Page 2879 - Week 11 - Thursday, 22 October 1992
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (11.01): Madam Speaker, as Mr De Domenico indicated, this amendment was flagged by the Scrutiny of Bills Committee, which quite properly drew the house's attention to the fact that there is a reversal of the onus of proof in clause 6. Normally in these matters my advisers look at what the Scrutiny of Bills Committee has to say, because we always take the committee's advice on legislation very seriously. Later I will be moving some amendments, which have been circulated, in response to the committee's recommendations.
The material that Mr De Domenico put before the house is not unfamiliar to me, because it covers essentially the briefing that my advisers prepared for me and that I showed to Mr De Domenico, as he acknowledged. This is a lineball case, Madam Speaker. As Mr De Domenico indicated, it is correct to say that there is a reversal of the onus of proof here. As was said, it is a purely evidentiary provision and it is designed to give the plaintiff a strategic advantage. It may be lessened during the later stages of proceedings because the defendant can always prove this. However, on balance, it was a lineball. My advisers said, "You may wish to do this", and provided me with a draft amendment that the Government could move if it wished to. The Government did not wish to move that amendment, though I was quite happy to give that advice and indeed the draft amendment to Mr De Domenico.
It is a very close call, Madam Speaker; but on balance our view is that this is a provision which gives a minor - and in some cases illusory - advantage to the consumer at the commencement of proceedings. The reversal of the onus of proof provisions says, "If you launch an action under this section, we assume that you are a consumer and thus able to bring the action. If the defendant says that you are not a consumer, the defendant will have to prove that". Repealing the clause, as Mr De Domenico is proposing, would mean that when an action is launched the defendant could say, "I put you to the proof that you are a consumer", and the consumer would have to go through the additional legal process of proving that they fit within the definition.
Given that this provision gives a marginal - and in some cases illusory - advantage at the early stage of proceedings to the consumer, I think it is an appropriate provision to retain. The Scrutiny of Bills Committee was quite right in drawing attention to the fact that it reverses the onus of proof. In general, we ought to be wary of such provisions. But, if there is a good reason for the provision, I think it is sensible to keep it in the Bill. I argue that giving a certain advantage to consumers is helpful. The advice notes, as Mr De Domenico said, state:
As plaintiffs are just as likely to be corporations as individuals, the procedural advantages in reversing the onus of proof may be illusory.
I think it is a good thing that a corporation or a trader may sometimes be able to bring an action under this legislation for the reasons we went through yesterday in the in-principle debate - it allows the fair trader to keep honest his more ruthless competitors who are undercutting the Act, ripping off consumers, but also disadvantaging, in commercial terms, the fair and honest trader. That, we
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .