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Legal leaders attend LIV Council Conference

News

Cite as: (2003) 77(4) LIJ, p.26

The legal profession’s national and state leaders spoke at the Law Institute’s annual Council Conference held in February.

Law Council of Australia (LCA) secretary-general Michael Lavarch and state Attorney-General Rob Hulls spoke on legal issues of national and state significance at the Law Institute’s Council Conference held on 21-22 February.

The pair joined Institute president Bill O’Shea and CEO John Cain at the two-day annual conference attended by the 18-member Council and the heads of the Institute’s Sections, country and suburban law associations.

Among the major issues discussed at the conference were:

  • options for the future structure of the LCA;
  • the continuing review of the Legal Practice Act;
  • moves to introduce mandatory continuing legal education (CLE); and
  • challenges to be faced by the Institute during the coming year.

Mr Lavarch opened the conference by speaking about the current structure of the LCA – a federal group which consists of independent state-based constituent bodies – and outlining options for its restructure.

While emphasising it was not his role to advocate whether the structure needed changing or to support another structure, Mr Lavarch said last year’s handling of the public liability issue caused sectors of the legal profession to raise questions about the LCA’s current formation.

“As the profession is structured, the Law Council would not play a major role in the area of public liability as it falls within state law. The representation of the profession’s interest in Victoria would take place at the LIV and Bar Association level.

“The problem is, of course, that the jurisdictional niceties of the area of law falling within the state domain was of little interest to the federal ministers who dominated the political debate and the other principal players pursuing agendas, namely the medical profession and the insurance companies.”

Mr Lavarch said the legal profession struggled in the public liability debate because the medical profession and insurance companies operated as a national body with state branches.

This allowed those two groups to engage the debate at a national level and run a coherent campaign because of a concentration of resources.

For example, the Australian Medical Association could call on six Canberra-based public affairs officers and the resources of its state branches. The Insurance Council of Australia had three full-time public affairs staff and access to full-time consultants. It also had the resources to retain former chief of staff to the Prime Minister, Graham Morris, as a public relations consultant. In comparison, the LCA had one public affairs officer, he said.

“The net effect is that in public relation terms lawyers were often portrayed as the source of the problems experienced in terms of the availability and cost of insurance,” Mr Lavarch said.

“The doctors achieved considerable empathy with the public even when being able to achieve outcomes which saw substantial taxpayer support for their insurance requirements. And the insurance companies remarkably escaped much public criticism although, on a factual basis, the problems in the insurance market relate little to the operation of the legal system and much to the collapse of HIH... and a global tightening of the insurance market.”

It was at times like these that sections of the profession raised the possibility of moving to a national as opposed to federal structure, he said. The LCA strongly favoured the continuation of the federal structure, although it was up to the constituent bodies to assess and “take action as they see fit”.

Mr Lavarch said the debate about a peak body came at a time when internationally there were conflicting trends in global governance, which were the force of globalisation and the strong sentiment towards local autonomy.

“One suspects the law societies of the smaller states and territories are suspicious that a national representative structure really means a loss of local identity and influence to NSW and, to a lesser extent, Victoria. Maybe this need not be the case as it would all turn on how the structure is designed and operated. But there needs to be a lot of work done to turn around such sentiment.

“Equally, in my view, it would be a considerable loss if a national law society results in a fracturing of the direct relationship within the one structure with the Bars across Australia,” Mr Lavarch said.

Attorney-General Rob Hulls outlined some of the issues he will pursue in his second term. He said much of his reform package was directed at cementing Victoria at the forefront of national law reform and creating a cohesive structure in which Victorian justice could be administered.

Central to his plans were the Justice Statement and the Courts Strategic Directions Project, which will provide long-term goals for the legal system. Both projects should be completed in the first half of this year, with recommendations rolled out in the second half of the year.

Among the other main issues, Mr Hulls said he would push the federal government to fulfil its legal aid responsibilities and for it to accept the state government’s referral of powers over de facto relationships, which included same-sex couples.

He will pursue the scrapping of the “remarriage discount”, which provides for the discounting of a damages award to a widowed woman if, in the judge’s view, the woman’s physical appearance gave her good prospects for remarriage.

The Model Criminal Code Officers’ Committee has been commissioned to review offences relating to driving causing death, including the possible formation of an offence in the event of a death of an unborn child.

Mr Hulls said his review of the Legal Practice Act should be completed soon after the current audit of the legal regulatory system was completed on 31 March.

“I will say straight up that this is a complicated and sometimes vexed subject. I am more than aware of the anticipation felt by the profession and aware of the time that the process has taken. However, we have to get this one right. Regulation and complaints handling need not only to be beyond reproach, but must be seen to be beyond reproach.”

He said the regulation framework would prioritise simplicity, efficiency and independence. The framework would most likely involve all complaints being made at the initial stage to a single independent body called the Office of the Legal Services Commissioner. There would be a Legal Service Board with a chair appointed by the state government and made up of members appointed by the legal profession and community representatives with finance and prudential expertise appointed by the Attorney-General.

But Mr Hulls said he was still to make up his mind regarding the role of professional associations.

Mr Hulls announced his intention to introduce legislation making CLE for lawyers mandatory. (See breakout for more information.)

Institute president Bill O’Shea said the next 12 months would see the Institute “at the crossroads”. These included the outcome of the state government’s review of the Legal Practice Act, the impact on membership of moves towards a national profession, the need to be relevant to large firms, the requirement to improve the skills of lawyers through CLE and ethics workshops, and keeping young lawyers from burning out.

“We must listen to our members, the public and government and respond with initiatives and policies that advance the interests of our members or the benefit of the whole community,” Mr O’Shea said. “That’s the challenge before us in 2003.”

Institute CEO John Cain said there had been a number of changes at the Institute over the past year and said more work needed to be done over the next 12 months.

He outlined some of the major reforms that had occurred during the past year. These included the expansion of the continuing professional development (CPD) program and more services to country members through CPD tours, online library services and a new lecture theatre.

Mr Cain said communication between the Institute and members had improved as the result of a revamped website, the LIJ going online and the expansion of the Institute’s legal publications.

Jason Silverii

Introduce mandatory CLE or we’ll do it for you: Hulls

State Attorney-General Rob Hulls has urged the legal profession to institute its own mandatory continuing legal education (CLE) programs or else have the government do it for them.

Mr Hulls announced on 25 February that he was considering introducing a mandatory education scheme for solicitors and barristers to study the law for at least 10 hours a year in order to renew their practising certificates. Such a scheme could begin as early as January 2004.

“Ongoing professional development is a key element of the dual responsibility of the legal profession, namely to provide the best possible legal services and to enhance the regard in which the public views the profession,” he said.

Any mandatory CLE scheme would also need to include a professional ethics component.

The public announcement was made four days after Mr Hulls outlined his plan to the Law Institute’s annual Council Conference held on 21-22 February.

Mr Hulls told the conference that CLE enhances the competence of the legal profession and ensured clients received “correct, considered and up-to-date advice”.

“However, on a broader level, a profession that undertakes ongoing education sends a message to the public that the profession is not complacent or isolated, that it is eager to remain informed and adapt itself to developments in the law and that it takes its duty as a profession seriously,” he said.

He urged the legal profession to immediately engage in discussion about a mandatory CLE scheme. “I hope that every practitioner embraces the idea with the enthusiasm it warrants.

“If they do, it may well be that formal legislative provisions are not necessary, but I am more than ready to give such a scheme whatever legislative backing it needs to get it up and running.”

Institute CEO John Cain, speaking after Mr Hulls’ public announcement of the plan, gave the idea “a cautious welcome”.

“The framework that Mr Hulls has talked about for most practitioners would in fact be less onerous than what they are presently doing in terms of CLE,” he said. “What this proposal does is formalise what has been in place for some time. To that extent we welcome the introduction of mandatory CLE.”

A mandatory scheme requiring lawyers to study at least 10 hours a year would place Victoria in line with New South Wales which, Mr Cain said, was important for the mutual recognition of practising certificates.

It was important for the Institute to begin consulting with the legal profession to make sure the implementation of a mandatory CLE scheme was fair and even-handed and did not adversely affect practitioners.

The Institute will continue to communicate with Mr Hulls through a sub-committee formed to develop the rules of a mandatory CLE scheme. The sub-committee will include representatives of the Department of Justice.

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