Since the last symposium, there have been two federal elections, a US presidential election, an Olympics, a war in Ukraine, and a pandemic — and delivering a keynote at the event, Attorney-General Mark Dreyfus said he intended to ensure the country’s class actions framework is “as efficient, fair and equitable as it possibly can be”.

“Australia's class actions industry is changing rapidly, and becoming an ever more important cornerstone of the Australian legal landscape. Where shareholders' class actions previously dominated the landscape comprising 44 per cent of all class actions filed in the 2016–17 financial year,” he said.

“This has decreased to 24 per cent in the 2021–22 financial year. Over the past five years, consumer actions have increased from just five filings in 2016 and 2017 to being the most filed type of claim for the past three years. Class actions provide an essential pathway to justice for Australians, particularly when facing wealthy defendants with access to vastly greater resources. In considering any potential reform, the government's sole focus will be on the best interests of plaintiffs seeking justice.”

The government is currently in the process of developing a formal response to the Australian Law Reform Commission’s report on class actions and litigation funding, which the former coalition government commissioned.

In September, the Albanese government released draft regulations that reversed the previous government’s “unfair treatment” of class action plaintiffs and instead facilitated access to justice — which was welcomed by a number of law firms.

“[The ALRC report] was delivered to the government in December 2018. It took a little bit longer to be released as I recall, it considered Australians Australia's class actions and litigation funding framework, and made recommendations targeted and ensuring it remained accessible, fair and efficient. The report made 24 recommendations to government at both federal and state level as well as recommendations directed at the Federal Court of Australia, State and Territory Supreme Courts, and the Law Council of Australia,” the Attorney-General continued.

“In undertaking the inquiry, the Australian Law Reform Commission was guided by three core principles which strongly aligned with the government's views on how Australian Australia's class actions framework should operate. The first of these principles was that it is essential to the rule of law that citizens should be able to vindicate just claims through a process that is characterised by fairness and efficiency to all parties, and which gives primacy to the interests of all the litigants without undue expense or delay,” he said.

VIEW ALL

“The longer an action runs, the more expensive it becomes for the affected parties. Ensuring actions run efficiently and without unnecessary delays is in the best interests of all involved. And consistent with this principle, the Australian Law Reform Commission made a number of recommendations which seek to ensure the Federal Court of Australia can manage class actions with efficiency.”

The second ALRC guiding principle was that there should be “appropriate protections” in place for litigants who are part of a class action claim — as well as a variety of funding models to support this.

“It's vital that class actions be available to all Australians. Irrespective of personal resources. The ability of all Australians to access the class action system ensures that all people have the ability to hold others accountable, and to enforce their rights and protect their own interests. The government has a strong belief that Australia's legal system should be accessible to and operate for all Australians,” Mr Dreyfus submitted.

“Furthermore, the current operation of class actions in Australia means plaintiffs often play a passive role in proceedings. In recognition of this, the ALRC included a number of recommendations that would provide the federal court with the necessary powers to protect the interests of plaintiffs. Of course, class actions must be considered in the broader context of Australia's civil justice system.”

The third of the ALRC’s guiding principles was that the integrity of the civil justice system is essential to the operation of the rule of law — which Mr Dreyfus said includes the integrity of the class action regime itself.

“Perhaps the most significant recommendation made by the Australian Law Reform Commission relates to the introduction of contingency fees. In short, the Commission recommended that subject to a number of safeguards, solicitors acting for the representative plaintiff in class action proceedings should be able to enter into contingency fee arrangements.

“I have for many years been sceptical about contingency fee arrangements, as the Law Council of Australia has said, and I quote, ‘enabling lawyers to hold a direct financial interest in the outcome of their client’s case creates a serious risk of compromising a practitioner’s fundamental ethical obligations to the court and their clients’. While not dismissing these concerns, the Australian Law Reform Commission considered that the introduction of contingency fees subject to appropriate safeguards would benefit plaintiffs by expanding access to justice and driving down the cost of class actions,” he said.

“The government is in the process of weighing up the different arguments for and against each of the Commission's recommendations, including in relation to contingency fees. The Australian Government acutely understands the need to ensure that Australia's class action framework is one which is available to everyone, operates fairly and efficiently, and provides integrity to the rule of law and the legal system.”