LEGAL PRACTITIONERS (MISCELLANEOUS) AMENDMENT BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 11 September 2013.)

The Hon. J.R. RAU: I want to deal with the various amendments that have come back from the Legislative Council, and I want to make a couple of very general comments about it and then descend into the detail very quickly. I do not want to occupy everyone's time for very long.

Our Legal Practitioners Act is something that is now seriously out of date. There was an attempt in 2007 to modernise the South Australian legislation, which unfortunately was not able to proceed because there was no agreement with the other place.

I have to say that the process that has led to the preparation of this bill has been a very lengthy one. It began for me in 2010. It was made more complex because, at the time, there was this mooted national reform, which, in discussion with the Law Society, I formed the view that we did not wish to be part of.

We were initially described by the others as 'recalcitrants'. It was just Western Australia and us standing out there for the matter of common sense, as we saw it. How the times have changed, because there are now more recalcitrants than participants. It is now just Victoria and New South Wales; nobody else is in it.

The mail I have is that even Victoria and New South Wales have now come to their senses and have decided that this centralised bureaucratic model that was being floated before is not the best way to go, and I am very happy to see that is the case. But had we been waiting for that to happen, we still would have done nothing. I am very pleased that we resolved, 'We're not going to wait for everyone else to get their act together, we're just going to get on with it and produce a better model for ourselves,' which we have done in this.

There are a few amendments which have been suggested by the upper house. Very briefly, can I say that most of them I will not be opposing, not necessarily because I agree with them but because they probably do not do a great deal of harm and therefore, rather than having a perfect bill, it is better to put up with one which is imperfect but which at least achieves a large proportion of what was intended to occur in the first place. If I can now go specifically to the amendments, I will indicate the position in relation to those.

Amendment No. 1:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendment No. 1 be agreed to.

This relates to amendment 9—clause 32, page 25. I am moving that this amendment be agreed to but, in doing so, I have to say that it is a stupid amendment and I do not agree with the amendment at all, and I want that on the record. This is a retrograde step, a foolish step, and I will explain why.

This amendment is the first of a number of amendments that allow for a non-legal practitioner to be appointed as the commissioner overseeing the legal profession. This is absurd, in my opinion, and I say again on the record: I do not agree with this because, to have a person who is not legally qualified acting as the policeman of the legal profession (because, as anybody who is a member of the profession knows, there are lots of subtleties in there which are invisible to people who are not lawyers), is a very foolish change.

I should put on the record, too, that the legal profession is violently opposed to this amendment. I say again: I am violently opposed to this amendment. It is absurd but, sadly, I have become accustomed to these sorts of absurdities. Given how long this bill has been floating around, I have resolved in my own mind that, rather than have something like this be a point over which the bill falls over, I will reluctantly accept this amendment.

It does not, fortunately, prevent a legal practitioner being appointed as the commissioner, and I make it very clear on the record that it is my intention that the first commissioner will be a legal practitioner if I have anything to do with it. That said, with total reluctance but in order to prevent this bill going off the boil yet again and disappearing for another several years and our profession being the laughing stock of the country, I am prepared to accept this amendment.

Ms CHAPMAN: I indicate that we will be supporting the amendment. I understood, though, that the Attorney was making a contribution in respect of all of the amendments.

The Hon. J.R. RAU: I can. That is the one I had the most to say about. There is only one other that I have much to say about. Anyway, I am accepting that amendment.

The CHAIR: I will put that, and then we can put them en bloc.

Motion carried.

Amendments Nos 2 to12:

The Hon. J.R. RAU: I move:

That amendments Nos 2 to 12 be agreed to.

Amendment No. 2 is accepted. Amendment No. 3, again, is accepted. Apparently the Law Society took no objection to this so I am not going to take one. The Law Society does have concerns about amendment No. 4 but, again, in the interests of avoiding a deadlock, I accept it. Amendment No. 5 is accepted. Amendment No. 6 is completely unnecessary. It is another one of these things that pop up in the other place but it neither adds nor subtracts, in the end. In my opinion, it is just a waste of space, but I am not going to object to it because, again, it would be futile. Amendments Nos 7, 8, 9 and 10 are agreed to. They are all consequential upon amendment No. 1. Amendments Nos 11 and 12 are agreed to.

The CHAIR: Does the Deputy Leader of the Opposition wish to make any contribution?

Ms CHAPMAN: No.

Motion carried.

Amendment No. 13:

The Hon. J.R. RAU: I move:

That amendment No. 13 be disagreed to.

I do not agree with this amendment. I did not agree with amendment No. 1, either, but this one I am not prepared to cop. The situation is, basically, this. The Legal Practitioners Act presently says—and, in fact, since 1996 when it was inserted by the then Liberal government has said—that a legal practitioner who is being investigated for professional misconduct, in the context of that investigation, cannot refuse to answer questions pertinent to that investigation.

Just think of the consumer angle here. We have a legal practitioner who is accused of professional misbehaviour. The Brown government, I assume, decided that they should not be able to hide behind self-incrimination defences inasmuch as answering those questions related to professional standards investigations. The current section removes that privilege, and it has done since 1996, and it was put there by the then Liberal government. What is happening is the Legislative Council wants to remove that.

In other words, any lawyer being investigated for being a shonk can refuse to answer questions about their shonky behaviour on the basis that it might tend to incriminate them, which they have not been able to do since 1996. This is an appalling, retrograde step which means the consumers, rather than getting more confidence out of the amendments that have been put into this bill, can be confident of one thing and one thing alone, and that is shonky lawyers will hide behind self-incrimination protection and will not answer questions. This, I emphasise again, is something that they have not been able to hide behind since 1996, and the Legislative Council wants to put that back in. Well, I do not, so I do not agree to that.

Motion carried.

Amendments Nos 14 to 18:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments Nos 14 to 18 be agreed to:

Motion carried.

Amendment No. 19:

The Hon. J.R. RAU: I move:

That Legislative Council's amendment No. 19 be disagreed to.

This is largely because of the ambiguity, I am advised, in the actual wording of it. The government did reserve its position on this amendment. The government has consulted with the Law Society, which has indicated concerns about the drafting of the amendment and the potential for unintended consequences. In particular, it may be arguable that the amendment implies a need for a law practice to enter into an arrangement with a client to accept trust money not only if the law practice is prepared not to receive trust money.

The amendment in its current form is opposed. If, however, the Hon. Mr Darley wishes to put an alternative amendment in the Legislative Council, which more properly achieves whatever it is that he is seeking to achieve without these unintended concerns the Law Society has, I am happy to look at it, but I do oppose it in its present form.

Motion carried.

Amendments Nos 20 to 23:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments Nos 20 to 23 be disagreed to.

These are all basically the same as the earlier one about self-incrimination. There is no different argument here at all. These are consequential amendments, which are to do with shonky lawyers being able to hide behind self-incrimination protections, and for the same reason I have already articulated, I oppose them.

Motion carried.

Amendments Nos 24 to 26:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments Nos 24 to 26 be agreed to.

They are consequential amendments to other amendments that have been agreed to.

Motion carried.

Ms CHAPMAN: The opposition notes the Attorney's position in respect of some of the amendments that have been presented from another place. It is certainly true that the gestation period of this bill has been very long and there are very important aspects of it which will certainly positively add to the management, governance and regulation of the legal profession. That enhancement would be lost if this bill does not pass.

However, the Attorney has identified, I think, three areas which are not negotiable for his government and in those circumstances there is an opportunity for us to go into a deadlock committee and to canvass those issues. Rather than traverse some of the aspects from the opposition at this point, we are pleased that at least we have developed to the pointy end, and one would hope that this bill does not ultimately fail if there cannot be some resolution.

One of these matters, of course, seems to be purely a matter of style and of the alert by the Law Society that there may be some unintended consequences. Perhaps the mover of that amendment will understand that and we can easily resolve that issue. The other two may be a little more difficult, but nevertheless perhaps we will have an opportunity to canvass that with representatives from the other place in due course.