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Tuesday, 2 December 2003
Page: 23452


Mr ROSS CAMERON (Parliamentary Secretary to the Treasurer) (4:15 PM) —I move:

That the amendments be disagreed to.

The government does not intend to accept the amendments moved by the Senate in this instance. The amendments are based on incorrect assumptions about the implications of the Trade Practices Amendment (Personal Injuries and Death) Bill 2003 and fly in the face of the reform efforts of Labor, state and territory governments. What we have is a situation where the Commonwealth, the states and territories are working together to cap the spiralling public costs of public liability and indemnity insurance and trying to make that insurance more available at a reasonable price to more Australians to allow the conduct of our private recreations and our professional obligations to be conducted without undue hindrance. This bill is part of an ongoing process of reform to try and ensure that we put a cap on spiralling public liability and personal liability insurance costs.

The measures grew out of universal acceptance by all Australian governments of the Ipp review recommendations, including that as the Trade Practices Act 1974 currently leaves open the very real prospect that plaintiffs can easily substitute a no-fault required section 52 action for a common law fault required action, thereby circumventing state and territory tort law reforms in relation to claims for damages for personal injuries or death, it should be redressed. It follows that the express recognition admitted by the Australian Consumer and Competition Commission that the Trade Practices Act in its current form can provide an alternative route to a negligence claim, it is not reasonable to argue that personal injury and death claims should not rely on some element of fault.

The misleading and deceptive conduct prohibition in the Commonwealth Trade Practices Act, section 52, does not require a person to prove fault by another. There is no consideration of risk or responsibility, intent or contributory negligence. The amendments to the bill do nothing to overcome the lack of fault required to establish a breach of section 52. Section 52 would be attractive to applicants because defendants could be found liable without the need to establish fault and thereby enlarge the range of potential ways to frame a cause of action for personal injury. Under section 52, an applicant can succeed merely by proving misleading or deceptive conduct, even if the defendant has acted with the utmost care and with complete honesty.

The amended legislation would result in greater uncertainty and complexity for plaintiffs and the insurance market, particularly as the legal linkages they create between Commonwealth and state and territory laws will need to be tested and challenged in the courts. The amendment does not define civil liability law or indicate how the relevant cap for the purposes of the Trade Practices Act will be determined. There is no easy way to ascertain which is the relevant cause of action to determine the applicable cap. The amendments could also leave questions as to which state or territory's laws should be applied. In short, accepting these amendments could create a field day for lawyers.

Under the opposition's approach, a range of professionals, including doctors, would continue to be under threat of litigation for conduct, regardless of whether they were at fault or not. This approach will also produce distortions, depending on the legal status of the professional. This fails to resolve uncertainty in the insurance market. This is at a time when the federal ALP is seemingly keen to convince the Australian public that it will ensure doctors will stay in practice so that Australians can access essential medical services. The bill in its current form has the support of the majority of state and territory governments—specifically NSW, Western Australia, South Australia, Tasmania, the ACT and the Northern Territory. Indeed, NSW and Tasmania have already passed amendments to their own fair trading laws to stop the nonsense that allows a person to sue another for personal injuries or death where that other person has been found by a court of law to have acted reasonably honestly and with the utmost care.

After the recent debate on this bill, Senator Coonan wrote to her state and territory counterparts to yet again confirm the agreement struck at ministerial meetings on public liability insurance and to confirm their preference for the government to press ahead with this legislation as drafted. The New South Wales Treasurer, Michael Egan, has responded, advising that the government's bill is consistent with the Ipp review's recommendations and consistent with the New South Wales government's amendments to the Fair Trading Act. Mr Egan has advised that the New South Wales government would prefer that the bill be passed without amendment.

The parliament should pass the government's bill. It is the preferred model among other governments and the model recommended by Justice Ipp's review of the law of negligence. The bill as presented by the government also has the support of the peak body of the insurance industry, the Insurance Council of Australia, which strongly indicated before a committee of the Senate—the Senate Economics Legislation Committee—that the bill must go ahead unamended if it is to have any effect in helping to reduce difficulties being experienced in relation to insurance. The Insurance Council of Australia subsequently confirmed a clear preference for the bill as drafted. To quote ICA's October newsletter:

The ICA has made clear to the Australian government that the insurance industry supports the Trade Practices Amendment (Personal Injuries and Death) Bill 2003 in its present form. The bill's passage through the parliament may now be delayed following proposals by the ALP opposition and the Australian Democrats pushing for a number of amendments. The government's bill is part of a national program of tort reform. Its passage is vital to avoid claims transferring from the state and territory negligence laws to the Commonwealth's trade practices law.

What we see here is a situation where the Labor states and territories and the Liberal-National government are working together in a cooperative act of federalism to try and solve a complex and vexed problem for our community. We are tightening the noose, if you like, around the availability of no-fault remedies for those who would seek to run actions for personal injuries or death. As we are all rowing in perfect concord and symmetry, the opposition is working to reopen the availability of no-fault remedies and is using the provisions of section 52 of the Trade Practices Act for a purpose for which they were never really intended.