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Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3340 ..

MR STANHOPE (continuing):

the solicitor's own client. It places special emphasis on the need for prudent settlement processes and allows for cost penalties, where appropriate. It ensures that lawyers make relevant applications for relief.

The government recognises that there has been some concern about the introduction of the provisions, but feels that these concerns have been exaggerated. New South Wales has introduced a far wider provision and it is being considered in other jurisdictions. The New South Wales provision applies to all procedural steps. The ACT bill limits it to the concluding phases of an action. This process has been used in most US jurisdictions for many years.

The ACT reform effort does not end with the passage of this bill. This is just the start of what will be an exhaustive process that will take some time to complete. The amendments regarding the liability of volunteers and good samaritans are urgent. Some volunteer and community organisations are still having difficulties in obtaining cover, and some may be uninsured. The passage of the legislation will protect the volunteers that work for those organisations and have an impact on the behaviour of insurers. There is good reason to think that the passage of this first package of reforms will encourage them to re-enter the market and offer reasonably priced insurance.

I have circulated the government's response to the scrutiny of bills committee report on the bill. The letter containing the government's response was provided to Mr Stefaniak, the chair of the committee, on Tuesday. In particular, the letter attaches a replacement explanatory memorandum for the Civil Law (Wrongs) Bill. I table a revised explanatory memorandum to the bill which addresses concerns raised by the scrutiny of bills committee.

The additional explanatory memorandum contains a detailed, clause by clause analysis of all the new reforms contained in the bill. The new explanatory memorandum also explains how the new reforms will operate. The scrutiny of bills committee has commented on whether it is necessary to codify the common law relating to occupiers' liability. The answer is simple: it is desirable to codify the law in this area to provide an accessible, accurate statement of the present law. A clear and concise statement of obligations will assist the parties in resolving disputes.

The scrutiny of bills committee commented that clause 34 of the bill, which excludes civil liability for persons who are injured while committing an indictable offence, could be double punishment for criminals, and that the penalty for crimes should only be dealt with by the criminal law. With respect, there is no issue of double jeopardy here. The law has always acted to preclude a person gaining through civil suit the results of a criminal misadventure.

The committee has questioned the introduction of new neutral evaluation provisions and has commented that they may simply add an additional cost to litigation. Neutral evaluation is a mechanism for having a trusted, objective observer examine the evidence possessed by both parties. The aim of neutral evaluation is to actually lower the cost of litigation by having cases resolved prior to litigation. Where cases continue to litigation, it is anticipated that neutral evaluation will clarify and reduce the issues that are contended.

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