are inherently connected to law enforcement and
regulation and genuine steps would generally not be
appropriate.
g) Proceedings that are, or relate to, proceedings in which the applicant
or the respondent has been declared a vexatious litigant under a law
relating to vexatious litigants
o In circumstances where a party to a dispute has been declared
vexatious, the obligation to lodge a genuine steps statement
will not arise as it would be inappropriate to take any pre-
action steps that might extend the proceedings.
h) Ex parte proceedings
o An application made ex parte is made by one party only (or may
be made by an interested person who is not a party) in the
absence of the other party, and is often made without notice.
This makes the undertaking of genuine steps between parties
impracticable.
i) Proceedings to enforce an enforceable undertaking
o Where an undertaking is in place, parties will have already
negotiated the terms of the undertaking. Therefore, expecting
parties to undertake genuine steps to enforce the agreement
would not be beneficial.
Clause 16 - Proceedings under certain Acts are excluded proceedings
55. Certain Acts of Parliament already establish significant dispute
resolution processes where further genuine steps would not be of
assistance. In other cases, certain legislation is not appropriate for
the requirement to file a genuine steps statement.
56. Clause 16 provides that proceedings under the following Acts are
excluded from the Bill:
a) Australian Citizenship Act 2007
o The Australian Citizenship Act 2007 prescribes detailed
citizenship criteria, and decision-makers are required to
refuse to grant citizenship if those are not satisfied. ADR is
generally inappropriate because it is not possible to negotiate
citizenship if applicants do not meet the criteria.
b) Child Support (Registration and Collection) Act 1988
o Under this Act, the Child Support Agency has power to enforce a
child support debt. Enforcement action is only taken after
substantial debt has arisen and other means to recover the debt
have been exhausted. Undertaking further genuine steps would
be inappropriate. These matters come before the Federal
Magistrates Court and the Family Court. As the Family Court is
not defined as an eligible Court under section 5, it would not
be appropriate to apply the requirement in the Federal
Magistrates Court. Further, the Child Support (Registration
and Collection) Act 1988 states that the Family Law Act 1975
(Family Law Act) and Rules apply to child support enforcement
proceedings as if it had been brought under the Family Law Act.
As the Family Law Act is also exempt, it would be
inappropriate for the Bill to apply.
c) Fair Work Act 2009
d) Fair Work (Transitional Provisions and Consequential Amendments) Act
2009
o Particular Fair Work proceedings are already subject to ADR
requirements, including proceedings under Part 3-1 (General
protections), Part 6-2 (Dealing with disputes) and Part 6-4
(Additional provisions relating to termination of employment).
o Other parts of the Fair Work Act 2009 and Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009
regulate the conduct of employers, employees and other relevant
parties through the use of civil penalty provisions.
e) Family Law Act 1975
o The Family Law Act 1975 has a comprehensive system of pre-trial
options available to parties. Parties are encouraged and in
some cases, required to undertake certain steps before a matter
can be determined by a court. For example, people must attempt
family dispute resolution before filing an application for
orders relating to children unless an exception applies. Given
that the issue of pre-trial steps is already significantly
covered by the Family Law Act 1975, the Bill will not apply to
family law matters.
f) Migration Act 1958
o The Migration Act 1958 prescribes detailed visa criteria, and
decision makers are required to refuse to grant a visa if those
are not satisfied. ADR is generally inappropriate because it
is not possible to negotiate to give an applicant a visa if
they do not meet the criteria.
g) National Security Information (Criminal and Civil Proceedings) Act
2004
o The object of the National Security Information (Criminal and
Civil Proceedings) Act 2004 is to prevent the disclosure of
information in federal criminal proceedings and civil
proceedings where the disclosure is likely to prejudice
national security. It outlines the way such information should
be dealt with and is not appropriate for genuine steps.
h) Native Title Act 1993
o In the native title system, applicants must file their claim
with the Federal Court in order to obtain important procedural
rights under the Native Title Act 1993. It is the filing of
the claim that sets off the process necessary to determine
these rights, including notification to other parties that the
claim has been filed and mediation. The Native Title Act 1993
and subordinate legislation sufficiently regulate native title
dispute resolution.
i) Proceeds of Crime Act 1987
j) Proceeds of Crime Act 2002
o The objectives of the Proceeds of Crime Acts 1987 and 2002
ensure that people are not able to derive any proceeds or
benefits from committing offences against the laws of the
Commonwealth and that to enable law enforcement authorities are
able to effectively to trace such proceeds, benefits and
amounts. Therefore, undertaking genuine steps would not be
appropriate.
Clause 17 - Proceedings prescribed by the regulations are excluded
proceedings
57. Clause 17 provides that regulations may prescribe matters to be
excluded proceedings.
58. Subsection 17(2) provides that regulations made to exclude matters from
the Bill may specify:
a) the nature of the matters;
b) the subject matter of the matters;
c) the Act or provision under which the matters arise.
59. The requirements in this Bill may not be appropriate in all
circumstances.
A number of instances have already been identified and are listed in
clauses 15 and 16. However, given the multitude of matters that come
before the Federal Court and Federal Magistrates Court, it is conceivable
that a certain type of matter or a particular provision of an Act may not
be suitable for the genuine steps requirement to be applied to it. The
regulation-making power allows a timely exclusion if a need for such an
exclusion is identified.
60. If a type of proceeding were to be excluded under the Regulations, a
person would not be required to file a genuine steps statement in
connection with that type of proceeding. The purpose of the Regulations
is to ensure that the requirement to file a genuine steps statement is
not applied where it would be inappropriate to impose the requirement.
Regulations could not be used to impose a condition or obligation,
require a certain action be taken, or otherwise require any specific
action on the part of a person.
PART 5 - Other matters
Clause 18 - Rules of Court
61. Clause 18 enables rules of court to be made about:
a) the form of genuine steps statements
b) the matters that are to be specified in genuine steps
statements, and
c) time limits relating to the provision of copies of genuine steps
statements.
Clause 19 - Regulations
62. Clause 19 enables regulations to be made prescribing matters that are
required or permitted under this Bill, or matters that are necessary or
convenient for giving effect to or carrying out this Bill.
63. Paragraph 33 under clause 8 has more detail about how the rules power
might be used.
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[1] See page 31 of the NADRAC report
[2] See page 35 of the NADRAC report and page 96 of the Access to Justice
Taskforce report, A Strategic Framework for Access to Justice in the
Federal Civil Justice System.
[3] As set out in NADRAC's Glossary of ADR Terms.
