Double Standards Keep the Victorian Legal Services Commissioner Safe – For Now!

Corruption, Investigation
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What happens if the Victorian Legal Services Commissioner or her staff fail to live up the standards she expects of other Victorian legal practitioners? No problem, there’s special provision in the Uniform Law that, apparently, protects her lawyers from ever being investigated, no matter how serious their misconduct may be.

The Need For a Double Standard

The standard expected of Victorian Legal Practitioners is quite high. According to Ms McLeay,

“Being fit and proper (to practise as a lawyer) involves holding yourself to a higher standard of behaviour than the general public.”

Ms McLeay supervises a number of lawyers as her managers and investigators. These lawyers are experienced in litigation and committed to their roles. They have an intimate knowledge of the Uniform Law, and they are skilled in matching all manner of mistakes, failings, shortcomings and misbehaviour to various sections and rules in the legislation.

Ms McLeay’s lawyers also have coercive powers, by which they can demand assistance from those they are investigating, thereby creating a power imbalance between the investigator and the person under investigation.

One would expect that with great power comes great responsibility and accountability, as is the case with police and other law enforcement officers. But officers of under the control of the Victorian Legal Services Commissioner (VLSC) are not more accountable than the average lawyer. Indeed, they are not even similarly accountable. This is because the Uniform Law does not apply to them as it does to other legal practitioners, according to the VLSC.

I first discovered this when I sought to complaints against a number of lawyers whose conduct may well have resulted in serious disciplinary consequences and dismissal. It was in 2016 and Mr Michael McGarvie was the VLSC. I had lodged my complaint with Mr McGarvie, but was astonished to receive this reply:

“You have said that ‘in due course’ you wish to lodge formal complaints about Mr Daily, Ms Breisch and Ms O’Shanassy. You should note that under s.263(4)(c) of the Legal Profession Uniform Law Application Act 2014 (Uniform Law) actions involving my staff engaged in their work do not constitute conduct in connection with the practice of law.”

So that was the end of the matter. If the complaint related to criminal conduct it apparently made no difference at all. In the same letter Mr McGarvie told me,

“The claims in your 9 August letter alleging criminal offending…and your need for Police and IBAC interventions are not something which I have the jurisdiction to effect. Additionally, under s.277 of the Uniform Law I am empowered to decide not to further consider the merits of your complaint.”

Now, I would have thought that if criminal conduct had been drawn to the attention of the VLSC there would be no ‘jurisdictional’ impediment to the matter being reported by the VLSC to the police and/or IBAC if the VLSC was unable to conduct an investigation due to the operation of s.263(4)(c) of the Uniform Law. Indeed, I would have expected that it would be incumbent upon the VLSC to report the matter.

Mr McGarvie’s additional observation that he was ’empowered to decide not to further consider the merits of (the) complaint’ brought me to the conclusion that he really did not want ANY investigation into the alleged wrong-doing of his staff. Why? My theory is that an investigation by the VLSC into allegations of misconduct of VLSC staff would be an admission of failure on many fronts, but may also expose the VLSC personally.

Investigation As An Admission of Failure

The VLSC is responsible for the training and discipline of staff, and this would include matters of law and ethics. As any employer knows and accepts, a failure by a staff member reflects on the supervisor and the head of the business or government department that employs them. So, an admission by the VLSC that a staff member is in breach of the Uniform Law or the Crimes Act would not be a good look. Deflecting complaints by claiming that the alleged offender was not subject to the Uniform Law and that reporting possible criminal conduct is beyond the jurisdiction of the VLSC certainly helps to protect the brand and reputations.

Inherent Conflict of Interests

The IBAC definition of corrupt conduct includes …

A conflict of interests arises when the VLSC is required to examine the conduct of a staff member. A finding against a staff member reflects poorly upon the VLSC, and may even render the VLSC vicariously liable. Failing to recognise and deal appropriately with a conflict of interests could expose the VLSC to allegations of corruption. It would seem that the VLSC takes the view that s.263(4)(c) of the Uniform Law, and the supposed jurisdictional impediment to the reporting of possible criminal conduct to police, are a legitimate means by which allegations of conflicting interests can be avoided. The problem is that this approach fails on closer analysis.

The VLSC cannot avoid the inevitable conflict of interests that arises as soon as a complaint is made against a VLSC staff member. This is because the use of any of the options the VLSC may rely upon,

    • s.263(4)(c) of the Uniform Law;
    • the ‘jurisdiction prohibition’; or
    • s.277 of the Uniform Law (allowing a decision not to consider the matter further)

require the making of a decision, and this decision will invariably involve a conflict between the need to satisfy a complainant and the need to protect the VLSC from criticism.

In the case of Mr McGarvie, the decision was made to deflect the complaints entirely. However, Ms McLeay appears to have m

If a complaint is made about one of her lawyers, Ms McLeay will look into the matter, and Ms McLeay will determine whether or not the complaint should be investigated. In my experience, the complaints are never investigated. I suppose this is understandable, as Ms McLeay might be held ultimately responsible for the misdeeds of a lawyer under her supervision.

“You have also complained about the conduct of Ms Tina Stagliano. The allegations you have made against her are extremely serious. I do not consider that they have a sound basis. In any event, I will not deal with your concerns as a complaint about Ms Stagliano under Chapter 5 of the Legal Profession Uniform Law (“Uniform Law”), given the operation of section 263(4) of the Uniform Law.”

Let’s examine this paragraph a little more closely.

The first sentence acknowledges receipt of my complaint against Manager, Disciplinary Investigations Ms Tina Stagliano:

“You have also complained about the conduct of Ms Tina Stagliano.”

The second sentence confirms that the allegations I made against Ms Stagliano were ‘extremely serious’:

“The allegations you have made against her are extremely serious.”

The third sentence suggests that Ms McLeay has conducted something of an investigation into the serious allegations, sufficient to allow Ms McLeay to conclude that the allegations do not have a sound basis:

‘I do not consider that they have a sound basis.’

However, it is the final sentence that causes the entire paragraph to unravel. in this final sentence Ms McLeay reiterates what Mr McGarvie had previously claimed, namely that the Legal Services Commissioner cannot investigate actions involving staff engaged in their work, as this does not constitute conduct in connection with the practice of law:

“In any event, I will not deal with your concerns as a complaint about Ms Stagliano under Chapter 5 of the Legal Profession Uniform Law (“Uniform Law”), given the operation of section 263(4) of the Uniform Law.”

This reference to section 263(4) of the Uniform Law appears to be expanded to become something of a ‘catch-all’ provision that allows the Victorian Legal Services Commissioner to avoid looking into any form of misconduct, including it would seem, criminal conduct.

Don’t look at the sun

It appears that the Victorian Legal Services Commissioner regards an examination of misconduct by her officers as being similar to looking at the sun – you just have a quick peep, then look away again claiming to have seen nothing untoward. But if prompted to look a little longer and a little harder, then Section 263(4) of the Uniform Law acts as a total blockout.

An example of this is one of my many complaints against Senior Investigator Luke Priday. I had submitted a long and very details complaint against Senior Investigator Luke Priday alleging incompetence, the making of a false statement, and my belief that he was likely to commit perjury at VCAT. The Manager, Disciplinary Investigations, Ms Tina Stagliano quickly squinted at the sun, and provided me with the result of her ‘investigation’ just a few days later:

“Firstly, with regard to your request for removal of Mr Luke Priday from this matter, I am satisfied that he has acted fairly and independently – and in a manner that is consistent with the handling of all matters within this office – in investigating the complaints about you. I am also satisfied that he will continue to handle the proceedings currently before the Victorian Civil and Administrative Tribunal (‘Tribunal’) in an appropriate manner. As such, I do not deem it necessary to remove Mr. Priday from your matter.”

Luke Priday eventually went on to commit perjury at VCAT, and is no longer employed by the VLSC. He has taken up a prime position as a lawyer with Victoria Police. (I suspect that the VLSC would have provided a reference to assist Mr. Priday in his move from the office of the VLSC and into his position with Victoria Police.)

Of course, the VLSC could have invoked 263(4) of the Uniform Law and claimed that the matter could not be investigated, but given that Mr. Priday’s evidence was required at VCAT, it appears that the safer option at the time was to declare full confidence in him.

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5 Comments

  1. When I Googled Victorian Legal Services Commissioner Corrupt. This message appeared at the top of the page.
    The Victorian Legal Services Board and Commissioner are aware of allegations of corruption made against our office by Mr Peter Mericka. We consider these allegations to be unfounded and vexatious and have directed him to the Independent Broad-based Anti-corruption Commission and the Victorian Ombudsman.3 Apr 2023

    Reply

  2. Yes Diarmuid, that’s the best Fiona McLeay could do – make a false a baseless claim in the knowledge that there is little I can do about it. Making a vexatious complaint is a disciplinary offence, and yet nothing has been done in that regard; presumably because it would involve producing evidence and being open to scrutiny. McLeay cannot afford any form of investigation that might scrutinise the conduct of her office.

    Reply

  3. Peter, I suggest that you look at section 6.3.4 in the Legal Profession Act 2004 – Legal Services Commissioner -Relationship to Board
    (1) The Commissioner is the chief executive officer of the Board.
    (2) In addition to all other functions, powers and duties, the Commissioner is to administer the affairs of the Board in accordance with the policies and directions of the Board.
    The Legal Profession Act 2004 was superseded by the Legal Profession Uniform Law (being the present regulatory regime in place for the legal profession), Part 3.3. where the Board must refuse the grant of a practising certificate to any applicant it does not view as fit and proper.
    I am not sure if the Uniform Law Act has any equivalent provisions in it that provide to the Tribunal jurisdiction to review decisions of the Board as provided by the 2004 Act.
    Section 2.4.7 of Division 4 – Grant or Renewal of Local Practising Certificates addresses the “Criteria for grant or renewal of local practising certificates” in which the Board has to be satisfied that the applicant “(a) was eligible to apply for the grant when the application was made; and (b) is a fit and proper person to hold the certificate.” Section 2.4.12 (1) prescribes that within 30 days of receiving an application for the grant of a local practising certificate, the Board must – (a) grant the certificate, or (b) refuse to grant the certificate.
    By subsection (2) –
    “Within 60 days after receiving an application for renewal of a local practising certificate, the Board must—
    (a) renew the certificate; or
    (b) refuse to renew the certificate. Note: The criteria to be applied by the Board in making this decision are set out in section 2.4.7.”

    By subsection (3) –
    “(3) If the Board refuses to grant or renew a local practising certificate, it must give an information notice about the decision to the applicant.
    Note: Section 2.4.37 provides a right to apply for review of the decision.”
    The Tribunal when conducting a merits review has the following power “In determining the review application the Tribunal stands in the shoes of the original decision maker and is required to decide whether the decision which was made was the correct or preferable one. It must conduct the review without any presumption as to the correctness of the decision subject to review.” This principal was confirmed by the Australian Law Reform Commission in “Tribunals in Australia : Their Roles and Responsibilities
    Published in the Australian Law Reform Commission’s Journal Reform
    Issue 84, Autumn 2004.”
    The Victorian Legal Services Commission is clearly “above the law” whereas the rule of law as stated in the words of John Marshall –
    “The rule of law implies that every person is subject to the law, including persons who are lawmakers, law enforcement officials, and judges.[4] In this sense, it stands in contrast to tyranny or oligarchy, where the rulers are held above the law.”
    [4] Hobson, Charles. The Great Chief Justice: John Marshall and the Rule of Law, p. 57 (University Press of Kansas, 1996): according to John Marshall, “the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.”
    It wouls appear that the Legal Service Commission can do anything it likes because it is above the law.

    Reply

  4. Peter. the Victorian Legal Services Commission considers itself “above the law” due to it having the power pursuant (originally) under the Legal Profession Act 2004 to have the power under Section 2.4.7 of Division 4 – Grant or Renewal of Local Practising Certificates that addresses the “Criteria for grant or renewal of local practising certificates” in which the Board has to be satisfied that the applicant “(a) was eligible to apply for the grant when the application was made; and (b) is a fit and proper person to hold the certificate.” Section 2.4.12 (1) prescribes that within 30 days of receiving an application for the grant of a local practising certificate, the Board must – (a) grant the certificate, or (b) refuse to grant the certificate.
    By subsection (2) –
    “Within 60 days after receiving an application for renewal of a local practising certificate, the Board must—
    (a) renew the certificate; or
    (b) refuse to renew the certificate. Note: The criteria to be applied by the Board in making this decision are set out in section 2.4.7.”
    By subsection (3) –
    “(3) If the Board refuses to grant or renew a local practising certificate, it must give an information notice about the decision to the applicant.
    Note: Section 2.4.37 provides a right to apply for review of the decision.”
    Section 2.4.37 of the 2004 Act provides to Legal Practitioners rights – “2.4.37 – Review of decisions about local practising certificates
    (1) A person whose interests are affected by the decision may apply to the Tribunal for review of a decision of the Board—
    (a) refusing to grant or renew a local practising certificate under section 2.4.12 or 2.4.28; or
    (b) amending, suspending or cancelling a local practising certificate under section 2.4.21 or 2.4.28; or
    (c) suspending a local practising certificate under section 2.4.22; or
    (d) refusing a request to amend a local practising certificate under section 2.4.24.

    (2) An application for review must be made within 28 days after the day on which the information notice about the decision was given to the person.
    (3) On a review under this section, in addition to having all the powers of the Board in respect of the decision, the Tribunal may make any order the Tribunal could make under section 4.4.17 or 4.4.19 (except paragraph (a)).”
    The VCAT Tribunal “In determining the review application the Tribunal stands in the shoes of the original decision maker and is required to decide whether the decision which was made was the correct or preferable one. It must conduct the review without any presumption as to the correctness of the decision subject to review.[3]”
    __________
    [3] McDonald v Guardianship Board [1993] 1 VR 521 at 528; Davidson v Victoria Institute of Teaching [2006] VSCA 193 (6 September 2006).
    Originally this principal was affirmed by the Australian Law Reform Committee in “Tribunals in Australia : Their Roles and Responsibilities
    Published in the Australian Law Reform Commission’s Journal Reform
    Issue 84, Autumn 2004
    Merits Review
    The Commonwealth administrative tribunals and many state tribunals are merits review tribunals. They reconsider the decision under review and determine whether it is the correct or preferable decision. Correct, when there is only one decision; preferable, when a range of decisions is available. Thus, providing the Tribunal with the power to review decisions of the Victorian Legal Services Board.
    . In the words of John Marshall –
    “The rule of law implies that every person is subject to the law, including persons who are lawmakers, law enforcement officials, and judges.[4] In this sense, it stands in contrast to tyranny or oligarchy, where the rulers are held above the law.”
    ____________
    [4] Hobson, Charles. The Great Chief Justice: John Marshall and the Rule of Law, p. 57 (University Press of Kansas, 1996): according to John Marshall, “the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.”
    The Victorian Legal Services Board+ Commission do not abide by decisions of the VCAT Tribunal
    On 30 November 2022 Danielah Iacono wrote to me “Pursuant to Part 3.3. of the Legal Profession Uniform Law (being the present regulatory regime in place for the legal profession) the Board must refuse the grant of a practising certificate to any applicant it does not view as fit and proper. A similar obligation was imposed upon the Board in the previous regulatory regime, by way of Part 2.4 of the Legal Profession Act (Vic) 2004. In both cases the Board, and not the Tribunal, is the arbiter of an applicant’s fitness to practice, and can take account of a wide variety of factors, …” Clearly the current administrators have not considered the provisions of section 2.4.37 of the 2004 Act and the principles governing merit reviews.
    Note, Ms Iacono wrote to me stating “I understand that you wish the Board to confirm that Ross J made final orders in the 2008 review of the Board’s refusal to renew your practising certificate. I confirm the Board so accepts, but with the proviso that you appear to have a fundamental misunderstanding as to the substance of those orders.” Clearly, the VLSB+C have issues and problems.

    Reply

  5. Perhaps not directly related, but having just dealt with the early resolution officer handling my complaint, it became evident very quickly there is zero integrity in the process. Even after providing clear evidence of lawyer breaches in duty of care leading to injury, this officer repeatedly reframed the complaint using choice words which misconstrued facts and minimised the incident. l pointed out the discrepancies which only confirmed the sad truth that there was never any intention to acknowledge the facts and address any lawyer misconduct.

    Reply

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