Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Tuesday, 31 May 1994
Page: 971

Senator SPINDLER (7.02 p.m.) —by leave—I wish to comment briefly on the Sackville report which the Senate is addressing today. The Sackville report pulls together a whole range of recommendations, many of which have been previously contained in other reports—for instance, in the report on the cost of justice inquiry by the Senate Standing Committee on Legal and Constitutional Affairs; in the report by the inquiry on the operation of the Family Law Act; in the report by the TPC on its recent investigation of the legal profession, as well as in the Hilmer report on competition policy. But I believe the Sackville report is a very timely, comprehensive assessment of a very large range of measures that needs to be taken to reduce the cost of justice.

  Generally, the Australian Democrats welcome the proposals contained in the report. In particular, we welcome the recommendations for increased funds for legal aid and community legal centres, more mediation and arbitration programs, more deliberate case management by judges, more mediation in specific areas such as the family law jurisdiction, a review of court fees and procedures, removal of the remaining restrictions on advertising and the establishment of an independent complaints mechanism for the legal profession which is long overdue. As I said, these have been part of numerous recommendations on the reform of the legal system which have been made before. It is, however, a measure of the magnitude and complexity of the task that some concerns remain, despite this very comprehensive range of measures suggested.

  Before I get onto our concerns, I would like to say that it is to be hoped that the Commonwealth government will now find, at long last, the political will to overcome the institutional inertia of the legal system as well as the clout of those in the profession who seek to maintain their privileged and lucrative position and indeed implement the majority of the reforms suggested. The concerns that we have about the proposals concern mainly the level of lawyers' fees. It is proposed to allow market forces to operate by abolishing fee scales and allow solicitors and barristers to advertise their services and their fees. As well it is proposed to provide market knowledge for prospective clients by publishing regular statistical surveys of fees charged by the profession to enable those seeking advice to judge whether they should agree to the fees offered by the solicitor or barrister.

  These recommendations assume that clients and lawyers are negotiating from a position of equality. In fact, lawyers have succeeded in maintaining an aura of mystique and authority and in most cases will be dealing with people from lower socio-economic strata with lower levels of education than those in the profession. Together with a better information base lawyers will therefore usually be in a position of superior market strength which must be balanced if lower costs are to be achieved.

  Professor Sackville points to the independent complaints authority—and, as I have said, that will certainly be most welcome—and the fast track review mechanism for disputes less than $20,000. However, all this occurs after the event, and making a complaint and obtaining statistical information requires an act of will and resources of some time and money, even though efforts have been made to reduce that, and many clients could not muster those resources and should not be asked to.

  Even if lawyers were obliged to provide prospective clients with the latest relevant statistics when they make the first inquiry, the average or median costs will still be derived from the aggregate fees charged which are determined by practising members of the profession. If we are serious about creating a contract between equals then we should empower the Prices Surveillance Authority to supervise the profession and to provide guidelines on maximum acceptable charges. Since we are looking for market solutions we should generate some real competition and provide a funding boost for community legal centres.(Time expired)