Dissenting Report by Labor Senators

We endorse the comments that were made in the dissenting report by Labor members of the Parliamentary Joint Committee on Corporations and Financial Services (PJCCFS), including the recommendation that the bill should not proceed in its current form.
It is unnecessary to repeat those comments here given that the dissenting report by Labor members of the PJCCFS is publicly accessible. However, we would like to make a couple of observations about the report by Liberal members of this Committee and about the serious doubts that continue to be raised about the constitutional validity of the bill.
In relation to the report by Liberal members of this Committee, we acknowledge that the Committee has recommended that the word “only” should be removed from section 601LG(3) and a new paragraph (g) should be added to that provision. In substance, this repeats the only recommendation that was made by Liberal members of the PJCCFS—a recommendation that has, incidentally, been completely ignored by the current Liberal Government.
Like Labor members of the PJCCFS, we think the removal of the word “only” from section 601LG(3) would improve the bill—but it would not address most of the serious concerns that have been raised about the bill by a diverse range of stakeholders. Most of those concerns are set out and addressed in detail in the dissenting report by Labor members of the PJCCFS.
The committee again heard significant evidence about the 70–30 rebuttable presumption and other measures that would leave class action plaintiffs and defendants worse off.
This included evidence from Mr John Emmerig from the Law Council of Australia who suggested that the 70–30 rebuttable presumption would mean ‘meritorious class actions are not going to be funded because that goal will be very hard to achieve or creates too much risk for funders’.1 This is supported by evidence that the PJCCFS received including evidence that suggested these changes would ‘place victims at a colossal disadvantage’.2
Separately, over the course of two parliamentary inquiries and several months, Labor members note that the Government has failed comprehensively to do anything to allay the serious concerns that continue to be raised by legal experts—including by a former Commonwealth Solicitor-General—about the constitutionality of the bill. In fact, the conduct of the Attorney-General’s Department during this inquiry has, if anything, added to those concerns.
Perhaps most incredibly, the government—via the Attorney-General’s Department—continues to refuse to identify the constitutional head of power on which the bill relies. And it has done so on the self-evidently ridiculous basis that to provide that basic information could constitute an implied waiver of legal professional privilege.
That is nonsense.
Australian governments, including the current government, routinely disclose to the Parliament and the public the constitutional head(s) of power on which legislation relies. Such matters are often discussed explicitly and at length in Explanatory Memoranda—or even in legislation!
To the best of our knowledge, it has never even been suggested by any previous government that this common practice—in and of itself—carries with it the risk of waiving legal professional privilege over any underlying legal advice.
As well as refusing to disclose the constitutional head(s) of power on which the bill supposedly relies, the government has sought advice on the constitutionality of the bill on at least seven different occasions—from at least three different sources. This does not inspire confidence. In fact, it looks like forum shopping.
It is impossible to escape the conclusion that the government does not have confidence in the constitutionality of its own bill.
Regardless of what one thinks of what the bill is seeking to achieve as a matter of policy, the Senate should not endorse a bill that is on such a shaky constitutional footing.
Finally, Labor members note that there is no dispute over the fact that the bill gives rise to a range of regulatory impacts on business. And yet it remains the case that, despite the bill being in the works for several months and also being the subject of two parliamentary inquiries, the Senate can have no confidence that those impacts have been properly considered—or are even understood—by the Treasury or the Government. That is because, instead of preparing a comprehensive Regulatory Impact Statement (RIS) in relation to the bill, the Treasury certified a report by Liberal members of the PJCCFS as an independent review which involved a process and analysis equivalent to a RIS.

In other words, the Department of the Treasury certified a report written by Liberal MPs as ‘independent’ and then used that report as the primary justification for a Liberal government policy
Senator Anthony ChisholmSenator Jess Walsh
Deputy ChairCommittee Member
Labor Senator for QueenslandLabor Senator for Victoria
Senator Deborah O’Neill
Labor Senator for New South Wales

  • 1
    Mr John Emmerig, Co-Chair, Class Actions Committee, Federal Litigation and Dispute Resolution Section, Law Council of Australia, Committee Hansard, 17 January 2022, p. 11.
  • 2
    Mr Stephen Conrad, CEO, Litigation Lending Services, PJCCFS Committee Hansard, 12 November 2021, p. 3.

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