BILL: Legal Practitioners

Today Mark outlined the Greens amendment to this Government Bill which secures the current funding for the Law Foundation and the Greens support for an additional amendment to ensure at least 50% of this funding goes toward the provision of community legal services. 

Legal Practitioners (Micellaneous) Amendment Bill 2019

I, too, rise to speak briefly on this bill. The only clause of the bill that we are engaging with is clause 5. Clause 5 relates to the issue of how moneys that derive from the interest on trust accounts are distributed.

Under the current act, the distribution of interest on solicitors' trust accounts goes exactly as follows:

50 per cent to the Legal Services Commission or one or more community legal centres in such shares and subject to such conditions as the Attorney-General directs; 40 per cent of the money must be paid to the Fidelity Fund; and 10 per cent of the money must be paid to a person nominated by the Attorney-General subject to such conditions as the Attorney-General directs.

That final 10 per cent has historically always gone to the Law Foundation. The Law Foundation, members would be familiar, advertises, I think, twice a year. You see their ads in The Advertiser inviting people to make application for funding for various legal projects such as the provision of legal services or community legal education. The way it is worded in the current act, my understanding is that that 10 per cent is paid to a person nominated by the Attorney-General.

My understanding is that the only reason the Law Foundation of South Australia Incorporated was not included in the legislation is that they were not in fact incorporated when this legislation went through. Now, they are a longstanding recognised organisation. It is chaired by a senior member of the judiciary. They are part of the legal establishment in South Australia. So there is now no reason not to name them as the recipient of that final 10 per cent of the funds that come from interest on solicitors' trust accounts.

The current law is also deficient, and the Hon. Kyam Maher alluded to this. There is also provision in the current act which basically allows the Attorney-General to vary or revoke the conditions on which money is paid from time to time but also to vary the shares in which the money is allocated. In other words, the legislation sets out 50 per cent, 40 per cent and 10 per cent, but the Attorney-General has the ability to change those amounts. That does not lead to any degree of certainty because organisations rely on being able to adequately budget for their futures. They know roughly how much money is going to be coming in each year, so the idea that the Attorney-General can unilaterally, because it says in the act, without the approval of the Law Society, vary those shares I think is unacceptable.

The amendments that the Greens are proposing, and which I understand the majority of the chamber will support, basically lock in that final 10 per cent and name the Law Foundation of South Australia Incorporated as the beneficiary. I should say that the bill before us proposes to reduce that share from 10 per cent down to 5 per cent. The Greens' amendment puts it back to 10 per cent, where it always has been. Also, we are proposing to delete the power of the Attorney-General to unilaterally change those percentages. I just think that is not appropriate. The parliament saw fit to put the percentages in in the first place; the parliament, if it sees fit, can change those percentages. It should not be up to the unilateral discretion of the Attorney-General of the day.

The Greens' amendment proposed that the money going to the Law Foundation would be spent on the things that it has historically spent money on, namely, provision of legal services, legal research, education. That brings us to the further amendment that has been filed by the Hon. Connie Bonaros, which seeks to ensure that, of that 10 per cent going to the Law Foundation, at least half will go to the provision of legal services for the community; in other words, to fund important community justice organisations such as JusticeNet and other community legal centres.

I think what this parliament is doing, if it does indeed pass the Greens' amendment and the SA-Best amendment to that amendment, is that we will have put in place a lot more certainty. The Legal Services Commission will know exactly how much they are getting, the Law Foundation will know what they are getting, and the Fidelity Fund will continue to get 40 per cent of the pool. Organisations such as JusticeNet, whilst not named in the legislation, have traditionally been supported by the Law Foundation, and it would be my hope that the Law Foundation would continue to see value in supporting a service such as that. The parliament is telling the Law Foundation that, 'We so value the provision of community legal services that we would like you to spend at least half of the money that you get on that.'

I think these are sensible amendments. They effectively give effect to the status quo as it exists on the ground, and we do that by changing the law, removing the loophole and providing that the community will continue to have access to legal services and that they will be funded in part by interest on solicitors' trust accounts.