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Legislative Assembly for the ACT: 2003 Week 8 Hansard (21 August) . . Page.. 3065 ..

The Assembly voted-

 Ayes 10  			Noes 3

 Mr Berry  	Ms MacDonald  	Mrs Cross  
 Mrs Burke  	Mr Pratt  	Ms Dundas  
 Mr Cornwell  	Mr Stanhope  	Ms Tucker  
 Ms Gallagher  	Mr Stefaniak
 Mr Hargreaves  Mr Wood

Clause 22 agreed to.

Clause 23.

MS DUNDAS (5.21): I will be opposing this clause, but I understand that Ms Tucker seeks to amend it.

MS TUCKER (5.21): I move amendment No 7 circulated in my name [see schedule 3 at page 3092].

This amendment simply defines "reasonable prospect of success"more reasonably. Law is discourse and it really is about putting an arguable case. The bill at present defines "reasonable prospect of success"as a reasonable prospect of success. It would be all very clear in hindsight. An "arguable case"would be more easily and neutrally judged by the court. This wording was recommended to us by the Law Society.

I understand that the government has chosen to be suspicious, on these issues, of the view of barristers and solicitors who practise in the field. It seems fairly clear, however, that government has not consulted with the courts either, and it is they who would be making the decision on what would constitute a reasonable prospect of success. I refer to the argument I put in the previous debate that the point of taking a case to court can justifiably be to change the law, to publicise the injustice of the present law or to publicise corrupt or bad behaviour by the powerful.

I would have thought the Labor Party would be behind this. I listened to Mr Stanhope's arguments about the reasonable chance of success, and it is quite a different thing to be apprehended or asked to pay back costs when it has been determined that the management of a case by the legal person concerned was corrupt. But this is about determining up front and before the reasonable chance of success. For all the reasons I have already explained, I think that it is significant and it is different. That is all I will say on this one.

MS DUNDAS (5.23): Although it is my strong preference for clause 23 to be omitted altogether-even if it is amended, I will still oppose it-I believe that this amendment moved by Ms Tucker to create an understandable definition of the term of "reasonable prospect of success"is one that can be supported. Having this clause amended as Ms Tucker suggests would be preferable to having clause 23 passing in its current form.

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