Legal Profession Bill
Introduction Print
EXPLANATORY MEMORANDUM
551134
BILL LA INTRODUCTION 11/11/2004
General
In broad terms, this Bill seeks to implement a new regulatory framework for the legal profession in Victoria while simultaneously implementing national model provisions.
There are a number of weaknesses within the current regulatory framework and impetus for change has arisen from these weaknesses. There is considerable duplication of functions between the various bodies involved inthe regulation of the legal profession. This duplication has added unnecessary costs to the administration of the regulatory framework. Thecurrent system has also proven confusing for consumers due to the number of entry points for complaints.
This Bill will abolish the Legal Practice Board, the office of the Legal Ombudsman and the Legal Profession Tribunal and replace them with a new regulatory framework that avoids duplication of functions and streamlines the complaints process. The Bill establishes the Legal Services Board ("the Board") as the peak body in the new regulatory system. The Bill also establishes the Legal Services Commissioner ("the Commissioner"). Themain function of the Commissioner is to receive and deal with complaints about the legal profession. The Bill transfers the key functions ofthe current Legal Profession Tribunal to the Victorian Civil and Administrative Tribunal ("VCAT").
The national reforms contained in this Bill come out of the National Legal Profession Project sponsored by the Standing Committee of Attorneys-General. This major initiative has been driven by the continuing evolution ofa national and international legal services market and will establish a regulatory framework that removes State and Territory barriers while meeting the needs of the profession and protecting the interests of consumers. Thenational model provisions are aimed at ensuring standards and procedures are broadly uniform across all Australian jurisdictions in order tofacilitate national practice.
Clause Notes
CHAPTER 1—INTRODUCTION
PART 1.1—PRELIMINARY
Clause 1.1.1 sets out the purposes of the Act.
Clause 1.1.2 provides for the commencement of the Act. With the exception of clauses 3.5.2(7) and (9) and 8.1.1(1), this Act will come into operation on a day or days to be proclaimed. The Act (other than clauses 3.5.2(7) and (9) and 8.1.1(1) will come onto operation on 1 January 2006 if it is not proclaimed before that date.
Clauses 3.5.2(7) and (9) and 8.1.1(1) will come into operation on the day after the day the Act receives Royal Assent. These provisions relate to professional indemnity insurance for barristers. These provisions must be proclaimed earlier than the rest of the Act to provide the Victorian Bar Council with sufficient time to make arrangements for professional indemnity insurance for barristers before the start of the 2005–06 financial year.
PART 1.2—INTERPRETATION
Clause 1.2.1 sets out the definitions of terms used in the Act.
Clause 1.2.2 sets out terms relating to lawyers. For the purposes of this Act, a lawyer is a person who is admitted to practice. Thisclause provides definitions of the terms "Australian lawyer", "local lawyer" and "interstate lawyer" that further refine the term "lawyer".
Clause 1.2.3 sets out terms relating to legal practitioners. For the purposes of this Act, a legal practitioner is a lawyer with a current practising certificate. This clause provides definitions of "Australian legal practitioner", "local legal practitioner" and "interstate legal practitioner" that further refine the term "legal practitioner".
Clause 1.2.4 defines the terms "associate", "legal practitioner associate", "lay associate" and "principal".
Clause 1.2.5 defines the term "home jurisdiction" in the context of an Australian legal practitioner, Australian-registered foreign lawyer and an associate of a law practice who is neither an Australian legal practitioner nor an Australian-registered foreign lawyer.
Clause 1.2.6 lists what may be considered as a suitability matter in relation to a natural person. The Board may take in account any of the listed matters in this provision when considering whether or not a person is, or is no longer, a fit and proper person to hold a practising certificate.
Clause 1.2.7 provides that an information notice is a written notice to a person about a decision made under this Act. This clause sets out what information must be included in an information notice.
Clause 1.2.8 deals with references to findings of guilt.
Clause 1.2.9 sets out how the term "Part" is to be construed when used in the Act.
CHAPTER 2—GENERAL REQUIREMENTS FOR ENGAGING IN LEGAL PRACTICE
PART 2.1—INTRODUCTION AND OVERVIEW
Clause 2.1.1 provides a simplified outline of the contents of this Chapter.
PART 2.2—RESERVATION OF LEGAL WORK AND LEGAL TITLES
Division 1—Preliminary
Clause 2.2.1 provides for the purpose of the Part.
Division 2—General Prohibitions on Unqualified Practice
Clause 2.2.2 prohibits persons from engaging in legal practice in Victoria unless they are Australian legal practitioners. There are specified exceptions. There is a maximum penalty of 2 years' imprisonment.
Clause 2.2.3 imposes restrictions on representing or advertising that persons are entitled to engage in legal practice unless they are Australian legal practitioners. There is a maximum penalty of 120 penalty units for a contravention of this section by a natural person or a body corporate.
Clause 2.2.4 specifies that the regulations may provide for presumptions about using particular titles or names giving rise to the presumption that a person represented that the person or a body corporate is entitled to engage in legal practice.
Division 3—Prohibitions regarding Associates
Clause 2.2.5 provides for the definitions of "disqualified person", "lay associate" and "relevant offence".
Clause 2.2.6 provides that the Board may apply to VCAT for an order than a person (other than an Australian legal practitioner) is a disqualified person (as defined) for a specified period or indefinitely.
Clause 2.2.7 provides for a prohibition on certain associates being employed by law practices or Australian legal practitioners. It also provides that a disqualified person, or a person foundguilty of a relevant offence, must not become a lay associate of a legal practitioner or law practice unless he or she informs the practitioner or practice of the disqualification or finding of guilt. There is a maximum penalty of 60 penalty units for contravention of this section.
Clause 2.2.8 provides that the Board may give approval for particular associates to be employed by law practices or Australian legal practitioners.
Division 4—Further Prohibitions and Restrictions
Clause 2.2.9 provides for prohibitions in relation to income sharing between Australian legal practitioners or law practices and people who are not Australian legal practitioners, apart from the circumstances permitted in this section. There is a maximum penalty of 240 penalty units.
Clause 2.2.10 provides that an Australian legal practitioner or law practice must not permit or assist a person who is not an Australian legal practitioner to engage in legal practice in Victoria.
Clause 2.2.11 provides that prisoners who are Australian lawyers must not commence, or continue to act in, any civil or criminal proceeding.
Division 5—General
Clause 2.2.12 provides that a contravention of this Part by an Australian lawyer who is not an Australian legal practitioner is capable of constituting unsatisfactory conduct or professional misconduct.
PART 2.3—ADMISSION OF LOCAL LAWYERS
Division 1—Preliminary
Clause 2.3.1 specifies the main purposes of the Part.
Division 2—Eligibility and Suitability for Admission
Clause 2.3.2 specifies the eligibility requirements for admission. Anapplicant must be aged 18 years or over, have completed approved academic qualifications (or corresponding academic qualifications), as well as approved practical legal training requirements, (or corresponding practical legal training requirements). Theseconcepts are defined in this clause.
Clause 2.3.3 provides that the Board of Examiners, in deciding whether or not to recommend to the Supreme Court that a person is a fit and proper person to be admitted to the legal profession, must consider each of the suitability matters under the Act, and any other matters it considers relevant.
Division 3—Admission to the Legal Profession
Clause 2.3.4 provides that an applicant for admission may apply to the Supreme Court to be admitted as a lawyer, provided the application is made according to the admission rules, and is accompanied by the admission fee.
Clause 2.3.5 provides that the admission fee consists of a general fee, which is to meet the expenses of the Council of Legal Education and the Board of Examiners, and a library fee, which is for the purposes of the Supreme Court Library Fund.
Clause 2.3.6 provides that the Supreme Court may admit a person as a lawyer if satisfied that the person: is eligible for admission; is a fit and proper person; and takes an oath of office in the required form. It also provides that the Supreme Court can rely on the recommendation of the Board of Examiners for this purpose.
Clause 2.3.7 provides that the Supreme Court must keep a roll of persons admitted to the legal profession, and it must be signed on admission. It also provides that the Prothonotary must forward to the Board the name, date of birth, and date of admission of each new person admitted as soon as practicable after the person has signed the roll.
Clause 2.3.8 provides that a person's admission to the legal profession is effective upon the person signing the roll.
Clause 2.3.9 provides that, on being admitted to the legal profession, a person becomes an officer of the Supreme Court, but that this does not confer any right to bring court proceedings that he or she would not be able to bring if he or she were not an officer.
Division 4—Board of Examiners
Clause 2.3.10 provides that the two main functions of the Board of Examiners are: to consider applications for admission to thelegal profession; and to recommend to the Supreme Court that an applicant meets the admission requirements. The Board of Examiners may refer a question concerning the admission of an individual applicant to the Supreme Court for determination.
Clause 2.3.11 allows applicants for admission to appeal to the Supreme Court against a decision of the Board of Examiners regarding their application.
Division 5—Admission Rules
Clause 2.3.12 provides that the Council of Legal Education may make rules regarding the academic qualifications and legal training required for admission to the legal profession. Italso provides that the admission rules must not require aperson to complete before admission a period of supervised training longer than one year. It also provides that rules made under this section are statutory rules for the purposes of the Subordinate Legislation Act 1994.
PART 2.4—LEGAL PRACTICE BY AUSTRALIAN LEGAL PRACTITIONERS
Division 1—Preliminary
Clause 2.4.1 provides that the purposes of the Part are: to facilitate national practice; to provide for the certification of Australian lawyers; and to allow for a system for the issue of local practising certificates.
Division 2—Legal Practice in this Jurisdiction by Australian Legal Practitioners
Clause 2.4.2 entitles an Australian legal practitioner, subject to this Act, to engage in legal practice in Victoria.
Division 3—Local Practising Certificates Generally
Clause 2.4.3 provides for practising certificates to be granted by the Board, in a form approved by the Board. A practising certificate is subject to specific conditions, as determined by the Board, including—
· a condition that the holder is or is not authorised to receive trust money; and
· a condition that the holder is authorised to engage in legal practice as—
· a principal of a law practice (that is, a sole practitioner, a legal practitioner director of an incorporated legal practice, a legal practitioner partner of a multi-disciplinary partnership, or a supervising legal practitioner of a community legal centre); or
· an employee of a law practice; or
· a volunteer of a community legal centre; or
· as a corporate legal practitioner.
· any conditions imposed under Division 5 of this Part, being conditions imposed by the Board, conditions imposed by the Act, conditions imposed or varied by VCAT, or conditions imposed by the Supreme Court.
This clause also provides that the first two conditions referred to above must appear on the face of the certificate.
Clause 2.4.4 provides that the Board, when considering whether or not a person is, or is no longer, a fit and proper person to hold a practising certificate, may consider any suitability matter relating to the person (as defined in clause 1.2.6), or any of the following matters (whether or not it happened before or after the commencement of this clause)—
· whether the person—
· obtained a practising certificate because of incorrect or misleading information;
· contravened this Act or a corresponding law;
· contravened an order of VCAT, including an order that a party to a proceeding pay a fine ordered by the Tribunal, or else the costs of the proceeding;
· contravened an order of a corresponding disciplinary body, or of another jurisdiction's court or tribunal exercising jurisdiction or powers by way of appeal or review;
· has failed to pay a required contribution or levy to the Fidelity Fund;
· contravened a requirement regarding professional indemnity insurance;
· has failed to pay any costs or expenses due under the Act or Regulations; or
· any other matter that is appropriate in the Board's opinion.
This section also provides that where a matter has been disclosed in an application for admission in Victoria or another jurisdiction, and the Board of Examiners has not determined it is a sufficient reason to refuse admission, the matter cannot be taken into account as a ground for refusing to grant or cancelling a local practising certificate, unless it forms part of a course of conduct on the part of the holder.
Clause 2.4.5 provides that practising certificates are valid for the financial year of issue, unless suspended or cancelled. Where an application for the renewal of a practising certificate has not been determined before 1 July in the year it was made, it continues on, unless suspended or cancelled sooner, until the Board has finally determined the application.
Clause 2.4.6 provides that an individual who is not already an officer of the Supreme Court, becomes an officer of the court on being granted a local practising certificate.
Division 4—Grant or Renewal of Local Practising Certificates
Clause 2.4.7 provides that the Board must not grant or renew a local practising certificate unless satisfied that the applicant was eligible to apply at the time of application, and is a fit and proper person to hold or continue to hold the certificate.