Page 3129 - Week 11 - Tuesday, 20 September 1994
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The second matter is a reservation I want to express. Proposed section 278BX in the Bill deals with the seizure by a bailiff of goods and then the sale at public auction by that bailiff of goods to satisfy a judgment debt. The provision introduced there - as far as we are aware, it is a new provision - is that there should be a reserve price for each item which is on sale at the auction. That reserve price should be 65 per cent of the market value, as determined by various processes outlined earlier in the Bill, of that particular item. If the item does not achieve the reserve price, then there is the option to negotiate a private sale. There is, in turn, the capacity of the judgment creditor to apply for some alternative order; for example, that 50 per cent of the reserve price be sufficient to effect a sale. Ultimately, as I read the legislation, the goods are to be returned to the judgment debtor if the reserve price or some other means of disposing of the goods is not satisfied.
I must say that I am a little concerned about that. I am not sure how well it will work. The Minister makes reference in his presentation speech to the regrettable fact, perhaps, that all too often goods are sold at fire sale prices. It is obviously not in the interests of a judgment debtor that that be the case. It is also in the interests of justice that, whatever the goods might bring, they ought to be in some position to bring the judgment creditor some satisfaction on his debt and on his judgment. I, therefore, express simply the reservation about the operation of that provision. If it results in a wide-scale incapacity to dispose of goods through auction, then I would certainly indicate that the legislation would need to be reconsidered.
Finally, I make a comment about the amendments to the legislation in regard to forms for obtaining, for example, some part of this enforcement process. The form is not to be part of the legislation but is to be made by the Minister and published in the Gazette. It is to be a disallowable instrument on the floor of this Assembly. That, of course, is a much more sensible approach than the previous situation, where this Assembly had to fuss about the terms of forms. That, I think, is not necessarily part of the work of this place and to leave that process to be one done by gazettal probably is a better way of dealing with it. I think, Madam Speaker, that the legislation has been worked through very carefully with many of the stakeholders, in particular, the courts and the magistrates and the staff of those places. It is hard to find fault with the legislation and, therefore, it has the support of the Opposition.
MR CONNOLLY (Attorney-General and Minister for Health) (3.54), in reply: Madam Speaker, I thank the Opposition for their support in principle for what is a fairly massive piece of legislation on a fairly detailed subject. I have a particular interest in this legislation, because, in fact, the first money I earned as a law student was for doing some research for the Australian Law Reform Commission back in the mid-1970s as part of the research project for the Law Reform Commission report that brought this down. The issue that Mr Humphries raised - the concern about balancing how the product is sold at fire sale prices, which is a disadvantage to the person who owes money, with the need to ensure that the person to whom the money is owed also does actually get the money, so that the thing does get sold but sold fairly - was one of the issues that we were researching.
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