CONVEYANCERS will call into question the Queensland Government’s adherence to National Competition Policy (NCP) after last week being denied access to practice in the Sunshine State.
Soon after a verdict affirming lawyers’ monopoly over Queensland property transactions was handed down on Wednesday 10 September, the Australian Institute of Conveyancers (AIC) announced it would take its fight to the Commonwealth Productivity Commission.
The Administrative Appeals Tribunal (AAT) extinguished hopes that Queensland lawyers could face competition for property work for the first time in decades by refusing an application by NSW-based conveyancer Dale Turner to be recognised as a solicitor north of the Tweed.
In his decision, AAT deputy president Rodney Purvis QC declared that Turner had failed to establish that duties carried out by NSW conveyancers and Queensland solicitors were “substantially the same” for the purposes of Mutual Recognition laws.
“The [AAT] is satisfied that the conveyancing of property and thereby the dealing in and advising in relation to property transactions comprises a relatively small part of a solicitor’s activities,” Purvis’s judgement read.
Solicitors’ duty to the court and extensive training and admission prerequisites also distinguished them, the AAT concluded.
“Suffice it to say that a person licensed under the Conveyancers Licensing Act is not enabled to practise as a solicitor or hold herself or himself out as a solicitor and has a limited area where she or he can practise within the scope of a solicitor’s work,” Purvis continued.
The AAT also rejected an argument that conditions could be inserted so as to offer conveyancers a “limited” practising certificate.
“If a solicitor’s activities were to be restricted by conditions … the result would be so extreme as to render that person something other than a solicitor.”
Despite its defeat, the AIC remains committed to shattering the monopoly. It has not ruled out an appeal to the Federal Court, but appears to favour placing pressure on Queensland Attorney-General Rod Welford to open up the market.
A wide-ranging review of legal services legislation is currently underway in Queensland, but Welford has publicly stated that allowing conveyancers to practise was not part of his reform agenda.
AIC president Jill Ludwell will alert the Commonwealth Productivity Commission of the Queensland Government’s reluctance to move on the monopoly, which she labelled a “ludicrous situation”. According to Ludwell, Queensland politicians had not properly abided by the NCP duty to review legislation every five years. She also felt that states were selling the Commonwealth’s mutual recognition laws short.
“I will recommend that a watchdog be set up to monitor mutual recognition laws and make sure things get done,” she said. “At the moment it’s up to the states to do what they like.”
While disappointed by the decision, Turner drew heart from what he felt was an endorsement from the AAT on the way in which his peers went about their work. Because the AAT accepted that licensed conveyancers should “be equally competent with solicitors” in the restricted fields that they practice, Turner claimed there was no room for arguments surrounding the protection of public interest.
“We have to conform to the same standards as solicitors in terms of the legal work we perform,” he said. “We’ll be putting forward a submission that the Queensland government is engaging in restrictive practices because there is no difference in competency.”
After throwing itself into the fray to defend its members, the Queensland Law Society understandably welcomed the decision. President Glenn Ferguson said he was always “confident” that the AAT would affirm their stance, but was nevertheless relieved to hear a positive verdict.