John Gilroy (Labour)

The Minister is very welcome to the Chamber. Senator Mullen's Bill is a most interesting one to which I have given a great deal of consideration. In his opening remarks the Minister outlined the necessity to demonstrate that the new legal architecture is necessary. The Bill fails to do so in terms of necessity and also in terms of proportionality. The relationship between a supplier of goods and services and the purchaser of those is based on more than the regulatory and statutory frameworks; it is based at least as much on goodwill and trust as it is on the law. I listened carefully to Senator Mullen's contribution and while much of what he said was disturbing, it points more to unethical activity, especially fraudulent activity and particularly with false accounting and poor auditing.

The Bill identifies a problem and defines it as an overpayment by a purchaser of goods and services and the explanatory memorandum identifies the legal gap the Bill purports to fill. It speaks of the common law remedy and states that since most overpayments - this is key to our opposition to the Bill - are inadvertently made, it is often self-defeating to pursue a remedy in common law since the ability to bring a claim under common law in respect of unjust enrichment from moneys had and received requires knowledge of the overpayment in the first instance by the injured party.

According to Senator Mullen, the Bill fills an important regulatory gap by imposing a statutory duty to disclose overpayments. He might well be correct, but I do not believe the remedy proposed in the Bill adds value to the existing body of law in the area, namely, the aforementioned unjust enrichment for moneys had and received, in that it imposes a legal duty of disclosure while the actual disclosure remains dependent on the willingness of the party receiving the payment to disclose that such an act has taken place. The same remedy as that proposed by Senator Mullen exists in common law. The proposed Bill does not move in the direction of discouraging deliberate benefit from overpayment and it relies, as per the current arrangements, on the willingness of the beneficiary to disclose. Therefore, we will be unable to support the Bill. It is a worthy objective but it is flawed legislation. Senator Mullen has identified an issue and we commend him on doing so. However, his proposed remedy does not satisfactorily address the issue. Perhaps if he addresses the fundamental issue and reintroduces the Bill at a later date, we might be in a position to reconsider our current position.

I also draw Senator Mullen's attention to the fact that perhaps in his deliberations he might also consider deliberate underpayments in the event of such a legislative proposal coming before us again. We are unable to support the Bill. I am certain that, as the Minister has outlined, other avenues under other legislative and regulatory frameworks are available to address the issue.