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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2008-03-05 Daily Xml
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LEGAL PROFESSION BILL

Final Stages

Consideration in committee of the Legislative Council's message.

Mrs REDMOND: The opposition remains content to agree to those amendments which have been moved by the Minister for Police in the other place, but we remain opposed to the Attorney's disagreement with our amendments passed at the urging of the Hon. Robert Lawson in the other place.

I reiterate again our position, which I still believe is perfectly reasonable and rational, and I can find no rational argument for not acceding to these amendments. They enable anyone who has lost their money from a solicitor's trust account to be recompensed from the guarantee fund—the very purpose for which the guarantee fund was set up. The fund consists of interest earned on moneys held in solicitors' trust accounts combined into what is known as the 'combined trust account', which then earns interest paid into the statutory interest account. When it was sent up 25-odd years ago, it was set up specifically for the purpose of making good and guaranteeing, therefore, the wrongdoings of solicitors or people who worked in solicitors' firms.

As to the suggestion that there is any rational basis for not agreeing with the amendments, which simply say that people who have lost money in those circumstances by fraud against a solicitor's trust account should not be able to go straight to the guarantee fund, get their money, let the guarantee fund to chase after whoever it thinks should be held accountable for that loss, let the people get their money straightaway and get out of the system, they are innocent victims. I will not go through at length all the detail we dealt with the other day. I do not think I need to repeat the argument. It seems to have gone on ad nauseam and, as far as this government is concerned, it falls on deaf ears. I think that we need to deal with this today so that we can set up a deadlock conference as soon as possible in the hope of resolving it appropriately.

Mr HANNA: The issues regarding these amendments concerning the guarantee fund have been canvassed before. I have made the point that really the whole structure of the guarantee fund, and disbursement of interest earned on trust accounts, needs to be reviewed. Obviously, it needs to be done separately from the consideration of rules for the legal profession nationally. It seems that other states may not be interested in a more rational structure for those matters in South Australia. I am hopeful that, if there is a conference to break a deadlock between the two chambers of parliament, there might be a more general discussion about how things could be done better in South Australia. Certainly, these amendments will assist justice to be brought for the victims of the Magarey Farlam defalcation, but of course they are cast in more general terms in order to help others in the future who might be in a similar situation.

The Hon. M.J. ATKINSON: The government will agree to its own amendments that have been insisted upon in another place. When this matter was last debated, I was well aware that we had moved amendments. However, I was making the point—I hope forcefully—that, if our offer to help Magarey Farlam clients is turned down by the opposition Liberal Party, we will simply lay the bill aside, and there will be no concessions. The Liberal Party will lose the whole shooting match, and I think I made the point by rejecting all the amendments.

The government will not agree to the amendments, put forward by the opposition and supported by the minor parties, that have the potential to spend all the guarantee fund, allowing all manner of costs to be drawn from it. The member for Heysen is quite cheerful that nothing will be provided from the fund for legal aid, for the Legal Services Commission. She is quite happy with that result, and that is why she is moving these amendments.

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: The member for Heysen confirms that nothing from the interest of the trust account should go to legal aid.

Mrs Redmond: That is not what the amendments say.

The Hon. M.J. ATKINSON: It is not what the amendments say: it is just their effect. That is all. Amendment No. 1 received the support of opposition members, as it would permit the Law Society to apply the guarantee fund in exercising subrogated rights of action under section 322. The amendment was added because it was unclear whether the fund could be so applied in the absence of express reference. The committee should agree with that amendment; indeed, it is an amendment I foreshadowed here, and the Hon. Robert Lawson took up my invitation and drafted it.

Amendments Nos 13 to 15 inclusive made provision for the amount of a levy on the legal profession to be fixed by the society but imposed only with the approval of the Attorney-General. Again, opposition members supported that amendment, and the committee should agree to it. Amendment No. 16 provided for the Supreme Court to be able to assign functions or powers by rules of court but subject to an appeal to the court from a decision of the assignee. Again, members opposite supported that amendment, and it is appropriate that the committee agree to it.

The other 12 amendments in the schedule—that is, Nos 2 to 12 inclusive and 17—are to do with the opposition's plan to use the Legal Profession Bill as a vehicle for dealing with Magarey Farlam claims, which are presently covered by the Legal Practitioners Act 1981. These amendments would make a fund a first resort for claimants, even where those claimants have a reasonable and feasible remedy against the wrongdoer or wrongdoers.

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: As the member for Heysen says, the fund can then chase them. These amendments would increase the statutory cap on claims in all cases to 30 per cent of the fund for each claim; that is, they would permit the fund to be exhausted by four large claims to the detriment of other purposes to which the fund is now applied, such as the cost of investigating and prosecuting legal practitioners through the Legal Practitioners Conduct Board—according to the opposition, a mere bagatelle: we can just lay it aside, we do not need to do it, and it does not need money.

There is also the cost of assessing practitioners for admission to practise—the opposition says, 'Well, we'll take away the source of funding. Give it to the Magarey Farlam claimants: who cares?'—and assessing education programs by the Legal Practitioners Education and Admission Council. The government has not changed its position on the amendments moved by the Hon. Robert Lawson about the guarantee fund and it is the government's position that the House of Assembly should continue to oppose his amendments, other than amendment No. 1. Therefore, as to amendment No. 1 proposed by the other place, I move:

That the House of Assembly no longer insist on its disagreement to amendment No. 1.

Motion carried.

The Hon. M.J. ATKINSON: As to amendments Nos 2 to 12 inclusive proposed by the other place, I move:

That the House of Assembly insist on its disagreement to amendments Nos 2 to 12.

Motion carried.

The Hon. M.J. ATKINSON: As to amendments Nos 13 to 16 proposed by the other place, I move:

That the House of Assembly no longer insist on its disagreement to amendments Nos 13 to 16.

Motion carried.

The Hon. M.J. ATKINSON: As to amendment No. 17 proposed by the other place, I move:

That the House of Assembly insist on its disagreement to amendment No. 17.

Motion carried.

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