NSW Introduces Legal Profession Uniform Law Application Legislation

Friday 28 March 2014 @ 10.39 a.m. | Judiciary, Legal Profession & Procedure

On Thursday (27 March 2014), the NSW Attorney General introduced the Legal Profession Uniform Law Application Bill 2014 (the Uniform Law) into the NSW Legislative Assembly. As the explanatory materials accompanying the Bill state, the proposed Legal Profession Uniform Law provides a scheme to regulate the legal profession and is the subject of an agreement between NSW and Victoria at present, but with the potential to include other jurisdictions if they request inclusion.

Key Objectives

The key objectives of the proposed Uniform Law are stated to be the:

  • application of the text of the Uniform Law as a law of NSW,
  • enactment of complementary provisions having effect for NSW, and
  • as a consequence, repeal of the Legal Profession Act 2004 (NSW).

It should be noted that the text of the Uniform Law is set out in Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (No. 17 of 2014) of Victoria which was assented to Tuesday (26 March 2014) and is yet to be proclaimed.

Background to the New Laws

The Uniform Laws result from an Intergovernmental Agreement (IGA) executed between the NSW and Victorian Governments formalising their joint participation in a new regulatory scheme to be established by the Uniform Law.

Following the terms of the IGA, the Victorian Attorney-General (as we have previously posted) introduced into the Victorian Parliament a Bill enacting the Uniform Law on 10 December 2013 which became Victorian Act No 17 on 26 March 2014, and is yet to commence. The introduction of the NSW Uniform Law Bill proposing to apply the Uniform Law as a law of NSW is the second major part of the IGA.

In terms of the historical development and evolution of the proposed Uniform Law, it was the position since 2004, that the States and Territories had enacted their legal profession legislation on the basis of a national Model Bill but jurisdictional variations had meant that a single national legal profession regulatory framework was not achieved.

This position led the Council of Australian Governments (COAG) to bring regulation of the legal profession onto its reform agenda. In February 2009, a National Legal Profession Reform Taskforce was appointed to make recommendations and propose draft legislation. The work of the Taskforce resulted in the proposed new framework for national regulation embodied in a draft National Law and National Rules released for public consultation in May 2010. Following a period of consultation and revision in 13 February 2011, COAG  - “agreed in principle to settle reforms to legal profession regulation by May 2011 (with the exception of Western Australia and South Australia)”.

On 9 September 2011, the Commonwealth Attorney-General released the revised draft National Law following on from discussions between the Attorneys-General of the Commonwealth, NSW, Victoria, Queensland and the Northern Territory. On 19 October 2011 the Commonwealth Attorney-General announced that the new National Legal Services Board and National Legal Services Commissioner would be established in NSW and further, announced that Victoria would introduce the legislation to implement the reforms which would then be replicated across the participating jurisdictions. In October 2012, Queensland made it known that the Queensland government would not participate in the national scheme and the project has progressed in NSW and Victoria only, notwithstanding the decision of other States and Territories not to commit to the Uniform Laws at present.

New Regulatory Structure

The Uniform Law provides for a new structure for regulation of the Legal Profession in NSW, including the creation of two new bodies:

  • the Legal Services Council; and
  • a Commissioner for Uniform Legal Services Regulation (who would also be Chief Executive Officer of the Council).

The role of the two new bodies will be to set up a policy framework under the new scheme and to monitor its implementation by:

  • making Uniform Rules under the Uniform Law,
  • issuing guidelines and directions to local regulatory authorities on the performance of substantive functions,
  • promoting consistent application of the Uniform Law across jurisdictions, and
  • making recommendations to various state's participating via their Attorneys-General concerning possible amendments to the law.

It should be noted that all substantive regulatory functions however, including complaints handling, trust account investigations and licensing, will be conferred directly on State and Territory based regulatory authorities, which, in NSW would mean that the Law Society of NSW would continue to carry out existing regulatory functions and to work with the Office of the Legal Services Commissioner in relation to complaints.

Status and Feed Back

The NSW and Victorian Governments are engaged in ongoing discussions on implementation and the Law Society of NSW has posted to its website that it supports the objectives of the Uniform Laws and will continue working with the NSW Government and other stakeholders as implementation of the laws proceeds through the legislative process.

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