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Legal Professional Amendment (Validation) Bill 2019 - Second Reading

12 September 2019

Dr WOODRUFF (Franklin) - Madam Deputy Speaker, on behalf of the Greens I am happy to say that we support this Legal Profession Amendment (Validation) Bill before us today. I will focus my comments on how we respond as a community from the point of view of this particular Solicitors' Guarantee Fund to the increasing lack of proper representation for people in the community to legal representatives and the support that they need to plead their case in court when their times comes, if their time comes to be in that place.

It is deeply concerning that there has been an erosion of funding now for many years from the federal government for all aspects of the community legal centre system, the Legal Aid Commission and the many other pillars of legal support that have been available for people who are too poor to be able to fund their own private legal representation. This has been a steady erosion and we are now in a situation where there are an increasing number of people who are too poor to be able to pay themselves, as well as a decreasing pool of government money to pay for that legal representation. We are in a really critical space where people are desperately needing help - more people, more poor people, more people who are incapable of raising the money to employ a legal representative to make their case. There are more of these people and it is a basic tenet of our system of democracy and enshrined in our Westminster system that people should have access to legal representation so that they can put their best case to the court.

I want to spend a bit of time on the comments that were made in the submission process by Benedict Bartl who works at Community Legal Centres Tasmania and he lays this out in some detail. Ms Haddad has mentioned some of the things that he said and I want to go into them with a bit more detail.

Benedict Bartl makes the point, and it is correct, that the act is silent on the criteria for grants. In the past people have been advised that priority would be given to applications that address the following outcomes: an increase in the number of people receiving free or low cost legal services; an improvement in the quality of legal services provided to the public; an improvement in the range of legal services provided to the public; an improvement in the operation of the justice system; and an increase in community awareness of the law, legal services, or the justice system, including the provision of education and training. This has been not prescribed but has been a matter of historic tendency, I suppose, and the discretion has been left to the minister to decide on a particular case. These are guidelines around which people can base their application.

I submit that we need to find some way of prioritising amongst that list. I listened to the examples that Ms Haddad, the member for Clark, made about what has been funded in recent years, including things like the School Outreach Program and work from the anti-discrimination commissioner, work from the Tasmanian Law Reform Institute, taking their expertise and the findings of their research and making that publicly available, particularly a community awareness about how the legal system works.

They are all manifestly important and good bodies of work that were funded. I have no problem with that. The problem is, that there is just not enough money in the piggy bank under the Solicitors' Guarantee Fund to keep centres like the community legal centres -

Ms Archer - It is not the purpose of the fund to keep them going.

Dr WOODRUFF - I hear what the minister says, but if she can hear me out, I totally agree.

Ms Archer - I am just clarifying. I don't want that put on the record incorrectly because the SGF has a specific purpose.

Dr WOODRUFF - I will leave it to the minister when she is winding-up to make her comments about what I am saying.

It is important to recognise that community legal centres such as the Environmental Defenders Office have not missed out on funding. I have to correct Ms Haddad's comment when she said that the EDO had missed out on funding. They were not missed out. They were actively excluded and the federal government actively removed the Environmental Defenders Offices around Australia from the definition of community legal centres so that they were incapable of applying for funding within that bucket of money. There has been an active decision by federal governments to remove the opportunity for government funding for legal representation on matters to do with the defence of the environment.

Here we are in a climate emergency. Extinctions are occurring across the planet - maybe 1 million species, according to the International Panel on Climate Change report from the United Nations last October. We are facing global extinctions that we have never seen before and we are facing rampant disastrous changes in the environment. We have to have legal representation to mount a defence against predatory international corporations like Adani and other oil and gas companies and mining companies who will seek to exploit the last of these resources until they are not there any longer. If we the people do not stand up and mount a case against them, what do we have left for our defence? We do not want to move to a space of revolution. That is the pathway to disaster for societies. We do not want to move to a space of authoritarianism where governments are unchecked and their behaviour feeds the egos of authoritarian-minded politicians who take the easy road of surveillance of their citizens and locking them up without proper trial.

We see in Queensland Annastacia Palaszczuk and her response to protesters from extinction rebellion who have put their bodies on the streets because it is the last form of defence when you have governments that are failing to listen, when you have governments that are siding with corporations, when you have political parties like the Labor and the Liberal parties siding with Adani, doing everything they can. The Labor Party in Queensland revoked native title for the Aboriginal community who own the land of the Carmichael mine. This is what governments are prepared to do. If we do not have the courts to stand and mount a defence, there is only one other option. We see people in Hong Kong taking that option now with people on the streets. That is not the Australia we want. We want an Australia that is democratic and gives everybody a fair go, gives everybody their day in court, gives everybody a proper hearing and holds governments and political parties in check.

The community legal centres do that work on behalf of the poorest people in Tasmania and it is a matter of deep concern that there are simply not enough lawyers who are able to be funded to work in those places for the number of cases that they have. It is simply a matter of fact that the Environmental Defenders Office survives with the excellent work they do on the gifts of good-minded Tasmanians, philanthropists, because this Government will not give them more than postage stamp money. Last time I talked in budget Estimates it was in the order of $10 000 or $15 000. The minister can correct the record when she stands up if she cares to but it is a pathetically small amount of money and clearly nothing like the finances needed to support the legal representatives who work there and do excellent work on behalf of Tasmanians.

These are people who want to have information about planning scheme developments, planning scheme-related issues, people like the Rosny Hill community who get advice about this Government flogging off Crown land and what they can do to stand up for their local place, what they can do for the development in Bellerive, which has not happened and may never happen, but the Kangaroo Bay development was a dodgy secretive corrupted process. We had the Office of the Coordinator-General going off and having background conversations that were never made public to the community, sucking up to an international petrochemical company, Shandong Chambroad, and making arrangements that end up with a development approved that was twice the height of what had been agreed was the appropriate development height by the Tasmanian Planning Commission and the people of the Clarence City Council community. This is the sort of legal representation that the EDO does. They speak up for people who have no capacity to spend the money and who are speaking for the environment. They are speaking for Tasmania, the place that we love.

Mr Bartl makes a good point that government departments and judicial bodies such as courts and tribunals should not be able to access funds through the Solicitors' Guarantee Fund because funding requests from those bodies ought to be available and sought through the usual budgetary process. He also contends that the Tasmanian Law Reform Institute and the Sentencing Advisory Council both undertake very important law reform work and that is highly beneficial to the clients who access the community legal centres of Tasmania, but he also believes their funding should come from the current funding and be allocated as part of the budget. That is especially the case with the TLRI and the SAC, who get the majority of their referrals from the Government. That is the bulk of their work and the educative materials they provide from that come from work that has been undertaken on behalf of the Tasmanian Government.

We have no truck with this work being funded. We think it should be funded. We just believe that the Government's priorities are not where they should be and that there is a miniscule amount of money available in the SGF relative to the need. There has to be a capacity to prioritise the most important issues and there is surely a very strong moral case to be made to ensure that at the very most basic level, people have access to legal representation first. All the extra material, educative work and community awareness which is so important must sit below that first premise in terms of priority.

It is difficult. I am sure the minister will respond by talking about all the good works that have been funded under the SGF and I am not for a moment doubting their worth and importance to the community, but it is simply a matter of fact that there is not enough money and there has to be a commitment by this Government to prioritising legal representation for everybody who needs it.

What we can see coming down the line is that Solicitors' Guarantee Funds are likely to be reduced in future years because more of the transactions are being completed electronically. That will therefore result in less interest being accrued in legal practitioners' trust funds.

Ms Archer - Sorry, I do not understand what you mean by that.

Dr WOODRUFF - This is a concern that I have heard expressed for a number of years now. I do not know whether it is true, but because transactions are completed electronically, there is no waiting time for cheques to be cleared, so there is actually less money going into the Solicitors' Guarantee Fund that has accrued from interest. There is less interest in the money that is sitting there.

Ms Archer - It must be the time period.

Dr WOODRUFF - Yes, it is. Electronic transfer occurs within one day so it would be clear within one day. I am guessing cheques or some other mechanism for how money has been transferred in the past has enabled interest to be accrued. That will disappear. I have heard this expressed by a few different people in the legal community.

Ms Archer - The law is getting faster, do you think?

Dr WOODRUFF - Yes, it is getting faster.

I note that the Law Society had no changes to make to this amendment bill. They feel that they have a strong proprietorial role in accessing the fund, is how I read it. The excess that may accrue is a direct result of the large amount of transactional work that is undertaken by people they represent, the legal profession, so they feel keen to be a. Understandably so.

The Sentencing Advisory Council supports the bill. Emeritus Professor Arie Freiberg had no other changes to make.

I conclude by asking the minister to consider undertaking a prioritisation of the application criteria.

Ms Archer - I do.

Dr WOODRUFF - Correct. You would always do that minister but it would be good to have some principles guiding that prioritisation process. Principles that would put first and foremost the need to ensure that people have legal representation as a basic starting point to considering the proposals for applications to the Solicitors' Guarantee Fund.