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Friday, 26 May 1972
Page: 2179

Senator DEVITT (Tasmania) - I move, as an amendment:

That sections 10 and 11 of the Legal Practitioners Ordinance 1972, as contained in Australian Capital Territory Ordinance 1972 No. 4, and made under the Seat of Government (Administration) Act 1910-70, be disallowed.

We have heard something of an explanation of the reasons why it is desired to confine the objections of the Australian Labor Party to 2 sections of this ordinance. For the enlightenment of honourable senators, I will state a brief description of them. Section 10 introduces a new section 15a to the principal ordinance which provides for a triangular profession. Senator Murphy has touched upon this. It forms the principal basis of our objection to the ordinance. Section 11 provides the bases for carrying out this proposition. It inserts a new Part IIIA which contains proposed sections 15b to 15q dealing with practising certificates and providing for very limited entitlements to obtain unrestricted practising certificates. Proposed section 15e is of crucial importance. This whole Part could well be disallowed because it is incorporated in section 11.

Looking at the sensible aspect of confining this matter to a disallowance of sections 10 and 11, I think it should be borne in mind - I reiterate that this was referred to by Senator Murphy - that the Senate on a number of previous occasions has disallowed this proposition to fragment the legal profession in the Australian Capital Territory into 3 parts, namely, barrister and solicitor, barrister, and solicitor. If we are to be consistent we must again reject the proposition that the profession in the Australian Capital Territory be broken up in the way proposed. It would be foolish in the extreme if we were to reject the whole of the ordinance when, in fact, it is very desirable and most important, for the regulation of the practice of law in the Australian Capital Territory, that the majority of the provisions in this ordinance be retained.

My concern stems from my regard for the public interest. In a matter of this kind, a question involving the practice of law with all its involvements for the ordinary people, there should be some regulation of the practice of various areas of the law. The law affects the ordinary citizen in many different ways, and its effects are growing with the complexity of life. Its effects certainly are growing in the Australian Capital Territory because the population of this area is expanding at an extremely rapid rate. The requirements for legal services have grown apace. If one were to look at the history of the development of legal services is the Australian Capital Territory one would not have to go far back in time to find a period when there were rather elementary services available to the people. I hope that in saying that it is not thought that I am disparaging the legal profession at that time. That was a fairly natural consequence of a relatively small population. But as the population of this area has grown, so has the importance of the practice of law grown and so has its consequence for the people of the community.

I want to mention a few of the areas of life which are touched by the need for legal guidance. People require recourse to law to establish citizen rights. They need legal advice to buy and sell and to transfer property - advice on conveyancing matters. They need advice on questions involving the investment of their money. We recently had some evidence of the need for very close legal scrutiny in the area of securities and exchange. People need help in making wills or on matters involving testamentary disposition. They need legal advice in executing deeds, contracts or trust documents. They need advice on planning estates, arranging finance, the use of trust funds, entering into contracts, asserting citizen rights under the Constitution, defending themselves or their families in the courts of the land, fighting for their freedom and liberty, and generally in asserting citizenship.

The Attorney-General (Senator Greenwood), when introducing the ordinance in the first instance, gave a clear explanation of what was proposed and what the Government intended to achieve. If the Senate will bear with me I think it is important that I set these things out in detail so that honourable senators will have a full understanding of what is involved and perhaps can appreciate more the need not to wipe out the ordinance as a whole but to deal with the particular sections of it which are found to be offensive to certain sections of the community. It seems to me that those sections endeavour to perpetuate a system which largely has gone out of favour in other parts of the country.

The ordinance proposes to do the following things: It proposes that the Law Society of the Australian Capital Territory should be incorporated. It proposes also that appointment of Queen's Counsel for the Australian Capital Territory be made by the Governor-General. Entitlement to practice in the Australian Capital Territory is to cease to depend upon the Judiciary Act and instead will be provided for directly by this ordinance. Persons practising as solicitors are to be required to hold current practising certificates. A disciplinary committee of the Law Society is to replace the present disciplinary board, and the disciplinary provisions generally are revised. A scheme for solicitors to make deposits from their trust accounts to the Law Society is to replace the scheme for deposits to be made with the inspector of solicitors' trust accounts. A fidelity fund operated by the Law Society is to replace the existing scheme for claims in respect of defalcations.

Honourable senators can see from those general provisions of the ordinance that we would be foolish in the extreme to disallow the ordinance in its entirety but I think we would be equally foolish if we were to enshrine in it or import to it provisions which are regarded generally in this day and age as objectionable and which have been discontinued in certain parts of the Commonwealth. There are States in the Commonwealth which do not differentiate in this way and there the legal system works quite happily and satisfactorily. However if these objectionable practices were introduced into this ordinance relating to legal practitioners in the Australian Capital Territory we would 'be importing things which are against the public interest. That is what concerns me.

Before continuing and spelling out further objections to sections 10 and 11, I ought to point out that I am speaking now not as a member of the Senate Standing Committee on Regulations and Ordinances which looked closely at this ordinance but in my capacity as a private member of the Senate on the Labor side. Because of the complexities of our society people need to have frequent recourse to the valued judgments of persons trained in the law. It is important to remember that there are many people working in various areas of the Public Service in the Australian Capital Territory who have graduated in law but who have not had experience at the Bar or in the courts of the land. I think this would be the case with a great many of these people. They are used in many advisory capacities in the various areas of the Public Service in the Australian Capital Territory.

However, there needs to be a law covering the practice of the legal profession in the Australian Captial Territory so that people living here can be more or less assured that the level of expertise of the profession to which they have recourse is the highest possible. There must be some control and there must be some limitations on the areas in which people operate in this profession so that the community at large can rest assured that the people from whom they seek advice are qualified and experienced.

In this ordinance it is proposed that the legal profession should be divided into solicitor, barrister and solicitor, and barrister. I have been told that if one were to dissociate oneself from the ordinary humdrum and everyday activities of the solici tor and hang up a barrister's shingle, one would move into a fairly comfortable area in the legal profession. A person doing this would be indicating to the community at large that he has some expertise, professional background and knowledge in this particular area of legal practice. Therefore the public has some right to feel assured that such a person is competent to discharge the requirements of that office.

In the minds of the general public there is something of a fear of the mystery of the law. Members of the community at large should be able to feel sure that when they seek legal advice they are getting the best advice possible. However, when the legal system is broken up into the departments suggested in this ordinance, I suggest, the cost to the community is going to be substantially greater than it is at the present time. People naturally will consult the lawyer to whom they go for so much advice in so many different areas. If the question requires the services of a barrister there will be the additional expense of engaging the barrister for the particular function he has to perform. If the matter is to be argued in the courts of the land, ultimately a Q.C. may have to be engaged. Therefore the cost to the ordinary citizen seeking legal advice will be increased substantially if we proceed with the proposition that the Government has put before us in this ordinance at the present time.

Senator Durack - Where does the ordinance require a person to go to a barrister?

Senator DEVITT - As a practising lawyer, Senator Durack would know that these people set themselves up as specialists in a particular field.

Senator Durack - Where does the ordinance require it?

Senator DEVITT - I am talking about the effect of the ordinance on the ordinary citizen. It does not necessarily need to be spelt out. As I said, the preservation of the public interest is of primary importance in any consideration of a matter of this kind. While, as Senator Durack indicated by way of interjection, it is not specified in the ordinance that a person must take these steps, this in fact is what happens in practice. One naturally, as a first step, consults his solicitor about some matter worrying him.

Senator Durack - It is not what happens in practice in any place.

Senator DEVITT - Senator Durack would know that, for instance, a person does not have access to a Queen's Counsel. One goes to some lesser legal luminary in the community who then goes to the Q.C. Senator Durack knows very well that there is a relativity of charges which is observed as between the practising barrister and the Q.C. which adds very substantially to the cost to the community of legal advice. I am not suggesting for a moment that there is any attack upon the professional standing or ability of people practising law. What I am saying is that when the movement generally these days is against this sort of practice, we are endeavouring to import into the Australian Capital Territory a practice which has fallen into disuse in other areas of the Australian community. I wonder whether it would be correct to introduce into the Australian Capital Territory something which has fallen into disfavour in other parts of the Commonwealth. There is a restriction in the availability or accessibility of lawyers where these different levels are established and there are increased costs to the community, for the reasons that I have spelt out. The cost to the ordinary citizen is substantially higher, particularly where there is a defended action and it is necessary to seek the higher level of legal advice.

I have mentiond that the need for these services has grown over the years. I suppose the legal practice in the Australian Capital Territory has grown in much the same way as it has developed over the years in other parts of the Australian community. I do not deny for a moment that, at this stage, it is proper for the Government to provide laws regarding the operations of the legal profession which regularise that profession and which provide the best service possible to the Australian community. Within the last decade barristers used to visit the Australian Capital Territory from parts away - from Sydney and Melbourne. The growth in the population of the Australian Capital Territory, bringing with it a natural and consequent requirement for a greater amount of legal advice and services, has brought about a development of the legal system in the Australian Capital Territory to the point that it now has reached. There is nothing wrong with the establishment of the barrister-solicitor relationship. It already operates in certain parts of the Commonwealth. It operates in my own State of Tasmania and I have not heard of one instance where dissatisfaction has been expressed in that State. One wonders what would happen if this entire ordinance were to be wiped out. I would say that would be a very retrograde step indeed.

I do not want to weary the Senate with a long speech on this subject. However, I come back to the point that on numerous previous occasions the Senate has refused to accept the proposition that there should be a break-up in the various areas of the legal profession. If we are to be consistent in this regard and if we are to follow the original proposition that the entire ordinance be disallowed, I suggest that there would be no law or at least a very much weakened law in relation to the operations of the legal profession. There are some interesting new provisions contained in this ordinance and I believe it is a sincere attempt to bring the legal system in the Australian Capital Territory up to date. I think it is most unfortunate that this matter has come before the Senate for the third time. I hope we will hear a very real explanation given by the Attorney-General as to why the Government proposes to persist with its idea when the Senate in its wisdom, having made a recent judgment on the whole question, has decided in the past not to accept this proposition.

The PRESIDENT - Order! Is the amendment seconded?

Senator O'byrne - I formally second the amendment.

The PRESIDENT - Will Senator Devitt sign his amendment?

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