Wednesday, 19 February 2020

Bills

Justice Legislation Miscellaneous Amendments Bill 2019

Second reading

Debate resumed.

Ms HUTCHINS (Sydenham) (12:02): The existing law regime has failed to prevent the exploitation of Victorian workers by unscrupulous employers; this is in regard to how wage theft, under this amendment of the Justice Legislation Miscellaneous Amendments Bill 2019, may be pursued through a class action. We know that class actions are an important tool in our justice system, as they allow a case with six or more plaintiffs to combine their action. Class actions assist people who have had barriers to accessing the courts in getting awarded the damages that they deserve.

For Victorians class action laws are under-utilised, to say the least. This is what the Victorian Law Reform Commission found in its 2018 report Access to Justice: Litigation Funding and Group Proceedings. In an average year only five class actions are filed in the Supreme Court. By introducing this bill, we are giving effect to the law reform commission’s recommendation 8 of that report. It can be hard to find a person to act as the lead plaintiff or be a representative plaintiff on behalf of a group of claimants. Plaintiffs fear that they will face the burden of legal costs if the matter is unsuccessful because they might be personally liable for meeting the costs of the other side. This acts as a major deterrent to ordinary people bringing cases against big corporations, and our laws can be improved so that more Victorians gain access to justice. We see some law firms implementing no win, no fee policies, which can alleviate some of the financial burden, stress and anxiety, but not all law firms implement these policies, which is a huge barrier to people who cannot afford to bring forward a class action.

So to the details of the legislation: this is the first time in Australia that this type of reform has been introduced. The government is serious about delivering access to justice and does not shy away from reforms that will achieve that. The bill will amend the Supreme Court Act 1986 to introduce new group costs, which will allow lawyers to receive a fee as a percentage of the settlement of damages. The burden of cost risk is shifted from the plaintiffs to the plaintiff lawyers. This arrangement will be relatively simple for class members to understand and subject to strict supervision by the Supreme Court. The bill will allow the court to vary an order, including the percentage amount for legal costs, at any time during proceedings, which will further protect class members from unfairness. These aspects of the bill improve transparency for clients and provide important safeguards. It is really about fair access. These measures ensure plaintiffs are protected and not taken advantage of during the legal process, particularly in regard to costs.

There has been a lot of support for these amendments. Workers, community members and lawyers are strongly behind this legislation. The Consumer Action Law Centre’s chief executive officer, Gerard Brody, noted that, and I quote:

Too often class actions do not proceed because the economics don’t stack up for litigation funders … And regulators and other dispute forums, while important aspects of an effective justice system, can’t respond to all misconduct.

The changes in this bill should mean that more class actions are able to proceed. 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.

Several other independent institutes, such as the Victorian Law Reform Commission, the Australian Law Reform Commission and the Productivity Commission, have all recently recommended that the ban on contingency fees either be lifted completely or eliminated for class actions. The bill will allow the court to vary the orders, as I have said, and it will also make it easier for people to get access to class actions and for the legal system more broadly to become more accessible.

Any good government does its job by making sure that everyday Victorians have access to justice, and that is exactly what the Andrews government is doing with these amendments. It is not our job to determine the outcomes of proceedings but to allow people to get to court, to be able to table and negotiate, to be able to put forward their concerns, to be able to put forward the misdemeanours that have occurred to them, whether it be in their workplace, as consumers or in the general public. This is exactly what this legislation does. This legislation is about creating better access to justice for all Victorians who otherwise possibly would not get the chance. We know, as the figures show, that there have only been around five class actions filed in the Supreme Court every year over the last few years, and whilst some opposite might claim that this is about creating a honey-pot effect, most class actions are filed in the Federal Court, a point that those opposite do not seem to grasp. The Victorian Law Reform Commission has said that our class action system is under-utilised and can be used to assist people with claims that are currently not run.

This is a really important step forward in the justice system to make sure that the average Victorian can access their rights under law by being supported and protected from the most significant costs, that are often a burden against them making a claim. If businesses are doing the wrong thing and causing harms, whether it is causing silicosis, whether it is wage theft—as I alluded to when I first started speaking before the break—or whether it is dodgy medical advice related to an illness, then Victorians should have access to the court system to pursue those wrongs. This legislation will reduce one significant barrier in making sure these people can gain justice. I recommend the amendments to the house.

Mr TAK (Clarinda) (12:09): I am delighted to rise today to speak on the Justice Legislation Miscellaneous Amendments Bill 2019. This is a fantastic bill, a bill that is all about delivering access to justice for ordinary Victorians by making it easier to bring class actions for issues such as silicosis and wage theft. As I mentioned in my first speech last year in this place, many years ago I used to work as a farm worker and later on as a suburban legal practitioner, so I have also witnessed the abuse of workers’ visas and poor working conditions in the agricultural sector. It was just this month that some horrible reports emerged from a farm in northern Tasmania where around 70 people were found living in a five-bedroom property—just imagine that. I know that many of my constituents, especially some of those from culturally and linguistically diverse backgrounds, are still suffering from this kind of exploitation. The United Workers Union has done a tremendous job of organising many of the farm workers that travel each day from my electorate to the outer suburbs for work. I know that labour hire licensing laws are already having a real impact and supporting workers in my electorate to exercise their rights. But there is more to be done. I am so happy to see this bill here today and I am happy to see these amendments, which will help to support workers and consumers in class action lawsuits.

It was back in 2018 that the Victorian Law Reform Commission released its report, Access to Justice: Litigation Funding and Group Proceedings. In that report the commission found that class actions have been an effective means of providing access to justice, but they are under-utilised. It was identified in the report that on average only five proceedings are filed each year, as we have already heard from the previous speaker. One of the reasons for this is cost. In particular, it can be hard to find a person to act as the lead or representative plaintiff on behalf of a group of claimants. This is often because plaintiffs fear that they will face the burden of legal costs if the matter is unsuccessful and that they might be made personally liable for meeting the costs of the other side. As you can imagine, this acts as a major deterrent to ordinary people bringing cases against big corporations, and our laws can be improved so that many more Victorians gain access to justice.

This amendment will make it easier to bring class actions by permitting lawyers to be able to charge a percentage of the settlement fee for any class action. Currently legal firms are not able to do so, which makes running class actions in relation to issues such as silicosis and wage theft more difficult. Unfortunately silicosis is also a serious issue in my electorate. I recently met with the honourable member for Sydenham and Parliamentary Secretary for Workplace Safety to discuss the risks that the disease is posing to many workers in the Clarinda electorate. I am looking forward to conducting some site visits later this month with the honourable member and the WorkSafe silica field team. We will continue to raise awareness of the government’s comprehensive action plan for silicosis, which includes a statewide ban on uncontrolled dry cutting of materials that contain crystalline silica dust, free health screening for Victoria’s 1400 stonemasons and a tough new compliance code for businesses working with silica. This bill is another example of the Andrews Labor government supporting at-risk workers and affected workers. This legislation will make the required changes to the Supreme Court Act 1986 that will allow lawyers to make the appropriate charges and to make class actions more accessible for the people who need them most.

So how will these new group costs orders operate in practice? A representative plaintiff in a class action may apply to the Supreme Court for a group costs order. Under such an order the plaintiff lawyers receive a percentage of any amount recovered as payment for their costs in return for indemnifying the representative plaintiff for any adverse costs orders and providing security for costs if ordered. The court may vary the order, including the percentage amount set by the court, at any stage in the proceedings, which provides extra protection for the representative plaintiff and group members against potential unfairness.

Several important, independent institutions have expressed their support for these changes. These include the Victorian Law Reform Commission, the Australian Law Reform Commission, the Productivity Commission, the Australian Lawyers Alliance and the Consumer Action Law Centre, all of which have made statements in support of this bill, which is very, very positive.

This is a comprehensive bill, and one that I am proud to speak on today. I am also extremely proud to be part of a government that supports the working people of Victoria. This bill is another example of the Andrews Labor government supporting Victorian workers and access to justice. We have seen it with workplace manslaughter, with labour hire licensing, with the ban on the dry cutting of engineered stone and with the silica action plan. We have seen the government’s commitment to criminalising wage theft, because employers who underpay their workers need to be held accountable. These reforms and these amendments are important reforms in areas affecting everyday Victorians. Changes to our class action laws can go a long way to improving access to justice for everyday Victorians. I commend the bill to the house.

Mr FOWLES (Burwood) (12:16): It is my pleasure to make a contribution to the Justice Legislation Miscellaneous Amendments Bill 2019. In thinking about the principles that underpin the most substantive part of this bill, which is around class actions and the charging of contingency fees, I am reminded of how important it is that all Victorians and all Australians have fair access to justice. It is not enough in our system of government and justice that justice be done and that justice is seen to be done, but it is very, very important that people actually have access to the mechanisms by which to attain justice.

The member for Gippsland South has made a few interesting comments about this bill, but the one that stuck most in my craw, I guess, was that the views in the legal fraternity about this bill are mixed. Well, of course they are mixed, because defendants who have done the wrong thing are now more likely to be brought to justice. That is the very purpose of the bill. Typically in these circumstances—class action circumstances—the defendants are large. They are large because their actions have affected a great number of people. That is why it is in fact a class action that is being brought. So by definition they are big, by definition their actions have affected many and by definition they are well resourced and able, therefore, to take on any individual litigant and potentially just bury them with time and costs in order to escape justice. Of course there will be those in the legal fraternity who are acting in their clients’ interests—those very large clients—who have a different view to the view of the government on this. The government unashamedly supports the bill for the very reason that it does provide access to a class of litigants who cannot currently access justice because of the numerous obstacles to that justice. Unethical corporations are not going to like this agenda—they are not going to like the bill—so of course there will be a spread of views. Having a spread of views in relation to a bill is no good reason at all, we would say, to block the introduction of an important reform that will improve access to justice.

The member for Gippsland South also used about half of his time on his feet to make a point about the payroll processing issues that the government is currently addressing in relation to the bushfires. Now, I have got no comment to make about the specifics of that other than that it is a matter that is being addressed, but to try and connect this bill to those matters is frankly drawing the longest of long bows. It really just goes to that sort of thing that drives people nuts about politicians and the endless pointscoring. It is such a spurious link to be talking about that issue in the context of litigation reform. The point is just so nakedly political, so silly, frankly, to have been made in that manner and in relation to this bill that it just makes the collective eyes of our electorate roll.

Can I say in relation to contingency fees generally that it is very important that we give firms the ability to charge contingency fees in order that they take the risk on costs. Clearly there needs to be compensation for risk. All risk in our economy needs to be priced. It is priced in via lots of different ways. It is priced in via a risk premium on building projects; it is priced in via insurance premiums. Risk is priced in a market capitalist system. It is appropriate that firms, when taking a punt on their time, are rewarded for that risk taken.

Under the current model with litigation funders the amount payable to litigation funders includes both the legal costs incurred and a funding fee, whereas under this model, with the ability to charge contingency fees, there is no funding fee per se. So time rather than cash is what is being risked, and self-evidently that is cheaper. Law firms have very high fixed cost bases. They do not have a great ability to leverage their costs up and down, because most of their workforce work full-time. In circumstances where they are contemplating taking on an action like this, they are costs that are, frankly, likely to be incurred regardless of whether they take on a particular action. For that reason that risk is a smaller risk, and therefore ultimately the cost outcome to the plaintiff will be smaller. That is a very good reform because it continues to open up the pool of potential litigants to take on firms—typically very large businesses—that have engaged in unethical conduct. I cannot for the life of me understand why members of the opposition parties would be opposed to unethical corporations being held to account—why they would be opposed to justice being done.

It is important to recognise that under this bill the Supreme Court will have oversight of the costs orders. This is not something that is going to be in the hands of plaintiff lawyers, or defendant lawyers for that matter. It is not something that is going to be in the hands of the parties. It will be in the hands of the court itself. The Supreme Court, which has also been consulted on this bill, supports it. It simply will not make a group costs order, the costs orders contemplated by this bill, unless it is in the interests of the members of that group. So the court must be satisfied—and I quote from the bill—when making a group costs order that that costs order, ‘is appropriate or necessary to ensure that justice is done in the proceeding’. It is a pretty high standard. It is a pretty high bar for the court to have to clear, and I think that is an appropriate bar for the awarding of these costs orders. It is entirely reasonable to have contingency fees whereby a portion of the settled amount can be awarded to the firm that has taken a punt on its time and ultimately its money in order to represent those litigants. There is not really the opportunity here for windfall gains, because it is the court itself that must be satisfied that a settlement is fair and that the interests of the class action members themselves—not the firms—are served. That is a very, very important point.

The other very important matter is that this bill ensures that plaintiff lawyers will be liable for adverse costs if the proceedings are unsuccessful. So it is not the members of the class—the litigants themselves—who are going to be in the gun; it is the plaintiff lawyers. That will serve as a brake on speculative litigation, which I am sure is a concern, and perhaps a valid concern, of some members in this place. It is a brake on speculative litigation because it is the plaintiff lawyers themselves who will be liable for adverse costs.

If businesses are doing the wrong thing and causing harm, they ought be held to account. Whether it is silicosis, whether it is wage theft or whether it is dodgy medical devices, Victorians should have access to a court system to pursue those businesses. This legislation does not pave the path for that per se, but it does reduce one very significant barrier to accessing that justice. Access to justice ought be a value shared by every single member in this place. It is fundamental to our system of government. It is fundamental to the rule of law in Victoria.

Can I say that this is not something that has been cooked up by the government on its own. The Victorian Law Reform Commission made recommendations in 2018 underpinning this. Similar recommendations were made by the Productivity Commission, extending all the way back to 2014, and the Australian Law Reform Commission. So these are not just organs or agencies of the Victorian government, they are agencies of the federal government as well, and these independent inquiries have heard that class actions are an effective means of providing access to justice. They are an effective means but they are under-utilised. This bill, quite validly, seeks to up the utilisation level to make sure that people can access justice on fair and reasonable terms and to change the funding mechanism for the very important role that lawyers and plaintiff lawyers, particularly in class action matters, play in order that they get appropriately remunerated for the risk they take.

The Andrews government is listening. We are pioneering these changes. It will be a game changer. We know that wage theft is an issue. It continues to run. Just yesterday Coles were found to owe perhaps $20 million in unpaid overtime, and other members of the Coles Group like Officeworks and Target may well be facing the same set of circumstances. It is these sorts of reforms that allow those workers to access the very important justice they need.

Ms KILKENNY (Carrum) (12:26): It is a great privilege to be able to rise to speak on the Justice Legislation Miscellaneous Amendments Bill 2019. I have to say, for many, this bill might look quite modest and unassuming, but it is actually a very important bill. It is groundbreaking and it will see Victoria again leading the nation in some significant reform, particularly in our judicial system. That is because this bill is about the development of access to justice in Victoria. This bill, among other things, will enable Victoria to be the first jurisdiction in Australia where plaintiff lawyers will be able to use contingency fee arrangements but use them subject to court oversight and court approval. Significantly what this reform does is remove a really significant barrier for so many ordinary Victorians who want to exercise their right to seek access and to enforce and protect their rights in a court of law. It will actually mean that there are smaller class actions that may not otherwise have received third-party funding through third-party funding litigators, but they are nevertheless legitimate, they are noteworthy, they are important claims—and those claims, with this mechanism, will now proceed.

I would like to particularly acknowledge the work of our Attorney-General in bringing this forward. I would also like to acknowledge the Victorian Law Reform Commission for their work, which culminated in the March 2018 report entitled Access to Justice: Litigation Funding and Group Proceedings. What I am speaking on today is actually acquitting recommendation 8 of that report. When we talk about access to justice, it is really starting with that premise that in fact every single Victorian has that right—the right to seek justice—and it is about making sure that we can protect and that we can enforce our rights. I think in this regard it is really important to also acknowledge that this right to seek justice is about our rule of law and it is a core feature of our modern democracy. I guess, expressed in its simplest form, the rule of law really means that the law must be applied fairly and equally to everyone—whatever our background, whatever our status. But if there are barriers in the way, particularly financial barriers, then that is meaningless. Those ordinary Victorians are not able to seek that right. They are not able to enforce and protect their rights. I think as legislators and as representatives of our communities in this place it is absolutely incumbent upon us to make sure that we do everything in our power to give ordinary Victorians that right to seek access, to access the law, when they need to do so. I think in another sort of twist it is often most important and most critical for some of the most vulnerable members in our community that they get that access, and yet they are most often the ones who are unable to exercise that right. That is why, in a sort of a longwinded way, I think that this bill is actually quite important. It goes to that core value, that core tenet, of our modern democracy: about improving access to justice and about assisting more people to access the law so that they have that capacity to enforce and protect their rights.

When we talk about this bill we are really focused on class actions, and class actions are a good thing. They are not disputes between private parties and about private rights. They actually have a greater public role. They perform a public function to address broader statutory and public policies, whether that is about wage theft, about health issues, about unscrupulous or dodgy operators in the market, about unconscionable practices. These are really important, broader social policy issues that, without class actions, may never get ventilated and may never see that justice is served. Class actions promote efficiency because they enable ordinary Victorians to aggregate their claims and to pursue legitimate and really noteworthy, important claims, as I said, by ordinary Victorians who might not otherwise be able to do so.

Promoting access to justice is a core and central tenet of class actions. This bill is about class actions and about promoting that access to justice, which is a terrific thing. The way it will do it is, as I have said, it will allow plaintiff lawyers to charge what will be known as group costs orders. This is similar to contingency fees, and it means that plaintiff law firms will be able to seek orders from the court for an agreed percentage of what amounts might be awarded to the plaintiffs, but also importantly it puts the risk burden on the plaintiff law firms and not on the individual class members for the lead plaintiff. So in the case of any adverse cost orders in the proceedings, that risk will flow to the plaintiff law firms. If the court orders security for costs to be paid, that will also fall to the plaintiff law firms. They are significant reforms in their own regard.

I think though what is really important to note here is the oversight of the Supreme Court and its role in this part of the reform. It is the Supreme Court of Victoria which will actually have full discretion and supervision over any contingency fee arrangement which is sought. This will obviously help to reduce any concern around conflicts of interest between the interests of the lawyers and their clients, and as I said it will also place the cost risk burden on the plaintiff law firms and not on to the individual class members. So these amendments quite significantly will create an exception to the current prohibition on lawyers receiving payment on the basis of an agreed percentage of a successful judgement or settlement. It is a marked change and will actually allow plaintiff law firms to do what litigation or third-party litigation funders are already doing—that is, taking a percentage of the total amount the plaintiffs cover in the proceeding.

It also needs to be pointed out that this is quite different to the arrangements that are commonly known as no win, no fee arrangements that are in place often in personal injury claims, in Transport Accident Commission matters and in public liability and medical negligence claims. In these no win, no fee situations a client is required to pay legal fees only if their case is successful, but those legal fees are not calculated as a pre-agreed percentage of the amount recovered. Instead they are worked out on often a court scale basis. I know certainly from my work in the law that that was based on 6-minute intervals, and so it can be very costly. Often we see plaintiff class action members not recovering much at all once the settlement has proceeded.

I think the main issue here is that we are focused on access to justice. What we see is the Victorian Law Reform Commission working extremely hard to promote that to Victoria. We have adopted that recommendation. I know that there is a similar issue now at the commonwealth level, with the Australian Law Reform Commission also suggesting that amendments need to be made to open up contingency fee arrangements in class actions. Again this is on the basis that this is all about access to justice for ordinary citizens who want to bring their very meritorious claims that need that public ventilation, because often what we see is that the claims are brought against big corporations or even governments, and those corporations have much, much deeper pockets than ordinary Victorians. In most cases those ordinary Victorians without the assistance of any third-party litigation funders or any other funding alternative would not be able to bring these very important claims into the public light.

This bill is a major development in access to justice. As I said it provides an alternative mechanism for funding our class actions here in Victoria. If government or businesses are doing the wrong thing, they need to be brought to account. Individual Victorians need to have the capacity to do that, and that is exactly what the reforms in this bill will provide. This is about helping ordinary Victorians to seek access to justice, and I commend this bill to the house.

Mr DIMOPOULOS (Oakleigh) (12:36): It gives me pleasure to speak on this bill. It is a very, very important bill because it is effectively, as the previous speaker and speakers on this side of the house have said, about access to justice, but it is access to justice in a significant way in terms of not just the individual but a broader public benefit. It is an access to justice initiative which effectively promotes systemic change.

In this government we have a proud history of increasing access to justice. There is, I think, a concept that some still hold that there is a court, there are laws and therefore you have access to justice because anyone can go to a court and access justice through the laws that apply to everybody equally, but we know—particularly on the Labor side—that that is not how it works. It does not work like that with education. It does not work like that with work rights. Those with more power, both economic power but also knowledge, have often greater access to justice, but even some of those people get caught up in what is a less-than-ideal outcome in a proceeding because of the legal framework in place.

We have done that, and in terms of access to justice I was really proud to speak on a bill that recently passed through the Parliament that abolishes de novo appeals from the Magistrates to the County court. For me, that had a range of benefits, but we heard through the consultation period about one of the access-to-justice benefits. Often victims of sex abuse or other victims generally would be loath to go back through the entire ‘interrogation process’—in quotation marks—the cross-examination that they endured in the committal stage in the Magistrates Court, and it would then go into the County Court as a new trial effectively. So part of the benefit of abolishing de novo appeals in those circumstances was that it does not retraumatise the victim. For me, that was a big initiative around access to justice and encouraging more victims in future to come forward because they would have hopefully a slightly easier path. It is never easy being a victim, clearly, but they are not having to be re-interrogated.

We abolished the time limitations on historical child sex abuse. Again it does not matter that the child abuse occurred 20 or 30 years ago or whether it occurred last year; people have the right to access justice in those circumstances. This government is proud to have delivered on that as well.

We have also increased a whole bunch of penalties that we found were a bit out of alignment in terms of the values we hold as a government—the offence and the penalty that was in the criminal code. I am really proud of all of these achievements. We have started to address the public drunkenness offence, which was a recommendation of the 1991 Royal Commission into Aboriginal Deaths in Custody. That was a gross denial of justice for a lot of disadvantaged people, Australia’s First People amongst them principally. We have moved on that, and we have moved on a whole range of other things—not having the protection of the confessional, and also the legal structure of churches, where because of the legal structure, it was difficult for a victim to find an entity to sue.

These are all issues of access to justice, and I am painting that picture because this fits squarely into a value system that we hold as a Labor government, which is about access to justice which is fair and reasonable, and as tautological as it sounds, accessible. That is what we are doing with this bill too. So this bill does various things, but the principal part that is relevant to the comments I have just made is that it amends the Supreme Court Act 1986 to allow the court to make an order in class actions for plaintiff lawyers to receive a percentage of the amount recovered for their costs, with all class members sharing a liability for those costs—called group costs orders. It seeks to shift the burden of costs, which is from the representative or the lead plaintiff to the plaintiff’s lawyers, and also to indemnify the lead plaintiff from potential costs.

As other speakers on this side have said: except for the opposition, this has been quite roundly applauded by relevant stakeholders. It did emanate from the Victorian Law Reform Commission report Access to Justice: Litigation Funding and Group Proceedings, but it has got broad support from a range of stakeholders from the community legal sector but also from major private law firms who accept that this is a good initiative. We expect to see, as the member for Carrum said, probably fewer people in a class action. They will more easily get off the ground because—subject to Parliament passing the bill—you will not have that onerous risk on the lead plaintiff which you want to then distribute across 50 or 100 other participants in the action. So there will be less people in a class action potentially but many more class actions. We also see, as I said, a lower risk for the lead plaintiff and the ability for the Supreme Court to make the decision based on justice matters and justice issues.

The other important element here, and it maybe goes in some way to mitigating some of the concerns expressed by the opposition, is that the court has the right under this bill to amend the percentage it allocates for the plaintiff lawyers at any stage in the proceedings—so it does not have to just set the amount and leave it there.

The principal things for me when you look at the stuff we have done—not just the things I have described in terms of statutory changes that have emanated from consultations and the lived experience of Victorians—are the things that have actually emanated from Victorians themselves. The impact of wage theft was a lived experience, and still is in fact, for many Victorians, but it was very difficult to effect a change through law because you would have to then get people along with you on a journey which is risky—principally risky for you as a lead plaintiff; high-profile cases, high-profile lawyers and therefore high-profile possibilities of high-profile costs. But there are things like that—wage theft or silicosis—which we have made a strong stand on, particularly in the last 12 months.

Those things that emanate from the average Victorians’ lived experiences but do not find their feet in a court of law because they are not able to. That is a clear case of not having access to justice because of the frightful costs that they may incur if the action is unsuccessful. Yes, of course the Parliament of Victoria exists to address those issues—so take the lived experience of Victorians and address it through legislation—but what happens with matters that are addressed to the Parliament often, 99 per cent of the time, is that the people who have suffered the first instance of that injustice do not get compensated. The law gets changed for the future, as it should, but rarely do we pass retrospective legislation. With class actions in those examples I gave, and in numerous other examples, you achieve two things: you achieve an individual justice for those who have suffered the initial injustice—so those who have been robbed of their appropriate wages, or those stonemasons that have been subject to silicosis and health impacts—but you also get a broader public change through the benefit of public awareness, the benefit of effectively such a high-profile case moving the legislature, whatever legislature it is, into some kind of action.

The ability to get class actions off the ground and a reformist government and parliamentary agenda together combine to make the important changes that are required. It cannot just be one or the other. A lot of these injustices are found in the everyday lived experiences of Victorians, and sometimes—and this is very rare for this government because I think we have been very good on this—governments are very slow to react. So in this case I think we will be far quicker—governments in general, I mean, not our government—to respond because of the fact that people will be able to get class actions up.

This is an important bill. I commend the Attorney-General. What an outstanding Attorney-General. She was an outstanding health minister and is an equally outstanding Attorney-General. I think the intellect, the passion and the commitment that she has demonstrated in putting this legislation together and in seeking justice for a whole range of other people that have not had it in the past and to ensure justice in the future for a whole bunch of Victorians will be one of many marks of her brilliant stewardship as Attorney-General. I commend the bill to the house.

The ACTING SPEAKER (Ms Blandthorn): Before calling the member for Yuroke, on behalf of the Speaker can I acknowledge in the gallery the presence of Sheikh Hazrat Ameer Abdul Qadeer Awan of Pakistan.

Ms SPENCE (Yuroke) (12:46): I am very pleased to add my contribution to the Justice Legislation Miscellaneous Amendments Bill 2019. The bill essentially covers three areas. Firstly, it amends the Supreme Court Act 1986 to introduce new group costs orders that will allow plaintiff lawyers in class actions to receive a percentage of any amount recovered for their costs with liability shared by all group members. Secondly, it amends the Local Government Act 1989 and the Magistrates’ Court Act 1989 to validate decisions made by improperly established municipal electoral tribunals and by reserve magistrates who continue sitting after their appointments have expired, and it provides affected persons with individual immunity for decisions that they made. And, thirdly, the bill makes minor and technical amendments to various provisions in justice acts to clarify and simplify their operation, including the Criminal Procedure Act 2009, the Evidence Act 2008, the Evidence (Miscellaneous Provisions) Act 1958, the Professional Standards Act 2003, the Oaths and Affirmations Act 2018 and the Sentencing Act 1991.

What I would like to focus my contribution on is the first area that this bill covers, that being the new group costs orders in class actions. Class actions, as we have heard from many speakers today, are a really important component of our legal system. They create economies of scale where six or more plaintiffs can combine their action to make it more financially viable to take a legal action—so the cost of bringing proceedings can be spread across many claimants. In doing so, access to justice is provided to a larger number of people than would otherwise be the case. If individuals were to take separate legal action, it may be unaffordable, and for other reasons it may be inaccessible.

This can be particularly important when the legal action is against a well-resourced defendant, such as large corporations or indeed governments, or when it is being taken by not so well-resourced plaintiffs, such as low-income earners. If we think about issues such as wage theft, consumer harm, silicosis and other forms of corporate wrongdoing, the benefits of class action become pretty clear.

However, there are still some issues with the system of class actions, and this bill gives effect to recommendation 8 of the Victorian Law Reform Commission’s Access to Justice: Litigation Funding and Group Proceedings report of March 2018, which, as mentioned, will allow plaintiff lawyers in class actions to receive a percentage of any amount recovered in proceedings for their costs through new group costs orders, with liability for those costs shared by all group members. When discussing what is referred to in that report as common fund orders, the commission notes that:

The class action regime in Victoria has proved to be an effective means of providing access to justice but appears to be underutilised. On average, only five proceedings have been filed each year.

It is quite interesting if you read the report to see the scope of what the class actions have been brought for. It is quite a broad report with quite interesting findings throughout it.

Currently it can be quite hard to find a person who is willing to act as the lead or the representative plaintiff in a class action on behalf of that group of claimants. There is a fear or an apprehension that they will face the burden of the legal costs if the matter is unsuccessful—that they might be made personally liable for meeting the costs of the other side. Whether that is a correct or a perceived fear, regardless, that is an apprehension, so that can be quite difficult. It seemed to be a major deterrent that needs to be addressed so that more Victorians can gain access to justice through the class action system. In some cases this is seen to be addressed through the legal practice acting on a no win, no fee basis or through the involvement of a litigation funder; however, where this is not the case the risk of personal liability has been seen to be quite a significant barrier to people participating in class actions.

As such, the Victorian Law Reform Commission did find that allowing lawyers to charge only a percentage of the settlement amount in return for indemnifying the lead plaintiff for the other side’s costs lowered the risk for a potential lead plaintiff, and that was what they referred to as a:

… measured and contained means of ensuring that the class action regime in Victoria is meeting the objectives for which it was established

It is also worth mentioning that in addition to the law reform commission, many others in the legal profession have expressed support for this bill. It has been mentioned by the opposition that there has been a range of views expressed in regard to this bill and that it has not all been support, and that is not surprising. The member for Burwood—where is Will?—mentioned in his contribution that the range of—

Mr Fowles interjected.

Ms SPENCE: Sorry, member for Burwood. He mentioned that it was completely unsurprising that there was a diverse range of views and provided a very good explanation why there would be a diverse range of views—because this bill may in fact empower the defendants and that might not be to the joy of large corporations, who may find more class actions being brought against them. However, I do digress.

There have been a number of quite eminent people within the legal profession who have made statements of support. I will just mention a couple. Former Law Institute of Victoria president Stuart Webb stated that:

Enabling the Supreme Court to make group costs orders in class actions will mean that plaintiffs will bear a lower costs risk burden, and may facilitate the bringing of meritorious class actions which might not otherwise have been brought in the face of higher costs risks …

Again, this goes to increasing access to justice, which is incredibly important. The Consumer Action Law Centre backs the bill and has stated that it:

… will reduce barriers to class actions by allowing lawyers to receive a ‘contingency fee’, a fee that is calculated as a percentage of the settlement of damages.

The Victorian president of the Australian Lawyers Alliance, Jeremy King, has stated that the alliance:

… welcomes this legislation as it is will directly improve access to justice in Victoria … The new law will increase the flexibility and availability of funding which will enable more people to obtain justice through class actions.

Mr King also stated in an Age article by Tammy Mills on 2 February 2020 that:

It will clearly benefit vulnerable and disadvantaged individuals who may otherwise be unable to pursue a claim because of the cost …

As someone who worked as a volunteer solicitor in a community legal centre, I am and I have always been particularly interested in improving access to justice for those who face barriers in accessing the legal system. Those barriers can be financial or they can be circumstantial. If you are facing health issues, for instance, you might not be able to access the legal system. They can be cultural, where you might have a language barrier. A lack of understanding of the legal system can in itself be a barrier to accessing and pursuing the enforcement of legal rights, and class actions are one way of removing those barriers. Where there are multiple claims with the same or similar circumstances, bringing together multiple claimants can spread understanding. Simply having a number of people sharing a circumstance can spread the understanding of legal matters. Like most things, when you bring together a group of people it is a great leveller—the increase in understanding and sharing that cost burden. This bill facilitates a greater use of class action through the use of these new group costs orders. It will allow plaintiff lawyers in class actions to receive a percentage of any amounts recovered for their costs, with the liability shared by all group members.

I thank the Attorney-General for once again bringing forward legislation that improves access to justice for those who might otherwise be denied that access, and I commend the bill to the house.

The SPEAKER: Before calling the good member for Bayswater I wanted to acknowledge in the gallery the presence of the Chinese Consul General to Victoria, Mr Long Zhou, and of course other representatives from his office as well. Welcome to the Parliament.

The Consul General has been invited today to the Parliament so that we can extend to him, and through to the Chinese people, our sympathy and best wishes in the face of the novel coronavirus outbreak. Our thoughts are with the people affected by this and with the health professionals that are dealing with the virus’s impact and trying to minimise that impact. We also stand with our local Chinese Victorian community, who are faced with a range of uncertainties through no fault of their own. Mr Consul General, we hope that you can take our message of support back to the Chinese people and also to the local Chinese community at this difficult time.

Mr TAYLOR (Bayswater) (12:57): Of course I too extend my well wishes to the Chinese community, of which the Bayswater electorate has significant amounts in the suburbs in particular of Bayswater and Wantirna, and thank the Consul General for his presence in this place today.

Of course this is a significant piece of legislation, with some minor amendments made but no doubt a piece of legislation that will have a raft of positive changes for our legal community and for everyday workers and for Victorians. Can I just at the outset acknowledge the contributions of other members in this place today, in particular the contribution from the member for Yuroke just previously—a fantastic contribution that acknowledged the benefit and the positive outcomes that this will have for workers who do suffer at the hands of dodgy bosses. Can I also thank the minister in charge of this, the Attorney-General, for the work that she has put into this legislation, and of course her ministerial staff, who have no doubt put in countless hours.

This bill will amend the Supreme Court Act 1986 to introduce new group costs orders that will allow plaintiff lawyers in class actions to receive a percentage of any amount recovered for their costs, with liability shared by all group members. The bill will amend the Local Government Act 1989 and the Magistrates’ Court Act of the same year, to validate decisions made by improperly established municipal electoral tribunals and by reserve magistrates who continued sitting after their appointments expired, and it will also provide the affected persons with individual immunity from the decisions they made. The bill will also make, as stated, minor and technical amendments to various provisions in justice acts to clarify and simplify their operation, including in a number of other various acts.

This bill is about delivering access to justice for ordinary Victorians by making it easier to bring class actions, as we have discussed here, around significantly important issues, particularly in many of our communities in Victoria, around silicosis, wage theft, consumer harm and other forms of corporate wrongdoing. This bill will pave the way for class actions to proceed where they otherwise may not be viable because of, as we know, the financial risks to plaintiffs and the legal costs.

The SPEAKER: Order! I might ask the member for Bayswater to pause there. Now is a good time to break for lunch. The member will have the call when we return.

Sitting suspended 1.00 pm until 2.01 pm.

Business interrupted under sessional orders.