LEGAL SERVICES COMMISSION (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 24 February 2016.)

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 AttorneyGeneral 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.