This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The objects of this Bill are:

(a) to make a number of miscellaneous amendments to the Legal Profession Act
2004, including the following:

        (i) to revise the role and procedures of the Legal Profession Admission
Board in connection with the admission of persons to the legal
profession,
        (ii) to remove the power of the Admission Board to refer to the Supreme
Court issues relating to the suitability of persons for admission to the
legal profession,
        (iii) to revise the procedures regarding payments from and repayments to the
Public Purpose Fund,
        (iv) to dispense with the Legal Profession Advisory Council,
        (v) to align the Act more closely with legal profession model legislation,
        (vi) to repeal transitional provisions concerning barristers of the Australian
Capital Territory,
        (vii) to enable regulations of a savings or transitional nature to be made
consequent on the enactment of the proposed Act, and

(b) to amend the Administrative Decisions Tribunal Act 1997 in relation to the
qualifications for appointment of a person as the Divisional Head of the Legal
Services Division of the Administrative Decisions Tribunal, and

(c) to enact other provisions of a minor, consequential or ancillary nature.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to
be proclaimed.

Clause 3 is a formal provision giving effect to the amendments to the Legal
Profession Act 2004 set out in Schedules 1 and 2.

Clause 4 is a formal amendment giving effect to the amendments to other
legislation set out in Schedule 3.

Clause 5 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent and section 30 of the Interpretation Act 1987 provides
that the repeal of an amending Act does not affect the amendments made by that
Act.

Schedule 1 Amendment of Legal Profession Act 2004
Schedule 1 amends the Legal Profession Act 2004 to make a number of
miscellaneous amendments to the Act, including the following:

Legal Profession Admission Board
Section 27 is repealed. That section currently empowers the Admission Board to
refer the following matters to the Supreme Court for its determination:

• the issue of whether an applicant for admission to the legal profession is a fit
and proper person to be admitted
• an application by a person for early consideration as to whether something
disclosed by the person will adversely affect an assessment by the Admission
Board as to whether the person is a fit and proper person to be admitted.

An applicant will still be able to appeal to the Supreme Court against an adverse
decision of the Admission Board.

Section 28 is amended to make it clear that, on an appeal to the Supreme Court, the
Court can make orders as to costs, other than an order against the Admission Board
in favour of an applicant where the appeal was not successful and an order against
the Admission Board in favour of the Bar Council or Law Society Council.

Section 30 is amended to make it clear that the Admission Board is entitled to be
represented and heard at appeals to the Supreme Court against the Board’s
decisions.

Substituted section 35 revises the role and procedures of the Admission Board in
considering applications for admission to the legal profession.

Substituted section 36 revises the role and procedures of the Admission Board in
determining applications for admission to the legal profession. The Board must
refuse the application unless the Board is satisfied that the applicant is both eligible
for admission and a fit and proper person to be admitted. The Board must make its
decision within the time specified in or determined under the admission rules and,
if it does not do so, is taken to have refused the application.

Time for determining applications for grant of practising certificates
Section 48 is amended to extend the time by which an application for the grant of
a local practising certificate must be determined (otherwise it is deemed to have
been refused), to cover the period during which the application can be the subject
of investigation and consideration under section 68.

Public Purpose Fund
Section 290 (1) is amended to provide that the costs of the Admission Board in an
appeal to the Supreme Court against a decision of the Board are payable from the
Public Purpose Fund.

New subsections (3A) and (3B) of section 290 enable supplementary amounts to
be payable from the Public Purpose Fund to beneficiaries for underpayments, and
to require repayment of amounts overpaid. Alternatively, underpayments or
overpayments can be reflected in future payments from the Fund for future periods.

Substituted section 290 (5) allows payments to be made by way of reimbursement
as well as in advance of the relevant cost or expense.

Legal Profession Advisory Council
Part 7.2 and Schedule 3 are repealed. This has the effect of abolishing the Legal
Profession Advisory Council.

Section 715 is repealed. That section enabled the Advisory Council to review the
legal profession rules. The power of the Attorney General to declare a legal
profession rule inoperative under section 716 on advice from the Legal Services
Commissioner will continue.

Section 716 is amended to provide that the power of the Attorney General to
declare a legal profession rule inoperative if the Advisory Council reported that a
rule imposes restrictive or anti-competitive practices that are not in the public
interest will be exercised after the Attorney General forms that opinion.

Sections 4 and 707 are also amended, and clause 20 of Schedule 9 is repealed, to
remove references to the Advisory Council.

Barristers of the Australian Capital Territory
Clause 10A of Schedule 9 is repealed. That clause enabled barristers of the
Australian Capital Territory to be granted local practising certificates. Legal
profession legislation has been enacted in the Territory that provides for the issue
of practising certificates to those barristers, thus making clause 10A unnecessary.

Other amendments
Section 347 is amended to ensure that its terminology is consistent with
terminology used in the Uniform Civil Procedure Rules 2005.

Schedule 9 is amended to include savings and transitional provisions, including the
power to make regulations of a savings or transitional nature consequent on the
enactment of the proposed Act.

Schedule 2 Amendment of Legal Profession Act 2004
for consistency with model legislation
Schedule 2 amends the Legal Profession Act 2004 to align the Act more closely
with legal profession model legislation. The Standing Committee of
Attorneys-General (representing each of the States and Territories and the
Commonwealth) in July 2006 approved the second edition of the legal profession
Model Bill, which contains the following categories of provisions:

• Provisions identified as core provisions requiring textual uniformity, which are
intended to be enacted in each jurisdiction in a form that is textually uniform
to the maximum extent possible.

• Provisions identified as core provisions not requiring textual uniformity,
which are intended to have counterparts in the legislation of each jurisdiction,
though not necessarily with textual uniformity.

• Provisions identified as not being core provisions, which are optional.

The Schedule makes amendments to provisions of the Act in each of those
categories.

Schedule 3 Amendment of other legislation
Administrative Decisions Tribunal Act 1997
Schedule 3.1 amends the Administrative Decisions Tribunal Act 1997 so that the
Deputy President appointed to be the Divisional Head of the Legal Services
Division of the Administrative Decisions Tribunal need not be appointed from
among the barrister members or solicitor members of the Division. However,
section 17 of that Act provides that a Deputy President must hold or have held a
judicial office or be an Australian lawyer.

Legal Profession Regulation 2005
Schedule 3.2 omits clauses 18 and 87 of the Legal Profession Regulation 2005, as
a consequence of the amendment of sections 98 and 260 of the Legal Profession
Act 2004 by Schedule 2.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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