COMMERCIAL ARBITRATION BILL 2011

It is with great pleasure that I rise to speak on the Commercial Arbitration Bill 2011. I was a lawyer, the member for Frankston may be stunned to know, who worked in a business and helped build and run a business.

I practised extensively in areas that rely heavily on good mediation and arbitration arrangements, and I believe in access to processes and structures that facilitate the fair and final resolution of disputes.

When done properly, with adequate resources and respected participants, mediation and then binding arbitration may assist parties to resolve their issues with the following key benefits: it can be cheaper and more expeditious than pursuing litigation through the court system; it can allow for more flexible negotiations and outcomes for parties than traditional court processes; and it can provide an important alternative for parties to consider and create a different path to resolution.

In fact some good old-fashioned mediation and arbitration might not go astray in the government’s own backyard, particularly after today’s performance in question time.

Some seriously unhappy chappies are coexisting — and I use that term quite loosely — on that side of the house. The Premier may well benefit from some Chatham House rules round tables involving, say, his police minister, his parliamentary secretary for police and his own chief of staff. It might be very helpful for all concerned, including the Victorian public, to have an independent arbiter determine just who said what to whom and when, who leaked what to whom and when, and who met with whom and when and then why, to all of the above.

It has been a wide-ranging debate this afternoon — —

Mr Gidley — My point of order, Acting Speaker, concerns relevance. This bill is about commercial arbitration, not unfounded allegations by the Victorian branch of the Labor Party about what is happening in the coalition government. I ask that the member be drawn back to the bill at hand rather than making unfounded allegations.

Ms GARRETT — On the point of order, Acting Speaker, we have had a wide-ranging and full debate, including a long dissertation from the member for Frankston about the carbon price, which I do not recall having any connection at all to the arbitration bill, particularly in circumstances where, I might add, the government of today when in opposition supported a carbon price. Nonetheless we are wandering off into the strange world of the member for Frankston. I am giving practical examples of where mediation and arbitration could be of great assistance in what is a fractious and difficult environment.

The ACTING SPEAKER (Mr Morris) — Order! We have just had a fairly wide-ranging point of order as well. Perhaps the member might just make some passing references to the bill.

Ms GARRETT — I think this was central to my discussion of the bill and central to a practical analysis of what this bill entails, which, as we know, is about arbitration. Arbitration can be an important tool in dealing with disputes, and certainly this is the case in relation to commercial disputes. As the house knows, and as previous speakers have said, there has been extensive work done in the lead-up to this bill by the Standing Committee of Attorneys-General. The pursuit of uniform national regulation across a range of areas is a worthy issue.

As the house is also aware, the multitude of jurisdictions in this country has led to a patchwork of different approaches and regulations across the nation, and there are some areas where a move towards a national approach is to be welcomed.

This is because a national approach can, depending on the nature of the legal area under consideration, help to create a modern legal system, help to raise the standards of legal regulation and/or protections across the country, assist individuals and organisations in conducting their affairs across state and territory boundaries, and assist individuals and organisations overseas in conducting their affairs with greater ease in this country and vice versa.

This bill is intended to help create uniformity in national commercial arbitration law across Australia and is based on the central objective to deliver a fair and final resolution of commercial disputes by impartial tribunals without unnecessary delay or expense. New laws based on this model have also been or are in the process of being introduced and enacted in other states and territories across Australia. A national model law has been introduced in New South Wales. Tasmania has passed a similar law that is yet to take effect.

Other states and territories either have bills before their parliaments or are set to introduce them in the near future.

The bill sets out a number of matters about access to fair and final resolution of commercial disputes by way of arbitration.

These include: the establishment and composition of commercial arbitration tribunals, an issue that has dominated some of the discussion with key stakeholders in the lead-up to the introduction of this bill; the manner in which the tribunals can be selected and challenged; the process by which a default position can be adopted if the parties fail to reach agreement about the make-up of the panel; the capacity or otherwise of decisions of the tribunal to be challenged by aggrieved parties, with an emphasis on tightening the rules around appeal to ensure the arbitrated outcome has enough teeth to deliver a worthwhile dispute resolution service; the presumption of confidentiality in proceedings before the tribunal; and the capacity of the tribunal to issue orders, including interim orders, and to exercise powers in relation to both mediation and arbitration.

Of course for any arbitration system to work properly it must be adequately resourced, and we on this side of the house are very concerned about this government’s ever expanding track record of talking the talk but not walking the walk. As is our modus operandi, we will be holding the government to account for its rhetoric. We also note that both the Law Institute of Victoria and the Victorian Bar have called for seed funding from the state government to create an Australian international disputes centre in Melbourne. A similar centre was created in Sydney as a result of funding from the New South Wales state government and the federal government, and it is now a self-sufficient organisation. We on this side of the house join the chorus of key stakeholders asking for the Victorian government to support such an initiative here.

Finally, as we reflect on the importance of giving people access to flexible, fair and properly constituted and resourced mediation and arbitration services, we call on the government, as my colleague the member for Derrimut so aptly put it, not to have a double standard on this issue. As has been highlighted by many of my colleagues, members of this government have been very quick to deride and undermine mediation and arbitration in the industrial relations sphere, but they seem to have found their inner love for alternative paths to dispute resolution with respect to commercial matters. We say the principles are the same and the government should not be driven by ideology towards unions and their members on this issue but by good public policy, which means having respect for bodies such as Fair Work Australia in the work it performs and the decisions it makes.

This bill has been through a long journey to get to this house — a much longer journey than, for example, Mr Weston has taken to get fully paid leave. It will be interesting to see its forward path under a lacklustre and divided government.

Hansard, 2011