Suitors' Fund Amendment (Costs of NCAT Appeals) Bill 2016

Photo of stack of bound volumes of law reports
30 March 2017

Mr ALISTER HENSKENS ( Ku-ring-gai ) ( 11:26 :28 ): The Opposition is clearly struggling for something to do and some way to try to make itself appear relevant. The members in the Chamber who form the legal cabal in the Opposition—the member for Liverpool, the member for Prospect and the member for Heffron, who is hovering over the lectern waiting to get his chance—obviously had a meeting over a cup of tea in the Opposition lawyers' common room and asked themselves, "What can we possibly think of to try to make ourselves relevant?"

Dr Hugh McDermott: Point of order: My point of order relates to Standing Order 76. Can you please instruct the member to be relevant to the bill instead of talking about the Opposition?

The DEPUTY SPEAKER: Order! There is no point of order.

Mr ALISTER HENSKENS: I am so glad that the member for Prospect has taken some time out from his appearances on Sky News to spend a bit of time here at his day job. It would be nice if he looked after his constituents for a change instead of swanning around doing media appearances. It would be good to see him concentrate on his day job.

The member for Prospect, no doubt fresh from having his cup of tea with the legal cabal of the Opposition, has spoken in favour of this bill. He said that it was a "blindingly obvious" thing to have NCAT included within the Suitors' Fund. That was his argument—and it was similar to what the member for Liverpool said in his second reading speech. The justification for this bill—

Dr Hugh McDermott: He could have the job in about two years. You never will.

Mr ALISTER HENSKENS: I certainly hope that never transpires. It is quite clear that the shadow Attorney General does not understand one of the most fundamental distinctions in the legal world: the difference between a court and a tribunal.

The shadow Attorney General said in his second reading speech:

The argument for extension of this scheme to NCAT is powerful. In fact, it should have been done when this Government introduced the legislation establishing NCAT. It is a good example of the lack of attention paid by this Government to the legislation it introduced.

The NSW Civil and Administrative Tribunal was a coming together of 22 separate tribunals which were amalgamated into NCAT on 1 January 2014. The Suitors' Fund Act has been in force since 1951. All of the tribunals that were rolled into NCAT in 2014 could have been brought under the suitors' fund at any time during the 16 years of the Labor Government. If what this bill purports to do was so blindingly obvious—

The DEPUTY SPEAKER: Order! The member for Prospect will cease interrupting.

Dr Hugh McDermott: I just do it better than him.

Mr ALISTER HENSKENS: That is a matter of opinion. In the entire 16 years of the Labor Government this so-called blindingly obvious measure was never undertaken by any member of the Labor Government, including all of the many Attorneys General—not in respect of the Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal, established in 1983, which was in existence for the entirety of the Labor Government, then brought into NCAT in 2014. It was not undertaken in respect of the Administrative Decisions Tribunal, including Victims Compensation Tribunal, established in 1997 by the Labor Government and brought into NCAT in 2014, and never brought under the suitors' fund; nor was it undertaken in respect of the Charity Referees Tribunal, established in 1942, in existence through the entirety of the Labor Government and brought into NCAT in 2014.

This measure was not undertaken in respect of the Chiropractors Tribunal, established by the Labor Government in 2001, never brought under the suitors' fund, and brought into NCAT in 2014. It was not undertaken in respect of the Consumer, Trader and Tenancy Tribunal, established by the Labor Government in 2001, never brought under the suitors' fund, and rolled into NCAT in 2014 with the same jurisdictional limit that the shadow Attorney General referred to as so-called mandating the necessity for NCAT to be brought under the suitors' fund. It was not undertaken in respect of the Dental Tribunal, established by the Labor Government in 2001, brought into NCAT in 2014, and never brought under the suitors' fund. It was not undertaken in respect of the Guardianship Tribunal, established in 1987 by the Labor Government, never brought within the suitors' fund through the entirety of the Labor Government of 16 years, and brought into NCAT in 2014. It was not undertaken in respect of the Local Government Pecuniary Interest and Disciplinary Tribunal, established in 1993, in existence for the entirety of the Labor Government of 16 years and never brought under the suitors' fund, and rolled into NCAT in 2014. Nor was it undertaken in respect of Local Lands Boards, established in 1998 by the Labor Government, never brought under the suitors' fund, and rolled into NCAT in 2014, or in respect of the Vocational Training Appeals Panel, established by the Labor Government in 2001, in existence throughout the Labor Government and rolled into NCAT in 2014.

Why did it not happen? Most of those tribunals were in existence throughout the entirety of the Labor Government, or had been established by the Labor Government, and were never brought under the suitors' fund. Why is that the case? The reasons are the valid and good reasons which have been foreshadowed by the Attorney General. The first reason is that NCAT is clearly different to a court. It is a fundamental proposition. God help us if the member for Liverpool is ever the Attorney General of this State, because he does not understand the difference between a court and a tribunal. Through this bill the member will have to perform major surgery to the suitors' fund in order to bring a tribunal under its permit. This is a powerful point: There is a massive difference between a court and a tribunal.

Dr Hugh McDermott: You've got a point?

Mr ALISTER HENSKENS: Settle down, member for Sky TV. You have had your turn.

Dr Hugh McDermott: You'll never be AG and you'll never be on TV.

Mr ALISTER HENSKENS: You have such a beautiful face for television. The five people who watch Sky News enjoy you very much, mate. [Extension of time]

The second valid reason articulated by the Attorney General was: not only is NCAT a tribunal and not a Court but, very importantly, courts are cost jurisdictions—that is, the general principle is that costs follow the event. This might be something that the member for Prospect knows, although I do not think he has ever practised. Costs follow the event.

Dr Hugh McDermott: I'll send in my CV, will I?

Mr ALISTER HENSKENS: Does that include all your dodgy medals? The costs follow the event in a court of law and do not automatically follow the event in NCAT. The awarding of legal costs is an exceptional circumstance rather than the rule. There is a very important distinction between a tribunal and a court. Under the Suitors' Fund Act it is only on points of law that are successful on appeal that the suitors' fund is even engaged; it is not engaged, for example, in respect of appeals which are successful on matters of fact. What we are talking about is a very limited operation of the suitors' fund in a very limited circumstance to only courts of law, as it has been the law of this State since 1951.

The member for Liverpool seeks to make quite a significant change to what has been the case since 1951, a change which was never thought necessary throughout the Wran Government, when there were tribunals which have now been rolled into NCAT. This was never thought of during the 16 years of the Labor Government prior to 2011, but apparently it is such a blindingly obvious matter that the member for Liverpool need hardly give any justification for it. The Attorney General made a very strong and powerful point that this measure is probably cost-ineffective—that is, the cost of administering any claim in respect of costs incurred in NCAT, being a non-cost jurisdiction where legal representation is not the norm, will probably be greater than any claim for costs made under the suitors' fund.

There has been no cost-benefit analysis conducted by Labor. Labor is very bad with numbers. We know members of the Labor Party never think of numbers; they never think of a cost-benefit analysis.

Mr Kevin Anderson: They love union numbers.

Mr ALISTER HENSKENS: They love stacking branches and they love union numbers—the member for Tamworth is right. They only like some numbers. They do not like numbers with dollar signs in front of them; they only like numbers in branches and they like numbers when it comes to the stacking of unions, as the Heydon royal commission amply demonstrated. No doubt the member for Tamworth reads the report of the royal commission every night and gets inspiration from that important report.

Mr Paul Lynch: That shows how sad you both are.

Mr ALISTER HENSKENS: I think they are more interesting discussions than the ones around your tea room with all the legal members of the Opposition, if this is the product of your discussions.

This amendment is cost-ineffective. The true purpose is unclear; it is not a purpose that has previously been known to this Parliament since 1951 when the Suitors' Fund Act first came into operation and, as the Attorney General properly said, there may well be unintended consequences from this legislation. The legislation has not even been discussed with NCAT itself. There has been no consultation in relation to this bill and it is wholly inappropriate for this Parliament to pass it. It is another example of how this Opposition is eternally searching for ways to make itself relevant, and even when it does come up with something, over cups of tea in the common room, it comes up with a pretty bad idea. This is a pretty lame piece of legislation that the Opposition has put before the Parliament. For those reasons I encourage the House to oppose this bill. It is unnecessary and it is ill-advised.