HON GIZ WATSON (North Metropolitan) [ 9.28 pm]: On behalf of the Greens (WA), I have a few comments on the Legal Profession Bill 2007. We will support the bill. I will make some general comments, but I have some more detailed comments that I will leave to the committee stage. The bill provides for the regulation of lawyers in Western Australia and follows the structure of the national model bill. In particular, the bill aims to address the regulation of legal practice in modern circumstances in which many lawyers now operate; for example, in a national context via big national firms or via links with legal firms in other jurisdictions, and outside the traditional legal firm or barristers chambers, such as in multidisciplinary organisations that offer legal services as one of a variety of services.
The Legal Practice Act 2003 began the process of recognising and regulating these new work arrangements. To achieve a more uniform national approach to regulation, a national model bill was introduced. In 2004 the Attorney General signed a memorandum of understanding committing Western Australia to adopting its provisions. This bill is intended to carry out those obligations. As was noted by Hon George Cash, most other states have already enacted the model bill in their own jurisdictions, including Queensland, New South Wales, Victoria, the Australian Capital Territory and the Northern Territory. I understand that the Law Council of Australia said that Tasmania has enacted the Legal Profession Act 2007, although, according to my research, it does not appear to be on its website yet. Maybe it has been enacted but it is not obvious to the public yet. The Law Council of Australia also said that South Australia currently has a bill on hold while it resolves an issue with its fidelity fund, which operates differently from elsewhere in Australia.
The WA bill has four kinds of provisions, identified in the header to each clause in the explanatory memorandum. The first kind are the core uniform provisions, identical in all jurisdictions based on national model content. Of the 714 clauses, around 187 are within this category. The second type of provisions are core non-uniform, which are mandatory but do not require textual uniformity. Of the 714 clauses, around 129 are in this category, bringing the total number of mandatory clauses to around 316 out of 714. The next category is non-core or optional and, finally, none of the above. These are specific to our jurisdiction and tend to be derived from WA’s Legal Practice Act 2003 and the Legal Contribution Trust Act 1967, both of which will be repealed by the bill.
The Law Council of Australia supports national implementation of the national model. The Legal Practice Board of Western Australia supports the bill, though it would like to see some amendments that have previously been suggested to, but have not been taken up by, the government. The bill has been considered by the Standing Committee on Uniform Legislation and Statutes Review, and its report 26 was tabled in February. The committee found that the bill is consistent with the national legal profession memorandum of understanding signed by the Attorney General in 2004. The report also contains useful appendices comparing the national model with the clauses in the bill and also notes which clauses were omitted from the bill and why.
In the process of coming to a position on this bill, my office has undertaken to consult with a range of legal bodies in the state and those with legal expertise in order to inform ourselves of the widespread support for this new bill. We have consulted the Aboriginal Legal Service of Western Australia, the Law Society of Western Australia, Legal Aid WA, the Community Legal Centres Association, Women Lawyers of Western Australia, the Law Council of Australia, the Legal Practice Board, the Native Title Tribunal and a number of other individuals who had specific comments they wished to make on the bill. Having undertaken that process of consultation, we are happy that there is broad support for this bill to progress through the Parliament.
It is worth noting that this is a substantial bill. It contains 714 clauses. In addition, rules and regulations will be made by the Legal Practice Board. There will also be significant subsidiary legislation. Legal practitioners who choose to practice in different jurisdictions are potentially affected not only by this bill but also by interstate versions, which, although still based on the national model, differ in some respect from the WA versions. The volume of material raises the question of whether legal practitioners are likely to properly understand it so as to be in a position to consistently comply with its provisions. Clause 404(a) provides that conduct contravening the act is capable of constituting unsatisfactory professional misconduct. Such a finding can attract penalties, as set out in clause 426, publication and/or non-renewal of the person’s practice certificate. According to the 2005-06 annual report of the Legal Practice Board, which seems to be the most recent on the website, there are just over 4 000 practitioners in this jurisdiction. The ability of each of them to work in their chosen profession will depend on their detailed understanding of and obedience to the provisions of the bill.
A national scheme administered by state and territory legislation needs to be very detailed. If gaps are left, the state or territory tribunals and courts will need to make determinations. As this would happen independently in each jurisdiction, the results may not be consistent nationally, which would undermine a national scheme. The view of the Legal Practice Board is that there is not a realistic alternative to such a long bill. At least not all legal practitioners will be affected by the whole of the bill. For example, part 6 deals with practices in other jurisdictions, part 7 deals with incorporated practices and multidisciplinary partnerships, and part 8 deals with foreign lawyers.
Clause 597 of the bill provides for a review after five years. It would appear that less than half the bill’s provisions are mandatory. This presents an opportunity for some pruning by Parliament to review and modify the bill in due course if it is considered appropriate.
With those comments, the Greens will support this bill and look forward to the committee stage to debate further matters.
Debate adjourned, on motion by Hon Adele Farina (Parliamentary Secretary).