BACKGROUND

1.1 The terms of the Commission’s reference into common law crime¹ stipulated that priority be given to those offences which are non-statutory, that is, which exist purely by virtue of the common law. To this end, the Commission commenced its inquiry by investigating the offences of barratry, maintenance and champerty.

New South Wales legislation

1.2 On 16 September 1993 the New South Wales Government introduced into State Parliament the Legal Profession Reform Bill 1993. This followed the release earlier in the year of the Commission’s Report entitled Scrutiny of the Legal Profession - Complaints Against Lawyers², as well as a number of papers on the legal profession produced by the Commission over several years.

1.3 Cognate with the principal Bill was the Maintenance and Champerty Abolition Bill 1993 (NSW), the objects of which were to abolish the common law crimes and torts of maintenance and champerty. The Attorney General, the Hon J P Hannaford MLC, stated that this abolition was to be read in conjunction with those clauses of the principal Bill concerning conditional costs agreements.³ Linking the two Bills was the then existing prohibition against legal practitioners sharing in the proceeds of litigation. The Bills sought to relax this prohibition to the extent that a legal practitioner and client could enter into a costs agreement, whereby the payment of legal costs would be contingent on the successful outcome of the action. In the event of success, such an agreement might also provide for payment by the client of a premium on top of the usual costs. In the principal Bill, strict conditions govern these costs agreements. The rules against maintenance and champerty would have presented an obstacle to the workings of such agreements, and thus led to the introduction, at short notice, of the cognate Bill.

Standing Committee of Attorneys General

1.4 The terms of reference indicate that the Commission is to be mindful of work being done by the Standing Committee of Attorneys General (SCAG). This requires a brief explanation. In June 1990, SCAG placed the issue of developing a uniform criminal code throughout Australia on its agenda.⁴ The impetus for this decision came from a recognition that most jurisdictions were conducting major reviews into their respective criminal laws.⁵ In September 1990, the Third International Criminal Law Congress was held in Hobart, and one major theme to emerge was the desirability of working towards achieving uniformity.⁶ To this end SCAG established the Criminal Law Officers Committee (CLOC),⁷ comprising an officer from each jurisdiction, who would advise his or her Attorney General on criminal law issues. Priority was given to drafting principles of criminal responsibility, and a report on this topic was published early in 1993.⁸ Part 4 of that Committee’s report deals with, amongst other subjects, attempt, complicity and conspiracy. Although these constitute part of our terms of reference, in order to avoid duplication we have postponed consideration of these issues until we have had an opportunity to study SCAG’s findings.

PURPOSE OF THE DISCUSSION PAPER

1.5 This Discussion Paper examines the common law offences of barratry, maintenance and champerty. The introduction, and subsequent passage on 20 November 1993, of the Maintenance and Champerty Abolition Bill 1993 (NSW) overtook the Commission’s detailed investigation of the area of champerty and maintenance. The Commission has, however, taken the decision not to abandon its inquiry into these common law crimes. We believe that the introduction of the cognate Bill was based mainly on the practical consideration that, while champerty continued to be unlawful, the provisions relating to conditional costs agreements would be unworkable. Indeed, in the Parliamentary debate on these Bills, virtually no comment, other than that of the Attorney General, was made regarding the cognate Bill. The Commission is concerned that there are other issues pertaining to the law of maintenance and champerty that merit consideration, and which may have been overlooked in the passage of this legislation. Chapter two of the Discussion Paper examines the role of maintenance and champerty in the modern context, and raises for discussion purposes these wider concerns.

1. Terms of reference p iv.

2. New South Wales. Law Reform Commission (Report 70, 1993).

3. New South Wales, Legislative Council Parliamentary Debates (Hansard) 16 September 1993 at 3279. The clauses referred to are 186-188.

4. Criminal Law Officers Committee of the Standing Committee of Attorneys General (hereinafter “CLOC”) Model Criminal Code: Chapter 2 General Principles of Criminal Responsibility (AGPS, Canberra, 1993) at i.

5. For a summary of these initiatives see CLOC at i.

6. CLOC at ii.

7. Since renamed the Model Criminal Code Officers Committee.

8. See footnote 4 above.