CANBERRA - 24 November 2021

Deputy Speaker,

 

At the outset, I’d just make the simple observation that it's a very bad bill.

 

Coming from those opposite, belonging to a tired eight-year Government that seems absolutely obsessed with avoiding scrutiny in many areas of public life.

 

And they show us time and time again that the lengths that they're prepared to go to in order to avoid scrutiny by not respecting proper process in this place, by not answering questions, by deflecting, by telling mistruths, and generally avoiding scrutiny wherever they can in a constant attempt to look after those that support them, particularly in big business and with little regard, as the Member for Canberra just said, for ordinary people with their everyday struggles.

 

So the proposed changes in this bill do strike at the very heart of the notion of justice in this country, by curtailing the opportunities that our citizens have for the pursuit of justice through class actions.

 

This bill will have the effect of discouraging this pursuit of justice, leaving many with nothing after falling victim to corporate malfeasance.

 

Now, not everyone in corporation sets out to do the wrong thing, but there are countless examples of where corporate malfeasance has destroyed Australians, destroyed their lives, destroyed small businesses, and it's simply not good enough that we make it harder for people to seek justice.

 

So I do stand, of course, with colleagues on this side of the chamber to resist and oppose this unacceptable attack on justice that is in this bill.

Class actions are a critical means for accessing justice in this country, and this bill will make it harder for those ordinary Australians to take this route.

 

It's ordinary Australians who will be impacted, it won’t impact the big end of town, no folks with deep pockets or wealthy benefactors.

 

It will impact ordinary Aussies who have been the victims of an injustice.

 

Banding together with fellow victims to finally secure a just solution is the route that they're trying to close.

 

For these people, class action litigation is typically their only option, and this bill will deliberately weaken this option and make it more difficult for these ordinary Aussies to access justice.

 

And that's why we in the Australian Labor Party and the federal opposition stand against it.

 

Specifically, this bill will set a limit on litigation funding schemes, which is a critical way the class action litigation is enabled and empowered for ordinary Australians.

 

So this bill will set such a limit on that ability in two ways, critically.

 

First, the bill requires courts to approve or change the allocation of funds from a successful claim so that such funds are distributed on a “fair and reasonable basis”.

 

The actual impact of these change is critical; before commencing class action litigation, funding agreements are made between the litigants, lawyers, and funders of class action litigation.

 

These agreements concerning the allocation of funds after a claim is successful.

 

Now these are private arrangements which helped to kick-start the class action litigation process.

 

But under this bill, if such an agreement allocates more than 30 per cent of the funds from a successful claim to the lawyers or the funders, the court will have to deliberate on it.

This is an extraordinary change, forcing a private agreement to be pulled apart in a needless and wasteful legal process.

 

You'd have to wonder why those opposite want to do that in the context the bill uses, the term “fair and reasonable”.

 

Like an increasing number of Australians, I don't associate the term “fair and reasonable” with those opposite, with the current Federal Government.

 

I've listened carefully to their contributions to the debate. I haven't heard anyone adequately explain the need for this particular change,

 

But maybe, honestly, truthfully, maybe they've just come to the same conclusions as those of us on this side have, the conclusion being that the intent and purpose of forcing courts to tear apart funding agreements is solely designed to discourage ordinary Australians from accessing justice through a class action.

 

And how could you in good conscience support that?

 

Make no mistake, this change will have a chilling effect on the delivery of justice through class actions.

 

But that is the intent of these changes, because these agreements play a critical role in getting class action litigation off the ground and into court.

 

So why would they want to make that harder? Well, I think their intent is clear.

 

Because truthfully, if they were truthful about it, money plays a big role in your ability to access justice in this country, and if you are not reasonably independently wealthy, the prospect of court can be prohibitive and dissuading.

 

A class action case is there, and in many instances, the only way an ordinary Aussie can have any reasonable impact and prospect of accessing justice.

 

So the funders of class actions play a critical role here in facilitating that access to justice.

 

And those opposite do themselves in this debate no great assistance by railing against the critical role of funders in enabling class action litigation to take place.

 

And that is the first way this bill will place unnecessary limits on class action litigation.

 

The second change will completely alter who can actually make a claim and be party to a class action litigation.

 

Currently, class actions operate under an opt out system, which means those caught up in or impacted by the class action can be an automatic claimant to an eventual win.

 

This is important.

 

It may be impossible for lawyers to reach each person impacted by a matter subject to a class action litigation.

 

People may be inaccessible due to geographic distances or even communications issues.

 

Being initially inaccessible when the class action is being put together should be no barrier to accessing and benefiting from justice – and I've seen examples of that in the Northern Territory.

 

Under the present set of rules, class action litigation has an opt-out provision.

 

If you are identified at the start of the process, you can still benefit from the justice, which flows from a successful outcome.

 

But the bill would shift this from opt-out to opt-in.

 

If you aren't involved from the beginning, too bad, so sad.

 

If you miss the start, then you miss out on any chance of justice. And this is extraordinary.

 

Even for those opposite, honestly, I scratch my head on this one.

 

Why would the Government, those opposite, be making access to justice harder for people?

 

Particularly the vulnerable and disadvantaged, particularly those who live remotely, particularly those far from the centers of power in capital cities, particularly those who are most in need of justice.

 

Why would you do that? So think about some of the people this will impact.

 

As I said, I'm proud to stand here representing my electorate of Solomon, Darwin and Palmerston, but also the broader Northern Territory.

 

We have ancient and vibrant communities and cultures in the Top End, many of them living remotely in remote communities.

 

And of course, like most First Nations communities around the country, they have experienced oppression and injustice, and they have experienced these things as individuals, as families, and as communities.

 

Organizing a class action among residents of remote communities, as you can imagine, has its challenges.

 

Those residents will be effectively denied justice with this nonsensical opt-in change.

 

It's dangerous and un-Australian, that's what Darryl Kerrigan would say, from The Castle that is, Mr Deputy Speaker.

 

Because we're not talking about theoretical matters here, we're talking about real matters that involve real Aussies and their access to justice.

 

It's not a debate at a university. I personally wasn't a university debater.

 

Sometimes I think many of those opposite still feel like they're back in that university debating world where it's all just theoretical and fun, and still they're trying to show how clever they are.

 

But we're not talking about that. We're talking about the real world and impacts on our fellow citizens.

 

And we're talking about good people, Aussies who should have the access to justice.

 

I'm reminded of some people in my electorate who, after being taken from their families and put into the Retta Dixon Home, gathered together to try and access justice for the removal of themselves from their homes, for what was done to them when they were in the Commonwealth's care.

 

Now, if they hadn't had the ability to get together and then add people in who experienced the same injustice as they did, how would that have been justice for those people who were treated so badly?

 

As the Member for Canberra just said, what would you expect from those opposite?

 

Those opposite still won't allow a debate on whether Territorians, for example, whether it be in the ACT or the NT, have the same rights as any other Australian to make laws that affect themselves.

 

So it's not a surprise that they want to make it harder, because it's what they have form in doing, making it harder for people in NDIS to get the support they need, sending Robodebts to people and then paying out when the criminality of what was done to a lot of our fellow Australians became clear.

 

So those opposite have form, but I just ask them to stop and think about what they're doing and the impact it's going to have on Aussies’ ability to seek justice through class actions with the changes they're suggesting.

 

And as a Member for Whitlam said at the beginning of this debate, “it is clear to us the changes contained in this bill are part of a pattern of hostility from the Coalition to those in our community who seek justice for our class action lawsuits”.

 

Mr Deputy Speaker, this is as egregious bill.

 

It would deny justice to millions of ordinary, hardworking Aussies.

 

Everyone in this place represents those people.

 

So I say shame on all those opposite who vote for it.

 

I call on those opposite to reach into their conscience and same for the crossbenchers.

 

Reject this bad bill and allow all Australians to have access to justice.

 

Because if you're not interested in Australians having access to justice, then you'd really want to be asking yourselves what you're doing here.

 

I have a pretty good idea what some of you are doing here.

 

But it should be to make sure that those that you represent in this place have every opportunity, particularly the most vulnerable.

 

And after all, that is how we judge a society and how I hope we judge Australia in our role as parliamentarians, is making sure that the most vulnerable, those that may be living remotely from seats of power, still have access to justice in this country.

 

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ENDS