Background

7.1 The Court Bill provides that a person may be represented before a commissioner by a solicitor or by a person who is not qualified to practise law but who belongs to a class of persons prescribed by rules.¹ This is in keeping with the concept of a commissioner conducting limited proceedings with a minimum of formality, although the reason for excluding representation by barristers is not clear.

Submissions

7.2 The submissions were almost unanimous in their condemnation of this proposal. The Legal Panel for the Labor Council of New South Wales in its submission² thought it “deplorable” that unqualified persons might conduct proceedings on behalf of injured workers, and suggested that ethnic workers would be prey to unscrupulous advocates who were not constrained by the ethics of the legal profession.

7.3 The Chairman of the Workers’ Compensation Commission³ warned of the absence of control over unqualified advocates and of the risk they posed for migrant workers. He expressed the view that the use of unqualified advocates was unlikely to reduce delays, and indeed thought the contrary might be the result. The prospect of a workers’ legal rights being protected by an unqualified advocate appearing before an unqualified commissioner under circumstances where the worker was refused the right to be represented by counsel was, in his view, “devastating”.

7.4 The Federated Municipal and Shire Council Employees’ Union of Australia, New South Wales Division⁴ considered that the prohibition against barristers appearing before commissioners would do nothing more than restrict the rights of representation that the workers of the State had enjoyed since 1926. The Union was apprehensive as to the harm that could be caused by unqualified advocates amongst the ethnic community, anticipating that such advocates would advertise themselves as compensation consultants over whom there would be no control as to their ethics or activities.

7.5 As we have mentioned, His Honour Judge Manser⁵ indicated that the assumption that less complex matters were so simple as to be capable of being dealt with by unqualified persons was misconceived, particularly having regard to the limitations on appeals. As a corollary, he indicated that there was a need for persons to be adequately represented. The prohibition against barristers appearing before commissioners was, in his view, contrary to the interests of workers, and there was no good reason for limiting their freedom of choice to representation. The concept of unqualified advocates gave rise to serious questions as to the nature of the relationship between the advocate and the worker, their liability for negligence (including the prospect of vicarious liability attaching to the management committees of unincorporated unions who employed lay advocates), and the absence of disciplinary procedures and professional ethical standards for lay advocates. lie considered that the proposed system of lay advocates gave rise to the risk of exploitation of immigrant workers by a new class of “God Fathers”.

7.6 The Law Society of New South Wales⁶ expressed concern at several aspects of the proposal. It was t ought that, particularly if commissioners are not legally qualified, they would need the assistance of experienced barristers or solicitors. Unqualified advocates gave rise to the risk of abuse, and problems were seen in relation to the sanctioning and control of their conduct. It was suggested that unqualified representation should be limited to employees of firms of solicitors, so as to ensure compulsory professional indemnity insurance cover.

7.7 The New South Wales Bar Association⁷ stated that it emphatically protests if the intention of the legislature is to prevent a party to proceedings before a commissioner being represented by a barrister. In its view, it is “outrageous” that litigants should be deprived of the opportunity of being represented by a barrister if they wished. The Association asked what provisions there would be to regulate the ethics, fees, and terms and conditions for the employment of lay advocates, and the duties which they might owe to the tribunal before whom they appeared. Imposition and enforcement of standards of competence and diligence would require careful attention. It was also pointed out that clients of lay advocates would not enjoy the benefit of legal professional privilege.

7.8 Mr. Joseph, Barrister,⁸ also stated that the proposal deprived workers of a right to proper representation. In particular, he suggested that if commissioners were to retain the jurisdiction proposed, then workers should have such representation as their advisers thought fit. He pointed out that there were unlikely to be savings in costs or time achieved by the introduction of lay advocates and the exclusion of barristers.

7.9 The Labor Council of New South Wales, Compensation Department,⁹ in its first submission, said that it regarded the concept of paid unqualified advocates as fraught with danger in that cases would not be competently presented, and workers, particularly ethnic workers, would be exploited. Lay advocates would not be governed by the statutory code of conduct that applies to solicitors and would not be covered by the compulsory professional indemnity insurance scheme. In their view, unqualified representation should be limited to employees of solicitors. The submission also suggested that the exclusion of barristers could only operate to create an inequality of representation since insurers would inevitably employ “in house” counsel. It was suggested that it was a curious concept to deny workers the best representation available.

7.10 The Labor Council of New South Wales in its second submission¹⁰ noted the apprehension of affiliated unions as to the possible harm that might be occasioned amongst ethnic workers at the hands of unqualified advocates who were not subject to controls as to their ethics or responsibilities.

7.11 The New South Wales Society of Labor Lawyers said in its submission¹¹ that the proposals could only operate to the disadvantage of workers and could be circumvented by insurers. The present arrangements provide experienced and qualified representation according to the Society and there is little reason for major change.

7.12 The Water & Sewerage Employees Union (Salaried Division), in its submission,¹² thought it dangerous to place the future welfare of injured workers in the hands of lay advocates. it pointed to the risk of responsibility which might attach to union officials, and also to the possibility of workers with a poor command of English being taken advantage of by lay advocates.

7.13 The only contrary view expressed in relation to lay representation was received from Mr. J.P. Flaherty M.P., Member for Granville, on behalf of the Granville State Electorate Council.¹³ He advised that the State Electorate Council endorsed proposals to broaden the scope of representation before the court to persons outside the legal profession.

Issues Involved

7.14 As in the case of the provision for legally unqualified commissioners, the provision for legally unqualified advocates has to be considered in the light of the intricacy of the questions which arise for determination under the Act. We agree that these questions will commonly be beyond the competence of lay advocates, and we generally agree with the objections which have been raised in the submissions. Advocates who are not legally qualified would not owe to the court or to the client the professional duties encumbent upon barristers and solicitors. They would not be subject to ethical rules or the sanction of disciplinary action, and they would pose a serious risk of improper practices. Further, in our view, they would be unable to represent adequately claimants in proceedings before commissioners having the jurisdiction conferred under the Court Bill, as presently framed. There would inevitably be a decline in standards, a substantial risk to the interests of claimants, and a real possibility of a proliferation of appeals which would have been unnecessary had the claimant been properly represented at first instance. We see absolutely no merit in the proposals. In particular, we do not believe that there would be any savings in costs either to the parties or the administration, or any reduction in delays, achieved by the introduction of lay advocates.

7.15 We feel sure that the implied prohibition against barristers appearing before commissioners is not intended to discriminate in favour of one branch of the profession against the other. Rather we assume that it is a reflection of the idea, not achieved in the Bill as framed, that proceedings before a commissioner would not have to be determined in accordance with strict legal principle. We do not agree with the prohibition, since we do not see why representation by one branch of the profession alone would reduce legalism. Further, any such proposal is in conflict with our first report on the legal profession¹⁴ in which we recommend the common admission of barristers and solicitors.

Summary

7.16 We recommend that the provision allowing representation by legally unqualified advocates be deleted. We also recommend that representation by barristers be permitted as well as by solicitors.

FOOTNOTES

1. Court Bill, cl.26(2).

2. Schedule: Item 22.

3. Schedule: Item 18.

4. Schedule: Item 25.

5. Schedule: Item 26.

6. Schedule: Item 27.

7. Schedule: Item 30.

8. Schedule: Item 31.

9. Schedule: Item 34.

10. Schedule: Item 35.

11. Schedule: Item 33.

12. Schedule: Item 29.

13. Schedule: Item 32.

14. New South Wales Law Reform Commission, First Report on the Legal Profession: General Regulation and Structure, L.R.C 31 (1982).