National Legal Profession Reform – The Chief Justice Speaks Out

On 4 December 2009, the Honourable Chief Justice of Queensland delivered the following address at the Queensland Law Society Breakfast.

I am very pleased to have the opportunity to address you this morning, at the invitation of our host Queensland Law Society, and acknowledging the generosity of our sponsor UniQuest, which continues to do effective work in assembling expert evidence for presentation in the courts.

This is the 6th consecutive Christmas breakfast at which I have been privileged to deliver a short address. The first occurred on 8 December 2004. That came at the end of a most significant year for the profession, with the commencement of the Legal Profession Act. Apprehensiveness about the operation of that legislation was at that time naturally felt. From my point of view, the revision to the disciplinary regime in particular appears to have worked well, and plainly in the public interest. I am assured that with the commencement of QCAT, its President, Justice Alan Wilson, will constitute the Legal Practice Tribunal in dealing with disciplinary applications. That must be so, to ensure the Supreme Court effectively retains ultimate control over ethical standards in the profession.

Now six years on we confront another cognate development.

A major initiative commenced this year was national legal profession reform, an initiative of the Council of Australian Governments. The major objectives are commendable — simplified uniform legislation and regulation, national standards policies and practices where practicable, freedom of movement between jurisdictions to foster a truly national profession, and clear and accessible consumer protection.

I have been assured the courts will remain the admitting authorities and that current mechanisms for the treatment of disciplinary complaints will be respected; that is, disciplinary applications will be determined as at present.

But I have concerns over aspects of the direction of the Taskforce charged with the development of the model.

The presently preferred model, I understand, involves a National Legal Services Board responsible for determining national standards on a number of important matters:

• admission, including academic qualifications and practical legal training;
• suitability for admission; and assessment of overseas qualified lawyers;
• practising entitlements, including the grant, renewal, suspension and cancellation of practising certificates; conditions on practising certificates of Australian legal practitioners and practising entitlements of Australian registered foreign lawyers; professional indemnity insurance requirements; and continuing professional development;
• professional conduct, including duties to clients, the court and other practitioners, such as requirements for confidentiality; and
• business practice, including requirements for trust money and trust accounts, costs disclosure, billing and costs assessments; management of fidelity fund claims; legal practice interventions and external management; and the regulation of business structures.

That is taken from a paper prepared for the Consultative Group dated 16 September 2009.

These matters go to the heart of the profession, especially the setting of ethical standards. My concern stems from the prospective composition of the Board. That consultative paper proposes that the Board would comprise “a small body of around five members appointed on the advice of the Standing Committee of Attorneys General”: a small, powerful body, and because so small, one may query whether all relevant interests could be represented.

The regulatory framework developed by the Law Council of Australia proposed that the Commonwealth Attorney-General appoint the Board, after consultation with other Attorneys and professional bodies. Yet the primary position of the Law Council is that “there must remain an independent legal profession”.

I cannot see how the profession will remain “independent” if effectively governed by a body appointed by executive government. The substantial constraint to which the profession has to date been subject, and which warrants its being characterized as the legal profession, is the supervisory jurisdiction of the court over its individual members. This would substantially change, were a governmental body in place to determine the sorts of fundamental issues just mentioned. The position may be ameliorated were such a board a joint creature of the courts and the profession.

My second principal concern relates to cost. I fear that the operation of the proposed National Legal Services Board, the Standards Advisory Committees, and the National Legal Services Ombudsman, creatures of government, will not come inexpensively. They will inevitably spawn bureaucracy. It is fanciful not to recognize the prospect that the costs will be recovered through fees levied for the issue of practising certificates, with the flow-on burden eventually borne by the client.

I understand the concerns which fired this initiative were experienced primarily in large national firms frustrated by expense, delay and inconvenience in having to master and operate within varying regulatory regimes from State to State. I have not heard of concerns in the bar. It would be unfortunate were the influence of those national and multi-nationally based firms to bring about a refashioning of the profession to the point where it lost its independence and would properly be regarded as controlled by the executive government. How do mega firms cope in the USA, where differing State regimes include even the sitting of exams?

It is in truth the practitioner’s relationship with the court — the court admits and as necessary disciplines, the court delineates ethical and professional standards — which distinguishes the legal profession from other professions. Implementing the model presently envisaged would transfer that dependence from the court to the executive, and that would be completely unacceptable in these Australian jurisdictions where the relative independence of the legal profession is an adjunct of the independence of the judiciary and thereby effectively seen as part of the rule of law.

Reverting to State affairs, we look forward to the implementation of the recommendations of Martin Moynihan’s review of the jurisdictions of the three State courts. My own view is that the reforms are most appropriate, and probably overdue. I expect considerable change to the workload of the Supreme Court on the civil side in particular, acknowledging the extent of work accomplished in the applications jurisdiction especially, where the amount at issue does not exceed $750,000. On the other hand, one should foresee some increase in the work coming before the Court of Appeal. It will be interesting and important to monitor the consequences of the jurisdictional changes. The implementation is being carefully managed by a taskforce of which I am a member. One obvious point to be made with the substantial increase in the District Court’s civil jurisdiction is the prime need to maintain the quality of appointments to that court.

A considerable cause for optimism this year, when the global financial crisis otherwise warranted concern, was not just the survival, but the rapid progress, of the new metropolitan Supreme and District Courthouse project. I urge you to look at the computer generated display about the project which is located in the foyer of the Supreme Court building, if you do not have time to peer through the apertures in the hording at the site itself.

It is right today to express thanks to the Attorney-General for his continuing support of that project, and to the Director-General.

We in the courts are very disappointed that the Director-General is retiring from that position. Rachel Hunter has been an outstanding supporter of the courts, and an outstanding facilitator of the administrative initiatives of the courts. We will greatly miss her, and wish her well as she leaves for new ventures and commitments.

I conclude these remarks by referring to my recent travel to Vietnam. I chair the Judicial Section of Lawasia, and thereby chair a biennial Conference of Chief Justices of Asia and the Pacific, held concurrently with the Lawasia Conference. This commitment took me in the second week of November to Saigon, the City of Ho Chi Minh.

Thirty national Chief Justices attended, including the Chief Justices of Vietnam, China, Japan, Indonesia, Malaysia, Australia…the war of the seventies is little known to the youth of Vietnam, and the war museums in Saigon and Hanoi have a victory focus in relation to the French and Americans — barely a mention of our role. We visited the Cu Chi tunnels outside Ho Chi Minh City, and descended, but don’t worry, I haven’t “changed sides”! The reality is the divisions have largely gone.

That conference is distinctive for collegial interaction between Chief Justices from across the board — nations as vast as China and Russia, as tiny as Kiribati and Palau; both the richly and poorly resourced; the democratic and totalitarian.

That conference accomplishes important progress, in instilling proper perceptions in disparate regions, of the significance of the rule of law, the independence of the judiciary, and the optimal delivery of legal services.

I mention that conference now to note that the judicial contribution of the State of Queensland is not confined to the State, but extends more broadly. The stability of our regime here informs that contribution. For the stability of our regime, I express gratitude to the profession, because you, ladies and gentlemen, ultimately play an important part in upholding the rule of law.

You have my very best wishes for a restful and contented festive season, and a prosperous and fulfilling year 2010.

The Honourable Paul de Jersey AO

Chief Justice of Queensland