Barristers And Solicitors

About this Item
SpeakersSham-Ho The Hon Helen; Hannaford The Hon John
BusinessQuestions Without Notice


The Hon. HELEN SHAM-HO: My question without notice is to the Attorney General, Minister for Industrial Relations, and Vice-President of the Executive Council. Lawyers are often the butt of much discussion, even criticism, with respect to elements of their trade practices. There are many proponents of reform of these practices. One
Page 8044
of the key items of discussion within the profession and outside is the structure and regulation of the profession. The advantages and disadvantages of a divided profession are often addressed; that is, should the separation between barristers and solicitors be done away with?

The PRESIDENT: Order! Will the honourable member please ask her question?

The Hon. HELEN SHAM-HO: Will the Minister inform the House whether he or the department has addressed this issue at all?

The Hon. J. P. HANNAFORD: The matter the honourable member is addressing - the fusion of barristers and solicitors into one profession, and whether that proposal has my support - is the subject of much debate at present. It was debated today at a conference organised by the Young Lawyers Association, and I was able to indicate that I regard the debate as an academic issue which does not address the real problem. The real problem is the work practices of solicitors and barristers. Arguments are commonly used for the fusion of the profession and we have heard those arguments many times. They include: fewer lawyers would be required, competition would be increased, and restrictive practices would be reduced. The most common arguments against fusion are that the quality of service provided by lawyers will be decreased, and that solicitors may be reluctant to brief the best barrister for fear of losing their clients. I have little sympathy with that argument. Another argument against fusion is that there are advantages in having an independent and detached group of barristers who are widely accessible. There is not much strength in that argument, because there are separate groups of barristers in the States that already have a fused profession.

Clearly we must address the work practices and the restrictive practices of the professions. If the structure of the profession unduly restricts freedoms, that will adversely affect the quality, the accessibility, the speed or the cost of justice. I have taken the view that the key issues that must be addressed include the restriction on business structures available to barristers; restrictive practices at the bar relating to access and the relationship of barristers with solicitors; the cost to clients of separate fees for solicitors and barristers; the two counsel rule which is adopted; the elite status of Queen's Counsel, which is available only to barristers; as well as other things such as court dress. Today at the Young Lawyers breakfast I indicated that I will be undertaking a review of the practices of the legal profession. As the first step in that review I will release within the next few days an issues paper entitled, "The Structure and Regulation of the Legal Profession". The purpose of the paper, which I commissioned from my department, is to raise for consideration various issues so that each may be examined to determine whether it is in the public interest that the regulation, structure or practices of the legal profession be altered. From that examination I propose to prepare an agenda to highlight and to set priorities for reform of the profession.

There have been a large number of inquiries into the legal profession. Many books have been published about the review of the profession. I do not intend that there should be any further reviews. I believe we should identify the issues and start to address them with some priority, and that is what I intend to do through this publication. I believe it is accepted that the regulation of the legal profession should be directed towards the public interest, bearing in mind that assessment of the public interest is a complex value judgment. I believe that too much time has been spent in concentrating on what the lawyers see as necessary for the lawyers, rather than on what is seen as necessary for the public interest. That equation will be turned around. The Hon. Dr B. P. V. Pezzutti
Page 8045
has referred to customer service and that is the issue that I intend to have addressed. In my view the three policy imperatives that must be considered are access to legal services, the cost of legal services, and the quality of legal services. I believe that the review that is to be undertaken will start to address those issues.