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Monday, 20 September 1999
Page: 8404


Senator COONEY (4:49 PM) —This has always got to be looked at in terms of the whole issue of legal aid. What has really been put is that the financial interests litigation will have to be done on a contingency basis, because that is the only way it is going to be financed. As the minister says, that is a point of view; and what we come down to here is the issue of how best to resource litigation in the community—litigation that you are sure to have. But the issue of legal aid should not be left out of this equation because of that.

There have been all sorts of problems about legal aid, and this is an attempt to get over that by inviting lawyers to take cases that might bring them money through the success of such cases. If you are going to use that method rather than the legal aid method, you are going to dampen a trend that ought to be set in Australia, one where the courts lay down precedence in terms of the human rights legislation or the rule of law legislation that we have, as I prefer to call it. So I think that the opposition's proposition makes it more likely that people will take action which will develop precedence in the human rights area, which otherwise is not going to come forward. If we do not have the legislation—as they do in most other countries, such as New Zealand, Canada and now the United States—you are going to have to do it through the courts.

The problem you are going to have with your plan of the costs system—and, as you say, it has respectable advocates—is that you are not going to have the precedent set which our way of settling the cost question will enable to happen. You could do it through having legal aid but, clearly, legal aid is off the agenda in terms of there being sufficient legal aid to set the sorts of precedents that we need as a country. So I do think that the opposition's approach in these circumstances is the better one.