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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-03-04 Daily Xml
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LEGAL PROFESSION BILL

Final Stages

Consideration in committee of the House of Assembly's message.

The Hon. P. HOLLOWAY: I move:

That the council insist on its amendments No. 1 and Nos 13 to 16 but that it not insist on its amendments Nos 2 to 12 and No. 17 indicated in the schedule.

Amendment No. 1, when it was before this place, 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 clause 322. This amendment was added because it was unclear whether the fund could be so applied in the absence of an express reference. The committee should insist on this amendment.

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, members opposite supported that amendment, and the committee should insist on 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 in this place, and it is appropriate that the committee insist on it.

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

They 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 the other consumer protection purposes to which the fund is now applied. The government has not changed its position on the amendments moved by the Hon. Mr Lawson concerning the guarantee fund, and it is the government's position that the committee ought not insist on them.

I should indicate that, when the message went back to the House of Assembly, the Attorney decided that, given that there was a package of amendments, the government would oppose them all here and return the bill. If it is still the wish of the committee to insist on the amendments of the Hon. Robert Lawson, we should perhaps takes this matter to a conference. I do not propose to take up any more time. As I said, I have formally moved that we should insist on those amendments I proposed on behalf of the government when the bill was here but not insist on the amendments to those other clauses, the amendments moved by the Hon. Robert Lawson.

As I say, if the committee insists on the amendments of the Hon. Robert Lawson, the bill will be returned to the house and the government will propose a course of action on how it might ultimately be resolved.

The Hon. R.D. LAWSON: In urging the committee to adhere to the amendments which I proposed and which were accepted by a majority of the committee, I place on record some comments published in The Australian last week by noted commentator, Chris Merritt, entitled 'Fix this affront now.' Mr Merritt writes:

If anyone is looking for an example of a failed system of regulating lawyers, visit beautiful South Australia.

The system there is so dysfunctional and publicly discredited that Parliament wants nothing to do with it until the Government agrees to major changes.

I interpose that Mr Merritt should have said that the upper house of parliament wants nothing to do with these changes proposed by the government. Mr Merritt continues:

It is so bad that part of it could even amount to misleading and deceptive conduct. It has the effect of conning consumers of legal services into believing that a guarantee fund will protect them when they deal with solicitors.

In other states, these guarantee funds do what they are supposed to do: they protect consumers and compensate them when they lose money to dodgy solicitors.

But in South Australia, the only thing that is guaranteed by this fund is that consumers will be taken to the cleaners—first by the Government and then by the legal profession.

Later on in his piece, Mr Merritt continues, as follows:

The reformers in the Upper House are on the side of the angels and should stick to their guns. And the profession now has a perfect opportunity to make up for past mistakes and join them.

The case for reform is sound. The guarantee fund consists largely of the interest earned on clients' money while it is held on deposit in solicitors' trust accounts. Morally, if not legally, it belongs to those individuals who leave their money with solicitors.

But on this issue, the profession and the Government lost their moral compass years ago.

I will not read all the article, but I will read one last paragraph, as follows:

For lawyers, the Magarey Farlam affair is an opportunity to do better. It has stripped away the PR spin and exposed the reality of the guarantee fund. It shows that until now, South Australia's solicitors have permitted a system to take root that places the interests of the legal profession and the Government above the interests of the profession's clients.

With material of this kind being circulated throughout the commonwealth, it is not surprising that the opposition has received a number of comments urging continued support for the amendments. A moment ago, the minister sought to suggest that, when the message relating to this bill went to the House of Assembly last week, the Attorney in another place deliberately decided not to insist upon any amendments at all, including those that were made by the government. A better and I think more accurate explanation is that the Attorney did not know what he was doing, because he sought to have disallowed in another place the amendments that the government itself moved. I agree with the minister that this matter will have to be resolved in conference, and the sooner we get it into conference the better.

I was not aware, however, that the minister was going to move the motion in the manner in which he has. I believe that the clauses he mentioned in the first part of his motion are the clauses moved by the government and accepted by the opposition and by all members of the chamber and which were uncontentious. On that basis, I have no objection to those amendments being retained. I gather that the committee intends to move to the motion regarding insistence upon the remaining amendments. I certainly urge members to support that motion, which I believe is to be put after the minister's first motion.

The ACTING CHAIRMAN (Hon. J.S.L. Dawkins): I inform the committee that I will be putting the motion in two parts. In both cases, of course, I will put the question in the positive form. The first question is: that the council insist on its amendments Nos 1, 13, 14, 15 and 16.

Motion carried.

The ACTING CHAIRMAN: I now put the question: that the council insist on its amendments Nos 2 to 12 and 17.

Motion carried.

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