4 December 1991

7469 tvqieiati (tlunrt Wednesday, 4 December 1991 THE PRESIDENT (Hon Clive Griffiths) took the Chair at 2.30 pmn, and read prayers. RULING BY THE PRESIDENT FitzgeraldSwreet Bus Bridge Act - Motion to Note a Report THE PRESIDENT: Last evening the Leader of the Opposition sought my ruling on two matters relating to this Act. The first was, what is the effect of this House passing a motion that a paper be noted; the second was whether passing a motion to note a paper is in compliance with section 3 of the Act. I intend to dispose of the second question fkirt On previous oc 'casions I have ruled that it is not the function of the President to interpret Acts of Parliament except to the extent that they need to be taken into account when it comes to the practice and procedures of the House. Whether a particular Act, or thing, is in sufficient compliance with a statutory obligation is a matter, in the final analysis, for the courts. It follows that I have no opinion on the second question, although what I am about to say on the first question may lead members and others to certain conclusions as to the contextual adequacy or otherwise of the motion passed by this House yesterday. A motion that the House note a report, or ministerial statement or some ocher tabled document, is a motion that provides a vehicle for debate. In that sense it is similar to a motion to adjourn the House for the express purpose of debating an issue. At the conclusion of the debate the adjournment motion either lapses or is withdrawn. A good example of the procedure's use in this House is the motion to take note of the Estimates and associated Budget papers. Any member would be hard pressed to argue that passing that motion can be interpreted as meaning that the House approves the Estimates. Each of us knows that the form of the motion provides an opportunity for members to engage in wide ranging debate. It is in this context that the motion is dealt with in Erskine May's ParliamentaryPractice, 21st edition, on page 265. A concise explanation of the intention and effect of such a motion is found on page 563 of Australian House of Representatives Practice, 1990, and I quote - A motion "That the House take note of the Paper" is a procedure employed in cases where the House wishes to debate the subject matter of a paper,.. without coming to any positive decision concerning the paper ... The motion attracts discussion in Australian Senate Practice, 6th edition, on pages 924 to 926. Speaking of the Senate's practice it is said - ..a motion for the printing of a paper came to be accepted as a vehicle for debate, not primarily on the question of whether a paper ought to be printed, but on the general subject-matter of the paper. .. the modemn practice is to propose a motion that the Senate take note of the paper. T7his procedure avoids delay in the printing of a paper. I have quoted these authorities simply to illustrate the point that a motion to take note of a paper is used as a means of debating the paper's content without reaching a conclusion on its merits. The fact that at yesterday's sitting this House agreed to note a tabled paper does not mean - and I so rule - that the House has expressed any conclusive view or opinion on the merits of the proposals. MINISTERIAL STATEMENT - BY THE ATTORNEY GENERAL Legal ProfessionLegislation HON J.M. BERINSON (North Metropolitan - Attorney General) [2.38 pm)l - by leave: Since the Legal Practitioners Act was first passed in Western Australia in 1893, the Banristers Board of Western Australia has had responsibility for the regulation of the legal profession, and for receiving and investigating complaints of misconduct against legal practitioners. Initially the board could only forward reports on its investigations to the Full 7470 [COUNCIL] Supreme Court, and only the court could fine, suspend or strike off a practitioner frm die roll. The board was first conferred with power to itself deal summarily with disciplinary matters in 1948. In addition to its investigative role, the board was then empowered to impose fines, suspend or reprimand practitioners, and award costs, although the power to strike a practitioner from the roll remained with the Full Court. The change at that time was designed to give the board greater control over members of the profession, particularly in minor matters which hardly warranted the discipline of the Supreme Court. Since 1948, the profession's disciplinary system has come under increasing pressure through the growth in the number and diversity of practitioners and a more critical approach by the community on questions of professional accountability. The draft Bill which I propose to table will establish a new structure for supervision and discipline and is the culmination of work over a very long period. In February 1980, at the instigation of the Banisters Board and the Law Society of WA, the then Attorney General appointed a committee of inquiry into the future organisation of the legal profession. During the term of the inquiry Hon Gresley Clarkson was appointed chairman following the retirement of the committee's first chairman, Mr Justice Brinsden, in 1981. The committee, which became known as the Ciarkson committee, made its final report and recommendations on 5 May 1983. The committee's terms of reference included the following - (b) procedures pertaining to the supervision and legal discipline of members of the legal profession; and (c) procedures pertaining to the processing of complaints against legal practitioners whether initiated by members of the public or otherwise, including the method whereby such complaints should be determined by the scope of the penalties or remedies available should a complaint be upheld, the power of the tribunal to award costs in favour of a successful party or at all, and the degree of publicity - if any - that should be afforded the determination of complaints. The main recommendations of the Clarkson cornmittee in relation to these terms of reference were as follows - (1) There should be a common disciplinary system for both banristers and solicitors, (2) The Banristers Board should be reorganised and tidled the Legal Practice - Board comprising Queen's Counsel nominated by other resident Queen's Counsel appointed in Western Australia, as well as annually elected practitioners, and one lay member. The Legal Practice Board should be responsible for supervision of the legal profession, admission to practice, issuing of annual practice certificates, monitoring of legal education and of the operation of a disciplinary system, and liaising with other relevant bodies. (3) Both the Law Society and the Legal Practice Board should continue to coexist. (4) A statutory officer called the Law Complaints Officer should be established. That position should be responsible to a complaints committee which would receive and investigate complaints, conciliate between parties, and prosecute appropriate matters. (5) The investigatory powers should be separated from judicial duties. A separate Legal Practitioners' Disciplinary Tribunal should be established to hear and determine disciplinary offences. (6) The Supreme Court should continue to deal with cases where the tribunal reported to the court with a view to a practitioner being struck from the roll and to hear appeals from the Legal Practitioners' Disciplinary Tribunal. The Clarkson committee report was released for public comment in August 1~983. The Law Society objected to a number of recommendations of the Clarkson committee and the Government was concerned whether the cost of a publicly funded complaints system was justified. In May 1984 the Attorney General appointed a working party comprising the then President [Wednesday, 4 December 1991] 747147 and Treasurer of the Law Society and the Chairman and a member of the Barristers Board to consider the Clarkson report and the comments which had been received. The general structure proposed by the working party was largely along the lines of the Clarkson committee and consisted of - - a Legal Practice Board - formerly the Banisters Board; - a complaints' officer supported by a complaints' committee - on recommendation of the working party, to be titled the Legal Practitioners' Conduct Committee; but funded jointly by the Legal Practice Board and the society rather than at public expense; - a Legal Practitioners' Disciplinary Tribunal. The PRESIDENT: Order! There is far too much audible conversation and members know that is out of order. The Attorney General is endeavouring to give us some pretty important advice and I suggest members listen. Hon J.M. BERINSON: Draft legislation was prepared on the basis of the working party's report. However, the Law Society was not in agreement with the recommendations either of the Clarkson committee or the working party; it took a substantially different direction. In April 1988 it made a submission to me which forcefully argued, among other objections, that a statutory law complaints officer would fundamentally threaten the independence of the legal profession and take away one of its hallmarks as a profession; that is, self-regulation. Instead, the Law Society proposed that the society itself should administer complaints. There are a number of reasons that proposal has not been adopted. In the first place, the Clarkson committee which included wide ranging community representation as well as representatives of the Law Society and the board, exhaustively examined this issue in the light of the many public submissions it received and an examination of our own experience and systems elsewhere. The Clarkson committee came unequivocally to the view that it was inappropriate for the Law Society to administer complaints.

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