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Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3355 ..

MS TUCKER (continuing):

success is a public interest case. Public interest cases are often test cases, which by their very nature intend to push the law in directions not fully explored. They are thus inherently risky.

Cases such as these include: stolen generations cases, asbestos, silicon breast implants, tobacco companies, McDonalds, Bropho etc. The risk in all of these cases and others is that the decision maker might not recognise their public interest value. The case may be ahead of its time. Would for example the snail and the ginger beer bottle case that is widely credited for creating the duty of care doctrine have in its time, passed the "reasonable prospects of success"?

We do not believe that leaving the risk of personal loss to the solicitor open until the Court decides the case is a public interest case will allow public interest cases to be brought. The risks are too great that the court will not recognise the value of the case.

Given the limited legal avenues available to the public, the legislature must be very careful not to block the creative expansion of the common law.

The other concern to us is that before a person can put in a communication (complaint) to the International Human Rights Committee, under the optional protocol of the International Covenant of Civil and Political Rights, they must exhaust all domestic remedies. In some cases this may require appealing a matter all the way to the High Court. Government breach of its duty of care is an obvious avenue to begin these appeals. The possibility of success in these cases is by their very nature, risky. We doubt lawyers, risking personal loss, could take the chance, despite the importance and compelling nature of the case they are advising on.

I would also like to refer members to an analysis by Peter Gordon of Slater and Gordon of the current push towards tort law reform driven by the insurance industry. It appeared in a paper he delivered to the conference on community legal centres on 2 September this year. He makes this point about the insurance industry perspective:

So while Raymond Jones, the President of the Insurance Council of Australia and head of QBE insurance, the insurer of asbestos manufacturing giant James Hardie, tells the media that the insurance industry will withdraw cover from the local pony club unless tort law reform is introduced, he is also telling shareholders, and I quote: "It is a fantastic environment. We are exceeding our budget in every region of the world in terms of rate increases on all classes of insurance."

That is from the Financial Review of August 2002.

It is a warning that the idea of limiting the capacity of citizens and their legal counsel to access the courts may be driven more by shareholder agendas than it is by principles of justice. In regard to the basic principles of access to the law that this provision will compromise, Peter Gordon had this to say:

More importantly though the common law is a legal avenue for the citizen to challenge the exercise of power. For all its limitations, the common law is one of the few remaining legal methods by which a citizen can challenge the power, and decision making of an increasingly powerful State, itself increasingly beholden to corporate power.

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