Legal Practitioners (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 May 2019.)

Mr TEAGUE (Heysen) (12:49): I am glad to have the opportunity to rise and speak briefly in support of the Legal Practitioners (Miscellaneous) Amendment Bill 2019. I commend the bill to the house and, in the short time that is available to me, will make some remarks in relation to what is intended to be achieved by these changes in relation to the role of the commissioner and the tribunal and the purpose of the Fidelity Fund that supports both functions. In that regard, I propose to specifically address clauses 5 and 8 of the bill.

First, some context: the commissioner is tasked with a cost-saving endeavour—this is not unusual, as a number of functions are required—and is required to find ways in which to save costs in the operation of the commissioner's office. One of the significant costs to the commissioner is that of going to the tribunal for the purpose of seeking an extension of time within which to press on with charges in relation to complaints that have been made to the commissioner from time to time.

One of the reasons that the commission has been in this situation over time is that a large body of complaints is received by the commissioner in any given period of time. The commissioner needs to give proper consideration to those complaints, going about his task in the diligent way that he does, and in some circumstances that results in a need, under the current legislation, to seek an extension of time because the time that has been available to him has proved insufficient.

The process of that application is a cost to the office. If it were not necessary to proceed to make application, the office could operate all the more efficiently. It might be noted in this context that it has been the history of these matters that the commissioner, when seeking an extension of time, has been granted that extension. He has routinely been granted that extension as a result of submissions to the tribunal, so this is against a background in which those steps have had to be taken, with that result.

Another aspect of that process has been informed by two decisions of the Supreme Court in 2017 in relation to the matter of Fittock. That was a matter that concerned a complaint against a practitioner in relation to charging for work that was alleged not to have been done. That matter was the subject of consideration by the tribunal. In that case, the commissioner made an application for an extension of time. That was heard by a single member of the tribunal, that is, a member of the tribunal sitting alone.

On appeal in the first instance to a single judge of the Supreme Court, Justice Vanstone found that section 80(1b) of the Legal Practitioners Act 1981, which provides for procedural matters to be heard by a single member of the tribunal, did not apply to applications for an extension of time because such applications are substantive and not procedural. That decision was upheld by the Full Court. Late in 2017, the Chief Justice, Justice Blue and Justice Parker, at paragraph 34, upheld the decision of Justice Vanstone with the result that the tribunal, pursuant to section 80(1b), as it currently stands, provides for the necessity for a three-member tribunal to consider those applications.

The amendment that is the subject of clause 8 will now specifically provide for applications for an extension of time to be included in those expressly open for consideration by one member of the tribunal. That will involve a cost saving to the tribunal. We have an extension of the time that is available for the commissioner to consider matters and an express provision for the tribunal to be constituted by one member for the consideration of applications for the extension of time. Both of those measures are cost-saving measures, which will result in less costs being incurred by both the commissioner and the tribunal.

Both bodies are funded by the Fidelity Fund, which is established and operated pursuant to the Legal Practitioners Act also. Changes to the way in which the Fidelity Fund is provided with money are the subject of clause 5 of the bill. Changes to the Legal Practitioners Act that are set out there amend section 57A(2)(b) with the result that up to 50 per cent of all of the interest accruing on trust accounts that is paid into the fund maintained by the society may be applied to the Fidelity Fund, and it provides for express discretion to be applied by the Attorney-General in relation to whether 5 per cent of those moneys are to be paid to the Fidelity Fund or to another person and that is the subject of new subclause (c).

The message that I would convey is that these are measures that are designed to make sure that the commissioner and the tribunal are not put to greater costs than they need to be. It responds to authority in relation to the decision of Fittock and it provides for an extension of time within which the commissioner can undertake his work. Given the time, I conclude my remarks on that note and commend the bill to the house.

Debate adjourned on motion of Mr McBride.

Sitting suspended from 13:00 to 14:00.