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Legal Profession Uniform Law
Application Amendment Bill 2015
Amended Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purpose of the Bill which is to make a range of minor
and technical amendments to the Legal Profession Uniform
Law Application Act 2014, including a number of amendments
to the Legal Profession Uniform Law (Uniform Law) set out in
Schedule 1 to that Act.
Clause 2 provides for the Bill to come into operation on the day after the
day on which it receives the Royal Assent.
Clause 3 provides that in the Bill, the Legal Profession Uniform Law
Application Act 2014 is called the Principal Act.
Part 2--Legal Profession Uniform Law Application Act 2014
amended
Clause 4 makes a typographical amendment to the definition of Legal
Profession Uniform Framework in section 3(1) of the Principal
Act.
Clause 5 inserts a new section 9A of the Principal Act, which provides that
the Legal Profession Uniform Law (Victoria) (that is, the Legal
Profession Uniform Law as it is applied in Victoria) applies as if
for the definition of law firm there were substituted an extended
definition. The extended definition is the same as the definition
of law firm under section 1.2.1 of the Legal Profession Act
2004.
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The extended definition of law firm includes the existing limbs
of the definition in the Uniform Law, which provide that a law
firm is a partnership consisting only of Australian legal
practitioners, or one or more Australian legal practitioners and
one or more Australian-registered foreign lawyers. In addition to
these limbs, the extended definition provides that a law firm may
be a partnership in which one or more incorporated legal
practices is a partner. Accordingly, the extended definition
provides that a law firm is a partnership consisting only of--
· Australian legal practitioners; or
· one or more Australian legal practitioners and one or
more Australian-registered foreign lawyers; or
· incorporated legal practices; or
· one or more incorporated legal practices and one or
more Australian legal practitioners; or
· one or more incorporated legal practices and one or
more Australian-registered foreign lawyers; or
· one or more incorporated legal practices, one or more
Australian legal practitioners and one or more
Australian-registered foreign lawyers.
Subsection (2) of new section 9A provides that, for the purposes
of the Principal Act and the Legal Profession Uniform Law
(Victoria), a principal of a law practice that is referred to in one
of the additional categories of partnership in the extended
definition of law firm includes a principal of one of the
incorporated legal practices that forms part of the partnership.
Clause 6 substitutes section 10(1) of the Principal Act. That section sets
out in a table each person or body that is a designated local
regulatory authority for the purposes of each specified provision
of the Uniform Law in which that term is used.
The new table includes item numbers to assist reference.
The new table provides that the Victorian Legal Admissions
Board is a designated local regulatory authority in respect of
section 436(1) of the Uniform Law (item 12 in the table), which
deals with the power to enter into arrangements with Australian
or foreign authorities or courts for exchanging information.
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The new table also provides that the Victorian Legal Services
Board and Commissioner are designated local regulatory
authorities in respect of section 437 of the Uniform Law (item 14
in the table), which deals with the power to share information
with foreign authorities on an ad hoc basis.
Clause 5 also substitutes section 10(3) of the Principal Act.
That section sets out in a table each body that is a designated
tribunal for the purposes of each specified provision of the
Uniform Law in which that term is used. The new table includes
item numbers to assist reference.
Clause 7 inserts a new section 18A into the Principal Act, to provide that
Part 3 of Schedule 4 to the Uniform Law, which sets out
particular savings and transitional provisions, applies in Victoria.
Clause 10 of Schedule 4 to the Uniform Law provides that
Part 3 of Schedule 4 applies in relation to a jurisdiction only if
and to the extent legislation of that jurisdiction so provides.
New section 18A will provide that Part 3 of Schedule 4 applies in
its entirety in Victoria, except to the extent of any inconsistency
with Victorian legislation, in which case the Victorian legislation
will prevail (see clause 10(2) of Schedule 4).
Clause 8 makes a typographical amendment to section 158 of the Principal
Act. That section inserts a definition of Australian legal
practitioner into section 38 of the Interpretation of Legislation
Act 1984.
Clause 9 amends section 163(1) and (2) of the Principal Act to reflect that
that section is in a Part of the Principal Act and not in a Schedule.
Clause 10 makes a typographical amendment to section 176 of the Principal
Act to ensure that the Victorian Legal Services Board is correctly
referenced.
Clause 11 repeals items 1.1 and 1.3 of Schedule 2 to the Principal Act.
These items made consequential amendments to legislation that
has subsequently been repealed.
Clause 12 repeals items 20 and 50 of Schedule 2 to the Principal Act.
These items made consequential amendments to legislation that
has subsequently been repealed.
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Clause 13 makes a typographical amendment to item 55.5 of Schedule 2 to
the Principal Act to ensure that an amendment made by that item
to the Legal Aid Act 1978 is correct.
Clause 14 repeals items 62 and 72 of Schedule 2 to the Principal Act.
These items made consequential amendments to legislation that
has subsequently been repealed.
Clause 15 substitutes item 93.2, and repeals item 93.3, of Schedule 2 to the
Principal Act.
Items 93.2 and 93.3 amend existing provisions of the Supreme
Court Act 1986 that confer jurisdiction on the Costs Court to
conduct costs assessments under the Legal Profession Act 2004
and costs reviews under the (repealed) Legal Practice Act 1996
to confer jurisdiction on the Costs Court to conduct costs
assessment under the Uniform Law.
The amendment clarifies that, in addition to jurisdiction to
conduct costs assessments under the Uniform Law, the Costs
Court continues to have jurisdiction to conduct costs assessments
under the Legal Profession Act 2004 and costs reviews under
the Legal Practice Act 1996.
Clause 16 amends item 111 of Schedule 2 to the Principal Act, to delete a
reference to a repealed provision of the Wills Act 1997.
Part 3--Legal Profession Uniform Law amended
Clause 17 provides that in Part 3 of the Bill, the Legal Profession Uniform
Law is called the Uniform Law.
Clause 18 makes typographical amendments to certain definitions in
section 6(1) of the Uniform Law. It also repeals the note at the
foot of the definition of Standing Committee. This note is
redundant as a consequence of the repeal made by clause 27.
Clause 19 makes a typographical amendment to section 144(2)(c)(i) of the
Uniform Law.
Clause 20 amends section 174 of the Uniform Law to clarify the use of the
term total legal costs. Section 174(9) currently provides that, for
the purposes of section 174, the total legal costs in a matter do
not include GST or disbursements.
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In order to aid interpretation, the amendments repeal
section 174(9) and insert, after references to "total legal costs in
a matter" in section 174(4) and (5), the qualification "(excluding
GST and disbursements)". Similarly, in section 174(7) and (8),
two references to "the legal costs" are replaced with references
to "the total legal costs (excluding GST and disbursements)".
The introduction of the qualification "(excluding GST and
disbursements)" into the body of the relevant provisions will
assist to clarify the meaning of "total legal costs", given that it
incorporates the term "legal costs", which is defined in
section 6(1) to include disbursements.
The repeal of section 174(9) also provides that the qualification
that total legal costs in a matter do not include GST or
disbursements will no longer apply to section 174(1), the main
disclosure requirement.
Clause 21 repeals the note at the foot of section 392(3) of the Uniform Law.
The note refers to clause 6 of Schedule 4 to the Uniform Law,
which is repealed by clause 27.
Clause 22 repeals the note at the foot of section 395(4) of the Uniform Law.
The note refers to clause 7 of Schedule 4 to the Uniform Law,
which is repealed by clause 27.
Clause 23 amends section 426(3)(b) of the Uniform Law, which deals with
public consultation on draft Admission Rules. The amendment
will remove the requirement for the Admissions Committee to
invite written submissions on draft Admission Rules to be made
to the Law Council of Australia or Australian Bar Association or
both (as the case requires). The Admissions Committee will
continue to be required to invite written submissions to be made
to the Committee itself.
Clause 24 makes a typographical amendment to section 443 of the Uniform
Law.
Clause 25 repeals clause 3(2) of Schedule 1 to the Uniform Law.
Clause 3(2) provides that for the first operational term of the
Legal Services Council, a member may be appointed for
18 months, instead of for an operational term of the Council of
three years under clause 3(1) (the period of an operational term of
the Council is defined at section 395(4) of the Uniform Law).
Clause 3(2) is made redundant by the repeal of clause 7 of
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Schedule 4 to the Uniform Law, which defines "first operational
term of the Council", by clause 27 of the Bill.
Clause 26 makes amendments to clause 4(1) of Schedule 1 to the Uniform
Law, dealing with the diversity of membership of the Legal
Services Council, to omit references to the "first operational term
of the Council". These amendments are consequential to the
repeal of clause 7 of Schedule 4 to the Uniform Law, which
defines "first operational term of the Council".
Clause 27 inserts a new clause 17 into Schedule 3 of the Uniform Law,
which provides that a "relevant person" within the meaning of
section 439 of the Uniform Law may disclose information
obtained in the administration of the Uniform Law or the
Legal Profession Uniform Rules to a person or body in a
non-participating jurisdiction in relation to a function of that
person or body under a corresponding law. This allows persons
or bodies performing regulatory functions in participating
jurisdictions to share information with counterparts in non-
participating jurisdictions in the same way as they are allowed to
with counterparts in participating jurisdictions.
Under section 6(1) of the Uniform Law--
· non-participating jurisdiction means an Australian
State or Territory in which the Uniform Law does not
apply and on behalf of which the Intergovernmental
Agreement has not been signed (or in respect of which
the Standing Committee has decided that a law of the
State or Territory substantially corresponds to the
provisions of the Uniform Law); and
· corresponding law means a law of another Australian
State or Territory that corresponds to the relevant
provisions of the Uniform Law; or, is the principal
legislation in that State or Territory for the regulation of
the legal profession; or, is declared by the Uniform
Regulations to be a corresponding law.
Clause 28 repeals clauses 6 and 7 of Schedule 4 to the Uniform Law.
Clause 6 of Schedule 4 provides that the Standing Committee,
which is defined at section 6(1) to mean the Attorneys-General of
the participating jurisdictions, is also taken to include the
Attorneys-General of any non-participating jurisdictions on
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behalf of which the Intergovernmental Agreement was signed,
but only during the first operational term of the Council and the
period preceding that term starting with the date specified in the
Legal Profession Uniform Law Act of Victoria for the purposes
of the clause. The clause is redundant pursuant to the repeal of
clause 7 (see below), which defines "first operational term of the
Council".
Clause 7 of Schedule 4 provides that the first operational term of
the Council is the period of 3 years commencing on the date
specified in the Legal Profession Uniform Law Act of Victoria
for the purposes of the clause. No such date is specified and
therefore the clause is redundant.
Part 4--Repeal of amending Act
Clause 29 provides for the automatic repeal of the Bill on the first
anniversary of its commencement. The repeal of the Bill does
not affect the operation of the amendments made by it
(see section 15(1) of the Interpretation of Legislation Act
1984).
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