Legal Profession and Public Notaries Amendment …FILE/12-015a.docx · Web viewAct No. Section Page Legal Profession and Public Notaries Amendment Act 2012 No. 15 of 2012 Legal Profession

Legal Profession and Public Notaries Amendment Act 2012

No. 15 of 2012

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 2

PART 2—AMENDMENTS TO THE LEGAL PROFESSION ACT 2004 4

3 Definitions 44 Local practising certificates 45 New section 3.5.4A inserted 5

3.5.4A Corporate legal practitioners required to insure to engage in legal practice on a pro bono basis 5

6 Terms and conditions of insurance 57 Exemption from insurance requirements 68 Summary dismissal of complaints 69 Investigation to be conducted expeditiously 610 New sections 4.4.12A, 4.4.12B and 4.4.12C inserted 7

4.4.12A Commissioner may suspend investigation if practitioner may be removed from local roll 7

4.4.12B Commissioner may decide to take no further action if practitioner removed from local roll 7

4.4.12C Notice of decision to suspend, resume or take no further action 8

11 Delegation 812 Annual report 913 Funding of law-related services and activities 914 New Part 15 inserted in Schedule 2 9

PART 15—LEGAL PROFESSION AND PUBLIC NOTARIES AMENDMENT ACT 2012 9

15.1 Disciplinary complaints 915.2 Investigations under Division 3 of Part 4.4 9

15 Statute law revision 10

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PART 3—AMENDMENTS TO THE PUBLIC NOTARIES ACT 2001 12

16 Eligibility for appointment 1217 Application for certificate of eligibility 1218 New section 12 inserted into Part 4 13

12 Transitional—Legal Profession and Public Notaries Amendment Act 2012 13

PART 4—REPEAL OF AMENDING ACT 14

19 Repeal of amending Act 14═══════════════

ENDNOTES 15

Legal Profession and Public Notaries Amendment Act 2012†

No. 15 of 2012

[Assented to 3 April 2012]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The purposes of this Act are—

(a) to amend the Legal Profession Act 2004—

(i) to permit corporate legal practitioners to engage in legal practice on a pro bono basis; and

Victoria

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(ii) to change the annual reporting requirements of the Legal Services Board; and

(iii) to provide an additional basis on which the Legal Services Commissioner may dismiss a disciplinary complaint; and

(iv) to empower the Legal Services Commissioner to suspend, or decide to take no further action in relation to, an investigation under Division 3 of Part 4.4 in certain circumstances; and

(v) to change the factors that the Legal Practitioners' Liability Committee must take into account in determining premiums and excesses in relation to contracts of professional indemnity insurance; and

(vi) to empower the Legal Services Board to make payments out of the Public Purpose Fund for the purpose of judicial education; and

(vii) to permit the Legal Services Board to delegate certain functions in relation to setting professional indemnity insurance requirements; and

(b) to amend the Public Notaries Act 2001 to provide that a person must not be appointed as a public notary unless that person is a fit and proper person to be a public notary.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

Section Page

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s. 2

(2) If a provision of this Act does not come into operation before 1 February 2013, it comes into operation on that day.

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Section Page

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s. 2

PART 2—AMENDMENTS TO THE LEGAL PROFESSION ACT 2004

3 DefinitionsSee:Act No.99/2004.Reprint No. 4as at1 July 2011and amendingAct No.36/2011.LawToday:www.legislation.vic.gov.aus. 3

In section 1.2.1(1) of the Legal Profession Act 2004, for the definition of corporate legal practitioner substitute—

"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—

(a) an Australian legal practitioner; or

(b) an Australian-registered foreign lawyer; or

(c) a law practice;".

4 Local practising certificates

After section 2.4.3(5) of the Legal Profession Act 2004 insert—

"(5A) Subject to subsection (5B), a local legal practitioner whose practising certificate is subject to the condition referred to in subsection (3)(b)(iv) must provide legal services only to, and for the purposes of, his or her employer.

Part 4—Repeal of Amending Act

Legal Profession and Public Notaries Amendment Act 2012No. 15 of 2012

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(5B) A local legal practitioner whose practising certificate is subject to the condition referred to in subsection (3)(b)(iv) may also engage in legal practice—

(a) as a volunteer at a community legal centre as described in subsection (6); and

(b) otherwise on a pro bono basis.".

5 New section 3.5.4A inserted

After section 3.5.4 of the Legal Profession Act 2004 insert—

"3.5.4A Corporate legal practitioners required to insure to engage in legal practice on a pro bono basis

(1) At all times while a corporate legal practitioner is engaged in legal practice on a pro bono basis in this jurisdiction (other than as a volunteer at a community legal centre), the practitioner must be covered by professional indemnity insurance on terms and conditions approved by the Board.

(2) The insurance must cover civil liability of the corporate legal practitioner in connection with—

(a) the legal practice being engaged in on a pro bono basis; and

(b) any related administration of trusts.".

6 Terms and conditions of insurance

(1) After section 3.5.6(2)(b) of the Legal Profession Act 2004 insert—

"(ba) the revenues of law practices;".

s. 5Part 4—Repeal of Amending Act


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(2) For section 3.5.6(2)(e) of the Legal Profession Act 2004 substitute—

"(e) the cost and difficulty of differentiating between the different types of legal practices of, and the different types of matters handled by, law practices;".

7 Exemption from insurance requirements

After section 3.5.7(3) of the Legal Profession Act 2004 insert—

"(4) The Board may exempt a corporate legal practitioner or class of corporate legal practitioners from the requirement to be covered by professional indemnity insurance in relation to legal practice engaged in on a pro bono basis.".

8 Summary dismissal of complaints

For section 4.2.10(1)(f) of the Legal Profession Act 2004 substitute—

"(f) in the case of a disciplinary complaint, the Commissioner, having considered the complaint, forms the view that—

(i) 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; or

(ii) the complaint requires no further investigation.".

9 Investigation to be conducted expeditiously



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In section 4.4.12(1) of the Legal Profession Act 2004, for "An investigation" substitute "Subject to section 4.4.12A, an investigation".

10 New sections 4.4.12A, 4.4.12B and 4.4.12C inserted

After section 4.4.12 of the Legal Profession Act 2004 insert—

"4.4.12A Commissioner may suspend investigation if practitioner may be removed from local roll

(1) The Commissioner may suspend an investigation under this Division if the Commissioner forms the view that it is in the public interest to do so because an application has been made—

(a) to the Supreme Court for an order that the practitioner's name be removed from the local roll; or

(b) to the Tribunal for an order recommending to the Supreme Court that the name of the practitioner be removed from the local roll.

(2) The Commissioner—

(a) may resume the investigation at any time; and

(b) must resume the investigation if the application referred to in subsection (1) is withdrawn or refused.



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4.4.12B Commissioner may decide to take no further action if practitioner removed from local roll

The Commissioner may decide to take no further action in relation to an investigation under this Division if the Commissioner 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.

4.4.12C Notice of decision to suspend, resume or take no further action

(1) The Commissioner must give the practitioner written notice if the Commissioner—

(a) suspends an investigation under section 4.4.12A(1); or

(b) resumes an investigation under section 4.4.12A(2); or

(c) decides to take no further action in relation to an investigation under section 4.4.12B.

(2) If the investigation arose from a complaint, the Commissioner must also give written notice to the complainant.

(3) The Commissioner must give notice under this section as soon as practicable.

(4) The Commissioner must include, in any notice given under this section, the reasons for suspending the investigation, resuming the investigation, or deciding to take no further action in relation to the investigation (as the case requires).".

11 Delegation

For section 6.2.19(2)(g) of the Legal Profession Act 2004 substitute—



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"(g) setting professional indemnity insurance requirements under Part 3.5, other than—

(i) approving terms and conditions under section 3.5.3, 3.5.4(1) or (2) or 3.5.4A(1);

(ii) exempting individual law practices from the requirement to obtain professional indemnity insurance from, or maintain professional indemnity insurance with, the Liability Committee under section 3.5.7;".

12 Annual report

Section 6.2.21(c) of the Legal Profession Act 2004 is repealed.

13 Funding of law-related services and activities

After section 6.7.10(1)(b) of the Legal Profession Act 2004 insert—

"(ba) judicial education;".

14 New Part 15 inserted in Schedule 2

After Part 14 of Schedule 2 to the Legal Profession Act 2004 insert—

"__________________

PART 15—LEGAL PROFESSION AND PUBLIC NOTARIES AMENDMENT ACT 2012

15.1 Disciplinary complaints

Section 4.2.10(1)(f), as substituted by section 8 of the Legal Profession and Public Notaries Amendment Act 2012, applies to a disciplinary complaint made before, on or after the day on which section 8 of that Act comes into operation.

15.2 Investigations under Division 3 of Part 4.4



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(1) Section 4.4.12(1), as amended by section 9 of the Legal Profession and Public Notaries Amendment Act 2012, applies to an investigation under Division 3 of Part 4.4 commenced before, on or after the day on which section 9 of that Act comes into operation.

(2) Sections 4.4.12A, 4.4.12B and 4.4.12C, as inserted by section 10 of the Legal Profession and Public Notaries Amendment Act 2012, apply to an investigation under Division 3 of Part 4.4 commenced before, on or after the day on which section 10 of that Act comes into operation.".

15 Statute law revision

(1) In section 3.4.44B of the Legal Profession Act 2004 omit "Victorian".

(2) In section 5.3.1(3), 5.4.1(3), 5.5.1(5) of the Legal Profession Act 2004, for "employee of the Board" substitute "employee referred to in section 6.4.1".

(3) In the note at the foot of section 5.3.1(4)(e) of the Legal Profession Act 2004, for "employee of the Board" substitute "employee referred to in section 6.4.1".

(4) In the note at the foot of section 5.4.1(4)(e) of the Legal Profession Act 2004, for "employee of the Board" substitute "employee referred to in section 6.4.1".

(5) In the note at the foot of section 5.5.1(6)(d) of the Legal Profession Act 2004, for "employee of the Board" substitute "employee referred to in section 6.4.1".



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(6) Section 6.2.19(2)(h) of the Legal Profession Act 2004 is repealed.

(7) In section 6.6.11(4)(c) of the Legal Profession Act 2004, for "incorporated practitioner" substitute "incorporated legal practice".

(8) In section 6.7.24(2)(d) of the Legal Profession Act 2004, for "3.6.9 (defaults relating to financial services or investments)" substitute "3.6.6".

(9) In section 7.2.6(a) of the Legal Profession Act 2004, for "employee of the Board" substitute "employee referred to in section 6.4.1".

(10) Part 9 of Schedule 2 to the Legal Profession Act 2004 is repealed.

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PART 3—AMENDMENTS TO THE PUBLIC NOTARIES ACT 2001

16 Eligibility for appointment

At the end of section 4 of the Public Notaries Act 2001 insert—

"(2) A person cannot be appointed as a public notary unless the Board of Examiners is satisfied that the person is a fit and proper person to be a public notary.".

17 Application for certificate of eligibility

(1) In section 5(4) of the Public Notaries Act 2001, for "paragraphs (b), (c) and (d) of section 4" substitute "section 4(1)(b), (c) and (d) and (2)".

(2) After section 5(4) of the Public Notaries Act 2001 insert—

"(4A) In determining whether an applicant is a fit and proper person to be a public notary, the Board of Examiners must have regard to—

(a) whether the applicant has ever been suspended from practice; and

(b) whether the applicant has been found guilty of either of the following within the meaning of the Legal Profession Act 2004—

(i) professional misconduct; or

(ii) unsatisfactory professional conduct; and

(c) whether the applicant has been found guilty of either of the following under a corresponding law within the meaning of the Legal Profession Act 2004—

See:Act No.52/2001.Reprint No. 1as at15 May 2008.LawToday:www.legislation.vic.gov.au



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(i) professional misconduct; or

(ii) unsatisfactory professional conduct; and

(d) whether the applicant is being investigated for a disciplinary complaint—

(i) within the meaning of the Legal Profession Act 2004; or

(ii) under a corresponding law within the meaning of that Act.".

18 New section 12 inserted into Part 4

After the heading to Part 4 of the Public Notaries Act 2001 insert—

"12 Transitional—Legal Profession and Public Notaries Amendment Act 2012

Part 2 as amended by sections 16 and 17 of the Legal Profession and Public Notaries Amendment Act 2012 applies in respect of a person who applies for a certificate of eligibility under section 5 after the commencement of those sections.".

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PART 4—REPEAL OF AMENDING ACT

19 Repeal of amending Act

This Act is repealed on 1 February 2014.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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ENDNOTES

Endnotes


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† Minister's second reading speech—

Legislative Assembly: 29 February 2012

Legislative Council: 15 March 2012

The long title for the Bill for this Act was "A Bill for an Act to amend the Legal Profession Act 2004 in relation to pro bono legal services, disciplinary complaints and investigations, professional indemnity insurance, the reporting requirements and payment powers of the Legal Services Board and to amend the Public Notaries Act 2001 in relation to eligibility for appointment as a public notary and for other purposes."

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Legal Profession and Public Notaries Amendment …FILE/12-015a.docx · Web viewAct No. Section Page Legal Profession and Public Notaries Amendment Act 2012 No. 15 of 2012 Legal Profession