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Legal Profession and Public Notaries
Amendment Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill makes a number of amendments to the Legal Profession Act 2004
that are intended to commence prior to the expected repeal of the Act and its
replacement with the nationally uniform Legal Profession National Law
developed under the auspices of the Council of Australian Governments.
The key amendment will enable corporate legal practitioners (in-house
counsel) to engage in legal practice on a pro bono basis outside of a
community legal centre, subject to a requirement to be covered by
appropriate professional indemnity insurance on terms and conditions
approved by the Legal Services Board.
The Bill also amends the Public Notaries Act 2001 to clarify that an
applicant for appointment as a public notary in Victoria must satisfy the
Board of Examiners that he or she is a fit and proper person for appointment.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill.
Clause 2 provides for the commencement of the Bill. The Bill comes into
operation on a day or days to be proclaimed. If the Bill does not
come into operation prior to 1 February 2013, it comes into
operation on that day.
571205 1 BILL LA INTRODUCTION 29/2/2012
PART 2--AMENDMENTS TO THE LEGAL PROFESSION
ACT 2004
Clause 3 substitutes a new definition of corporate legal practitioner in
section 1.2.1 of the Legal Profession Act 2004. The substituted
definition restates that a corporate legal practitioner means an
Australian legal practitioner who engages in legal practice as an
employee of a person who, or body that, is not an Australian
legal practitioner, or an Australian-registered foreign lawyer, or a
law practice.
The element of the existing definition that provides that a
corporate legal practitioner may only provide legal services to,
and for the purposes of, his or her employer, will be moved to
section 2.4.3 by clause 4 so that this restriction is located with the
provisions that qualify it in relation to volunteering at community
legal centres and engaging in other legal practice on a pro bono
basis.
Clause 4 inserts new subsections (5A) and (5B) into section 2.4.3 of the
Legal Profession Act 2004.
New subsection (5A) provides that a local legal practitioner
whose practising certificate is subject to the condition that they
are authorised to engage in legal practice as a corporate legal
practitioner must provide legal services only to, and for the
purposes of, his or her employer. This restriction is presently
included in the definition of corporate legal practitioner.
The restriction imposed by new subsection (5A) is qualified
by new subsection (5B), which provides that a local legal
practitioner whose practising certificate is subject to the
condition that they are authorised to engage in legal practice as a
corporate legal practitioner may also engage in legal practice as a
volunteer at a community legal centre, as is provided for under
existing section 2.4.3(6), and otherwise on a pro bono basis.
The amendments made by this clause relate exclusively to local
legal practitioners whose practising certificates are subject to the
condition that they are authorised to engage in legal practice as a
corporate legal practitioner. The practising entitlements of local
legal practitioners that hold practising certificates subject to the
other conditions set out in section 2.4.3(3) are unaffected.
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Clause 5 inserts a new section 3.5.4A into the Legal Profession Act 2004
to require that corporate legal practitioners engaging in legal
practice on a pro bono basis in Victoria are covered by
professional indemnity insurance on terms and conditions
approved by the Legal Services Board. This insurance must
cover the civil liability of the corporate legal practitioner and any
related administration of trusts.
Clause 6 inserts a new paragraph (ba) into section 3.5.6(2) of the Legal
Profession Act 2004, requiring the Legal Practitioners' Liability
Committee to consider (amongst other existing considerations)
the revenues of law practices when determining premiums and
excesses in relation to contracts of professional indemnity
insurance.
The list of matters set out in section 3.5.6 that the Legal
Practitioners' Liability Committee must consider when
determining premiums and excesses is not exhaustive of the
matters that the Liability Committee may consider. However, the
inclusion of this additional ground clarifies that the Legal
Practitioners' Liability Committee is authorised to consider the
revenues of law practices when determining premiums and
excesses, in accordance with prevailing industry practice.
The clause also substitutes the existing section 3.5.6(2)(e) of the
Legal Profession Act 2004, which provides that the Legal
Practitioners' Liability Committee, when determining premiums
and excesses in relation to contracts of professional indemnity
insurance, must consider the cost and difficulty of
differentiating between different classes of law practices.
The new section 3.5.6(2)(e) will align with the wording of
section 3.5.6(2)(a), and will oblige the Legal Practitioners'
Liability Committee to consider the cost and difficulty of
differentiating between the different types of legal practices of
law practices, and the cost and difficulty of differentiating
between the different types of matters handled by law practices.
Clause 7 inserts a new subsection (3) into section 3.5.7 of the Legal
Profession Act 2004 to authorise the Legal Services Board to
exempt corporate legal practitioners (or a class of corporate legal
practitioners) from the requirement, under new section 3.5.4A,
as inserted by clause 5, to be covered by professional indemnity
insurance when engaging in legal practice on a pro bono basis.
Such a power already exists in respect of law practices,
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community legal centres, and Australian-registered foreign
lawyers, which are the types of entity presently required to obtain
and maintain professional indemnity insurance when engaging in
legal practice.
Clause 8 substitutes a new paragraph (f) of section 4.2.10(1) of the Legal
Profession Act 2004 to authorise the Legal Services
Commissioner to summarily dismiss a disciplinary complaint in
circumstances where the Commissioner, having considered the
complaint, forms the view that it is not in the public interest to
investigate the complaint because the subject of the complaint is
an Australian legal practitioner whose name has been removed
from the local roll.
Removal from the local roll is the ultimate disciplinary sanction
that may be applied to a practitioner, and the Commissioner may
therefore consider that further action in respect of the same
practitioner is unwarranted given the public resources that must
be expended to pursue such action.
The existing ground of summary dismissal, where the
Commissioner, having considered the complaint, forms the view
that the complaint requires no further investigation, is retained.
Clause 9 amends section 4.4.12(1) of the Legal Profession Act 2004 to
clarify that the obligation of the Legal Services Commissioner
to conduct an investigation expeditiously, is subject to the new
section 4.4.12A, which authorises the Legal Services
Commissioner to suspend an investigation where proceedings
to have the practitioner removed from the local roll have
commenced.
Clause 10 inserts new sections 4.4.12A, 4.4.12B and 4.4.12C into the Legal
Profession Act 2004.
New section 4.4.12A authorises the Legal Services
Commissioner to suspend an investigation into a complaint in
circumstances where the Commissioner considers it is in the
public interest to do so, because either an application has been
made to the Supreme Court for an order that the name of the
practitioner complained of be removed from the local roll, or an
application has been made to VCAT for an order recommending
to the Supreme Court that the name of the practitioner
complained of be removed from the local roll.
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The Legal Services Commissioner may resume a suspended
investigation at any time, and must resume a suspended
investigation if the application to the Supreme Court or VCAT
is unsuccessful.
New section 4.4.12B empowers the Legal Services
Commissioner to take no further action in relation to an
investigation if he or she forms the view that it is in the public
interest to do so because the practitioner's name has been
removed from the local roll.
New section 4.4.12C requires the Legal Services Commissioner
to notify the complainant and the practitioner that is the subject
of the complaint of a decision to suspend, resume or take no
further action in relation to an investigation. Existing section
4.2.10(2) of the Legal Profession Act 2004 would require the
Commissioner to notify a complainant if their complaint is
summarily dismissed under the new ground inserted by clause 8.
Clause 11 substitutes paragraph (g) of section 6.2.19(2) of the Legal
Profession Act 2004, to permit the Legal Services Board to
delegate specific functions under sections 3.5.3, 3.5.4, 3.5.4A(1)
and 3.5.7 of the Act.
Section 6.2.19(2) sets out functions that cannot be delegated
by the Board under the general delegation power in section
6.2.19(1). Paragraph (g) provides that setting professional
indemnity insurance requirements under Part 3.5 of the Legal
Profession Act 2004 is a non-delegable function, other than in
respect of the following--
· paragraph (g)(i) provides that the Board may delegate
its powers under sections 3.5.3, 3.5.4(1), 3.5.4(2), and
3.5.4A(1) (as inserted by clause 5), to approve the terms
and conditions of professional indemnity insurance
obtained, maintained, or covering Australian-registered
foreign lawyers, community legal centres and corporate
legal practitioners engaging in legal practice on a pro
bono basis;
· paragraph (g)(ii) provides that the Board may delegate
its function, under section 3.5.7 of the Legal Profession
Act 2004, of exempting individual law practices from
the requirement to obtain professional indemnity
insurance from, or maintain professional indemnity
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insurance with, the Legal Practitioners' Liability
Committee.
Other functions in section 3.5.7, relating to, for example,
exemptions from the general requirement to obtain or maintain
professional indemnity insurance (rather than from the specific
requirement to obtain or maintain insurance with the Legal
Practitioners' Liability Committee) and issuing exemptions to
classes of law practice or community legal centre, are to remain
non-delegable.
Clause 12 removes the legislative obligation on the Legal Services Board to
report on whether it performed all of its legislative functions in
the reporting year, on the basis that this reporting obligation is
onerous and unnecessary.
Clause 13 adds judicial education as a purpose for which the Legal Services
Board may grant money from the Distribution Account of the
Public Purpose Fund, with the approval of the Attorney-General.
Clause 14 inserts transitional provisions to provide that the sections of the
Legal Profession Act 2004 amended by clauses 8, 9 and 10 of
the Bill apply to a disciplinary complaint or an investigation
made or commenced before, on, or after the day on which those
clauses come into operation.
Clause 15 makes a number of statute law revisions to correct minor
technical errors or to repeal unnecessary provisions in the Legal
Profession Act 2004.
Section 3.4.44B is amended to omit the superfluous word
"Victorian" before "Costs Court".
Sections 5.3.1(3), 5.4.1(3), 5.5.1(5) and 7.2.6(a) are amended to
substitute references to "employee of the Board" with references
to "employee referred to in section 6.4.1", reflecting that
employees appointed for the purposes of the Board are employed
by the Legal Services Commissioner under section 6.4.1.
Corresponding amendments are made to notes at the foot of each
of sections 5.3.1(4)(e), 5.4.1(4)(e) and 5.5.1(6)(d).
Section 6.2.19(2)(h) and Part 9 of Schedule 2 are repealed, as
they are redundant following the earlier repeal of Part 7.1, to
which they relate.
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Section 6.6.11(4)(c) is amended to correct the use of an incorrect
term: "incorporated legal practice" is substituted for
"incorporated practitioner".
Section 6.7.24(2)(d) is amended to correct an incorrect
cross-reference.
PART 3--AMENDMENTS TO THE PUBLIC NOTARIES
ACT 2001
Clause 16 inserts a new statutory ground of eligibility for appointment as a
public notary into section 4 of the Public Notaries Act 2001,
providing that in order to be eligible for appointment as a public
notary a person must satisfy the Board of Examiners that they are
a fit and proper person for appointment.
Clause 17 amends section 5 of the Public Notaries Act 2001 to indicate the
types of matters the Board of Examiners must have regard to
when assessing the fitness and propriety of an applicant for
appointment--
· whether the applicant has ever been suspended from
legal practice;
· whether the applicant has been found guilty of
unsatisfactory professional conduct or professional
misconduct, as defined by the Legal Profession Act
2004, or under a corresponding law;
· whether the applicant is subject to any outstanding
disciplinary complaints within the meaning of the Legal
Profession Act 2004 or a corresponding law.
Clause 18 inserts a transitional provision providing that the amendments
made by clauses 16 and 17 apply only in respect of a person who
applies for a certificate of eligibility after the commencement of
those clauses.
PART 4--REPEAL OF AMENDING ACT
Clause 19 provides for the automatic repeal of the Bill on 1 February 2014.
The repeal of the Bill does not affect in any way the operation of
the amendments made by the Bill (see section 15(1) of the
Interpretation of Legislation Act 1984).
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