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20 Sep 2016

Legal Practitioners (Miscellaneous) Amendment Bill

Adjourned debate on second reading.

(Continued from 6 July 2016.)

The Hon. A.L. McLACHLAN ( 16:36 ): I rise to speak to the Legal Practitioners (Miscellaneous) Amendment Bill 2016, and speak on behalf of my Liberal colleagues. I advise the chamber that I am a member of the Law Society of South Australia and that I currently hold a practising certificate, as these are two matters that are raised in the jurisdiction of this act and the bill that is seeking to amend the same.

The bill seeks to amend the Legal Practitioners Act 1981. It follows on from significant changes that were made to the act in 2014. Those amendments in 2014 abolished the Legal Practitioners Conduct Board and established a Legal Profession Conduct Commissioner in its place. The 2014 amendments also introduced new definitions to capture a wider range of misconduct of lawyers, and introduced a public disciplinary register to publicise any serious disciplinary actions taken against lawyers. The new office of the commissioner was also granted additional powers to deal with misconduct of legal practitioners.

The government has advised that the bill before us is a response to a request from the commissioner to refine the newly implemented complaints process. The bill also addresses concerns that were raised by the Law Society about the ability of incorporated legal practices to practise in partnership.

Pursuant to the amendments contained in this bill, the commissioner will no longer be required to investigate complaints from people who have been declared vexatious by the Supreme Court. Currently, the commissioner is obliged to investigate all complaints, even where the complainant has been declared vexatious. However, the Supreme Court has the power to prohibit vexatious litigants from instituting further proceedings without permission of the court. The commission has requested this amendment because there is nothing stopping vexatious litigants from continuously lodging complaints with the commission. This impacts significantly on the commissioner’s resources, time and funding.

The bill also seeks to introduce a three-year time limit for lodging complaints against a practitioner, with the commissioner retaining the discretion to investigate matters outside that limit. It seeks to amend section 77K of the act to clarify the nature of an appeal to the tribunal against a determination of the commissioner. The amendment provides that an appeal to the tribunal will be by way of a rehearing, and the tribunal must, in reaching a decision, have regard to and give appropriate weight to the determination of the commissioner.

The bill also seeks to allow a commissioner to publish on the register the name of any legal practitioner who has had their practising certificate suspended by order of the Supreme Court. It does so by seeking to make amendments to division 6 of the act. Division 6 establishes the public register of disciplinary action.

The first amendment allows the commissioner to publish on the register the name of any legal practitioner who has been suspended, as I have said, and the second gives the commissioner the power or discretion to cause information about a disciplinary action to be removed from the register in circumstances prescribed by regulation.

In relation to the proposed amendment, the commissioner can cause information about a disciplinary action to be removed from the register in circumstances prescribed by regulation. I would like the minister to set out in his summing up of his second reading what is going to be envisaged in the regulations. In other words, what circumstances is the government envisaging setting out that would allow the commissioner to have the information struck from the register?

I also ask, and that it be set out in the summing up of the second reading, what the government’s intention is when names would be removed. In other words, if someone was cleared of misconduct, is that a set of circumstances that would be appropriate for removal from the register? The bill also makes clear that an incorporated legal practice can practise in partnership with another incorporated legal practice, or with an individual practitioner. This amendment addresses an unintended consequence that arose from the 2014 amendments.

The Law Society has indicated some concern that, when read as a whole, the amended act does not permit an incorporated legal practice to engage in partnership with another incorporated legal practice or with an individual practitioner. The government has made it clear that it was never its intention in its legislative program to prohibit incorporated legal practices from practising in this manner.

The Liberal Party is supportive of the bill in general. It will look forward to the committee stage and it will support the second reading of the bill and looks forward to a response to its questions at the conclusion of the second reading.

Debate adjourned on motion of Hon. T.T. Ngo.

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