[This post looks at what one blogsite said was said about the new Legal Practitioners Decree, what was actually said, how the decree compares with the practice in some Australian states, and what the decree might - and might not- mean for Fiji. It is written because people in Fiji need a more balanced assessment and because more uninformed comment will soon reach the international media, if it has not already done so.]
There's more than a semantic difference between the Coupfourpointfive headline "Australia Law Council Condemns New Decree" and what Coupfourpointfive wrote on what ALC President John Corcoran actually said. He is reported to have expressed "grave concerns about the future independence of the legal profession in Fiji after the interim Government yesterday issued a decree removing the Law Society’s power to issue practicing certificates ...this could be the first step in the interim government's attempts to control the country's legal profession, by not allowing lawyers who oppose the regime to practise law." These are legitimate but worst scenario concerns about what the decree might mean in the future; not what it actually means now. The difference is important.
Corcoran was also concerned there was "no prior consultation with the Fiji Law Society or Fiji’s legal profession." Had FLS-Government relationship been better, there might have been consultation but with the FLS still urging lawyers not to take up appointments as judges, consultation was unlikely. However, a number of lawyers must have been consulted, if only to write the decree. Corcoran's main concern is one we all share: “Without an independent legal profession, a vital ingredient in upholding the rule of law in Fiji would be missing."
But he did not -- and indeed could not -- condemn the decree provisions because justice does not simply hinge on a law society with compulsory membership that registers lawyers and hears public complaints against fellow lawyers-- as the different systems operating in Australian states demonstrate.
Australian Comparisions*
In Western Australia, for example, membership of the Law Society is voluntary, a Legal Practice Board registers lawyers and a separate Professional Affairs Committee hears public complaints, (whereas in NSW, Victoria and Queensland the Legal Service Commissions hears complaints.) Membership of the WA Legal Practice Board (that registers lawyers) consists of the Attorney-General, the Solicitor-General (both government positions), Queen's and Senior Counsel, and 12 legal practitioners elected by all registered lawyers.
In Victoria the Legal Services Board consists of a Chairperson and three lay persons, nominated by the Attorney-General and appointed by the Governor in Council, and three legal practitioners elected by lawyers on the Board's electoral roll.
The Law Institute (similar to Fiji Law Society)is a separate body with voluntary membership to which the Board has delegated the responsibilities(to act "of behalf of the Legal Services Board") of issuing and renewing practicing certificates, maintaining the registers of legal practitioners and disciplinary action."
So, depending on the State, a law society may have nothing directly to do with lawyer registrations and complaints but it may be delegated one or both responsibilities. Law society membership is voluntary. All its members may have a say in its delegated responsibilities, or these may be decided on by a vote of all registered lawyers, whether or not they are members of the society.
Perhaps more important, the Attorney-General is the ex officio Chairperson or member of the Legal Service Board and in one of the two states the A-G appoints other members of the Board.
* I am not a lawyer but this is my understanding as obtained from the relevant official websites.See also my previous post : The Legal Practitioners Decree 2009: Fact and Opinion.
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