Northern Territory Second Reading Speeches

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LEGAL PRACTITIONERS AMENDMENT (COMMUNITY LEGAL CENTRES) BILL 2002

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

The purpose of this bill is to provide a more certain legal framework covering the operations of community legal centres and the legal practitioners who provide legal services from such centres. Australia’s legal services markets have been under consistent review and reform since the beginning of the 1990s. The over-arching objective of the call for reform has been the creation of a more competitive market for legal services while providing appropriate protection of the interests of clients, the community and the judiciary.

The reforms have occurred having regard to the following principles:

· the structure of the profession must be one that facilitates regulation in the public interest having regard to consumer choice and protection whilst maintaining quality of service; and · all regulatory measures must be justified having regard the effect they have upon the accessibility, cost, speed and quality of legal services.

Community legal centres are non-profit organisations that exist to provide legal services dedicated for various disadvantaged groups or special interest groups. In some cases, the services receive government funding and may even be established by legislation. They may also perform functions other than the provision of legal services, however they all operate independently of government direction, control and supervision. The community legal centres in the Northern Territory include the Darwin Community Legal Service Incorporated, Top End Women’s Legal Service, Katherine Women’s Information and Legal Service Incorporated, the Environmental Defender’s Office NT, the Central Australian Women’s Legal Service, the Central Australian Aboriginal Legal Aid Service, the Katherine Regional Aboriginal Legal Aid Service and the Northern Australian Aboriginal Legal Aid Service.

Organisations that provide some community legal services include the Pitjintjatjara Council Incorporate and the various land councils established under the Aboriginal Land Rights (Northern Territory) Act 1978.

The current Legal Practitioners Act was designed in 1974 to regulate the traditional providers of legal services, namely services provided by private firms and barristers. Over the past 20 years, the legislation had been modified and adapted so as to cover government legal aid services, government lawyers and foreign lawyers. The government lawyers provisions in the act have been used to bring about a process that facilitates the operations of various kinds of community and semi-government organisations that employ legal practitioners to provide legal services to specific sectors of the community.

This process has involved the making of regulations that prescribe organisations for the purposes of section 25(1)(c) of the act. Currently, the organisations prescribed under section 25 include:

· numerous government organisations such as the Northern Territory Legal Aid Commission, Office of the Director of Public Prosecutions and the Parliamentary Counsel’s office; · a number of important community or regulatory bodies set up under legislation but which operate independently of government. These include the Northern Land Council, Law Society of the Northern Territory and the Central Land Council; and · a number of community legal aid or legal representation services. These include the Central Australian Aboriginal Legal Aid Service, the Katherine Regional Aboriginal Legal Aid Service, the North Australian Aboriginal Legal Aid Service and the Pitjintjatjara Council Incorporated.

The effect of prescription for the purpose of section 25 is that pursuant to section 22(3)(a) and 22(3)(b) of the act, a legal practitioner may be employed by such a body but must hold either a Restricted Practising Certificate or a Restricted Practising Certificate (Class 1) and that the service of the legal practitioner employed in such an organisation counts where that legal practitioner seeks to be issued with an Unrestricted Practising Certificate.

Despite the very limited effect of section 25, prescriptions have been used as a mechanism permitting various legal aid centres to operate. There are many problems with this approach. These problems include:

· the absence of any regulatory mechanism for determining the basis on which an organisation is prescribed; · the absence of any regulatory mechanism for determining whether an organisation should to be a prescribed organisation; and · doubts about how the rest of the act is to apply to the community legal centres. For example, the provisions of the act relating to insurance, trust accounts, managers, receivers and the Legal Practitioners Indemnity Fund.

These issues came to a head in September 2000, when the Law Society Northern Territory approached the former government with the request that the Administrator prescribe a number of additional community legal centres. This approach was rejected at the time and, subsequently in late 2001, because there had been no mechanism for reviewing such prescriptions. Since September 2000, the Law Society Northern Territory, the community legal centres and departmental officers, have worked with the former Attorney-General and myself for the purposes of developing a new regulatory scheme that addresses the specific needs of community legal centres. This bill provides for that scheme. It is based on section 48A of the New South Wales Legal Profession Act 1987. The key elements of the proposed scheme are as follows.
Firstly, for the act to clearly recognise community legal centres, such a centre would be a body corporate that holds itself out as being a centre providing not-for-profit legal services for persons or organisations that either lack the resources to obtain privately funded legal services, or who are raising issues of public interest or of general concern to disadvantaged groups. Secondly, that such a body is to be able to act as a community legal centre if it employs a supervising legal practitioner if it holds appropriate indemnity insurance, and if it has paid any prescribed fee to the Law Society Northern Territory.

One of the areas of concern in developing this legislation has been that of ensuring that community legal centres retain their distinctive characteristics that permit them to provide legal services at relatively low cost. With this objective in mind, the community legal centre sought some exceptions, concerning the need for a supervising legal practitioner to be a person with an unrestricted practising certificate. By way of background, a legal practitioner is entitled to such a restricted certificate if he or she has been employed as a legal practitioner for a prescribed period following the completion of articles of clerkship. I think that should read ‘unrestricted’ in the last reference.

After receiving and considering numerous submissions from the Law Society Northern Territory, the community legal centres and the Chief Justice on this matter, the government has adopted the following position: It is that each community legal centre must, as a general rule, have as a supervising legal practitioner, a person who has an unrestricted practising certificate, or who is an interstate legal practitioner with an equivalent qualification. However, the Law Society Northern Territory will have the power to approve, in very limited circumstances, applications by community legal centres for other legal practitioners with unrestricted practising certificates to be engaged as the supervising legal practitioner. The word ‘engaged’ has to be used so that it is clear that this temporary supervision can be provided by a member of a management committee of a community legal centre or by a consultant. Decisions by the Law Society Northern Territory in respect of such applications will be subject to review by the Minister for Justice and Attorney-General. This policy approach has been taken because, at the end of the day, the government was not convinced that it was appropriate that the general principles regarding operating a legal practice should be potentially weakened just because of the nature of the clientele or of the services provided.

Additionally, the requirements to obtain an unrestricted certificate are not onerous, particularly given that the master of the Supreme Court has now made it clear that holders of such certificates are not required to maintain trust accounts. The bill also makes an amendment to section 55 for the purposes of putting this issue beyond all doubt. The bill seeks to ensure that regulation of the community legal centres remains relatively light. For example, there is to be no approval process aside from notification. The bill acknowledges the possibility for a regulatory fee to be charged by the Law Society, however regulations for such fee will only be made if and when the Law Society both seeks the fee and provides justification for the fee.

The bill makes a number of other amendments in respect of community legal centres and legal practitioners who work other than in private legal firms. These include: clarification that employment in a community legal centre only counts towards receiving an unrestricted certificate whilst the community legal centre is supervised by a legal practitioner with an unrestricted practising certificate; giving the Law Society Northern Territory the discretion to recognise, for the purposes of issuing unrestricted practising certificates, service gained in the performance of work of a legal nature. This is intended to give recognition to legal services provided with corporate or government bodies other than those prescribed under section 25;

· providing that certain kinds of disciplinary action may be taken against persons who control community legal centres. That is, such actions may be taken regardless of whether such persons are legal practitioners; and · applying to community legal centres, the general provisions of the act concerning discipline, insurance, trust accounts, fidelity fund, costs and managers, but nothing that such general provisions may be modified by regulation, sorry – but noting that such general provisions may be modified by regulation.

The remaining amendment of significance to mention is one that relates to all types of providers of legal services. New section 36 provides a new scheme for the giving of exemptions regarding indemnity insurance. Currently, the regulations provide that exemptions are given by the Law Society Northern Territory, but must be approved by the Minister for Justice and Attorney-General. The exception power is significant because it permits the Law Society Northern Territory to develop appropriate indemnity insurance for sectors of the legal profession - such as barristers and community legal centres - whose indemnity insurance needs to differ from those of mainstream legal firms. Barristers belong to a national scheme overseen by the Australian Bar Association and the community legal centres belong to a scheme negotiated by the National Association of Community Legal Centres.

It is proposed that this scheme be amended so that the role of the Minister for Justice and Attorney-General is limited to reviewing the decisions of the Law Society in respect of exemptions. This means that the executive government will only be involved in exceptional circumstances. This role accords with the general framework of self-regulating legal profession, where the basic responsibility for such day-to-day decision-making rests with the regulator.

New section 36 also provides for the publication of exemptions. This will ensure that there is some searchable public record of such exemptions. Such searching is currently not possible with regard to the exemptions concerning barristers, thought to exist currently.

This bill has been a while in the making. I would like to express my appreciation to the Law Society and the community legal centres for their cooperative approach in bringing matters to a close. In saying this, I recognise that there may be some matters which both the community legal centres and the Law Society may wish to be finetuned between now and the passage of the bill. I undertake to consider any such changes by way of committee stage amendments.

I also mention that I am advised by the Department of Justice that the drafting process for this bill has revealed some inconsistencies within the bill in respect of matters incidental to the main purpose of the bill. One of those is the period of post-admission experience required of a legal practitioner before he or she is entitled to an unrestricted practising certificate. Currently, this is two years for legal practitioners who completed a practical training course, and one year if the legal practitioner completed articles of clerkship. I undertake to commence action on the removal of this anomaly at the earliest opportunity. I will seek a submission from the Law Society Northern Territory.

Finally, the bill makes minor statute law revisions that remove unnecessary transitional provisions, and which clarify that trust accounts need only be maintained by persons with unrestricted practising certificates, if those persons handle trust money.

Madam Speaker, I commend the bill to honourable members.


 

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