Thursday, July 27, 2017 2:21pm
This article by Tony Rossi was published on the Law Society of South Australia website and in Points Of Law in the Adelaide Advertiser on the 3rd of July 2017.
As we approach the halfway mark of this year I thought I would take this opportunity to update the Society’s members as to what we have been doing and what we are currently working on.
It is pleasing to note that the Legislative Council recently passed an amendment to the Major Indictable Offences Bill to remove the requirement for a defendant to provide a defence statement. The Government’s proposal would have effectively trounced the right to silence in circumstances where the prosecution could have then relied upon matters in the defence statement to alter its case and potentially lay fresh charges. The media has rightly acknowledged the substantial role of the Society in advocating for the amendment.
In the child protection area the concerted efforts of the Society have resulted in a substantially revamped Children and Young People (Safety) Bill but it remains seriously deficient. In particular, the best interest of the child must be the paramount consideration when construing and applying the terms of the Bill.
In their original form these two Bills were fundamentally bad. Members of the Parliament should have regard to the words of the highly regarded former US President and lawyer Calvin Coolidge who said “it is much more important to kill bad Bills than to pass good ones”.
The Society is undertaking a review of the regulatory burden upon legal practitioners. One proposal is to increase the monetary limit before being required to forward a detailed Terms of Engagement letter to a client from the current threshold of $1,500 plus GST to $5,000 plus GST. The Attorney General has agreed to consider this matter but before it is formally put there are other matters being considered by the subcommittee formed for this purpose and it is proposed that a detailed report be provided to the Attorney General in due course.
The Society is advocating for legislative reform in the area of CTP claims and, recently, there have been meetings with the CTP Regulator and members of the Liberal Party. There are now two main categories of those who are injured as a result of motor vehicle accidents through no fault of their own - those who are catastrophically injured and receive adequate compensation and the rest who may suffer catastrophic consequences as a result of inadequate compensation. At the same time there has been no effective reduction in the premiums that are being paid. This grossly unsatisfactory situation for everyone who uses the road must be addressed. A written submission has been provided to the Parliament’s Social Development Committee, which is reviewing the scheme, and we shall provide a more detailed oral submission to the Committee in August.
The South Australian Employment Tribunal has provided to the profession a draft set of Rules to come into effect from 1 July 2017. The Society has provided a submission in relation to those Rules and it is pleasing to note that there continues to be a collaboration between the members of the judiciary in this jurisdiction and the Society with the unified goal of providing access to justice in an efficient manner.
I recently wrote in The Advertiser about unfair criticism by the media of sentences imposed by Judges of the District Court and particularly in the area of death by dangerous driving. Studies reveal that whilst the majority of the general community believe that sentences are too low it is the same majority which has little understanding of the criminal justice system. Studies also reveal that those who are properly informed of the circumstances of a case overwhelmingly support the sentences that are imposed by the trial Judge. There is a danger in the media being attracted to penal populism. That must be avoided.
Sustained unfair criticism of sentences imposed by Judges can erode, unnecessarily, the public’s confidence in the judiciary and, consequently, the rule of law.
In upholding the rule of law it is a function of the Society to speak out where there is unfair criticism of the judiciary in the media and it will do so again if required.
Magistrates in South Australia have approached the Government with a view to amending the Magistrates Act so that the Magistrates Court in South Australia would revert to its former title of the Local Court of the particular area and the title of “Magistrate” would change to “Judge of the Local Court of …”. The Magistrates have explained that, other than a small administrative expense associated with the change of name, there would be no further cost and that, in particular, no increase in remuneration or other change in terms and conditions is being sought as a result of the proposal. This has the support of the Chief Justice and in circumstances of there being no impact upon access to justice the Society considers it appropriate for the proposal to proceed.
The Society will shortly commence, on behalf of the profession, a modest campaign to promote the profession to the general public. In essence, the campaign will seek to explain why you should consult a lawyer in particular circumstances. Increasingly, we are seeing other professions traversing into areas which have been the traditional domain of the legal profession. This is without the same level of training and expertise and without, often, the regulatory burden imposed on our profession. If we are to compete then it is another reason why it is appropriate to consider the appropriate level of regulatory burden on the profession.