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Friday, 26 May 1972
Page: 2182

Senator GREENWOOD (Victoria) (AttorneyGeneral) - The Government will oppose the amendment, as it will oppose the motion. I take no point on the propriety of the amendment which has been moved because I unquestionably accept that, under the Standing Orders, to a motion that has been moved an amendment may be moved. However, I mention this only because a question conceivably could arise as to whether any motion so amended passed by the Senate would in fact accord with the provisions of the Seat of Government (Administration) Act under which there is power in any House of Parliament to move motions for disallowance. 1 understand that would not be a matter which should concern this chamber. It would arise only in the unfortunate eventuality of the motion being carried. The Government opposes this motion because no good reason has been shown why it should be carried. The motion seeks to disallow the Legal Practitioners Ordinance which has been in operation since the beginning of February this year. Under this ordinance members of the legal profession in the Australian Capital Territory have organised their affairs. They have lodged applications for practising certificates and have received them. Under the provisions of this ordinance His Excellency the GovernorGeneral has appointed a number of Her Majesty's Counsel and they owe their appointments to the provisions which are contained in this ordinance. It would create an alarming state of affairs, with great complexities and many difficulties having to be unravelled, if this ordinance were to be disallowed. I can say only that if the Senate were to disallow the ordinance, it would be an action which would not be to its credit.

I regret that the motion has been argued substantively today. As I indicated at an earlier time, I understood not from remarks made in this chamber but from remarks made outside it that the purpose of putting down the notice of motion was to accord with the requirements of the law that if we wanted to argue the matter at some later stage we had to give notice within a specified time. As the specified time was expiring, the notice had been put down and from that day until this I had received no information to suggest that the matter was to be argued substantively. Having said that, I do not question for one moment the right of the Australian Labor Party if it wishes, for whatever reason, to argue this matter and the argument will be met on its merits. However, I do feel that the Labor Party, which has a provision in its platform that it does not like a separate profession but prefers a fused profession, has decided, in a somewhat doctrinaire way, without regard to the problems which would be created by that policy, to give expression to that policy on this occasion. I emphasise, lest there be any doubt about it, that this Legal Practitioners Ordinance was accepted by the

Advisory Council of the Australian Capital Territory to which all ordinances which are to come into effect in the Australian Capital Territory are submitted before they are made by the Government. The Advisory Council accepted this ordinance. So local opinion, as it is represented on the Council, accords with what the Government has done.

Senator Wood - Does it conform to Senate opinion?

Senator GREENWOOD - I think I can say that it does. But I propose to indicate shortly what the Senate did on prior occasions. The honourable senator can make his judgment as to Whether it meets the points of view there expressed. Likewise, this ordinance has been submitted to and worked out in conjunction with representatives of the legal profession in the Australian Capital Territory. They are in favour of it. I know that they would be very concerned if this motion were carried.

Senator Devitt - Does the AttorneyGeneral say that they were completely in favour?

Senator GREENWOOD - The bar association of solicitors has supported and worked out this ordinance in conjunction with officers of my Department. As I said, the Law Society of the Australian Capital Territory would be appalled if this motion were to be carried because of the tremendous problems which would be created for the profession in this Territory. This may go part of the way towards explaining one or two matters about which Senator Wood would possibly be concerned. There is one difference between what happened on 2 earlier occasions when a Legal Practitioners Ordinance was before the Senate. On each of the earlier occasions either the barristers or solicitors in the Australian Capital Territory, in their corporate capacities, decided to oppose the measure which was then being presented. I think that a number of honourable senators were approached by representatives of those bodies on that occasion. According to the weight which those representations had on honourable senators, so the vote went. On each occasion, for reasons which were satisfactory to representatives of the profession, the ordinances then made were disallowed. As a result of that experience and taking into account the views then expressed, what we now have is an ordinance which accords with the views of the profession, of the Advisory Council, and I sincerely hope, of this Senate.

Senator Murphy - Was the rest of the legal profession in Australia consulted? This is the seat of government and it is going to be the future site of the High Court.

Senator GREENWOOD - I do not know the relevance of what Senator Murphy raises but it is a fact that the Law Society of the Australian Capital Territory is represented on the Law Council of Australia. I know that matters of this character do come before the Law Council of Australia. In the absence of any representations from the Law Council of Australia I can only assume that it has no objection to this matter. Likewise, the Australian Capital Territory Bar Association is represented on the Australian Bar Association. I believe that the absence of any representations from that body indicates that there is general suport for this ordinance. In those circumstances it would apppear that the only people opposing this ordinance are members of the Australian Labor Party. As I indicated, they have a provision in their platform which says that they do not believe in a separate profession. I think it is to give expression to that provision that this time is being taken.

The first attempt in the Australian Capital Territory to provide for the regulation of the legal profession was made by the Legal Practitioners Ordinance 1969. It was the culmination of deliberations which had extended over many years. There had been amendments to the Judiciary Act which had come into the Senate and which had attracted debate in the Senate in, I think, 1966. But the first time any attempt was made to put the legal profession on an organised basis and to provide for a regulation of its activities was with the first ordinance in 1969. That ordinance provided comprehensive coverage of the legal profession in accordance with generally accepted principles. It dealt with such matters as admission, practice, discipline and trust accounts. However, in one major respect the ordinance ran counter to the wishes expressed by the profession and the public in the Australian Capital Territory. It did so because it provided for what I think one honourable senator called a triangular profession; that is it provided for admission as barrister, as solicitor or as barrister and solicitor. Because strong objection was held to that type of approach the ordinance was disallowed. The vote of the Senate was 29 in favour of disallowance and 20 against. On that occasion I think I found myself in the majority. The next attempt to regulate the profession in the Territory was in the Legal Practitioners Ordinance 1970. In most respects it resembled the 1969 ordinance which had been disallowed. Some provisions, however, which were predicated on a separate profession were omitted. Provision was made for admission to practice in one category only. The category of admission was as a barrister and solicitor. However, a person whose name was on the rolls of barristers and solicitors was expressly enabled to practice as a barrister and solicitor or as a barrister or as a solicitor. The ordinance expressly recognised the existence of the Australian Capital Territory Bar Association.

However, the ordinance did not contain provision for the regulation of the affairs of the Australian Capital Territory Bar Association as it did for the regulation of the affairs of the Law Society of the Australian Capital Territory. This led to objection from representatives of the Law Society of the Australian Capital Territory. Because the objections were directed essentially to the standing of this Bar Association which was not to be controlled in the same way as the solicitors the ordinance was disallowed. On that occasion the vote of the Senate was 25 in favour of disallowance to 23 against. But the point which I think is fairly to be made is that in the 1970 ordinance which was disallowed there was provision for admission to practice as a barrister and solicitor. One could choose in which branch of the profession one would practice. That position is still maintained in the current ordinance. I think it is fair to say that the views of the profession within the Australian Capital Territory accept that approach as a reasonable and proper way in which the profession should be organised.

After the second ordinance was disallowed a third ordinance was introduced in late 1970. That is the ordinance which is No. 43 of 1970. That ordinance is the basic ordinance which is still in force. It did not deal with the vexing questions of how the profession was to be organised. It simply relied upon the statutory provision.

Senator Murphy - Does not this new ordinance really go back to the 1969 provision in providing for the triangular profession?

Senator GREENWOOD - No, it does not. I shall explain for Senator Murphy's benefit. The 1969 ordinance provided for admission in any one of 3 categories. The 1970 ordinance provided for admission in one category only, that of barrister and solicitor. This current Ordinance also provides for admission in one category only.

Senator Murphy - What about section 10 which provides that members of the profession are entitled to practise in each of the 3 categories?

Senator GREENWOOD - I think that Senator Murphy in asking me that question is omitting to draw a distinction between admission to practice and what one may do after one has been admitted. The honourable senator will know that section 10 of the ordinance provides that a person whose name is on the roll of barristers and solicitors is able to practice in certain ways. The real question relating to admission is how one gets on to the roll of barristers and solicitors and that is by way of admission. That is in fact what the Ordinance provides. The 1970 Ordinance to which I referred provided for the admission of an amalgamated profession under the provisions of the Judiciary Act. The Ordinance expressly did not advert to the way in which people might practise once they were admitted. But at the time that Mr Hughes, as Attorney-General, made the Ordinance in 1970 it was expressly acknowledged that discussions with the representatives of the legal profession would be continuing with a view to ensuring that there was a proper method of regulating the affairs of the profession and the manner in which one could cany on one's profession in the Territory. As a result of those deliberations and discussions the Ordinance which is now before the Senate and which is the subject of the motion for disallowance was introduced.

What does this Ordinance do? It provides that the Australian Capital Territory Law Society is to be an incorporated law society. That puts it on the same basis as most, if not all, of the law societies which are to be found in the States of the Commonwealth. It provides for the appointment by the Governor-General of Queen's counsel for the Australian Capital Territory and that, of course, accords with the position which applies in the States. It provides also for the entitlement to practise in the Australian Capital Territory, to cease to depend upon the Judiciary Act and instead to be provided for directly by the Ordinance. It provides also that persons practising as solicitors are to be required to hold current practising certificates. It provides that a disciplinary committee of the Law Society is to replace the present disciplinary board, and that accords with the pattern at present in the States. The disciplinary provisions generally have been revised and there is a scheme under which solicitors may make deposits from their trust accounts to the Law Society. Of course, the deposits from their trust accounts may be used for various purposes in the interests of the profession and the community's relations with the profession. Finally, it provides for a fidelity fund operated by the Law Society to replace the existing scheme for claims in respect of defalcations.

I cannot see that there is any great problem in matters for which this Ordinance provides and any reason why the Ordinance, providing as it does for the members of the legal profession in the Territory to practise as either barristers or solicitors or as barristers and solicitors, should be disallowed. I listened to what Senator Devitt said and thought that he was labouring under some misapprehension. He referred to the situation in Tasmania where, as I understand it, people are admitted as barristers and solicitors, though if a person chooses to practice as a barrister he may do so and if he chooses to practice as a solicitor or as a barrister and solicitor he may do so. In fact the vast majority in Tasmania practise as barristers and solicitors. That, I imagine, will be the continuing position in the Australian Capital Territory. There is nothing in this Ordinance which requires persons to have the services of a barrister if they do not wish to have the services of a barrister. If they go to a solicitor then, of course, they will be guided by the solicitor as to whether the matter with which they are concerned can be properly handled by a solicitor in the Australian Capital Territory or whether a barrister should be employed. That is the position with regard to members of the public who have to have dealings with the legal profession right throughout the Commonwealth of Australia. I believe that will continue to be the position.

I do not know what Senator Murphy or Senator Devitt would put in place of the existing Ordinance provisions which they seek to have disallowed. I suppose it is the Labor Party's prerogative not to say what it would do when it seeks to take something out of the Ordinance or says that something is wrong because the Labor Party does not have the power to carry it out. But this is a matter of some interest and concern because many people would like to know how whatever the Opposition put in its place would operate. Experience has shown that in those States where there has been an amalgamated profession of barristers and solicitors there is greater versatility because people can choose for themselves the form of practice that they will carry out. In States like Queensland and New South Wales where there is a divided profession - I do not think that is what the Labor Party would want to have in place of these provisions - there is not the same scope for development of skills in a wide area, although that system does provde for those who practise as barristers expertise in advocacy and in the role of the Bar and, likewise, for the skills of a solicitor in those who seek to practise as solicitors.

The problems in New South Wales and Queensland, as I see them, are that there is not the same ability to move from one branch of the profession to the other as choice would dictate as there is in the States where there is an amalgamated profession. It is difficult to go beyond what I have said in expressing opposition to this motion because I fail to see what real merit there is in proposing the disallowance of this Ordinance. As I said, it will create many problems which it will be difficult to resolve. Disallowance of the Ordinance will run counter to the wishes of the profession in the Territory and will, in effect, overrule the opinion expressed by the Australian Capital Territory Advisory Council, that is, that the Ordinance is something that should be accepted. In those circumstances disallowance of it will create problems which the Senate should avoid.

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