A NSW law banning the advertising of personal injury services discriminates against lawyers, according to the Australian Plaintiff Lawyers Association (APLA). The Association is, however, hoping that a High Court challenge to the law will change all that.

APLA Ltd & Ors v Legal Services Commissioner of NSW & Anor, (see extract) which began last week, is the most important constitutional case on freedom of political communication in a decade, according to APLA.

When the NSW Government introduced the Legal Profession Regulation 2003, it effectively stopped communications between a lawyer and the general public “that have an effect of promoting the availability of the lawyers to perform personal injury legal services”, said APLA president Tom Goudkamp.

The case challenges the constitutional validity of NSW’s efforts at negligence law reform, according to APLA.

The Law Council of Australia (LCA) told Lawyers Weekly the case was important for freedom of communication. The current law “really prevents people finding out their rights in relation to personal injuries”, said LCA president Stephen Southwood QC.

The Association brought the action with national law firm Maurice Blackburn Cashman and NSW solicitor Bob Whyburn. Defendants are the NSW Legal Services Commissioner and the State of NSW.

Under the current law, introduced in 2003, it is both a criminal offence and professional misconduct for a lawyer to make a prohibited communication, Goudkamp said.

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Prior to the reforms, NSW Attorney-General Bob Debus commented that Australia had adopted a culture of blame for even minor accidents. “Elements in the legal profession have encouraged a view that someone must always pay; that litigation is the way to solve a dispute,” he said in a report in The Sydney Morning Herald.

The reforms have reportedly achieved their stated aims, and claims to the District Court have fallen from 20,784 in 2001 to under 8,000 last year, the Herald reported.

But according to Goudkamp, the NSW Government assumed the insurance crisis, with its increase in premiums, was down to a “shmarmy of frivolous insurance claims”.

“But it was actually due to the poor performance of equity markets,” Goudkamp said. “These things run in cycles, the insurers were doing badly and now they are doing extremely well.”

LCA president Southwood agreed that insurance has had an enormous impact on the NSW Government. “[The current law] is built on a misconception that lawyers advertising caused the insurance crisis,” he said.

Now, the law is being challenged on a number of grounds. APLA argues it breaches implied rights to freedom of political communication in the Constitution by restricting public access to information about personal injury law. The plaintiffs also argue that the legislation infringes the freedom of interstate trade that is guaranteed by the Constitution.

At the first hearing of the case on Tuesday last week, Justice Kirby suggested he was concerned by regulations that prevented people from accessing legal assistance. He said that many people did not know their legal rights “and are very afraid of exercising them, are very fearful of the costs and rightly so … a regulation that stops people getting that is a matter of concern to me”.

In an interview with Lawyers Weekly following the hearing, Goudkamp he could not think of any other profession that is not allowed to advertise. “Even sex workers can advertise — it’s absurd,” he said.

Goudkamp said the ban prevents “activities such as a community legal centre lawyer visiting a high school legal studies class and informing students of their rights to access victims of crime compensation and workers compensation”.

“Ironically, the ban would not prevent corporate lawyers from going to the same class and explaining to the students the use of corporate structures to avoid liability,” Goudkamp said.