Corporations Amendment worsens access to justice

Published on Wed 24 November 2021 11:15am

All of the people with expertise in this field, who have an interest in the proper conduct and carriage of justice, and who have been advocates in the past for genuine reform that might address costs issues, have judged this to be an absolute lemon. It’s a dog with fleas, and yet here we are in the penultimate week of the parliamentary year, having this rushed through. It is designed to protect the interests of large corporate defendants. It is designed to make it harder for ordinary Australians, whether they’re their cattle farmers or women who are injured by a faulty medical device or people injured through asbestos or anything else, to make their opportunity to get fair and just compensation harder. It is a terrible piece of law and it should be rejected by this House.

Mr Wilson (12:39pm) – Thank you, Deputy Speaker, and I’m glad to make some remarks on this Bill and in particular to speak in support of the second reading amendment moved by the member for Whitlam. The bill is best summed up in the words of John Sheehan from the Law Council of Australia, and he described it as making things worse for everyone. That’s how he described it. So, unlike the previous speaker, this is someone with considerable expertise in the law, and with respect to the way our justice framework works, and his judgement was it makes it worse for everyone.

The previous member made some sort of attempt to suggest that the government is bringing in a bill that has the interests of ordinary Australians and people who have suffered very significant harm at heart, and that is rubbish.

Class actions are vitally important. They allow people who end up experiencing suffering enormous harm, usually through corporate malfeasance – the best example is asbestos, a toxic substance that has caused huge health consequences and death in in the most terrible way for thousands and thousands and thousands of people – justice for people in some circumstances, if you can describe financial compensation as justice, for what they experienced was only possible through class actions, and there are many examples of that.

What this bill seeks to do is make access to that kind of justice more difficult. And the way in which it makes things worse for everyone springs from a number of different aspects of the government’s conduct in general, and in its specific approach to this bill. The government has shown repeatedly no interest in advancing the cause of justice in this country. To have members of the Coalition come in here and seek to pretend that they’re interested in the rights and the opportunities of ordinary Australians, and Australians particularly facing disadvantage, will come as a big surprise all those in the community legal sector who have found themselves subjected to funding cuts and uncertainty courtesy of this government.

Everyone who’s affected by, or has a possible interest in, the jurisdiction of the Family Court will find themselves just surprised to hear members of the government come in and pretend that they they’re interested in injustice for those who need it most when it wasn’t that long ago that against all advice, the government decided to abolish the family court, when there was expert evidence from people working in that field who said that the one thing you could guarantee from that outcome was that the lives of women fleeing domestic violence and their children would be made significantly worse, would be would be put at risk as a result of those changes.

There’s the bad faith in the way that this bill is presented. It’s not intended really to make access to justice easier and more affordable for everyday Australians. It’s like so many of the things that this government has done – it’s done in the interests of reducing that access. It’s done in the interests of allowing large corporations to go about their business without being held to account and held responsible for the things that they occasionally get wrong. And it’s been done through a bad process. I mean, it was quite amusing to hear the member for Ryan say that this this bill has been brought forward on a thoughtful and considered basis. It has been rushed in here. The committee that that considered it, I think did so over three weeks, there was one public hearing, the public submissions were open for seven days. The majority report was I think literally provided seven days ago. Labor members of the committee received the report seven days ago and made their dissenting report on that basis. And here we are seven days later dealing with a bill that many people in the field regard as is a very significant backward step.

I’ll go to a couple of those points Deputy Speaker. The first is the government’s introduction of rebuttable 70-30 costs split. The analysis by those who work in in this area, and it’s not people directly involved in the carriage of these matters, but people like the Law Council Australia and the Australian Law Reform Commission, have said that the change, the crude change and ill-considered change that the government’s about to implement will have the effect of driving up litigation costs overall.

So that’s going to hit plaintiffs who are trying to receive compensation through these matters across the board. It is going to make settlements less likely. And settlements, we know are one of the most effective way of reducing costs in any in any legal dispute, because it just means that you get to a point of conciliated resolution faster and less expensively. It’s also going to mean that there will not be funding for some meritorious claims. The reality of this world is that you will have a large, well-funded corporate defendant, and you will have many people who have been affected by the conduct of that defendant, who themselves have vastly different and inferior financial means to challenge that outcome, to try and seek some sort of justice and compensation for the harm that they’ve received. So, litigation funding, whatever you say about it, actually enables that to occur. I would be the first to say that if the government wanted to embark on a broad programme of reducing the costs of receiving justice, I would be happy to join them in that effort. They’ve got no interest in that more broadly. I mean, to come in here and try and suggest that it’s the Labor Party that is the friend of well-heeled lawyers and large law firms is to enter some sort of bizarro world. If the government wanted to embark on a broad programme of making justice more accessible, and more affordable for Australians, at every level, well bring it on. After eight years, that would come as a surprise.

But that’s not what this achieves. This will actually mean that there will be meritorious claims that will not go forward. That means that there will be hundreds and sometimes 1000s of Australians who have been harmed, they may have been harmed economically, but they may have been harmed personally in terms of their health, and they will not be able to pursue justice and compensation, because of the changes that this government is making.

The opt in requirement is particularly bizarre, and no one supports it. If you wanted to find one part of this bill that squarely went to the to the defendant protection racket part of it, it would be this, and the member previously got himself into a real tangle on this. I mean, you can’t on the one hand say we’re fixing the costs issue and then at the same time say, but we need people to opt in so that they don’t find themselves being on the end of unfair costs. I mean, if you’re fixing the costs issue in your own mind, if that’s what you’re doing, which clearly isn’t the case, but if that’s what you’re doing, then there’s no problem anymore as the member for Ryan tried to pretend that people should actually sign up to some sort of unfair costs split. You’re dealing with that and therefore surely you should want as many people to benefit from a class action as possible. But that’s not what this does. What this does is it changes the status quo, rather than every relevant person being considered to have opted in and being part of a class action and therefore potentially benefiting from it. This means having to opt out, rather than having to opt in, this puts that obligation on them. It essentially means that if people don’t hear about don’t know about aren’t concerned about don’t take the time to go in and fill some legal paperwork in, they are not going to be covered. So, it’s going to exclude people who would otherwise benefit from class actions. That’s as far as the plaintiffs are concerned. That will be a plain and certain outcome of this legislation.

But even from the defendants’ side, what it means is rather than having an open one open class action that deals with the people who are affected, you’re quite possibly going to end up with multiple and even a succession of closed class actions with different sets of plaintiffs, which from the point of view of the defendant just means that the process is more complex, more costly, more uncertain, and more time consuming.

So that that goes to the point that I mentioned at the outset, Deputy Speaker, about this making things worse for everyone.

I actually do have some experience of class actions. I worked on behalf of bit of plaintiffs, of claimants who were injured through the use of the Dalcon Shield IUD. The Dalcon Shield was a very harmful contraceptive device, an IUD, in the 1980s particularly and into the early 1990s. It actually ended up being at the time, the largest torts smatter in the world, certainly the largest after the asbestos cases. There were there were 1000s and 1000s and 1000s of Australian women who were who were told that it was safe, some of whom were using that device as their first contraceptive device only to suffer horrendous injuries, horrendous injuries. In some cases, young women who had been told that that this was perfectly safe subsequently having to have a total abdominal hysterectomy at the age of 19, have their ability to consider having a family and future taken away from them by a faulty device that despite in many cases women going to their doctors and saying, this doesn’t seem right. I’m experiencing some symptoms that concern me. They were told no, this is perfectly safe. This is a fantastic device, and you’ll be fine. And that’s what 1000s and 1000s of women, hundreds of 1000s of women of women worldwide experienced. And it was only through the class action that was started in the United States that there was some compensation, very, very paltry compensation, I should say, when you consider the magnitude of the injury that women suffered.

I was separately involved as a paralegal in a class action involving the insecticide called Helix. There were there were cattle producers in Queensland and New South Wales. The drought in the in the 1990s meant that those cattle producers had to rely on cotton trash as feed for their cattle. Unbeknownst to them, the cotton had been treated with an insecticide called Helix, which had a chemical in it that bio-accumulated in the tissue of the cattle and made them unsalable. That cost those cattle producers hugely, essentially to have their entire stock rendered valueless because an insecticide company hadn’t done its due diligence, and hadn’t taken steps to ensure that what was fairly common practice – that some kinds of agricultural products would be fed to cattle in certain circumstances – that there hadn’t been proper warnings or the avoidance of the use of some of the chemical components in that insecticide that cost cattle producers their livelihoods in some cases.

These are the these are the kinds of things that class actions are required for. They have a very important place in our community, and in our justice system. And if the government were serious about looking at some aspects of the costs orders, as colleagues of mine have said, other members in this place the member for Bruce most particularly last evening, the Australian Law Reform Commission has talked about funding and enabling the use of independent cost assessors and contradictors in the federal court jurisdiction, those kinds of things, we are all for that. That is something that the government, if it genuinely cared about these things, could have done this year, last year, the year before that, the year before that, any of the last eight years, it could have get on and done some of that work. But no, what they are doing instead, is rushing through this bill, with a two or three week committee process, landing the report, which in the absence of a proper regulatory impact statement, which all parliamentarians should be concerned about and we don’t actually have the benefit of a proper regulatory impact statement, because what has happened in this case is that the Liberal majority committee report that was only provided last week has been deemed to have the character of some independent assessment, which is, frankly bizarre. And this has been rushed through. All of the people with expertise in this field, who have an interest in the proper conduct and carriage of justice, and who have been advocates in the past for genuine reform that might address costs issues, have judged this to be an absolute lemon. It’s a dog with fleas, and yet here we are in the penultimate week of the parliamentary year, having this rushed through. It is designed to protect the interests of large corporate defendants. It is designed to make it harder for ordinary Australians, whether they’re their cattle farmers or women who are injured by a faulty medical device or people injured through asbestos or anything else, to make their opportunity to get fair and just compensation harder. It is a terrible piece of law and it should be rejected by this House.

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