Wednesday, 19 February 2020

Justice Legislation Miscellaneous Amendments Bill 2019

Second reading

Debate resumed on motion of Ms HENNESSY:

That this bill be now read a second time.

and Mr SOUTHWICK’s amendment:

That all the words after ‘That’ be omitted and replaced with the words ‘this bill be withdrawn and redrafted to:

(1) take into account further consultation about the benefits of removing the group costs orders and contingency fees provisions proposed for the Supreme Court Act 1986; and

(2) retain the remaining provisions of the bill.’

Mr EDBROOKE (Frankston) (10:41): I was just thinking of where we left off yesterday evening. Let me fill you in. I think I was saying that the reasoned amendment was proof that watching seasons one and two of Better Call Saul does not make you an expert in law. Being able to stand up in this house with a lazy piece of paper, with a reasoned amendment, speaking without any foundation of evidence, is ridiculous, and it flies in the face of the Victorian Law Reform Commission, the Australian Law Reform Commission, the Productivity Commission and also the Supreme Court. And I think members would agree: for these people, law is their expertise and they are probably more informed and they have each got an exceptional intellect in the field of law—more so than those opposite.

In fact the Victorian Law Reform Commission found that class actions are under-utilised because plaintiffs fear that they will face the burden of legal costs if the matter is unsuccessful and that this acts as a deterrent to ordinary people, possibly affected by silicosis, possibly affected by wage theft, bringing cases against large corporations.

The Consumer Action Law Centre, also in direct contrast to the opposition’s reasoned amendment, said that:

Too often class actions do not proceed because the economics don’t stack up for litigation funders …

That is a statement by consumer action chief executive Gerard Brody. Again he goes on to say:

We see so much misconduct affecting vulnerable people by businesses such as payday lenders, debt management firms and even energy companies and telcos. Too often, significant harm goes unremedied.

So the question, I guess, remains: why do the opposition oppose legislation to assist people who are currently missing out on the justice they deserve? I do not think you have to travel far, maybe even using Occam’s razor: if it quacks like a duck, it is a duck. We can work this one out.

We have heard the argument against it being the honey-pot effect. Well, the evidence suggests that that is false. There are only five claims lodged with the Supreme Court every year, so it is not going to be a honey-pot effect.

It is said that it might stifle entrepreneurial initiatives and that plaintiff lawyers and litigators are the only winners. Well, I think from what I heard yesterday the argument might be in the favour of shareholders and ASX claims, and that is not representative of the larger class action regime. In fact of the largest five class actions ever awarded in Australia, none were shareholder claims. They were claims from issues like the Black Saturday bushfires, defective medical products and, more recently, wages stolen from Indigenous workers in Queensland dating back more than 80 years. That is a really interesting one to pick up on because in that case 10 000 people won $90 million of compensation for wages lost, and they would not have been able to run this case and achieve justice without a common fund order or a contingency fee system. So that is why it is so important.

I guess from my perspective I wonder if those opposite do not actually understand how class actions are run in Australia, because they are comparing them to the States, and we had the fearmongering yesterday that we might be turning into the United States. The reality is that class actions play an important role in providing justice to victims and compensating injured victims—those who have been ripped off by big banks, by corporations even. It might be a coincidence, but it does occur to me that those are the largest donors to the Liberal Party.

Class actions deliver life-changing results and outcomes for people who have been wronged, and wage theft is a great example of this. Wage theft is a widespread issue. It is an epidemic. But it is not too complex a problem, despite the excuses that are made, whether it is the chef that can manage to pay his bills, can manage to buy sports cars and can manage to have a real estate portfolio but somehow cannot pay his workers the legal rate. It is not that hard. Google the wage agreement, google the legal conditions those workers are entitled to, input that into your PAYG or your pay program, and the outcome will be good. These people are not stupid. They are notoriously manipulative and they are dishonest, and it is the action that we are taking today that means their victims will get justice.

Can I just say too that the actions of Victorian Trades Hall in getting especially young workers, the Young Workers Vic group, their entitlements has been amazing. But we see excuse after excuse as if ignorance is an excuse or as if an apology is absolution from this, and it is not. What we are putting through this house, this legislation, enables groups of workers who might only be six in number to actually take action. You only have to go into some bars or some cafes to hear stories from the people that work there about how they are being underpaid, how they do not feel empowered to be able to take action and how they have left jobs because the option given to them by the employer was, ‘Well, if you don’t like it—it might be illegal—but you can quit’. It was not long ago that I chatted to some staff in a cafe, and I wrote myself a mental list of places in this suburb not to actually visit because of the stories coming out about them and multiple stories coming out about wage theft. The worst part about it is these employers are actually taking advantage of people that are vulnerable, people that might be young, people that might have diverse backgrounds, and these employees are victimised, threatened with shifts being cut or just sacked because they want their legal entitlements. They feel no sense of empowerment, and it is my hope that this legislation will empower people to seek justice.

So arguments against this legislation need to be seen for what they are, especially regarding contingency fees. It is part of a campaign to bring funders, plaintiff lawyers and the legal system to heel by those who are holding concerns that the odds are not stacked enough in their favour. We might hear some more from the opposition today, but I think they would be wise to keep those words in mind. What this legislation does is it provides justice for those wronged where justice was previously not available and not a viable option for people who desperately need it. We are changing that. The fearmongering from those opposite is palpable on their benches. We know this is a great piece of legislation. We know that it is needed because people are being taken advantage of and they do not feel empowered to be able to take action. It is an epidemic on so many levels. I commend this bill to the house strongly. I ask those opposite to have a good think about people in their community who might be positively affected by this bill when they— (Time expired)

Mr D O’BRIEN (Gippsland South) (10:49): I am pleased to also rise on the Justice Legislation Miscellaneous Amendments Bill 2019. I feel like I have said that probably a dozen times in my five years in this place, just changing the end year, because we are regularly changing justice legislation with miscellaneous amendments. This one is a bit more significant than some of the ones that we do. I would like to pick up, as he leaves the chamber—oh no, as the member for Frankston comes across to our side—some of the comments he made.

Firstly, on a procedural matter, I am amused that yesterday the member for Essendon was telling us in respect to the government business program that if we had an amendment, we should move a reasoned amendment and that way we would have the opportunity to debate it and vote on it on Thursday when the guillotine comes along. It is unfortunate for the member for Frankston that I was here for both that contribution and his contribution, because he is telling us that we should not be moving a reasoned amendment. I am not quite sure what the advice from those opposite on the government benches is other than to say, ‘Just do whatever we want you to do’, which seems to be the tenor of the contribution of the member for Frankston on this particular piece of legislation. ‘Trust us’ seems to be the argument—that this bill with respect to contingency fees will be good and will make it better for all Victorians.

I think the member for Caulfield has quite eloquently placed on the record our concerns with respect to this piece of legislation, because the evidence that has been presented to us in consultation on this piece of legislation is that the views of the legal fraternity are indeed very mixed. Not surprisingly those plaintiff law firms are of course in favour of this legislation because, as the member for Caulfield outlined, they stand to benefit considerably from it, and that is a concern to us. I think it is important that we place on the record the very strong support of some of those law firms for the Labor government and for the Labor Party here in Victoria and indeed nationally, particularly Slater and Gordon and Maurice Blackburn. As the member for Caulfield pointed out, Maurice Blackburn contributed over $500 000 to the ALP last year and $122 000 of that went to the Victorian branch. I might say I am not one for linking these things and saying straight out there is causality. There are sometimes people who say, ‘You do this as a government or as a political party because you got money from someone’. Well, actually, sometimes you are doing something or you believe something and as a result people will support you, and I acknowledge that as a truism. I think it is sometimes interpreted wrongly that we are influenced by money rather than it being the other way around and that money comes to political parties as a result of the positions we take. But I do think on this particular occasion it is difficult to sustain the argument that the government has been putting with respect to this legislation—that it is supposedly bringing greater justice for all Victorians.

We are moving to be the only state that has this situation, and it is a concern given the High Court’s ruling and the position of the other states. As I understand, Victoria has never raised this particular issue at the Council of Australian Governments, where the nation’s chief law officers have been meeting. This is something that Victoria has taken upon itself to go along on its own. As the member for Caulfield mentioned, there was an article just last week by Chris Merritt on the states’ split on fees for class actions, and it actually mentioned the honey-pot effect with respect to, as I said, the COAG element of it. It says:

This has raised concerns about forum shopping and the possibility that the big plaintiff law firms will choose to launch national class actions in Victoria.

Well, that is the honey-pot effect. We can argue about it, but the member for Frankston said, ‘That is just not going to happen’. There is already concern being raised in the public domain about exactly that. I put to the house that that is exactly what will happen.

I just also want to take up another issue that the member for Frankston raised. I do not think it is directly related to the bill, but he talked about the issue of the underpayment of workers. I find, frankly, some of the commentary that he made there a little bit inflammatory when it comes to employers. I would say to those opposite, ‘Perhaps have a look in your own backyard’. We have had scandals in the past 12 months involving the alleged underpayment of workers at the National Gallery of Victoria, and only today we have a headline—now this is not underpayment, I grant you that, as yet—about delay over bushfire pay. Noel Towell, state political editor for the Age, wrote:

Hundreds of public servants, including forest firefighters, will have to wait for months to be paid the money they are owed for … extra efforts battling this summer’s bushfire crisis.

I am sure the member for Frankston, as a former firefighter, will also be very upset about this, and I am sure he is making representations to the Treasurer, to the Minister for Energy, Environment and Climate Change and to the Minister for Police and Emergency Services with respect to this, because this is just extraordinary. The member for Frankston made the comment that, ‘It is not too complex. It isn’t that hard to get pay right’. How is it then that the entire public service of the Victorian government with its $70 billion-odd state budget does not have the capacity to actually pay its workers properly and on time? That is just extraordinary. Given the bushfire crisis that we have been through over summer and the work that our CFA volunteers, our police, our emergency services staff, our SES and many, many, many people in the community have done, and particularly the efforts of Parks Victoria and Forest Fire Management Victoria staff—not to mention all those that have been involved in the State Control Centre and the various other management areas that have been so critical to this fire—they have put in so much work and yet they are going to be waiting months for their additional entitlements. The article by Noel Towell this morning goes on to say:

… some allowances owed for the 2018–2019 fire season were not paid until May …

So this is not new. This is not a big surprise. This is not a situation where the government has just put on these staff. They have been around for a long time. Their entitlements, their pay rates and their overtime et cetera are known—although I know there was a dispute over that a couple of years ago, but I believe that enterprise bargaining agreement got sorted out—and yet we have the government and its bureaucracy, despite the fact that the bureaucracy has grown in cost by 40 per cent since this government was elected, unable to pay its staff properly. I think when the member for Frankston raises his concerns about access to class actions for those who were underpaid, perhaps the government should be looking at its own backyard first.

Very briefly—and I will wind up—the bill has some other areas that we do not have a problem with. We are fixing up an administrative error, I guess you would call it, with respect to municipal electoral tribunals, and the opposition has no problem with that. There are a number of other amendments to the Criminal Procedure Act 2009 as well.

As I said, I think it is only fair and reasonable that the government takes heed of the reasoned amendment moved by the member for Caulfield that we take into account further consultation about the benefits of removing the group costs orders and contingency fees provisions proposed for the Supreme Court Act 1986 and retain the remaining provisions of the bill, which as I said, the opposition has no problem with.

Ms HUTCHINS (Sydenham) (10:57): I rise to speak on the Justice Legislation Miscellaneous Amendments Bill 2019. Silicosis, wage theft, consumer harm, exposure to asbestos—these are all issues that can arise from corporate wrongdoing, and this bill will allow for further delivery of access to justice for so many Victorians by making it easier to bring class actions about. Often the very people who are facing these issues do not have the money to pursue a legal case. They are not necessarily wealthy people who are able to front legal costs or take the risks involved in being a plaintiff to a class action, such as what is covered in these amendments. Not only is the government working to seek justice for these wrongdoings through this very legislation, we are taking the action required to ensure things like this do not happen in the first place. It is called prevention.

In relation to silicosis the government has acted decisively by banning the dry cutting of engineered stone to protect workers from deadly silica dust. New regulations will dramatically cut workers’ exposure to crystallised silica and reduce the likelihood of developing silicosis—a huge step in workplace health and safety. In addition the government has developed a silica action plan to stamp out this debilitating disease. The plan includes free health screening for Victoria’s 1400 stonemasons and a compliance blitz of high-risk workplaces.

This legislation also covers those who may be pursuing a wage theft claim. The government has also committed to passing laws to criminalise wage theft, which is all too common in industries like hospitality. Just this morning on 774 ABC radio there was a lengthy discussion about wage theft and underpayment. Whilst some employers claim the system of industrial relations is currently too complex, it was pointed out by many callers and many of those texting in that actually there are very rarely cases of overpayment.

Business interrupted under sessional orders.