Legal Practitioners (Foreign Lawyers and Other Matters) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 3 December 2019.)

The Hon. I.K. HUNTER (12:19): I rise to speak to the Legal Practitioners (Foreign Lawyers and Other Matters) Amendment Bill 2019. I indicate that I am the lead speaker for the opposition and will make a short contribution.

In the other place, my colleague the member for Kaurna advised that Labor would reserve our position subject to further consideration and consultation. That consultation has now occurred. Labor will be supporting the bill, but we have a series of concerns that need to be unpicked and I need to put that on the record today.

The intention of the bill is to create a regulative regime for foreign lawyers practising foreign law in South Australia. However, it does remain rather unclear why this bill is so desperately needed. The bill seems, to me at least, like a bureaucratic fix to a problem that may or may not exist. It seems like the kind of bill governments introduce when they run out of ideas and are seeking to fill up a parliamentary sitting day.

In the first instance, it is not absolutely known from consultations we have conducted how many foreign lawyers are practising in South Australia. No-one can give us an indication or any answer to that. What we do know from anecdotal evidence received from the Law Society is that there have been three or four complaints about the conduct of foreign lawyers over the last several months but, other than a handful of complaints, we cannot get our hands on any firmer figures.

In the other place, my colleague the member for Kaurna has outlined a series of questions that the Attorney-General's Department were unable to answer in our briefing sessions. These questions included what the rationale was behind this seemingly new push to regulate foreign lawyers, what the application fee for registration as a foreign lawyer might be and under what circumstances the Law Society would exempt a foreign lawyer from provisions within the bill.

We have met with the Law Society to clarify some of these issues and the Law Society advised they have supported the introduction of a scheme to regulate foreign lawyers in South Australia since at least 2012, so this is a renewed push or the outcome of an ongoing push that has gone on for some time. That is well and good, but the Law Society also advised that the Attorney-General will set the application fee for registration as a foreign lawyer.

This is quite different from the advice provided to us in the briefing that we received from the Attorney-General's Department. It is also very different from the advice the Attorney-General provided to the other place. She said, 'These will be fees that are set not by the government but by the Law Society.' That does not appear to be precisely the case.

The Law Society states in a submission to the Attorney-General, I am advised, that it is ultimately the Attorney-General who sets the fees. It is rather embarrassing that the Attorney-General does not seem to understand this or that she has been poorly advised. To be fair to her, she did say that she had received a memo asking her to approve a request for the Law Society to increase practising certificate fees. Nonetheless, reading Hansard, one could be left with the impression that the Law Society sets the fees, which I am advised is not quite right.

The final matter relates to the insertion of schedule 1A, part 11, clause 51, Exemption by Society. I advise the leader that I will have a question on that in the committee stage. This clause provides a broad power for the Law Society to exempt a foreign lawyer from any provision within the bill. At the outset, I should say that the Law Society have advised us that they did not request these very broad powers, so this is a remarkable statement, given the Attorney-General's Department also could not identify to me the source of this clause in the briefing that we had with them.

We asked the Law Society what the purpose of the broad exemption clause might be and how they might use that clause. The Law Society advised that they might, for example, use the clause to waive application fees for foreign lawyers who are unable to pay the application fees due to hardship reasons. It is hard to see how practising foreign lawyers would be in hardship and still be allowed to practise.

However, the fundamental point that the Law Society kept returning to was that they wanted to register foreign lawyers and that they wanted them to comply with the registration conditions. I guess if foreign lawyers were required to register, they might then find out how many foreign lawyers were practising in the state, but that is a question that no-one can answer. Exempting foreign lawyers from these provisions in the bill would run counter to the intent of this statement and, I would think, the reason behind the legislation.

The Law Society has very kindly conducted some research into what powers currently exist to exempt lawyers from particular provisions. The current exemption clause for local lawyers is found in regulation 56, I am advised, of the Legal Practitioners Regulations:

56—Exemptions

The Society—

(a) may exempt a law practice from complying with any of the provisions of Schedule 2 of the Act, subject to any conditions that may be imposed by the Society; and

(b) may, at any time, impose a new condition on the exemption, amend or revoke a condition already imposed on the exemption, or revoke the exemption.

The exemptions only apply to schedule 2 of the act, which only deals with trust money and trust accounts and is certainly not the very broad exemption power now provided for foreign lawyers in the legislation before us. That is another circumstance under which the exemption power might possibly be used, I suppose, in relation to trust money and trust accounts.

We have since received correspondence from the Law Society about the genesis of this exemption clause. That correspondence advises that the Law Society consulted with the Attorney-General's Department, which advises that the exemption clause was based on the Legal Profession Model Bill to ensure consistency. There are all sorts of complications here. I might divert very briefly. Jurisdictions around the country have three different approaches to this legislation, I am advised. There are model bills, there are uniform bills or uniform codes and there are also a couple of jurisdictions, including South Australia, that have gone their own way and have their own separate legislation that differs from those other two approaches.

I think it would assist debate in this place if the government could definitely advise who identified the need to carry this broad exemption power across from the model bill and under what circumstances the exemption power might be used. If the use of the clause is as narrow as fee waivers and trust money, the government might like to consider how they intend to resolve that issue.

The bill also makes amendments relating to trustee companies. As outlined in the government's second reading explanation, an issue has been identified that means that trustee companies are regulated under both the Legal Practitioners Act 1981 and the commonwealth Corporations Act. The amendments remove trustee companies from the Legal Practitioners Act 1981 so that they are now only regulated, under the bill, under the commonwealth act. With those few words, I indicate that Labor intends to support the bill but hopes that the leader will be able to advise on the questions I have raised when we get to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: The Hon. Mr Hunter raised a question at the second reading, and I am advised as follows. As I think the honourable member might have indicated, my advice is that this exemption provision was taken across from the model bill. In the government's view and the advice provided to the government, there was no reason why the provision that was in the model bill should not be transferred across. It is for that reason that the exemption provision as drafted is before the chamber at the moment. I am really not in a position to add anything further. I do not think there was any other submission for it other than it was in the model bill and it was taken across, based on advice.

Clause passed.

Clauses 2 to 14 passed.

Clause 15.

The Hon. I.K. HUNTER: I thank the Leader of the Government for the answer. Is the leader able to advise the chamber who exactly identified the need for the broad exemption power? Who determined that we would be following the model bill rather than the uniform bill?

The Hon. R.I. LUCAS: I am advised that originally, in terms of the model bill, it was a working party of SCAG officials, so attorneys-general's departments across the nation worked together on the model bill. In terms of why the recommendation before us today picks up that particular provision, it was an initiative or recommendation of the very hardworking and competent members of the Attorney-General's Department, working together with parliamentary counsel, who provided that advice to the Attorney-General, who obviously subsequently had to take authority for whether or not she agreed with that competent advice. She did so.

As a result of going through the normal processes of cabinet, it arrived here. In terms of, 'Where did the recommendation come from?', it was the legal staff within the Attorney-General's Department given the responsibility of drafting the appropriate legislation and how it should be drafted, together with parliamentary counsel, recommendation by the Attorney's office and ultimately the Attorney. She obviously has to accept responsibility for the final draft she took to cabinet, and cabinet approved it.

The Hon. I.K. HUNTER: Just to follow up on the exemption that is being inserted in this bill from the model bill, as I understand it and as I outlined in my second reading speech, there is an existing exemption for South Australian registered lawyers, but it only goes to, I think, section 2. It is for trust accounts and moneys and such. This exemption for foreign lawyers is far broader and applies to the whole act. What does the government envisage exempting foreign lawyers from in the act, other than those provisions which South Australian registered lawyers may be exempted for? Is there something different applying to foreign lawyers that needs a much broader exemption from the act than just that narrow provision that South Australian registered lawyers have an exemption?

The Hon. R.I. LUCAS: I am advised there is nothing specific that the government or its advisers have in mind in relation to it. It is simply an issue of that is what was in the model bill and it has been taken across. It may well be as generic as you do not know what you do not know in relation to foreign jurisdictions. Maybe that is the reason it was in the model bill and maybe there was something that had not been contemplated, that there might need to be a broader exemption. The frank answer is it was in the model bill and there was no advice or reason that could be contemplated as to why it should not just come across from the model bill into this particular bill. Nothing specific was provided that I can share with the honourable member as to why it might be required.

The Hon. I.K. HUNTER: Through you, sir, and through the leader, I might be able to ask the adviser for some advice. Where a jurisdiction utilises a model bill—and I think I am right in saying it is Queensland and possibly New South Wales but I am not sure of the details. Regarding, for example, an exemption in Queensland or New South Wales for registered lawyers, is that the same as the one we are putting in place here for foreign lawyers or is it more restricted, as we currently have in our legislation?

The Hon. R.I. LUCAS: My advice is that if those other jurisdictions have adopted the bill as is, then it is exactly the same. The only caveat to that was that it was originally adopted that way; it just depends on whether in subsequent years they have made any changes of which we are unaware. If it is as in the model bill, then it is exactly the same as our provision.

The Hon. I.K. HUNTER: My last question on this topic, and I fully expect the Treasurer will not be able to answer it: why did the government or the Attorney-General not provide for exemptions for foreign lawyers in the same way as for state registered lawyers? I will put it another way: why did the legislation before us not deal with state registered lawyers and foreign lawyers in the same way with regard to these exemptions? If there is no specific contemplation that something different needs to be considered, why did you not lump them all together and give them that broad exemption that is in the model bill?

The Hon. R.I. LUCAS: I really cannot add much more than I have done already and that is, when it was originally developed as a model bill by the officers working for SCAG, it was drafted in this particular way. The South Australian government has picked up that provision in the model bill. It may well be an excess of caution and therefore never required to be used but that was the way it was developed and there was no argument that could be seen from advisers to the Attorney-General in South Australia as to why we should not pick up the model provision, and they have done so. I have nothing more that I can add, I am afraid.

The Hon. I.K. HUNTER: I think that outlines my earlier assumptions that this is probably legislation that we do not need but we might as well have. For some of the reasons that have been outlined to the chamber, Labor will be supporting the legislation but with the caveat that we are not quite sure why the government is presenting it at this time, other than to say, 'There is a model bill and we think we should adopt the model bill, as opposed to the uniform bill which other jurisdictions have.' We have not heard much debate about why we are not considering the uniform bill. With those caveats, we will be supporting the legislation through.

Clause passed.

Remaining clauses (16 to 19), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (12:40): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Sitting suspended from 12:41 to 14:15.