| Attorney General speech to Australian Legal Convention |
Introduction
It is an honour to be invited to speak at the 32nd Australian Legal Convention.The Convention, in its modified format, continues to be a high point of the legal profession’s calendar.
The message I want to deliver today is a blunt one.The world is changing and the legal profession must decide how it will respond.
It is easy to say that the nature of legal practice has changed significantly over the last 50 years. It is also true to say,however,that the nature of legal practice has changed significantly over the last 10 years.
On its simplest level,technological change,particularly in communications technology,has been the force driving changes in the legal profession.The changes are not consequent only on advances in technology, but are also consequent on changes in the Australian community generally. These changes demand that the legal profession become increasingly both flexible and competitive. And they also require the legal profession to continue to focus on, and be responsive to, the needs of clients.
It is true to say that the Australian legal profession has provided and continues to provide the Australian community with valuable services.The Australian legal profession also has a significant reputation internationally. Australian lawyers are sought after in many countries, including England,United States and Hong Kong. Young Australian lawyers working in such countries have a reputation of being competent, hard working and diligent.Australia has the capacity to be a significant exporter of legal services.And Australia has the capacity to provide top quality legal services to international companies considering investing in Australia.
Yet,in my view,the capacity of Australian lawyers to provide top quality legal services both domestically and internationally has been hindered somewhat by the lack of a national regulatory framework for the legal profession in Australia. Until we remove the barriers that prevent lawyers in different States and Territories from practising on an equal footing, we run the risk of impeding the growth of the Australian legal profession both domestically and internationally.
In my view, the greatest challenge facing the Australian legal profession is the need to remain relevant, flexible and competitive in an increasingly borderless world. To allow the profession to embrace change we must deliver a foundation on which it can do so unimpeded by jurisdictional barriers. That is why, in my view, it is imperative that we strive for a truly national legal profession.
Over recent years a number of attempts has been made to develop a framework for the national regulation of the legal profession. For example, a great deal of work has been done, and continues to be done, in this area by the Law Council of Australia under the aegis of its 1994 Blueprint for a National Profession and its National Profession Taskforce. The Law Council also recently published its 2010 Taskforce Discussion Paper, which will serve as a vehicle for discussion of reform.
What I say today will, I hope, be seen as a constructive contribution to a cooperative analysis of the need for reform of the legal profession. The Howard Government recognises the importance of taking a consultative and cooperative approach to reform. We are ready and willing to work with the entire legal community and with the States and Territories on such a review.
Competition
The legal profession now faces competition within fields of endeavour that traditionally had been the profession’s alone. An increasing range of sources of advice has meant that there is a significant challenge to the traditional restrictions on who can perform legal work, and what constitutes legal advice.
Outside those areas that could be considered strictly legal, other professions are taking on larger roles in terms of providing advice and assistance to individuals and companies.
For better or for worse, accountants, migration agents, real estate agents, industrial advocates, architects and stockbrokers are all providing advice which may impact on the manner in which individuals or companies order their affairs.
The statutory restrictions on who may perform legal work are also changing. In New South Wales, Western Australia, Victoria, South Australia and Tasmania, for example, conveyancing is already being conducted by non-lawyers.
Changes in information technology, electronic publishing, and an increasingly consumer aware community, have also provided additional sources of competition between the legal profession and ‘self-service’ sources of information and advice. There is an increasing emphasis on the do it yourself approach- people undertaking on their own behalf those legal tasks generally perceived as simple.
Both government and non-government websites now provide easily accessible legal information.
In addition to these free sources there is a number of websites that provide do-it-yourself solutions to legal issues for a fee.
Client expectations
All professions are feeling the pressures of increased competition and increased consumer demand. And the legal profession is no different. Indeed the very nature of legal practice is changing in fundamental ways.
Lawyers are increasingly being called upon to demonstrate expertise outside the law. Many clients now seek and expect advice that is not strictly legal and overlaps with other areas of expertise. Many clients expect their lawyers to be able to provide value-added advice on the whole of an issue or project, not just the traditionally legal areas.
Failure to respond may result in lawyers ceasing to be the lead or key advisers, with members of other professions taking that role.
Clients demand quicker ‘turn-around’ times in the provision of advice. Lawyers, particularly the larger law firms, are also increasingly being expected to provide an ‘on-call’ service. These demands are driven in part by technological change, which has provided the means to provide this type of service, and in part by market forces, for example the provision of similar services in other areas by other professions.
Change is already under way
It is not only practical business forces that are driving change in legal practice. It is clear from the current state of practice across the country, that State and Territory boundaries are becoming increasingly porous.
The bare bones of a national profession already exist based on legislation; on cooperative arrangements involving the Commonwealth, the States and the Territories; and on Government policy. A national practising certificate scheme is already in existence in most States and Territories, as is a process allowing for the practice of foreign law by foreign lawyers.
Economic decisions that affect a significant proportion of legal practices, regardless of their geographical location, are already taken on a national level. The provision of legal aid funding by the Commonwealth to the States and Territories is just one example.
The substance of legal education and the manner in which law students are educated throughout Australia are converging. For example, most State and Territory admitting authorities, and State and Territory law schools, have adopted the ‘Priestley 11’ as the basis for the development of academic training programs.
The range and scope of Commonwealth legislation has also meant that regulatory decisions on a range of matters are taken at a national level based on existing Commonwealth power, or the agreement of the States and Territories or in cooperation with the States and Territories. Few areas of everyday life are unaffected by Commonwealth legislation. The legal profession is no exception. The legal profession is connected on a number of levels with almost every aspect of these national regulatory arrangements - for example in the provision of advice to and representation for individuals and companies; and also at more fundamental levels such as drafting, implementation and enforcement.
A vision for the legal profession
For the profession to continue to grow and position itself to meet the needs of the community in this environment, it must respond to these challenges. The way to achieve this is through the development of a truly national profession supported by a uniform regulatory framework.
At this point I want to stress that the proposed regulatory laws are not a virtue in themselves. Some identifiable benefit must flow from the proposed reforms.
A truly national legal profession would allow greater flexibility in the way in which legal services are provided. Removing inter-jurisdictional barriers would allow the legal profession to compete on an equal footing with other ‘advice providers’ who do not face the same regulatory barriers to flexible practice. And it would remove the ability for legal practitioners or those wanting to enter the profession to forum shop for the jurisdiction best facilitating practice or admission to practise. Most significantly, it is in the public interest that such a framework would result in improved access to justice and legal services for the community.
The role of the States and Territories is crucial. Law firms seeking to compete on a national level for work will look to moving to those jurisdictions that permit flexible business structures that facilitate competition.
We need to move to a position where all regulatory controls on the legal profession are justified and uniform. And this is not simply a reference to registration requirements. In my view uniformity must apply to all those things that are fundamental to the administration of legal practice. This would include trust accounting, professional indemnity insurance, conduct rules and disciplinary procedures.
In short - the profession needs a uniform national legislative framework. This would give it the flexibility, the competitiveness and the certainty to respond to the diverse and growing demands of the Australian public. And it would also allow the Australian legal profession to position itself more effectively for the provision of legal services internationally and to international companies looking to invest in Australia.
The legislation would conform in its core elements in each jurisdiction. And it would be integrated by including provisions that make the independent pieces of legislation mutually supporting.
I am convinced of the strong and positive benefits of uniform State and Territory legislation to govern the profession. A truly national market in legal services offers very substantial benefits and it is something we must achieve.
However, I want to stress that the Howard Government is committed to the principle of cooperative federalism. And we recognise the virtues of decentralised decision-making that flow from empowering the States in appropriate areas.
In the model I propose for a national uniform legal profession, one based on uniform State and Territory legislation, different States and Territories can quite legitimately arrive at quite different policy choices. We have a number of examples of cooperative arrangements between the Commonwealth, States and Territories that work effectively. There is no reason why we can’t achieve the same in achieving a national uniform legal profession.
Key Issues
To guide this reform a roadmap is needed. We need to pinpoint what the key areas are. And we need to identify the key issues that must be addressed.
I suggest that the task can be divided into the following categories - admission requirements and procedures; regulation and discipline; and finally, business structures.
Admission Requirements and Procedures
First, in the area of admission requirements and procedures, the task is to establish a set of core requirements for admission to practice. The procedure for admission would be standardised. A process would be developed for the notification and mutual recognition of admission decisions throughout Australia. And eventually, a common roll of practitioners would be developed. There has been a great deal of discussion and debate over the setting of uniform educational requirements. But to date, the actual results have been piecemeal.
As I mentioned earlier, in academic training the so-called ‘Priestly 11’ have generally been adopted in most States. When it comes to admission to practice requirements, a few States still retain articled clerkships. While all jurisdictions require the completion of a course of practical legal training, the content of these courses vary.
The situation for the admission of interstate and foreign practitioners is just as haphazard.
For the recognition of interstate lawyers, all States and Territories have enacted legislation complementary with the Commonwealth Mutual Recognition Act 1992. A number of States and Territories have enacted national practising certificate legislation, although the requirements for registration differ. And when it comes to foreign lawyers it cannot be said that we are anywhere near reaching a uniform system.
To achieve uniformity a number of proposals have been put forward. The idea of a National Appraisal Council was considered by the Standing Committee of Attorneys-General in 1997. And the Australian Law Reform Commission presented a similar proposal as part of its Managing Justice Discussion Paper.
I think there is widespread support for a national coordinating body to develop uniform national education standards.
Despite the obvious positives of a national body, a number of fundamental issues on its role have not been satisfactorily resolved. I do not intend to canvass these issues here as they are essentially matters of detail. Yet, there is no doubt that they need to be resolved.
I do not believe that it is a viable alternative to keep examining these issues on a case-by-case basis. The inevitable outcome will be more years of frustration and more years of ineffective reform.
If we are serious about achieving uniform admission requirements and procedures we need to have a body tasked with the role of developing uniform admission requirements.
Disciplinary Procedures
Second, in relation to regulatory and disciplinary procedures, the task is to develop a consistent model for regulation of the profession. Most importantly there is a need to put in place consistent standards to govern the disciplining and striking-off of errant members of the profession.
This year, we have seen the impact of a number of high profile cases of barristers abusing the bankruptcy process as a means of avoiding their tax obligations. We have seen the damage that can be done to the reputation of the legal system and the standing of the profession in the eyes of the public. And the problem was exacerbated by the lack of consistency between the States and Territories for regulating and disciplining the profession.
The Commonwealth has urged the States and Territories to develop nationally consistent options for dealing with such matters. Once again, this will provide a procedure for the notification and mutual recognition of disciplinary decisions throughout Australia. Nationally consistent disciplinary procedures can only serve to give the public and the profession increased confidence in their dealings with the legal profession and the legal system generally.
The Law Council and ALRC have both had a close look at the legal profession’s codes of conduct. In terms of professional practice rules there is a great deal of diversity between the States and Territories.
It is clear that a uniform national model is needed. And I appreciate and acknowledge the contributions the Law Council and the ALRC have already made towards the development of such a code.
In terms of disciplinary processes, the overall structure is generally uniform. Supreme Courts retain a role in the discipline of legal practitioners. In all States and Territories the investigation and evaluation of complaints is conducted by an individual or body outside the Court. But it is here where the differences arise. I believe that the development of a uniform national set of ethics or ethical guidelines is essential if legal practitioners are to be entitled to work across jurisdictions. Courts, the legal profession and clients must be entitled to expect that a practitioner operating across jurisdictions understands and is bound by the same ethical considerations.
At the same time, practitioners must be able to expect complaints against them will be dealt with in a uniform way across the jurisdictions in which they practise.
Uniformity could be achieved by working with and refining the existing codes.
This approach would take advantage of the practical experience that has developed around each code or procedure. But I do not believe it would deliver the commitment to change and the commitment to a new national code that must be the object of any reform process.
My preferred option would be to embark on a process of formulating model codes, processes and standards. This process can still benefit from existing experience, but it will start with a clear agenda and a clear determination to develop a single uniform code.
Business Structures
When it comes to business structures the task is to facilitate the incorporation of legal practices and multi-disciplinary practices and other similar business structures. As always, the biggest challenge will be to come up with a mechanism that will ensure nationally consistent legislation.
The passage of the New South Wales Legal Profession Amendment (Incorporated Legal Practices) Act 2000 is a first step towards the incorporation of legal practices.
However, I am the first to acknowledge that difficult questions remain concerning discipline and ethics. And these concerns are heightened if incorporation leads to the development of multi-disciplinary practices.
In these multi-disciplinary practices there are concerns about lawyers giving advice other than legal advice. And there are concerns about possible situations where a practitioner’s duties to his or her client may conflict with the conduct of the business and the fiduciary duty that a director owes to the shareholders of the company.
There are also concerns that incorporated practices will not employ enough senior practitioners to supervise junior practitioners and para-legal staff on the discharge of their duties to their clients.
Questions also remain concerning the reservation of legal work. For example, should the reservation of legal work be relaxed as long as it does not impact on the strictly legal work of practitioners?
In relation to specialisation, the approach has been left to individual legal professional associations.
However it does appear that there are discernible advantages in the development of uniform schemes. This is especially so in areas such as criminal law and family law. These issues have not been dealt with in any great detail, and until they are, progress in the reform of legal business structures is likely to be slow.
Both the reservation of legal work and specialisation have been discussed in detail as part of the National Competition Policy. There has been general agreement that restrictions on who can perform legal work are a principal means of protecting the consumer. However, there is a general view that scope does remain to identify areas of practice that could be conducted by non-lawyers.
Of course the Law Council has also contributed to the debate on the reservation of legal work. The Council has put forward a policy and associated model legislation that would prevent non-lawyers from being involved in litigious work, the preparation of legal documents and probate.
One option for progressing work in this area is to pursue and expand the review of legislation required by the National Competition Policy process. The advantage of this approach is that it would build on work already underway. However, the NCP reviews are not delivering the uniformity that is so essential to the establishment of a national profession.
Add to this the fact that the reviews are not required to be completed until 2002 and it seems clear that the National Competition Policy process is not the best medium to deliver the national framework that I am advocating.
A second option is to approach this area on an issue by issue basis, possibly incorporating the NCP review process to deal with some of those issues. As with entry to the profession, this will mean a piecemeal approach, much the same as is presently the case.
Achieving the Vision
The next - and perhaps the most difficult questions - are how a uniform national profession can be achieved and how the proposed reforms I have mentioned can be put into place.
I have already made the point that the failure to achieve a truly national legal profession is not due to any lack of understanding of the benefits. A national profession has not developed because there has not been the right process in place to turn the idea into a reality.
This impasse should be broken. I have written to the State and Territory Attorneys-General to argue the need for a national legal profession. And I have urged them to support the establishment of a Taskforce to identify the work that needs to be done and where necessary to develop draft legislation.
I see the Taskforce being charged with the task of developing the uniform laws and structures that are required to achieve a truly national profession.
Without going into any great detail, I suggest that the following principles might guide the Taskforce’s work. The Taskforce should be chaired by an outside expert who has the knowledge and respect to drive the reform process. All jurisdictions should be directly represented on the working group. No single jurisdiction should dominate the Taskforce’s work. The Taskforce should also operate in a non-partisan manner to the greatest extent possible. I would like to think that the importance and the benefits of a national legal profession would outweigh considerations of a political nature.
With the right amount of commitment and enlightened self interest I believe the Taskforce could be the circuit breaker that the national profession needs.
Conclusion
I want to make it clear that I am not here simply to propose another committee. I am here to argue the case for a national uniform legal framework. The Taskforce represents a way to achieve this end goal.
A truly national legal profession will enable the legal profession to meet some of the challenges it faces. It will help the profession to serve the law to the best of its ability. It will help the profession meets it duty to the community. And it will preserve the critical role of the profession as the principal independent protector of the rights and liberties of the individual.
The profession is the guardian of the law. This responsibility is an honour and privilege. We cannot take it for granted and we cannot assume it is something we will always hold.
It is incumbent upon every one of us to embrace reform. This means working in good faith to achieve real results and tangible outcomes.
Posted on 05 Oct 2008 by APS
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