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Legal Profession Amendment
(Education) Bill 2007
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill seeks to amend the Legal Profession Act 2004.
The Legal Profession Act 2004 commenced operation on 12 December
2005.
This Bill seeks to amend the Legal Profession Act 2004 to modernise the
statutory bodies that oversee admission to the legal profession in Victoria.
The Bill also amends the powers and procedures used by these bodies in
assessing applications and deciding on whether a person is a fit and proper
person for admission to the legal profession. In addition, it makes some
amendments to the regulatory powers of the Legal Services Board and the
Legal Services Commissioner.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of this amending Act. The main purpose is
to amend the Legal Profession Act 2004 with respect to the
educational and other requirements for admission to the legal
profession in Victoria. This includes reform of the statutory
bodies that oversee admission to the legal profession in Victoria.
The purpose is also to make other miscellaneous amendments.
Clause 2 provides for the commencement of the amendments contained in
this Act. Apart from Part 2, the Act comes into operation on the
day after it receives Royal Assent. Part 2 commences on 1 July
2008.
Clause 3 clarifies that in this Act, the Legal Profession Act 2004 is
referred to as the Principal Act.
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PART 2--EDUCATION AND ADMISSION AMENDMENTS
Clause 4 amends section 2.3.2 of the Principal Act to allow the Council of
Legal Education to charge an overseas-qualified applicant for
admission the reasonable costs of assessing their qualifications.
It also amends section 2.3.3 of the Principal Act to allow the
Board of Examiners to consider, as part of the range of suitability
matters considered for all applicants for admission to the legal
profession, whether any disciplinary action has been taken
against the applicant while the applicant was in education or
training to qualify for admission. The amendments require
education or training bodies to provide reports about disciplinary
action to the Board of Examiners and the applicant to pay for
these reports to be provided.
Clause 5 amends section 2.3.12 of the Principal Act to--
· allow the Council to make procedural rules for
admission;
· allow the admission rules to require police checks to be
supplied by applicants for admission.
Clause 6 substitutes section 2.5.1 of the Principal Act to amend the
purpose of Part 2.5 of the Principal Act. The purpose of that Part
is now to include that the Board of Examiners may require health
assessments of applicants for admission in order to inform their
decision as to whether the applicant is suitable for admission,
similar to provisions already allowing the Legal Services Board
to require health assessments for legal practitioners.
Clause 7 amends sections 2.5.2, 2.5.4, 2.5.5, 2.5.6, 2.5.7, 2.5.8 and 2.5.9 of
the Principal Act to include the Board of Examiners in the health
assessment provisions.
Clause 8 inserts section 2.5.10 in the Principal Act to provide that the
Board of Examiners must not disclose any health assessment
reports or information in a health assessment report unless
disclosure is permitted under the Principal Act, or the person who
is the subject of the health assessment consents to the disclosure,
or the disclosure is otherwise permitted by law.
Clause 9 amends section 6.5.1 of the Principal Act to reform the
membership of the Council of Legal Education. The members
will be the Chief Justice, the Chair of the Legal Services Board,
3 Supreme Court judges nominated by the Chief Justice, 2 people
nominated by the Victorian Bar, 3 people nominated by the Law
Institute of Victoria, 2 people with experience of the provision of
legal education nominated by the Attorney-General and 3 people
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representing the Victorian tertiary education institutions that
provide law courses. Amendments are also made to the
appointment process so that members of the Council of Legal
Education are to be appointed by the Governor in Council.
Clause 10 inserts a new section 6.5.1A into the Principal Act to deal with
the rotation every 2 years of the members representing Victorian
tertiary education institutions that provide law courses.
The section also provides that if a member representing a tertiary
institution ceases to be a member during their term, the tertiary
institution they represented may nominate an alternative member
for the remainder of the 2 year term.
Clause 11 amends section 6.5.4 of the Principal Act to make consequential
amendments to arrangements for chairing meetings of the
Council of Legal Education, the quorum for meetings and the
circulation of paperwork to representatives of Victorian tertiary
institutions that provide law courses who are off-rotation.
Clause 12 substitutes new sections for sections 6.5.5 and 6.5.6 of the
Principal Act. Section 6.5.5 allows the Chief Justice to appoint a
deputy chairperson. Section 6.5.6 allows the Council of Legal
Education to engage consultants.
Clause 13 amends section 6.5.7 of the Principal Act to allow the Council of
Legal Education to appoint non-members with experience of the
provision of legal education or training to a committee of the
Council of Legal Education.
Clause 14 amends section 6.5.9 of the Principal Act to change the
composition of the Board of Examiners. The amendments
require the chairperson to be a former judge of any Australian
superior court, together with 6 local legal practitioners.
The amendments include selection criteria to be used for
selecting the chairperson and the other members.
The appointments are to be made by the Governor in Council.
The clause also amends sections 6.5.11 and 6.5.12 of the
Principal Act to set out the removal process of members by the
Governor in Council and for the chairperson to be able to resign
his or her office by notifying the Governor in Council in writing.
The clause also repeals section 6.5.13 of the Principal Act as the
chairperson will no longer be elected. Section 6.5.14 of the
Principal Act is also amended to clarify that a quorum for a
meeting of the Board of Examiners is to be 4 members.
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Clause 15 substitutes section 6.5.15 of the Principal Act to allow the Board
of Examiners to hold special hearings into an applicant for
admission if the Board of Examiners is aware of anything that
may affect the applicant's eligibility or suitability for admission.
The criteria for eligibility are set out in section 2.3.2 of the
Principal Act. Suitability matters are set out in section 1.2.6 of
the Principal Act.
Clause 16 substitutes the heading to section 6.5.16 of the Principal Act as a
consequence of the change in composition of the Board of
Examiners.
Clause 17 substitutes section 6.5.17 of, and inserts a new section 6.5.17A
into, the Principal Act. Section 6.5.17 allows the Board of
Examiners to engage consultants. Section 6.5.17A allows the
Board of Examiners to delegate functions to the members of a
committee.
Clause 18 inserts a new Division 3 into Part 6.5 of the Principal Act.
This is a general provision to allow staff of the Council of Legal
Education or the Board of Examiners to be employed under the
Public Administration Act 2004.
PART 3--OTHER AMENDMENTS
Clause 19 inserts a definition of GST into section 1.2.1 of the Principal Act.
This is necessary due to the amendment made to section 3.4.12 in
clause 23. The clause also changes the word "infirmity" to
"impairment" in the suitability matters in section 1.2.6 of the
Principal Act.
Clause 20 inserts a new section 2.4.42 into the Principal Act. This section
sets out the procedure to be followed if the Legal Services Board
is of the opinion that it is necessary to have a local lawyer struck
off the roll of the Supreme Court if a local lawyer's interstate
practising certificate has been cancelled or a local lawyer has
been found guilty of an offence anywhere in Australia.
The section gives the Legal Services Board standing to make
the application, requires the Legal Services Board to notify the
lawyer of the application and gives the lawyer the right to be
heard at the Supreme Court on the application. The section
supplements the Supreme Court's inherent jurisdiction to
discipline lawyers on the roll.
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Clause 21 amends sections 2.5.4(1) and 2.5.6(2) of the Principal Act to
change the word "infirmity" to "impairment" in these sections.
This matches amendments made by clause 7.
Clause 22 amends section 3.2.13 of the Principal Act to remove the current
requirement that the Attorney-General specify where notice of
proposed legal profession rules be published. The Legal Services
Board, which also has responsibility for approving legal
profession rules in Victoria, will now be able to specify this.
Clause 23 makes amendments required to further conform to the National
Model Legal Profession Bill. First, it amends section 3.4.9 of the
Principal Act to allow for regulations to be made prescribing
forms and for fact sheets to be made by the Legal Services
Commissioner to comply with the costs disclosure obligations
under this section. The clause also amends section 3.4.12 to
clarify that the $750 threshold for the requirement to follow costs
disclosure procedures is exclusive of GST. The clause also
amends section 3.4.35 of the Principal Act to allow for
regulations to be made prescribing forms and for fact sheets to be
made by the Legal Services Commissioner to comply with the
obligations to inform clients about their rights to challenge costs
charged by a legal practitioner pursuant to this section.
Clause 24 amends section 4.3.4 of the Principal Act to allow the Legal
Services Commissioner to release costs lodged with the Legal
Services Commissioner to a law practice if a complainant fails to
attend mediation.
Clause 25 inserts a new section 4.3.5A into the Principal Act to allow
settlement agreements certified by the Legal Services
Commissioner to be lodged at the Magistrates' Court so that they
can be enforced as orders of that court.
Clause 26 inserts a new Part 13 into Schedule 2 of the Principal Act to
specify that current members of the Council of Legal Education
and the Board of Examiners go out of office on 1 July 2008
unless appointed under the new provisions. The Part also
provides that health assessments can only be required for
applicants for admission who apply on or after 1 July 2008.
Clause 27 amends the heading in section 2.8.25 of the Principal Act due to a
typographical error in the Legal Profession Amendment Act
2007. The word "of" is changed to "or".
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PART 4--REPEAL OF AMENDING ACT
Clause 28 provides for the automatic repeal of this amending Act on the
first anniversary of its forced commencement. As suggested by
the Scrutiny of Acts and Regulations Committee, all amending
Acts now contain an automatic repeal provision, which will save
the time and expense of having to repeal amending Acts in statute
law revision Bills. The repeal of this Act does not affect in any
way the operation of the amendments made by this Act (see
section 15(1) of the Interpretation of Legislation Act 1984).
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