Council of the Law Society of the ACT v Legal Practitioner D3
[2018] ACTSC 45
•6 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Council of the Law Society of the ACT v The Legal Practitioner D3; Practitioner D3 v The Council for the ACT Law Society |
Citation: | [2018] ACTSC 45 |
Hearing Dates: | 7, 27 July, 17 October 2017 |
DecisionDate: | 6 March 2018 |
Before: | Penfold J |
Decision: | 1. The second defendant has jurisdiction under the Legal Profession Act 2006 (ACT) to hear and determine the plaintiff’s Application for Disciplinary Action. 2. The parties are to provide draft orders, and any submissions they wish to make about costs in SC110/17, by a date to be fixed. 3. The parties are to provide any submissions they wish to make about costs in SC561/16 by a date to be fixed. |
Catchwords: | ADMINISTRATIVE LAW – Prerogative Writs and Orders – where tribunal declines to deal with occupational discipline application on grounds of lack of jurisdiction – application for orders in nature of certiorari and mandamus – tribunal found to have jurisdiction – whether both orders necessary. STATUTES – ACTS OF PARLIAMENT – Interpretation – operation of transitional provisions – significance of transitional provisions in interpreting substantive provisions. |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 9, 79(1)(a), 79(3) Acts Interpretation Act 1958 (VIC) Supreme Court Rules 1987 (SA) |
Cases Cited: | Boxx v Peden [2017] ACTCA 39 Council of the Law Society of the ACT v Legal Practitioner D3 (Occupational Discipline) [2017] ACAT 9 The Queen v Aird; Ex parte The Australian Workers Union (1973) 129 CLR 654 |
Texts Cited: | Thornton, G.C., Legislative Drafting (London Butterworths, 3rd edition, 1987) Pearce, D C and Geddes, R S, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th edition, 2014) |
Parties: | Council of the Law Society of the ACT (Plaintiff/First Defendant) Legal Practitioner D3 (First Defendant/Plaintiff)) ACAT Civil and Administrative Tribunal (Second Defendant)(submitting appearance except as to costs) |
Representation: | Counsel Mr N Beaumont SC with Ms T Power (Plaintiff/First Defendant) Unrepresented (7, 27 July 2017); Mr M Orlov (17 October 2017) (First Defendant/Plaintiff) Submitting appearance only (Second Defendant) |
| Solicitors Phelps Reid Lawyers (Plaintiff/First Defendant) Unrepresented (First Defendant/Plaintiff) ACT Government Solicitor (Second Defendant) | |
File Number: | SC 110 of 2017; SC 561 of 2016 |
Introduction
The Council of the Law Society of the ACT (the Council) has applied for judicial review of a decision made on 7 February 2017 by the ACT Civil and Administrative Tribunal (ACAT) (Council of the Law Society of the ACT v Legal Practitioner D3 (Occupational Discipline) [2017] ACAT 9). That decision (the ACAT decision) was that ACAT has no jurisdiction to hear part of disciplinary proceedings brought by the Council against a legal practitioner (D3), specifically, that part of the proceedings arising from Ground 1 of the application for disciplinary action. For the reasons set out below, I have concluded that ACAT does have the necessary jurisdiction, and should be required to exercise it.
ACAT, the second defendant, entered a submitting appearance except as to costs.
In late 2016, D3 filed an originating application seeking prerogative relief preventing ACAT hearing the proceedings in which it ultimately made the ACAT decision. That application is dealt with at the end of this judgment.
Judicial review
The Council’s application is made in reliance on s 34B of the Supreme Court Act 1933 (ACT), which confers on the Supreme Court power to grant, among other things, an order giving relief in the nature of, and to the same effect as, relief by way of a writ of mandamus or certiorari.
The Council says that this is the appropriate remedy in a case in which a tribunal has declined to exercise jurisdiction on the incorrect basis that it has no jurisdiction.
First, it says, ACAT did not dispose of the whole proceedings before it, such that an appeal would lie under s 79(1)(a) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act). Rather, ACAT dismissed Ground 1 of the Council’s application and adjourned the further hearing of the Council’s application to a date to be fixed, leaving at least Grounds 2 and 3 of the application unresolved. This, says the Council, does not amount to ACAT having “decided” the application, as is specified to be the basis on which s 79(3) of the ACAT Act provides a right of appeal. In the absence of a competent appeal, the Council says it has no remedy other than one in the nature of prerogative relief.
Secondly, the Council says, ACAT fell into jurisdictional error when it mistakenly denied the existence of jurisdiction in respect of Ground 1 of the Council’s application (Craig v South Australia (1995) 184 CLR 163 (Craig) at 177), and therefore judicial review is the appropriate way to seek a remedy.
At first (when he was unrepresented at an early stage of this application) D3 made written submissions to the effect that the proper approach in this case would have been for the Council to appeal the ACAT decision. Those submissions were not particularly coherent and did not identify any specific error in the Council’s submissions on this matter. The objection to the form of the Council’s application was not pursued by counsel who later acted for D3.
The complaint
Three grounds are specified in the Council’s application to ACAT for disciplinary action against D3. Burns J’s summary of the grounds of the complaint at [4] to [30] of Practitioner D3 v ACT Civil and Administrative Tribunal & Ors [2015] ACTSC 170 is set out in full at [9] of the ACAT decision. It is adequate for present purposes to note that the complaints allege:
(a) fraud on the Commissioner for ACT Revenue (the Commissioner) relating to D3’s application for, and ultimately receipt of, a First Home Owners Grant (FHOG) (Ground 1);
(b) breach by D3 of the Legal Profession (Solicitors) Rules 2007 (ACT) and of an undertaking to the Council, by D3’s failure to advise the Council that Supreme Court proceedings relating to the FHOG application had been re-listed or finalised (Ground 2); and
(c) breach by D3 of r 39.1 of the Legal Profession (Solicitors) Rules by making false representations to the Council and attempting to mislead the Council about the outcome of the Supreme Court proceedings related to the FHOG application (Ground 3).
All the conduct alleged in this case happened entirely inside the ACT.
I understand that the allegations against D3 have not so far been the subject of any fact‑finding process by any tribunal or court, but that it is not disputed for present purposes that the conduct by D3 alleged in Ground 1:
(a) took place over several years, but was concluded before 1 July 2006;
(b) occurred otherwise than in connection with D3’s practice of law; and
(c) was of a kind that, if proved, would have been “professional misconduct” as defined in the applicable legislation.
Some of the matters specified in Ground 1 reflect a complaint made by the Commissioner to the Council in 2008. Other matters mentioned in Ground 1 were apparently not mentioned by the Commissioner, but were described in other material that was drawn to the Council’s attention by the Commissioner.
The conduct alleged in Grounds 2 and 3 took place after 1 July 2006.
Other relevant events
Three other events are relevant to the issues before me.
On 1 May 2002, D3 was admitted as a legal practitioner of the ACT Supreme Court (having previously been admitted in South Australia and Victoria).
On 1 July 2006, the substantive provisions of the Legal Profession Act 2006 (ACT) (the new Act) came into force, replacing the Legal Practitioners Act 1970 (ACT) (the old Act). In these reasons, I refer to this event as the new Act commencing.
On 17 April 2009 D3 obtained an ACT practising certificate issued by the Law Society. This was his first ACT practising certificate.
Legislative framework
As noted, the conduct the subject of Ground 1 took place between September 2001 and February 2006, while the legal profession in the ACT was regulated under the old Act. The issue raised by the Council’s application is the significance of that conduct under the complaints arrangements established under the new Act (specifically, whether that conduct is an available basis for a complaint under the new Act). It is accordingly necessary to outline the complaints arrangements under the two Acts and the transitional provisions applied when the new Act came into force.
Legal Practitioners Act 1970
The old Act referred to the Council of the Law Society, and established the Professional Conduct Board of the Law Society (the Board).
Relevant conduct
Section 37 of that Act contained definitions of “professional misconduct”, “unsatisfactory employment conduct” and “unsatisfactory professional conduct”. The definition of “unsatisfactory employment conduct” has no relevance to this matter; the other two concepts were defined as follows:
professional misconduct includes—
(a)unsatisfactory professional conduct of a substantial, recurring or continuing nature; and
(b)conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law that would justify a finding that its perpetrator is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners; and
(c)conduct that is professional misconduct under section 118, 191D(3), 191E(3) or 191M(2).
…
unsatisfactory professional conduct includes conduct (whether consisting of an act or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a client is entitled to expect of a reasonably competent legal practitioner.
The Act does not define “professional conduct”; however, the definition of “professional misconduct” distinguishes “unsatisfactory professional conduct” from conduct “occurring otherwise than in connection with the practice of law” that casts doubt on a person’s suitability to remain on the roll of legal practitioners (at paragraph (b) of the definition). For convenience, I shall refer to “conduct occurring otherwise than in connection with the practice of law” as personal conduct, and personal conduct rendering a person unsuitable to remain on the roll of legal practitioners as personal misconduct.
Relevant members of legal profession
The old Act referred to “legal practitioners”. A legal practitioner was defined in s 3 as “a person whose name is on, or is to be taken to be on, the roll of legal practitioners” (the roll). Applicants for admission were admitted “as legal practitioners” (s 16B). After a person who had been admitted as a legal practitioner had signed the roll, he or she was entitled to practise in the ACT as a barrister, as a solicitor, or as a barrister and solicitor (s 20). Subject to certain exceptions, however, a legal practitioner was not entitled to practise as a solicitor without holding a practising certificate issued by the Law Society (s 22).
For the purposes of pt 8 of the old Act, dealing with discipline, “solicitor” was defined in s 37 as follows:
solicitormeans a legal practitioner who—
(a) is a member of the law society and was not, at the relevant time, practising solely as a barrister; or
(b) holds or, at the relevant time, held a practising certificate.
Complaints
Section 50 of the old Act provided for the Council to complain to the Board about the conduct of a solicitor. It was relevantly as follows:
50Complaints
(1)The council may make a written complaint to the professional conduct board regarding the professional conduct of a solicitor ….
(2)Where the council makes a complaint to the professional conduct board, it shall forward to the board—
(a)any documents or information received by the law society in relation to the complaint; and
(b)particulars of any statement relating to the complaint made to the law society by the solicitor … to whom the complaint relates.
That is, the old Act did not empower the Council to make a complaint about alleged personal misconduct. Nor did it permit the Council to make a complaint about conduct of a legal practitioner who was not a solicitor as defined.
There was no provision for anyone other than the Council to complain to the Board. The power to deal with legal practitioners for personal misconduct lay only with the Supreme Court.
Time limits
It does not seem that there was any kind of time limit on when a complaint could be made under the old Act.
Powers of Board
Under s 58 of the old Act, the Board could deal with complaints against legal practitioners in relation to their professional conduct, and exercise various disciplinary powers, including suspending a solicitor’s practising certificate for up to 12 months and imposing a fine of up to $10,000. That section was relevantly as follows:
58Disciplinary powers of board
(1)If, after an inquiry into the professional conduct of a solicitor, the professional conduct board is satisfied that the solicitor is guilty of professional misconduct or unsatisfactory professional conduct, the board may do all or any of the following:
(a)in a case of professional misconduct—suspend for a specified period not exceeding 12 months any practising certificate held by the solicitor;
(b)direct the solicitor to do all or any of the following:
(i) cease to accept, for a specified time, instructions in relation to a specified class of work;
(ii) cease to employ in his or her practice a specified person or persons;
(iii) undertake specified further legal education;
(iv) seek advice in relation to the management of his or her practice from a specified person or persons;
(c)in a case of professional misconduct—impose on the solicitor a fine not exceeding $10 000;
(d)reprimand the solicitor.
Under s 62 of the old Act, the Board could in an appropriate case give a report to the Supreme Court about the alleged conduct and the evidence it had heard.
Powers of Supreme Court
Section 67 of the old Act conferred disciplinary powers on the Supreme Court, as follows:
67Disciplinary powers of court
(1)If, on a report under section 62 or otherwise, the court is satisfied that a legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the court may, by order, do all or any of the following:
(a)direct that his or her name be removed from the roll of legal practitioners;
(b)suspend for such period as the court considers appropriate his or her right to practise in the ACT as a barrister, as a solicitor or as a barrister and solicitor;
(c)impose on him or her a fine not exceeding 200 penalty units;
(d)where the legal practitioner is practising solely as a barrister—reprimand him or her.
(2)In addition to the powers vested in the court under subsection (1), the court may exercise all the powers of the professional conduct board under section 58 as if—
(a)each reference in that section to an inquiry were a reference to proceedings on a report under section 62; and
(b)each reference in that section to the board were a reference to the court.
(3)Where the court makes an order under subsection (1) (b) in respect of a legal practitioner, the court may also order that the legal practitioner may be employed in the practice of a solicitor for such a period and on such conditions as the court considers appropriate.
(4)The law society is entitled to be represented in proceedings for an order under this section.
That provision set out the statutory powers of the Supreme Court, but it is not disputed that the Supreme Court also retained its inherent powers over the legal profession.
Thus, while the old Act was in force, the only enforcement of requirements in relation to the personal conduct of legal practitioners who were not solicitors was that provided by the Supreme Court, which could exercise:
(a) powers under s 67 in relation to professional misconduct (which included personal misconduct) without receiving a report from the Board; and
(b) powers in its inherent jurisdiction.
Legal Profession Act 2006
Chapter 4 of the new Act deals with complaints and discipline. The purposes of the chapter are set out in s 384 as follows:
(a)to provide a nationally consistent scheme for the discipline of the legal profession in the ACT, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b)to promote and enforce the professional standards, competence and honesty of the legal profession;
(c)to provide a means of redress for complaints about lawyers;
(d)to enable people who are not lawyers to participate in complaints and disciplinary processes involving lawyers.
Relevant conduct
Sections 386 and 387 respectively define “unsatisfactory professional conduct” and “professional misconduct” as follows:
unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
professional misconduct includes—
(a)unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
That is, both kinds of misconduct are defined to include conduct by Australian legal practitioners.
For the purposes of the definition of “professional misconduct”, s 387(2) provides that in determining whether an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in s 387(1):
regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.
Like the old Act, the new Act includes in the definition of “professional misconduct” a reference to personal conduct that casts doubt on a person’s suitability to remain a member of the legal profession (although that result is achieved in a somewhat less direct way under the new Act). I shall also refer to this kind of personal conduct as personal misconduct.
Relevant members of legal profession
The new Act contains the following definitions (at ss 7 and 8):
Australian lawyer means a person who is admitted to the legal profession under this Act or a corresponding law.
Australian legal practitioner means an Australian lawyer who holds a local practising certificate or interstate practising certificate.
local lawyer means a person who is admitted to the legal profession under this Act (whether or not the person is also admitted under a corresponding law).
local legal practitioner means an Australian lawyer who holds a local practising certificate.
That is, under the new Act, an Australian legal practitioner is a person who holds a practising certificate, either in the ACT or elsewhere in Australia.
Complaints
Chapter 4 is expressed to apply to Australian legal practitioners in relation to conduct to which the chapter applies (s 390).
Other complaints provisions rely on the concept of “conduct to which [ch 4] applies”. There are geographical limits on that conduct (s 391), and provisions expressly including certain conduct occurring outside the ACT (ss 391(2) and 392), but no definition purporting to mark the boundaries of the kind of conduct to which ch 4 applies.
Complaints may be made about conduct to which ch 4 applies (s 393). It is implicit that a complaint relates to a legal practitioner, although s 394(4)(b) recognises that the particular legal practitioner involved in the conduct complained of may not be able to be identified by the complainant.
Complaints are made to the “relevant council”, which is identified by reference to whether the complaint is about a barrister or a solicitor; the relevant council is, in general terms, the Bar Council for barristers and the Council of the Law Society for solicitors (s 394).
There is no limit on who may make a complaint; rather, anyone, including “a council”, may make a complaint about conduct to which ch 4 applies. That is, a council may complain to the other council or, presumably, to itself.
A complaint that is properly made “must be dealt with in accordance with” ch 4 (s 393(3)).
There is nothing confining the conduct that may be the subject of a complaint to professional conduct, or excluding personal conduct, or alleged personal misconduct, from complaints. Relevantly, this seems to mean that complaints may be made about personal conduct alleged to fall within the definition of professional misconduct.
Time limits
Section 395 deals with time limits on the making of complaints.
There is no provision restricting the meaning of “conduct to which ch 4 applies” by reference to when conduct happened; on the contrary, s 395(1) says that a complaint may be made “irrespective of when the conduct is alleged to have happened”. The rest of the provision restricts what can be done with “late” complaints, as follows:
395Complaints made more than 3 years after conduct
(1)A complaint may be made about conduct to which this chapter applies irrespective of when the conduct is alleged to have happened.
(2)However, the complaint cannot be dealt with (otherwise than to dismiss it or refer it to mediation) if the complaint is made more than 3 years after the conduct is alleged to have happened, unless the relevant council for the person about whom the complaint is made decides that—
(a)it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or
(b)the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.
That is, if a complaint is made about conduct more than 3 years after the conduct is said to have happened, the complaint may only be dealt with if the relevant council makes a decision to the effect described in s 395(2)(a) or (b).
Previous consideration of s 395(2)
In April 2016, Burns J held that s 395(2) creates a procedural requirement, and that a failure to make a decision of the kind described is not fatal to an attempt to deal with the complaint, but may be disregarded by ACAT in reliance on s 424 of the new Act (Practitioner D3 v ACT Civil and Administrative Tribunal and Law Society of the Australian Capital Territory [2016] ACTSC 61 at [33]). This decision was not appealed.
More recently, in Legal Practitioner P1 v ACT Civil and Administrative Tribunal [2017] ACTSC 173, Murrell CJ came to a different conclusion about the impact of s 395(2). However, her Honour’s approach to s 395(2) (with which I am inclined to agree) would not detract from, and may even strengthen, the interpretation of s 395 that is contended for by the Council; the more substantial is the protection in relation to late complaints provided by s 395(2), the more easily can it be accepted that s 395 applies even to conduct occurring before that provision came into effect.
The central question in this case seems to be the meaning of s 395, specifically whether that section, although referring to conduct “irrespective of when the conduct is alleged to have happened”, must be interpreted as applying only to:
(a) conduct occurring after the commencement of the new Act; and
(b) the particular class of prior conduct described in a transitional provision (s 613) included in the new Act.
Role of relevant council
If a complaint is “properly made”, it must be dealt with by the relevant council in accordance with ss 393(3) and 406(1) of the new Act. I do not understand D3 to assert at this point that any relevant complaint was not “properly made” in procedural terms; rather, he says that the complaint related to conduct that was not a proper subject for action by the Council.
A council that receives a complaint about a person must notify the person of the complaint (s 397), and may receive submissions from that person (s 398). The council may dismiss the complaint (s 399), suggest that the complaint be dealt with in mediation (s 401), or “investigate [the] complaint properly” (s 406). At the end of an investigation, the council must dismiss the complaint (s 412), dispose of it summarily (s 413), or apply to ACAT for an order against the practitioner who is the subject of the complaint (s 419). Relevantly, an application to ACAT must specify the charge of unsatisfactory professional conduct or professional misconduct that the council considers to arise out of the complaint (s 419(3)), but in doing so need not reflect exactly or in full the content of the complaint (s 422).
Role of ACAT
If a properly-made complaint is then the subject of an application to ACAT under s 419, it must also be dealt with under ch 4 (s 393); in certain cases, an application for disciplinary action must be made to ACAT, and ch 4 provides for ACAT’s dealings with that application.
If, on application by the relevant council, ACAT finds an Australian legal practitioner guilty of unsatisfactory professional conduct or professional misconduct (which includes personal misconduct), it may make any of a number of different orders set out in ss 425(3), (4) and (5), including, relevantly:
(a) an order recommending that the name of the practitioner be removed from the local roll (s 425(3)(a)); and
(b) an order that the practitioner pay a fine of a stated amount of not more than the amount mentioned in s 427 (s 425(5)(a)).
Under s 427, the maximum fine that ACAT may impose after a finding of professional misconduct is $75,000.
The Council submitted that if a complaint was properly made to the Council, and the alleged conduct was properly the subject of an application to ACAT for disciplinary action, then ACAT was obliged to deal with it (citing s 9 of the ACAT Act). Section 9 is as follows:
9 Applications under authorising laws
A person may apply to the tribunal if an authorising law provides that the application may be made.
Note A registrar may help a person make an application to the tribunal as the registrar considers appropriate—see s 112 (1) (b).
It is not clear to me that s 9 as such obliges ACAT to do anything in particular, but in the absence of any articulated challenge from D3 I accept at least that if an application is made to ACAT as mentioned in s 9 and in accordance with an authorising law, ACAT would need a good reason to decline to deal with the application.
Role of Supreme Court
Section 462 provides that “[t]he inherent jurisdiction and powers of the Supreme Court in relation to the control and discipline of local lawyers are not affected by anything in [ch 4]”.
Transitional provisions
The new Act contained transitional provisions, relevantly ss 612 and 613; these were set out in ch 10 of the new Act when it was enacted, but expired on 1 July 2008, and accordingly are no longer shown in consolidated versions of the Legal Profession Act. Those provisions may, however, have remained in force under s 88(1) of the Legislation Act 2001 (ACT), which provides that the continued operation of a “transitional law” is not affected only because the law is repealed (an expression defined to include the expiry of a law: s 82 of the Legislation Act).
Are the transitional provisions still in force?
The Council challenged whether the transitional provisions remained in force at all, relying on Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394; 86 NSWLR 142 at [77], where Bathurst CJ quoted remarks of Lord Keith of Kinkel in R v Secretary of State for Social Security; Ex parte Britnell [1991] 1 WLR 198. In that case, his Lordship:
(a) first set out an extract from a work written originally by a practicing legislative drafter, Thornton G.C., Legislative Drafting (London Butterworths, 3rd edition, 1987) p. 319, as follows:
The function of a transitional provision is to make special provision for the application of legislation to the circumstances which exist at the time when that legislation comes into force.
(b) then explained:
One feature of a transitional provision is that its operation is expected to be temporary, in that it becomes spent when all the past circumstances with which it is designed to deal have been dealt with, while the primary legislation continues to deal indefinitely with the new circumstances which arise after its passage. In the present instance regulation 20(2) must eventually become spent, although it may be envisaged that that could take a considerable period of time.
These are undoubtedly correct and constructive comments. However, I do not think that either Garth Thornton’s explanation, or his Lordship’s remarks, amount to a “general rule”, about the operation or survival of transitional provisions, that overrides specific legislative provisions. On the other hand, I accept with one qualification the Council’s proposition that:
before transitional provisions are invoked, it is first necessary to identify the particular circumstances that the transitional provisions were designed to deal with, and to then ask whether those circumstances have arisen.
The qualification is that the proposition is correct in relation to the direct operation of transitional provisions (and, one might think, all other legislative provisions). However, I do not accept that transitional provisions cannot be “invoked”, or relied on, in interpreting the legislation in which they are found unless it is possible to identify an existing case to which the transitional provision might apply. Apart from anything else, it would in many cases be an impossible task to determine, for the purposes of a particular case, whether there were in existence any other factual circumstances to which a particular transitional provision might turn out to be relevant at some point in the future.
For this reason, I do not consider it relevant to examine the exact current status of the transitional provisions relied on by D3; the facts that they were included in the original enacted version of the new Act, and that their operation has not been explicitly reversed (as distinct from the provisions themselves “expiring”), in my view permits consideration of those transitional provisions in the context of an attempt to interpret the substantive and continuing provisions of the new Act.
Relevant sections
The sections relied upon by D3 are as follows:
612Pending complaints before professional conduct board
(1)This section applies in relation to a complaint that was made under the repealed Act and in relation to which, immediately before the commencement day, the professional conduct board had not completed its inquiry.
(2)The complaint is to be dealt with as if this Act had not been enacted.
(3)The professional conduct board established under the repealed Act continues in existence but only for this section.
(4)The provisions of the repealed Act, division 8.5 (Inquiries) apply in relation to the complaint as if—
(a)those provisions were provisions of this Act; and
(b)all necessary changes, and any changes prescribed by regulation, were made to apply those provisions as provisions of this Act.
613New complaints about old conduct
(1)This section applies to conduct that happened or is alleged to have happened before the commencement day and that could have been, but was not, the subject of a complaint under the repealed Act.
(2)A complaint about the conduct may be made, and dealt with, under this Act, even if the conduct could not be the subject of a complaint under this Act if it had happened after the commencement day.
(3)Chapter 4, and all other relevant provisions of this Act, apply in relation to the conduct with any necessary changes.
(4)However, disciplinary action may not be taken against a person under this Act in relation to the conduct that is more onerous than the disciplinary action that could have been taken against the person under the repealed Act in relation to the conduct.
Sections 612 and 613 deal with conduct happening before the new Act commenced, being conduct that was or could have been the subject of a complaint before that commencement (prior included conduct). Section 612 applies where a complaint had been made under the old Act, and s 613 applies where there had been no complaint before the new Act commenced.
Neither provision (nor any other provision of ch 10) applies or applied to conduct that could not have been the subject of a complaint by the Council to the Board before the commencement of the new Act (prior excluded conduct).
Comparison of provisions of old and new Acts
Relevant conduct
A comparison of the equivalent definitions in the old Act (quoted at [20] above) and the new Act (quoted at [34] above) indicates that the two definitions of “unsatisfactory professional conduct”, while not identical, appear to be aimed at the same kind of conduct. The two definitions of “professional misconduct” differ in more respects, but the descriptions of conduct referred to in this judgment as personal conduct and personal misconduct are clearly aimed at conduct that is to be tested against essentially the same standard, being in general terms whether it is conduct not in connection with the person’s practice of law which nevertheless raises the question whether the person concerned is fit to remain a member of the legal profession.
The definitions in the new Act incorporate the requirement that the conduct is conduct of an Australian legal practitioner. Section 385(2) provides that the Act continues to apply in relation to such conduct even after the person becomes a former Australian legal practitioner), and s 385(1) seems to be intended to provide that the new Act applies to an Australian lawyer (ie a person who is admitted to the legal profession somewhere in Australia but does not hold a practising certificate) in relation to the person’s conduct while he or she had that status, as if the person were an Australian legal practitioner. It is not clear whether this is only intended to permit a person admitted to the legal profession to be dealt with for personal misconduct even though he or she did not have a practising certificate at the relevant time, or if the “necessary changes” referred to but not explained in s 385(1) are intended to re-write the legislation more substantially.
Scope for complaints
The scope and arrangements for making complaints under the new Act differs from that provided by the old Act. In short, under the old Act:
(a) a complaint in relation to a solicitor could only be made by the Council to the Board in respect of the professional conduct of the solicitor; and
(b) only the Supreme Court (whether under s 50 of the old Act, or in its inherent jurisdiction) could deal with personal conduct that might constitute personal misconduct and therefore professional misconduct.
Under the new Act, however, the relevant council for a legal practitioner may make a complaint, and ACAT may deal with a complaint, alleging professional misconduct constituted by personal misconduct. Section 385(1), as already discussed at [70] above, seems to suggest that some person or body may be able to pursue an admitted lawyer without a practising certificate in respect of personal misconduct, but the definition of “relevant council” does not seem to identify any body in respect of such a person.
Persons subject to complaint
Under the old Act, the Council could only complain to the Board about the conduct of a solicitor (being a person who held a practising certificate), while the Supreme Court could take action against an admitted legal practitioner, whether or not he or she held a practising certificate.
Under the new Act, complaints about any kind of misconduct described in s 386 or 387, being conduct by a legal practitioner, can be made by the relevant council and dealt with by ACAT, while the Supreme Court retains its inherent jurisdiction to deal with, at least, local lawyers. As noted at [70] above, the scope of s 385(1) in relation to lawyers who do not hold practising certificates is not clear.
The legal issue
The ACAT reasoning
The ACAT decision, that it had no jurisdiction to deal with Ground 1 of the Council’s complaint, depended on reasoning along the following lines:
(a) The matters raised by Ground 1 could not have been the subject of a complaint by the Council to the Board under the old Act, because of limits on the Council’s complaints power (not because of the nature of the matters so raised).
(b) The transitional provisions made when the new Act was enacted (ss 612 and 613 of the new Act) “cover the field” in relation to prior conduct, and have no operation in relation to conduct by a person who (or conduct which) could not have been the subject of a complaint under the old Act.
(c) Section 395 of the new Act must be read in conjunction with the transitional provisions and s 84 of the Legislation Act, which “continues” the operation of the old Act unaffected notwithstanding its repeal” (at [51]).
(d) Without an express provision extending the new Act to such conduct, the Council may not under the new Act pursue a complaint relating to alleged personal misconduct by a person who could not at that time have been the subject of a complaint by the Council (at [60]).
D3’s submissions
D3’s argument in support of ACAT’s conclusions was in summary:
(a) that the transitional provisions (ss 612 and 613 of the new Act) cover the field in relation to prior conduct, whether or not it could have been the subject of a complaint under the old Act;
(b) that s 613 deals exhaustively with the circumstances in which a complaint about prior conduct can be made under the new Act, and by its explicit reference to prior included conduct (“conduct that happened or is alleged to have happened before the commencement day and that could have been, but was not, the subject of a complaint under the repealed Act”) excludes complaints about prior excluded conduct;
(c) that the presumption against retrospectivity, and provisions of the Legislation Act about the effect of repeals, require s 395 to be read as not permitting the Council and ACAT to deal with complaints about prior conduct that are not explicitly dealt with in the transitional provisions;
(d) that therefore, neither s 395 of the new Act nor any other provision of that Act permits the Council or ACAT to deal with complaints about prior conduct that is not dealt with in the transitional provisions.
The Council’s submissions
Before me, the Council made the following submissions about the ACAT decision:
(a) That the provisions of the new Act permit the Council and ACAT to deal with the complaint against D3 even though the relevant conduct occurred before the new Act commenced, and ACAT should be required to do so on the Council’s application.
(b) That there is no equivalent to ss 612 and 613 for prior excluded conduct because there would be nothing to say in respect of such conduct. Because such conduct could not be the subject of a complaint by the Council under the old Act, there was nothing from the old Act that needed to be preserved in relation to the complaints processes after the commencement of the new Act; this may be contrasted with the procedures for dealing with complaints that were pending when the new Act commenced (s 612) or the need to restrict the penalties available in dealing with complaints that could have been dealt with under the old Act but that were the subject of complaints only after the new Act commenced (s 613).
(c) That the effective “transitional” provision is s 395, which provides a form of limitation period for complaints but explicitly says that complaints may be made “about conduct to which this chapter applies irrespective of when the conduct is alleged to have happened” (emphasis added).
(d) Relying on Re a Solicitor’s Clerk [1957] 1 WLR 1219, that the presumption against retrospectivity does not operate where past conduct is simply given a new disciplinary consequence for the future, especially where the consequences of past conduct are expanded in the interests of protecting the public.
(e) That the status of the new Act as part of a national scheme intended to protect the public supports the Council’s interpretation of that Act.
Consideration
It is agreed that the Council and the Board had no power to deal with D3’s alleged conduct under the old Act.
It seems to be agreed that the Supreme Court would have had power to deal with the Ground 1 allegations against D3, at least at any time after D3 was admitted to the legal profession in the ACT in May 2002.
It seems to be agreed that ss 612 and 613 have no direct application in respect of D3’s alleged conduct, and that there is no explicit exclusion of prior conduct, or any class of prior conduct, from the conduct that may be dealt with by the Council and ACAT under the new Act.
Despite D3’s submissions, the central question remains whether s 395 of the new Act must nevertheless be read as excluding conduct occurring before that Act commenced even though it does not set out such an exclusion and explicitly refers to conduct “irrespective of when it occurred”. The following issues seem to arise:
(a) the impact of s 84(1)(b) of the Legislation Act;
(b) the effect of any “presumption against retrospectivity”, including having regard to the new Act’s role in implementing a national scheme for regulating the legal profession;
(c) the significance of transitional provisions included in the new Act (in particular ss 612 and 613); and
(d) the significance of the increased penalties that may be imposed under the new Act.
Effect of Legislation Act s 84
Section 84 of the Legislation Act is relevantly as follows:
84Saving of operation of repealed and amended laws
(1)The repeal or amendment of a law does not—
(a)revive anything not in force or existing when the repeal or amendment takes effect; or
(b)affect the previous operation of the law or anything done, begun or suffered under the law; or
(c)affect an existing right, privilege or liability acquired, accrued or incurred under the law.
(2)An investigation, proceeding or remedy in relation to an existing right, privilege or liability under the law may be started, exercised, continued or completed, and the right, privilege or liability may be enforced and any penalty imposed, as if the repeal or amendment had not happened.
(3)Without limiting subsections (1) and (2), the repeal or amendment of a law does not affect—
(a)the proof of anything that has happened; or
(b)any right, privilege or liability saved by the law.
(4)This section does not limit any other provision of this chapter and is in addition to any provision of the law by which the repeal or amendment is made.
(5)This section is a determinative provision.
Note See s 5 for the meaning of determinative provisions, and s 6 for their displacement.
(6)In this section:
liability includes liability to penalty for an offence against the law.
penalty includes punishment and forfeiture.
privilege includes immunity.
right includes capacity, interest, status and title.
I note first that s 84 is “in addition to” any provision of the law by which a repeal or amendment is made; I take this to mean that the operation of s 84 may be limited, expanded or excluded by the provisions of the repealing or amending law.
D3 relies on s 84(1)(b), which provides that:
The repeal or amendment of a law does not … affect the previous operation of the law or anything done, begun or suffered under the law;
For instance, this ensures that a decision made by the Board or the Supreme Court under the old Act would not have been affected by the repeal of the old Act.
At [51] of the ACAT decision, ACAT said:
Section 84(1)(b) of the Legislation Act 2001 continues the operation of the old Act unaffected notwithstanding its repeal.
The Council submitted, correctly in my view, that this was not an accurate description of the effect of s 84(1)(b), which preserves not the operation but the “previous” operation of a repealed law, and the significance of anything “done, begun or suffered” under the repealed law.
It is not clear what operation of the old Act was seen by ACAT as “continued” by s 84(1)(b). I accept the Council’s submission that s 84 has no relevance in this case.
Retrospectivity
D3 further says that the presumption against retrospectivity is an obstacle to inferring that prior conduct is included in the scope of the new Act simply because prior conduct is not explicitly excluded from the conduct subject to that Act.
However, the issue before me is not the interpretation of a provision that says nothing about the timing of the conduct that may be the subject of a complaint by the Council under the new Act; rather, the issue is an attempt to read down, largely by reference to a common law presumption, a provision that explicitly disclaims any limit on the making of a complaint about conduct by reference to when the conduct occurred.
General principles
Counsel referred me to D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th edition, 2014) where the authors summarise the presumption against retrospectivity as follows (at 10.1, p 397):
Assumption that Legislation is Not Retrospective
10.1 The courts have frequently declared that, in the absence of some clear statement to the contrary, an Act will be assumed not to have retrospective operation. The leading case on this question in Australia is Maxwell v Murphy (1957) 96 CLR 261 where Dixon CJ summarised the approach of the courts thus (at 267):
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.
Perhaps the other most frequently cited statement of the principle is from Fullagar J in Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194:
There can be no doubt that the general rule is that an amending enactment—or, for that matter, any enactment – is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement.
Both of these statements were endorsed by the High Court in Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379; 13 ALR 17.
However, at 10.4, the authors distinguish between “legislation having a prior effect on past events and legislation basing future action on past events”, and go on at p 400 to say:
The Victorian Full Supreme Court put the matter succinctly in Robertson v City of Nunawading [1973] VR 819 at 824: ‘[The] principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that.’
Numerous examples can be found of the courts applying this distinction. One of the most frequently cited (perhaps because of the nature of its facts) is Re a Solicitor’s Clerk [1957] 1 WLR 1219. The clerk was convicted in 1953 on charges of larceny but no order could be made under the Solicitors Act 1941 (UK) as it then stood prohibiting him from being employed as a solicitor’s clerk because he had not stolen from his employer or his employer’s client. The Act was subsequently amended to allow such an order to be made in the case of any conviction for larceny. The clerk argued that to apply the amendment to him would be to give it retrospective operation. This argument was rejected by the court on the ground that no retrospectivity was involved. The Act had future operation only, even if the conduct on which it depended had taken place in the past. Although the prohibition was based on a conviction that had occurred before the commencement of the Act, it operated in the future. On the other hand, the Act would have had retrospective operation if anything done before its commencement had been declared void or voidable or if a penalty had been inflicted for having carried out a particular function before the Act came into force.
An Australian case that reached a like conclusion in similar circumstances is La Macchia v Minister for Primary Industry (1986) 72 ALR 23. The holder of a fisherman’s licence was convicted of an offence that at the time of conviction could not result in the cancellation of his licence. The relevant Act was subsequently amended to permit cancellation for such convictions. The Full Federal Court, citing Re a Solicitor’s Clerk, upheld the validity of a cancellation based on the conviction before the Act was amended.
In this case, the substantive question in relation to retrospectivity seems to be whether legislation (in particular s 395 of the new Act) that apparently renders prior conduct an available subject for a complaint by the Council, even though the conduct could not have been the subject of a complaint by the Council at the time it took place, offends any presumption or assumption against retrospectivity.
I note first the assumption set out at [11] above, to the effect that some or all of the conduct alleged in Ground 1 of the Council’s complaint would, if proved, have been personal misconduct occurring before the new Act commenced that satisfied the old Act definition of professional misconduct. That is, the conduct concerned was addressed in the old Act, although only the Supreme Court could have dealt with the conduct as a disciplinary matter. In short, the change made by the new Act was not to the quality of the conduct concerned, but to the processes, and the body, by which it could be dealt with, and to the penalties that could be imposed in those processes.
The cases of Re a Solicitor’s Clerk and La Macchia v Minister for Primary Industry (1986) 72 ALR 23 are summarised in the extract from Statutory Interpretation quoted at [0] above. In both cases, courts upheld legislation providing prospective consequences for convictions for offences recorded before the legislation took effect. That is, the cases did not involve legislation changing the nature or quality of the prior event or conduct (eg rendering criminal an act which was not criminal at the time it took place) but legislation that added new consequences or new incidents to that prior event or conduct that did not attach to the conduct at the time.
D3’s case is not directly analogous to either of those cases, because in this case no action had been taken under the old Act in respect of the alleged conduct before the new Act commenced, and there is no legal fact such as a conviction on which to base new consequences under new legislation.
Neither party made submissions about how the common law approach to retrospectivity might apply in a different kind of case such as the current one.
Other cases
In the absence of such submissions, I have considered the other cases referred to in the relevant part of Statutory Interpretation, in an attempt to find some guidance about a broader range of cases; I have chosen to limit my consideration to those cases referred to in that text, which both parties knew had been brought to my attention, rather than calling for further submissions, or myself pursuing other cases without giving the parties an opportunity to comment on them. Those other cases are summarised below.
In Maxwell v Murphy (1957) 96 CLR 261, a limitation provision on the right to bring a compensation to relatives claim was amended to replace a 12-month limitation period running from the death of the deceased with a 6-year period. The plaintiff commenced action after the amendment, at a time more than 12 months after her husband had died, but within 6 years after that event. The High Court held that when the 12-month limitation period expired (which had happened while the old provision was still in place), the action became statute-barred, and had not been revived by the subsequent amendment of the limitation period.
In Fisher v Hebburn (1960) 105 CLR 188, an amendment to legislation provided that workers’ compensation was payable to a person who had been totally incapacitated as a result of a compensable disease even where the person had already been incapacitated by a non-compensable disease. A worker whose compensable disease was held, after the commencement of the amendment, to have incapacitated him was found to be entitled to compensation even though the non-compensable disease had incapacitated him before the commencement of the amendment. Fullagar J’s conclusion that the amended legislation protected the plaintiff arose from his reading of the legislation as applying, prospectively, to the incapacity rather than retrospectively to the earlier injury which, since the amendments, had been recognised by the Medical Board concerned as having caused the incapacity (at 194-195).
Geraldton Building Co. Pty Ltd v May (1977) 136 CLR 379 also involved workers’ compensation legislation. Again, as a specific matter of statutory construction, the High Court by majority decided that an injured worker who had an option to elect for a lump sum under the relevant legislation was entitled to receive the amount specified in the legislation when he made his election rather than the considerably lower amount specified at the time of his injury. As in Fisher v Hebburn, the Court’s conclusion relied on reading the amendments as having only prospective effect, and as causing the relevant rights and liabilities to accrue as a result of events subsequent to the injury, not at the time of his suffering of the injury.
In Robertson v City of Nunawading [1973] VR 819 (Robertson), the appellant had lodged notice of an intention to subdivide a property for commercial purposes, and a plan of the intended subdivision. At the time of lodgement, provisions empowering the respondent to deal with applications in a particular way related only to residential subdivisions, and accordingly, at that stage, were not applicable to the appellant’s property. Shortly after the notice and plan were lodged, amendments of the legislation came into force extending the relevant provisions to land intended for commercial use. The appellant argued that because the notice and plan had been lodged before the amendments came into force, the amended provisions did not apply to the notice and plan. The Full Court of the Victorian Supreme Court noted that the construction of the provisions concerned required consideration of “any relevant presumption required to be made by the rules of the common law” as well as the relevant provisions of the Acts Interpretation Act 1958 (VIC). The Court quoted the statement of Dixon J set out at [91] above, and went on:
It is to be observed that this principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that: Maxwell on Interpretation of Statutes, 12th ed., pp. 216-7. The principle is concerned with the case where the enactment would apply to these antecedent facts and circumstances in such a way "as to impair an existing right or obligation" or "as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events".
As Fullagar J, said in Ku-Ring-Gai Municipal Council v Attorney-General (N.S.W) (1957), 99 C.L.R 251, at p. 269; [1957] A.L.R 953– "What the rule really means is that prima facie a statute must not be construed so as to change the legal character or the legal consequences, of past events and transactions."
(emphasis added)
The Full Court noted at 824 that the amended provision could only be applied to plans submitted before the provision commenced if:
it did not impair or affect some right which the owners enjoyed in consequence of having submitted the plan of subdivision under the law as it stood, or some obligation or liability of the council arising at that time.
The Court concluded at 824-825 that the change did not impose any new liability on the council, and went on:
But it would make the owners subject to the exercise of powers from which previously they were immune in the sense that they were not subject to it. Can it then be said that the owners had the right not to have the law changed, pending their plan being dealt with, so as to make them subject to a process which previously did not exist?
It may be that an immunity conferred by law can properly be described as a "right", if it is of a particular character. Thus Windeyer, J., in Mathieson v. Burton (1971), 124 C.L.R. 1, at pp. 12-3; [1971] A.L.R 533, said: "It was said that s. 83A(1) created immunities not rights. But I fail to see why an immunity or an exemption from legal consequences should not be called a right or privilege once it has taken effect and is not merely inchoate. Before 1968 the respondent had 'the like right to continue in possession of the premises as her father had had'. But, says the appellant, what was called a right was not really a right". But the learned Judge was speaking of something which was conferred by the unamended statute and was described in it as "the like right to continue in possession". And when Kitto, J., in his dissenting judgment in Australian Iron and Steel v. Hoogland (1962), 108 C.L.R. 471, at p. 480; [1962] A.L.R. 842 (referred to by Windeyer, J., in Mathieson v. Burton), spoke of the amending Act as not being able to apply "without depriving a person...of an accrued immunity or defence" he was speaking of the effect of a statute in barring a legal remedy after a particular period. He was not speaking of a mere gap in the field covered by the legislation which left the person concerned free of statutory control in that area. There cannot, in any relevant sense, or perhaps in any sense, be a "right" to exemption or immunity from legislative action. The taking of legislative action in a field where previously there was none cannot be treated as an impairment of a right for the purpose of the principle. When, in Gishen v Broadmeadows, [1966] V.R. 83, Smith, J. (at p. 90), said: "When a plan of subdivision is submitted...to a council under s. 569 of the Act the council is bound to seal the plan unless there exists one of the grounds for refusal specified in s. 569B (7) and (8)", he was not directing his attention to the subject of an alteration of the statutory law.
(emphasis added)
By reference to the approach applied by the Victorian Full Court in Robertson, a question can be framed as follows:
Before the new Act commenced, did D3 enjoy any kind of right as a result of having committed his conduct before the new Act commenced, or have any kind of immunity against action being taken by the Council in respect of his conduct, or was there simply “a mere gap in the field covered by the legislation which left [D3] free of statutory control in that area”?
Since there was under the old Act no limitation period on the making of complaints by the Council to the Board, or on the Supreme Court’s capacity to deal with misconduct (at [27] above), it cannot be said that action against D3 had become statute-barred by the passage of time before the new Act commenced (in the way in which the action in Maxwell v Murphy had become statute-barred before the extended limitation period took effect).
D3’s freedom from action against him by the Council was not in my view a right, immunity or benefit conferred on him but simply a restriction on the powers of the Council. The old Act could at any time have been amended to expand the Council’s complaint powers to include, explicitly, complaints of professional misconduct constituted by personal misconduct and to apply those expanded complaint powers “irrespective of when the conduct is alleged to have happened”; I doubt that such an amendment could have been challenged as inappropriately retrospective.
Clearly, there was a “gap” in the relevant legislation, but all it left D3 free of was the possibility that action would be taken against him by the Council. The “gap” did not leave him free of statutory control of the relevant behaviour; it simply meant that only one body, the Supreme Court, could exercise that control under the old Act.
The approach of the Court in Robertson allows a further question to be framed, being whether D3 had accrued any "right" to exemption or immunity from legislative action to fill the “gap” in the old legislation. The Court’s answer to that question, at 824, however, is clear:
There cannot, in any relevant sense, or perhaps in any sense, be a "right" to exemption or immunity from legislative action. The taking of legislative action in a field where previously there was none cannot be treated as an impairment of a right for the purpose of the principle.
In these circumstances, I can see no basis for concluding that at or before the new Act commenced, D3 had accrued any kind of immunity from being dealt with in respect of his conduct while the old Act was in force.
In abstract terms D3 may have lost something as a result of the enactment of the new Act. However, I cannot see that what he might have lost can be framed as anything that is protected by a presumption against retrospectivity so as to require the plain words of s 395 of the new Act to be read as meaning something less than what they say.
Purposes of new Act
The Council relies on the status of the new Act as part of a national scheme for regulating the legal profession in the interests of the public.
Section 6 of the new Act sets out the purposes of the Act, being:
(a)to provide for the regulation of legal practice in the ACT in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b)to facilitate the regulation of legal practice on a national basis across State and Territory borders.
The purposes of the disciplinary provisions in particular are set out at [33] above; they effectively repeat the purpose set out in s 6(a) (at [113] above), and add several purposes more specifically relevant to the legal profession’s role in the community.
No particular submissions were made about what regulatory deficiencies existed before the new Act commenced or how the new Act addressed those deficiencies.
I accept the importance of regulating the legal profession in the interests of the public, and that such a purpose may be taken into account in interpreting the new legislation. I accept in particular that allegations of conduct that, if proved, would call into question a person’s fitness to remain a legal practitioner should not be excluded from investigation by the regulators of the legal profession without good reason.
On the other hand, the capacity to be recognised as a member of the legal profession, to practice as a lawyer, and to obtain an income from such practice, while clearly a privilege rather than a right, is a privilege that should not lightly be taken away from a person who is otherwise qualified; in particular, it should not be taken away through a process that itself does not seem to meet the high standards properly expected of the profession and its regulators.
For that reason, I would not be inclined to rely on the public interest in regulation of the legal profession to read the new Act as saying something disadvantageous to a legal practitioner that its plain words do not seem to say. However, it is in my view legitimate to refer to the public interest in having complaints against legal practitioners investigated when determining whether the new Act should, against the public interest, be read not to say something that does appear to be the clear meaning of its plain words.
Transitional provisions
Next, D3 says that s 395 must be read down to exclude complaints about prior excluded conduct, having regard to ss 612 and 613 of the new Act and to the absence of a transitional provision about that prior excluded conduct.
The proposition seems to be as follows:
(a) Section 395 applies to all conduct of the kind described in ch 4 of the new Act, and provides for complaints to be made about such conduct “irrespective of when the conduct is alleged to have happened”.
(b) On its face, s 395 applies to all relevant conduct that occurred before the new Act commenced.
(c) Sections 612 and 613 make specific provisions about some of that conduct.
(d) Therefore, s 395 must be read down to apply only to instances of conduct occurring before the new Act commenced that are provided for in s 612 or 613.
I accept that conduct to which s 612 or 613 applies may, and must, be dealt with as provided by the section concerned and not otherwise.
The more contentious claim is, in effect, that ss 612 and 613 also confine the operation of s 395 prospectively in relation to complaints about prior conduct not dealt with in either of those sections but within the scope of the plain words of s 395.
First, D3 submitted that the headings to s 612 and s 613 must be taken into account in working out the meaning of the new Act as a whole, and that they indicate that “the sections were intended to cover the field in relation to how the new Act would apply” to prior conduct.
Section 126(1) of the Legislation Act provides that headings to sections are part of certain Acts and s 126(2)(a) applies that provision to the new Act. Section 140 of the Legislation Act says that:
In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.
The two headings are, respectively:
612Pending complaints before professional conduct board
613New complaints about old conduct
Each heading describes accurately the subject matter with which it deals.
The heading to s 612 has nothing to say or indeed to imply about prior conduct not the subject of pending complaint.
The heading to s 613 could accurately describe a section that covers the field in relation to “old” or prior conduct. However, there is limited scope for inferring from the heading an intention to deal exhaustively with all prior conduct, because of:
(a) the fact that the section itself specifies that it only applies to some prior conduct;
(b) the fact that the substance of s 613 is irrelevant to prior conduct that could not have been the subject of a complaint; and
(c) the fact that, in the absence of an accompanying provision dealing specifically with other prior conduct, there was no need for the heading to s 613 to be more specific.
As to the substance of the transitional provisions, s 612 is, in effect, a customised version of s 84 of the Legislation Act (set out at [82] above), especially ss 84(1) and (2). Its inclusion is no doubt helpful to users of the new Act and, especially as regards the preservation of the abolished Board for transitional purposes and the scope for bringing the procedures of the Board into line with the procedures under the new Act, may even have been necessary in addition to s 84. However, its enactment has nothing to say about complaints that could never have reached the Board under the old Act.
The relationship between ss 395 and 613 is problematic. Section 613 was presumably enacted because its provisions were seen as necessary or desirable having regard to the contents of s 395. However, s 613 could have been seen as necessary or desirable either:
(a) to extend an assumed narrow operation of s 395 (specifically, limited to conduct after the new Act commenced); or
(b) to provide certain limited protections in respect of prior conduct because s 395 was intended to have the wide operation suggested by the inclusion of “irrespective of when the conduct is alleged to have happened”.
Section 613 is expressed to apply to prior conduct that “could have been, but was not”, the subject of a complaint under the repealed Act (s 613(1)). Section 613(2) makes it clear that such conduct includes, at least, conduct that could not be the subject of a complaint under the new Act if it occurred after the new Act commenced. If that is the only conduct dealt with by s 613(2), then the section has a very limited scope. I consider that s 613 in fact has a wider scope, and that s 613(2), and the protection given by ss 613(3) and (4), apply to all conduct described in s 613(1), but the exact scope of s 613 is not relevant in this case, because it is agreed that the conduct alleged against D3 is not described in s 613(1).
However, whether s 613 is read as providing only a small extension to the scope of the disciplinary provisions in the new Act (to cover conduct that was but is no longer seen as unacceptable), or as also providing a measure of protection from increased penalties to those who, before the new Act commenced, engaged in conduct still seen as unacceptable, does not seem to matter. The fact that s 613 deals with one particular class of prior conduct seen as requiring special treatment under the new legislation cannot of itself be read as establishing:
(a) first, that another class of prior conduct also requires special treatment beyond what is explicitly provided by the new Act itself and particularly s 395; and
(b) secondly, that because no such special treatment is provided, that other class of prior conduct must have been intended to be excluded from the operation of s 395.
I note in passing that s 613(2), in maintaining the scope for complaints about prior conduct even where that prior conduct is no longer considered unacceptable, may suggest a focus in the regulation of the legal profession that is not so much on stamping out particular kinds of conduct as on excluding from the profession people who cannot be relied on to conform to the standards required of the profession (whether or not those standards have any particular significance from time to time). Such a focus would also explain the absence, for instance in the old Act and in s 395 of the new Act, of any “hard” limitation period on the making of complaints about the conduct of legal practitioners.
Instead, s 395 on its face deals with such conduct by bringing it, prospectively, within the scope of a complaint by the Council, subject only to the need for specific consideration under s 395(2) if the conduct occurred more than three years before the complaint. That is, s 613 is rendered necessary by the breadth of s 395, which on its face creates, in effect, a new class of complaints about prior (and indeed future) conduct that may be pursued by the Council.
The Council submitted that there was nothing equivalent to the provisions of s 613 that needed to be said about that new class of complaints or the conduct in respect of which such complaints may be made. D3 however submitted that, if the intention of the new Act had been to extend the Council’s complaint powers to prior excluded conduct:
(a) this should have been made explicit in the transitional provisions; and
(b) explicit protections should have been provided to affected persons, particularly in relation to available penalties.
The difficulty with D3’s first proposition is that the extension of the Council’s complaints powers is made explicit in s 395, a substantive provision of the Act; it is hard to see the argument for requiring such a provision to be in transitional provisions instead of, or as well as, in the substantive provision.
The difficulty with D3’s second proposition is that it is not clear what kind of protection was required or would have been appropriate.
For instance, it may have been appropriate as a matter of principle to provide (as is done in s 613(4)) that if:
(a) the Council could have made a complaint about particular conduct under the old Act; but
(b) the complaint was not made until after the new Act commenced;
then the person concerned should not be subject to a greater penalty than would have been available to the Board under the old Act if the complaint had been made earlier. Among other things, it would not have been appropriate to give the Council any incentive to delay a complaint once it became clear that the law was about to change.
On the other hand, the new complaints available to the Council about old conduct, by definition, could not previously have been made by the Council or dealt with by the Board, so there is no logical basis for capping the penalty for that conduct under the new Act by reference to a penalty available under the old Act for different conduct. Seeking to cap the penalties by reference to the inherent jurisdiction of the Supreme Court would have been even more problematic.
In short, I reject the proposition that either:
(a) the headings to ss 612 and 613; or
(b) the fact that those sections only deal with complaints about conduct that were, or could have been, made by the Council under the old Act, and not with complaints about conduct that could be made by the Council only under the new Act;
provide a basis to read s 395(1) as if it said:
A complaint may be made about conduct to which this chapter applies irrespective of when the conduct is alleged to have happened, unless the conduct happened before the commencement of this Act and could not have been the subject of a complaint by the Council to the Board under the Legal Practitioners Act 1970.
Finally in relation to the transitional provisions I note that D3’s argument seems to require me to infer from the transitional provisions, including their headings, a legislative intention to override the plain meaning of a substantive provision of the new legislation. This proposition is particularly problematic in the context of the ACT approach to transitional provisions under which such provisions are repealed but may remain in force (discussed at [61] to [65] above).
In Boxx v Peden [2017] ACTCA 39, I commented at [17] to [20] on the importance of interpreting legislation so as to promote both “the accessibility of the law to the public and the accountability of Parliament to the electorate” (quoting French CJ in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 at [42]).
The accessibility of the law to the public and the accountability of the legislature to the electorate are not in my view enhanced by a court inferring limits on the plain words of substantive legislation from the existence of transitional provisions and the absence of other hypothetical transitional provisions. The undesirability of such an approach is only increased when the transitional provisions concerned have been sent to a kind of a legislative limbo in which they have been repealed but are still in force; certainly the provisions can still be found by an expert researcher, but even when found their real status may not be clear to a lay person (or to many lawyers). Such an approach to transitional provisions would be less objectionable (if still not positively desirable) to the extent that the transitional provisions were expressed to override or limit substantive provisions, although that would raise more starkly the question why those provisions did not remain part of the substantive law.
Changes to penalty provisions
Under the old Act, the following monetary penalties could have been imposed on a person found to have engaged in misconduct as defined in that Act:
(a) by the Board – up to $10,000 (s 58(1)(c));
(b) by the Supreme Court exercising statutory jurisdiction – up to 200 penalty units, equal to $20,000 immediately before 1 July 2006 (s 67(1)(c));
(c) by the Supreme Court exercising inherent jurisdiction – an amount not apparently specified in any legislation.
Under the new Act, the following monetary penalties can be imposed on a person found to have engaged in misconduct as defined in that Act:
(a) by ACAT – up to $75,000 (ss 425(5)(a) and 427);
(b) by the Supreme Court exercising inherent jurisdiction – an amount still not apparently specified in legislation (the new Act is expressed not to affect the jurisdiction referred to in the old Act.
It is clear that the specified monetary penalties that can be imposed by the disciplinary body other than the Supreme Court have been increased substantially under the new Act. The maximum penalty that can be imposed by ACAT substantially exceeds even the penalty that could have been imposed by the Supreme Court exercising statutory jurisdiction under the old Act.
It is unclear whether the specified maximum monetary penalties bear any particular relationship to the monetary penalties that may be imposed by the Supreme Court exercising inherent jurisdiction.
The question whether there was or is any upper limit on the monetary penalties that may be imposed by the Supreme Court exercising inherent jurisdiction emerged in the course of argument, and it was agreed that, if on reflection I considered that the answer to this question was significant in determining the application, I would invite further submissions from the parties.
However, I have concluded that this question is not significant.
As already noted (at [32] above), from the time he was admitted as a legal practitioner in 2002, D3 was subject to the powers of the Supreme Court exercising either statutory or inherent jurisdiction, subject to whatever penalties the Supreme Court could impose, and protected by any upper limits on those penalties. I do not understand it to be argued that the commencement of the new Act has affected the inherent powers of the Supreme Court.
The penalties that may be imposed by ACAT under the new Act differ in various respects from those that could have been imposed by the Board under the old Act, and the penalties that could have been imposed by the Supreme Court in the exercise of its statutory jurisdiction under the old Act. For instance, the powers of the Board in dealing with a complaint under the old Act were set out at s 58 as follows:
58Disciplinary powers of board
(1)If, after an inquiry into the professional conduct of a solicitor, the professional conduct board is satisfied that the solicitor is guilty of professional misconduct or unsatisfactory professional conduct, the board may do all or any of the following:
(a)in a case of professional misconduct—suspend for a specified period not exceeding 12 months any practising certificate held by the solicitor;
(b)direct the solicitor to do all or any of the following:
(i) cease to accept, for a specified time, instructions in relation to a specified class of work;
(ii) cease to employ in his or her practice a specified person or persons;
(iii) undertake specified further legal education;
(iv) seek advice in relation to the management of his or her practice from a specified person or persons;
(c)in a case of professional misconduct—impose on the solicitor a fine not exceeding $10 000;
(d)reprimand the solicitor.
(2)If satisfied that a person has suffered loss or other detriment as a consequence of professional misconduct or unsatisfactory professional conduct, in addition to its powers under subsection (1) the professional conduct board may, with the consent of the person, direct the solicitor to do all or any of the following:
(a)carry out specified work for the person, either free of charge or for a specified fee;
(b)waive the whole or a specified part of fees otherwise payable, or refund the whole or a specified part of fees paid, by the person in respect of specified work;
(c)pay a specified amount not exceeding $2 000 to the person by way of compensation;
(d)waive any lien in respect of a specified document or class of documents.
Section 67 set out the powers of the Supreme Court in the exercise of its statutory jurisdiction under the old Act; those powers essentially consisted of powers equivalent to those held by the Board (s 67(2)), and extra powers set out in s 62(1), as follows:
67Disciplinary powers of court
(1)If, on a report under section 62 or otherwise, the court is satisfied that a legal practitioner is guilty of professional misconduct or unsatisfactory professional conduct, the court may, by order, do all or any of the following:
(a)direct that his or her name be removed from the roll of legal practitioners;
(b)suspend for such period as the court considers appropriate his or her right to practise in the ACT as a barrister, as a solicitor or as a barrister and solicitor;
(c)impose on him or her a fine not exceeding 200 penalty units;
(d)where the legal practitioner is practising solely as a barrister—reprimand him or her.
(2)In addition to the powers vested in the court under subsection (1), the court may exercise all the powers of the professional conduct board under section 58 as if—
(a)each reference in that section to an inquiry were a reference to proceedings on a report under section 62; and
(b)each reference in that section to the board were a reference to the court.
(3)Where the court makes an order under subsection (1) (b) in respect of a legal practitioner, the court may also order that the legal practitioner may be employed in the practice of a solicitor for such a period and on such conditions as the court considers appropriate.
(4)The law society is entitled to be represented in proceedings for an order under this section.
Under the new Act, the power to make disciplinary orders is explicitly conferred on ACAT, but there is no legislative conferral of such powers on the Supreme Court. Rather, the new Act simply specifies at s 462 that the disciplinary provisions included in ch 4 of the Act do not affect the inherent jurisdiction of the Supreme Court.
The ACAT powers are set out in s 425 of the new Act as follows:
(3)The ACAT may make the following orders in relation to the Australian legal practitioner:
(a)an order recommending that the name of the practitioner be removed from the local roll;
(b)an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;
(c)an order that a local practising certificate not be granted to the practitioner before the end of a stated period;
(d)an order that—
(i) stated conditions be imposed on the practitioner’s practising certificate granted or to be granted under this Act; and
(ii) the conditions be imposed for a stated period; and
(iii) states the time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed;
(e)an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.
(4)The ACAT may make the following orders in relation to the Australian legal practitioner:
(a)an order recommending that the name of the practitioner be removed from an interstate roll;
(b)an order recommending that the practitioner’s interstate practising certificate be suspended for a stated period or cancelled;
(c)an order recommending that an interstate practising certificate not be granted to the practitioner before the end of a stated period;
(d)an order recommending—
(i) that stated conditions be imposed on the practitioner’s interstate practising certificate; and
(ii) that the conditions be imposed for a stated period; and
(iii) a stated time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed.
(5)The ACAT may make the following orders in relation to the Australian legal practitioner:
(a)an order that the practitioner pay a fine of a stated amount of not more than the amount mentioned in section 427;
(b)an order that the practitioner undertake and complete a stated course of further legal education;
(c)an order that the practitioner undertake a stated period of practice under stated supervision;
(d)an order that the practitioner do or not do something in relation to the practice of law;
(e)an order that the practitioner cease to accept instructions as a public notary in relation to notarial services;
(f)an order that the practitioner’s practice be managed for a stated period in a stated way or subject to stated conditions;
(g)an order that the practitioner’s practice be subject to periodic inspection by a stated person for a stated period;
(h)an order that the practitioner seek advice in relation to the management of the practitioner’s practice from a stated person;
(i)an order that the practitioner not apply for a local practising certificate before the end of a stated period.
Subsection 427(1) of the new Act is as follows:
(1)The maximum amount that can be imposed by way of fine under section 425(5)(a) is—
(a) for a finding of unsatisfactory professional conduct that does not amount to professional misconduct—$10 000; and
(b) for a finding of professional misconduct—$75 000; and
(c) for a finding of professional misconduct and unsatisfactory professional conduct not amounting to professional misconduct—$75 000.
That is, the disciplinary powers available under the two Acts are similar although not identical, but their allocation between the Supreme Court and the other disciplinary body (the Board or ACAT) is different.
There are other difficulties in comparing the various penalty regimes. The “maximum penalty” available under each disciplinary scheme is in fact the combination of the most severe form of each kind of order available. Such a combination cannot be “valued” in any sensible way. For instance, under each Act, the imposition of a direct monetary penalty is only one of a wide variety of disciplinary orders, and many of those other available disciplinary orders could be at least as financially burdensome as the requirement to pay a direct monetary penalty. Cancelling or suspending a person’s practising certificate, preventing him or her from accepting certain kinds of work, or requiring a person to undertake further study could expose the person to financial losses or expenses greater than any of the maximum penalties provided in the Acts, and may also expose him or her to far more substantial non-financial distress.
Furthermore, since only the Supreme Court could have exercised relevant powers in respect of that conduct under the old Act, there would also be an argument that subjecting the person to the exercise by ACAT of powers formerly held by the Supreme Court (which is a court rather than a tribunal, and operates in a different procedural environment) is itself somehow part of the new maximum penalty.
For these reasons, it is not clear what kind of transitional provision could have been made to protect a person who:
(a) under the old Act was only subject to action by the Supreme Court in respect of particular conduct; but
(b) under the new Act is subject to action by the Council and ACAT in respect of that conduct.
Because of the difficulties in comparing the total penalty regimes under the old Act and the new Act, I remain unpersuaded of the proposition that, if s 395 was meant to operate as it says (including in relation to complaints about prior excluded conduct), the new Act should have included transitional provisions guaranteeing, to a person alleged to have committed prior excluded conduct amounting to professional misconduct, only the exact range of disciplinary options that would have been available under the old Act.
On the other hand, I would not rule out that the various differences between the disciplinary procedures under the old and new Acts might be a basis for submissions on penalty before ACAT to the effect that the practitioner should not be disadvantaged by the fact that his or her misconduct is now subject to a considerably different set of procedures, and a somewhat different set of disciplinary orders, from those applicable when the conduct occurred. Similar arguments are made from time to time in sentencing hearings involving historical sexual offences where, irrespective of any changes to the maximum penalty for the offence concerned, an examination of sentencing practice at the time of the offence suggests that a lower penalty would have been imposed if the offence had been dealt with earlier; see eg R v WR [No. 5] [2015] ACTSC 258 at [35] to [38].
I do not consider that either the transitional provisions included in the new Act, or the absence of other transitional provisions suggested by D3, are a basis for reading s 395 to say anything less than its plain words say, specifically that complaints about conduct may be made under ch 4 of the new Act irrespective of when the conduct is alleged to have happened.
Conclusions
For the reasons set out above, and specifically because I have not been persuaded by any of the arguments raised by D3 in support of the reasoning in the ACAT decision or otherwise, I have concluded that ACAT does have jurisdiction under the new Act to hear and determine the Council’s complaint about alleged professional misconduct by D3 that occurred before 1 July 2006 when the new Act commenced.
No submissions have been made to the effect that even if ACAT has that power, it should not be required to exercise it.
Remedies
The Council’s application was for orders in the nature of certiorari (involving the quashing of the ACAT decision) and mandamus (compelling ACAT to exercise its jurisdiction to hear and determine its application for disciplinary action against D3).
Certiorari
In Craig, the High Court considered an application for an order in the nature of certiorari under the Supreme Court Rules 1987 (SA). The Court said at 175:
Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the “record” of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.
(emphasis added)
Mandamus
As to whether mandamus lies to require ACAT to exercise the jurisdiction it declined to exercise, the Council referred me to The Queen v Aird; Ex parte The Australian Workers Union (1973) 129 CLR 654 in which McTiernan J said at 655:
If the Commission had arrived at an incorrect conclusion on the question of the interpretation of the two phrases in the rules of the Australian Workers' Union it would not necessarily follow that mandamus should go. In the work on Crown Office Practice by Short and Mellor, 2nd ed., p. 199, it is said that "mandamus is only used where the inferior tribunal has declined jurisdiction, the object of mandamus being not to review or control the action of the inferior court but merely to compel it to act"; and, p. 200: "The question is not whether the tribunal has been right or wrong in the result of the exercise of their discretion, either upon the law or upon the facts, but whether it has in fact exercised it."
What orders are appropriate?
It is not clear to me that in this case, both orders are necessary, and nor is it clear which of the orders made by ACAT on 7 February 2017 need to be, and are appropriately, dealt with by an order of either kind. Accordingly, I shall invite the parties:
(a) to provide agreed draft orders for my consideration; or
(b) if the parties cannot agree on those draft orders, each to provide the party’s own draft orders accompanied by brief submissions in support of those draft orders.
I shall also invite the parties (including the second defendant) to make submissions about the appropriate costs orders in this matter.
D3’s application for judicial review
Progress of application
In late 2016, D3 filed an originating application for judicial review seeking prerogative relief against ACAT (SC561/16). That relief was sought to prevent ACAT hearing the application for disciplinary action in relation to which it subsequently made the decision challenged in these proceedings. In early 2017, shortly before ACAT began that hearing, D3 sought to amend his originating application to raise a substantially different argument from that raised in the original application, and also seeking to address his failure to file the original application within the period of 60 days after the grounds for relief arose, as required by r 3557 of the Court Procedures Rules 2006 (ACT).
That substantially different argument was, in general terms, the same as the argument that has been made before me to the effect that the new Act does not permit the Council or ACAT to deal with a complaint about the pre-2006 conduct alleged against D3.
On Friday 3 February 2017, D3’s application to amend his originating application came before Mossop J. It had been listed before his Honour as a matter of urgency because the ACAT hearing that D3 sought to prevent was listed for hearing on the following Monday, 6 February (that listing having apparently been fixed nearly 10 months earlier, in April 2016). D3’s amended application sought, among other things, an interlocutory order preventing that hearing from going ahead.
Mossop J noted that in order to grant the injunction sought by D3, he needed to be satisfied that there was a serious question to be tried and that the balance of convenience favoured the grant of an injunction. His Honour was satisfied that there was a serious question to be tried but, after reviewing the procedural history of the dealings between the Council and D3 since 2013, was not satisfied that the balance of convenience required the ACAT hearing to be delayed, and refused to restrain ACAT from hearing the Council’s application on the following Monday.
After the ACAT decision was made on 7 February 2017, the Council brought the judicial review application that I have now considered (SC110/17). That matter, and SC561/16, were both listed before me for directions on 7 July 2017.
On 17 October 2017, after several mentions which do not need to be described, and after noting a request from D3 to do so, I dismissed D3’s originating application (SC561/16), and an application in that proceeding, and reserved the costs in that matter until I gave a decision on the Council’s application that is dealt with in this judgment (SC110/17). In doing so, I noted Mossop J’s earlier observation that the appropriate costs orders in SC516/16 might be influenced by the outcome of SC110/17.
Submissions about costs in SC561/16
Accordingly, I shall also invite submissions from the parties about the appropriate costs orders to be made in SC561/16.
| I certify that the preceding one hundred and seventy-six [176] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: S. Grant Date: 6 March 2018 |
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