WA Introduces Bill to Join Legal Profession Uniform Law With VIC and NSW
On Wednesday, 18 March 2020, Mr J.R. Quigley, the WA Attorney General (the Attorney General) introduced the Legal Profession Uniform Law Application Bill 2020 (the Bill) and its related Bill the Legal Profession Uniform Law Application (Levy) Bill 2020 (the Levy Bill). The key purpose of the Bill is to apply the "Legal Profession Uniform Law" (with modifications) as a law of Western Australia. The Levy Bill is for the purposes of imposing a levy for the purpose of s 243 of the Bill which relates to Law library contributions.
About the Uniform Law
The Legal Profession Uniform Law commenced operation in NSW and Victoria on 1 July 2015. It replaced the Legal Profession Acts in both the NSW and Victorian jurisdictions. The objective of the Legal Profession Uniform Law was the creation of a common legal services market in both NSW and Victoria which was underpinned by a uniform regulatory system.
In those jurisdictions the Legal Profession Uniform Law now governs matters such as:
- practising certificate types and conditions;
- maintaining and auditing of trust accounts;
- continuing professional development requirements;
- complaints handling processes;
- billing arrangements; and
- professional discipline issues.
The introduction of a uniform system of legal profession regulation was a long term goal of the Law Council of Australia. The inclusion of WA in the scheme is seen as "a significant step towards a truly national profession, and a positive example of the profession taking a leadership role in setting its own standards".
What the Bill Does
The Bill has four main objectives:
- First, to apply the Legal Profession Uniform Law as a law of WA and to provide for the tabling and disallowance of amendments made to that Law.
- Second, to enact provisions to regulate legal practice which have local application in WA.
- Third, to repeal the Legal Profession Act 2008 (WA) and the Law Society Public Purposes Trust Act 1984 (WA).
- Fourth, to make savings, transitional and consequential amendments.
Part 2 of the Bill applies the Legal Profession Uniform Law, the uniform regulations and uniform rules as laws of WA and specifies the designated local regulatory authorities and tribunals for the purposes of the Legal Profession Uniform Law, namely, the Legal Practice Board and the Legal Services and Complaints Committee, while the Supreme Court and the State Administrative Tribunal are to be designated tribunals.
In Part 3 the Bill provides for the establishment of local authorities to perform functions under the Act and the Legal Profession Uniform Law. These local authorities are:
- the Legal Practice Board,
- the Legal Services and Complaints Committee,
- the Legal Services and Complaints Officer,
- the Legal Costs Committee, and
- the Legal Contribution Trust.
The above are the local authorities who currently perform functions under the Legal Profession Act 2008 (WA).
Part 4 of the Bill contains provisions which relate to admission, practising certificates and registration certificates which supplement the provisions of Chapters 2 and 3 of the Legal Profession Uniform Law. It also contains provisions relating to government lawyers in WA and the functions of the State Solicitor. Part 5 of the Bill contains provisions relating to trust accounts which support the provisions of Part 4.2 of the Legal Profession Uniform Law.
In Part 6, the Bill deals with legal costs and, particularly - legal costs determinations and costs assessments. This part supplements Part 4.3 of the Legal Profession Uniform Law. Part 7 of the Bill covers professional indemnity insurance and supports Part 4.4 of the Legal Profession Uniform Law. It should be noted that as far as possible, current arrangements and schemes for professional indemnity insurance under the Legal Profession Act 2008 (WA) have been retained, together with the law mutual fund. To ensure the current arrangements are not undermined, modifications have been made to the Legal Profession Uniform Law. Part 8 of the Bill relates to fidelity cover and again, as far as possible, the current arrangements in respect of fidelity cover under the Legal Profession Act 2008 have been retained.
Part 9 of the Bill contains provisions relating to proceedings under the Legal Profession Uniform Law and, in particular, disciplinary proceedings in the State Administrative Tribunal. Provisions which complement Chapter 5 of the Legal Profession Uniform Law insofar as that chapter relates to professional discipline.
Part 10 of the Bill makes provision for various registers to be kept and maintained by the Legal Practice Board and for the publication of information about disciplinary action. These registers are the register of local practising certificates, the register of local registration certificates and the register of disciplinary action. In Part 11 the Bill provides for enforcement and contains provisions about search warrants and contraventions of the Act or the Legal Profession Uniform Law.
Part 15 of the Bill provides that the Law Society Public Purposes Trust Act 1985 (WA) is to be repealed. However, Part 12 of the Bill requires an authorised ADI to pay interest on trust accounts to the Law Society and for that money to be applied in accordance with the Law Society public purposes trust deed.
In 2016 the law libraries of the Department of the Attorney General and the Supreme Court were amalgamated to form one library at the David Malcolm Justice Centre. This law library is owned and operated by the State for the use of the judiciary, local lawyers and other prescribed persons. The Bill (Part 13) continues the current arrangements relating to the law library, except that the provisions relating to the law library contribution by the Legal Practice Board are contained in a separate bill, the Legal Profession Uniform Law Application (Levy) Bill 2020.
Part 14 of the Bill contains miscellaneous provisions including provisions for the making of local regulations, provisions relating to local approved forms under the Act, powers of delegation and a statutory review provision. The Bill (Part 15) provides for the repeal of the Legal Profession Act 2008 (WA) and the Law Society Public Purposes Trust Act 1985 (WA).
Comments and Reaction
In a media release from February 2019, WA Law Society President Greg McIntyre SC is quoted as saying:
In his second reading speech the WA Attorney General said:
In his Media Release of 18 March 2020 the WA Attorney General said:
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Legal Profession Uniform Law Application Bill 2020 (170 of 2020) [WA], 2nd Reading Speech and Explanatory Memorandum, available from TimeBase's LawOne service.