Jon Sullivan (Longman, Australian Labor Party) Share this | Hansard source

I rise today to speak in support of the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009). I must say at the outset it is somewhat daunting to be surrounded, in the speaking list, by those who are practising or have practised in the law profession.

This bill represents a continuation of the fine tradition of Labor governments taking innovative actions to improve the accessibility and affordability of Australia’s legal system. Attorney-General McClelland is to be complimented on the vigour with which he has pursued reforms to the Australian legal system. His proposed restructuring of the federal court system to amalgamate the Federal Magistrates Court within the Federal Court and Family Court is a sensible initiative which will maximise the effectiveness of both the Federal Court and the Family Court and build in opportunities for simpler matters to be resolved by appropriate legally targeted judicial officers.

The Attorney has also been instrumental in having the regulatory reform stream of COAG adopt a project to truly nationalise the Australian legal profession and create a truly national legal services market. This initiative has considerable benefits for legal consumers through removing the complexity arising from multiple regulatory regimes applying to lawyers and their clients and through streamlining the current 55 separate bodies throughout Australia that have some role in regulating the way in which legal services are provided and the way in which lawyers operate their businesses.

I am very pleased to note that chairing the consultative group for this COAG legal profession reform project is the former Attorney-General in the Keating government, Professor the Hon. Michael Lavarch. This is very appropriate, given Professor Lavarch’s own record. As Attorney-General in this parliament, he pursued vigorously the cause of access to justice.

I recall, as a state member of parliament, the 1995 Justice Statement delivered by Prime Minister Keating, which embodied a range of reforms and initiatives championed by Professor Lavarch and I should mention also the member for Denison, the Hon. Duncan Kerr MP, who was the Minister for Justice at that time.

Like the current bill, these reforms had as their aim a system of justice which was cheaper, faster and fairer for average Australians when they required the services of lawyers or the intervention of dispute resolution mechanisms such as the courts. One of the initiatives taken in the Justice Statement was the creation of the National Alternative Dispute Resolution Advisory Council. NADRAC was one of the few initiatives contained in the Justice Statement which survived the pillage of the early years of the Howard government and continues as an important body in promoting both the uptake of alternative dispute resolution and the standards and principles which underline such ADR systems. I note that NADRAC will play an important role within the frame of the proposed bill.

Other matters pursued by the Keating government include items such as the corporate law simplification program, a major expansion in the funding of community legal centres and family counselling services. The same Justice Statement embodied the resources given to the Human Rights and Equal Opportunities Commission to undertake its landmark report into the Stolen Generations. This report, of course, led to the Bringing them home report which has proven to be such a significant milestone in furthering the cause of reconciliation and understanding within the Australian community.

Accordingly, it is only fitting that we have a current government and Attorney-General continuing the tradition of past Labor governments to be truly innovative in the cause of improving Australia’s legal system. It cannot be emphasised enough that the Rudd government has a strong commitment to ensuring access to justice for all Australians. This bill will assist in reducing the cost of litigation through the introduction of a new, overarching purpose with which both litigants and their lawyers must comply and will ensure that people will be able to resolve their disputes quickly, efficiently and fairly. This bill will ensure that our system of justice is accessible to all, not just the wealthy.

In 1996, Lord Woolf, an English Law Lord, produced a report on access to justice. I want to read into Hansard two passages from that report, as they eloquently outline the principles and the problems in relation to access to justice. Lord Woolf said:

(1)

In my interim report I identified a number of principles which the civil justice system should meet in order to ensure access to justice. The system should:

(a)

be just in the results it delivers;

(b)

be fair in the way it treats litigants;

(c)

offer appropriate procedures at a reasonable cost;

(d)

deal with cases with reasonable speed;

(e)

be understandable to those who use it;

(f)

be responsive to the needs of those who use it;

(g)

provide as much certainty as the nature of particular cases allows; and

(h)

be effective: adequately resourced and organised.

(2)

The defects I identified in our present system were that it is too expensive in that the costs often exceed the value of the claim; too slow in bringing cases to a conclusion and too unequal: there is a lack of equality between the powerful, wealthy litigant and the under resourced litigant. It is too uncertain: the difficulty of forecasting what litigation will cost and how long it will last induces the fear of the unknown; and it is incomprehensible to many litigants. Above all it is too fragmented in the way it is organised since there is no one with clear overall responsibility for the administration of civil justice; and too adversarial as cases are run by the parties, not by the courts and the rules of court, all too often, are ignored by the parties and not enforced by the court.

These principles and problems are universal. Costs of litigation, for instance, are lacking proportionality. In this second reading speech the Attorney cited two cases where costs to the litigant and also to the public—the taxpayers who fund the court system—were disproportionate, to say the least.

The costliest of those cases, known as the C7 case, was the subject of a presentation by Justice Sackville to the New Zealand Bar Association International Conference held in Sydney in August last year. In that speech, Justice Sackville, a strong advocate for proportionality, commented on the expenditure of in excess of $200 million on a case where what was at stake in the proceedings was a similar amount—that is, about the same amount of money that they might have returned from the expenditure of that $200 million—saying at the time that it ‘bordered on the scandalous’. In considering this, people might like to also contemplate the fact that the sum of around $250 million was all that was spent by political parties and candidates in the 2009 federal election, where the stake—that is, government of Australia—was not inconsiderable. The C7 case, on the other hand, grew out of television rights for football games.

The excellent Bills Digest produced for this bill by the Parliamentary Library provides us with a simple and succinct overview of the provisions of the bill. Those provisions go to case management, jurisdictional appeals and judicial responsibilities. These were covered in depth by the member for Blair, who spoke a little while ago, but they are worthy of a further brief mention. Firstly, the bill amends the Federal Court of Australia Act 1976 to introduce case management and procedural reforms which will facilitate judges more actively managing cases before the courts and should bring about cultural change in the approach to resolving disputes.

Case management provisions are centrepieced by the insertion of a new provision in the Federal Court Act 1976—new subsection 37M(1), which provides ‘that the overarching purpose of civil practice and procedure provisions is to facilitate the just and legal resolution of disputes as quickly, cheaply and efficiently as possible’—the very principles about which Lord Woolf spoke. The amendments will also clarify the kinds of directions the court can make to control the progress and conduct of proceedings. Where parties or their lawyers fail to act consistently with the overarching purpose or fail to observe the court’s directions, the court will have discretion to make an order for costs against the parties or their lawyers personally. In addition, the current section dealing with costs will be amended to clarify the kinds of cost orders that can be made.

Secondly, the bill amends the Federal Court of Australia Act 1976, the Family Law Act 1975 and the Federal Magistrates Act 1999 to clarify the powers of the Chief Justices of the Federal Court and the Family Court and the Chief Federal Magistrate to ensure the effective discharge of the business of the court. The amendments identify specific powers and responsibilities to the head of each federal court to make arrangements regarding the constitution of the court in particular matters, assigning case load to judicial officers and ensuring judicial officers have appropriate access to annual health checks, short-term counselling services and judicial education. The amendments will also clarify the role of the head of court in determining where judges sit.

Thirdly, the bill amends the Federal Court of Australia Act 1976 to provide for a more streamlined and efficient appeals pathway through the Federal Court and civil proceedings. These amendments will assist the court in managing its resources by providing greater flexibility in dealing with appeals and related applications. They also remove confusion for litigants about appeals pathways from interlocutory decisions and confirm the courts’ powers to manage appeals appropriately and efficiently. These are sensible reforms that will align our courts with the eight principles outlined by Lord Woolf in his report on access to justice in the United Kingdom and help counter in our system the seven defects he also identified.

In concluding my comments today, I want to repeat the words of former Prime Minister Paul Keating, who, in launching the justice statement in 1995, said: ‘If we can create a justice system which is simpler, cheaper and more accessible, we will extend our democracy and strengthen belief in it. We will increase our respect for our laws and the ideas and principles on which they are based.’

Given the commonality of Labor’s 1995 justice statement and Lord Woolf’s report on access to justice, one can only speculate as to the reasons the Howard government may have had for not moving forward on this and making Australians wait 13 years for these sensible changes. The member for Fisher, in his contribution a moment ago, recognised the problems that exist that this bill is designed to overcome. They existed in 1995 when the justice statement was made. They existed in 1996 when the Howard government came to power. It is a tragedy that we have had to wait until 2009 for these to be remedied.

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