PRESIDENT OF the Law Society of NSW, Hugh Macken, has bemoaned the absence of uniform national laws governing legal practitioners.
“Lawyers are increasingly taking on national actions and we need to bring the law up-to-speed so that they can practice nationally,” he said.
Macken blamed discrepancies between jurisdictions for delays and skyrocketing costs for clients. He believes that several bureaucratic regulations directly relating to the portability of practising certificates should be addressed immediately.
These include matters such as the recognition of insurance policies, continuing professional development requirements in addition to specific ethics training, workers compensation and occupational health and safety training which are a prerequisite for the issuing of a practising certificate in certain states.
Arguments predicated on state autonomy have been raised as a road block to harmonisation in the past, but Macken believes these are without merit.
“Suggestions that harmonisation of laws in some way impedes the identity and independence of the state are wrong,” he said.
“These are not matters which go to state identity; these are simply bureaucratic inconsistencies which need to be levelled out so that the delivery of legal services can occur unimpeded. It’s in no ones interests — be it government, users of legal services, or legal service providers themselves — that they have bureaucratic hurdles to get over before they go to other jurisdictions to represent their client’s interests.”
Harmonisation is high on the newly-elected president’s list of priorities for 2008. Uniform national laws featured prominently on the agenda of his predecessors.
Former attorney-general Philip Ruddock supported draft legislation for a national legal profession in 2004. In a 2007 Lawyers Weekly interview, Ruddock blamed the limited success of the model laws on the non-cooperation of the states. “The process [is taking] far longer than was originally planned, with only five jurisdictions having commenced their legislation since the model laws were agreed to in 2004,” he said.
Macken has several reasons to believe that a breakthrough may be on the horizon.
Recent political developments at the federal level have put Labor in the driving seat, with the party also having control of state governments across the nation. “[This] provides a golden opportunity to make inroads into areas of regulation which impede national development,” Macken said. “For once there can be no allegations of political point-scoring which would derail the process of harmonisation of laws.”
The outcome of the High Court decision in the WorkChoices challenge could mean that state governments are forced to comply with any national laws introduced, according to Macken.
“If the states don’t come onboard, or baulk at harmonising their laws to allow to reduce the red tape across borders, then the government probably has the power to bring those laws in and impose them on the states,” he said. “It would not be a preferred outcome, but simply the existence of that capacity should have the effect of inducing the states to compromise in areas where otherwise they may not have wanted to compromise.”
New federal Attorney-General Robert McClelland is tipped to continue the pursuit of harmonisation, and he will be offered the full resources of the NSW Law Society should he choose to do so, according to Macken. “McClelland has previously been an enthusiastic supporter of the Standing Committees of Attorneys-General, what the Law Society seeks simply to offer is our services and expertise and encouragement to assist him in respect to dealing with some of these issues.”