Thanks to some rushed lawmaking late last year, the federal government has just undone reforms that prevent ordinary people being dragged into expensive court cases over minor disputes.

The states put an end to trivial defamation claims by using a “serious harm” threshold test that the Albanese government has chosen not to include in the privacy tort that was rammed through parliament on November 29.

The only possible explanation is that the federal government actually wants to turn back the clock and encourage people to sue each other over privacy claims that are so insubstantial they would be thrown if that threshold test were in place.

This will create a rich new stream of work for lawyers but it will impose immense costs on ordinary people, community groups and especially small business - which will be vicariously liable for the actions of rogue employees.

The new tort is so skewed in favour of plaintiffs it will inevitably trigger a wave of claims for go-away money. In America it’s called greenmail which is a fancy name for extortion backed by a biased law.

About twenty years ago, settlements for personal injury claims provided rich pickings for certain law firms - until the boom in public liability insurance premiums forced the states to impose a series of restrictions known collectively as tort reform.

Last year’s class actions report by King and Wood Mallesons shows a continued decline in new class actions with just 44 new filings, marking the lowest annual tally since 2016-17.

But all that might be about to change.

When this new tort takes effect in June, stand by for a wave of try-ons that will force ordinary people, small business and community organisations to decide between two dreadful options: spend time and money defending themselves against hopeless cases, and pay up and claim on insurance.

It’s as if the Albanese government has designed this tort to facilitate settlements with little regard to the risk this poses to the cost of insurance.

The government’s decision to design the new privacy tort without the “serious harm” threshold test that is part of the state defamation acts means privacy litigation will become the new home for nonsense claims.

In defamation, malicious litigants with trivial claims can no longer make it to first base unless they manage to satisfy a judge - before the trial starts - that they have suffered serious harm.

The fact that this preliminary question is determined before a defamation trial begins is crucial: it prevents people incurring crippling legal costs defending trivial claims.

And by weeding out those claims, the courts have greater capacity to deal promptly with serious matters.

The states made that change after reaching agreement at the Council of Attorneys-General - an initiative that will be rendered moot once plaintiff law firms realise it is now much easier to sue in privacy than in defamation.

When this tort takes effect, it means courts will again be required to waste time dealing with trivial cases and innocent parties will be again be forced to waste time and money fending off vexatious litigants with weak arguments.

All that could have been avoided if the Albanese government had listened to those such as the media industry’s Right to Know Coalition whose lawyers urged the government last year to adopt the same “serious harm” threshold test that applies in defamation.

That group warned the government that as defamation proceedings are no longer available to individuals who cannot demonstrate serious harm “it is likely individuals will simply shift their focus to bringing privacy proceedings”.

Even the Law Council of Australia, which provided in-principle support for the idea of a privacy tort made it clear to the government in October that its support was conditional.

According to the Law Council’s submission to a senate inquiry into this scheme, the condition the Law Council wanted was: “That there are sufficiently high thresholds in place to ensure actions are limited to serious invasions of privacy.”

The Business Council also backed the need for a “serious harm” threshold test but it went further and called for those seeking payouts to prove they had suffered damage.

The BCA told that senate inquiry it was concerned the tort would open new avenues for class actions and lead to a surge in claims.

So what did the government do? It did the reverse of what the BCA suggested.

It did not insert a threshold test. And it sent the Business Council an unmistakeable message about its recommendation that the scheme should require plaintiffs to prove they have suffered damage.

 The new cause of action says this: “The invasion of privacy is actionable without proof of damage.”

So there is no threshold test, no requirement to prove damage before plaintiffs can be awarded payouts of up to $478,550, and truth is no defence to the privacy tort - but it is in defamation.

While the government rejected the need for a serious harm threshold test, it inserted a watered down requirement for plaintiffs to prove during the trial itself that the invasion of privacy was serious.

That means even those claimants who cannot prove that an invasion of privacy was serious will still be able to proceed to trial, forcing innocent parties to spend time and money - unless they settle and pay.

Had the government listened to the Business Council and the media industry, hopeless cases would have been killed off at the start, not at the end of a trial after large sums have been spent on lawyers.