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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-05-15 Daily Xml
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LEGAL PRACTITIONERS (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 30 April 2013.)

The Hon. S.G. WADE (12:47): I rise on behalf of the Liberal opposition to indicate our support for the Legal Practitioners (Miscellaneous) Amendment Bill 2013. The Liberal opposition, as I said, supports the bill. However, in some respects we do not consider that the bill adequately addresses public disquiet about the regulation of the legal profession in South Australia. Two very public cases are directly in point—firstly, the Eugene McGee case and, secondly, the Magarey Farlam case. Both have significantly undermined public confidence in the current model to regulate, supervise and discipline members of the legal profession.

This bill was tabled on 19 March 2013 in the House of Assembly. However, it was preceded by two draft bills. One was tabled in the parliament on 13 March 2012 for consultation; the second was sent out to a select number of legal sector stakeholders for further discussion earlier this year.

This bill seeks to reform and harmonise the regulation of the South Australian legal profession with laws of other jurisdictions. That harmonisation process has been progressing across Australia over the past decade.

The second round of reform towards a national legal profession has largely failed with only Victoria and New South Wales pursuing a uniform approach. In that context, South Australia was one of the early jurisdictions to opt out of the national legal profession reform but, unlike other jurisdictions, South Australia had not completed the first round, so this bill is a substantial bill. The Legal Practitioners (Miscellaneous) Amendment Bill includes reforms to trust accounts, lawyer disciplinary action, cost disclosure, incorporated legal practices, community legal centres, practising certificates, the scope of professional misconduct, investigatory powers of the commissioner and the guarantee fund.

In relation to the scope of professional misconduct, the bill proposes to replace the definition of professional misconduct in the Legal Practitioners Act, which is currently unsatisfactory conduct and unprofessional conduct by a lawyer, with a broader definition of unsatisfactory professional conduct and professional misconduct. These definitions are based on the 2007 bill, definitions which are used interstate and the proposed national law. The new and broader definitions are intended to capture behaviour not directly related to a lawyer's practice of law which may impact on their standing as a lawyer, including criminal and non-criminal behaviour. In our opinion, this will go some way to addressing the limitations highlighted by the Eugene McGee case.

I note that there are provisions in the bill that differ from the draft national law. The bill provides that the charging of excessive legal costs may constitute unprofessional conduct or professional misconduct. Since 2007, the national model law has continued to develop in consultation with states, territories and the commonwealth. The latest public version of that bill, which I have as at May 2012, provides a lower threshold, that being 'charging more than a fair and reasonable amount for legal costs in connection with the practice of law'. To do so could constitute unprofessional conduct or professional misconduct. The legislation of every other Australian jurisdiction uses the higher threshold of charging 'excessive' legal costs, as contained in this bill, rather than the lower threshold contained in the national model law.

The Law Society of South Australia supports the bill's use of 'excessive costs' as the threshold rather than 'fair and reasonable'. It is the society's view that the term 'excessive' has been extensively judicially considered and is clearer. I suspect that may be true of the word 'fair', but I doubt if it is true of the word 'reasonable'. While supporting national consistency on this threshold, the opposition will maintain a watching brief, particularly in the light of any changes made by other jurisdictions.

I turn now to the issue of oversight of professional conduct. Oversight of lawyers has become extremely controversial as a result of the McGee case. The case highlighted that the focus of oversight, in the community's view, was too narrow and that the government's half-hearted approach in pursuing the processes under the act has caused significant disquiet in the community.

The Legal Practitioners Act 1981 provides for the Legal Practitioners Conduct Board—an independent body responsible for handling complaints about lawyers. The act empowers the board to pursue disciplinary action with respect to professional misconduct before the Legal Practitioners Disciplinary Tribunal and the Supreme Court. Under the 1981 act, three of the seven members of the board must not be lawyers.

The Legal Practitioners Act 1981 also provides for the Legal Practitioners Disciplinary Tribunal which determines whether lawyers are guilty of unprofessional or unsatisfactory conduct. Charges of unprofessional or unsatisfactory conduct may be laid before the tribunal by the Legal Practitioners Conduct Board, the Attorney-General, the Law Society or by any person, whether a client or otherwise, who is aggrieved by the conduct of a lawyer. Currently, all 15 members of the tribunal are legal practitioners.

The National Legal Profession Reform envisaged a national legal services board which would not be controlled by the legal profession. This bill proposes to replace the Legal Practitioners Conduct Board with a legal profession conduct commissioner who must be a legal practitioner. The government's model in the bill will completely remove consumer input to the oversight and discipline of legal practitioners because it abolishes a conduct board which, as I said, has three out of the seven members who must not be lawyers with a commissioner who under the legislation must be a lawyer. Thereby the government is leaving the oversight of the professional conduct of lawyers completely in the hands of fellow lawyers.

The Law Society supports the replacement of the Legal Practitioners Conduct Board with the legal profession conduct commissioner on the understanding that that person is a legal practitioner. Given the ongoing community disquiet at the government's handling of the McGee case, it is beyond belief that this government is trying to remove the community voice that is currently present. The Liberal opposition is committed to strengthening the public's confidence in the legal profession. The Labor government's proposal does exactly the opposite. Removing consumer input can only undermine public confidence.

I note that if the government succeeds in removing lay involvement, South Australia will be the only state where lay involvement in the legal profession is not possible. Other states have legal profession conduct commissioners. New South Wales, Victoria and Queensland, for example, all allow for a non-lawyer to be appointed as the commissioner, and I understand that a number of non-lawyers have been so appointed.

It is accepted that to be effective as a conduct commissioner, a lay person would need to have significant understanding of the legal profession. Not only does the role have overtones of consumer protection, it is also very important that the commissioner support the ethical framework which is so important for the operation of the legal profession within our legal and justice systems.

In that regard, New South Wales and Queensland require that the person be 'familiar with the nature of the legal system and legal practice, and possess sufficient qualities of independence, fairness and integrity.' Victoria requires that the Attorney-General appoint a person they consider has sufficient knowledge of legal practice and the legal system to be able to perform the functions of commissioner.

I note that other states have deemed it appropriate that the commissioner could be a lay person. Only the Weatherill Labor government is ruling out that possibility. In terms of the Legal Practitioners Disciplinary Tribunal, I note that like South Australia Tasmania has a 15-member tribunal. However, unlike the model proposed by this bill, Tasmania requires that one-third of the members of the Legal Practitioners Disciplinary Tribunal be non-lawyers. By analogy that reminds me of the Medical Board of South Australia which provides that a third of its membership comprise lay members.

I appreciate that the medical profession and the legal profession are very different professions but they both are very rich in ethical issues and strong in professional culture, so I find it noteworthy that it is deemed appropriate that the Medical Board of South Australia involve a third lay people. It is our view that a similar practice in relation to the tribunal is appropriate. In our view, the government should not cut consumers out of the regulation of the profession because by doing so the government is actively damaging public confidence in the commissioner and in the processes. On behalf of the opposition I will be moving amendments to the bill to enable a non-lawyer to be appointed commissioner and to ensure a third of tribunal members are non-lawyers.

I now turn to the investigatory powers of the commissioner. Schedule 4 of the bill provides for the legal profession conduct commissioner's investigatory powers. I understand these provisions are largely based on the national model law, although there are some variations. Both the Law Society of South Australia and the Liberal opposition are of the view that the investigatory powers of the commissioner are very strong. However, the society has not proposed any change. The opposition, as we have on numerous other bills before this council, will be opposing the clause which derogates from the individual's privilege against self-incrimination. We believe that even lawyers are entitled to that privilege.

This Labor government has repeatedly included provisions which undermine the privilege without strong policy grounds for doing so. We do not support that approach. I seek leave to continue my remarks.

Leave granted; debate adjourned.


[Sitting suspended from 13:00 to 14:16]


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