House debates

Wednesday, 24 November 2021


Corporations Amendment (Improving Outcomes for Litigation Funding Participants) Bill 2021; Second Reading

11:26 am

Photo of Luke GoslingLuke Gosling (Solomon, Australian Labor Party) Share this | Hansard source

I rise to speak to the Corporations Amendment (Improving Outcomes for Litigation Funding Participants) Bill 2021. At the outset, I just make the simple observation that it's a very bad bill coming from those opposite, who belong to a tired eight-year-old government that seems absolutely obsessed with avoiding scrutiny in many areas of public life. Time and time again they show us 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 by avoiding scrutiny wherever they can in a constant attempt to look after those who support them, particularly in big business. They have little regard, as the member for Canberra just said, for ordinary people with their everyday struggles.

The proposed changes in this bill 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. Not everyone in corporations sets out to do the wrong thing, but there are countless examples where corporate malfeasance has destroyed the lives of Australians and destroyed smaller businesses. It's simply not good enough that we make it harder for people to seek justice.

So I stand with my 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 ordinary Australians to take this route. It's ordinary Australians who will be impacted. It won't impact the big end of town, 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 the government are 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. That's why we in the Australian Labor Party, the federal opposition, stand against it.

Specifically, this bill will set a limit on litigation funding schemes, which is a critical way that class action litigation is enabled and powered for ordinary Australians. This bill will set such a limit on that ability in two ways. Critically, firstly, 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 this change is critical. Before commencing class action litigation, funding agreements are made between the litigants' lawyers and funders of class action litigation, and these agreements concern the allocation of funds after a claim is successful. These are private arrangements which help to kickstart 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 have to wonder why those opposite want to do that.

In that 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, and I haven't heard anybody adequately explain the need for this particular change. But maybe, honestly, truthfully, they've just come to the same conclusion as those of us on this side—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. 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.

These agreements play a critical role in getting class action litigation off the ground and into court. Why would they want to make that harder? Well, I think their intent is clear. 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, then, in many instances, the only way an ordinary Aussie can have any reasonable prospect of accessing justice. So the funders of class actions play a critical role in facilitating that access to justice. Those opposite do themselves and this debate no great assistance by railing against the critical role of funders in enabling class action litigation to take place. 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 communication issues. Being initially inaccessible when the class action is being put together should not be a barrier to accessing and benefiting from justice. 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're 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.

This is extraordinary, even for those opposite. I honestly scratch my head on this one. Why would the government be making access to justice harder for people—the vulnerable and disadvantaged, those who live remotely, those far from the centres of power in capital cities—particularly those who are most in need of justice? Why would you do that? 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 in remote communities. And, of course, like most First Nations communities around our country, they have experienced oppression and injustice, and they have experienced these things as individuals, as families and as communities.

Organising a class action among residents of remote communities, as you can imagine, has it 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 from The Castle would say. 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 it's all about trying to show how clever you are. But we're not talking about that. We're talking about the real world and impacts on our fellow citizens. We're talking about good people, Aussies who should have 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 to access justice for their removal from their homes and for what was done to them while they were in the Commonwealth's care. If they hadn't had the ability to get together and add in people who experienced the same injustice 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, for example, territorians—whether in the ACT or the NT—have the same rights as any other Australian to make the laws that affect them. 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; and sending robodebts to people and then paying out when the criminality of what was done to a lot of our fellow Australians has been so obvious.

Those opposite have form, but I'd 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. As the member for Whitlam said at the beginning of this debate:

It's clear to us that the changes contained in this bill are part of a pattern of hostility from the coalition to those in our community who seek justice via class action lawsuits.

This is an egregious bill. It will deny justice to millions of ordinary hardworking Australians. Everybody in this place represents those people, so I say: shame on all those opposite who voted for it. I call on those opposite to reach into their conscience—and the same for the crossbenchers—reject this bad bill and allow all Australians to have access to justice. 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 of what some of you're doing here. But it should be to make sure that those that you represent in this place have every opportunity, particularly the most vulnerable. After all, that is how we judge a society, and I hope that how we judge Australia in our role as parliamentarians is by making sure that the most vulnerable, those who may be living remotely from the seats of power, still have access to justice in this country.


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