Legal Practitioners (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 22 June 2016.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:40): I indicate that the opposition has considered the Legal Practitioners (Miscellaneous) Amendment Bill 2016 and that we will support the passage of this bill. Essentially, it is to do two things; one is to remedy what I think could be described as an omission in drafting the previous bill, resulting in an unintended consequence, in any event, namely, to facilitate the allowance of incorporated legal practices to practice the profession of the law in partnership with another incorporated legal practice or with an individual legal practitioner. This was identified and has been incorporated in this bill.

I think it is fair to say that is the minor but necessary matter that needs to be tidied up and we accept that. It appears that the Law Society have been active in identifying this anomaly and that this amendment is consistent with their request. In respect of the balance of the bill, which is essentially to implement amendments at the behest of the Legal Profession Conduct Commissioner, Mr May, members will be aware that in the last two years or so he has operated as a commission to replace the old legal practitioners conduct board to deal with the misconduct of legal practitioners, usually resulting from some complaint by a party who feels that they have been unfairly dealt with, including everything from inconvenience to their being a significant victim, of either act or omission, of a legal practitioner.

Whilst the Supreme Court has a significant role in relation to the registration of legal practitioners and suspension, where appropriate and where necessary, it also gives a disciplinary role to the commissioner by virtue of the 2014 amendments. So, he has an important job to do. The amendments in this tranche of reform are to impose a three-year limit for complaints. It still enables the commissioner to retain the right to investigate matters outside that time limit, but it does impose that limit.

Secondly, it ensures that the commissioner is no longer required to investigate complaints where there has already been a declaration—that is, a court order of the Supreme Court—that the applicant has already been declared a vexatious litigant. At present, the commissioner still has an obligation to receive and assess that complaint for the purposes of dismissing it, reporting on it or of course conducting a full investigation of it. The third area of reform is purportedly to clarify the nature of an appeal to the tribunal against the determination of the commissioner. This provides that an appeal to the tribunal will be by way of rehearing, and the tribunal must, in reaching the decision, have regard to and give appropriate weight to the determination of the commissioner.

Finally, the bill makes some more minor amendments to allow the commissioner to publish on the register the name of any legal practitioner who has had their practising certificate suspended and, secondly, gives a discretionary power to the commissioner to cause information about the disciplinary action to be removed from the register in circumstances prescribed by regulation. I do not have any issue with the latter. I just want to make some comment in respect of the imposition of a time limit.

Whilst this may significantly reduce the workload of the commissioner by virtue of the stroke of a pen—the imposition of the three-year rule—members ought not be under any illusion that some of the people who feel aggrieved at, in their view, the injustice in not having their complaints heard against legal practitioners in relation to, as I say, the acts or omissions in the conduct, usually, of the complainant's case, will not go away. Already, we receive as members of parliament, and probably the Attorney and I more than any, some very lengthy submissions from people who have felt aggrieved either by, in their view, the inadequacy of the previous Legal Practitioners Disciplinary Tribunal determination of their matters or, more recently, by the commissioner himself.

They will come to us, and there will be an expectation that there will be some redress in this parliament, if they are not going to be dealt with as a conduct and disciplinary matter by the statutory office that we have now in place which, as I say, replaces the old tribunal. Be under no illusion, there are people in our community who feel aggrieved. They, at times, have put in multiple complaints and, at times, the Attorney has seen fit to appoint someone else—another party entirely—usually a retired judge or senior counsel, to try to independently make an assessment of the validity of concerns that have been raised.

Those concerns are very real for the complainants, who sometimes have some just cause, with the way they have been treated. Sometimes, even if one is sympathetic to the contribution that they put into these submissions to us or to other parties—they are feeling aggrieved and rightly so—there is no immediate way that we can remedy those past events. Certainly, as a parliament, we should always be alert to the concerns that are raised. Quite frequently, and probably the Attorney is in this position as well, we receive letters of complaint about judges or judgements. We now have a complaints procedure established by this parliament to deal with it. The Attorney is yet to appoint someone to deal with it, but—

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: We are told that is imminent; nevertheless, there are some processes to deal with these things, so it is important that we remain alert to them. I do not think they will stem the amount of correspondence we as members of parliament receive from time to time, especially from prisoners. I got one this morning from someone in the Mount Gambier Prison who is very aggrieved about what he considers the determination of a judge and the conduct of criminal proceedings which resulted in him being imprisoned, he says unfairly, and his daughter continuing to be at risk of apparent further sexual exploitation.

These are very serious matters. It does not mean that we as members of parliament can easily remedy these matters. We have a legal process, we have an appeal process, usually, to deal with these matters. The introduction of a time limit will lighten the load for the commissioner but probably expand the role that we will have in trying to assist people through these matters. Secondly, in respect of the requirement not to investigate in the event that a court declaration has already been made, I am not sure that is the right way to go. I can see, on the face of it, the reason for doing it.

If an application is made to a court that someone is pursuing a trivial matter in a vexatious way, then that is a process which in itself is often quite lengthy. Sometimes the applicant who is the subject of a declaration represents themselves and they may feel very personally involved and aggrieved, but nevertheless they may not have had the benefit of some other independent advice, sometimes because they might have lost confidence, obviously, in the representation they have had previously. Nevertheless, again, this is a measure which will relieve the commissioner from having to review that again.

Then, of course, we have the question of the nature of appeal to the tribunal. On the face of it, I think that the legislation itself is deficient in the appeal process. Frequently, I come into this house on behalf of the opposition to raise concerns about the narrow opportunity for appeal, limited opportunity for appeal or, indeed, no appeal that is being proposed by the government in pieces of legislation. Sometimes, when they allow an appeal, there is no opportunity for the recovery of legal costs when an applicant is successful because of this obsession by the government in having legislation where there are no costs following the cause.

We continue to have those disputes, but they are not essentially the subject of the reforms in this legislation, so I am not going to go into the detail of them again. I think it is fair to say, though, that probably, by at least the first two measures here, we are going to be transferring the problem to members of parliament even more than they are now and, sadly, for a number of people, that is not going to provide them with any immediate joy because the capacity for the parliament to provide relief is not individually within our power to do so. Limited as these amendments are, we do accede to them and support the bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (11:53): I thank the deputy leader for her contribution and thank her, also, for the indication of support from the opposition. There are just a couple of things I would like to say in response to her remarks. Firstly, in relation to her comment about the time limit, if you look at clause 9(3) in the amending bill, you will see that, yes, there is a three-year time limit, but under subsection (3c)—which is an amendment to section 77B(3)—it says that a complaint must be made to the commissioner within three years of the conduct or such longer period as the commissioner may allow.

So there is a discretion for the commissioner, in appropriate circumstances, to extend that three-year time limit. I think that is a reasonable compromise. If we had had an absolute time limit of three years, with no possibility of any sort of exception, that might have been a bit harsh, but given the fact that there is a discretion there I think that adequately deals with that matter.

The other points that were raised by the deputy leader are interesting points because essentially she is speaking about people who are vexatious litigants. There are people out there who, for reasons best known to themselves—these reasons perhaps initially starting with a grievance combined with a personality trait or perhaps people who could easily bring themselves within the provisions of section 269 of the Criminal Law Consolidation Act—decide that they are going to make a career of agitating things. Initially, they usually use the courts as the vehicle for these agitations and typically these people have a lengthy history of self-styled court actions.

They are almost invariably self-represented because they have a habit of not being able to retain any legal counsel for any period of time because they sack them. Incidentally, as soon as they sack them, they then invariably make a complaint to the legal conduct board on the basis that the practitioner whom they have just sacked is somehow doing the wrong thing. If they take another lawyer up, the next lawyer is then invited to assist them and also to assist with preparation of the case against the lawyer who is now being complained of to the conduct board. When, inevitably, that lawyer falls foul of the individual they then have them added to the list of people against whom they are complaining to the conduct board and so on.

I do not think there is any point in my naming some of these people in here because I think the deputy leader is perfectly well aware of the sort of people I am talking about. These people derive some bizarre satisfaction from conflict and participating in the legal system. They relish the opportunity to make complaints and are basically making a nuisance of themselves. There is a process, a very difficult process, whereby these people can be declared vexatious. They have to reach a really high bar before they can be declared vexatious. They are not declared vexatious by me: they are declared vexatious by the courts on application, so they get a chance to be heard on that topic.

What had been happening was that all these people who had their capacity to clog up the courts with their spurious legal points restrained had transferred their activity from the courts—because they were not getting the easy access they were looking for in the courts because the courts had become quite aware of who they were—many of them decided to move their activities through to the legal conduct board. Sorry, the commissioner, who replaced the board—time gets away from me sometimes—so they would go to the commissioner. Of course, the commissioner, whatever he does, can never satisfy these people.

They then make a complaint against the commissioner because the commissioner has not done what they want in respect of another complaint they have, and because the commissioner himself is a legal practitioner who is going to investigate the commissioner in respect of a complaint about how the commissioner has dealt with another complaint about another lawyer, none of which complaints has any substance whatsoever?

The bottom line is that we have a situation where a very small number of people are wasting an enormous amount of time and money not just for the commissioner here but all over the place, in the courts and everywhere else. Eventually, we must get to the point where we can say, 'Look, you have worn your welcome out. You have overdone it and you are actually wasting valuable public resources because you have either an obsession that you are not able to get over, or you have some medical complaint that should be dealt with appropriately'—whatever it might be.

I do appreciate the support of the opposition but I make it as clear as I possibly can that this is not just simply a matter of saying that the commissioner cannot be bothered doing stuff, let's make the commissioner's job easy—that could not be further from the truth. What we are talking about here is people who make that job extremely difficult to do by clogging the system up with completely unmeritorious or tactical complaints in order to pursue various agendas which have nothing to do with the merits of the case and everything to do with some other thing which is different for each one of these individuals.

As I said, I could name them. The member for Bragg, the deputy leader, is fully aware of who a number of these celebrity people are. I think if I were to name any of them that would just add to their celebrity. I do not wish to do that. We know who they are. These people are basically abusing the system. I think the system, ultimately, when it gets to the point where it is being abused to this extent, should have the capability of defending itself.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (12:00): I move:

That this bill be now read a third time.

Bill read a third time and passed.