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Legislative Assembly for the ACT: 2003 Week 8 Hansard (21 August) . . Page.. 3059 ..

MS DUNDAS (continuing):

The common law is never fully comprehensive, and these test cases give judges and the community the opportunity to fully explore our law and to fill existing gaps, so that responsibility for injury is laid to rest on the right shoulders. The right of access to justice is fundamental. Justice is expensive, as is democracy. Neither should be abolished on the grounds of cost.

If we ask people to have faith in the law then they should be able to question and test that law; it is one of the fundamental rights that we have in this country. I am moving that these clauses be opposed so that ACT residents retain this fundamental right. I hope the Assembly sees merit in this call.

There have been recent reports in the media about cases that do not have a reasonable prospect of success being pursued by unscrupulous lawyers in an attempt to raise funds from their clients. Yes, this is a bad situation, but it does not mean that we should cut the provision completely out of our legal system when it has provided so many good outcomes for the people of Australia and of the ACT.

If we remove the right to challenge the law, to reassess the law or to test the law, then we are asking the people of the ACT to blindly give up the rights they currently have in relation to our legal system. I find that unconscionable and hence will be opposing these clauses.

MR STEFANIAK (4.58): We are not opposing this clause. About 12 months ago, we had a similar sort of argument, and we backed whichever of the crossbenchers was seeking to remove it then. Having looked at this clause and talked to a number of people about it, I think it clearly does make provision for a court, if it actually thinks there is some merit in it, to push a case forward.

That could become another Donoghue v Stevenson, or perhaps another Mabo-not that we are likely to get that in the ACT. In the case of Mabo I would have thought that Eddie Mabo and co had lived there for 300 or 400 years. Another old legal adage, possession is nine-tenths of the law, was probably equally as important as terra nullius. But you do need to run earth-shattering test cases like Donoghue v Stevenson, and there is provision here for a court to give that-

At 5.00 pm, in accordance with standing order 34, the debate was interrupted. The motion for the adjournment of the Assembly having been put and negatived, the debate was resumed.

MR STEFANIAK: We are certainly prepared to go with the government on this one. As I said earlier in relation to one of the other matters where some quite legitimate concerns were raised by the Law Society, we will be looking at the clause pretty closely to see how it operates. There is a safeguard in there to ensure that some new provision, which would need to be run through the courts, to see if new law should be established is still capable of being done with this legislation.

MS TUCKER (5.00): We are opposing this clause as well. I am not aware of any cases in the ACT where this provision would have resulted in a significant saving for the court, plaintiff or defendant and which could not have been handled easily by the court or the

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