Parliament is considering a bill to re-instate the disciplinary register, and to prohibit the Bureau de Spank from trumpeting its successes before the respondent practitioners’ appeal rights are exhausted: Legal Profession Uniform Law Application Amendment Bill 2016 (Vic.). Cl. 150E of the Bill proposes to prohibit the Legal Services Board from providing to the public information about disciplinary orders made by the VCAT’s Legal Practice List while appeals or appeal rights are live. The prohibition extends beyond publication on the proposed disciplinary register to disclosure of information to the public more generally.
There is a problem with the Bill though: it focuses its protection of the profession on prohibitions of publications by the Legal Services Board about final orders. The Board shares a website and premises with the office of the Legal Services Commissioner. The CEO of the Board is in fact the Legal Services Commissioner, Michael McGarvie, who is also the applicant in all disciplinary prosecutions of lawyers in Victoria. Yet the CEO, qua Commissioner, is content for his staff to write about cases he is prosecuting, before any orders have been made and while the tribunal is considering what orders to make. On the homepage of the Board + Commissioner’s website, no less.
If parliament is concerned to ensure that the reputation of practitioners is not to be ruined by accounts of current proceedings by one of the parties to them where the aspect of things might change dramatically upon appeal, or even by bad decisions in such proceedings which are to be appealed, it ought to consider adding the Commissioner to the class of person covered by the prohibition, and to make clear that neither the Board nor the Commissioner ought publish details of disciplinary prosecutions while they are before the disciplinary tribunal.
It is not uncommon for appellate courts — the Supreme Court or the Court of Appeal — to reverse decisions unfavourable to lawyers in disciplinary prosecutions of lawyers in VCAT’s Legal Practice List, or to substitute decisions more favourable to lawyers than those of VCAT or the legal regulators. So the no publicity pending appeal proposition actually has some important work to do in the real world. Consider, to name a few, Legal Services Commissioner v McDonald  VSC 237, PLP v McGarvie  VSCA 253, Stirling v Legal Services Commissioner  VSCA 374, Burgess v Legal Services Commissioner  VSCA 142, Brereton v Legal Services Commissioner  VSC 378, Byrne v Marles  VSCA 78, Quinn v Law Institute of Victoria  VSCA 122, Byrne v Law Institute of Victoria  VSC 509. Consider also non-lawyers: Omant v Nursing and Midwifery Board of Australia  VSC 512, and Towie v Medical Practitioners Board of Victoria  VSCA 157 where the Court found that VCAT’s standard orders in disciplinary hearings were contrary to the privilege against penalties. It will be observed that some of those decisions were made by very experienced members of VCAT’s Legal Practice List, and several by its Vice-President, a judge.