Law Reform 2010: COAG reform puts law society presidents to work
With legislation regarding the nationalised regulation of the Australia legal profession pending, the incoming law society presidents of 2010 have divided opinions on just what such reform…
With legislation regarding the nationalised regulation of the Australia legal profession pending, the incoming law society presidents of 2010 have divided opinions on just what such reform should look like and how it will affect their members, writes Angela Priestley.
It's that time of year - one when plans are made for 2010. For the law societies and institutes of Australia, that means re-evaluating the pressing priorities andconcerns facing their members in the year ahead.
And this year the concerns of the representative bodies will be particularly pertinent. Law societies and institutes must face their own demons in analysing their relevance in the future. With the wheels already turning on the national reform of the legal profession, the next 12 months could be make-or-break time for each representative body in ensuring that their concerns are addressed in line with the impending changes.
A 16-year progression
>> Get a state-by-state breakdown of what goals each incoming president have their sights set on
National reform of the legal profession has been on the cards for some time. It was way back in July of 1994 that the Law Council of Australia initiated the need for such change, with its paper, Blueprint for the Structure of the Legal Profession, putting in motion the need for an official reform agenda to govern the Australian legal profession.
In April this year, progress on reform was cemented after the Council of Australian Governments (COAG) agreed that they would consider draft legislation on uniform laws offering national regulation of the Australian legal profession within 12 months. The Attorney-General established a taskforce, an officer-level working group, and a consultative group - chaired by Professor Michael Lavarch, the executive dean at Queensland University of Technology and a former Commonwealth attorney-general - to assist the development of the legislation, as well as the passage of the reform.
The presidential stakeholders
For as long as national reform of the legal profession has been on the agenda, various representative bodies have also been keen to share their views on how a nationalised system should work.
How the proposed reforms will affect each lawyer very much depends on where they reside. If the opinions of the incoming law societies' presidents are anything to go by, for those lawyers residing in larger states the changes will mean a welcome end to the burden of numerous systems of regulation in the country. To others, mainly lawyers in less populous locations, it could mean unwelcome and burdensome ties to larger states.
Still, from the outset, the goal of the national reform appears to make sense - with most representative bodies advocating a desire for change and an ability to see the benefits of such reform.
Currently, says incoming president of the Law Institute of Victoria (LIV) Steven Stevens, there are 57 regulatory bodies governing lawyers throughout Australia. The national reform project would significantly reduce this number and provide streamlined processes for handling everything from creating a national system for admission, to issuing practising certificates, dealing with complaints, billing regulations and professional discipline.
Such changes could also provide a centralised ombudsman-type authority to handle disputes over the delivery of legal services across the country.
The perils of smaller states
But to some incoming law society presidents, the benefits of such reform do not appear to be weighing up against what they consider are the drawbacks.
The biggest concerns reside in those states and territories with a small pool of lawyers, where their governing bodies wonder what good a governing body located in a far off state can offer.
The incoming presidents in jurisdictions with small practitioner numbers - including the Northern Territory and Western Australia - told Lawyers Weekly of concerns their members may be disadvantaged by the proposed changes, and that any additional costs that may result from the changes might not be fairly dispersed across their practitioner bases, which are much smaller than NSW and Victoria.
"The big issue is cost," says Hylton Quail, the Law Society of Western Australia's incoming president for 2010. "It's the elephant in the room that everybody is tiptoeing around. Who is going to pay for this national body? We're concerned that it will increase local practising costs which will then, necessarily, impact on the cost of the delivery of legal services."
Quail also expressed concern over the reform process deferring the powers of the Legal Practice Board of Western Australia to a centralised ombudsman-like office in Canberra. Matthew Storey, the incoming Law Society Northern Territory president, concurs: "The issue for us would be, 'What sort of presence could an office like that have in the Northern Territory?'.
"You could end up with somebody in Canberra or Sydney trying to manage services remotely - now that doesn't provide a great service for practitioners [in NT], or for their clients," he says.
At the Law Society of Tasmania, incoming president Graeme Jones also questioned what benefit such reform offers his membership base. He believes that rather than decreasing regulatory burdens, such reform may make the process more complicated for Tasmanians - referring to the fact that it was only in 2007 that the state implemented its latest legal profession act.
"It was many years in the making and it consists of nearly 1000 pages," he says. "Now the Commonwealth Government is wanting to look at providing another set o rules. How regulated do we really want to be?"
Jones believes that any further implementation of rules and regulations governing the profession will impact on the business of law in Tasmania. "Some people might say we should keep lawyers on a tight leash," he says. "But we're employers of people too, and it's becoming more and more difficult to try and make a dollar."
The ambitions of larger states
While incoming presidents of the NT, WA and Tasmanian law societies were strongly voicing their concerns about the impending changes, the incoming presidents of larger member states and territories appeared to see much more benefit in the proposals.
Stevens says he's "encouraged" by the COAG process, and that the LIV is hoping for a single piece of legislation governing the legal profession to emerge - particularly, a centralised process for dealing with complaints against lawyers. "The majority of complaints - probably about 90 per cent - are cost disputes, which can be quickly and easily resolved so consumers don't have these issues dragging on," he says.
"Having one simple resolution process would benefit the profession. At the moment consumers are experiencing long delays. We need a simple, more efficient system."
Meanwhile, the Law Society of NSW's incoming president, Mary Macken, says that she too will focus her efforts on how the evolution of the new regulatory system will occur, and in particular, on ensuring that it does not increase current costs involved in the delivery of legal services.
Incoming Queensland Law Society president Peter Eardley says he can see some significant benefits that he believes can emerge from a national reform, but objects to the lack of information currently circulating regarding the proposals.
"It would be fair to say that every law society is disappointed at the lack of real guts and the face-to-face understanding of what the reform process is meant to show - there's a lack of detail," he says.
"It's the implementation of a lot of the changes proposed that we are unsure about, and which we're not convinced that the Government can deliver via a new model, at no extra cost."
Meanwhile in South Australia, incoming president Richard Mellows also appears concerned by the lack of involvement of the law societies in the reform process.
"We're not saying we're the only people involved, but we do believe that we should be consulted," he says. While he is generally enthusiastic about the need for national reform, he questions what role the law societies will be able to play in the new model.
Changes on the horizon
There's no doubt that 2010 will bring plenty of challenges for representative legal bodies across the country, but it's in the next six months that things will really start to heat up.
In light of COAG's promise in May that draft legislation providing uniform and national law regulating the profession will be considered within 12 months, the incoming presidents stand on the edge of a big shift in how the legal profession is regulated across the country, and consequently, how their members are affected within their jurisdictions. More than ever the relevance of state and territory representative bodies will be tested, but in the end, it will be Parliament that has the final say.
Law Reform 2010: Read more about the key agendas of incoming presidents from around Australia:
>> Mary Macken, Law Society of New South Wales
>> Peter Eardley, Queensland Law Society
>> Hylton Quail, Law Society of Western Australia
>> Matthew Storey, Law Society Northern Territory
>> Graeme Jones, Law Society of Tasmania
>> Steven Stevens, Law Institute of Victoria
>> Athol Opas, ACT Law Society
>> Richard Mellows, Law Society of South Australia