Legal Services Commission (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 March 2016.)

The Hon. A.L. McLACHLAN (16:03): I rise to speak to the Legal Services Commission (Miscellaneous) Amendment Bill. I speak on behalf of my Liberal colleagues. I advise the chamber that the Liberal opposition will be supporting the second reading of the bill. The bill seeks to change the governance arrangements of the Legal Services Commission. As a result of my working life, I am well versed in the importance of legal aid to the functioning of the court system. Without a strong system of justice, the rule of law would be compromised, as would the rights and liberties enjoyed by all Australians. That is why we as a community invest in a system of justice: to protect rights, ensure civil liberties and enforce civic responsibilities.

If access to legal institutions was reserved for only wealthy citizens, the confidence of the broader community in our system of justice would be undermined. Our democracy therefore depends on the premise that all Australians are equal before the law. Our Legal Services Commission plays an important role in achieving that equality by striving to ensure that all citizens, regardless of their means, have access to legal services and to the law.

In South Australia, the Legal Services Commission is established by the Legal Services Commission Act 1977. The commission is at present comprised of 10 members in total. The members are appointed by the Governor and consist of the following: a chair, who is a person holding a judicial office or a legal practitioner of not less than five years standing, nominated by the Attorney-General; one person who, in the Attorney-General's opinion, is an appropriate person to represent the interest of assisted persons; three others nominated by the Attorney-General; three further persons nominated by the Law Society; one employee of the commission on nomination of the employees of the commission; and, the director of the commission.

Currently the commission is a representative rather than skills-based board. Appointed members of the commission hold office for three years, at the conclusion of which they are eligible for re-enrolment. These types of governance relationships, otherwise known as representative boards, I accept are currently out of fashion. The preference, it appears these days, is for adopting structures similar to trading companies. I am personally not entirely enamoured with the change in approach; I believe in representation of the community where appropriate. Although each governance model has its strengths, each also has its weaknesses, which must be mitigated. I would not like to see appointed, if this bill becomes law, political hacks owed favours by those in power, but I suspect I will be disappointed.

The commission currently meets approximately every month. Generally it receives reports from the director on the operations of the organisation, and is responsible for considering and approving the policies and processes by which the commission provides legal assistance and its other services. The commission also has responsibility for approving annual budgets, setting the strategic direction of the commission, overseeing the performance of the director and hearing appeals against decisions of the director from assisted persons, persons seeking assistance or lawyers regarding applications for legal aid and the terms on which it is to be provided.

In February 2011, the commission announced a review into the provision of legal aid in state criminal cases. The review was conducted by a committee of senior legal practitioners. The committee released four reports. In its third report, titled 'The Governance Structure of the Commission and a Public Defender's Office for South Australia', it recommended a change to the governance structure of the commission. In particular, the committee stated that:

The current composition of the commission may exclude skills of benefit to the commission.

Members possessing skills in management, public administration and service delivery could benefit the commission.

The review ultimately recommended the abolition of the board and the appointment of a commissioner. This was rejected by a number of the stakeholders when they were consulted. The bill before us represents the government's response to the recommendation, which instead is to reduce the size of the board and ensure all board members are appointed by the Attorney-General. I fear it will be out with the community and out with the knowledge of legal aid and its workings in the community, and instead another opportunity for bureaucrats, Labor mates and a gaggle of compliance yes men and women and other fellow camp followers.

The bill seeks to amend the Legal Services Commission Act. The bill before us aims to reduce the number of members of the commission and the system by which people are appointed to it. More specifically, the amendments include reducing the membership of the board from 10 members to five. The changes will mean the commission will be made up of a chair nominated by the Attorney-General, the same as the current criteria, a director and three other people nominated by the Attorney-General, one of which may have experience in financial management and one of which must be able to represent the interests of legally assisted persons.

The bill also amends the appointment criteria to make skills, knowledge and expertise relevant when appointing the commissioner. The bill also establishes a legal profession reference committee. The reference committee will advise the committee in relation to any matter referred to it by the commission or any of the commission's functions under the act. The committee will also perform any other function assigned to the committee under the act. The committee will be made up of seven members with the Law Society and Bar Association able to nominate two members each.

The government asserts that the establishment of this committee addresses the concerns that have been raised in respect of the bill, that legal practitioners will not be sufficiently represented on the new board. This is challenged by the Law Society in its letter of 18 March 2016 to the Attorney-General. I suspect that the reality will be that the legal profession's representatives will be relegated to a powerless advisory committee where their views and wisdom can be ignored at will by the commission.

The legal profession strongly submits that there needs to be members of the commission with a working knowledge of the issues of legal aid, and with this sort of representation it will be the best to serve the commission going forward. In essence, the Law Society, of which I advise the chamber I am a member and have done so in the past, advises that the recent constitution of the commission proposed by the bill risks the close association between the profession, the society and the commission. The Law Society points out that its argument is supported by the fact that the local legal profession is involved with up to 68 per cent of the grants of legal aid.

The Law Society also points out the commission annually fixes scales of payment to private practitioners and these scales are considerably below market rates. In essence, its argument is that the Law Society members or those appointed by the society have not sought to use their position for self enrichment. With those few words, I reiterate that the Liberal Party will be supporting the second reading.

The Hon. M.C. PARNELL (16:11): The Greens will be supporting the second reading of this bill. When members of the community think of legal aid often they need reminding that there are actually two components to legal aid: the shorthand description that I use is that there is government legal aid (that is the Legal Services Commission) and then there is community legal aid, which is most commonly represented by community legal centres.

As members would know, for the 10 years before entering parliament my job was working in one of these community legal centres, in particular the Environmental Defenders Office. In fact, my history with community legal centres goes back to 1982, or maybe even 1981, where I was a volunteer at the Fitzroy legal service in Melbourne. In fact, I think my supervisor was one John Faine, who is now heard on the wireless interstate, but he was involved in that enterprise.

In terms of government legal aid, a Legal Services Commission, I do not believe I need to declare any interest. I have certainly done unpaid work for them, helping them to deliver legal education. It is an important part of their work. It used to involve going down to the Adelaide TAFE college to its audiovisual room, and they would organise for community workers in country areas (Ceduna, Port Augusta, Mount Gambier) to be in a similar audiovisual environment and, through that mechanism, we could talk to people right across the state. I gave a number of talks on environmental law, but I do not believe I need to declare an interest. I have never been paid for any of that work but I was more than happy to do it.

I also note that this morning, as I hopped off the train at Adelaide station, I was greeted by a group of Legal Services Commission lawyers because they were undertaking what they refer to as their legal health check-up service. They make the point that a person's legal health can be as important as their physical health, and they were there to see whether people needed help with referral to agencies or services.

It really was an example of the Legal Services Commission reaching out to the community, and I congratulate them for that. I also acknowledge the role that they have played this week in terms of the rally that was held outside the Sir Samuel Way building for improved funding for legal aid. They were a big part of that and they were also a big part of this week's Walk for Justice, which is the annual fundraiser for JusticeNet. I do not have the final figure but I believe they made $40,000 or $50,000 and had 500 or so participants. It was in fact the place to be seen if you were a lawyer, a judge or just anyone who cares about access to justice.

The main thing I want to put on the record today, and it follows from the contribution that the Hon. Andrew McLachlan made, is the concerns that the Law Society of South Australia has with this bill. Their lengthy submission could probably be summarised in one or two sentences, and that is that they are concerned that the current arrangement which provides for up to three representatives from the Law Society is to be replaced with a new model where they are not guaranteed any representation on the Legal Services Commission. I will just read a couple of sentences from the society's letter of 18 March to the Attorney-General, which is under the name of David Caruso, the President:

7. The Society submits that a skills based Commission would make provision for a Commission Member who was a legal practitioner with appropriate skills to be appointed. The Bill makes no express provision for its constituency to include a Commission Member who is a legal practitioner of requisite skill.

8. We submit that the Society should, on behalf of the legal profession, retain a right to nominate at least one Commission Member. The Society previously had the right to nominate three Members to the Commission.

9. Those nominations provided for Commissioners with legal expertise to inform the work of the Commission. Those nominations accounted for the financial contributions made by the legal profession to legal aid funds by virtue of the percentage contribution of interest accrued on the Combined Trust Account.

That leads me to the first question that I would invite the minister to respond to either in committee or when he concludes the second reading, and that is: how much money does the profession provide to the Legal Services Commission by virtue of the percentage contribution of interest accrued on the combined trust account? The Law Society submission basically goes on to repeat:

13. The Society submits the Bill should be amended to provide for at least one Commission Member to be a legal practitioner of requisite skill and for the Society to nominate that Commission Member.

The question that flows from that for the minister is: why not? I do understand that when you are moving to expert-based rather than representative that there is a tendency to think that it is either/or. My question is: why can't it be both? The submission goes on to say:

21. The necessity for retaining an engaged local legal profession is illustrated by the mixed model of service delivery whereby 68 per cent of grants of legal aid are undertaken by private practitioners.

The question that flows from that is: if two-thirds of the work is actually done by private legal practitioners, why not provide for the representative body for those two-thirds of workers to be actually represented on the commission itself? The Law Society's submission also points out that constituting the commission in the manner provided by the bill 'risks impairing the close association between the profession, the Society and the Commission'.

The final point in their submission relates to the independence of the profession and access to justice, and I think it is important because it relates to separation of powers as much as anything else. The society states:

46. The Society also draws attention to the issue of independence of the profession. The Bill passes total control of the Commission to the Executive. This is because all appointments will be nominated by the sitting Attorney-General.

47. The justice system is the third arm of government and functions only by its independence of the Executive.

48. This is nowhere clearer than in criminal justice and administrative law, where the government or its institutions are the principal contradictor.

49. Legal aid is a critical part of the justice system and access to justice.

50. It is an essential aspect of the justice system that litigants have access to independent legal advice, representation and advocacy.

51. There is no other way of achieving this than through an independent profession, which includes an independent provider of legal aid and legal services.

52. Proposals which bring the justice system into closer control of the Executive threaten its independence.

I think they make a very good point. I think we are still in the year of the 800^th anniversary of the Magna Carta. Whilst that is not the origin of the separation of powers, it is one of those fundamental documents that has us thinking about the nature of government, the nature of law and in particular the three arms of government in our system.

I think the Law Society makes a good point. Certainly, the Greens will need convincing, as the minister sums up debate on the second reading or in committee, that the government has got this right in terms of excluding direct representation from the Law Society. With those brief remarks, the Greens will be supporting the second reading of this bill.

The Hon. T.T. NGO (16:20): I rise in support of the Legal Services Commission (Miscellaneous) Amendment Bill. In particular, I would like to speak about the benefits that arise from changing the Legal Services Commission's outlook from being purely a representative body, and instead giving it a broader focus to effectively administer its responsibilities.

One of the key changes is to amend the commission's constitution to allow for the reduction of the number of board members from 10 to five. The director will be appointed by the commission. The Attorney-General will nominate the chairperson, who must be a person holding a judicial office or a legal practitioner of at least five years' standing, as well as three people to fill three of the five positions.

Of the three members chosen by the Attorney-General, at least one person must have financial management experience, and at least one person must represent the interests of assisted persons—I am told that potentially they could be clients or future clients, because it is important to have the people who you serve generally on the board, so that you have a broad view of what is going on out there—with the Attorney-General consulting with the Law Society and the South Australian Bar Association. The third member can be any other person.

This bill recognises that the Legal Services Commission is a substantial body corporate with important duties to perform. The commission is responsible for sound decision-making with regard to the allocation of funds and management of expenses. As reported in the Legal Services Commission's 37th annual report for the 2014-15 financial year, the commission recorded a total income of almost $41 million. It is surely in the public interest that this money be allocated and managed in the most effective way.

The reforms in this bill are similar to the ReturnToWorkSA board reforms implemented through the WorkCover Corporation (Governance) Amendment Act. Essentially, the government believes that these types of boards stand to benefit from the contributions of people with relevant management and business expertise. While the commission has a broad social objective, we must recognise that fundamentally it is a business.

The primary function of the commission is the provision of legal services to disadvantaged and vulnerable members of our community. I am sure honourable members will agree that access to justice is a social issue affecting people across all ages, genders and background. To ensure that they continue to have access to these legal services, the Legal Services Commission must be placed in the best position to run its business effectively. There are several interests to consider, including the legal sector, and community and welfare stakeholders, and this is reflected in the proposed amendments.

In saying this, I do acknowledge the Law Society's concern regarding its ability to advise the commission on matters of interest or concern in the legal profession as outlined by previous speakers. The bill introduces the Legal Profession Reference Committee to safeguard the profession's engagement with the commission. Four of the seven members on this committee belong to the profession: two nominated by the Law Society and two nominated by the South Australian Bar Association. This committee advises the commission on any matter referred to it and also consults with the director to determine the scale of fees for professional legal work.

We cannot dispute that the lawyers contributing their expertise to this scheme are invaluable. The rewards that flow into the community from legal aid work carried out by legal practitioners far outweigh what they are paid. I am hopeful that, as has been the case for many years since the commission's establishment, the advice and input of the Law Society, who represent the legal profession in South Australia, will continue to be recognised by the commission.

It is important for honourable members to understand that in no way does the bill impact the commission's independence from the government. The amendments simply ensure that the commission is equipped with the skills necessary to effectively operate within its available resources. I commend this bill to the council.

The Hon. K.L. VINCENT (16:26): I only wish to put on the record a few brief words of support for this bill and state that Dignity for Disability will be supporting it. In particular I thank the Legal Services Commission for the important service they provide in providing legal aid to people in dire need, particularly those on low incomes. The commission has, on several occasions, provided much needed assistance to several of my constituents. I want to put on the record our personal thanks for that and also to say that we did have some questions, but they have been touched on by the Hon. Mr Parnell and we will look forward to some answers. All that being said, and pending those answers, we will support the bill.

Debate adjourned on motion of Hon. J.S.L. Dawkins.