Academic journal article University of Queensland Law Journal

The Queensland Solicitors' Conveyancing Reservation

Academic journal article University of Queensland Law Journal

The Queensland Solicitors' Conveyancing Reservation

Article excerpt

I INTRODUCTION (1)

In the last volume of the University of Queensland Law Journal, we began a reconsideration of the exclusive reservation of land conveyancing work that Queensland legislation provides for solicitors. (2) The development of this reservation was recounted: a slow process that saw the admission of nonlawyer 'certificated' conveyancers prohibited from 1940; the remaining certificated conveyancers, literally, dying out in the 1980s; and the exclusion of barristers from conveyancing practice being formalised as late as 2004. (3) We then addressed the legal and practical scope of the reservation--noting how the Queensland Law Society has strongly resisted efforts by nonlawyer conveyancers from other Australian States to gain access to Queensland property markets, while allowing to real estate agents the important role of contract formation and the creation of interests and legal rights in land. (4) Since the first article was published, a draft Legal Profession National Law has been prepared, but if implemented it would not affect the nature or scope of the solicitors' conveyancing reservation in Queensland. (5)

The implications that the Queensland solicitors' (qualified) conveyancing reservation have for competition law and policy remain of concern while the National Competition Council disagrees with the Queensland Government's explanations for prohibiting an access to nonlawyer conveyancers that other States allow. (6) Having in the first article given the background and scope of the conveyancing reservation, we consider in section II of this article the competition implications of the reservation and the arguments for and against maintaining it. This involves, first, an analysis of conveyancing markets in Queensland and an assessment of the impact that competition law has on them. As will be seen, it cannot be assumed that the existing barrier to entry must result in a lack of competition, (7) or that solicitors are currently engaged in anticompetitive conduct that lawful competition by nonlawyer conveyancers might overcome. Secondly, it is ultimately a question of policy whether the current 'legal practice' barrier to entry should be maintained. In accordance with current intergovernmental agreements regarding the implementation of national competition policy, the barrier is only defensible if its benefits exceed its costs. Thirdly, competition-based reforms have already been made to the profession in the Legal Profession Acts. The implications these have for nonlawyer access to conveyancing markets are also considered.

In light of the effect of competition law, policy and reforms that have already been made, we conclude in section III with suggestions as to how any lines of debate over the introduction of nonlawyer conveyancing in the State could be refined and whether, given existing reforms, there is any greater need to lower barriers to entry to conveyancing markets in Queensland.

However, given the focus on competition issues in this article, it is worth reiterating a point made in the first article about the use of the term 'monopoly'. (8) Although this reservation is commonly called the solicitors' conveyancing 'monopoly', in the language of economics, and of competition law and policy, there is no monopoly in the provision of conveyancing services in Queensland. A monopoly needs a single provider of services who controls the price at which the service is sold. (9) As there are more than 1300 solicitors' practices in Queensland that are lawfully able to provide conveyancing services, the legislation more accurately creates a barrier to entering the market for conveyancing services. (10) The question of nonlawyer conveyancing in Queensland, instead of raising the question of breaking a monopoly, is therefore one of lowering a barrier to entry to extend the class of persons able to provide the service.

II COMPETITION IMPLICATIONS AND ARGUMENTS

A Competition Law and Conveyancing

Throughout Australia, lawyers are currently subject to competition law. …

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