Northern Territory Second Reading Speeches

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STATUTE LAW REVISION BILL (NO. 2) 2001


Madam Speaker, I move the bill be now read a second time.

The main purpose of this bill is to amend the Legal Practitioners Act so as to improve and clarify the operations of the Legal Practitioners Complaints Committee. The bill also provides for the appointment of managers of legal practices. The Legal Practitioners Complaints Committee is a body created by section 48 of the Legal Practitioners Act for the purposes of dealing with various disciplinary matters concerning legal practitioners.

Most disciplinary matters are handled by the Law Society of the Northern Territory. However, the Complaints Committee has the power to deal with appeals from decisions of the society and to directly handle some complaints. The decisions of the committee are subject to review by the Supreme Court. Additionally, the Supreme Court has both statutory powers and an inherent jurisdiction in respect of the discipline of legal practitioners. The committee, the Ombudsman and the Law Society have raised a number of concerns about the legislation that supports the operation of the committee. This bill seeks to allay those concerns.

I shall now outline each of the concerns together with the government’s proposals. The first problem is that it is often difficult to obtain a quorum for the Complaints Committee - currently a quorum of 4 of the 7 members. We propose that the quorum be reduced to 3.

Additionally, most of the members of the committee are volunteers. This means that the time they are able to spend on committee meetings is relatively limited because they need to devote time to the earning of an income. We propose that the legislation be amended so that members can be paid an appropriate amount. This should mean that the members do not suffer severe financial penalty of the kind that can potentially occur if a hearing were to last more than 2 or 3 days. This amendment will make it more practical for those sole practitioners, or legal practitioners from small firms, to accept offers of membership of the committee.

However, these changes will not overcome all the quorum problems. The relatively small size of the Northern Territory legal profession can mean that it is difficult to obtain sufficient disinterested members who have no close business or personal connection with a lawyer who is the subject of the disciplinary proceedings. To overcome this problem, we propose to create a panel of 13 persons from whom a quorum can be selected by the chairperson of the Complaints Committee. The panel will comprise:

· the chairperson - this person must be entitled to hold a practising certificate but need not necessarily do so;
· the Ombudsman or an alternative to the Ombudsman;
· three lay members - this is an increase from the current single lay member;
· five legal practitioners nominated by the Law Society, Northern Territory, with two of those members being members of the independent Bar. This is an increase from the current three such members;
· three other legal practitioners - these members would be legal practitioners selected by the Attorney-General. This is an increase from the current two such members.

For any particular hearing, the committee would comprise at least one legal practitioner from the group nominated by the Law Society, and at least one person who is either a lay person or the Ombudsman or the Ombudsman’s alternate.

The generality of the proposals have been considered by the Law Society and Complaints Committee. I understand that they are both satisfied that the changes will alleviate the problems in the operation of the current provisions.

The second problem is that the legislation does not provide the committee with many procedural powers that such a committee would ordinarily be expected to possess. We propose that the committee be given the power to give directions for the expedient and efficient conduct of proceedings. It is also proposed that the persons who commence proceedings also be given the power to withdraw from them.

A third problem is that the act is unclear as to whether the committee dealing with a charge against a legal practitioner is under a duty to inquire into the whole of the professional conduct of the legal practitioner, or just the matter raised in the charge. We propose that the act be amended so that the committee can only consider the allegations raised at any time. However, the act will now oblige the committee to refer to the Law Society for further investigation any additional matters that arise in the course of the investigation or hearing.

A fourth problem is that the committee is ill-equipped to handle the complaints that may not have any possibility of a successful outcome for the complainant. Currently, the act permits the committee to dismiss a complaint if the complaint is frivolous or vexatious. However, it is possible for a complaint to be serious from the point of view of a complainant, but unfounded in terms of the disciplinary provisions in the legislation. In order to deal with this problem, we propose that section 50 of the act be amended so that the committee may summarily dismiss a charge if it is of the view that a charge would not, despite being proven, give rise to a finding of professional misconduct. Section 51B(1A) of the act is to provide that any decision to either dismiss such a charge, or not to dismiss a charge, is not to be the subject of any kind of review by the Supreme Court.

A fifth problem is that the act is unclear about the penalties that may be imposed by the Complaints Committee. The range of penalties includes fines, suspensions for a limited time, admonition, and imposition of practice restrictions. Section 50(4) of the act is written so that it appears that only one kind of penalty may be imposed. Thus, for example, the committee may impose either a fine or a suspension. The Complaints Committee has advised that it would like to be able to impose a penalty that may be comprised of one or more of the penalties listed in the act. For example, it would like to be able to impose a fine or warning linked with practising restrictions or suspension. As this request is reasonable, we propose that there is an appropriate amendment to section 50 of the act. The Law Society supports this proposal.

There is a further problem in respect of penalties. It arises from the fact that only the Supreme Court may impose the highest level of sanctions, namely removal of the name from the roll of legal practitioners maintained by the Supreme Court, or disqualification from practice. It is not proposed that this position be altered. The problem is that such penalties may only be imposed after a fresh hearing by the Supreme Court. Such a hearing may duplicate matters heard by the Complaints Committee.

We propose that the act be amended so that the committee may refer to the court certain findings of misconduct. These are findings for which, in addition to any penalties the committee may have imposed, it might be appropriate that the highest level of sanctions be imposed. Section 52 is to be amended so that the court may, on referral of the matter to it by the committee, impose such higher-level penalties based on the findings of the committee. The court has the option of further inquiry, but is not obliged to do so.

A sixth problem is that of the basis of appeals from the Complaints Committee to the Supreme Court. Currently such an appeal involves a rehearing of the matter by the court. This means that the court duplicates the fact-finding conducted by the committee. Given that the committee will always be comprised of senior members of the profession, we are satisfied that it can be relied on to establish the relevant facts on which decisions can be made. Accordingly, the bill provides that section 51B be amended so that appeals can only be made on the basis of mistakes of fact or of law. We understand that both the Complaints Committee and the Law Society support this change. The proposal has also been referred to the Chief Justice.

The final problem in respect to the Complaints Committee is one identified by the Law Society. It has the effect that the legislation is not sufficiently clear concerning the matter of costs, particularly costs that may be payable in circumstances where the Complaints Committee appoints a legal practitioner to assist the complainant. Such costs are met from the fidelity fund established for the main purpose of compensating clients for thefts of trust money and property. The concern is that the payment of such costs with no apparent right of recovery may be wasteful if the complaint is ill-based. We propose that section 51A be amended so the committee may order that the complainant pay the costs. Additionally, it is proposed that the committee should only be entitled to appoint a legal practitioner to assist a complainant if the person is entitled to assistance in accordance with the rules prescribed by regulation. The intention is that the regulations be amended so that the rules are made to mimic the kinds of grounds upon which legal aid may be granted by the Northern Territory Legal Aid Commission.

The bill also provides for transitional matters relative to the various changes concerning the committee. These are designed to retain current appointments to the committee, but also to provide for the application of the new provisions of matters before the committee.

I must emphasise that these amendments and reforms are of an interim nature. They focus on making corrections and improvements to the current disciplinary scheme. However, there is a general view that the disciplinary system for legal practitioners both in the Northern Territory and many other parts of Australia, is in need of some more basic overhaul. These are fundamental problems arising from the complexity of the process and the respective roles of the profession and various arms of government.

The government understands that the Law Society has been, for some considerable time, putting together detailed proposals for reform. Additionally, major reforms have been developed in Queensland and Victoria, and national competition policy reviews are occurring in the Northern Territory and throughout the rest of Australia. Finally the issue is to be considered by the Standing Committee of Attorneys-General. All of these developments are considered with the view to major reform as soon as practically possible.

The bill also provides for one other matter that is distinct from disciplinary provisions. The proposal part 8(a) provides for the appointment of the Law Society of managers of the practices of legal practitioners. Such appointments are necessary when a legal practitioner is unable to continue managing his or her practice. This may occur if the practitioner has died, or become ill, or has decamped, or has been suspended, or disqualified. The provisions are closely modelled on those in place in New South Wales. In brief, they permit the Law Society to make an appointment. The manager takes on all the rights and responsibilities of the legal practitioners but there is a personal protection from the liabilities incurred.

Madam Speaker, I commend the bill to honourable members.

 

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