19 May 2016
Legal Services Commission (Miscellaneous) Amendment Bill
The Hon. A.L. McLACHLAN ( 16:03 :45 ): I rise to speak to the Legal Services Commission (Miscellaneous) Amendment Bill. I speak on behalf of my Liberal colleagues. I advise the chamber that the Liberal opposition will be supporting the second reading of the bill. The bill seeks to change the governance arrangements of the Legal Services Commission. As a result of my working life, I am well versed in the importance of legal aid to the functioning of the court system. Without a strong system of justice, the rule of law would be compromised, as would the rights and liberties enjoyed by all Australians. That is why we as a community invest in a system of justice: to protect rights, ensure civil liberties and enforce civic responsibilities.
If access to legal institutions was reserved for only wealthy citizens, the confidence of the broader community in our system of justice would be undermined. Our democracy therefore depends on the premise that all Australians are equal before the law. Our Legal Services Commission plays an important role in achieving that equality by striving to ensure that all citizens, regardless of their means, have access to legal services and to the law.
In South Australia, the Legal Services Commission is established by the Legal Services Commission Act 1977. The commission is at present comprised of 10 members in total. The members are appointed by the Governor and consist of the following: a chair, who is a person holding a judicial office or a legal practitioner of not less than five years standing, nominated by the Attorney-General; one person who, in the Attorney-General’s opinion, is an appropriate person to represent the interest of assisted persons; three others nominated by the Attorney-General; three further persons nominated by the Law Society; one employee of the commission on nomination of the employees of the commission; and, the director of the commission.
Currently the commission is a representative rather than skills-based board. Appointed members of the commission hold office for three years, at the conclusion of which they are eligible for re-enrolment. These types of governance relationships, otherwise known as representative boards, I accept are currently out of fashion. The preference, it appears these days, is for adopting structures similar to trading companies. I am personally not entirely enamoured with the change in approach; I believe in representation of the community where appropriate. Although each governance model has its strengths, each also has its weaknesses, which must be mitigated. I would not like to see appointed, if this bill becomes law, political hacks owed favours by those in power, but I suspect I will be disappointed.
The commission currently meets approximately every month. Generally it receives reports from the director on the operations of the organisation, and is responsible for considering and approving the policies and processes by which the commission provides legal assistance and its other services. The commission also has responsibility for approving annual budgets, setting the strategic direction of the commission, overseeing the performance of the director and hearing appeals against decisions of the director from assisted persons, persons seeking assistance or lawyers regarding applications for legal aid and the terms on which it is to be provided.
In February 2011, the commission announced a review into the provision of legal aid in state criminal cases. The review was conducted by a committee of senior legal practitioners. The committee released four reports. In its third report, titled ‘The Governance Structure of the Commission and a Public Defender’s Office for South Australia’, it recommended a change to the governance structure of the commission. In particular, the committee stated that:
The current composition of the commission may exclude skills of benefit to the commission.
Members possessing skills in management, public administration and service delivery could benefit the commission.
The review ultimately recommended the abolition of the board and the appointment of a commissioner. This was rejected by a number of the stakeholders when they were consulted. The bill before us represents the government’s response to the recommendation, which instead is to reduce the size of the board and ensure all board members are appointed by the Attorney-General. I fear it will be out with the community and out with the knowledge of legal aid and its workings in the community, and instead another opportunity for bureaucrats, Labor mates and a gaggle of compliance yes men and women and other fellow camp followers.
The bill seeks to amend the Legal Services Commission Act. The bill before us aims to reduce the number of members of the commission and the system by which people are appointed to it. More specifically, the amendments include reducing the membership of the board from 10 members to five. The changes will mean the commission will be made up of a chair nominated by the Attorney-General, the same as the current criteria, a director and three other people nominated by the Attorney-General, one of which may have experience in financial management and one of which must be able to represent the interests of legally assisted persons.
The bill also amends the appointment criteria to make skills, knowledge and expertise relevant when appointing the commissioner. The bill also establishes a legal profession reference committee. The reference committee will advise the committee in relation to any matter referred to it by the commission or any of the commission’s functions under the act. The committee will also perform any other function assigned to the committee under the act. The committee will be made up of seven members with the Law Society and Bar Association able to nominate two members each.
The government asserts that the establishment of this committee addresses the concerns that have been raised in respect of the bill, that legal practitioners will not be sufficiently represented on the new board. This is challenged by the Law Society in its letter of 18 March 2016 to the Attorney‑General. I suspect that the reality will be that the legal profession’s representatives will be relegated to a powerless advisory committee where their views and wisdom can be ignored at will by the commission.
The legal profession strongly submits that there needs to be members of the commission with a working knowledge of the issues of legal aid, and with this sort of representation it will be the best to serve the commission going forward. In essence, the Law Society, of which I advise the chamber I am a member and have done so in the past, advises that the recent constitution of the commission proposed by the bill risks the close association between the profession, the society and the commission. The Law Society points out that its argument is supported by the fact that the local legal profession is involved with up to 68 per cent of the grants of legal aid.
The Law Society also points out the commission annually fixes scales of payment to private practitioners and these scales are considerably below market rates. In essence, its argument is that the Law Society members or those appointed by the society have not sought to use their position for self enrichment. With those few words, I reiterate that the Liberal Party will be supporting the second reading.
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