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Legislative Assembly for the ACT: 2003 Week 8 Hansard (21 August) . . Page.. 3060 ..
MS TUCKER (continuing):
Law Society. It exists in this bill simply because the insurance companies chose to insist. It is not based on evidence, good law or even significant cost pressures.
After the debate last year, when the Liberal Party, to its credit, joined with me and the crossbench to block this provision, there was much exasperation in the government camp. It was discovered that we had done the dirty on the big insurance companies, who had understood we would mirror provisions in the New South Wales legislation. It was as simple as that.
The Law Society has taken a pragmatic view and, while very articulate in its contempt of this proposition, has recommended some minor changes to make the scheme more workable if the Liberal Party-as I understand it will-goes with Labor on this. I will move those amendments to give effect to those recommendations.
One can sometimes get too easily on the high horse of principle, but this is one situation where the principles have real impact on how our justice system works. In the debate last year, I quoted Tamar Hopkins from the Welfare Rights and Legal Centre and Peter Gordon from Slater and Gordon. I will remind you of what they said. After consulting with others in her field, Tamar offered these comments:
We believe that this development will have a major impact on the capacity of individuals to bring negligence actions. There are few lawyers who will take the personal risk that a decision maker will determine a case with small chances of success is a public interest case. Public interest cases are often test cases, which by their very nature intend to push the law in directions not fully explored. They are thus inherently risky.
Cases such as these include: stolen generations cases, asbestos, silicon breast implants, tobacco companies, McDonalds, Bropho etc. The risk in all of these cases and others is that the decision maker might not recognise their public interest value. The case may be ahead of its time. Would for example the snail in the ginger beer bottle case that is widely credited for creating the duty of care doctrine have in its time, passed the "reasonable prospects of success"?
We do not believe that leaving the risk of personal loss to the solicitor open until the Court decides the case is a public interest case will allow public interest cases to be brought. The risks are too great that the court will not recognise the value of the case.
Given the limited legal avenues available to the public, the legislature must be very careful not to block the creative expansion of the common law.
The other concern to us is that before a person can put in a communication (complaint) to the International Human Rights Committee, under the optional protocol of the International Covenant of Civil and Political Rights, they must exhaust all domestic remedies. In some cases this may require appealing a matter all the way to the High Court. Government breach of its duty of care is an obvious avenue to begin these appeals. The possibility of success in these cases is by their very nature, risky. We doubt lawyers, risking personal loss, could take the chance, despite the importance and compelling nature of the case they are advising on.
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