LEGAL PRACTITIONERS (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 22 June 2016.)

Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (11:40): I indicate that the opposition has considered the Legal Practitioners (Miscellaneous) Amendment Bill 2016 and that we will support the passage of this bill. Essentially, it is to do two things; one is to remedy what I think could be described as an omission in drafting the previous bill, resulting in an unintended consequence, in any event, namely, to facilitate the allowance of incorporated legal practices to practice the profession of the law in partnership with another incorporated legal practice or with an individual legal practitioner. This was identified and has been incorporated in this bill.

I think it is fair to say that is the minor but necessary matter that needs to be tidied up and we accept that. It appears that the Law Society have been active in identifying this anomaly and that this amendment is consistent with their request. In respect of the balance of the bill, which is essentially to implement amendments at the behest of the Legal Profession Conduct Commissioner, Mr May, members will be aware that in the last two years or so he has operated as a commission to replace the old legal practitioners conduct board to deal with the misconduct of legal practitioners, usually resulting from some complaint by a party who feels that they have been unfairly dealt with, including everything from inconvenience to their being a significant victim, of either act or omission, of a legal practitioner.

Whilst the Supreme Court has a significant role in relation to the registration of legal practitioners and suspension, where appropriate and where necessary, it also gives a disciplinary role to the commissioner by virtue of the 2014 amendments. So, he has an important job to do. The amendments in this tranche of reform are to impose a three-year limit for complaints. It still enables the commissioner to retain the right to investigate matters outside that time limit, but it does impose that limit.

Secondly, it ensures that the commissioner is no longer required to investigate complaints where there has already been a declaration—that is, a court order of the Supreme Court—that the applicant has already been declared a vexatious litigant. At present, the commissioner still has an obligation to receive and assess that complaint for the purposes of dismissing it, reporting on it or of course conducting a full investigation of it. The third area of reform is purportedly to clarify the nature of an appeal to the tribunal against the determination of the commissioner. This provides that an appeal to the tribunal will be by way of rehearing, and the tribunal must, in reaching the decision, have regard to and give appropriate weight to the determination of the commissioner.

Finally, the bill makes some more minor amendments to allow the commissioner to publish on the register the name of any legal practitioner who has had their practising certificate suspended and, secondly, gives a discretionary power to the commissioner to cause information about the disciplinary action to be removed from the register in circumstances prescribed by regulation. I do not have any issue with the latter. I just want to make some comment in respect of the imposition of a time limit.

Whilst this may significantly reduce the workload of the commissioner by virtue of the stroke of a pen—the imposition of the three-year rule—members ought not be under any illusion that some of the people who feel aggrieved at, in their view, the injustice in not having their complaints heard against legal practitioners in relation to, as I say, the acts or omissions in the conduct, usually, of the complainant's case, will not go away. Already, we receive as members of parliament, and probably the Attorney and I more than any, some very lengthy submissions from people who have felt aggrieved either by, in their view, the inadequacy of the previous Legal Practitioners Disciplinary Tribunal determination of their matters or, more recently, by the commissioner himself.

They will come to us, and there will be an expectation that there will be some redress in this parliament, if they are not going to be dealt with as a conduct and disciplinary matter by the statutory office that we have now in place which, as I say, replaces the old tribunal. Be under no illusion, there are people in our community who feel aggrieved. They, at times, have put in multiple complaints and, at times, the Attorney has seen fit to appoint someone else—another party entirely—usually a retired judge or senior counsel, to try to independently make an assessment of the validity of concerns that have been raised.

Those concerns are very real for the complainants, who sometimes have some just cause, with the way they have been treated. Sometimes, even if one is sympathetic to the contribution that they put into these submissions to us or to other parties—they are feeling aggrieved and rightly so— there is no immediate way that we can remedy those past events. Certainly, as a parliament, we should always be alert to the concerns that are raised. Quite frequently, and probably the Attorney is in this position as well, we receive letters of complaint about judges or judgements. We now have a complaints procedure established by this parliament to deal with it. The Attorney is yet to appoint someone to deal with it, but—

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: We are told that is imminent; nevertheless, there are some processes to deal with these things, so it is important that we remain alert to them. I do not think they will stem the amount of correspondence we as members of parliament receive from time to time, especially from prisoners. I got one this morning from someone in the Mount Gambier Prison who is very aggrieved about what he considers the determination of a judge and the conduct of criminal proceedings which resulted in him being imprisoned, he says unfairly, and his daughter continuing to be at risk of apparent further sexual exploitation.

These are very serious matters. It does not mean that we as members of parliament can easily remedy these matters. We have a legal process, we have an appeal process, usually, to deal with these matters. The introduction of a time limit will lighten the load for the commissioner but probably expand the role that we will have in trying to assist people through these matters. Secondly, in respect of the requirement not to investigate in the event that a court declaration has already been made, I am not sure that is the right way to go. I can see, on the face of it, the reason for doing it.

If an application is made to a court that someone is pursuing a trivial matter in a vexatious way, then that is a process which in itself is often quite lengthy. Sometimes the applicant who is the subject of a declaration represents themselves and they may feel very personally involved and aggrieved, but nevertheless they may not have had the benefit of some other independent advice, sometimes because they might have lost confidence, obviously, in the representation they have had previously. Nevertheless, again, this is a measure which will relieve the commissioner from having to review that again.

Then, of course, we have the question of the nature of appeal to the tribunal. On the face of it, I think that the legislation itself is deficient in the appeal process. Frequently, I come into this house on behalf of the opposition to raise concerns about the narrow opportunity for appeal, limited opportunity for appeal or, indeed, no appeal that is being proposed by the government in pieces of legislation. Sometimes, when they allow an appeal, there is no opportunity for the recovery of legal costs when an applicant is successful because of this obsession by the government in having legislation where there are no costs following the cause.

We continue to have those disputes, but they are not essentially the subject of the reforms in this legislation, so I am not going to go into the detail of them again. I think it is fair to say, though, that probably, by at least the first two measures here, we are going to be transferring the problem to members of parliament even more than they are now and, sadly, for a number of people, that is not going to provide them with any immediate joy because the capacity for the parliament to provide relief is not individually within our power to do so. Limited as these amendments are, we do accede to them and support the bill.