Legal Profession (Consequential Amendments) Act 2005
Act No. 18/2005
table of provisions
SectionPage
ClausePage
1.Purposes
2.Commencement
3.Principal Act
4.Definitions
5.Application for grant or renewal of practising certificate
6.No fee for volunteer practising certificate
7.Conditions on local practising certificates
8.Conduct capable of constituting unsatisfactory professional conduct or professional misconduct
9.Foreign lawyers
10.Costs disclosure
11.Costs reviews
12.Complaints and discipline
13.External intervention
14.Term of office of appointed Board members
15.Delegation by Legal Services Commissioner
16.Law reform funding
17.Transitional provisions
18.Consequential amendments to other Acts
19.Statute law revision
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SCHEDULE 1—Consequential Amendments
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Endnotes
1
ClausePage
Victoria
No. 18 of 2005
1
ClausePage
1
ClausePage
Legal Profession (Consequential Amendments) Act 2005[†]
[Assented to 24 May 2005]
1
Act No. 18/2005
Legal Profession (Consequential Amendments) Act 2005
1
Act No. 18/2005
Legal Profession (Consequential Amendments) Act 2005
The Parliament of Victoriaenacts as follows:
1
Act No. 18/2005
Legal Profession (Consequential Amendments) Act 2005
1.Purposes
The purposes of this Act are—
(a)to amend the Legal Profession Act 2004;
(b)to amend other Acts as a consequence of the passage of the Legal Profession Act 2004.
2.Commencement
s. 2
(1)Subject to sub-section (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 1 January 2006, it comes into operation on that day.
3.Principal Act
See:
Act No.
99/2004
and amending
Act No.
108/2004.
LawToday:
dpc.vic.
gov.au
In this Act, the Legal Profession Act 2004 is called the Principal Act.
4.Definitions
In section 1.2.1 of the Principal Act—
(a)in the definition of "admission to the legal profession", omit "or issue";
(b)insert the following definitions—
' "affairs" of a law practice has the meaning given in section 3.3.2;
"grant" of an interstate practising certificate includes the issue of an interstate practising certificate;'.
5.Application for grant or renewal of practising certificate
Section 2.4.8(9) of the Principal Act is repealed.
6.No fee for volunteer practising certificate
s. 6
After section 2.4.9(4) of the Principal Act insert—
"(4A)A fee or surcharge is not payable for a local practising certificate that is subject to the condition referred to in section 2.4.3(3)(b)(iii) (community legal centre volunteer).".
7.Conditions on local practising certificates
In section 2.4.14(1)(a) of the Principal Act, after "granted" insert "or renewed".
8.Conduct capable of constituting unsatisfactory professional conduct or professional misconduct
Sections 2.4.26(4), 2.4.27(3), 2.4.32(5), 2.6.8(2), 2.7.10(5), 2.7.11(3), 2.7.39(3), 2.7.40(3) and 2.7.49(2) of the Principal Act are repealed.
9.Foreign lawyers
(1)In section 2.8.2 of the Principal Act, in the definition of "local registration certificate", omit "or issued".
(2)At the end of section 2.8.14 of the Principal Act insert—
"(2)The regulations may also provide for the Board to determine from time to time—
(a)classes of Australian-registered foreign lawyers required to contribute to the Fidelity Fund;
(b)the contributions payable by members of those classes and the time and manner of payment of contributions;
(c)levies payable by members of those classes and the time and manner of payment of levies.
(3)If the Board determines a contribution or levy payable by members of a class of Australian-registered foreign lawyers in accordance with regulations made under sub-section (2), sections 6.7.32, 6.7.33(2), 6.7.34 and 6.7.35 apply as if the members of the class were members of a contributor class and as if the contribution or levy were imposed under Division 3 of Part 6.7.".
(3)In the Principal Act—
s. 9
(a)in section 2.8.19—
(i)in sub-section (4), for "the applicant's entitlement to be registered" substitute "whether the applicant meets the criteria for registration";
(ii)in sub-section (6)(a), for "affect the applicant's eligibility for" substitute "be relevant to or affect";
(b)sections 2.8.30(4), 2.8.31(3) and 2.8.44(5) are repealed;
(c)in the heading to section 2.8.46, for "holders" substitute "locally registered foreign lawyers";
(d)for section 2.8.46(1)(a) substitute—
"(a)ask the applicant or locally registered foreign lawyer for any documents or information the Board requires; or";
(e)in section 3.2.10, before "legal practice" insert "engaging in".
10.Costs disclosure
s. 10
In the Principal Act—
(a)for section 3.4.9(1)(c) and (d) substitute—
"(c)an estimate of the total legal costs or, if that is not reasonably practicable—
(i)a range of estimates of the total legal costs; and
(ii)an explanation of the major variables that will affect the calculation of those costs; and";
(b)in section 3.4.10(1), for "section 3.4.9(1)(a), (c), (d) and (e)" substitute "section 3.4.9(1)(a), (c) and (e)".
11.Costs reviews
At the end of section 3.4.41 of the Principal Act insert—
"(2)If—
(a)a law practice has commenced proceedings to recover legal costs; and
(b)an application for a costs review in relation to those legal costs is made under section 3.4.48 out of time; and
(c)the Taxing Master determines to deal with the application—
the court or tribunal in which the proceedings have been brought must stay the proceedings on the application of a party, or on its own initiative, pending the completion of the review.".
12.Complaints and discipline
s. 12
In the Principal Act—
(a)in section 4.4.17(c), for "issued" substitute "granted";
(b)in section 4.4.25, in paragraph (b)(iii) of the definition of "disciplinary action", for "issue" substitute "grant".
13.External intervention
In the Principal Act—
(a)in section 5.1.2, in paragraph (a) of the definition of "regulated property", after "trust money" insert "or trust property";
(b)in section 5.2.1(d)—
(i)after "the practice" (where first occurring) insert "or an associate of the practice";
(ii)in sub-paragraph (v), after "regulations" insert "or legal profession rules".
14.Term of office of appointed Board members
For section 6.2.9(4) of the Principal Act substitute—
"(4)An appointed member—
(a)holds office, subject to this Act, for a term specified in his or her instrument of appointment, not exceeding 4 years from the date of appointment; and
(b)is eligible for re-appointment.".
15.Delegation by Legal Services Commissioner
s. 15
After section 6.3.12(2)(a) of the Principal Act insert—
"(ab)a function under section 4.4.13 (other than the function of applying to the Tribunal for an order under Division 4 of Part 4.4); or".
16.Law reform funding
(1)After section 6.7.10(1) of the Principal Act insert—
"(1A)The Attorney-General may each financial year direct the Board to pay an amount out of the Public Purpose Fund to the Victorian Law Reform Commission and the Board must comply with that direction.".
(2)In the Principal Act—
(a)in section 6.7.10(3), for "this section" substitute "sub-section (1)";
(b)in section 6.7.11(1) and (2), for "section 6.7.10" substitute "section 6.7.10(1)".
17.Transitional provisions
(1)In clause 2.2(4) of Schedule 2 to the Principal Act, after "this Act" insert "(except sub-clause (4A))".
(2)After clause 2.2(4) of Schedule 2 to the Principal Act insert—
"(4A)Sub-clause (4) does not apply to a local practising certificate that is subject to the condition referred to in section 2.4.3(3)(b)(iii) (community legal centre volunteer).".
(3)In Schedule 2 to the Principal Act—
(a)clause 3.2 is repealed;
(b)in clause 8.20(4), after "section 383(2)" insert "or (5)".
18.Consequential amendments to other Acts
s. 18
On the coming into operation of an item in Schedule 1, the Act referred to in the heading to that item is amended as set out in that item.
19.Statute law revision
In the Principal Act—
(a)in section 2.2.9(3)(c), for "corporate practitioner" substitute "corporate legal practitioner";
(b)in section 2.4.1(b), for "issue" substitute "grant";
(c)in section 2.4.28(2), for "provided n" substitute "provided in";
(d)in the heading to section 3.3.8, for "liability" substitute "obligations";
(e)in section 4.4.12(2), for "section 4.4.11" substitute "section 4.4.13";
(f)in section 4.4.14(1)(b), omit "or firm";
(g)in section 4.4.28(3), for "sections 4.4.28" substitute "sections 4.4.29";
(h)in section 5.2.2(1), for "exist" substitute "exists";
(i)in section 6.7.18(f), for "Examiner-General" substitute "Auditor-General";
(j)in section 6.7.24(2)(b)(i),for "an" substitute "a";
(k)in section 7.2.5(2), for "section 6.2.30" substitute "section 6.2.23";
(l)in section 7.2.11(4), after "agreement" insert "or arrangement";
(m) in section 7.2.14(3), for "intestate" substitute "interstate";
(n)in clause 8.14(1) in Schedule 2, for "section6.2.19(2)(c)"substitute
"section 6.2.19(1)(d)".
s. 19
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SCHEDULE 1
Sch. 1
Section 18
Consequential Amendments
1.Accident Compensation Act 1985
1.1 In section 5(1), after the definition of "interest at the prescribed rate" insert—
' "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;'.
1.2 In section 134AG(5), for "Legal Practice Act 1996" substitute "Legal Profession Act 2004".
1.3 In section 248A(3)(b), omit "duly qualified".
2.Administration and Probate Act 1958
In section 3(1), before the definition of "Master" insert—
' "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;'.
3.Adoption Act 1984
In section 4(1), after the definition of "interim order" insert—
' "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;'.
4.Ambulance Services Act 1986
In section 13(4), for "a legal practitioner" substitute "an Australian legal practitioner (within the meaning of the Legal Profession Act 2004)".
5.Appeal Costs Act 1998
In section 3(1), after the definition of "insolvent under administration" insert—
' "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;'.
6.Architects Act 1991
For section 28 substitute—
'28.Assisting counsel
(1)The Tribunal may appoint an Australian legal practitioner to assist it in the conduct of an inquiry.
(2) The Board must pay the fees of any Australian legal practitioner assisting the Tribunal.
(3)In this section, "Australian legal practitioner" has the same meaning as in the Legal Profession Act 2004.'.
7.Associations Incorporation Act 1981
After the heading to Part VIIIA insert—
'37A.Definition
In this Part, "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004.'.
8.Australian Crime Commission (State Provisions) Act 2003
Sch. 1
8.1 In section 3(1), after the definition of "issuing officer" insert—
' "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;'.
8.2 In section 27(2), for "barrister" substitute "legal practitioner".
9.Bail Act 1977
In section 3, after the definition of "drug of dependence" insert—
' "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;'.
10.Building Act 1993
10.1 For section 166(3)(ba) substitute—
"(ba)at least one person who is an Australian lawyer (within the meaning of the Legal Profession Act 2004) of at least 5 years' standing; and".
10.2 For section 184(2)(ab) substitute—
"(ab)at least one is to be an Australian lawyer (within the meaning of the Legal Profession Act 2004) of at least 5years' standing; and".
10.3 For section 207(2)(h) substitute—
"(h)at least one is to be an Australian lawyer (within the meaning of the Legal Profession Act 2004) of at least 5years' standing; and".
10.4 For section 210(2)(m) substitute—
"(m)at least one is to be an Australian lawyer (within the meaning of the Legal Profession Act 2004) of at least 5years' standing;".
Sch. 1
11.Business Licensing Authority Act 1998
In section 5(2), for "a legal practitioner" substitute "an Australian lawyer (within the meaning of the Legal Profession Act 2004)".
12.Children and Young Persons Act 1989
12.1 In section 3(1), after the definition of "irreconcilable difference application" insert—
' "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;".
12.2 In section 82(3)(c), for "admitted as a barrister and solicitor of the Supreme Court" substitute "admitted to the legal profession within the meaning of the Legal Profession Act 2004".
13.Chinese Medicine Registration Act 2000
In section 3, for the definition of "lawyer" substitute—
' "lawyer" means an Australian lawyer within the meaning of the Legal Profession Act 2004;".
14.Chiropractors Registration Act 1996
In section 3, for the definition of "lawyer" substitute—
' "lawyer" means an Australian lawyer within the meaning of the Legal Profession Act 2004;".
15.Commercial Arbitration Act 1984
For section 20(6)(a) substitute—
"(a)a legal practitioner shall be read as a reference to—
(i)an Australian legal practitioner within the meaning of the Legal Profession Act 2004; or
(ii)an overseas-registered foreign lawyer within the meaning of section 2.8.2 of the Legal Profession Act 2004; and".
16.Companies (Administration) Act 1981
In section 11(2)(a) and (4), for "a duly qualified legal practitioner" substitute "an Australian lawyer (within the meaning of the Legal Profession Act 2004)".
Sch. 1
17.Confiscation Act 1997
17.1 In section 3(1), after the definition of "law enforcement agency" insert—
' "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;'.
17.2 In section 143(1)(b), for "private practitioner" substitute "private law practice or private legal practitioner (within the meaning of the Legal Aid Act 1978)".
18.Co-operative Housing Societies Act 1958
In section 71B—
(a)in sub-section (9), for "a duly qualified legal practitioner" substitute "an Australian legal practitioner (within the meaning of the Legal Profession Act 2004)";
(b) in sub-section (10) for "A duly qualified legal practitioner" substitute "An Australian legal practitioner".
19.Co-operatives Act 1996
19.1 In section 346(1)(a), for "solicitors" substitute "legal practitioners".
19.2 In section 388, after the definition of "co-operative venture" insert—
' "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;'.
19.3 In section 393(2)(a), for "solicitor" substitute "legal practitioner".
19.4 In section 403, in paragraph (b) of the definition of "involved person" for "solicitor" substitute "legal practitioner".
19.5 In clause 7(2)(n) of Schedule 4, for "solicitor" substitute "legal practitioner".
Sch. 1
20.Coroners Act 1985
20.1 In section 3(1) before the definition of "child" insert—
' "Australian lawyer" has the same meaning as in the Legal Profession Act 2004;'.
20.2 In section 3(1) the definition of "legal practitioner" is repealed.
20.3 In section 6(1) for "a barrister and solicitor" substitute "an Australian lawyer".
20.4 In section 8 for "barristers and solicitors" substitute "Australian lawyers".
20.5 In sections 45(3), 45(4), 46(2) and 49(1) for "a legal practitioner" substitute "an Australian lawyer".
20.6 In section 49(2) substitute—
(a)for "a legal practitioner" substitute "an Australian lawyer";
(b)for "the legal practitioner" substitute "the lawyer".
21.Corporations (Victoria) Act 1990
21.1 In section 48, for "a barrister or a solicitor, or as both a barrister and a solicitor," substitute "an Australian lawyer (within the meaning of the Legal Profession Act 2004)".
21.2 In section 60(1), in paragraph (b)(i) of the definition of "eligible person" for "solicitor" substitute "lawyer".
22.Corrections Act 1986
22.1 In section 3(1), for the definition of "lawyer" substitute—
' "lawyer" means an Australian lawyer within the meaning of the Legal Profession Act 2004;".
22.2 In section 30I(5), in the definition of "authorised person", for paragraph (e) substitute—
"(e)a lawyer in the course of consulting that lawyer for legal advice;".
22.3 In sections 47(1)(m)(iii) and 47B for "legal practitioner" (wherever occurring) substitute "lawyer".
23.Council of Law Reporting in Victoria Act 1967
23.1 In section 2, for the definition of "RPA" substitute—
' "professional association" has the same meaning as in the Legal Profession Act 2004;'.
23.2 In section 5(1)(c), for "RPA" substitute "professional association".
23.3 In section 7(c) for "RPA" substitute "professional association".
Sch. 1
24.Country Fire Authority Act 1958
In section 74M(1) for "a legal practitioner" substitute "an Australian legal practitioner (within the meaning of the Legal Profession Act 2004)".
25.County Court Act 1958
25.1 In section 3(1), insert the following definitions—
' "Australian lawyer" has the same meaning as in the Legal Profession Act 2004;
"legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;'.
25.2 For section 8(1A)(b) substitute—
"(b)is an Australian lawyer of at least 5 years' standing.".
25.3 For section 17A(3)(b) substitute—
"(b)is an Australian lawyer of at least 5 years' standing.".
25.4 Insert the following heading to section 26—
"Registrar and bailiff to be distinct persons and not to act as legal practitioner".
25.5 In section 34(2), for "Legal Practice Act 1996" substitute "Legal Profession Act 2004".
26.Credit Act 1984
26.1 In section 5(1), after the definition of "land" insert—
' "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;'.
26.2 In sections 47(1)(a), 70(1)(d)(v) and 71(3)(b), clause 1(f)(iii) of Schedule 2 and clause 1(c)(iii) of Schedule 4 omit "duly qualified".
Sch. 1
27.Crimes Act 1958
27.1 In section 2A(1) after the definition of "Juries Commissioner" insert—
'"legal practitioner" means an Australian lawyer within the meaning of the Legal Profession Act 2004;'.
27.2 In section 175(1), in the definition of "agent", for "barrister and solicitor" substitute "legal practitioner".
27.3 In section 464(2), the definition of "legal practitioner" is repealed.
27.4In section 360A(2)(b) and (4)(a), for "private practitioner" substitute "private law practice or private legal practitioner".
27.5After section 360A(6) insert—
'(7)In this section, "private law practice" and "private legal practitioner" have the same meaning as in the Legal Aid Act 1978.'.
27.6In section 397, for "by legal practitioner" substitute "by his or her legal practitioner".
28.Crimes (Criminal Trials) Act 1999
28.1 In section 3 after the definition of "directions hearing" insert—
' "legal practitioner" means an Australian lawyer within the meaning of the Legal Profession Act 2004;'.
28.2 For section 24(3)(b) substitute—
"(b)a party's legal practitioner or, in the case of a legal practitioner who is employed by a law practice (within the meaning of the Legal Profession Act 2004), the law practice.".
28.3 For section 28 substitute—
"28.Complaints about legal practitioners
If, in the court's opinion, a legal practitioner for a party has failed to comply with a requirement of this Act or an order made under this Act, including an order or requirement under section 5, the court may make a complaint about the legal practitioner's conduct to the Legal Service Commissioner under Chapter 4 of the Legal Profession Act 2004.".
29.Crimes (Family Violence) Act 1987
After section 8S insert—
'8T.Definition
In this Part, "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004.'.
Sch. 1
30.Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
In section 3(1), after the definition of "judicial member" insert—
' "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004;'.
31.Crown Proceedings Act 1958
In section 12, for "assign legal practitioners to such person; and the legal practitioners so assigned" substitute "assign Australian legal practitioners (within the meaning of the Legal Profession Act 2004) to such person; and the Australian legal practitioners so assigned".
32.Dangerous Goods Act 1985
After section 43(4) insert—
'(5) In this section, "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004.'.
33.Dental Practice Act 1999
In section 3, for the definition of "lawyer" substitute—
'"lawyer" means an Australian lawyer within the meaning of the Legal Profession Act 2004;'.
34.DomesticBuilding Contracts Act 1995
For section 34(4)(b) substitute—
"(b) the building owner received independent advice from an Australian legal practitioner (within the meaning of the Legal Profession Act 2004) concerning the contract before entering into the contract.".
35.Electoral Act 2002
For section 128 substitute—
'128.Legal representation
(1)A party to a petition must not be represented by an Australian legal practitioner unless—
(a)all the parties consent to the party being represented by an Australian legal practitioner; or