Legal Profession Amendment Regulations 2019 (WA)

21 May 2019 GOVERNMENT GAZETTE, WA 1463

JUSTICE

JU302

Legal Profession Act 2008

Legal Profession Amendment Regulations 2019

Made by the Governor in Executive Council.

1.   Citation

These regulations are the Legal Profession Amendment

Regulations 2019.

2.   Commencement

These regulations come into operation as follows —

(a)	regulations 1 and 2 — on the day on which these regulations are published in the Gazette;
(b)	the rest of the regulations — on the day after that day.

3. Regulations amended

These regulations amend the Legal Profession

Regulations 2009.

4.           Regulation 5A replaced

Delete regulation 5A and insert:

or

5A. Exceptions to prohibition on engaging in legal

practice when not entitled (Act s. 12(3)(h))

For the purposes of section 12(3)(h) of the Act, section 12(2) of the Act does not apply to —

(a) legal work done under the supervision of an Australian legal practitioner as a paid employee of —

(i)     the Legal Aid Commission; or

(ii)    a community legal centre; or

(iii)    the Aboriginal Legal Service of Western Australia Limited; or

(iv)    a corporation other than an incorporated legal practice;

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(b) legislative drafting work that is done by an
Australian lawyer -

(i)     under a contract for services with the State; and

(ii)     under the direction of the Parliamentary Counsel;

or

(c) legal work that is done by an Australian
lawyer -

(i)     under a contract for services with the State; and

(ii)     under the direction of the State Solicitor.

5.           Regulation iSA inserted

At the end of Part 4 Division 2 insert:

iSA.	Application of this Division to Australian lawyers referred to in r. 5A(b) and (c) (Act s. 12(8))
(1)	In this regulation—
PCO CPD arrangements means approved CPD
arrangements made under regulation 13 for the
continuing professional development of PCO lawyers;
PCO lawyer means a WA government lawyer
employed in the Parliamentary Counsel's Office;
SSO CPD arrangements means approved CPD arrangements made under regulation 13 for the continuing professional development of SSO lawyers;
SSO lawyer means a WA government lawyer employed in the State Solicitor's Office.
(2)	This Division and the PCO CPD arrangements apply in relation to an Australian lawyer (other than an interstate legal practitioner) who does legislative drafting work referred to in regulation 5A(b) as if the Australian lawyer were a PCO lawyer and the employing authority of the Australian lawyer were the employing authority of PCO lawyers.
(3)	This Division and the SSO CPD arrangements apply in relation to an Australian lawyer (other than an interstate legal practitioner) who does legal work referred to in regulation 5A(c) as if the Australian lawyer were an SSO lawyer and the employing authority of the Australian lawyer were the employing authority of SSO lawyers.

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(4) Subregulations (2) and (3) do not apply to an
Australian lawyer if the Australian lawyer holds a
current local practising certificate and the employing
authority of PCO lawyers or SSO lawyers (as the case
requires) has given the Board written notice that the
Australian lawyer will not be participating in approved
CPD arrangements.

6.            Regulation 83 amended

In regulation 83 delete the definition of exempt practitioner and insert:

exempt practitioner, in relation to legal practice, means
an Australian legal practitioner who is exempt under
regulation 97 from the requirement to comply with
regulation 96(a) or (b) to the extent that the practitioner
engages in that legal practice;

7.            Regulation 88 amended

After regulation 88(3) insert:

(3A) If a law practice makes, in relation to an insurance year, more than 1 application to take and maintain insurance under the P11 arrangement in respect of part

only of the year, the 2" and any subsequent application
must be accompanied by the amount of the additional
administration levy, if any, fixed under
regulation 102(5).

8.            Regulation 95 amended

In regulation 95 delete "exempt practitioner." and insert:

exempt practitioner in relation to all legal practice engaged in
by the associate as part of the associate's duties in the law practice.
9.	Regulation 96 replaced Delete regulation 96 and insert:

96. Requirement for Australian legal practitioner to
have professional indemnity insurance

An Australian legal practitioner must not engage in legal practice in this jurisdiction unless any of the following applies -

(a) there is in force with respect to the legal practitioner a valid current certificate of

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insurance in accordance with this Part that

covers that legal practice;

(b)	there is in force with respect to the legal practitioner valid current professional indemnity insurance, on the terms and conditions of a scheme approved by the Law Society, that covers that legal practice;
(c)	the practitioner is an exempt practitioner in relation to that legal practice.

10.          Regulation 97 amended

(1) In regulation 97(1):

(a) delete "The following Australian legal practitioners are exempt from the requirement to comply with regulation 96(a) or (b) -" and insert:

An Australian legal practitioner is exempt from the requirement to comply with regulation 96(a) or (b) to the extent that the practitioner is engaged in legal practice of any of the following kinds -

(b)	in paragraph (a) delete "a barrister who is covered by" and insert:
legal practice engaged in by a barrister who is covered, in respect of that practice, by
(c)	delete paragraphs (b) to (ea) and insert:
(b) legal practice engaged in by a practitioner in the course of the practitioner's duties as an

employee of an entity, other than an

incorporated legal practice, if -

(i)     the only legal services provided by the practitioner in the course of those duties are to members or employees of the entity; and

(ii)     the entity is covered by professional indemnity insurance approved by the Law Society for the period in respect of

which the exemption is claimed;

(c) legal practice engaged in by a practitioner in
the course of the practitioner's duties as an
employee of an entity (the employing entity),
other than an incorporated legal practice, if the
only legal services provided by the practitioner
in the course of those duties are -

(i)     in-house legal services; or

21 May 2019 GOVERNMENT GAZETTE, WA 1467

(ii) if the employing entity is a body

corporate - legal services provided to a related body corporate (as defined in the Corporations Act 2001

(Commonwealth) section 9) of the

employing entity;

(d) government work (as defined in section 3 6(2) of the Act) engaged in by a WA government lawyer;

(da) legal practice engaged in by a practitioner who

is an officer or employee of a government
agency (as defined in section 36(1) of the Act)
in the course of the practitioner's duties in that

agency;

(e) legal practice engaged in by a practitioner in the course of the practitioner's duties as an employee of or volunteer in -

(i) by professional indemnity insurance

a community legal centre that is covered period in respect of which the exemption is claimed; or

(ii)     the Legal Aid Commission; or

(iii)     the Aboriginal Legal Service of Western Australia Limited (ALS WA), but only if ALSWA is covered by professional

indemnity insurance approved by the which the exemption is claimed; or

(iv)     another body or organisation providing legal aid in respect of which a resolution of the Law Society Council under

subregulation (2) is in force;

(d)	in paragraph (f) delete "a practitioner who does not engage in any legal practice that would result" and insert:
legal practice engaged in by a practitioner that would not result
(e)	in paragraph (g) delete "a practitioner who engages in legal practice as a principal or employee of a national law practice which -" and insert:

legal practice engaged in by a practitioner in the course of the practitioner's duties as a principal or employee of a national law practice that -

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(1)	in paragraph (h) delete "a practitioner who -" and insert:
legal practice engaged in by a practitioner who -
(g)	in paragraph (h)(ii) delete "arrangement." and insert: arrangement; and
(h)	after paragraph (h)(ii) insert:

(iii) does not otherwise engage in legal

practice in this jurisdiction.

(2)	Delete regulation 97(2) and insert:
(2) The Law Society Council may -

(a)	specified body or organisation that provides legal aid should be entitled to be exempt from the requirement to comply with	resolve that employees of, and volunteers in, a engage in legal practice in the course of their duties in that body or organisation; or
(b)	revoke or amend a resolution made under paragraph (a).

11.          Regulation 98 amended

(1)	In regulation 98(1) delete "regulation 97 and wishes to have his or her" and insert:
regulation 97 in relation to any legal practice engaged in by the
practitioner and wishes to have the practitioner's
(2)	In regulation 98(2):

(a)	in paragraph (b) delete "102(1)(b)." and insert: 102(1)(b); and
(b)	after paragraph (b) insert:
(c) accompanied by information in support of the claim.

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(3)	Delete regulation 98(3) and insert:
(3) After 15 May in each year the Law Society must give notice to the Board, in relation to each notice of claim given under subregulation (1) since the last notice to

the Board was given under this subregulation -

(a) specifying the Australian legal practitioner who gave the notice of claim and the legal practice engaged in by the practitioner to which the claim relates; and

(b) stating either -

(i)     that the Law Society considers that the practitioner is an exempt practitioner in relation to the legal practice to which

the claim relates; or

(ii)     that the Law Society is not satisfied, on the basis of the information submitted under subregulation (2)(c) or any other relevant information before it, that the practitioner is an exempt practitioner in relation to the legal practice to which the claim relates.

(4)	A notice under subregulation (3) that includes the statement referred to in subregulation (3)(b)(ii) must include the reasons why the Law Society is not satisfied as referred to in that subregulation.
(5)	If the Law Society gives a notice including the statement referred to in subregulation (3)(b)(ii), the Law Society must also -

(a) provide to the Board -

(i)     the notice of claim given to the Law

Society by the Australian legal

practitioner; and

(ii)     any information in support of the claim submitted by the practitioner; and

(iii)     any other information relevant to the claim considered by the Law Society;

and

(b) give the practitioner written notice that it has
done so.

12.         Regulation 99 amended

(1) Delete regulation 99(1 )(b) and insert:

(b) claims that, if granted a local practising
certificate, the Australian lawyer will be an

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exempt practitioner in relation to any legal practice to be engaged in by the Australian lawyer,

(2) In regulation 99(2):

(a)	in paragraph (b) delete "102(1)(b)." and insert: 102(1)(b); and
(b)	after paragraph (b) insert:
(c) accompanied by information in support of the claim.

(3)	Delete regulation 99(3) and insert:
(3) The Law Society must, after receiving a notice of claim under subregulation (1), give notice to the Board -

(a) specifying the Australian lawyer who gave the notice of claim and the legal practice to be engaged in by the Australian lawyer to which the claim relates; and

(b) stating either -

(i)     that the Law Society considers that the Australian lawyer will, if granted a local practising certificate, be an exempt practitioner in relation to the legal practice to which the claim relates; or

(ii)     that the Law Society is not satisfied, on the basis of the information submitted

under subregulation (2)(c) or any other relevant information before it, that the

Australian lawyer will, if granted a local

practising certificate, be an exempt
practitioner in relation to the legal
practice to which the claim relates.

(4)	A notice under subregulation (3) that includes the statement referred to in subregulation (3)(b)(ii) must include the reasons why the Law Society is not satisfied as referred to in that subregulation.
(5)	If the Law Society gives a notice including the statement referred to in subregulation (3)(b)(ii), the Law Society must also -

(a) provide to the Board -

(i) the notice of claim given to the Law
Society by the Australian lawyer; and

21 May 2019 GOVERNMENT GAZETTE, WA 1471

(ii)     any information in support of the claim submitted by the Australian lawyer; and

(iii)     any other information relevant to the claim considered by the Law Society;

and

(b) give the Australian lawyer written notice that it
has done so.

13.          Regulation 101 amended

In regulation 101(2) delete "an exempt practitioner notice to that effect from the Law Society under regulation 98(3) or 99(3)." and insert:

an exempt practitioner in relation to any legal practice engaged in by the practitioner notice to that effect from the Law Society under regulation 98(3)(b)(i) or 99(3)(b)(i).

14.          Regulation 102 amended

(1) In regulation 102(1):

(a)	delete "law practice or an Australian legal practitioner -" and insert:
law practice, an Australian legal practitioner or an Australian lawyer -
(b)	delete paragraph (b) and insert:
(b) making a claim under regulation 98 or 99; or

(2)	In regulation 102(3) delete "practitioners are, or are not, members of Law Society." and insert:
Australian legal practitioners or Australian lawyers are, or are not, members of the Law Society.
(3)	In regulation 102(4) delete "a law practice or an Australian legal practitioner if the law practice or practitioner" and insert:
a law practice, an Australian legal practitioner or an Australian lawyer if the law practice, practitioner or lawyer

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(4) After regulation 102(4) insert:

(5) The Law Society may from time to time fix an
additional administration levy to be paid to the Law
Society by a law practice that makes, in relation to an
insurance year, more than 1 application to take and
maintain insurance under the P11 arrangement in
respect of part only of the year.

15.          Regulation 103 amended

(1) In regulation 103(1):

(a)	delete "law practice or Australian legal practitioner -" and insert:
law practice, Australian legal practitioner or Australian lawyer -
(b)	delete paragraph (b) and insert:
(b) making a claim under regulation 98 or 99; or

(2)	In regulation 103(2) delete "law practice or Australian legal practitioner" and insert:
law practice, Australian legal practitioner or Australian lawyer

16.          Regulation 104 amended

(I)	In regulation 104(1) delete "legal practice or Australian legal practitioner" and insert:
law practice, Australian legal practitioner or Australian lawyer
(2)	In regulation 104(2):

(a) in paragraph (b) delete "exempt practitioner; or" and insert:

exempt practitioner in relation to any legal practice; or

(b) after paragraph (b) insert:

(ba) an Australian lawyer making a claim under

regulation 99; or

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(3)	In regulation 104(5) delete "law practice or Australian legal practitioner" and insert:
law practice, Australian legal practitioner or Australian lawyer

17.     Part 13 Division 8 inserted

At the end of Part 13 insert:

Division 8— Provisions for Legal Profession

Amendment Regulations 2019

124.	Resolutions under r. 97 relating to bodies or organisations providing legal aid
(1)	This regulation applies if, immediately before the day
on which the Legal Profession Amendment (amendment day), a resolution made for the purposes of regulation 97(1 )(e)(iii) or (ea)(iv) is in force in relation to a body or organisation providing legal aid.
(2)	The resolution is taken, on and after amendment day, to
be a resolution made for the purposes of regulation 97(2)(a) that employees of, and volunteers in, the body or organisation should be entitled to be exempt from the requirement to comply with regulation 96(a) or (b) to the extent that they engage in legal practice in the course of their duties in that body or organisation.

C. BARRON, Clerk of the Executive Council.