Page 1731 - Week 06 - Tuesday, 6 June 2006
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What about the Australian Wheat Board’s legal advisers? In the Canberra Times of 15 May this year, it was reported that Darryl Hockey, a senior Australian Wheat Board manager, planned a SLAPP suit against Wheat Associates, an organisation raising concerns about the AWB’s practices. He was reported as saying, “The idea is to start some pressure on him. Let him know the legals are working on him. Make him start blowing his meagre budget.”
The Leader of the Opposition has been asking for examples of SLAPP suits in the ACT, the inference being that such things do not happen here. Well, Canberra is full of lobby groups and industry head offices, and these examples which have come to light give us a glimpse into the sorts of irresponsible behaviour and corporate culture that bring the legal profession into disrepute.
As we speak, Darryl Hockey and many other AWB executives must be wondering whether their futures will include some time residing at Her Majesty’s pleasure. What about the lawyers who have been advising them every step of the way? Would they have signed a court document saying that their SLAPP suit had reasonable prospects of success? If they did, would they face disciplinary action or merely more billable hours defending their client’s abuse of the legal system?
General counsels are rarely excluded from management-wide strategies and information flows. They are not in the same boat as their corporate peers. If they are aware a court is being grossly mislead, they have a responsibility, as an officer of the court, to take steps to rectify the situation. In 2004, Justice Tricia Kavanagh, in a speech to graduating University of Technology Sydney law students, said:
The maintenance of the rule of law depends on lawyers who respect the truth and whose integrity is not for sale ... Ethical behaviour provides the most fundamental distinction between the law as a profession and law as a business enterprise and it draws a distinct line between the legal practitioner and the mouthpiece.
Her Honour’s remarks highlight my point that legal practitioners should be treated as officers of the court. My Protection of Public Participation Bill has been created partially because the legal professions’ disciplinary bodies have failed to enforce the high ethical standards to which lawyers should be held. The bill before us today contains much fine rhetoric, but I would like to see more proactive measures being taken to discourage law firms from contemplating so-called sharp practices or from punishing those lawyers who put public duty ahead of corporate loyalty.
Not long ago this house weakened the rule of law by attacking the right not to be detained without charge or trial. If this bill before us today in any way weakens the professionalism of lawyers or results in legal practitioners giving greater loyalty to ministerial, corporate or shareholder values at the expense of their public duties, then this Assembly will have done its constituents another grave disservice.
The scrutiny of bills committee’s report on this bill draws attention to a possible problem with clause 424. It remains unclear what rules of evidence will apply in hearings before the Legal Practitioners Disciplinary Tribunal. Somewhat cynically, I would like to point out that the size of this bill, the relatively short turnaround time for consideration, the
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