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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Bills

Legal Services Commission (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 February 2016.)

Mr TARZIA (Hartley) (15:39): I rise to speak in support of the Legal Services Commission (Miscellaneous) Amendment Bill 2016. As has been pointed out, the bill was introduced into the house by the Attorney in February, and amends the Legal Services Commission Act 1977. It is evident that the variations contained within the bill have arisen from what was a review into the delivery of legal aid in criminal cases by the commission that, I believe, occurred in 2011, as well as the subsequent report entitled 'The Governance Structure of the Commission and a Public Defender's Office for South Australia.'

I understand that under the current composition of the Legal Services Commission here in South Australia there is a 10-member board made up of a chairman, who must be a judge or a legal practitioner of five years' or more standing; a person whom, in the opinion of the Attorney-General, is appropriate to represent assisted persons; three people nominated by the Attorney-General; three people nominated by the Law Society; one person nominated by the commission, who is an employee of the commission; and, finally, the director of the commission. The bill aims to reduce that board from 10 members to up to five.

It also proposes to change the criteria of appointment to make things like skills, expertise, knowledge and other considerations relevant when a commissioner is appointed. I understand the bill also forms a legal professional reference committee and, from advice we have received from the Attorney, we understand that will be given broad jurisdiction to advise the commission in relation to any matter referred to it.

Obviously that is quite broad, and the committee will be made up of seven members, with bodies such as the Law Society and the Bar Association able to nominate two members each. I believe that is based on the Queensland model. Consultation has gone out on the bill and various deliberations have been received, but I will let the shadow attorney speak to those. Overall I am happy to commend the bill to the house.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:42): I rise to speak on the Legal Services Commission (Miscellaneous) Amendment Bill 2016, and indicate that the opposition will be supporting the passage of this bill.

The DEPUTY SPEAKER: Are you the lead speaker?

Ms CHAPMAN: Indeed. I must say it is with a heavy heart, and I suppose the only redeeming feature about this reform is that we are not getting a public defender's office, which was clearly floated some time ago.

What is important when we look at any government's model of reform is that we identify something that is actually going to do some good. Sometimes there is not always an ill to cure, but it still has to be better than what we have. There are significant problems with this new model, but we accept that the government has the support to progress this bill. However, there are a few things I would like to put on the record.

Let us just quickly confirm what the effect of this bill will be; that is, it will remove the 10-member board we have at present ,which has a chairman and people representing various interests, either of the Attorney-General or of assisted persons or of the Law Society representing the legal profession. There is some diverse contribution at that board level.

Obviously, this new structure under the bill is to reduce the number of the board from 10 members to five. I understand one option that the government have considered is simply having a commissioner and no board all so, as I say, we have to be grateful that we have at least got a board. But herein lie the weaknesses of the model presented by the government.

Firstly, we have the basic, fundamental question of ensuring that we have independence of our justice system, that is, both of the profession and access to justice, and it essentially runs like this. It is significant to have independence of the profession from the executive of the state; however, this new reform means that the commission and the appointment of the members of the commission's board will be entirely by the sitting Attorney-General, so there is clearly no longer any independence or arm's-length position of the board.

As the justice system is the third arm of government, nowhere is the importance of having that independence clearer than in our criminal justice system and our administrative law. Why in those areas? Well, quite obviously because the government or its institutions are usually the principal contradictor in those areas, so it is even more fundamental that this principle should be adhered to. So the closer control of the executive, and now by this model, the Attorney-General just handpicking his own gang of five, of course means that that independence is threatened.

The second aspect of that is the complete, not just ignorance of, but disrespectful failure to consult with the federal Attorney-General in respect of any contribution that he or she might ever make from the federal level. This is particularly important, because the state and federal contributions to the running of the Legal Services Commission in South Australia are on a par. In the 2015 financial year, the revenue from the commonwealth government was $16.233 million, and the revenue from the state government was $18.154 million.

Obviously, they represent the contributions towards federal and family law cases by the commonwealth government and the funding of usually criminal and administrative law matters dealt with and supported financially by the state government. So it has two very substantial areas of law that are dealt with by state and federal government, and contributions are paid for by them.

There is an ever-increasing demand for legal work to be done, and in the 2014-15 financial year, for example, the demand for criminal cases exceeded the budget, with 12,521 grants in criminal law compared to 11,554 the previous year. There are some 650 legal practitioners who are admitted to panels indicating their willingness to act on grants of legal aid for clients unable to pay for legal assistance without undue hardship, and so we have significant financial contributions from the state and federal governments to support their operations. Yet at no time had the government, in its determination to get rid of representatives other than those chosen by the state attorney, even consulted at the federal arena.

I did, and I am pleased to say that obviously there is some disappointment at the federal Attorney-General's level to not be consulted. Nevertheless, I do not have any formal indication from the current federal Attorney-General as to any objection but, suffice to say, it is probably a bit late if he did want to make a statement, given that the notice of contribution had not gone to him at any earlier stage.

The second area I wish to point out relates to the concern from submitting that the skills-based idea, which was really just a bit of a furphy for how you get rid of five members from a board, has ended up in a situation where there is no requirement to have any legal practitioner with appropriate skills on the board. Certainly there is provision for the chair to be a judicial officer or a legal practitioner of not less than five years standing, but in respect of experience or expertise in the area, it is no longer a requirement for any of the skill set to be imposed on the Attorney-General when he makes some determination.

Secondly, the proposal to have a legal profession reference committee is really an ineffectual sop to the profession to say, 'Well, look, we'll will give you a say, but be alert to the fact that you can be completely ignored.' In other words, we will have our legal profession reference committee, they can make recommendations, and of course the Attorney can completely override them. Suffice to say, members of the legal profession are not so silly as to not understand that this demotion into an advisory committee really gives them no power whatsoever.

So, we are left with, as I say, a bill which is going to vest the selection of the commissioners and the constituency of the commission entirely with the executive. Obviously, we see that it is only going to be as good as the standard of the attorney-general at any one time.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: I won't make any comment on that. Then we have the questions of financial management in respect of funding criminal defences and civil actions. Here, the commission's skills are to be enhanced by specific provision of a commission member who is a legal practitioner with requisite expertise. Unsurprisingly, the Law Society takes the view that they are more appropriately placed to nominate a practitioner or practitioners with requisite expertise. Again, that is to be ignored.

We have a board, we have a legal services commission, and it will still have a board. We will not be having a public defender's office. We are not going to be having a commissioner. We are going to get his hybrid, half baked group, which, if they are people of good standing, will hopefully rise above the deficiencies of the structure.

I always remember Sir Eric Neal saying to me, 'It doesn't really matter about the structure, Vickie, as long as decent people are actually appointed.' He was referring to a university board at that time, and we were talking about reform of the structure and composition of university boards. I think to a large degree he is right. If you are very lucky and you get good appointments and they are very effective, then the limitations as to the person nominating the composition of the commission board can be overridden.

I would like to acknowledge and thank the current chairman of the Legal Services Commission, Michael Abbott AO QC. It is fair to say that most practitioners would see Michael as very senior counsel at the South Australian bar. He has of course appeared in cases of notoriety and is highly regarded at the skill level of his area of expertise as Queen's Counsel. Some would not perhaps be familiar with the fact that he has had a very long time in the legal world and has made a contribution to those requiring representation in criminal, family and federal matters.

He has made a very considerable contribution as a practitioner (perhaps not so much in more recent years), and he is also to be commended for that as well as for his services as chair of the Legal Services Commission. Whether he is going to be asked to continue, who knows, but we have had a very significant benefit as a result of his chairmanship.

I also place on the record my appreciation to other members of the board, although all of their terms of office will probably completely disappear. Mr Michael Dawson is the representative of the interests of assisted persons. Jane Basheer is a nominee of the Attorney-General.

The Hon. J.R. Rau: She has gone to the bench.

Ms CHAPMAN: Of course she has, yes. The Attorney kindly and usefully interjects for a change to tell me that she has gone to the bench. Of course, that is very correct and I will place that on the record. I think I sent her a letter of congratulations, but good on her. We have Alan Herald in the last financial year, a nominee of the South Australian Attorney-General. Alison Lloydd-Wright is again a nominee of the Attorney-General. Tracy Micallef is a nominee of the Law Society. John Keen is a nominee of the Law Society.

The DEPUTY SPEAKER: Is that your phone pinging? Why don't you turn it to silent just for the hell of it?

Ms CHAPMAN: Actually, no, I think it is this one sending them to me.

The DEPUTY SPEAKER: Whose phone is pinging? Can you all check your phones and make sure they are on silent?

Members interjecting:

The DEPUTY SPEAKER: Anyway, we digress. The deputy leader.

Ms CHAPMAN: Yes, sorry. Cathy Nelson is a Law Society representative. Craig Caldicott is a Law Society representative. Andrew English is an employee of the Legal Services Commission. Gabrielle Canny is the director, and a good director she is. As at 30 June 2015, those people were at the helm. Of course, some of them continue at present and we are yet to see who the new famous five are going to be after the passage of this bill.

There are significant disappointing and potentially unhelpful developments that will come from a board of this nature by virtue of the one person having the responsibility to exclusively nominate the composition, and I think that is a bad thing. Nevertheless, we will see how we go. We will see if the Attorney-General can find good people to serve and ensure that the board continues to provide frank, fearless and independent advice, and also undertake its responsibility in respect of the financial management of the commission, which is a multimillion-dollar organisation. Otherwise, I wish them well in the continuation of their work.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (15:58): I thank the member for Hartley for his concise and pithy contribution, which was very well received and straight to the point. I also acknowledge the member for Bragg's contribution. First of all, I thank her for what I believe is a unique event, which was a compliment. She complimented me on getting a fact right, and that has not happened before. For those of you who are witnessing this, it is a red letter day, ladies and gentlemen. Hansard, can you put asterisks or—

Mr Picton: Bold!

The Hon. J.R. RAU: Bold. Put it in bold, because it is something we want to be able to find in future years when research on this topic becomes relevant. Getting back to less exciting matters, the member for Bragg raised a number of issues and I will run through them in sort of reverse order. First, she made some very complimentary remarks about Mr Abbott, and I totally agree with her. Mr Abbott is a man of great seniority in the profession, and I was indeed the person who requested he take this job on in the first place. When the position of chair of the commission became unoccupied, I asked Mr Abbott if he would be prepared to undertake that job, and I am very pleased to say he agreed that he would do it, and he has done an excellent job as chair. So, I do not think his continued participation in the affairs of the commission is under threat in any way.

As to the background to this, there was a review of the activities of the commission which I began some time ago now in February 2011, and this review was fairly wideranging. For the benefit of Hansard it is worth perhaps recording, as the member for Bragg often likes to do as well, the calibre of the people involved in that review.

They were Mr Martin Hinton QC, who was the solicitor-general; Mr Michael Abbott of whom we have already spoken; Mr Ralph Bonig who at that point in time was the president of the Law Society and therefore the Law Society was very much an insider, if you like, in this review, and they were not standing outside with their faces pressed against the glass but were inside participating; Mr Paul Muscat who was at that time a person who worked for the Legal Services Commission, although since then he has gone on to bigger and better things and is now His Honour Judge Muscat of the District Court; and Mr Mark Norman who was from the Office of the DPP.

We are talking about a very high-quality group of people, and their recommendation—and I emphasise, including Mr Bonig, perhaps one of the longest serving and, in my opinion, very great serving presidents of the Law Society because he did a tremendous job from my observation of him—was to get rid of the commission altogether and have a commissioner. I personally was rather attracted to that idea because, after all, when you have people of this calibre making a recommendation like that, one should take notice of it.

In the end, on reflection, I came to the view that we should have a board, but I have said in this place before and I will say it again, I do not think that representative boards are appropriate to run state financial enterprises.

Ms Chapman interjecting:

The DEPUTY SPEAKER: Order.

The Hon. J.R. RAU: Members might recall that in 2013 I brought legislation in here which was ultimately passed to completely restructure the board of what was then an outfit called WorkCover. The reason I did that was to stop that board being a butcher, a baker and a candlestick maker and turn it into—

Ms Chapman interjecting:

The DEPUTY SPEAKER: The deputy leader is on two warnings and I would hate to deprive the chamber of her contribution.

The Hon. J.R. RAU: —a more punchy board. What is intended here is for a similar thing to happen. There is a lot of money going through here and it should be managed properly. The situation is this: the comments that were made by the deputy leader about independence are, with the greatest of respect, completely misguided. The Legal Services Commission is not an arm of the judiciary. It is not part of that element or that aspect of government. It is primarily a dispenser of state and commonwealth money to grant recipients in order for them to purchase legal services in the private legal domain. It is perfectly reasonable for that to be run in a way where it is run by a board and the board is selected by the Attorney-General of the day. There is absolutely nothing wrong with that. In fact, there is everything right about it.

If the member for Bragg is concerned about the question of independence, I would just ask her to reflect on this: if the board of the Legal Services Commission is substantially populated by lawyers who either individually or through their organisation are the recipients of grants of aid from that organisation and employees of that same organisation who are actually employed by the organisation, there is a serious risk of capture of the organisation, not in any sort of conscious way, I am suggesting, but, in effect, capture of the organisation by its own customers.

It is perfectly reasonable that there be a strong independence of that organisation from the people who are ultimately the financial beneficiaries of its distribution of largesse. That is, I would have thought, common sense. The solution we have here is that we are not going to have the Law Society and the Bar Association, who, amongst other things, represent those people who receive money from this outfit, running it. But, we are prepared to have them participate in an advisory body which can percolate up whatever suggestions it wishes.

I think the independence argument is, at least in the way it was put by the deputy leader, a completely bogus argument. If you are really serious about having independence here, this body should be independent from those people who earn a livelihood from sending bills to this body. That is important. That is independence. That is what we think we have achieved here.

As for discussions with the federal people, I am not aware of any particular discussions. That said, this discussion paper went out in February 2014, I believe. Our intentions about this, in general terms, have not been a secret. They have been the subject of publication, and we have gone quietly along the path of preparing legislation which we now have.

It is the case that we have had representations from people like the Law Society and such like about this. I understand their point of view; I actually disagree with their point of view substantially, but I understand where they are coming from. Let's face it, the Law Society, amongst other things, is a professional organisation for lawyers. There is nothing wrong with that, but you would expect them to be advocating for lawyers to have a role in determining how lawyers get paid. That is not rocket science; it is sensible, but I personally do not think it is good.

I understand why they want to do it. If I worked for a place and I could get on the board and twist the dials a bit and alter how I get paid, that might seem a reasonably attractive proposition. I am not attempting to impute any wrong motives to any individuals or to the Law Society generally, but there is a conflict between having people who are, in their professional life, substantial beneficiaries of this particular organisation's funds actually being part of the management of the organisation.

So, we have cured that by giving them an advisory role—a platform to express their views. But, I would like to see the actual running of this thing to be a business, where we are finding the most efficient way of spending, as the member for Bragg rightly points out, a lot of commonwealth and state money. We want to find the most efficient way for that money to be spent. If there are practices that have grown up because they are convenient for various players that are not the best use of that money, we want an independent board which will modify the behaviour.

Can I place on record the fact that I think the current leadership (in particular, the director and the chair of the body) have been quite active in improving the way the organisation runs, by introducing panels to make sure we have appropriate standards of skillsets being applied to appropriate cases.

It might concern some members that, once upon a time—and I am sure the deputy leader might have had these things come to her ears as well, as I certainly did—judges would privately express concern about the fact that you had a practitioner representing a person in a very serious criminal trial who transparently was not competent to do so. It places judges in a terrible position because, as people would appreciate, the judge can only become an active participant in our system to a certain degree before they risk being disqualified.

So, how does a judge manage an incompetent counsel who is potentially going to put their client in prison in circumstances where, if they were competently represented, their client would have a better chance of presenting their case to the court? As I said, there are particular individuals, and I think the deputy leader might be aware of one or two of them, who were quite celebrated instances of this.

It is the case that the current management has been trying to improve the efficiency and quality of these services that the recipients of Legal Aid receive. I am not aware so much in the Family Court side of things whether similar inappropriate grants of aid occurred, but if they occurred on one side of the ledger, I assume it is reasonable to assume they possibly occurred on the other side as well. Anyway, that is hopefully a matter of history now. I do welcome the indication from the member for Hartley at least that this will be supported. I think it is a step forward. I think it is important that the commission is able to be restructured and to run on a more business-type footing rather than operate on a basis where it is, if not actually, theoretically at risk of capture by its own customers.

I emphasise that I am not suggesting there has been any deliberate inappropriate behaviour by anybody past or present on the board, but it is the case that it would be very difficult, I imagine, for people who are either employees of the commission or appointees of the Law Society, whose own livelihoods are dependent upon the dispensation of funds supporting grants of aid from that organisation, to be completely focused on the issue of the effective delivery of services for that body with the primary focus being the person who has the grant of aid, not the person delivering the aid. With those few words, I will commend the bill to the house.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:12): I move:

That this bill be now read a third time.

Bill read a third time and passed.


At 16:12 the house adjourned until Wednesday 23 March 2016 at 11:00.

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