Legislative Assembly for the ACT: 2007 Week 09 Hansard (Tuesday, 25 September 2007) . . Page.. 2586 ..
case could be made in a number of other tribunal matters, and I would be interested to see if we get some uniformity in terms of other people who are subject to proceedings in tribunals.
Equally important is the provision that a complaint, if upheld, results in the public release of the offending lawyer’s identity. This is just and, indeed, necessary in order to protect the credibility of the legal profession and to expose those in the profession who do not behave in a professional and ethical manner. Finally, the Legal Profession Amendment Bill provides that a person acting honestly and without recklessness in the exercise of a function under the act is protected from civil liability.
The bill generally has the support of the ACT Law Society and the ACT Bar Association, both of whom have worked closely with the Attorney-General’s Department in its role on the joint working party in developing the bill. I take this opportunity to thank officers from JACS who gave us a detailed briefing on this legislation. I have come to this relatively late, as it is Mr Stefaniak’s portfolio, and I certainly found the briefing very useful.
A two-year review of the national model law is due to be undertaken, which will provide the joint working party, including the Law Society and the Bar Association, with an opportunity to review the practical operation of the legislation. I know the Law Society and the Bar Association intend to watch the act and its operation to ensure that the effects of its operation do not weigh too heavily against its intent. No doubt the two-year review will feature a detailed evaluation of the act’s effectiveness across the nation.
Before closing, I want to visit the human rights elements of this bill. The explanatory statement accompanying the bill discusses the human rights impact at some length. The impact of this bill on human rights matters goes to: the liability of the principal of a law firm for any offences committed by the law firm and whether that principal is subject to the strict liability provisions of the bill; the “sophisticated” clients classification under the bill, in the context of whether an itemised bill can be requested, and whether therefore there is a lack of equality before the law; the ability of a disciplinary tribunal to make decisions in relation to the behaviour of legal practitioners without conducting hearings and whether a practitioner under review is denied the right to a fair trial; and the suppression of the name of a practitioner under review by a disciplinary tribunal and whether that falls against the requirement of the Human Rights Act for public hearings.
I am sure there are very few in the community who would have a lot of sympathy for lawyers being subject to strict liability. The legal profession in particular should be aware of its obligations under the law, and I certainly do not have a problem with strict liability in this case. However, there does seem to be some conflict with respect to some of the provisions of the Human Rights Act in relation to fair trial provisions—the requirement for public hearings versus the right to privacy. Once again, we see an example of human rights coming into conflict. We have raised our objections to the Human Rights Act in the past, but it is the law of the territory and it needs to be complied with as long as it is the law of the territory. We will be judging all legislation that comes before us in the context of the Human Rights Act because that is the law of the territory.