Professional Standards and Legal Profession Acts Amendment Act 2008

i Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2—AMENDMENTS TO PROFESSIONAL STANDARDS ACT 2003 3 3 Definitions 3 4 Does this Act apply to all types of occupational liability? 4 5 Preparation and approval of schemes 4 6 Public notification of schemes 4 7 Consideration of comments, submissions and other matters 5 8 Submission of schemes to Minister 5 9 Gazettal, tabling and disallowance of schemes 5 10 Commencement of schemes 6 11 Challenges to schemes 6 12 Review of schemes 7 13 Amendment and revocation of Victorian schemes 7 14 New sections 18A and 18B inserted 8 18A Notification of revocation of schemes 8 18B Termination of operation of interstate schemes in this jurisdiction 9 15 Officers or partners of persons to whom a scheme applies 10 16 Duration of scheme 10 17 Functions of Council 11 18 New section 46A inserted 12 46A Co-operation with authorities in other jurisdictions 12 19 No contracting out of this Act 12 20 Review of Act 12 21 New section 61 inserted 13 61 Expiry date of existing schemes—Professional Standards and Legal Profession Acts Amendment Act 2008 13 22 Statute law revision 13 -- 1 of 18 -- Section Page ii PART 3—AMENDMENTS TO LEGAL PROFESSION ACT 2004 14 23 Complaints 14 24 New Part 14 inserted in Schedule 2 14 PART 14—PROFESSIONAL STANDARDS AND LEGAL PROFESSION ACTS AMENDMENT ACT 2008 14 14.1 Dealing with complaints 14 PART 4—GENERAL 15 25 Repeal of amending Act 15 ═══════════════ ENDNOTES 16 -- 2 of 18 -- 1 Professional Standards and Legal Profession Acts Amendment Act 2008 † No. 81 of 2008 [Assented to 11 December 2008] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The purposes of this Act are— (a) to amend the Professional Standards Act 2003— (i) to implement a framework for mutual recognition of professional standards schemes; and Victoria -- 3 of 18 -- Part 1—Preliminary Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 2 (ii) to make other amendments; and (b) to amend the Legal Profession Act 2004 to make further provision regarding complaints about legal practitioners. 2 Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. __________________ s. 2 -- 4 of 18 -- Part 2—Amendments to Professional Standards Act 2003 Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 3 PART 2—AMENDMENTS TO PROFESSIONAL STANDARDS ACT 2003 3 Definitions (1) Insert the following definitions in section 4(1) of the Professional Standards Act 2003— "another jurisdiction means any State or Territory, other than this jurisdiction; appropriate Council, in relation to another jurisdiction, means the authority that, under the corresponding law of that jurisdiction, has functions that are substantially the same as the Council's functions under this Act; corresponding law means a law of another jurisdiction that corresponds to this Act and includes a law of another jurisdiction that is prescribed to be a corresponding law of that jurisdiction for the purposes of this Act; interstate scheme means a scheme— (a) that has been prepared under the corresponding law of another jurisdiction; and (b) that operates, or indicates an intention to operate, as a scheme of this jurisdiction; this jurisdiction means Victoria.". (2) In section 4(1) of the Professional Standards Act 2003— (a) in the definition of scheme, after "association" insert "and includes an interstate scheme"; (b) in the definition of statutory rule for "1994." substitute "1994;". s. 3 See: Act No. 100/2003 and amending Act Nos 40/2004, 108/2004, 18/2005, 79/2006, 80/2006, 27/2007 and 4/2008. LawToday: www. legislation. vic.gov.au -- 5 of 18 -- Part 2—Amendments to Professional Standards Act 2003 Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 4 4 Does this Act apply to all types of occupational liability? After section 5(2) of the Professional Standards Act 2003 insert— "(3) This section applies to an interstate scheme even if, under the corresponding law applying to the interstate scheme, that scheme, in another jurisdiction, would apply in respect of the types of liability referred to in subsection (1) or (2).". 5 Preparation and approval of schemes After section 8(3) of the Professional Standards Act 2003 insert— "(4) A scheme prepared under this section may indicate an intention to operate as a scheme— (a) of this jurisdiction only; or (b) of this jurisdiction and another jurisdiction.". 6 Public notification of schemes At the end of section 9 of the Professional Standards Act 2003 insert— "(2) If the scheme indicates an intention to operate as a scheme of both this jurisdiction and another jurisdiction, the Council must also publish a similar notice in the other jurisdiction in accordance with the requirements of the corresponding law of that jurisdiction that relate to approval of a scheme prepared in that jurisdiction.". s. 4 -- 6 of 18 -- Part 2—Amendments to Professional Standards Act 2003 Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 5 7 Consideration of comments, submissions and other matters At the end of section 11 of the Professional Standards Act 2003 insert— "(2) If the scheme indicates an intention to operate as a scheme of both this jurisdiction and another jurisdiction— (a) the Council must also consider any matter that the appropriate Council for the other jurisdiction would have to consider under the provisions of the corresponding law of that jurisdiction that relate to the approval of a scheme prepared in that jurisdiction; and (b) the matters to be considered by the Council, whether under subsection (1) or paragraph (a), are to be considered in the context of each of the jurisdictions concerned.". 8 Submission of schemes to Minister After section 13(2) of the Professional Standards Act 2003 insert— "(3) If the scheme indicates an intention to operate as a scheme of both this jurisdiction and another jurisdiction, the Council may also submit the scheme to the Minister administering the corresponding law of the other jurisdiction.". 9 Gazettal, tabling and disallowance of schemes (1) In section 14(1) of the Professional Standards Act 2003, after "by the Council" insert "or, in the case of an interstate scheme, by the appropriate Council for the jurisdiction in which the scheme was prepared". s. 7 -- 7 of 18 -- Part 2—Amendments to Professional Standards Act 2003 Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 6 (2) After section 14(2) of the Professional Standards Act 2003 insert— "(3) In subsection (1), a reference to an interstate scheme includes a reference to an instrument amending an interstate scheme.". 10 Commencement of schemes For section 15(2) of the Professional Standards Act 2003 substitute— "(2) This section is subject to any order made by the Supreme Court under section 16 and any order made by the Supreme Court of another jurisdiction under the corresponding law of that jurisdiction. (3) In this section, a reference to a scheme includes, in the case of an interstate scheme, a reference to an instrument amending that scheme.". 11 Challenges to schemes (1) In section 16(1) of the Professional Standards Act 2003, after "section 14" insert "including a person who is, or is reasonably likely to be, affected by a scheme that operates as a scheme of another jurisdiction". (2) After section 16(3) of the Professional Standards Act 2003 insert— "(4) The Court may not make an order that an interstate scheme is void for want of compliance with this Act on the ground that the scheme fails to comply with Division 2, but may do so on the ground that the scheme fails to comply with the provisions of the corresponding law of the jurisdiction in which it was prepared that relate to the contents of schemes prepared in that jurisdiction. s. 10 -- 8 of 18 -- Part 2—Amendments to Professional Standards Act 2003 Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 7 (5) This section does not prevent a scheme from being challenged or called into question otherwise than under this section. (6) In this section, a reference to a scheme includes, in the case of an interstate scheme, a reference to an instrument amending that scheme.". 12 Review of schemes For section 17(3) of the Professional Standards Act 2003 substitute— "(3) A review may, but need not, be conducted in order to decide— (a) in the case of a scheme prepared under this Act, whether the scheme should be amended or revoked or whether a new scheme should be made; or (b) in the case of an interstate scheme, whether the operation of the scheme should be terminated in relation to this jurisdiction.". 13 Amendment and revocation of Victorian schemes (1) In the heading to section 18 of the Professional Standards Act 2003 for "schemes" substitute "Victorian schemes". (2) In section 18 of the Professional Standards Act 2003, for "an amendment to, or revocation of," (wherever occurring) substitute "an instrument amending or revoking". s. 12 -- 9 of 18 -- Part 2—Amendments to Professional Standards Act 2003 Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 8 (3) For section 18(5) of the Professional Standards Act 2003 substitute— "(5) The provisions of sections 8 to 16 extend, with any necessary modifications, to the amendment of a scheme by an instrument under this section. (6) The provisions of sections 8 to 15 (other than section 13(2)) extend, with any necessary modifications, to the revocation of a scheme by an instrument under this section. (7) This section does not apply to an interstate scheme. Note An instrument that amends a scheme operating in another jurisdiction may be submitted to the Minister administering the corresponding law of that jurisdiction under section 13 with a view to its being published under that law. An instrument made under the corresponding law of another jurisdiction that amends an interstate scheme may be submitted to the Minister administering this Act with a view to its being published under section 14.". 14 New sections 18A and 18B inserted After section 18 of the Professional Standards Act 2003 insert— "18A Notification of revocation of schemes (1) On publication in the Gazette of an instrument revoking a scheme (other than an interstate scheme) that operates as a scheme of another jurisdiction, the Minister must cause notice of that fact to be given to the Minister administering the corresponding law of that jurisdiction. s. 14 -- 10 of 18 -- Part 2—Amendments to Professional Standards Act 2003 Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 9 (2) On receipt of notice that an interstate scheme has been revoked under the corresponding law of the jurisdiction in which it was prepared, the Minister must cause a statement to that effect to be published in the Gazette. Note Under section 34(1B), an interstate scheme will cease to have effect in this jurisdiction when it ceases to have effect in the other jurisdiction. 18B Termination of operation of interstate schemes in this jurisdiction (1) The Council may, on the application of an occupational association, prepare an instrument terminating, in relation to this jurisdiction, the operation of an interstate scheme that relates to members of the association. (2) The Minister may direct the Council to prepare an instrument terminating the operation of an interstate scheme in relation to this jurisdiction. (3) The Council must comply with any such direction, but may on its own initiative, at any time while an interstate scheme remains in force, prepare an instrument terminating the operation of the scheme in relation to this jurisdiction. (4) The provisions of sections 9 to 14 (other than section 13(2)) extend, with any necessary modifications, to the termination of the operation of an interstate scheme under an instrument under this section. s. 14 -- 11 of 18 -- Part 2—Amendments to Professional Standards Act 2003 Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 10 (5) The operation of an interstate scheme in respect of which an instrument under this section is published under section 14 (as applied by subsection (4)) is terminated, in relation to this jurisdiction— (a) as from such day subsequent to the date of its publication as may be specified in the instrument; or (b) if no such day is specified, as from 2 months after the date of its publication.". 15 Officers or partners of persons to whom a scheme applies In section 20(4)(a) of the Professional Standards Act 2003, for "in section 82A of" substitute "it has in". 16 Duration of scheme For section 34(1) of the Professional Standards Act 2003 substitute— "(1) A scheme must specify the period (not exceeding 5 years) for which it is to remain in force after its commencement. (1A) Subject to subsection (2), a scheme (other than an interstate scheme) remains in force until whichever of the following first occurs— (a) the period specified under subsection (1) ends; or (b) the scheme is revoked; or (c) the scheme's operation ceases because of the operation of another Act; or s. 15 -- 12 of 18 -- Part 2—Amendments to Professional Standards Act 2003 Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 11 (d) the scheme is declared void, either by— (i) an order made by the Supreme Court under section 16; or (ii) an order made by the Supreme Court of another jurisdiction under the corresponding law of that jurisdiction; or (e) the scheme is disallowed under Part 5 of the Subordinate Legislation Act 1994. (1B) Subject to subsection (2), an interstate scheme remains in force in this jurisdiction until whichever of the following first occurs— (a) the period specified under subsection (1) ends; or (b) the scheme's operation in relation to this jurisdiction is terminated under section 18B; or (c) the scheme ceases to have effect in the jurisdiction in which it was prepared; or (d) the scheme is disallowed under Part 5 of the Subordinate Legislation Act 1994.". 17 Functions of Council (1) In section 46(1)(a)(i) of the Professional Standards Act 2003 omit "by it". (2) In section 46(4) of the Professional Standards Act 2003 after "other Act" insert "or law". s. 17 -- 13 of 18 -- Part 2—Amendments to Professional Standards Act 2003 Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 12 18 New section 46A inserted After section 46 of the Professional Standards Act 2003 insert— "46A Co-operation with authorities in other jurisdictions For the purpose of dealing with a scheme that operates, or indicates an intention to operate, as a scheme of both this jurisdiction and another jurisdiction, the Council— (a) may, in the exercise of its functions under this Act, act in conjunction with the appropriate Council for the other jurisdiction; and (b) may act in conjunction with the appropriate Council for the other jurisdiction in the exercise of that Council's functions under the corresponding law of that jurisdiction.". 19 No contracting out of this Act At the end of section 54 of the Professional Standards Act 2003 insert— "(2) This section applies to an interstate scheme, whether or not contracting out is permitted under the corresponding law applying to the interstate scheme in another jurisdiction.". 20 Review of Act In section 58(2) and 58(3) of the Professional Standards Act 2003, for "5 years" substitute "6 years". s. 18 -- 14 of 18 -- Part 2—Amendments to Professional Standards Act 2003 Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 13 21 New section 61 inserted After section 60 of the Professional Standards Act 2003 insert— "61 Expiry date of existing schemes— Professional Standards and Legal Profession Acts Amendment Act 2008 The period for which the Council has, before the commencement of section 16 of the Professional Standards and Legal Profession Acts Amendment Act 2008, determined that a scheme is to remain in force for the purposes of section 34(1), as in force immediately before that commencement, is taken to be specified in the scheme.". 22 Statute law revision In the Professional Standards Act 2003— (a) section 57(4) is repealed; (b) Schedule 4 to that Act is repealed. __________________ s. 21 -- 15 of 18 -- Part 3—Amendments to Legal Profession Act 2004 Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 14 PART 3—AMENDMENTS TO LEGAL PROFESSION ACT 2004 23 Complaints (1) After section 4.2.8(2) of the Legal Profession Act 2004 insert— "(3) Nothing in this section requires the Commissioner to give the law practice or Australian legal practitioner an opportunity to be heard or make a submission to the Commissioner before the Commissioner determines how the complaint is to be dealt with.". (2) After section 4.2.10(2) of the Legal Profession Act 2004 insert— "(3) The Commissioner is not required to give a complainant, a law practice or an Australian legal practitioner an opportunity to be heard or make a submission to the Commissioner before determining whether or not to dismiss a complaint under this section.". 24 New Part 14 inserted in Schedule 2 After Part 13 in Schedule 2 to the Legal Profession Act 2004 insert— "PART 14—PROFESSIONAL STANDARDS AND LEGAL PROFESSION ACTS AMENDMENT ACT 2008 14.1 Dealing with complaints Sections 4.2.8(3) and 4.2.10(3), as inserted by section 23 of the Professional Standards and Legal Profession Acts Amendment Act 2008, apply to a complaint made on or after the commencement of that section 23.". __________________ s. 23 See: Act No. 99/2004. Reprint No. 2 as at 16 July 2007 and amending Act Nos 75/2006, 12/2007, 46/2007, 12/2008 and 24/2008. LawToday: www. legislation. vic.gov.au -- 16 of 18 -- Part 4—General Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 15 PART 4—GENERAL 25 Repeal of amending Act This Act is repealed on the first anniversary of its commencement. Note The repeal 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). ═══════════════ s. 25 -- 17 of 18 -- Professional Standards and Legal Profession Acts Amendment Act 2008 No. 81 of 2008 16 ENDNOTES † Minister's second reading speech— Legislative Assembly: 29 October 2008 Legislative Council: 13 November 2008 The long title for the Bill for this Act was "A Bill for an Act to amend the Professional Standards Act 2003 to implement a framework for mutual recognition of professional standards schemes, to make other amendments to that Act, to amend the Legal Profession Act 2004 to make further provision regarding complaints about legal practitioners and for other purposes." Endnotes -- 18 of 18 --