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Legal Profession (Consequential Amendments)
Bill
As Sent Print
EXPLANATORY MEMORANDUM
General
In general terms, this Act makes the numerous consequential amendments
necessary as a result of the passage of the Legal Profession Act 2004 (the
"Principal Act").
In broad terms, the Principal Act seeks to implement a new regulatory
framework for the legal profession while simultaneously implementing
national model provisions. The Principal Act abolishes the Legal Practice
Board, the office of the Legal Ombudsman and the Legal Profession Tribunal
and establishes new bodies responsible for regulating the legal profession in
Victoria. The Principal Act also introduces numerous changes in
terminology.
This Act amends numerous Acts to incorporate the new regulatory
framework and those changes in terminology arising from the Principal Act.
This Act also introduces--
· a number of minor technical amendments which are necessary
to correct typographical errors and incorrect cross-referencing;
· changes to the Principal Act which have arisen from
amendments to the Standing Committee of Attorneys-General
national model provisions, and so require adoption at a local
level;
· a small number of amendments to the Principal Act which raise
issues of policy.
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551266 BILL LA AS SENT 4/5/2005
Clause Notes
Clause 1 sets out the purposes of the Act, being to amend the Legal
Profession Act 2004 and to amend other Acts as a result of the
passage of the Legal Profession Act 2004.
Clause 2 sets out the commencement of the Act, being a day or days to be
proclaimed, with a default commencement of 1 January 2006.
Clause 3 provides that the references in the Legal Profession
(Consequential Amendments) Act 2004 to the "Principal Act"
mean the Legal Profession Act 2004.
Clause 4 amends the definition of "admission to the legal profession" in
section 1.2.1 of the Principal Act and inserts new definitions of
"affairs" and "grant" in this section.
Clause 5 repeals section 2.4.8(9) of the Principal Act, which provided that
a contravention of the section was capable of constituting
unsatisfactory professional conduct or professional misconduct.
Section 4.4.4(a) of the Principal Act already provides that
conduct consisting of a contravention of the Principal Act, the
regulations or the legal profession rules is capable of constituting
unsatisfactory professional conduct or professional misconduct.
Clause 6 inserts a new section 2.4.9(4A) in the Principal Act to specify
that no fee or surcharge is payable for a local practising
certificate that is issued authorising someone to engage in legal
practice as a volunteer at a community legal centre.
Clause 7 amends section 2.4.14(1)(a) of the Principal Act by inserting the
words "or renewed" to provide that the Board may impose
conditions on a local practising certificate when it is granted or
renewed, or during its currency.
Clause 8 repeals 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. These sections provided that a contravention of
the section was capable of constituting unsatisfactory
professional conduct or professional misconduct. However, as
mentioned in clause 5, section 4.4.4(a) of the Principal Act
already provides that conduct consisting of a contravention of the
Principal Act, the regulations or the legal profession rules is
capable of constituting unsatisfactory professional conduct or
professional misconduct.
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Clause 9 Sub-clause (1) amends the definition of "local registration
certificate" in section 2.8.2 of the Principal Act.
Sub-clause (2) inserts a new section 2.8.14(2) in the Principal Act
to provide that regulations may be made to allow the Board to
determine from time to time classes of Australian-registered
foreign lawyers required to contribute to the Fidelity Fund, as
well as the contributions and levies payable by those classes, and
the time and manner of payment.
Sub-clause (3) makes a number of minor and technical
amendments to sections of the Principal Act that relate to
Australian-registered foreign lawyers.
Clause 10 Paragraph (a) substitutes a new section 3.4.9(1)(c) for section
3.4.9(1)(c) and (d) of the Principal Act to provide that one of the
things that a law practice must disclose to a client in respect of
costs is an estimate of the total legal costs. If this is not
reasonably practicable to do, the law practice must disclose a
range of estimates of the total legal costs and an explanation of
the major variables that will affect the calculation of those costs.
Paragraph (b) amends section 3.4.10(1) of the Principal Act as a
result of the substitution of the new section 3.4.9(1)(c). By this
amendment, section 3.4.10(1) will no longer refer to section
3.4.9(a), (c), (d) and (e) but to section 3.4.9(1)(a), (c) and (e).
Clause 11 inserts a new section 3.4.41(2) in the Principal Act to provide that
if the Taxing Master determines to deal with an application by a
client for costs review that has been made out of time, any
proceedings that have already been commenced by a law practice
for recovery of those legal costs must be stayed pending the
completion of the review.
Clause 12 Paragraph (a) amends section 4.4.17(c) of the Principal Act by
substituting "granted" for "issued" to provide that the Tribunal
may make an order that a local practising certificate not be
granted before the end of a specified period.
Paragraph (b) amends paragraph (b)(iii) of the definition of
"disciplinary action" in section 4.4.25 of the Principal Act to
provide that the definition includes the refusal to grant an
Australian practising certificate following a finding by a court or
tribunal of professional misconduct by an Australian legal
practitioner.
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Clause 13 Paragraph (a) amends paragraph (a) of the definition of
"regulated property" in section 5.1.2 of the Principal Act by
inserting the words "or trust property" so that the definition
includes trust money or trust property received, receivable or
held by a law practice.
Paragraph (b) amends section 5.2.1(d) of the Principal Act.
Paragraph (b)(i) inserts the words "or an associate of the practice"
in order to apply the section to both a law practice and an
associate of a law practice. Paragraph (b)(ii) inserts the words
"or legal profession rules" in sub-paragraph (v) to allow external
intervention to take place where the Board forms a belief on
reasonable grounds that the practice or an associate of the
practice is in contravention of the regulations or legal profession
rules with the result that the record-keeping for the practice's trust
account is inadequate.
Clause 14 substitutes a new section 6.2.9(4) in the Principal Act to provide
that an appointed member of the Board holds office for a term
not exceeding 4 years from the date of appointment and is
eligible for re-appointment.
Clause 15 inserts a new section 6.3.12(2)(ab) in the Principal Act to provide
that the Commissioner cannot delegate a function under section
4.4.13 of the Principal Act, other than the function of applying to
the Tribunal for an order under Division 4 of Part 4.4.
Clause 16 Sub-clause (1) inserts a new section 6.7.10(1A) in the Principal
Act to allow the Attorney-General to direct the Board to pay an
amount out of the Distribution Account of the Public Purpose
Fund to the Victorian Law Reform Commission each financial
year.
Sub-clause (2) amends section 6.7.10(3) and section 6.7.11(1)
and (2) to correct cross-references to other sections.
Clause 17 Sub-clause (1) amends clause 2.2(4) of Schedule 2 to the
Principal Act as a consequence of the insertion of section
2.4.9(4A) in the Principal Act.
Sub-clause (2) inserts a new clause 2.2(4A) to provide that clause
2.2(4) does not apply to a local practising certificate that is issued
authorising someone to engage in legal practice as a volunteer at
a community legal centre.
Sub-clause (3) repeals clause 3.2 of Schedule 2 to the Principal
Act. Clause 3.2 is unnecessary because the matters dealt with in
it are already covered by clause 3.1.
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Sub-clause (3) also amends clause 8.20(4) of Schedule 2 to the
Principal Act by inserting "or (5)" in order to provide that if the
Attorney-General has given a direction under section 383(2) or
under section 383(5) of the 1996 Act and that direction has not
been complied with before the commencement day of the new
Act, the direction continues in force and the new Board must pay
that money as directed out of the Public Purpose Fund and debit
the new Distribution Account.
Clause 18 provides for the Acts listed in Schedule 1 to be amended as set
out in that Schedule.
Clause 19 makes a number of minor amendments to the Principal Act to
correct grammatical, typographical errors and referencing errors.
SCHEDULE 1
This Schedule amends a number of Acts as a consequence of the abolition of
the Legal Practice Board, Legal Ombudsman, and Legal Profession Tribunal.
Amendments have been made to the Acts referred to in this Schedule to
remove references to these bodies and to include references to the new
regulatory bodies established by the Principal Act. A number of changes in
terminology have also been introduced under the Principal Act, and as a
result, references to terms such as "solicitor" must be removed, and be
replaced with references to "Australian lawyer" or "Australian legal
practitioner", as appropriate.
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