Ms O’CONNOR (Hobart) – Mr President and Leader of Government Business, I rise to speak in my capacity as the Greens’ attorney-general and justice spokesperson, just to make a few comments on this important piece of legislation. As we know from the second reading speech, it came out of evidence given to the commission of inquiry from victim/survivors and indeed whistleblowers about their less-than-satisfactory and at times traumatic engagements with the Office of the Solicitor-General. I know personally of people who, through that, as a result of their trauma and their experience, effectively ended up in combat with the Solicitor-General of the State of Tasmania.
To take those litigation functions away from the Solicitor-General and create a position of state litigator for civil matters is an excellent response to the commission of inquiry and those who came before it. I acknowledge the previous attorney-general, Elise Archer, who really did respond sincerely and as effectively as she was able to at the time, to the evidence that came before the inquiry in what she might do in her position as attorney-general to make amends or make it better. For people who have been through that traumatic process, it is very difficult to make amends. But what the parliament is doing here now is ensuring that in future proceedings there is a trauma-informed approach to these cases.
This morning I was looking at the guidelines, the model litigant guidelines which apply to civil proceedings brought by or against the state. It is important to acknowledge that all governments are obliged to apply model litigant guidelines or modern litigant principles, but it does not always happen. Quite often there is a tension between those functions, if you like – if we look at the former solicitor-general who had an obligation to protect the interests of the state as well as this role in representing the state in cases where you are dealing with people who have been damaged by the state. We will see more and more of these cases come before the courts or come to government for redress.
None of us knows what quantum of compensation is likely to be in play here for victims and survivors of the state’s failures, but it is likely to be in the many millions of dollars. It is best that the state takes that trauma-informed approach and applies this obligation. I will just read it into the Hansard. Clause 8, the primary obligation, 7 ‘the state, its agencies and authorities must act as a model litigant in the conduct of civil litigation’. And 8, ‘the obligation does not prevent the state from acting in the public interest or formally pursuing a legitimate claim or defence to protect its interests’.
They are both equally valid. The nature of the obligation subject to clause 8, the obligation requires a state and its agencies to –
(a) deal with matters efficiently and expeditiously;
(b) make an early assessment of the prospects of any claim or defence;
(c) settle legitimate claims promptly without resort to litigation. This includes partial or interim settlements where liability is clearly established for the part of the claim to which the settlement gives effect.
(d) not contest liability where the only issue is quantum of damages or the application of a remedy;
(e) avoid resort to litigation and encourage and participate in alternative dispute resolution where possible;
(f) keep the costs of litigation to a minimum;
(g) not require a party to prove a matter that the state knows to be true;
This is critical, Mr President.
(h) not rely on technical issues where the state will not suffer prejudice unless it is necessary to do so in the public interest or to protect the state’s interests;
(i) not take advantage of a party who lacks resources to pursue a legitimate claim;
(j) only undertake and pursue appeals where it is considered on proper advice that the state has reasonable prospects of success or the appeal is otherwise justified in the state’s interests; and
(k) provide reasonable assistance to claimants and their legal representatives to identify the proper defendant.
It is a small revolution in the way that this state will respond to victim/survivors, people who have been damaged by the state in one way or another and it is a welcome reform. This legislation has already been passed by the parliament and it had lapsed, so we are affirming the decision of parliament last year and I am glad to be supporting this legislation.
