Licensed Conveyancers Are Not Welcome in Queensland! (Or the A.C.T.)

OPINION
by Tim O'Dwyer M.A., LL.B
Solicitor
Consumer Advocate
watchdog@argonautlegal.com.au

The Queensland Law Society has happily informed its solicitor members that the Queensland Government does not intend to allow licensed conveyancers to practise in the Sunshine State.

No matter that many solicitors here have long disguised themselves as conveyancers, and conduct their conveyancing practices under imaginative, less-than-imaginative and less-than-professional business names where the words “conveyancing’ or “conveyancers” feature prominently. Consider these crass examples: Affordable Conveyancing, Aussie Conveyancing, River City Conveyancing, Ownit Conveyancing, Charter Conveyancing, Conveyancing Essentials, Conveyancing Now, Conveyancing Only, CSM Conveyancing, CCL Conveyancing, Results Conveyancing, Statewide Conveyancing, Queensland Conveyancing Professionals, Conveyancing On The Coast, Harcourts Conveyancing Services and … wait for it … The Conveyancing Shop.

Nevertheless the Law Society welcomed the advice it received from the Government and sent this good-news email to solicitors:

"Recent advice from the Queensland Treasurer, Andrew Fraser, as the State Government Minister responsible for the National Licensing System (NLS) for Specified Occupations, confirms the Queensland Government is not required to, and does not intend to, license conveyancers or recognise licences issued in other jurisdictions under COAG agreements for national occupational licensing.

State Government advice is that it also does not support revisiting the current position in Queensland regarding conveyancers' practice.

This follows the raising of the Queensland Law Society's concerns with the Government that parties in other states had been lobbying the National Licensing Taskforce and others, for the introduction of conveyancers, or the right of conveyancers to practise, in Queensland as a part of the COAG reforms.

In his advice, the Treasurer said, "...the Queensland Government previously considered whether to license conveyancers as part of the national competition policy review of the legal profession legislation. It was decided not to license conveyancers in Queensland and not to allow licensed conveyancers from other jurisdictions to operate in the State."

"While under the Competition Principles Agreement, Queensland must review legislation that imposes a restriction on competition at least once every 10 years, the Queensland Government does not support the implementation of the NLS being used to reopen this issue."

On behalf of our members, we welcome this response as it is both good for the legal profession, and also for consumers, in that it affords them adequate levels of protection when purchasing conveyancing services."

It is not often the Law Society achieves a win like this for the local legal profession, and not often the government makes a sensible decision like this regarding consumer protection. Of course the Law Society on behalf of its members has long-opposed the introduction of licensed conveyancers to Queensland. The Society President had recently sent to the State’s Attorney-General this submission, which focused less on defending solicitors’ so-called “conveyancing monopoly” and more on benefits to consumers:

"The Queensland Law Society was surprised and disappointed to see that Mr Simon Libbis, as Executive Director of the  National Electronic Conveyancing Office (NECO), has recently made submissions to the National Legal Profession Reform Taskforce and the National Licensing System for Specified Occupations Taskforce (available at NECS National Electronic Conveyancing System) calling for, amongst other things:

"Licensing of conveyancers, or at least recognition of conveyancers licensed elsewhere, in the ACT and Queensland would remove an unnecessary source of uncertainty for transacting parties in those jurisdictions. Mutual recognition of licensed conveyancers in all jurisdictions would further reduce uncertainty and increase cost efficiency in using NECS.”

This is a position which is not only incorrect but one with which the Queensland Law Society (QLS) strongly disagrees.

This call is all the more disappointing as Mr Libbis’ letter provides:

"A recent forum of statutory and market professional indemnity insurers and legal practitioner and licensed conveyancer regulators from all States and Territories identified a number of key issues needing to be addressed nationally if NECS is to achieve its maximum potential. The forum supported a submission being made to the national Reform taskforces in relation to these issues.”

The QLS and its captive insurer Lexon had representatives at that forum and advised that there was no consensus view at the meeting of the need for particular regulatory reform nor any resolution or request made to NECO to advocate on any particular issues. QLS has never requested NECO to raise any issues with the National Regulation Taskforce on its behalf.

While the NECO is to cease operation from 30 June this year, it is curious that this office funded solely by the New South Wales Government Lands Department should be calling for reform within your portfolio responsibilities.

Conveyancers in Queensland

Parliament in Queensland imposed a restriction on admission as a conveyancer in this jurisdiction in 1938 providing that there should be no further such admissions from 1 January 1940 (excluding, of course, those already undertaking a course of   articles for such an admission). That position has continued here for 70 years now.

The issue of practice and mutual recognition of conveyancers in Queensland was extensively litigated during the 1990’s. Through the litigations it was found that there is no registration authority in Queensland to accept a mutual recognition application for practice as a conveyancer and that conditions could not be applied to practice as a legal practitioner to be equivalent to practice as a conveyancer on account of the level of enhanced duties a solicitor owes to their client.

Efficiency and Certainty

NECS as an online settlement system will not be hampered or in any way impeded by the maintenance of the current position with respect to conveyancers operating in Queensland. The NECS system will not affect the formation or terms of property sale contracts formed under Queensland State law. It will not affect the various searches or inquiries which are prudently made of local authorities as a part of due diligence in a sale transaction. It will not affect buyers and vendors rights to terminate agreements due to defects, non-performance or contractual discretion.

It is an extreme oversimplification to state that merely effecting a settlement is the essence of conveyancing practice. It is incorrect to state that conveyancing practice in some way will be lessened unless conveyancers operate in Queensland through the NECS system.

Despite the introduction of NECS Queensland conveyancing will remain the application of Queensland law to a Queensland sale of Queensland real property. The current position with regard to conveyancers in Queensland has not brought about uncertainty in this or any other jurisdiction and will neither hamper nor impede the operation of NECS in any way.

Consumer Issues

Presently Queenslanders enjoy very competitively priced conveyancing services from law firms given the complexity of the area, the responsibility practitioners undertake and the volume of work involved. In fact Queenslanders enjoy some of the best value conveyancing services anywhere in the nation.

The issue of concern for the Queensland Law Society is that should conveyancers commence practice in Queensland without the exact same standards required of legal practitioners for:

• Professional responsibility, including fiduciary duties to their clients, and access to a complaints and discipline body equivalent to our Legal Services Commission;
• Professional indemnity insurance equivalent to the $2 million policy coverage, with run off cover, extended by Lexon Insurance;
• Fidelity fund coverage and professional obligations to contribute to make good very large claims;
• Client disclosure and fee regulation, including taxation of bills by the Courts;
• Admission requirements to ensure practitioners are highly trained before they commence practice;
• Registration requirements to ensure practitioners are fit and proper individuals and remain so; and
• Oversight by the Court of professional conduct and standards;

levels of consumer protection for consumers of conveyancing services in Queensland would be lower then they currently are. That can not be a desirable result.

For these reasons I would be pleased if you might oppose any reform of conveyancers practice rights in Queensland as a part of the work of the National Occupational Licensing Taskforce."

Meanwhile in the Australian Capital Territory, the only other Australian jurisdiction where licensed conveyancers are banned, the ACT Law Society expects any Government decision on this subject to be the same as Queensland’s.

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