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Revealed: what the draft law contains

After months of speculation, the latest iteration of the national law for the regulation of lawyers is being considered by relevant stakeholders.

While it retains the promised structure of being succinct and principles-based, this iteration presents a number of stark differences from the last version, released in 2011.

The national legal services commissioner and the National Legal Services Board, initially touted as instrumental to the national law, have been reduced to a nub, which is not surprising considering that national now means NSW and Victoria alone and funding for these offices – promised by former attorney-general Robert McClelland – is now uncertain.

In the new version, the national legal services commissioner has been replaced with the commissioner for uniform legal services regulation – a bit of a mouthful – and the National Legal Services Board with a legal services council.

The original role of the commissioner and the board required those bodies to oversee and in many instances delegate duties and responsibilities to the state legal professional bodies (in the case of the board) and to the state commissioners and independent regulators (in the case of the national commissioner).

The delegation role for both has, however, been removed, and all the regulatory powers have been left in the state bodies and professional associations. For the participating jurisdictions, it will largely be business as usual.

The commissioner and council will be merged and will have a staff of three. This reduction is in part due to funding concerns and lack of need.

The functions of these bodies will now be limited to setting the policy framework and monitoring its implementation by making uniform rules and issuing guidelines. Indeed, it could be argued that we don’t actually need them at all. Several professional associations and statutory regulators already issue rules and guidelines. NSW and Victoria actively participate in this task.

The saga of the national law has been a long and complicated.

We came close in 2004 with the adoption of the legal profession model bill in all jurisdictions but for South Australia, however individual states have since made certain variations in implementing aspects of the model provisions.

In 2009, further attempts were made to achieve a national law when the Council of Australian Governments embarked on developing draft uniform legislation to regulate the legal profession.

The draft national law created a national regulatory scheme for the legal profession through an applied laws scheme.

Despite numerous consultations on the draft national law, consensus has not yet been reached.

Queensland’s pulling out on the election of the Newman government produced a house of cards effect: the Northern Territory, the ACT and Tasmania followed suit.

Western Australia has not shifted from its position of mirroring those aspects of the legislation it likes and the position in South Australia is still very much confused.

It is incredibly disappointing that after so much work we have ended up with so little to show for it, particularly where the regulatory regime in Australia has been under intense scrutiny from many jurisdictions around the world, and widely modelled.

However, federation has always presented challenges in harmonization. We still don’t have a single rail gauge in Australia.

It is clear that there is a desire that other jurisdictions should join to make it a truly national profession. But it is unclear what they would like or need to join the scheme.

Collaborative federalism appears on the wane with the concomitant rise of interstate rivalry and competition for a shrinking funding pool.

In the original attempt to create the dream of a national profession, the federal government established a consultative committee of 20 individuals representing a range of stakeholders.

The committee was established to advise a task-force, comprising representatives from government and the legal profession on the appropriate course and shape of a national law. For two years, the committee argued and fought over almost every element of the proposed bill, largely from positions of parochial interest.

Whereas the process did ultimately result in a bill which is an improvement on what had previously existed, the process could have been vastly improved.

While the national legal regulation experiment has at least stalled, there is some hope that it will not have entirely failed.

The hope remains that the essentially positive focus on principles-based regulation will ultimately encourage more jurisdictions to join.

The major challenge seems to be a question of leadership. Without the consistent support of the Law Council of Australia, professional associations, statutory regulators, large law firms, government and the legal profession itself, it is difficult to see how progress will be made, particularly if the previous consultative process is replicated.

It could be that we need a benign dictator who is experienced in regulatory design.

Published in The Australian August 30, 2013

Mark who had been profession’s watchdog in NSW for 19 years, and business partner Tahlia Gordon, left the office of the legal services commissioner (OLSC) last month to establish Creative Consequences.

Speaking with Lawyers Weekly, Mark said the company will consult ethics to the legal profession as well as advise governments and industry bodies on regulatory design. The ultimate aim, he claimed, is to shift the Australian model away from simply responding to complaints.

“Most of our regulatory systems … fail to have a stated purpose other than compliance … but complaints never themselves achieve systemic change, they only deal with individual problems,” he said.

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“Our regulatory model is fairly broken … we need systemic change.”

The kind of change Mark would like to see is a combination of imposed regulation and self- regulation because, he claimed, consumers do not trust the legal profession to regulate itself.

Key players in this movement include the Law Council of Australia, state regulators and legal educators, according to Mark. He revealed that Creative Consequences will pick up where the OLSC left off in developing the College of Law’s ethics program.

The legal profession must also be involved in crafting regulation, he added.

“Regulation must be at the very basis a partnership between regulator and those regulated; we need to strike that balance.”

In his role as legal services commissioner, Mark established a co-regulatory system with the state’s Law Society and Bar Association that focused on reducing complaints against lawyers rather than prosecuting offenders.

Mark also assisted the Canadian Bar Association to roll out an ethical self-assessment process that his office originally developed for incorporated legal practice, and is currently working with the Irish government to implement and regulate a model that takes its cue from the NSW system.

Closer to home, Mark is in talks with a number of firms about improving their own “ethical framework”. He claimed the commoditisation of law and proliferation of social media, among other factors, are challenging the current approach to ethics within firms.

“What’s happening around the world is a revolution in the way that services are provided and law is understood and developed [and] the legal profession needs to meet those challenges.”

Published in Lawyers Weekly, 3 September, 2013