Page 279 - Week 01 - Thursday, 17 February 2011
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Let me go to the definition as it stands in the act and which this bill seeks to amend. Currently the Legal Aid Act defines “private legal practitioner” as:
… a person who is practising as a barrister, as a solicitor, or as a barrister and solicitor, on his or her own account or in partnership.
It is simple and easy to understand the definition, as I am sure members would agree. But the explanatory statement describes the definition as anachronistic by virtue of the Legal Profession Act 2006. So the amendment simply establishes a signpost to that definition. That seems simple at first glance.
But to see whether the new definition covers barristers, this is what you have to do—and I draw on the roadmap given to me by the Department of Justice and Community Safety, and the fact that I needed a roadmap to get through the definition is of some concern: first, you have to go to section 9 of the Legal Profession Act, which defines “principal”. Then, discovering that a principal is an Australian legal practitioner who is the principal of a law practice, we go to the definition of a law practice. That definition tells us that a law practice is, amongst other things, an Australian legal practitioner who is a sole practitioner.
Then you go to section 8 of the Legal Profession Act to find out that a legal practitioner is an Australian lawyer who holds a local or interstate practising certificate. And then you go back to the dictionary to find that a local practising certificate is a certificate granted under the act. Then you go back to section 35 that tells us that the licensing body can grant local practising certificates, including barrister practising certificates. So we can conclude that the new definition does include a barrister.
To make it perfectly clear, in case there is any doubt at all, I am now convinced that the definition in the Legal Aid Act does allow for barristers to act under the Legal Aid Act, but I was lost. The fact that I needed a roadmap shows that the drafters are lost and we have taken away a very simple definition and replaced it with something ridiculously complicated. Given the views of some members of the legal fraternity about the capacities of the Attorney-General, I am sure he was lost as well.
But there are other things that you have to do as well. You can go to sections 49, 270 and 319, which make it clear that a barrister is an Australian legal practitioner, generally engaging in a legal practice as a sole practitioner. And that makes everybody giddy.
In his presentation speech, however, the Attorney-General told us that this amendment, along with the others, will “ensure the legislation remains easy to interpret”. And he goes on to say:
The drafting improvements will ensure that everyone understands what the commission’s powers are …
It is easy for some but I do not think even the average barrister, when I discussed it with them, could actually explain how they obtain powers under this. They all knew
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