LEGAL AFFAIRS: by Jerome ApplebyNews Weekly
Move to centralise control of the legal profession
, July 10, 2010
Not content with expanding its power over health, education, workplace relations and water, the Commonwealth Government is seeking to seize control over the legal industry too.
In April 2009 COAG (the Council of Australian Governments) agreed to establish a specialist task force responsible for producing draft legislation to regulate the legal profession at the national level.
This body, the National Legal Reform Task Force, has since reported back with proposed legislation to facilitate these changes.
According to the Attorney-General's Department, the draft bill envisages a number of reforms, including:
• establishing a national legal services board and ombudsman to act as the central, uniform standard-setter and to deal with compliance and complaints-handling issues;
• creating national practising certificates and a national register of lawyers' admissions to allow lawyers to practise nationally without any additional requirements;
• requiring lawyers to disclose sufficient information to their clients to allow them to make informed decisions about services that are provided and the likely costs involved; and
• introducing a new initiative of "conditional admission" to allow foreign lawyers to more easily practise in all Australian jurisdictions.
But, as much as federal Attorney-General Robert McClelland may argue that the changes are good for the legal profession, many lawyers remain unconvinced.
The Chief Justice of the South Australian Supreme Court, John Doyle, has slammed the proposal for the establishment of a national board. While Justice Doyle said he has no objection to national regulation of the legal profession, he warned that the make-up of the national board will compromise the independence of the profession.
The board is to be made up of seven members: five appointed by the Standing Committee of Attorneys-General (SCAG), one by nomination of the Council of Chief Justices and another by the Law Council of Australia.
Justice Doyle said that because a majority of members will be chosen and appointed by SCAG, "It is clear that the board will be answerable to SCAG, and so to the executive governments of the states and territories."
He added that the board "will control matters that are at the very heart of the independence of the legal profession".
He gave hypothetical examples of the way in which the board could control the legal profession and adversely affect its independence.
One example he gave was that of lawyers criticising government anti-terrorism legislation. In such an instance, Justice Doyle warned, "SCAG could ask its appointees on the board, and if necessary appoint sympathetically-minded persons, to make a conduct rule which prohibited undue criticism."
Another scenario was that the board could in future require that "the training of lawyers should include courses that instilled in lawyers the importance of working co-operatively with the executive government, and of putting the interests of the state ahead of interests of the client".
Doyle has not been alone in his criticism of the proposed board. NSW Law Society President, Mary Macken, has also been critical of the way it is to be appointed. She said it is important that lawyers retain control over the board for the sake of independence.
''A better mechanism is for the board to be appointed by the Council of Chief Justices", Ms Macken said.
The Law Society of South Australia said that the drawbacks of the changes were self-evident.
"You don't have to be a Rhodes scholar to see the impact on everybody if you don't have an independent legal profession," said the society's president, Mr Richard Mellows.
The proposed changes not only threaten the independence of lawyers; they violate the principle of subsidiarity - the principle that no larger unit (whether social, economic or political) should perform a function which can be performed by a smaller unit. In other words, only if the states are incapable of setting proper standards for the legal profession should they relinquish control to the Commonwealth. This has not been proven to be the case.
However, the Commonwealth Government has persistently argued that imposing uniform standards across Australia will lead to greater efficiencies.
This argument can be used to justify not only centralising control of the legal profession, but centralising everything.
Canberra's threatened centralisation of control over the legal profession is but one more example of the ever-increasing encroachment of Commonwealth power over the states. We have seen in recent times Canberra take over, in whole or in part, numerous new activities - including education, health and workplace relations - that have traditionally been the states' responsibilities.
There seems to be no end in sight to Canberra's firm conviction that whatever the states do, the federal government can do better.
It is high time the states stood up for their rights - and the federal government respected them.