310.carole ainio lca elder succession and law committee

Contact Details

Phone: +61 2 6246 3788 Fax: +61 2 6248 0639 www.lawcouncil.asn.au

Edited by Michael Anderson Phone (02) 6246 3725 Email [email protected]

July 2011 [email protected] | www.lawcouncil.asn.au

As President of the Law Council of Australia, I’m often asked who we are and what we do. The general response is the Law Council of Australia is the peak national rep-resentative body of the Australian legal profession, and represents about 56,000 legal practitioners nationwide. In essence, we advocate for the rights of the legal profes-sion on matters of national importance.

But what about from a pragmatic viewpoint? While we certainly do advocate for the interests of the profes-sion at a national level—and to a high standard—how does this relate to the everyday practitioner? Or the small to medium practices that make up a large section of the profession?

In this edition of @theLCA we will explore this very issue to see how the work of our committees, working groups, Sections and the Secretariat help the lawyers and law practices and firms in Australia on a daily basis.

We have interviews, profiles and our monthly Q&A with experienced lawyers and legal advocates from the Law Council including:

Small to Medium Enterprise Business Law Committee Chair, Tony Burke;◊ Family Law Section Executive member, Paul Doolan;◊ Co-Chairs of the Recruitment and Retention Working Group, Danny Barlow ◊ and Fiona McLeod SC;Co-Chairs of the Elder and Succession Law Committee, Pam Suttor and ◊ Carole Ainio; andChair of the Access to Justice Committee, Mark Woods.◊

And there are also articles on e-conveyancing, anti-money laundering and how COAG’s National Legal Profession Reform Project will impact the individual lawyer.

While these areas certainly provide a good snapshot of what we do at the Law Council, there is so much more work that also goes on behind the scenes that we could not profile in this edition. Other committees and sections from areas includ-ing the Legal Practice Section, International Law Section, Federal Litigation Section, Business Law Section, immigration law, collaborative practice and criminal law also undertake significant work.

The legal profession has an important role to play in helping shape the future direction of Australia and there is a place for all of us to get involved irrespective of location or the size of the practice in which you operate.

I would also like to make mention of the launch of the South Pacific Lawyers Asso-ciation (SPLA), which I attended this month. Chaired by former Law Council Pres-ident Ross Ray QC, the SPLA will drive collegiality amongst lawyers in the South Pacific and work closely with members to promote the administration of justice and the development and improvement of law throughout the region.

The announcement of the SPLA also coincided with a funding grant from the Commonwealth Government for the establishment and administration of a clear-inghouse at the Council’s Secretariat to support the Australian legal profession’s

In This Issue

President’s message

Investing in the future of the profession

Profession raises concerns over new anti-money laundering regulation

Constitutional Discussion Forum highlights need for reform

Law Council helping remove barriers to justice

Advocating for the small end of town

Q&A—Paul Doolan, Family Law Section

Law Council helping drive elder and Succession law reforms

Moving into the new age of conveyancing

COAG National Legal Profession Reform Project: Issues for small law practices

Upcoming Events

President’s message

Alexander Ward

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President’s Message (cont.)

pro bono work in the Asia-Pacific. The funding will assist in ensuring the future development of the legal profession within the region and in the effective promotion of the rule of law within the Asia-Pacific. This is a fantastic opportunity for the Law Council and I will keep an interested eye on its development in due course.

The launch of the SPLA also coincided with a recent trip to the Solomon Islands where I led a Law Council delegation to Honiara to conduct a scoping study into the regulation of the legal profes-sion in the Solomon Islands at the invitation of the Solomon Islands Government.

On Friday 22 July the Law Council hosted a Discussion Forum on Constitutional Change to rec-ognise Aboriginal and Torres Strait Islander peoples. The Forum was hosted at Old Parliament House in Canberra, with the keynote address “Constitutional Law and Indig-enous Australians: Challenge for a parched continent” delivered by the Hon Michael Kirby AC CMG. The Law Council looks forward to sharing the outcomes of this Dis-cussion Forum with you in a future edition of @theLCA.

You’ve probably heard the line about how many lawyers there are at the bottom of the ocean. But bad jokes and cynicism aside, there’s no doubting the vital role lawyers play in modern society. Everyday life is affected by the law, in one way or another, and for anyone who has had dealings with the legal system—for good or for bad—they understand the importance of sound legal guidance. The rule of law is a fundamental tenet of society and without the work of lawyers, as well as thousands of other employees in the legal profession, justice would be but a word only. Lawyers are held to some of the highest professional standards in Australia and attract some of the best and brightest minds to its cause. University enrollment figures con-stantly point to high enrollments in legal courses; TV has romanticised the profession through a plethora of legal dramas. But still, the legal profession, like many skilled professions in modern Australia, often struggles with its own recruitment and retention issues.

Many towns across Australia are feeling the pinch of this drain on skilled services. Whether it is nurses, doctors, teachers or lawyers, communities across Australia are being left to slowly decay from within as they struggle to attract and/or retain the skilled workers they need to survive long-term.

That’s not to say the country is suffer-ing from a lack of trained legal profes-sionals. The problem is where they’re practicing and also why certain demo-graphics aren’t staying in the profession long-term. “A lot of lawyers are leaving the profession quite early on and that is leading to a shortage of experienced, capable lawyers in the profession gen-erally,” said Co-Chair of the Law Council of Australia’s Recruitment and Retention of Lawyers Working Group, Danny Barlow. “In some areas there aren’t problems, but in others there are. It’s not healthy for any law firm to have lawyers whom they’ve invested a lot of time, effort, and, let’s face it, money in developing to leave the profession.


The profession needs to look at ways to encourage people to stay in the profession.”

The Law Council established its Recruitment and Retention of Lawyers Working Group in June 2008 to respond to increasing concerns within the legal profession regarding difficul-ties in recruiting and retaining lawyers.

“What the Working Group does is try to identify problems and find solutions to issues affecting rural, regional and remote (RRR) practitioners in attract-ing and retaining staff, but we’ve also broadened our scope to include factors affecting the profession generally, such as looking at the high attrition rates of female and young lawyers.”

Barlow, a former Law Institute of Victoria President, is a director at a regional law firm in Shepparton, Vic-toria. For him, recruitment and reten-tion issues affecting RRR communities are something he feels very passionately about, “When the RRR issue was being discussed in 2009 I was quite vocal on the subject as it was something that was very close to my heart,” he said. “As often happens when you are vocal about something, you get a tap on the shoulder to say ‘well, why don’t you get involved—here’s a way to do something about it’.”

“We’ve done a lot of work into the RRR issue and it’s only now we’re start-ing to broaden our scope as we identi-fied early on that it was just too big a task to try take on everything at once,” Barlow said in relation to the expand-ing role of the Working Group.

The RRR initiative was born from anecdotal evidence that pointed to an access to justice issue for residents in RRR communities where there simply weren’t enough lawyers to service community needs. Studies backed the anecdotal evidence too: a 2006 TNS Social Research report commissioned by the Commonwealth Attorney-General, Study of the Participation of Private Legal Practitioners in the Provi-sion of Legal Aid Services in Australia, showed there were only three lawyers

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per 10,000 residents aged 18 years and older in remote Australia when com-pared to 10.7 lawyers per 10,000 in capital cities of Australia.

In response to the RRR issue, the Law Council decided to reach out directly to RRR lawyers through a survey. Over 1100 practitioners in RRR Australia participated and the results confirmed the anecdotal evidence. The survey showed that not only were there not enough lawyers to service the needs of RRR Australia, but that the situation was only getting worse as a number of experienced practitioners were set to retire with no one to take over their work.

“The survey was really important: it gave us some hard data and was actually a lot more disturbing than what we had anticipated,” Barlow said. “The level of people who were looking at leaving the profession in RRR Australia pointed to a real crisis. We were facing a situa-tion where people in these areas weren’t going to have any lawyers to service their needs unless we did something about it.”

With the cold-hard facts now on paper to back up the anecdotal evi-dence, the Working Group set about lobbying the federal government for support. In May 2010, the Common-wealth Attorney-General, the Hon. Robert McClelland MP, announced $1.1 million in funding to boost the recruitment and retention of lawyers in RRR areas.

The majority of the funding was pro-vided to the National Association of Community Legal Centres Inc. for the engagement of regional coordinators to develop strategies to attract and retain lawyers in selected RRR areas, includ-ing support for services to coordinate recruitment and to provide mentoring and professional support to lawyers for all Commonwealth Government-funded legal assistance services.

The Law Council was allocated $250,000 as part of this funding boost to implement its own initiative to help ease the crisis: RRR Law. RRR

Law centres around two major com-ponents: a promotional DVD and website. The website, RRRLaw.com.au, is the key resource for the initia-tive and links people to job opportu-nities in RRR Australia; and provides further information on legal careers in RRR Australia through case studies, regional profiles. The site also details a range of professional development opportunities.

RRR Law was officially launched on 20 May this year by the Common-wealth Attorney-General, The Hon Robert McClelland MP, who said “The RRR Law project is an excellent initia-tive that will go a long way to attracting lawyers to remote and regional areas to improve legal services.”

With the infrastructure for the RRR Law initiative now in place, the Working Group and the Law Council are focused on spreading the word into the legal community. “RRR Law is about heightening awareness because we found in a lot of our discussions, with younger lawyers particularly, that they weren’t aware of the options for working in regional Australia; or they weren’t aware of the various type of work available to them,” Barlow said. “It’s all about getting some education out there as far as what people’s options are.”

“We do think we’re getting some momentum,” Barlow said of the initial successes of the RRR Law initiative. “The issue continues to raise eyebrows at the political level and has coincided with a political environment where country regions are getting attention again.”

Time will be the best judge of how effective RRR Law is in attracting lawyers away from the big cities. As the Law Council begins to ramp up phase two of the project, which involves a promotional campaign to spread the RRR Law mantra, it is helping drive an investment in legal knowledge and helping sustain the small practices that RRR areas so heavily rely upon.

Barlow is confident the Working Group and the Law Council can keep up the momentum they have developed and develop RRR Law into a mecha-nism that will help ease the recruit-ment and retention issues affecting RRR Australia. “I’m very optimistic,” said Barlow of the future of RRR Law in helping drive better recruitment and retention numbers in RRR Australia. “I’ve been in meetings with senior poli-ticians where they’ve raised the RRR issue and have heard about it. This is not just an issue that affects lawyers and people are starting to realise the impact it has on regional areas where you’re missing skilled professionals—if you take any particular service provider out, it affects the whole region.”

Danny Barlow

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Investing in the future of the profession (cont.)

Fiona McLeod SC is Co-Chair of the Recruitment and Retention of Lawyers Working Group and is the driving force behind the Working Group’s plans to address the high attrition rates of female lawyers. She is Chair of the Law Council’s Equalising Opportunities (EOL) in the Law Committee, which advises the Board of the Law Council on matters relevant to achieving equal-ity of workplace opportunity within the Australian legal profession. She is also a former President of Australia Women Lawyers and a former convener of the Women Barristers Association and the Victorian Bar Equality and Diversity Committee.

“The retention of women is a newer project for the Working Group,” McLeod said. “Following the exten-sive and continuing work on the issue of RRR lawyers, the Working Group is now also focusing more intently on women in the profession.”

The context surrounding the recruit-ment and retention of women in the profession, and in particular the asso-ciated high attrition rates, is a tricky one to pin down to any one reason

according to McLeod. She added that life in the law was in a way a microcosm of everyday life for some women in that there were expectations and certain cul-tural biases—both conscious and sub-conscious—that led to higher attrition rates. “The legal profession is a reflec-tion of our broader societal attitudes and assumptions about who should be raising children and women’s choices about wanting to be the primary care giver too,” she said. “The point of reforming things is not to deprive women of those choices, but to support them if they do want to come back to the profession—if women choose to have that time off, we need to make it easier for them to come back.”

When one considers that women now make up 46% of lawyers in Aus-tralia and that the majority of law graduates are now female, there is clear incentive for the profession to address the high attrition rates of its female cohort. With female lawyers making up so much of the working population of lawyers, the imperative on small to large practices and firms to invest long-term in the skills of their staff is paramount.

The Working Group is making strong headway thanks to the recent adop-tion by the Law Council of its Strate-gic Framework for the Recruitment and Retention of Women Lawyers. The Framework will look at obtaining empirical data to test the anecdotal evidence of reasons for the attrition. It aims to reduce the attrition rate through a range of initiatives including: a National Attrition Study; promotion of the Law Council’s Court Appear-ance Survey, Strategy, and Action Plan; promotion of the Law Council’s Equi-table Briefing Policy; and the develop-ment of a Diversity Policy.

“The National Attrition Survey will look, nationally, at why and when women leave the profession in com-parison to men,” McLeod said. “We know anecdotally it’s because they’re not making enough money; we know they’ve got caring responsibilities and it’s too hard to come back to the

profession; we also suspect the practice of the law is not attractive long-term for women and they want to try something else. All of these are valid reasons, but we don’t know for sure—we’ve never targeted those who have left and said ‘why is it you have left? What would have made a difference for you in coming back to the law after some time away?’ Some of our assumptions we feel will be spot on, but there might be some new, interesting things that come out of it that we haven’t considered before, and we might find we’re way off in some instances. The Attrition study is a key component of the Framework and there are a number of important attrition study proposals being looked at by various universities and women lawyers associations around Australia already on a state or local basis, and what the Working Groups is hoping to do is incorporate the work that has already been done rather than replace those and reinvent the wheel. We will build on this work that has already been done to build a national picture.”

The next phase of the Framework involves the promotion of the Law Council’s Survey, Strategy, and Action Plan, which are designed to assist Aus-tralian bar associations to develop strategies and initiatives aimed at recruiting, retaining and advancing female barristers. Current representa-tion of female barristers in the courts is sparse to say the least. Only 19 percent of the Australian Bar population and only 6 percent of all Queen’s Counsel and Senior Counsel positions are filled by women. As a member of Senior Counsel herself, McLeod said the Survey, Strategy and Action Plan are vital to addressing the attrition rate of women in the law.

The third phase of the Framework involves promotion of the Law Coun-cil’s Equitable Briefing Policy. The Equi-table Briefing Policy was developed in response to reports that appearances in Australian superior courts are the product of inequitable gender brief-ing practices, “In other words, don’t Fiona McLeod SC

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Investing in the future of the profession (cont.)

have assumptions about talent based on gender: look at and consider brief-ing women,” McLeod said. “It not an affirmative action policy, it’s a consid-eration policy. At the moment some state governments and the Common-wealth Government have taken that up and been very effective in applying those policies to briefing. The govern-ments have really led the way and we’d like to see it flow through to corporate and private firm briefing too.”

“The diversity policy is a broader statement that looks at non-discrimi-nation on a number of grounds being a policy to be adopted by the Law Council across the board, so not just gender but also race, ethnicity, sexual preference and so on,” McLeod added in regards to the fourth tranche of the Strategic Framework.

McLeod is optimistic about the future of women in the profession, but is mindful that it will take time and effort to reduce the high attrition rates, “I think when you’re seeking to change behavior that’s been entrenched for a hundred years you need to celebrate small successes and take small steps,” she said. “We’ve seen in the last decade quite a revolution in the profession for women and I think it will continue.”

More information on the Law Coun-cil’s Equitable Briefing Policy and Court Appearance Survey are available online.

Anti-money laundering (AML) reg-ulation and its current and potential impact on the legal profession is a policy issue of significant interest to the Australian legal profession and the Law Council—particularly for small practices.

The Government’s reforms in this area are aimed at bringing Australia into compliance with the standards published by the Financial Action Task Force (FATF), an interna-tional inter-governmental body that develops and monitors policies to combat money laundering and terrorist financing.

The Government has indicated that it intends to introduce tranche two of its AML reforms in the near future. If introduced, these reforms are likely to impose customer due diligence, suspicious transaction reporting, record keeping and training obligations on designated businesses and professions includ-ing lawyers. Other professions likely to be targeted include accountants, real estate agents and trust and company service providers.

Tranche one of the govern-ment’s AML reforms was passed in December 2006 and was phased in over two years. Tranche one was primarily aimed at the finan-cial and gambling sectors, and also bullion dealers. Although it was not directly aimed at legal practitioners, they were not specifically exempted from its operation. To the extent that legal practitioners provide certain financial services in compe-tition with the financial sector, they are also intended to be subject to obligations under the reforms.

The Law Council has worked actively to lobby government to ensure that any AML regulation of the profession is:

Based on real evidence about ◊ the money laundering risks faced by practitioners and is precisely targeted at address-ing that risk. In particular,

Profession raises concerns over new anti-money laundering regulation

it argues that the Government should not impose onerous regu-latory obligations on the legal profession unless it can demon-strate the need for such meas-ures, and that they are likely to be effective. Consistent with the existing reg-◊ ulatory obligations of the profes-sion and, if possible, is integrated into that regulatory framework.Does not involve legal practition-◊ ers being asked to covertly collect and provide information about their clients to regulators.

The Law Council’s advocacy is of par-ticular importance to small practices, which form a substantial proportion of the legal profession. Small practices are likely to be disproportionately affected by administrative burdens and compliance should these reforms be implemented. At worst, this could result in the withdrawal of certain legal services.

The Law Council will continue to advocate for the profession in this area. It will also work to provide information to the profession about:

Their current obligations under ◊ existing AML legislation.The likely content and impact ◊ of further proposed AML regulation.Best practice policies and proce-◊ dures practitioners can employ in their businesses to ensure that, regardless of what their regulatory obligations are or might be, they protect their business and their reputation from being misused by money launderers.For small practices, which are less ◊ likely to have dedicated compli-ance resources, this information is essential in order to reduce their daily regulatory burdens and to minimise any risks of unwitting involvement in money laundering practices.

An AML guide for legal practitioners is available on the Law Council of Australia’s website.

http://www.lawcouncil.asn.au/programs/national-policy/eol/meobp/meobp_home.cfm

http://www.lawcouncil.asn.au/programs/national-policy/eol/survey.cfm

http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=8FCE74BF-1E4F-17FA-D2A2-C549BD6656B4&siteName=lca

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The Law Council of Australia hosted a Discussion Forum in Canberra on 22 July to discuss the importance of symbolic and substantive change to the nation’s Constitution to recognise Aboriginal and Torres Straight Island-ers: Australia’s Indigenous peoples.

President of the Law Council of Aus-tralia, Mr Alexander Ward said the Dis-cussion Forum—Constitutional Change: Recognition or Substantive Rights? was the first of its kind hosted by the Law Council and brought together some of the leading experts on this topic from within Australia and overseas.

“The Law Council was pleased to present an eminent panel of speakers and a comprehensive agenda, which stimulated frank and robust discus-sion about modernising our Constitu-tion to reflect an inclusive, tolerant and modern Australia—an Australia that embraces and acknowledges its first peoples,” Mr Ward said.


Mr Ward added that it was time Aus-tralia acknowledged its Constitution was not created for Indigenous Aus-tralians, or for the rich array of cultures now residing here.

“The vast majority of Australians now recognise Aboriginal and Torres Strait Islanders as Australia’s first peoples, but what they may not realise is there are pro-visions in our Constitution that are divi-sive and discriminatory,” Mr Ward said.

The discussion topics developed for the Forum explored a number of pos-sibilities for reform.

“Options for reform range from rec-ognition of Aboriginal and Torres Strait Islander peoples in a new preamble to the Constitution, to recognition of sub-stantive rights giving practical effect to that recognition,” Mr Ward said.

Discussions at the Forum com-menced with a keynote address by the Hon Michael Kirby AC CMG.

Professor Patrick Dodson

The Hon Michael Kirby AC CMG

Dr Jeff McMullen AM

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Professor Bradford Morse

Mr Kirby’s address entitled Consti-tutional Law and Indigenous Austral-ians: Challenge for a parched continent, looked at the issue of recognition versus substantive rights.

“Wrongs have been done to our nation’s Indigenous peoples, includ-ing in the Constitution that binds all Australians.

“The road to equality for Indigenous Australians is an ongoing journey—part of that journey must include Con-stitutional reform that acknowledges the important role of Aboriginal and Torres Strait Islanders and is inclusive of all Australians,” Mr Kirby said.

The Forum was also addressed by eminent Indigenous affairs advocates including Professor Patrick Dosdon, Professor Mick Dodson AM, Dr Tom Calma, Professor Megan Davis and Dr Sarah Pritchard. The Forum was facilitated by Dr Jeff McMullen AM.

Highlights from the event included a discussion, involving three community leaders, on the extent of Constitutional reform necessary to give practical effect to Constitutional recognition. This session explored the Constitutional change process and whether substantive reform is necessary to make recognition of the first Australians meaningful.

A panel of leading academics and Indigenous rights experts engaged in a facilitated Q&A discussion, which provided a poignant end to the Forum, and considered the central themes dis-cussed throughout the day.

Following the conclusion of the Forum, the Law Council launched its Reconciliation Action Plan (RAP).

“The Law Council’s RAP seeks to provide practical measures to improve Indigenous participation in the legal profession and to promote under-standing between Indigenous and non-Indigenous people in the legal sector,” Mr Ward said.

Copies of the Discussion Forum papers are available on the Law Council of Australia website. Outcomes of the Forum will be featured in a future edition of @theLCA.

Tony McAvoy, Alexander Ward, and Dr Tom Calma launch the Law Council’s RAP

Professor Mick Dodson AM

http://www.lawcouncil.asn.au/library/speeches/forum-2011.cfm

http://www.lawcouncil.asn.au/library/speeches/forum-2011.cfm

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Tony O’Malley

Access to justice lies at the heart of what it means to be a lawyer in Australia. At its core, access to justice is about remov-ing barriers that may obstruct access to the legal system. Each day, thousands of people working in the legal profes-sion dedicate their efforts to make our justice system more accessible and to help the public navigate the often com-plicated world of the law.

“If you don’t have access to justice then there’s no point in having the rule of law,” said lawyer and Chair of the Law Council of Australia’s Access to Justice Committee Mark Woods. “Our whole reason for existence as a profes-sion is to ensure that the rule of law is promoted and respected.”

The Access to Justice Committee was established 1976 and is the Law Coun-cil’s longest serving Standing Commit-tee. As current Chair of the Committee, Woods has dedicated much of his 30 year professional career to the ideals of an equitable and accessible legal system. The Committee is made up


of barristers and solicitors from prac-tices of all sizes around Australia and advocates on issues including legal aid funding policies; access to justice issues for Indigenous people; and access to justice for those in regional, rural and remote areas.

So does Australia have adequate levels of access to justice? A 2009 Legal and Constitutional Affairs Commit-tee enquiry into the issue said no: “The committee considers that the legal system is not sufficiently providing members of the Australian community with access to justice,” the Committee’s report said.

Woods agrees there are areas that needs improving, “there are two main areas,” he said. “The first is to have those that make the laws understand that if they’re giving people rights, they need to provide the resources to the community to ensure those rights are respected. There’s no point in allowing people to bring action in our courts for breaches of a particular law unless the person has the capacity to do that and the only way they can take action is to be properly legally represented.”

“The second is to look at the way in which our legal aid system has evolved over the years and recognise that if you are involved in a criminal dispute, or to a lesser extent a family dispute, then the legal aid system is at least coping some-what with the demand,” adds Woods, but with a caveat: “If you have any other sort of legal dispute and you do not have the resources to obtain legal representation, you’re on your own and you chances of achieving access to justice are very, very small.”

Legal aid is at the coalface of the access to justice issue and is a key aspect of the Law Council’s advocacy in this area. While extra money has flowed into the legal aid system in recent years, it is still an area that remains chroni-cally underfunded.

Commonwealth Government spending on legal aid per capita has fallen from 50 percent to 32 percent

since 1997, and is forecast to continue sliding. Despite recent increases in funding, legal aid is still a chronically underfunded sector.

The lack of funding has inevitably led to a lack of access. Most Austral-ians believe that if they encounter legal trouble and cannot afford a lawyer, they will be entitled to legal aid. Unfor-tunately this is not the case. The lack of funding for legal aid means that a strict means test must be applied, and even if people pass the means test and other applicable tests, Legal Aid Commis-sions may still not have enough funding to help them. Many people who pres-ently do not qualify for legal aid are also unable to afford the services of private lawyers to conduct their cases, or are unable do so without undue hardship. This presents a massive barrier to justice to these people because there is simply not enough government funding.

Woods agrees that legal aid funding levels need to be returned to their 1997 per capita levels as part of three major reforms to the sector. “Reports into the legal aid sector prepared by Pricewa-terhouseCoopers show that the legal aid spend by the Commonwealth has decreased in real terms since the elec-tion of the Labor Government in 2007,” he said. “This is false economy because the government has been shown clear evidence that for every dollar spent on legal aid, almost $1.40 is saved in government expenditure somewhere downstream. For example, in a family law case, if we sort out the disputation between the parents then the likeli-hood of continued family violence or of children being in need of protection diminishes. The only way that happens is if they’re properly represented at the start; so the government saves money on human services, health services and so forth.”

Which begs the obvious question: if there is a monetary saving incentive for the Commonwealth Government to increase legal aid funding to the 1997 levels, why isn’t it happening?

Mark Woods

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“The cynical amongst us would say it’s because there are no votes in legal aid,” surmised Woods. “Lawyers preaching about the need for further legal aid funds really attracts about as much public attention as would a strike by pavement artists or poets. It doesn’t mean the argument is wrong, it simply means that getting oxygen sufficient to get the public interested is very difficult.”

In 2010 the Law Council launched its A2J (Access 2 Justice) Matters cam-paign to raise awareness of the sliding levels of legal aid funding. This cam-paign aims to improve access to justice for all Australians. The Law Council and its constituent bodies want the Government to make legal assistance sector funding a priority issue and to ensure a cooperative, nationally con-sistent and fair approach to provision of legal aid.

“It has been very successful,” said Woods of the A2J initiative. “A lot of people who enter Parliament don’t come from a legal background and issues about access to justice haven’t been part of their working or profes-sional lives, so it’s really important to impress upon those people that as law makers, they have a responsibility to ensure that the laws they make are accessible; that the rights they’re giving or taking away are capable of being exer-cised or sought by individual citizens. This concept ties in with how much money the government spends on legal aid. It is extraordinary when one com-pares what’s spent in New Zealand and in the UK to the pittance we spend in Australia. It’s important that our politi-cians and community opinion makers know about this issue so that when lawyers talk about how there needs to be an increase in funding for legal aid, we’re not just told ‘oh this is just whing-ing lawyers trying to look after them-selves’. This is an important part of the legal aid educative process and is what the A2J initiative is all about.”

Woods believes the profession is making significant headway into the issue of legal aid though. He high-lighted the increased legal aid spend from the Commonwealth and various state and territory governments as evi-dence that the initiative is having some tangible penetration. He also pointed out that the recent Queensland floods and Victorian bushfires provided a prime example of why legal aid is so vital to the community at large, and why the funding increases need to go higher. “For example, many insurance companies used their best endeavours to avoid claims and people need signifi-cant advocacy to deal with that refusal,” said Woods. “It’s at that point we can say the lack of civil legal aid is never more apparent than when John Citizen, who has just lost his house, is coming up against a multimillion dollar insur-ance company.”

The strong response of the profession in relation to the ruinous natural disas-ters of recent years has also prompted the Committee to develop a mecha-nism that will guide how such events are dealt with in the future. “What we want to do is prepare a template, which the government will sign off on, indi-cating the appropriate response to any natural disaster for, and behalf of, the legal profession,” Woods explained. “The Committee would like to have the template in place so that constituent bodies can then use that to set up the appropriate response in whatever state or territory the next disaster happens to be in.”

Woods added that the Committee is also looking at other areas affected by access to justice issues, “the Committee is in the process of advocating strongly for civil legal aid, the lack of representa-tion in our civil courts and the simple lack of funding from the states or the Commonwealth,” he said. “We’re also looking at research undertaken in the UK and the introduction in the UK of justice impact statements—where the bureaucracy has to present statements

showing the impact upon the justice system that any legislative procedure has. For example, if we decide we’re going to make a change to our immi-gration system, which is going to involve more people coming here to be assessed, that’s going to have an impact on the justice system. Part of the issue with legal aid and access to justice is nobody pays attention to the cost of implementing some legislative propos-als. The Committee believes it’s a very sensible response by the legal profes-sion to say if our politicians knew this was going to be the impact on that system, they would either reconsider the implementation or ensure that part of the implementation included the provision of appropriate resources. ”

Woods is determined in his cam-paign to see barriers to justice abol-ished in Australia and strongly believes that the work of the Access to Justice Committee is making headway into making our nation’s legal system more accessible. He said increasing legal aid funding was fundamental to improving access to justice in Australia and cur-rently represented the biggest obstruc-tion to its delivery. “I would like to see that legal aid is a simple commitment, just as GP services are to people in the health sector, and there should be an appropriate budgetary provision for it,” Woods concluded.

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The small to medium enterprise (SME) is integral to Australian culture. From the local newsagent to the thousands of small to medium law practices across the country, SMEs are and have been an intrinsic part of the Australian way of life.

The Australian Bureau of Statistics estimates there are over two million active small businesses in Australia, col-lectively representing around 96% of all businesses. These businesses employ millions of Australians. Around 40% of all Australian workers are linked to small businesses—and account for a quarter of the nation’s GDP. If you go beyond small businesses to include SMEs the figures are even higher. By contrast Australia’s mining sector contributes about 5.6% of Australia’s GDP.

The legal profession is a key contribu-tor to the SME sector in Australia. The bulk of Australia’s 56,000 lawyers are employed in SMEs in various capaci-ties and are especially aware of the day-to-day challenges faced in running a successful SME. “The vast majority of law firms around the country are them-selves SMEs,” according to Tony Burke,

Chair of the Law Council of Australia’s SME Business Law Committee.

The Law Council’s SME Business Law Committee has been running for about 12 months as part of the Law Council’s Business Law Section (as profiled in last month’s @theLCA). The Commit-tee was set up to enhance legal advocacy for SMEs in Australia and also to allay any misconception that the Business Law Section only caters for the policy concerns of “the big end of town”.

From humble beginnings the Com-mittee has started to gain traction. Through its representatives it has met with the Federal Minister for Small Business, Nick Sherry; it has partici-pated in the most recent National Small Business Summit; and it is starting to make submissions on various SME law issues. Chair of the Business Law Section, Tony O’Malley, said the SME Business Law Committee is an inte-gral part of the Business Law Section’s future, “I’d like to think that by the end of this year, it will be a fully function-ing committee and that the perceived gap in advocacy within the BLS will be filled,” he said.

As Chair of the SME Business Law Committee, Tony Burke brings a wealth of skills and experience he hopes will go a long way to helping champion the cause of SMEs in Australia. He is the principal at a small, four lawyer prac-tice in Melbourne’s southern suburbs with, as you would expect, an empha-sis on the legal concerns of SMEs. He confesses that he was originally unsure about how to get involved with the Business Law Section. “Kathy Farrell, who was then Chair of the Business Law Section, suggested I become a member. I responded by pointing out that my practice was much more diverse and I couldn’t see a logical place amongst the specialist committees of the Business Law Section where I could fit,” he said. “Eventually we realized that the Busi-ness Law Section was missing in the conversation with the Commonwealth Government about the SME constitu-ency, which is more of a demographic than a specialist practice section.”

This recognition that the Business Law Section and the Law Council were not fully engaging with the Common-wealth Government regarding the legal concerns of the SME community led to the development of the SME Busi-ness Law Committee. “I was invited to help set up this Committee and agreed to do so. Our role is quite differ-ent to that of the other specialist com-mittees in the Business Law Section,” Burke said. “Because we’re catering for a demographic that embraces a whole range of legal issues, we play a different role to some of the more specialized committees.”

As a relatively new committee, Burke said the SME Business Law Commit-tee has a relatively loose mandate, “We start from the position that SMEs have been missing from the conversation and that if the Law Council is going to be more effective as the peak body for the legal profession then we need to be involved in a whole range of discussions around SME law,” he said. “From small beginnings, we’ve been knocking on doors to get involved and get invited to participate in discussions and forums about SME policy development and legislative reform.”

The door-knocking appears to be having a positive effect too. The SME Business Law Committee is already making strong headway into the national conversation regarding SMEs; it has already been involved in the prep-aration of a number of submissions and is routinely invited to participate in national forums about SME issues. “Little by little we’re getting traction,” said Burke. “We’ll hopefully soon get to the point where people are keen to be involved because of the intellectual satisfaction that comes from participa-tion and the collateral benefits for their practices.”

Given the breadth and diversity of the sector, defining the primary con-cerns of SMEs is a tricky task. As Burke notes, there is a multitude of complex laws and issues that affect SMEs on a daily basis. He lists affordable dispute resolution as one topic in the SME

Tony Burke

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community that is of particular impor-tance right now and one that the SME Business Law Committee has recently addressed in a submission to Small Busi-ness Minister, the Hon. Nick Sherry. “The submission reflects the Commit-tee’s concern about an access to justice issue for small businesses, which are at a significant economic disadvantage when disputes arise, particularly with the big end of town,” he said. “Litiga-tion through the courts is often not an option, so alternate dispute resolution processes are important. The Commit-tee pushed this issue hard with Nick Sherry and he came out last month with an options paper that looks at this very issue and canvasses a national small business dispute resolution process.”

The Committee has advocated a dispute resolution model similar to that of the Victoria Small Business Commis-sioner: a non-court process run out of the Ministry of Small Business, rather than the Attorney-General’s Depart-ment, which provides subsidized small business dispute resolution through mediation. The process is relatively informal, inexpensive and efficient, and has proved to be remarkably effective process for resolving small business dis-putes across a gamut of cases.

“Going to court can be a frighten-ing experience for many SME proprie-tors,” Burke points out. “Owning and running an SME is not like owning a much larger business. It’s often intensely emotional because everything is on the line. It can also be a very isolat-ing experience. It’s not easy to get out of it—you can’t just flick the switch and say ‘I’m sick of running my own busi-ness, I’m leaving it tomorrow’. It often takes years before you can step aside from any business.”

Burke’s extensive experience in running his own small practice has played an important factor in being able to empathize with the numerous challenges the face SMEs on a daily basis. SMEs are divergent in the sectors they each represent, yet they all face a lot of similar challenges. “A lot of people comment about fatigue: people

are just tired,” Burke muses. “There’s a great deal of uncertainty in the world today and although I can’t measure it or point to any research, the observation of a number of people in the sector is that a lot of SME proprietors are just plain buggered!”

The life of the SME proprietor may be difficult, but the future isn’t all doom and gloom according to Burke. He believes there are great opportuni-ties for SMEs and the law firms that serve them to better embrace technol-ogy that can improve their businesses. When pressed, Burke reveals an ambi-tion to use technology to create greater linkages amongst SME law practices through new technology. “If I had my way, the law societies in Australia would collaborate to establish for Australian lawyers a portal to a rich vein of readily accessible legal tools, precedents and intellectual property as good as pres-ently exists with the large firms,” he said. “It should be possible to capture and render to our members, in an afford-able way, the intellectual property that is currently disaggregated amongst law firms. This will enhance the quality of

work we do and help us improve service to clients. And of course we should start with the SME lawyers! After all, isn’t that how the common law system started, by lawyers sharing and record-ing their experiences for the common good?”

Burke added that ultimately the advocacy work of the SME Business Law Committee was important for all SMEs and particularly the legal profes-sion. “When the Committee looks at policy development we keep in mind that most of us and our colleagues will equally be affected by changes to SME law,” he said. “Being part of an effec-tive peak body means being an effective voice on SME issues, and we hope we’re becoming that.”

The SME Business Law Commit-tee is currently looking for members in South Australia, Western Australia, Tasmania and Queensland. Inter-ested practitioners should contact Tony Burke ([email protected]) or Carol O’Sullivan ([email protected]) at the Law Council for more information.

The July 2011 edition of the Australasian Law Management Journal has recently been issued, and includes articles on:

Successful succession is all in the planning;◊ Seeing is believing: how to upskill your lawyers;◊ Nine steps to running world-class meetings;◊ Q&A: Paul Quinn – ‘Focus on client service and your people’;◊ Future Firm: Free advice from a Gen Y social crusader;◊ Marketing: Dull, duller and dullest … why clients are shunning your firm; and◊ Risk management: Will that be one compliance officer or two?◊

To access the articles or to subscribe to have the journal delivered directly to your inbox visit www.lawcouncil.asn.au/almj

Australasian Law Management Journal

mailto:[email protected]



http://www.lawcouncil.asn.au/lca/index.cfm?19F9634D-1E4F-17FA-D274-5D45C5104D36

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Paul Doolan is a family lawyer from Sydney. He started his career as a legal associate to former Justice Linden-mayer of the appeals division of the Family Court, and since then Paul has practised family law for 15 years. He is an editorial board member of the Australian Journal of Family Law, Fellow of the International Academy of Matrimonial Lawyers and has written numerous articles on family law sub-jects including the treatment of big money cases, how the court deals with financial agreements, bankruptcy and family law, and the role of independent children’s lawyers.

Doolan is the newest member of the Family Law Section following his election in late 2010 and took time to speak with @theLCA about the Family Law Section as well as his experience as a family law practitioner.

How would you describe the func-tion of the Family Law Section?

The Family Law Section is the peak body for family law solicitors and bar-risters in Australia. We see our role as multi-faceted: promoting legal educa-tion amongst practitioners; helping to shape and drive policy developments in family law; consulting with govern-ment and the courts; and liaising with the public to help them better under-stand what we as family lawyers can do to assist them.

What are some of the big ticket agenda items currently for the

Family Law Section?There has been a lot of consulta-

tion about the family violence amend-ments put forward by the federal government.

There’s going to be significant dis-cussion about broadening the dispute resolution services to encompass com-pulsory family dispute resolution in financial cases.

There’s a review going on presently in relation to the practicalities of the imple-mentation of the Hague Convention on International Child Abduction.


And we are also hoping to address some ongoing issues about financial agreements and the circumstances in which they are held to be binding or can be set aside.

As the newest member of the Family Law Executive, what ideas and

advocacy in terms of the Section’s future direction are you eager to pursue?

Certainly I’d like to see a broaden-ing of the membership base. Currently there are approximately 2,500 members and the Section would like to see a sig-nificant increase on that number as practitioners better understand the work of the Section and also the ben-efits of membership.

In terms of education, one of the big plusses of the Family Law Section in recent years has been its role in really pushing an educational agenda for members and trying to assist solicitors and barristers to better understand some of the more difficult areas of family law and better serve their clients.

Why do you believe membership with the Family Law Section is

important to family law practitioners?Firstly, there are a lot of educational

benefits for practitioners in being a member. Even though family law is a defined area, it’s very difficult in this day and age to keep up with the constant change that is going on and just deal with the volume of case law, legislation and rules. Having a body such as the FLS that helps you filter what’s impor-tant for you and your practice and keep you up to date is indispensible.

Secondly, membership gives practi-tioners a voice, through the elected rep-resentatives, in helping to shape policy developments. It’s an area of the law that changes constantly, both in terms of legislation and the rules. Having elected representatives there to help guide this process, or be part of it, is very important.

Why is family law constantly changing in terms of legislation

and the rules?Family law is an area that doesn’t lend

itself as immediately as other areas to

the role of government intervening in it—it’s very difficult to legislate for moral behaviour. It’s very difficult to have in place laws that reflect the very broad community we live in and the dif-ferent forms of family that now exist.

Family law is intrinsically linked with many small practices in Aus-

tralia. How does the work of the Family Law Section affect the work of these small practices?

With the amount of case law, legisla-tive changes, information and practice directions that all practitioners get across their desks, it is very difficult to keep on top of all of it. You need an ongoing roadmap of what is and what isn’t important to look at and I think without having a body like the Family Law Section helping guide you through those matters, particularly for the small practices, it’s very easy to become out of date very quickly and fail to notice important reforms or changes that are taking place.

What are some examples of areas where the Section is helping

keep practitioners abreast of important issues and developments in family law?

Developments about financial agree-ments, which I think from a profes-sional negligence point of view are the biggest concern to legal insurers; and I think should be the biggest concern to practitioners in family law. Practition-ers need to be constantly aware about how the case law is developing on topics like this.

The Commonwealth also recently received a referral of powers from the States (other than WA) and the Territo-ries over de facto financial laws. Again, it’s something practitioners need to be very conscious of and how the case law is developing in this regard.

Similarly there are constant case examples you see of problems emerging with the splitting of superannuation funds, particularly self-managed and defined benefit funds, and practitioners really need to keep up-to-date - again, from the point of view of ensuring the

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best outcome for clients and also pro-tecting themselves against professional indemnity claims.

As a practitioner with 15 years experience, what areas of family

law in Australia would you like to see strengthened?

The biggest issue is staffing and resources of the family courts—that is the Family Court and Federal Magis-trates Court. The Federal Magistrates Court was originally set up to deal with smaller matters, but it has now been given a very broad extension of the work it is to perform. The magistrates in that system are, from my observation by and large, doing an extremely diffi-cult job very well, but they’re chroni-cally overworked—it’s a question of are they being properly remunerated and staffed for the amount of work they are now expected to do.

In terms of judges at the Family Court, there has been a decline in real numbers—particularly in the Sydney registry of the Court there’s noticeable levels of understaffing. The delays in cases being heard and determined—again, particularly in the Sydney reg-istry—are chronic, which results in injustice for clients. If we have a client that comes in to see us and it’s likely they’re going to need a case heard and determined in the Sydney registry of the Family Court, we’re now telling them that if they go all the way through the system and have a final trial, they’re going to be waiting two-and-a-half to three years at least for a trial in a finan-cial matter—this is a case of justice delayed being justice denied.

Is it purely an issue of funding or are there other changes that need to be

implemented in the family courts?Unfortunately at the base of all those

issues are funding imperatives. There just are not enough judicial officers being appointed to service the growing population. There are a lot of very important initiatives to resolve matters outside of the court system. The family dispute resolution service in parenting

cases being a prime example, and the moves as well toward collaborative law and mediation. All of these have been embraced by the profession and the public. But the bottom line is that there still remains a core group of cases that cannot be resolved without judicial intervention. And the waiting lists for those clients in the court are growing longer.

What are some of the other big issues within family law that are

in need of reform? The complexity of the parenting pro-

visions is one. There’s a real groundswell of support for the idea of a complete rewrite of Part VII of the Family Law Act that deals with parenting matters, because it’s frankly convoluted and dif-ficult to follow even for experienced practitioners.

Secondly, relocation cases are an example of an area of family law about which they may not be a ‘right’ or a ‘wrong’ decision. You often have two litigants, with equally good reasons to advance for or against a relocation of the residence of a child interstate or overseas. Even with the benefit of a recent High Court decision about relo-cation cases, it remains one of the most difficult legal decisions that judges and magistrates have to make and for prac-titioners to advise about.

The Family Law Section runs regular Family Intensive events—

can you explain what they are and why they’re important to practitioners?

The Section now operates day-long Intensives in several of the major capital cities, which are designed to be some-thing of a “one-stop-shop” in terms of educating practitioners about the most recent developments in family law. We’ve been very lucky to have had the support in particular of Justice Garry Watts and also the recently retired judge Jennifer Boland who have presented each year detailed sessions on the latest case developments. We also try and target important topical subjects each year: for example in 2011, Justice Judy

Ryan and the court counseling service kindly provided lectures on the pro-posed family violence amendments.

The Family Law Section also runs numerous other events—are there

any others you would point to as being of interest to practitioners?

The Section runs a very important program training Independent Chil-drens Lawyers, as well as an Essentials of Family Law course for more junior lawyers.

Planning is very much underway for the biennial national conference in Hobart next year and the Section is very excited that Chief Justice French of the High Court has agreed to give the opening plenary paper. The confer-ence is the flagship event for the Family Law Section and is conducted every two years. It features national and inter-national speakers, and although the program is not yet finalised, the confer-ence will look at key issues like social science interaction with family law.

Paul Doolan

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Australia’s population is an ageing one. Increased life expectancy for ageing Australians is a testament to our nation’s robust health system, advances in tech-nology and knowledge of the human body. But an ageing population also poses a gamut of new challenges to Aus-tralian society. Treasury estimates reveal Australia’s older population (those aged 65–84) is expected to double by the year 2050. And the very old age bracket (85 and over) is expected to quadruple in the same period. While this poses a unique challenge for Australia’s politi-cians now and into the future, the legal profession will also play an important role in helping shape elder and succes-sion law in this country.

In recognition of Australia’s ageing population and the related growth in demand for elder law legal advice and services, the Law Council established a National Elder Law and Succession Law Committee to respond to issues of national significance in this growing area of the law.

The objective of the National Elder Law and Succession Law Committee is to represent the views of the legal pro-fession at the national level on matters related to elder law and succession law. It aims to achieve this objective by monitoring government initiatives relating to elder law and succession law, proactively initiating or advocating for policy initiatives relating to elder law and succession law, and by conducting


community education on legal issues related to the elderly.

“I’ve seen it grow from a State based Probate Task Force to a fully fledged, very hard-working committee,” said Co-Chair of the National Elder Law and Succession Law Committee, Pam Suttor.

The Committee’s other Co-Chair, Carole Ainio, said the Committee, “draws on the expertise of the Law Council’s constituent bodies and Sections in order to make more effective representation at the nation level in the area of elder and succession law.”

Elder Law, in a nutshell, involves the practise of law for issues affecting elderly Australians. There are many life events associated with ageing which require specific legal advice such as financial disputes, power of attorney, government pensions and wills. Succes-sion Law involves the making of wills and the administration of the estates of deceased persons.

“Essentially, elder law covers a wide range of areas,” Ainio said. “For example, older people may come into a practitioner’s office with an eye to the future uch as changing accommo-dation from the family home and that may need some legal advice in terms of what they may purchase, whether it’s a room in a nursing home, an accommo-dation bond queue or maybe going into a retirement village. There’s very spe-cific legislation around these examples and people often do need legal advice.”

Suttor and Ainio said one of the biggest issues for the Committee on elder law surrounded power of attorney and elder abuse. The elderly are some of the most vulnerable in the nation’s community and issues of elder abuse is, troublingly, becoming more promi-nent. Elder abuse is loosely defined as any act occurring within a relation-ship where there is an implication of trust, which results in harm to an older person. This can include, physical and/or financial abuse, and also neglect. A report from the Queensland Law Society said, “It is widely accepted

that elder abuse is under-reported. The World Health Organisation has iden-tified that prevalence rates in selected developed countries range from one to ten percent. Some Australian research suggests approximately three to seven percent of people over the age of 65 are affected. This number is likely to esca-late as the population ages.”

Ainio added that capacity issues when dealing with elder abuse was a particu-larly difficult problem for elder law practitioners. “Capacity is a huge issue in elder law,” she said. “Sometimes prac-titioners are asked to represent people at an administrative tribunal when someone is saying ‘this person no longer has capacity and needs an administra-tor and/or a guardian’. It can be quite difficult a lot of the time, because most people are not happy to have someone else managing their affairs and it’s very disempowering for them. We’re quite often appointed in situations where there’s conflict between family mem-bers—in these situations we have to tread very carefully.

“A lot of work has already been done at the state level on capacity issues,” Suttor added. “We need to keep up education to assist practitioners in assessing capacity.”

Harmonisation of lawsAnother key agenda item for the

committee involves developing greater

Above: Pam Suttor

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The Law Council has been repre-senting the interests of legal prac-titioners in the development of a national electronic conveyancing system (NECS) since 2005.

NECS will enable a legal practi-tioner from any sized firm to rep-resent a client in a conveyancing transaction in any part of Australia by electronic means.

Legal practitioners will no longer have to physically attend settle-ments and exchange cheques and documents relating to interests in land. Instruments affecting interests in land will also be able to be lodged electronically.

The development of NECS presents many legal and tech-nological issues which are being addressed by the Law Council’s NECS Working Group which con-sists of representatives of each state and territory law society, as well as representatives of the Business Law Section and the Legal Practice Section. Many of these representa-tives are from small practices.

The development of NECS is significant for small practices as conveyancing and property law rep-resent a large part of their work. For example, the Law Society of NSW’s annual practising certificate survey in 2010 showed that conveyancing/real property work represented 53% of work for firms with one to four partners.

The development of NECS was initially undertaken under the auspices of a National Steering Committee consisting of govern-ment and industry representatives, including two representatives of the Law Council.

In 2008 the Council of Australian Governments (COAG) adopted NECS as one of 27 areas of regula-tory reform and in 2010, National E-Conveyancing Development Ltd (NECDL) was established by the governments of New South Wales, Queensland and Victoria. The Law

Moving into the new age of conveyancing

Council has been closely involved with the activities of NECDL. The NECDL Board has a Law Council nominee along with nominees of the govern-ments of New South Wales, Queens-land, Victoria and Western Australia, as well as the Australian Bankers Asso-ciation and the Australian Institute of Conveyancers. In 2010, the Australian Registrars National E-Conveyancing Council (ARNECC) was also estab-lished with responsibility for develop-ing the necessary legislation and rules to facilitate electronic conveyancing. The Law Council represents the interests of legal practitioners on ARNECC’s Stakeholder Forum.

One of the significant issues for the legal profession relating to NECS is the issue of Client Identity Verification (CIV). As clients will no longer physi-cally sign documents relating to inter-ests in land, legal practitioners who sign digitally on their behalf will need to be satisfied of their client’s identity, authority and right to deal. NECDL recently conducted a consultation relating to proposals for a CIV stand-ard which would involve production of certain original documents, a visual check against photographic documents and an electronic document verification check. The Law Council made a major submission in relation to the issues arising for legal practitioners from the proposals.

The Law Council will continue to vigorously represent the interests of legal practitioners, particularly those from small practices in the develop-ment of NECS.


uniformity across a range of legal areas to better streamline many of the issues affecting elder and succession law. As it presently stands, states have the author-ity over legal documents such as wills, which can lead to cross-jurisdictional problems. For example, a ruling on a will in one state may not necessarily be rec-ognized in others. The harmonization and uniformity in the areas of powers of attorney, guardianship and births, deaths and marriages were all intrinsic reforms the Committee is actively pursuing.

“Why we need harmonisation and reform is because of the increased inter-state migration when we’re dealing with wills and estates issues: you have dealings with assets in more than one state,” Suttor said. “We’re trying to be Australians rather than New South Welshman or Territorians or the like.”

Suttor said establishing uniform enduring powers of attorney was another key reform the Committee was pursuing. She said the Committee recently noted that one of the major problems with the powers is that they do not, at present, revoke forms pro-duced in other jurisdictions, leading to duplication—and potential future con-flict arising from such duplication.

Ainio added that some states were already in the process of investigating reforms to power of attorney laws to better harmonise them with other juris-dictions. “A view needs to be formed on fundamental issues such as mutual recognition, which can be distributed more broadly,” she said. “Mutual rec-ognition should be interpreted in the sense that if something is valid in one state, it should be valid in another.”

As for the future of the Commit-tee, Suttor and Ainio said they will keep pushing hard on the issue of har-monisation and added that increased education of elder and succession law practitioners was an important part of its ongoing future. “We want to provide greater education and linkage opportu-nities for practitioners so they know they’re not alone,” Suttor concluded.

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What are the reforms?The National Legal Profession Reform Project is a Council of Australian Gov-ernments (COAG) initiative to estab-lish a nationally uniform regulatory framework for the legal profession.

The outcome COAG is seeking is that legal practitioners can practice law anywhere in Australia under a single practising certificate, with the same rules, obligations, benefits and con-sumer protections applying, regardless of the State or Territory within which a legal practitioner practices, or where a client resides or carries on a business, or where legal services are delivered.

How will the reforms be brought about?It is intended that the Legal Profession National Law and Legal Profession National Rules will replace the various Legal Profession Acts and Regula-tions in the participating jurisdictions. The plan is for one State or Territory (the “host jurisdiction”) to enact the national legislation, followed by the other participating States and Terri-tories enacting legislation to apply the legislation of the host jurisdiction as a law of that State or Territory. This is known as an applied laws scheme.

It is important to keep in mind that COAG’s proposals involve the States and Territories acting collectively to establish a national regulatory system. The underlying legislation will be State and territory legislation and the system will be established and administered by the States and Territories.

A National Legal Services Board A National Legal Services Board will be established by the States and Ter-ritories to ensure efficient, targeted, effective and consistent regulation throughout Australia. The Board will be responsible for the general admin-istration of the National Law and National Rules and for oversighting the implementation and application of the legislation and any policies and


practices that it determines or adopts for uniform and consistent application of the legislation.

The Board is directly accountable to a Standing Committee of State and ter-ritory Attorneys-General, which has a general supervisory role in relation to the Board and the National Legal Services Commissioner (see below) to ensure they are fulfilling their duties consistently with the objectives of the National Law.

The Board will consistent of seven members: two members will be rec-ommended by the Law Council; one member will recommended by the Australian Bar Association; and three members will be recommended by the Attorneys-General on the basis of expertise in the practice of law, pro-tection of consumers, regulation of the legal profession and/or financial management.

The appointment of the seventh member of the Board (the Chair) must be with the agreement of the Attor-neys-General, the Law Council of Aus-tralia, the Australian Bar Association and a representative of the Council of Chief Justices.

How will the reforms affect small law practices?

Over 80 percent of law practices in Australia are either sole practitioners or law firms with five or less partners oper-ating wholly within a single State or Territory. The regulatory reforms pro-posed by COAG are not expected to have a significant or disruptive impact on the day-to-day operations of these law practices.

The central themes of the reforms are to bring about a single Australian legal profession practising in a consist-ent, simplified and flexible regulatory environment, while also providing an enhanced level of consumer benefits.

Some of the key outcomes are set out below.

A level playing field

There are many elements to the level playing field:

All legal practitioners and law ◊ practices will operate under the same legislation, national rules (i.e. regulations), rules of pro-fessional conduct, legal practice rules and CPD rules.Both the National Legal Services ◊ Board and National Legal Serv-ices Commissioner have a focus on consistency. The primary objective of the Board is to ensure the efficient, targeted and effec-tive regulation of the profession and maintenance of professional standards.In-house and (depending on ◊ individual government’s deci-sions) government lawyers will be brought into the mainstream of the legal profession by being required to obtain and maintain a practising certificate.All State and territory regulators ◊ will administer the legislation under the same guidelines, poli-cies and practices.The admission rules will be the ◊ same for everyone, and applied consistently.The practising certificate rules ◊ will be the same for everyone, and applied consistently.The conduct rules will be the ◊ same for everyone, and applied consistently.The Continuing Professional ◊ Development Rules will be the same for everyone, and applied consistently.The professional indemnity ◊ insurance minimum standards will be the same for everyone, and applied consistently.

An Australian legal profession

Jurisdictional differences that cause lawyers and legal practitioners to be classed as either local or interstate

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lawyers and legal practitioners will be removed:

All persons admitted to the legal ◊ profession will be admitted as an Australian lawyer.Admission by one Supreme Court ◊ automatically means the Austral-ian lawyer is an officer of every Supreme Court.Regulatory barriers created by ◊ distinctions between local and interstate practising certificates will be removed—all legal prac-titioners will hold an Australian practising certificate automati-cally entitling them to engage in legal practice in another jurisdic-tion according to their individual practising entitlements.Regulatory barriers created by ◊ the current substantial number of classes of practising certificates will be eliminated. Practising enti-tlements will be conferred by way of a menu of conditions authoris-ing the holder to engage in legal practice. The ability to adopt different ◊ forms of business structures for legal practice will be enhanced. As well as the traditional sole practitioner and law firm model, law practices will be able to struc-ture themselves as:

incorporated legal practices »unincorporated legal prac- »tices, including multi-disci-plinary and limited liability partnerships.

Minimum standards for profes-◊ sional indemnity insurance will apply, so that all legal practition-ers and consumers have the secu-rity of the same minimum levels of professional indemnity insur-ance protection.Some local differences will remain ◊ in professional indemnity insur-ance premiums, choice of insurer and fidelity fund contributions, but this is because the legal pro-fession demanded local arrange-ments be preserved.

Reduction in regulatory burdensThe introduction of a single, uniform National Law and National Rules will eliminate the legislative differences that current exist across the States and Territories which add complexity and compliance costs, and create regulatory barriers and disincentives to engag-ing in legal practice in more than one jurisdiction.

Common legislation, rules, policies, practices and guidelines mean that when a legal practitioner undertakes work in another State or Territory, he or she does not have to be worried about different law and rules applying.

Enhanced consumer protectionThe complaints-handling provisions will clearly distinguish between com-plaints that are a consumer matter and complaints that are a disciplinary matter.

Consumer matter complaints will include matters relating to quality of service or complaints about costs (within prescribed limits).

The consumer complaints and pro-fessional discipline provisions must be administered by the Commissioner’s local representative in each State and territory. There will be no centralised complaints and discipline-handling body.

The consumer complaints-handling provisions are squarely aimed at infor-mal mechanisms as the primary method of resolving complaints.

Maintenance of the independ-ence of the legal profession

Independence of the legal profession means many things. Some of the fea-tures of the new national system that maintain the independence of the pro-fession are:

The Standing Committee of State ◊ and territory Attorneys-General cannot give policy directions to the Board or Commissioner.Legal profession retains right ◊ to develop legal practice, pro-fessional conduct and continu-ing professional development

18

@TheLCA July 2011

Upcoming Events

August 2011National Indigenous Legal Con- »ference: The Pursuit of Equality12-13 August, Dockside, Cockle Bay, Sydneyhttp://www.austdvclearinghouse.unsw.edu.au/PDF%20files/National_Indigenous_Legal_Con-ference.pdfAdelaide Family Law Intensive »*now also available via webinar* 13 August, Adelaide Email [email protected]

September 2011Criminal Justice in Australia and »New Zealand – Issues and Chal-lenges for Judicial Administration7-9 September, Sydneywww.aija.org.auLAWASIA Law Management »Conference: From ‘Good’ to ‘Outstanding’ – it’s all about your people9-10 September, Hong Konghttp://lawasia.asn.au/Law_Man-agement_Conference_Home.htmALPMA Summit »16-17 September, Crown Exhibi-tion Centre, Melbournehttp://www.alpma.com.au

October 201124th LAWASIA Conference »9-12 October, Grand InterConti-nental, Seoul, Koreawww.lawasia2011seoul.orgEssentials of Family Law Practice »20-22 October, Hilton Hotel, Adelaidehttp://www.familylawsection.org.au/Annual Conference of the Interna- »tional Institute of Law Association Chief Executives19-23 October, AdelaideEmail [email protected] 55th Congress »31 October - 4 November, Miami, Florida, USAhttp://congres.uianet.org/en/miami2011/

April 2012Commonwealth Regional Law »Conference19-22 April, Sydneywww.commonwealthlaw2012.org

rules, with limited powers of veto by Standing Committee (restricted to public interest or cost grounds).three out of seven Board positions ◊ are appointed on the recommen-dation of the legal profession.In addition, the legal profession ◊ may nominate, and must concur on recommended nominee for Chair of the Board (seventh member of the Board).

Your local professional associa-tion retains its current regulatory roles

Certain functions of the Board ◊ (relating primarily to practising certificates and disqualification matters) must be exercised by the local representative of Board.The local representative will be ◊ decided by the State or Territory government, and can be expected to be the local law society and/or bar association.Admission functions must be ◊ exercised by a statutory Admis-sions Committee, which will include members nominated by the legal profession, but matters disclosed in applications that require further investigation will be referred to local admission committees for advice.Special functions of the Com-◊ missioner (complaints-handling, compliance mentoring includ-ing trust accounts) are exercised by a local representative, which must be a statutory body (not being a professional association), but functions are expected to be performed as they are done now, albeit through a delegation of regulatory powers and functions to the professional association.

Cost of regulationA national regulatory framework nec-essarily entails a cost of establishing and maintaining the national bodies. Key issues that will affect the overall longer-term cost of regulation are:

The Commonwealth will provide ◊ funding for start-up costs.There will no increase in practis-◊ ing certificate fees to support the national regulatory bodies.Implicit in the introduction of ◊ uniform national law, uniform national rules and uniform poli-cies, practices and guidelines is a lessening of similar work cur-rently undertaken in each State and territory. The rationalisation of regulatory functions and regu-latory bodies that would come from eliminating the duplication of these activities will be realised over time.The ability to streamline and ◊ improve the efficiency and responsiveness of regulation in response to emerging issues and opportunities is enhanced by the ability of the Board to make and modify National Rules, without the need for specific legislative changes.

Editor’s note: the information contained within this article “COAG National Legal Profession Reform Project: Issues for small law practices” was correct and factual at the time of publication.

COAG National Legal Profession Reform Project: Issues for small law practices (cont.)

http://www.austdvclearinghouse.unsw.edu.au/PDF%20files/National_Indigenous_Legal_Conference.pdf






http://www.aija.org.au/Criminal%20Justice%202011/Program.pdf

http://www.alpma.com.au/summit_program_speakers

http://www.lawasia2011seoul.org/

http://www.familylawsection.org.au/

http://www.familylawsection.org.au/



http://congres.uianet.org/en/miami2011/

http://congres.uianet.org/en/miami2011/

http://www.commonwealthlaw2012.org/

310.carole ainio lca elder succession and law committee

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law practices

law council of australia

immigration law

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improvement of law

business law section

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succession law committee