Representative and class actions

9.50 Several stakeholders raised the issue of representative or class actions, arguing that the availability of these mechanisms in the new statutory tort would strengthen access to justice.[58] The ALRC supports the principle of access to justice, noting it is a Term of Reference for this Inquiry. However, the ALRC has not made a proposal on representative or class actions as existing mechanisms would apply to the statutory tort in the same way they apply to other civil actions. For instance, Part IVA of the Federal Court Act 1976 (Cth) provides a framework for representative proceedings to the Federal Court.

9.51 The Office of the Public Advocate (Queensland) submitted that the ALRC should consider ways to accommodate a litigation guardian to conduct legal proceedings on behalf of an adult with impaired decision-making capacity.[59] The ALRC also considers that this is an important issue concerning access to justice, but that it requires broader consideration than its application just to the proposed new statutory tort. The ALRC is currently undertaking an inquiry into equality, capacity and disability in Commonwealth laws. That inquiry is considering, among other things, the role of litigation guardians in civil proceedings. Its proposals would have relevance and application to any new statutory cause of action.[60]