Page 3197 - Week 09 - Tuesday, 18 August 2009
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improvements to the act were developed in consultation with industry stakeholders. Industry stakeholders will now have a clearer understanding of their responsibilities, and consumers will have a clearer understanding of their rights when it comes to unsolicited marketing. The government’s existing policy of consumer protection is unchanged, but compliance with and administration of the law is improved as a result.
I note that the standing committee’s scrutiny report raises a concern with the regulation-making power under this act. In response, I would like to draw attention to the purpose of section 4. The act was originally written to allow the government to exclude contracts by regulation. The purpose of this is to allow the government to respond to rapidly changing market practices so that the core protections of the act are preserved without causing unnecessary inconvenience to consumers. The amended regulation power serves that purpose by allowing for precisely crafted exemptions. Because of the constantly changing market conditions, maintaining a balance between convenience and protection is best achieved by means of regulation.
The Legal Aid Act amendments recognise the existing structure of the Legal Aid Commission and strengthen the governance of arrangements with private legal practitioners. These amendments improve the Legal Aid Commission’s ability to deliver assistance to the community effectively and efficiently. The standing committee expressed concern with the arrangements for private legal practitioners under the amendments. The bill gives flexibility to the Legal Aid Commission in dealing with private legal practitioners so that all legal aid services can be managed in accordance with the commission’s knowledge and expertise in providing this essential service. It is most appropriate for the commission itself to determine the terms and conditions under which a private practitioner may assist in providing legal aid to the public.
The negotiation clauses in the bill improve the commission’s ability to solve disputes through means other than formal court proceedings. Negotiation will help legally assisted persons to arrive at a fair settlement without involvement of the parties, Legal Aid ACT or the courts in a time-consuming and expensive court proceeding. The standing committee has raised some concern with the guarantees of confidentiality afforded for these negotiation sessions. In response, I would like to point out that the confidentiality rules the bill provides are very similar to those that apply in mediation sessions under the ACT Mediation Act 1997. These amendments provide assurances of confidentiality to the parties to a negotiation and, with only a few exceptions, to permit disclosure for compelling reasons, such as preventing harm to others or complying with a legal obligation to disclose information. The bill will also exclude anything said at a negotiation from being used as evidence in a later court proceeding so that the parties to a negotiation will have adequate incentive to discuss the issues openly and honestly.
If this exclusion were more limited, as the standing committee suggests, the parties to a negotiation would face a higher chance of having their words used against them in court. This would make negotiation much less effective as a means of resolving issues without court proceedings. This bill will increase the chances that people receiving legal aid will settle their disputes without the time and expense of going to court. The increased efficiency will allow for more people to receive legal aid and will avoid overburdening the courts with cases that could have been settled by mutual agreement.
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