Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak today to one of the reports that have just been tabled by the government. All of them are worthy of consideration, and I also want to acknowledge that those reports were produced under the chairmanship of Mr Andrew Wallace, who today has become the Speaker of the House. I want to acknowledge that rise to great high office by him. But today I'm here to talk about a particular bill and recommendations around a bill that are very concerning.

It's about the Corporations Amendment (Improving Outcomes for Litigation Funding Participants) Bill 2021. This report is the project of a cursory and risible single day of hearings and a rushed consultation process. We're left with a government report unmoored completely from the concerns of legal experts, who think that this law addresses a non-existent problem and that the bill may even be unconstitutional. This bill, to be clear, is not about access to justice; this bill is about ideology and delivering for the masters of the Liberal Party: those with bulging wallets and even bigger egos, who are self-interested in their attempt here, under the cover of COVID, to water down continuous disclosure laws and to push the government to rush through regulations on litigation funders that are so poorly designed that ASIC needs tens of thousands of dollars in legal advice to figure out how to actually implement them. This is a disaster in the making on the watch of this government. This is all just so they can ensure that the dodgy corporates are less threatened by the prospect of a class action.

The bill will cull the market for litigation funders. It will make them risk averse to funding class actions and it'll cut the amount of class action funders available, thus making it harder for ordinary Australians to access justice. But that's exactly what this government want. They want to keep everybody in the dark. They want to keep you quiet and make sure you can't get into a courtroom and fight for your fair share when they or a major corporate have done the wrong thing.

Supporters for this reckless bill were so few and far between that the committee received a visit from the mysterious Rule of Law Institute at our sole hearing. Despite no submission, they were called to give evidence at the public inquiry by the Liberal members of the committee, and at the hearing Mr Merritt made it very clear that he had no relevant experience or expertise to give and made several inaccurate and misleading comments that had to be corrected after the hearings. He also refused to disclose who actually funds the mysterious institute, leaving me and many other members of the committee very sceptical about its purported independence.

There was another star witness—a lobbyist, Mr Stuart Clarke—and, if there's sufficient time, I'll come back to discuss him, but, most seriously, this bill may not be constitutional. That's principle No. 1. A government shouldn't be bringing bills forward that are unconstitutional. We've seen what happened with robodebt, with the minister who is now responsible for that department continuing to fail to answer questions and provide legal advice. We know that this government's not good at this stuff. We have had evidence to say this bill may be unconstitutional. The government's not fazed. In Labor's dissenting report we note that former Solicitor-General Justin Gleeson SC and other legal experts make this point:

Multiple and serious concerns were raised by submitters including but not limited to:

directing state legislatures.

These are very real issues and they remain unaddressed by this government. The majority report of this committee glosses over the evidence presented in the hearing that the bill may not stack up constitutionally. Overall, this yearlong process of reform of the litigation funding industry has been nothing but haphazard, chaotic and botched.

Of concern from many submitters to this inquiry was that Labor senators only had a day—a single day—to look over the majority report before it was reported. The government used its numbers and pushed this through at lightning speed. Other things that they have promised, like an independent commission against corruption—well, more than a thousand days ago they promised it. They have done nothing. But with litigation funding they are pressing ahead even though the bill was described as 'unconstitutional.' That's how shambolic this government is.

This is clearly a box-ticking exercise for the government. They didn't wanted a real inquiry, just the semblance of one, in a PR cover-up to rush their poorly drafted laws through. Witnesses had less than two business days to respond to questions on notice and even then the only witness to fail to have them in on time was the Attorney-General's Department and the Treasury department. They couldn't make the government's time line. They haven't answered questions about constitutionality. Any bill with as many serious issues as this one and profound questions about its constitutionality should continue to be scrutinised and not advanced on the floor of this parliament. I seek leave to continue my remarks later.

Leave granted.