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House of Assembly - Fifty-Third Parliament, First Session (53-1)
2014-08-07 Daily Xml
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Statutes Amendment (Legal Practitioners) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 1 July 2014.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:44): I advise that I will be the lead speaker and probably only speaker on this bill. This is the Statutes Amendment (Legal Practitioners) Bill of 2014. It is a bill which the Law Society of South Australia has also perused and provided some comments on but, in short, I indicate that they have no objection to the bill. The purpose of this bill is to deal with two substantial areas: one is to make amendments to the Fair Trading Act of 1987 so that the Australian Consumer Law does not apply to a contract for provision of services to which the Legal Practitioners Act of 1981—that is, the principal act—applies.

The government has indicated that it understands there to have been, by the passage of the Legal Practitioners Act, an inconsistency between the Legal Practitioners Act and section 101(3) of the Competition and Consumer Act of 2010, which is commonwealth legislation, insofar as those provisions relate to the period within which an itemised bill is provided. For the benefit of those few in the world who are probably following this debate, that of course relates to the itemised account presented by a legal practitioner.

If members remember the debate on the principal bill at all, they will recall that quite a new regime of obligations and responsibilities has been imposed by the Legal Practitioners Act, which makes provision for various notices and obligations, extending the already pretty extensive obligation in respect of costs. Legal practitioners are obliged to obviously give notice to prospective clients about what their scale of fees are to be, and the terms and conditions of their engagement.

It will be quite a significant regime of obligation and notice to be both complied with and particulars to be incorporated in costs agreements. There is a threshold, but the amount escapes me at the moment; I think it is about $1,500 if there is an expected amount of legal fees to be undertaken, above which this more onerous level of obligation is to be imposed. That is one potential mischief which we are being asked to support and we have no objection to the same. So, for the purposes of clarity, that will be provided.

For the record, 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—more is the pity, I should say. I have never accepted why the commonwealth should have precedence but, in any event, that is the law of the land.

We then accept that seven days is said to be too short a time period for a legal practitioner to comply with the request for an itemised bill, particularly given the complex nature of many legal matters. Furthermore, the 21-day time is consistent with the position in all other states, such as New South Wales, Victoria and Western Australia. We understand the new section 25A is modelled on section 227 of the Victorian Australian Consumer Law and Fair Trading Act and provides that the Australian Consumer Law SA does not apply to contracts for the provision of legal services to which the Legal Practitioner Act applies.

Next, we have a regime of amendments under this bill to the principal act, that is, the Legal Practitioners Act 1981. The most significant of these, I suggest, is that section 57 of the act is proposed to be amended so that money from the Fidelity Fund can be applied for the payment of the salaries and related expenses of the Legal Profession Conduct Commissioner and his or her staff.

Members would be aware that the Legal Practitioners Conduct Board regime has come to an end and under significant amendments to the Legal Practitioners Act as passed last year the matters in respect of conduct of members of the legal profession, somewhat expanded in definition, are now under the surveillance and responsibility of a newly appointed Legal Profession Conduct Commissioner. Obviously, he or she is to be paid—I think it is a he; I cannot remember who has been appointed now.

The Hon. J.R. Rau: He.

Ms CHAPMAN: He has been appointed. Let us hope I never have to know personally who it is. I should always disclose in these debates that I am a legal practitioner and duly registered and insured, in compliance with our obligations under the Legal Practitioners Act. I should disclose that in the course of speaking on this matter. I think last night, because we were held up here doing lots of legislation, I missed out on one of my compulsory legal practice lectures. I cannot even think what it was about. But I can replace it with another, I hasten to tell the Attorney. It is not one that I have to attend, it just means that you have to have a certain number of points for the year. I am sure the Attorney has to do those too.

The Hon. J.R. Rau: Yes, I do.

Ms CHAPMAN: That's good; I am glad he is because he can actually read all about or listen all about how his laws are being interpreted out in the real world. In any event, it is obviously appropriate, under this new regime, that the commissioner and his staff are paid to ensure there is no inconsistency or failure on the part of the legislation of those moneys that come from the Fidelity Fund.

Section 95 of the principal act is also proposed to be amended to incorporate the fees collected by the Law Society under schedule 1 and clauses 4 and 5 of the Legal Practitioners (Miscellaneous) Amendment Act 2013. There are also amendments to provide for the definition of 'corresponding authority', this is with respect to the conduct commissioner, to be inserted in interpretation to address that omission from the act. There are also amendments to provide for the clarity of the reporting obligation, in that it relates only to offences committed by a legal practitioner or former legal practitioner, not, for instance, his or her client.

Finally, amendments to schedule 4 of the act, which applies to the rules on disclosure of confidential information to information obtained in the course of incorporated legal practice compliance audit. My understanding is that is to ensure that there is protection, obviously, in confidential information being provided which is otherwise prohibited, but of course in the course of an audit that information needs to be disclosed and therefore the practitioner protected in the course of doing so.

So, with those few words we indicate that we will support the passage of the bill and hope that it will ensure that there is no future confusion with respect to the Fair Trading Act and to make sure that the commissioner is duly paid.

The DEPUTY SPEAKER: If the minister speaks he closes the debate.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations) (15:53): Can I just say thank you very much to the member for Bragg and I thank the opposition for their cooperation and assistance in the passage of this bill. I think we all accept that, given that we had a new regime established not that long ago and that the commissioner has only recently had an opportunity of having a very detailed look at things and considering it from the commissioner's practical point of view, it is probably not unexpected that there would be some finetuning and this bill delivers that. As I said, I thank the member for Bragg for her help in quickly dealing with this matter.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 7 passed.

Clause 8.

The Hon. J.R. RAU: I move:

That clause 8, which is printed in erased type, be inserted in the bill.

Clause inserted.

Remaining clause (9), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations) (15:56): I move:

That this bill be now read a third time.

Madam Deputy Speaker, the efficient way in which you disposed of the committee stage of this bill was wondrous to behold.

The DEPUTY SPEAKER: I had help.

Bill read a third time and passed.

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