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Friday, 26 May 1972
Page: 2178


Senator WRIGHT - There would be no provision for practising certificates at all, would there?


Senator MURPHY - I would think not, in those terms. But the provision is for admission as a barrister and solicitor. We would expect that if the view of the Senate were once again made clear, that if there was objection to the division of the profession and it was expected that the profession would be undivided, tidying up the Ordinance would not create much difficulty. It is the principle of the matter with which we are concerned. On the last occasion the majority of the Senate again took the view that there should be an undivided profession. That viewpoint is becoming more widely held throughout Australia. Nevertheless the ordinance we are dealing with here is contrary to that viewpoint. The legal Practitioners Ordinance No. 2 1970 which preceded this repealed the remaining provisions of the earlier Ordinance to which I have referred. While similar in many respects, it omitted the contentious provisions. There was no incorporation of the Law Society, no provision for practising certificate, truncated provision for admission and altered provisions relating to trust accounts in view of the omission of the incorporation of the Law Society. Minor amendments were made to this ordinance by the Legal Practitioners Ordinance No. 3 1970 and by the Legal Practitioners Ordinance 1971. Those provisions were brought into operations in part.

In reply to what was said by Senator Wright a little earlier, I point out that the ordinance, which was introduced in 1970, omitted the provision for practising certificates. This present ordinance has made further amendments to the previous ordinances and inserted provisions along the lines of those omitted from the second 1970 ordinance. The Law Society is incorporated, provision is made for Queen's Counsels and precedence, the disciplinary provisions are revised and trust account matters are changed. The 2 aspects of this ordinance which concern the Opposition are those which are primarily dealt with in the sections that I mentioned. Those are the sections which refer to the division of the profession. By section 10 it is proposed, after section 15 of the principal ordinance, to insert the following new subsection: 15a. Subject to this Ordinance, a person whose name is on the Roll of Barristers and Solicitors -

(a)   is entitled to practise in the Territory -

(i)   as a barrister and solicitor;

(ii)   as a barrister; or

(iii)   as a solicitor; and

(b)   has the right of audience in any court of the Territory.'.

It is clear that it is contemplated there will be a triangular profession in the Australian Capital Territory. Part IIIA goes on to deal with the certificates and provisions which would carry that into effect. This is simply a repetition of the determination to have the profession divided in the Australian Capital Territory. In fact, it would be even more divided than generally is the case in the other States. That is the reason for the objection. The matter has been canvassed at great length in the Senate. In view of the earlier procedural matters, I do not have much time to go into the question again at great length. The provisions speak for themselves; it is as simple as that. The amendment will be moved and put before the Senate. The question, which is the same as that which has arisen before, is whether the ordinance will ensure a divided profession in the Territory. In 1969 we resolved no; in 1970 we resolved no. The position has arisen again. Notwithstanding that the Senate's will was acceded to during 1970 and the provisions which would have created the division were removed, in 1972 we again find an attempt to divide completely the profession into the categories of (a) barrister, (b) solicitor and (c) barrister and solicitor. That is the point of our objection. The other provisions in general are sensible. Of course, provisions relating to trust accounts, disciplinary matters and so forth should be contained in the ordinance. No viewpoint has been expressed against these over the years by Opposition senators, apart from a few trifles that were raised about the ordinance on an early occasion. We have been concerned with this principal matter. It is what the debate is all about today. We think that it is contrary to the interests of the legal profession and of the community that there should be this absurd division in the legal profession. It is productive of inefficiency. I believe that it is one of the main reasons why one hears complaints about oppressive costs in the operation of the legal system. I think that if the Senate can do anything to cut out this anomalous and out of date separation of the legal profession it should do so. We ought not to have the profession so divided and so fragmented that it is an encumbrance upon the proper administration of justice and a very great inconvenience and cost to the public. It is on those grounds that I would seek to have this done.

One could go into the details. But 2 things prevent me doing that. Firstly, we have discussed them in great length on previous occasions, and secondly, my time for speaking on this occasion has almost expired.


Senator Durack - What specifically is your objection to section 11 of the ordinance and the proposed new Part IIIA?


Senator MURPHY - That is the means of carrying out what is contained in section 10. Section 11 which inserts Part IIIA relating to practising certificates is really the machinery provision to ensure the separation of the profession. If one examines the ordinance an occasional reference will be found - it would be meaningless - which deals with solicitor as distinct from barrister and solicitor, but the principal matters are dealt with in sections 10 and 11. I am bound by your ruling on the matter, Mr President. I move:

That the Legal Practitioners Ordinance 1972, as contained in Australian Capital Territory Ordinance 1972 No. 4, and made under the Seat of Government (Administration) Act ,1910-1970, be disallowed.

I do so on the understanding that one of my colleagues will move an amendment to restrict it to sections 10 and 11 which are the sections with which we ask the Senate to concern itself.







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