Earlier this year the High Court handed down its decision in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, in which it held that an advocate cannot be liable in negligence for work done in court, and work done out of court which is intimately connected with the conduct of a case in court. In contrast, the immunity for advocates has been abolished in some overseas jurisdictions.
Following the High Court’s decision the Standing Committee of Attorneys General (SCAG) agreed to review the common law position on advocates’ immunity. A Working Party of State and Territory Government officers was established to assist SCAG in considering this issue. The Working Party has developed an Options Paper, which considers several options for reform, including:
(i) Retaining the common law immunity;
(ii) Abolishing the immunity; and
(iii) Modifying the immunity by:
Confining the immunity to criminal proceedings;
Restricting the immunity to work done in court;
Restricting the immunity to ‘the presentation and testing of evidence’ and ‘the advancement and answering of argument’;
Clarifying through statute the limits of the common law immunity in terms of what is meant by ‘work done which is intimately connected with work done in court’; and
Preserving the immunity for prosecutors and public defenders.
Click on Options Paper (PDF File 521.2KB) to view.
Click on the Response Submission Template (Word doc 38.5KB) and forward Submissions to:
Director, Office of Legislation Development and Review, Department of Justice, GPO Box 825, Hobart 7001.
Submissions may also be sent electronically to legislation.development@justice.tas.gov.au or faxed to (03) 6233 3920.
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