Issued: 18 November 2016
Four important practical amendments have been made recently to the Legal Profession Uniform Law 2014 (the Uniform Law) in Victoria and NSW. The Legal Profession Uniform Law Application Amendment Act 2016 (Vic) (the Amendment Act) received royal assent and commenced on Thursday 3 November 2016.
Victoria is the host Government for the Uniform Law and, with the agreement of the Standing Committee comprising the Attorneys General of both States, develops and coordinates the passage of legislation to change the Uniform Law from time to time, if necessary. The Uniform Law applies in NSW, by the operation of section 4 of the Legal Profession Uniform Law Application Act 2014 (NSW) and these recent changes have been made to the Legal Profession Uniform Law (NSW) as a result.
The following is a short description of the amendments.
The Amendment Act expressly allows Australian-registered foreign lawyers to practise foreign law in partnerships solely comprising Australian-registered foreign lawyers, consistent with the former provisions of the 2004 Victorian and NSW Legal Profession Acts. Section 70 sets out the form of practice that can be adopted by Australian-registered foreign lawyers but it did not allow foreign lawyers to form partnerships independently of Australian practitioners. The section has been amended to add a new paragraph to section 70 (1), as follows:
"70 An Australian-registered foreign lawyer may (subject to any conditions attaching to the foreign lawyer's Australian registration certificate) practise foreign law –(ba) in a partnership with one or more Australian-registered foreign lawyers in circumstances where, if the Australian-registered foreign lawyer were an Australian legal practitioner, the partnership would be permitted under a law of this jurisdiction; or…."
An Australian-registered foreign lawyer may (subject to any conditions attaching to the foreign lawyer's Australian registration certificate) practise foreign law –(ba) in a partnership with one or more Australian-registered foreign lawyers in circumstances where, if the Australian-registered foreign lawyer were an Australian legal practitioner, the partnership would be permitted under a law of this jurisdiction; or…."
Designated Local Regulatory Authorities will now have the power to vary, suspend or cancel a practising certificate on a recommendation of a complaint handling body where there has been a finding that the lawyer has engaged in unsatisfactory professional conduct.Under section 299(1)(g) of the Uniform Law a local regulatory authority can make an order recommending the imposition of a specified condition on the practising certificate of a lawyer where the authority has found that the lawyer engaged in unsatisfactory professional conduct. Under section 82(1), the designated local regulatory authority can vary, suspend, or cancel a practising certificate on a number of grounds. However, section 82(1)(c) did not include as one of these grounds the imposition of a condition under section 299(1)(g). This omission has now been rectified.
An important regulatory requirement on the Council and Commissioner for Uniform Legal Services Regulation is that they provide audited financial statements with their annual reports. The Amendment Act now allows the financial statements of the Commissioner and the Legal Services Council to be combined as one. In practice, the Commissioner does not have a separate budget. Being able to continue with one set of accounts and financial statements will remove an unnecessary operational complexity in the Law. To achieve this result amendments after clause 26(4) of Schedule 1 and after clause 10 (4) of Schedule 2 have been made.
The duty to report suspected offences under the Uniform Law as first enacted was broader than in the equivalent provision of former Legal Profession Act 2004 (NSW) (LPA) and has been changed. Section 730A of the LPA imposed a duty only upon the NSW Commissioner, the NSW Bar Council, and the NSW Law Society Council to report suspected offences.Sections 465(1) and (2)(a) of the Uniform Law provides that where a "relevant person" suspects on reasonable grounds that a person has committed a serious offence, they must report the suspected offence to the police or other appropriate investigating or prosecuting authority. "Relevant person" is defined to include the Legal Services Council or the Commissioner for Uniform Legal Services Regulation, the Admissions Committee, a local regulatory authority, or a delegate of any of these organisations; and paragraph 465(4)(e) included "a person who is a member of the staff of, or acting at the direction of", any of these organisations. The amendment, which repeals paragraph 465(4)(e), now means that the obligation to report a suspected serious offence would fall only on the Council, the Commissioner, the Admissions Committee, a local regulatory authority, or a delegate BUT not on staff or those acting at their direction.
In addition to amendments of the Uniform Law itself, there has been an important change to the Legal Profession Uniform Law Application Act 2014 of Victoria (the Victorian Application Act). This will enable a Register of Disciplinary Action to continue to be maintained there by the Victorian Legal Services Board. The Office of Legal Services Commissioner maintains such a register in NSW. A Register of Disciplinary action was previously maintained in Victoria under sections 4.4.26 and 4.4.27 of the former Legal Profession Act 2004.
The Amendment Act amends the Victorian Application Act to provide a legislative basis for the Victorian Legal Services Board to maintain and publish a Register of Disciplinary Action by inserting a new Part 9A – Registers.
This amendment enhances consistency between the participating jurisdictions.
The Legal Services Council has also made some minor and technical changes to the Uniform Rules. In summary the following rules have been amended:
Legal Profession Uniform Admission Rules 2015 (r 11(1) and (3)(a), Schedule 3 clause 8)
Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015 (r 5)
Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 (r 5)
Legal Profession Uniform General Rules 2015 (r 65(4)-(7))
The amendment to Admission Rule 11(1) and (3)(a) now permits applicants for admission with partially completed qualifications in a foreign jurisdiction to apply for directions about what additional qualifications they must acquire. Currently, the class of persons who can make such applications is limited only to those who have completed such qualifications;The amendment to Schedule 3, clause 8 corrects a typographical error, to make clear that it is the employer who must allow trainees sufficient time to attend courses; the clause at present does not make sense, as it requires the employee to allow themselves sufficient time.
The amended definition of DLRA in rule 5 makes clearer which DLRA is being referred in the Rules.
Rule 65(4)-(7) relating to the period of appointment of External Examiners (EE's) were deleted by the Legal Services Council because those rules were inconsistent with clause 20 in Schedule 4 to the Uniform Law. Clause 20 provides that all External Examiner appointments must cease after two years after the commencement of the Uniform Law which will mean their appointments cease at the end of 30 June 2017.
18 November 2016