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Reforming the Legal Profession: Yea or Nay?

Australian sillhouette

As a Victorian lawyer who wants to practice across Western Australia, South Australia and the Northern Territory, the idea of national regulation of the legal profession sounds pretty good to me! But while it sounds good in principle, not everyone’s happy.

Currently, every state and territory in Australia regulates their legal profession independently, controlling matters such as admissions, professional misconduct proceedings and insurance. Despite previous reforms, these rules still vary substantially between jurisdictions.

The possibility of a unified regulatory system has been discussed since the Law Council of Australia was founded in 1933. In the eighty years that have followed, it is only recently that National Legal Profession Reform legislation has been drafted.

The theory behind the reform is simple; a uniform set of regulations will make the lives of lawyers easier, increase Australia’s international competitiveness and enhance consumer protection. However, there have been many teething problems, including criticisms that the draft bill makes it impossible for in-house corporate lawyers to be insured for the pro-bono work many wish to do.

Broader concerns have been raised about potential compromises to the independence of the profession and the amount of power that the national Legal Services Commissioner will have. In the words of the Chief Justice of Queensland Justice Paul de Jersey, “I cannot see how the profession will remain ‘independent’ if effectively governed by a body appointed by executive government”.

Also, these reforms are not as national as initially hoped. Some argue that its effectiveness has already been diminished substantially through the failure of all jurisdictions to sign up.

Queensland initially agreed to the reforms but withdrew its support in October last year. As the majority of Queensland lawyers are sole practitioners, the Queensland government was concerned that reform would add unnecessary red tape and the increase costs and time would prove prohibitive to small firms.

In addition to Queensland, it is understood that Western Australia, South Australia, Tasmania and the Australian Capital Territory have all opted out, and it is uncertain whether the Northern Territory will participate. The Commonwealth Attorney-General’s Department told Survive Law: "The lack of support from other States and Territories for a truly national legal profession scheme is disappointing. A national scheme would have significant benefits for both the legal profession and the consumers of legal services."

Although this leaves only New South Wales and Victoria, the two states account for almost 75 percent of Australia’s lawyers. The scheme was due to commence today, but introduction has been delayed. "While the timing of the scheme is up to New South Wales and Victoria, the Commonwealth Attorney-General has written to both State Attorneys encouraging them to progress the implementing legislation as quickly as possible", a spokesperson for the Department said.

Only time will determine the success of the proposed reforms and whether the concerns of the profession can be overcome.

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