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Thursday, 10 September 2009
Page: 6223


Senator LUDWIG (Special Minister of State and Cabinet Secretary) (10:00 AM) —I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

ACCESS TO JUSTICE (CIVIL LITIGATION REFORMS) AMENDMENT BILL 2009

Introduction

Put simply, without an accessible system of justice, the public’s confidence in the rule of law is compromised.  If justice is accessible only to the very wealthy, it loses relevance for the vast bulk of Australians.

The great English writer Charles Dickens put it in more eloquent terms.  In his savage tale of litigation in the English Court of Chancery he wrote of that 19th century court that it gave ‘to monied might the means abundantly of wearying out the right’.

Australia cannot afford a legal system where the cure of litigation is worse than the affliction of the dispute.  Those citizens who have justice on their side, that is ‘right’ as referred to by Dickens, should be entitled to relief against even the better off.  We must ensure there exists an effective and accessible system of justice where people are able to resolve their disputes quickly, efficiently and fairly. 

It is true that the modern international commerce environment has given rise to difficult matters of law and fact which can lead to complex litigation.  However, a number of recent high profile cases have highlighted there is a need to ensure that the use of the public resources of the courts is proportionate to the issues in dispute.

In the case of C7, Justice Sackville went into some detail in his final judgment case to demonstrate the amount of public and private resources that had been expended on the resolution of this dispute. The trial in that case lasted for 120 hearing days, some 85,653 documents were provided through the discovery process, experts’ reports ran to 2,041 pages, transcript to 9,530 pages, and submissions and pleadings to around 15,000 pages.  Justice Sackville commented:

It is difficult to understand how the costs incurred by the parties can be said to be proportionate to what is truly at stake, measured in financial terms.  In my view, the expenditure of $200 million (and counting) on a single piece of litigation is not only extraordinarily wasteful, but borders on the scandalous.

In addition the recent Bell litigation was of similar proportions.  Cost estimates provided by the WA Department of Justice show parties contributed only around $900,000 to the cost of that case. However, the full cost to the taxpayer of the case was around $6.2 million.  Of the $3.72 million in hearing fees, actual hearing fees collected totalled only $490,000.  Overall, parties to the case paid less than 15 per cent of the actual cost of running the case.

This is money that could have been better used in many other areas of the justice system, not least, of course, the crying need for better resourcing of legal aid and community legal centres.

It is cases like these that show that, if Australia is to have a legal framework that provides fair access to justice for all, reform is essential. 

This Bill forms a key part of the Rudd government’s agenda to improve access to justice.

The Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 amends the Federal Court of Australia Act so that cases before the Federal Court will be resolved by the simplest means possible. 

The amendments in the Bill will complement other amendments to the Federal Court Act that were introduced last year in the Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008, which is currently before Parliament.  That Bill allows the court to appoint an appropriately qualified person to inquire into any aspect of the proceeding and provide a report to the court.  

Case management reforms

The proposed reforms will clarify and strengthen some powers already existing in the court Rules and also introduce new provisions to complement and strengthen those measures. 

By setting out the court’s case management powers it will be clear that the court, litigants and practitioners are expected to conduct litigation efficiently.

The court and parties will be encouraged to narrow the issues in dispute and resolve them in the simplest manner possible. 

The Bill introduces a new overarching purpose and that is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. 

Parties to a proceeding will have a duty to comply with that overarching purpose and lawyers will need to assist parties to comply.  Any conduct by parties or their lawyers that is inconsistent with the purpose can be taken into account by the court when awarding costs.  For example, if a party unreasonably refused to participate in alternative dispute resolution opportunities or if a party pursued issues which were manifestly unreasonable, frivolous or vexatious, then the court can consider this conduct when awarding costs.  The Bill strengthens the court’s existing power to award costs and indicates the type of behaviour which is expected from legal practitioners.  As a result, these provisions will also have the effect of encouraging parties to resolve matters through those alternative dispute resolution mechanisms, potentially saving themselves and the taxpayer the expense of a full-blown hearing.

Significantly, if a party wishes to prolong litigation as a strategy to increase the costs of the other party to wear them down, as it were, the lawyer will be obliged to explain this behaviour as contrary to the overarching purpose and may have adverse consequences in terms of a cost order against their client.  The Government is also considering other amendments to further strengthen the court’s mediation powers and focus parties’ minds on resolving disputes by alternative dispute resolution mechanisms.  However, we will await the report of the National Alternative Dispute Resolution Advisory Council on the greater use of appropriate dispute resolution in court proceedings before going further down that road.

Use of case management powers may also require parties to limit the length of submissions, limit the number of witnesses called or adhere to a time limit for the completion of part of a proceeding.  This will be particularly useful when the Court is dealing with complex commercial litigation, often referred to as ‘mega-litigation’ and also, for instance, in respect of class actions. 

With the Court, parties and their lawyers all working towards the same purpose, the government is confident there will be an improvement in the early resolution of disputes in the Federal Court.  This will in turn free up resources in the court, allowing other matters to be dealt with more quickly and cost effectively.

Appeals amendments

In addition to case management provisions, the Bill introduces amendments which will provide for more streamlined and efficient appeals pathways through the Federal Court in civil proceedings.  The new appeals framework will be reflected in the arrangements for a restructured Federal Court.

The new appeals measures will assist the Court to provide greater flexibility in dealing with appeal proceedings.  Uncertainty surrounding appeal rights in relation to interlocutory judgments will be removed, so that the Court’s time will no longer be spent unnecessarily hearing appeals from certain interlocutory decisions.

The court’s power to manage cases will be strengthened.  The amendments ensure that a single judge is able to deal with ancillary and interlocutory matters in most circumstances without the need to constitute a Full Court. 

A single Judge will be able to refer a difficult question of law to a Full Court in all circumstances.  This is an important safeguard for litigants.

Judicial responsibilities amendments

Amendments will also be made to the Federal Court Act, the Family Law Act 1975 and the Federal Magistrates Act 1999 to give the head of each federal court the responsibility to ensure the ‘effective’ discharge of the business of the court, in addition to their current powers to ensure ‘the orderly and expeditious’ discharge of the business of the court.

The amendments will clarify the powers of the chiefs to assign particular caseloads to judicial officers to ensure they can manage workloads and deliver judgments in a timely way.  They will also ensure judicial officers have access to periodic health checks and counselling services and appropriate judicial education.

This amendment supports and encourages the education initiatives developed by the federal courts, initiatives which have been enthusiastically embraced by most of the federal judiciary. 

In particular, the Federal Court has been a pioneer in judicial education in Australia and its judges make a substantial contribution to judicial education both within Australia and overseas, many judges undertaking that training during periods of their own leave.   

The Bill also provides, in the case of the Federal Court and the Family Court, for the commission or appointment of a Judge to a specific location. 

Australia has a judiciary of the highest calibre and these amendments will further enhance public confidence in the administration of justice.

Access to Justice Taskforce

Access to justice, as we would appreciate, is about more than just reforms to how courts operate.  That is why, as part of the Government’s broader access to justice agenda, a Taskforce was established earlier this year in the Attorney-General’s Department.

The Access to Justice Taskforce is working to develop a framework for a more strategic approach, and to make recommendations to me on ways to improve civil justice outcomes for all Australians.  The Government will consult with the opposition and interested groups before introducing any reforms arising from those recommendations.  This Bill is a first step to achieving these outcomes.

Conclusion

An effective and affordable civil justice system has even greater importance in the current economic climate.

The global downturn has increased bankruptcies, brought on litigation and triggered complex social issues.

Unnecessary delay and time spent in court also ties up significant capital and managerial time not only from the point of view of the courts but also from the point of view of corporations, businesses and individuals who may be required to appear before the courts. As a result, these pressures are additional financial imposts not only on the companies involved and those involved in the litigation but also on the broader economy.

More than ever before, it is imperative we have a well functioning justice system better equipped to assist people when they most need assistance, advice and guidance.

In combination with other reforms in this area, the Government is confident that the Bill will help achieve those goals.  In this context, the Government recognises Federal Court of Australia’s constructive input to these initiatives.


NATIONAL HEALTH SECURITY AMENDMENT BILL 2009

This Bill amends the National Health Security Act 2007 to enhance Australia’s obligations for securing certain biological agents that could be used as weapons. Such a biological agent is also known as a security sensitive biological agent, or SSBA, and includes Ebolavirus and Foot-and-mouth disease virus.

The Bill reinforces the Rudd Government’s ongoing commitment to seek to protect all Australians from emerging health and security threats.

The regulatory scheme for SSBAs currently includes stringent requirements on the notification of the type and location of SSBAs in Australia, along with Standards that must be met by organisations handling SSBAs. The Standards are on matters such as the secure handling and movement of SSBAs, along with personnel requirements and risk management strategies.

Over the past year and a half the Rudd Government has worked closely with organisations that handle SSBAs, and other experts in the field, to ensure smooth implementation of the legislation. During this time, a number of areas have been highlighted where improvements to the scheme might be made. The Bill I am introducing today enhances the SSBA Regulatory Scheme in three important ways.

First, the proposed amendments enable the responsible Minister to respond immediately and appropriately to safeguard public health and safety in the event of an SSBA-related disease outbreak. The proposed changes enable the suspension of certain existing regulatory requirements and the imposition of new conditions to ensure that adequate controls are maintained.

The proposed amendments also ensure that the responsible Minister has all relevant information to hand, including advice from the Secretary to the Department of Health and Ageing, the Chief Medical Officer, the Chief Veterinary Officer, and others with scientific or technical expertise in SSBAs.

Second, the amendments will extend reporting controls to biological agents ‘suspected’ to be SSBAs. This measure will clarify the obligations of entities at the early stage of handling a biological agent when, after having performed all of their usual testing procedures for that biological agent, there is a positive presumptive identification for an SSBA. The new provisions will require an entity to report its handlings of suspected SSBAs, including transfers of those agents, and will require entities to comply with new SSBA Standards for suspected SSBAs.

Third, the Bill will enhance the investigation powers available under the National Health Security Act. The Act currently provides inspectors with monitoring warrants which do not extend to seizing evidential material. This new measure introduces offence-related warrants that provide powers to search premises and seize evidential material. Importantly, this increase in investigation powers is complemented by necessary safeguards to ensure proper use of the powers. This includes safeguards such as authorisation by a Magistrate, and provisions governing the return of seized property and compensation for damage.

The Bill also makes some less significant but equally important amendments to improve the operation of the legislation and provide greater clarity for those working with SSBAs.

In particular, the Bill requires that, in addition to reporting certain events (such as loss or theft of an SSBA) to the Secretary to the Department of Health and Ageing, the entity must also make a report to local police. While entities would, as a matter of practice, make a report to police in these circumstances, the proposed changes put the matter beyond doubt and ensure a comprehensive investigation of the incident including law enforcement input.

Other measures in the Bill deal with the administration of the reporting scheme. Entities dealing with SSBAs are currently required to report any changes recorded on the National Register (such as changes to contact details) annually or biannually. The proposed amendments will require registered entities to lodge ‘nil’ annual and biannual reports rather than simply lodging no report at all. Nil reporting will ensure that entities do not forget to check if they have changes that need reporting, and will ensure that information recorded on the National Register is kept up-to-date.

The proposed amendments also enable the Secretary to the Department of Health and Ageing, on application by a registered entity, to cancel the registration of an entity or its facility, if they no longer handle any SSBA. This is a sensible change that simply ensures that the entity or its facility is no longer captured by the Act and its reporting obligations.

Finally, the proposed amendments include a new definition of ‘biological agents’. The definition of ‘biological agents’ currently includes bacteria and viruses ‘that can spread rapidly’. The requirement that the bacteria or virus be able to spread rapidly unnecessarily limits the definition of biological agent and excludes agents such as Anthrax that do not spread between humans but are highly dangerous. An amendment is therefore proposed to address this issue.

Given the importance of the National Health Security Act, I have ensured that the proposed changes have been subject to extensive consultation with experts. This has included consultation on an exposure draft of the Bill with agencies such as ASIO who assess the risks and threats from SSBAs, public health laboratories, State and Territory government agencies and other experts in SSBAs.

I am confident that the Bill before us appropriately enhances the existing regulatory scheme for SSBAs. It underlines the Rudd Government’s continuing commitment to keep Australia secure from potential threats and uphold the health and security of all Australians.


OFFSHORE PETROLEUM AND GREENHOUSE GAS STORAGE (SAFETY LEVIES) AMENDMENT BILL 2009

This Bill amends the Offshore Petroleum and Greenhouse Gas Storage (Safety Levies) Act 2003 to remove references to the pipeline safety management plan levy and also allows a pipeline licensee to pay a safety case levy for a pipeline.

The new arrangement for the payment of levies for pipelines will be as a safety case levy instead of the current pipeline safety management plan levy. These arrangements will take effect from 1 January 2010 in order that they start at the beginning of a levy year rather than part way through a year. This will avoid unnecessary administrative burdens on industry. There are no changes to how much levy is paid, when it is paid or who pays it.

Amendments to regulations which set out changes in levy arrangements for pipelines are currently being prepared and will come into effect at the same time as these amendments.

Debate (on motion by Senator Ludwig) adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.