Grata Fund calls for adverse cost reform in submission to Australian Law Reform Commission inquiry

30 July 2018

The Australian Law Reform Commission's current Inquiry into Class Action Proceedings and Third Party Litigation Funding raises important questions about the role of funders in enabling access to justice in Australia.

Grata Fund's submission to the inquiry makes the case for reform to remove the significant financial barriers that block ordinary Australians from holding corporations and governments accountable in court.

"Until serious reform of our adverse cost system takes place, funders will only be able to scratch the surface of unmet need in our community for litigation funding in cases that protect our human, environmental and democratic rights", says Grata's Executive Director Isabelle Reinecke.

To read more, see Grata Fund's submission here.

"Stories in Philanthropy", Nicole Richards, Philanthropy Australia, June 2018

Isabelle Reinecke was a ponytailed primary schooler when she began standing up for the rights of others.

Protesting federal funding cuts to the ABC which threatened kids’ programming, Reinecke wrote her first letter to the editor at the tender age of 10. Even then, years before any thought of a legal career took root, she intuited the value of evidence and promptly set about polling her classmates to document their viewing habits and their responses to the potential loss of their favourite tv shows to strengthen the case.

Twenty-odd years later, as founder and executive director of the Grata Fund, Reinecke is still fighting for others, albeit with a few more tools and a lot more experience (including time spent as Director of Legal and Governance at GetUp) at her disposal.

Named in honour of the first woman to practice law in Australia, Grata Flos Matilda Greig, the Grata Fund is a public benevolent institution that uses litigation to protect the rights of ordinary Australians. The Fund has already mounted and secured wins in several cases, including helping Doctors 4 Refugees successfully fight government gag laws.

“Public interest litigation is prohibitively expensive in Australia,” Reinecke explains.

“The cost risk of taking a case to the High Court can be as much as $200,000 which is obviously beyond the means of most Australians. The Grata Fund helps create systemic change on the issues of human rights, democracy and climate change by removing those financial barriers.”

"Schoolboy, 17, lodges discrimination complaint over same-sex marriage survey", Paul Karp, The Guardian

Cameron Warasta argues that decision to exclude 16- and 17-year-olds from postal plebiscite breaches Age Discrimination Act

A Victorian schoolboy has lodged a discrimination complaint against the federal government’s exclusion of 16- and 17-year-olds from voting in the same-sex marriage postal survey.

Cameron Warasta, 17, lodged a complaint with the Australian Human Rights Commission on Wednesday which could escalate to a federal court case to overturn the government direction excluding Australians under 18.

If successful, the challenge could give a vote on marriage equality to about 50,000 Australians aged 16 and 17 on the electoral roll.

Warasta, the son of two Afghan parents and a youth ambassador for Save the Children, lives in South Yarra and will turn 18 in November – after the survey results are announced.

"Australia's shame on stage for the world to witness", Jennifer Robinson, The Sydney Morning Hearld

It's not every day you get invited to speak on the stage of New York's Lincoln Centre between the First Minister of Scotland, Nicola Sturgeon, and the woman who very nearly became the first female President of the US, Hillary Clinton – and just after Canadian Prime Minister Justin Trudeau.

But such is the growing international concern about Australia's treatment of refugees in our offshore detention centres: I was invited to speak alongside whistleblowers Alanna Maycock and Viktoria Vibhakar at the Women in the World Summit about what they described as "Australia's Shame". President Trump's infamous first phone call with Prime Minister Turnbull calling the Australia-US refugee deal "dumb" brought global attention to Australia's offshore prisons – and gave us a global platform alongside world leaders.

"Opening the doors to public interest litigation", Eliza Ginnivan, Australian Lawyers Alliance

Sometimes when it rains, it really buckets down. In just one week in June 2015, courts in two continents delivered landmark public interest victories on two of the defining issues of our time.

In the Netherlands on 24 June, 900 co-plaintiffs successfully obtained a court order forcing the Dutch government to adopt more stringent policies against climate change.  This historic verdict was the first time a judge had required a State to take action against climate change, and has inspired climate change litigation around the globe.

Two days later, the US Supreme Court overturned a patchwork of discriminatory state laws and decades of political equivocation to rule that marrying the person you love, regardless of their gender, was a fundamental Constitutional right.

These cases demonstrate public interest litigation at its finest. Supported by groundswells of community support, these cases broke entrenched political impasses and overturned laws that lagged behind community values.

But in Australia public impact litigation wins like these are harder to achieve, in large part due to burdensome costs rules. Neither the Dutch nor American applicants were hampered by the risk of a significant adverse costs order being made, which would require the losing party to pay the other side’s legal costs.

"Backing public interest litigants to bring game-changing cases", Australian Pro Bono Centre News

The biggest hurdle for public interest litigants is often the ‘usual order as to costs’ where the losing party foots the other side’s legal bill. The threat of an adverse costs order can stop meritorious public interest matters in their tracks, with many complaints not progressing past the initial client appointment or stalling on the courtroom steps. Legislative measures to encourage public interest litigation such as protective costs orders and broad standing provisions are inadequate, sporadic, limited by jurisdiction and occasionally under threat of being repealed.

This leaves only impecunious or deep-pocketed plaintiffs, who either have little to lose, or can afford to lose a lot, able to take on litigation to effect systemic structural change. In aggregate, the result is that access to justice is restricted for ordinary people, which puts government and corporate actions beyond review of the courts.

The Grata Fund is an innovative response to these issues. 

"Citizens must be able to challenge government power", Jennifer Robinson, The Sydney Morning Herald

Governments are conducting unprecedented surveillance, with increased intelligence powers and interceptions of online communications. Recent mandatory data retention laws and revelations released by prominent whistleblowers demonstrate that governments and corporations are now intercepting, retaining and using more of our private information than ever before. Digital technologies, which promised to open up freedom of speech and connect people to each other, corporations and political decision makers, are simultaneously being used by governments to take power from their citizens.

We have seen increasing government overreach, extending executive power and eroding rights and protections for all Australians, including the most vulnerable: from the indefinite detention of refugees and the mentally ill, to counter-terrorism laws imposing disproportionate restrictions on speech and association, to the approval of development projects without adequate consideration of the impact on our natural environment and health, to the attempt afoot to restrict our ability to review government decisions in the courts.  As bravely noted by Gillian Triggs earlier this year, "Supremacy of the law over the sovereign – or in today's parlance, executive – government is under threat in our democracy."

Let's use it. Through the courts, we can push back against unfair policies and laws with innovative public interest test cases to relieve hardship for millions of Australians.