Legislative Assembly for the ACT: 2003 Week 8 Hansard (19 August) . . Page.. 2868 ..
MS DUNDAS (continuing):
The Democrats at essence oppose the private practise of medicine, believing that an essential service like health care should be delivered by the public sector. Medical services in the public sector are not threatened by this insurance crisis. This is largely about protecting the private practise of medicine.
Coming from this position, we are only willing to support a curtailment of the rights of plaintiffs if there is a compelling public interest. In my view, no such compelling interests have been advanced by the government that are sufficient to justify the draconian provisions of the bill before us today. There are some provisions of the bill that I do support, such as the new power for a court to order mediation between the parties. But, on balance, I will oppose most of the clauses of this bill.
I will be moving amendments to the bill in an attempt to reduce the impact it will have on plaintiffs. I will speak in greater detail about those amendments when I get to them, but I would like to point out that lots of amendments are floating around to the Civil Law (Wrongs) Bill and I think that that indicates that there are lots of concerns in the Assembly and throughout the community about how tort law reform is being dealt with in this Assembly. I hope we will find a reasonable solution for dealing with the extensive number of amendments that we have before us so that we do not end up with hodgepodge law that does not make sense in certain respects.
One part of the bill that I am particularly unhappy with is the provision being added relating to the reasonable prospect of success of cases. I understand that it is being added to avoid tying up court resources and the times and resources of defendants where there is not necessarily a strong case. I do understand that argument. But the Democrats believe that the right of access to justice should be put before this question of cost. A number of cases that are fundamental to the development of Australian law did not have a reasonable prospect of success at the time they were taken through the courts. I will go into more detail on those when we get to the amendment stage.
The common law is never fully comprehensive and test cases give judges the opportunity to fill existing gaps in the law, so that responsibility for injury is laid to rest on the right shoulders. As I said, the right of access to justice is fundamental. Justice is expensive, as is democracy, but neither should be abolished on the grounds of cost. If we ask people to have faith in the law, they should be able to question and test the law. I will be moving amendments so that residents of the ACT retain this fundamental right.
One of the other major problems I have with the legislation before us relates to limitation periods. The AMA has pushed quite hard for making it so that a child who is injured because of negligence cannot put forward a case after six or 12 years, depending on the instance. I find it quite abhorrent that we are limiting a child's rights to access legal recourse for an injury that they received due to negligence.
If this part of the bill goes through, it will mean that when those children become adults they will not have the same rights as other adults to take a case through the courts about what has had an incredibly determining factor on their life. I do not think that it is right to limit children's rights in this way, so I will be opposing those clauses of the legislation when we get to them.