Legislative Assembly for the ACT: 2002 Week 11 Hansard (24 September) . . Page.. 3175 ..
MR STEFANIAK (continuing):
important that we monitor this legislation to see what effect it has. I suspect it may not have a significant effect.
The law has moved on since these rather quaint offences were first introduced. They are common law offences. They go back to the law of England. As was pointed out by the Chief Minister in his presentation speech, these old doctrines have slowly waned in relevance in the face of renewed interest in access to justice. As he pointed out, the process was well advanced in the 19th century, when the Privy Council commented on these matters.
These doctrines have been replaced because of concerns about ensuring access to justice. The minister quoted the Federal Court in 1997 when it summed up the development of the law over the past century. Our courts in the ACT have designed appropriate rules to deal with these issues. New rules of conduct were set out by the Full Court of the ACT Supreme Court in 1996.
These offences have been abolished in many Australian and overseas jurisdictions. New South Wales abolished them in 1995. That is a pretty telling comment.
I thank the Chief Minister for the briefing I had and John Malouf for his quite witty email to me on the abhorrent and abominable offence of barratry. The opposition will be supporting the bill, although I sound a note of caution on the offence of common barrator. Whilst it has been abolished in New South Wales, it has been kept in Queensland. Whilst these old doctrines have waned in recent times, we will be keeping an eye on whether the current laws and the current practices of the court are sufficient.
MR HUMPHRIES (Leader of the Opposition) (3.41): As Mr Stefaniak has indicated, this bill ensures that the law of the territory reflects contemporary practice. It has already been made clear that the doctrines of maintenance, champerty and barratry, while relevant for many centuries, do not have relevance in the ACT at the present time. That point has been well made.
What is appropriate here needs to be reconsidered comprehensively. As part of that exercise, it is important and appropriate that we abolish common law concepts which have a particular set of definitions around them and particular common law-probably common law which is very old but nonetheless common law-applications and interpretations which would bear little relationship to the needs of the ACT, given that much of that common law would have been formulated a long time ago.
It is worth putting on the record, as Mr Stefaniak has done, that it may be a mistake to completely vacate the law or send a signal that we intend to completely vacate the field with respect to these offences. The offence of maintenance is about supporting somebody else's action. The common law barrier of champerty was about not allowing people to profit from somebody else's litigation.
It is still quite possible, even in this day and age, perhaps especially in this day and age, for litigation to be used as a powerful weapon or tool against other people and, moreover, for litigation to be used in a way which could be designed to do great damage to a defendant in these circumstances.