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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-08-24 Daily Xml
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Answers to Questions

Legal Profession Conduct Commissioner

15 The Hon. F. PANGALLO (24 June 2021). Will the Attorney-General advise:

1. Is it correct that Mr Greg May, in his capacity as the Legal Profession Conduct Commissioner, sits at the pinnacle of the legal profession in South Australia in terms of, amongst other things, the maintenance of professional standards and conduct of legal practitioners, and therefore must be of impeccable integrity with an unblemished reputation in the profession so as to maintain the respect of the profession and the public's confidence in the legal profession and the justice system?

2. Whether or not the Legal Profession Conduct Commissioner and his staff are immune from the consequences of breaches of the law and in particular from breaches of the Public Sector (Honesty and Accountability) Act 1995 (SA) ('PSHA Act') and if so, how so?

3. If not, then is it correct that Mr Greg May, having been found by a majority judgment of the Full Court to have contravened s17 of the PSHA Act five (5) times, that he is liable to be charged for such breaches, and if not why not?

4. If she intends to initiate an investigation into these five (5) breaches of s17 of the PSHA Act by Mr May as found by the Full Court? If so, what action will she take specifically? And if not, why not? Can she also please advise if the scope of any such inquiry will extend to any other circumstances in which Mr May may have been in a position of conflict of interest and whether or not in those circumstances Mr May complied with s17 of the PSHA Act? And if not why not?

5. If those breaches were made out, will the penalty for such breaches as outlined in the PSHA Act apply to Mr May? If not, why not?

6. If she is going to initiate an investigation as to why Mr May failed to disclose all but one of the breaches of s17 of the PSHA Act to, amongst other departments, the Office of the Attorney General and the Office of Public Integrity and why Mr May failed to disclose any of the said breaches of s17 of the PSHA Act in his Annual Reports. If not, why not?

7. What action if any is proposed to be taken against the former members of the board and Commissioner May in light of the recent findings of the Full Court in Viscariello v Legal Profession Conduct Commissioner [2021] SASCFC 24 delivered on 14 May 2021 to the effect that Mr Viscariello's complaints were unreasonably delayed over a period of some 12 years and that Commissioner May was not entitled to ignore the long history of delays in investigating Mr Viscariello's complaints by the board (noting that Mr May was carrying out the same functions of the former board which Mr May replaced). If no action is to be taken, why not?

8. Given these circumstances—

(a) Why has Mr May not yet been asked to resign?

(b) Why has Mr May not tendered his resignation?

(c) What action, including disciplinary action, has been taken against Mr May concerning his aforesaid conduct; and if none has been taken, why not?

(d) Why does Mr May seemingly continue to enjoy the confidence of the Attorney-General and the government?

9. Does the Attorney-General intend to conduct an independent impartial inquiry (by people outside the state) into the circumstances of the some 12-year delay in investigating Mr Viscariello's complaints, the five breaches of the PSHA Act as found by the majority of the Full Court, and other acts and omissions of the board and subsequently of Mr May which, but for the operation of the transitional provisions which took effect on 1 July 2014 as found by the Full Court, were likely to have been found to amount to poor or maladministration as alleged by Mr Viscariello and as was referred to in the judgments of Hinton J and the Full Court. If the Attorney-General does not intend to establish such an inquiry, why not?

The Hon. R.I. LUCAS (Treasurer): The Attorney-General has advised:

In the course of his duties, the commissioner identified a potential conflict of interest. He immediately disclosed this to the former Attorney-General and delegated his powers in order to avoid the potential conflict. The only error by the commissioner was that he did not have written approval of the former Attorney-General to delegate his powers at the time of doing so. Appropriate delegations were subsequently obtained. The Full Court found that the commissioner’s course of action in this matter ‘was perfectly proper in the circumstances as it was ‘conducive to the efficient discharge of administrative functions’’, and that there was ‘no basis for finding maladministration’ in the matter. The Full Court declined to make a declaration of unlawfulness with respect to the conduct.

All public sector staff are subject to the provisions of Public Sector (Honesty and Accountability) Act 1995 (the PSHA Act). However I am not responsible for administering the PSHA Act, and do not have the power to initiate an investigation or inquiry into the matter. Nor do I consider it necessary.’

Viscariello v Legal Profession Conduct Commissioner [2021] SASCFC 24 [74].

Viscariello v Legal Profession Conduct Commissioner [2021] SASCFC 24 [105].

Viscariello v Legal Profession Conduct Commissioner [2017] SASCFC 98 [255-256].

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