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Unsolicited (Letters to the editor)

Every Issue

Cite as: (2004) 78(9) LIJ, p. 8

We welcome letters to the editor of no more than 400 words.
Email: letters@liv.asn.au. Fax: 9607 9451.
Mail: LIJ, Managing Editor Mick Paskos, GPO Box 263C, Melbourne 3001; or DX 350 Melbourne.
We reserve the right to edit letters and to republish them in their original or edited form on the Internet or in other media. Letters must include a phone number and address for authentication.

Conveyancing article misunderstood

Pauline Barrow of the Australian Institute of Conveyancers (“Unsolicited”, August 2004 LIJ, pages 8-9) has completely misunderstood both my article and the legislation to which it refers (“Conveyancing and unqualified practice”, July 2004 LIJ, page 55).

I draw her attention to the following:

  • Conveyancers are not part of the legal profession and do not provide any legal services – they are permitted to provide post-contract conveyancing services of a clerical nature only.
  • An unqualified person providing post-contract clerical services, without taking responsibility for the related legal matters, is not a true competitor in the legal services market.
  • Consumers are entitled to know if a low-cost option involves the loss of legal protection, as lower costs are not the only consideration in real estate transactions.
  • Consumer protection must also be extended to those who wish to open or purchase conveyancing companies. Ms Barrow and her Australian Institute of Conveyancers may be inadvertently misleading its members by advising them that they are entitled to involve themselves in the real estate contract process.
  • With regard to Ms Barrow’s claim that “a conveyancer who prepares a document (known as a contract) and forwards it to an estate agent for completion on a sale when a buyer is found (which may not occur) has not prepared a legal document”, such a document would be quite useless for the following reasons:

    – According to s53A of the Estate Agents Act 1980 an estate agent can “fill up” only a standard form contract note, a standard form contract of sale, or a contract prepared by a legal practitioner. There is no exemption that allows an estate agent to fill up a contract prepared by an unqualified conveyancer;

    – If the estate agent is prohibited from using the contract prepared by the conveyancer, can the conveyancer “fill up” her own contract? The answer, by reference to s314 of the Legal Practice Act and s53A of the Estate Agents Act, is clearly no.

    – The conveyancer has produced a document that neither she nor the estate agent can “fill up”. Does she have the client fill it up? What happens in relation to the insertion of special conditions by either party? At what point is a legal practitioner called on? Does the conveyancer use her own legal practitioner, or does she advise her client to engage his own?
  • Ms Barrow observes that mention is made on my website regarding the statement of adjustments as legal work, and expresses doubt that a court would make such a finding. My view appears to be supported by Simon Libbis and Sandra Murphy, authors of Conveyanceworks – All you need to know about conveyancing in Victoria, who have reproduced a paper by Anne Yule of the Legal Practice Board. This paper, “Conveyancers and the Legal Practice Act” lists a number of documents including the statement of adjustment, and states, “These documents affect a person’s legal rights and obligations. A conveyancer should not prepare such documents”.
  • Ms Barrow’s suggestion that the Legal Practice Act permits conveyancers to operate is simply wrong. The Act does no more than clarify the limited functions that a conveyancer can perform. On this point reference can be made to the explanatory memorandum to the Legal Practice Bill 1996, tabled in Parliament, which contains the following statement in respect of cl 326 (now s326):

    “It is not intended to allow a conveyancer to do anything that they were not permitted to do before the commencement of this Part”.

I fully agree with Ms Barrow’s suggestion that a more comprehensive legislative framework is required. However, until new legislation comes into effect, and in the interests of consumers (including those who wish to purchase and operate conveyancing businesses), conveyancers must comply with the existing legislation.

Ms Barrow should advise members of the Australian Institute of Conveyancers (Victorian Division) accordingly.

Peter Mericka
Legal practitioner and real estate lawyer

Muddying the conveyancing waters

The issue of conveyancers performing legal work has ebbed and flowed over the years and involves an element of tilting at windmills.

However, I wish to dip my toe in the muddy waters for just a moment (having set some sort of record by mixing three metaphors in the space of 25 words, perhaps I should proceed with alacrity).

As a starting point, the Legal Practice Act 1996 defines legal work as “the preparation of any document that creates ... an interest in land”: s326(a). Pauline Barrow (see “Unsolicited”, August 2004 LIJ, pages 8-9) refers to Peter Mericka’s article (“Conveyancing and unqualified practice”, July 2004 LIJ, page 55) and suggests that the preparation of a contract of sale of real estate is not legal work on the basis that a contract has no legal effect until exchanged. However, the same may be said of the mere “preparation” of a transfer of land, and yet there is no doubt that this is legal work.

Every property law student knows that a contract of sale creates an equitable interest in land in favour of the purchaser. A transfer, when registered, creates a legal interest. The effect of a transfer before registration has occupied the attention of many eminent lawyers, including the High Court, although not, it would seem, Ms Barrow.

To suggest that the preparation of contracts or transfers is not legal work on the basis that, when prepared, they are innocuous is equivalent to suggesting that a sleeping cobra is not dangerous. It is the ultimate, and intended, effect of the document which is important in determining whether its preparation is legal work.

I suggest that if Ms Barrow wishes to practise law, she should obtain a law degree.

Russell Cocks
Lecturer, Deakin University

Courses convey quality information

Conveyancers in Victoria should be educated and experienced with compulsory insurance. This letter is a response to the assertion by Peter Mericka (July 2004 LIJ, page 55) that educators are “on notice” and should “examine course syllabuses”.

RMIT Business currently offers a government-funded Diploma of Financial Services (Conveyancing) in accordance with the national training package. It is a two-year part-time course where students attend class one night a week for four hours. They undertake two subjects per semester, a total of eight over the two years. This is not a short course.

Other than an accounting and management subject which are core requirements of the training package, the other six subjects have substantive law content relevant to conveyancing practice. These subjects include interpretation of case law and legislation as well as a detailed examination of various documents and processes. Most legal practitioners would recognise the subjects offered as shortened versions of legal process, contract law, and property law from their law degrees.

In addition, there is conveyancing process and land contracts and a subject including mortgages and commercial leases. It is noted that undergraduate law students do not necessarily undertake any extra conveyancing subjects, but become legal practitioners entitled to perform conveyancing.

The teachers of the law subjects are all qualified lawyers with current practising certificates.

It is imperative for the legal and conveyancing practitioners and the public who engage them that only educated and experienced professionals handle conveyancing. The introduction of licensing (after appropriate education and supervised experience) could only enhance the standing of quality conveyancers and rid the industry of incompetent operators.

Legal practitioners should welcome such a change, as they would only have to deal with other competent professionals. At the very least, the review of the Legal Practice Act should introduce compulsory insurance and clarify the rules relating to conveyancing businesses.

Joanne Mackay
Conveyancing coordinator, RMIT Business

Worldwide protest at Guantánamo detentions

As leaders of the legal profession in our respective countries, we wish to state our concerns about the continuing detention of non-US “enemy combatants” in Guantánamo Bay.

We welcome the [US] Supreme Court’s ruling on 28 June allowing the detainees to challenge the validity of their detention in US courts. We call on the US authorities to abandon the “review panels” now being held in Guantánamo Bay.

In view of the considerable time that these detainees have been held, without access to lawyers of their choice or their families and reportedly in conditions of physical and psychological duress, the case for them to be able to challenge their detention in a civilian court is stronger than ever.

The war on terrorism will not and cannot be won by denying those suspected of terrorism the fundamental right of a fair opportunity to test the evidence against them.

Courtney Able Acting President, Organisation of East Caribbean States Bar Association; Bertrand Asscherickx President of the Brussels Bar (Flemish Bar); John Bigwood President elect, Brussels Bar (French speaking); Neil Brailsford Treasurer, Faculty of Advocates, Scotland; Jeroen Brouwer President, Dutch Bar Association; Jean-Marie Burguburu President, Ordre des Avocats a la Cour de Paris (Paris Bar Association); Edward Chan SC Chairman, Hong Kong Bar Association; Chris Darlow President, New Zealand Law Society; Francis Gervais President, Federation of Law Societies of Canada Bob Gotterson QC; President, Law Council of Australia; Hans Jürgen Hellwig President, CCBE (Council of the Bars and Law Societies of the European Union) F William Johnson QC President, Canadian Bar Association; Stephen Irwin Chairman, Bar Council of England and Wales; Jaques Leroy President, Union Internationale des Avocats; Dr Hans Lühn Vice-president, DeutscherAnwaltVerein (German Bar Association); Ramon Mullerat Spain; Ken Murphy Director General, Law Society of Ireland Edward Nally President, Law Society of England and Wales; Francis Neate Vice-president, International Bar Association; Patrick Patterson President, Organisation of Commonwealth CariBbean Bar Associations; John Pinkerton President, Law Society of Northern Ireland; Gordon Salier President, Law Society of New South Wales, Australia; Dr Ernst Staehelin Vice-president, Swiss Bar Association; Andrew Stewart Clerk, Faculty of Advocates, Scotland; Victoria Strong Vice-president, Law Institute of Victoria, Australia; Jan Suyver Chief Executive, Dutch Bar Association; Norbert Westenberger Bundesrechtsanwaltskammer (German Federal Bar Association); Thierry Wickers President, Conference des Batonniers, France

Young have clear idea of gender identity

I refer to Ms Borg’s recent article in the LIJ online at https://www.liv.asn.au/journal/archive/78-07-Jul2004/78-07-Jul2004-Accordin.html [see also, “When being a girl is not enough”, July 2004 LIJ, page 87].

I have written about the Re Alex case in an article published in Online Opinion which might be of interest (see http://www.onlineopinion.com.au/view.asp?article=2166).

Although we can never predict the outcome in such difficult cases, please let me suggest that people like Alex would have a clear idea of their gender identity by the age of seven or eight, so 13 would never be considered too early an age to make what is a life-saving decision.

Ms Borg’s article made no mention of Alex’s alleged suicidal tendencies, which of course need to be considered in any such decision, whether it be a legal or medical one.

It is very important that statements of presumption referring to Alex’s developmental processes be supported by both the facts of the case and our knowledge of child development processes.

Rachel Heath BSc PhD
Honorary Professor of Psychology, University of Newcastle

Rights of the Child submission not comprehensive

I commend the fact that the Law Institute has seen fit to make submissions in relation to the implementation of the Convention on the Rights of the Child. The sooner the Convention is implemented in Australia the better.

The submission made, however, dwells entirely on the issue of asylum seeking children and meritorious though that may be, it is, however, with great sadness that I see not a mention of our own court-sponsored breach of the Convention. That glaring hole in the submission is extremely disappointing.

The Family Court of Australia has developed a rule of law and relies on the precedent that where there is parental “conflict” or “poor communication” then the Family Court will not make an order for joint parenting of a child irrespective of the age of the child and his or her wishes.

Therefore, if one parent who is desirous of excluding the other parent from being involved with the children deliberately refuses to communicate with their former partner for no good reason other than the fact that they have been informed of the precedent developed by the Family Court, that parent is “rewarded” by the Family Court (particularly where that parent is the mother) by excluding the other parent from actively participating in the lives of the children irrespective of the wishes of the children. Furthermore, the Court will refuse to admit any evidence which may be intended or tends to show that the acts of that recalcitrant parent were deliberate and for the purpose of showing conflict. Thus the rights and wishes of the child are totally ignored in clear breach of the Convention on the Rights of the Child.

The Family Court’s decisions perpetuate conflict between warring parents and encourage the deliberate aggression of one parent against the other. This type of behaviour is clearly detrimental to the children and not only sets an extremely bad social example for them but amounts to a deliberate attempt to circumvent the rights of the child to have contact or to live with his or her parent. To reward a parent for that behaviour and punish the children and the other parent by making the other parent at best a visitor to the lives of the children is clearly a breach of the Convention.

It is time to remove lawyers and judges from situations with any involvement in the care and custody of children in the Family Court and put it in the hands of those people who can make caring decisions regarding children with a non-adversarial system of cooperation such as social workers, psychologists and medicos. But that is another story ...

Lindsay Gordon
Lindsay Gordon Lawyer

Note: This letter was received before the recent federal government announcement on proposed changes to the Family Law Act 1975.

Family law furphies

Media reports of “mandatory” child contact or a “presumption” of child contact preceded the government’s announcement on 29 July of its family law “reforms”. In the end the proposed changes to the Family Law Act itself were rather more moderate. We will have “equal shared parental responsibility” – which I’m sure all family lawyers will find groundbreaking ... Perhaps Mr Howard is not aware that ss60B and 61C have been gracing the Family Law Act since 1996.

There will also be a change to the principles of the Act to refer to “the need for both parents to have a meaningful involvement in their children’s lives and for children to have a right to spend time on a regular basis with both parents”. Again – strangely familiar to family lawyers – though different in one subtle, though important, way.

How can a shift to parents’ needs and away from children’s rights and best interests possibly be desirable? Except, perhaps, as a pre-election concession to vocal fathers’ groups who may be upset that the government has agreed neither to splitting children 50/50 Solomonesque or to creating a “non-adversarial Families Tribunal”.

Of greater concern than these “changes” to the substantive law are the government’s proposals for 65 Family Relationships Centres that will conduct compulsory pre-filing mediation.

These Family Relationships Centres may well assist those couples who already work it out for themselves anyway. But what about the “difficult” cases? Again there is the usual proviso that “cases involving violence or child abuse will not have to meet this requirement [for mediation]” but it is our clients’ experience that these exceptions are often not effectively enforced. I have written to the LIJ previously (January-February 2004, page 15) about the very real issues surrounding mediation in cases involving family violence and regarding “screening” for family violence and I will not repeat those points. Rather, I want to emphasise that, where systems like this are set up that aim to be the usual approach to dispute resolution, the temptation is to push people through, not keep them out. This is particularly so where the cases that should be excluded actually represent a significant proportion of the total, which, unfortunately, is the case with family violence cases in family law.

Perhaps it is time to pay attention to those difficult cases, that significant minority of cases that take up so much of the Family Court’s time, not to mention cause so much suffering to those involved. Rather than throwing money at people who are already working it out for themselves, why not invest in extending Project Magellan to family violence cases?

Joanna Fletcher
Law reform and policy lawyer, Women’s Legal Service Victoria

Funding crisis in Australian law schools

In December last year, the federal government made significant changes to the funding of higher education under the Higher Education Support Act 2003.

As the peak representative body for Australia’s 28,000 law students, the Australian Law Students’ Association (ALSA) is concerned that the Act will further diminish the teaching and research capacity of Australian law schools already paralysed by insufficient funding.

Consequently, ALSA is campaigning for a review of the funding distribution model to ensure that all Australian law schools can provide quality legal education to their students.

One of ALSA’s recent initiatives in this regard has been to send letters to prominent members of the legal profession outlining the deleterious consequences that the Act will have on legal education.

Letters were written in early July to all current justices of the High Court, Federal Court, and state and territory appellate courts, to former members of the High Court, and to the presidents of all state and territory Bar Associations and law societies, in addition to all law deans and university vice-chancellors.

In the past month, ALSA has received an overwhelming response to the concerns that it has raised with the Australian legal community. The letters we have received have indicated widespread alarm about the ramifications of these changes for the provision of high quality legal education.

One letter summed it up as follows: “It is rather odd that a country that prides itself on the rule of law places such little value on the education of law students and lawyers”.

ALSA’s primary apprehension with respect to the Act is the Commonwealth Grants Scheme (CGS), which will determine university block grants from 2005 by reference to the number of students studying a particular university discipline.

Under the CGS, law is placed in the lowest of the 10 funding clusters. Universities receive only $1442 per law student in the form of commonwealth grants, compared with $2371 per economics student and $3995 per humanities student.

This is an inequitable arrangement based on outmoded conceptions of legal education and historical funding anomalies.

Further, ALSA remains concerned that under the proposed fee arrangements, law students will continue to pay a higher percentage of their own course costs than any class of university student, a situation exacerbated by the frequent use of law student fees to cross-subsidise other disciplines.

ALSA hopes that the concerns of the legal community will be addressed by the federal government to ensure that Australian law students receive an education commensurate with their considerable ability and that the funding shortage in Australian law schools is remedied before it causes lasting damage to the provision of legal education in this country.

For more information regarding the funding crisis, please contact me at education@alsa.asn.au.

Andrew Lodder
ALSA vice-president (education)

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