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House of Assembly - Fifty-Third Parliament, First Session (53-1)
2014-07-01 Daily Xml
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Statutes Amendment (Legal Practitioners) Bill

Introduction and First Reading

Received from the Legislative Council with a message drawing the attention of the House of Assembly to clause 8 printed in erased type, which clause being a money clause cannot originate in the Legislative Council but which is deemed necessary to the bill. Read a first time.

Second Reading

The Hon. M.L.J. HAMILTON-SMITH (Waite—Minister for Investment and Trade, Minister for Defence Industries, Minister for Veterans' Affairs) (18:59): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Statutes Amendment (Legal Practitioners) Bill 2014 seeks to amend the Legal Practitioners Act 1981 and the Fair Trading Act 1987 to address a number of minor inconsistencies and omissions in the Legal Practitioners (Miscellaneous) Amendment Act 2013 identified during the drafting of regulations to support the operation of that Act.

The principal object of this Bill is to clarify that the Commissioner's costs, including the salaries and associated employment costs of the Commissioner and the Commissioner's staff, are able to be met from money in the Fidelity Fund. It was always the intention of the Government to continue the current practice of funding the regulatory body from the Fidelity Fund and these amendments make that intention explicitly clear.

This Bill will also make minor amendments to the Legal Practitioners Act as amended by the Legal Practitioners (Miscellaneous) Amendment Act. These uncontroversial amendments will clarify the policy intent of the identified provisions and ensure that the provisions operate as originally intended by the Government.

A definition of corresponding authority will be inserted into the interpretation section of the Act to address that omission from the Legal Practitioners (Miscellaneous) Amendment Act.

New section 77H will also be amended to make clear that the reporting obligation in that section only relates to offences committed by a legal practitioner or former legal practitioner. The obligation to report suspected criminal offences was always intended to apply only to offences committed by a legal practitioner (and not, for instance, his or her client) as is evident from the previous incarnations of this provision.

The current wording of section 77H(2) could have unintended consequences if left in its current form. For example, it could result in the unintended waiver of legal professional privilege, by imposing an obligation on the Commissioner to report any information or evidence of a criminal offence that comes into the Commissioner's possession in the course of a disciplinary investigation, if it is not limited to the conduct of the legal practitioner who is being investigated.

Clause 19 in new Schedule 4 of the Act will also be amended to clarify the intention of that provision. Firstly, clause 19(3), which sets out the circumstances in which confidential information obtained in the course of a trust account investigation, examination or complaint investigation may be disclosed and by whom, is amended so that it also refers to information obtained in the course of an Incorporated Legal Practice compliance audit.

Clause 19(2), which permits the disclosure of confidential information in certain circumstances, is also amended to include a reference to the Council. This ensures that members of the Council, which is the other party to a section 77A agreement with the Commissioner, have the same protections when divulging information to the Commissioner and the Commissioner's staff under that agreement.

The final amendment to the Legal Practitioners Act is to section 95. This section sets out how the money collected for practising certificates and the fee under section 23D, which requires an interstate legal practitioner to give written notice to the Supreme Court if they intend to establish an office in this State, is distributed. The intent of the notice requirements in section 23D is to ensure that the Supreme Court and the Society have an up-to-date list of all interstate legal practitioners with an office in South Australia. The notice requirements in new Schedule 1 clauses 4 and 5, which must be accompanied by a prescribed fee, serve a similar purpose.

The Act does not currently set out how the revenue collected under clauses 4 and 5 of Schedule 1 is to be distributed. The effect of the amendment to section 95 is to incorporate the fees collected under clauses 4 and 5 of new Schedule 1 so that the revenue is applied towards the purposes of the Act and is distributed in the same manner as the revenue from practising certificate fees and the fee for giving notice under section 23D. A consequential amendment has also been made to section 57(3) the Act.

Finally the Bill amends the Fair Trading Act to insert a new section 25A. This will address an inconsistency between clause 34(2) of new Schedule 3 and section 101(3) of the Commonwealth Competition and Consumer Act 2010, insofar as those provisions relate to the period within which an itemised bill is provided.

Clause 34(2) provides that a law practice must comply with a request for an itemised bill within 21 days of the request while section 101(3) of the Australian Consumer Law stipulates that a supplier must give an itemised bill to the consumer within seven days of the request being made. Without this amendment, the shorter time period specified in the Australian Consumer Law would prevail.

Seven days will be too short a time period for a legal practitioner to comply with a request for an itemised bill, particularly given the complex nature of many legal matters. Furthermore, the 21 day time period is consistent with the position in other States, such as New South Wales, Victoria and Western Australia.

New section 25A, which is modelled on section 227 of the Victorian Australian Consumer Law and Fair Trading Act, provides that the Australian Consumer Law (SA) does not apply to contracts for the provision of legal services to which the Legal Practitioners Act applies.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Fair Trading Act 1987

4—Insertion of section 25A

This clause inserts proposed section 25A into the Fair Trading Act 1987.

25A—Application of Australian Consumer Law (SA) to bills under Legal Practitioners Act 1981

Section 25A makes it clear that section 101 of the Australian Consumer Law (SA) does not apply to a contract for the provision of legal services to which the Legal Practitioners Act 1981 applies.

Part 3—Amendment of Legal Practitioners Act 1981

5—Amendment of section 5—Interpretation

This clause inserts a definition of corresponding law into the principal Act.

6—Amendment of section 57—Fidelity Fund

This clause recasts paragraphs (c) and (ca) of section 57 by substituting a new paragraph (c). The proposed paragraph makes it clear that the Fidelity Fund includes the money credited by the Society to the Fidelity Fund under section 95.

As a consequence of an additional amendment to section 57, money in the Fidelity Fund may be applied towards the payment of the salaries and related expenses of the Legal Profession Conduct Commissioner and his or her staff.

7—Amendment of section 77H—Report on investigation

This clause amends section 77H of the principal Act to clarify that the Commissioner is required to pass information or evidence suggesting that a legal practitioner or former legal practitioner may have committed a criminal offence on to the Crown Solicitor.

8—Amendment of section 95—Application of certain revenues

This clause makes an amendment to ensure that fees paid by corporations under Schedule 1 clauses 4(1) and 5(2) are brought within the ambit of section 95(1) of the principal Act.

9—Amendment of Schedule 4—Investigatory powers

This clause amends Schedule 4 clause 19(2) of the Act so that the Council of the Law Society is permitted to divulge confidential information in accordance with an agreement or arrangement between the Council and the Commissioner approved by the Attorney-General under section 77A. Clause 19(3) is also amended to extend the ability for a specified person to disclose information obtained in the course of an ILP compliance audit.

Schedule 1—Transitional provision

1—Fidelity Fund

This clause provides for transitional arrangements relating to the reimbursement of expenses incurred by the Crown in funding the establishment and operation of the Office of the Legal Profession Conduct Commissioner for the period between the Commissioner's appointment and the commencement of this clause.

Debate adjourned on motion of Mr Gardner.

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