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Friday, 26 May 1972
Page: 2186

Senator MURPHY (New South WalesLeader of the Opposition) - The amendment which has been moved by Senator Devitt is the substantial matter before the Senate and I ask the Senate to support it. It is directed towards disallowing those parts of the Legal Practitioners Ordinance 1972 which would divide the legal profession. I said in my opening remarks to the Senate, and it has been said on earlier occasions, that the division of the legal profession is against the public convenience, is productive of more cost to the public, is productive of inefficiency and should be done away with. It is very significant that the Attorney-General (Senator Greenwood) has not attempted to rebut any of those claims.

Senator Wright - You are not suggesting that this Ordinance requires a division of the profession, are you?

Senator MURPHY - I am, Senator. It is quite clear that sections 10 and 11 of the Ordinance now before the Senate would require a division of the profession, because section 10 provides for the entitlement to practise in 3 different categories and creates the triangular profession which was the basis of the objection of the Senate in 1969, and part Hia in section 11 provides for practising certificates which are restricted. They are not all on the same basis. The Attorney-General is playing with words.

Provision is made for the introduction of restricted practising certificates so that certain persons only will be able to practice as solicitors - the others will be barristers - and in this way the profession will be divided again. It is quite unsatisfactory that this provision should persist in the Ordinance, that it should be introduced after the Senate had expressed its views and the provision had been taken out of the 1970 Ordinance, and that there is a reintroduction of these objectionable provisions. This touches more than the legal profession; it touches the people of Australia. There are growing complaints in this community about inefficiencies in various spheres of life and some of those complaints are directed to the legal profession. I hope that those who are in the legal profession will start to do something to put their house in order before those complaints grow to a torrent Already we have had unanimously passed in mis Senate a motion referring to the Standing Committee on Constitutional and Legal Affairs matters of divorce dealing with oppressive costs. Senator Negus comes into Ais chamber and speaks about the position of widows and others in relation to death duties. One of the matters which greatly affects widows and others in similar situations is the matter of legal costs. When legal proceedings are instituted in a court, there is a doubling up of costs which ought not to be accepted in the modern community.

The provisions to which objection is taken are part of the scheme which is designated to perpetuate the division in the profession. I do not think that the division will persist for very much longer because it is an intolerable division of the legal profession and it will be swept away. That is why in 1969 the Senate voted 29 to 20 that there should not be a division of the profession. It is unnecessary, it is cumbersome, it is inefficient and it is costly. The Australian public is entitled to a legal profession which is properly organised, which does not have divisions of this kind and which will give the public the service to which it is entitled, at a reasonable cost. If one reads from the time of Dickens onwards one sees that this nonsensical division in the profession ought not to be tolerated.

The legal profession is a very conservative profession and it hates to give up its out worn traditions. It wants traditions and practices which are based on the principle of service to the public in carrying out the proper role of the profession in the community. I want to see that persons are able to practise properly as advocates in the community. There should be trial lawyers as there are in other places. I think this nonsensical division ought not to be persisted with any longer. The very growing opinion among the legal profession, especially among the most eminent practitioners of it, is that the division is no longer productive of efficiency and that it ought to be done away with. They are very dissatisfied with it. They can see that it is hurtful to the people whom they represent. I ask the Senate to state that a rearrangement in order to perpetuate the division in the profession ought not to be tolerated. lt is like other things in the community. One has to keep on pressing and pressing until finally they are done away with.

The position in the Australian Capital Territory is of great importance to the Australian public because what is done here will probably serve as a model for the rest of Australia. We are not dealing only with the rights of the legal profession. This is seat of government. The High Court will be here. Other courts will be here. It is very important how the legal profession is conducted in this community and it Ls important that people in the Australian Capital Territory should have the right to an efficient legal profession. There should be an elimination of this nonsensical division. Not only are the people of the Australian Capital Territory affected, but people outside the Territory in future will have to come here more often in order to pursue their rights in the courts which will be set up in the Territory. As in other countries, the courts situated in the seat of government will be the courts in which, for various procedural reasons, many of the rights of Australian citizens will be protected and pursued by proceedings initiated in those courts. This ought to be looked at as an Australian matter. I ask that the Senate persist in the view which it expressed on the 1969 occasion.

Senator Wood - Does not the honourable senator think that the amendment really carries out what the Senate agreed to previously?

Senator MURPHY - It is an undoing of what the Senate did. It is a reintroduction, put in different words, to overcome what the Senate did in 1969. There was a triangular profession. We got rid of that by an overwhelming vote. In 1970 the 2-sided profession was eliminated. Now we have gone back in substance, with a cover of words, to the triangular profession that was rejected in 1969. I think it is quite unsatisfactory that this be reintroduced into the legislation. Why was the ordinance introduced, except to get back to what was sought to be done in 1969? I ask that the Senate confirm what it did in 1969 by supporting the amendment moved by Senator Devitt.

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