Untitled document

Professional Standards and Legal Profession Acts Amendment Act 2008

No. 81 of 2008

table of provisions

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendments to Professional Standards Act 2003

3Definitions

4Does this Act apply to all types of occupational liability?

5Preparation and approval of schemes

6Public notification of schemes

7Consideration of comments, submissions and other matters

8Submission of schemes to Minister

9Gazettal, tabling and disallowance of schemes

10Commencement of schemes

11Challenges to schemes

12Review of schemes

13Amendment and revocation of Victorian schemes

14New sections 18A and 18B inserted

18ANotification of revocation of schemes

18BTermination of operation of interstate schemes in this jurisdiction

15Officers or partners of persons to whom a scheme applies

16Duration of scheme

17Functions of Council

18New section 46A inserted

46ACo-operation with authorities in other jurisdictions

19No contracting out of this Act

20Review of Act

21New section 61 inserted

61Expiry date of existing schemes—Professional Standards and Legal Profession Acts Amendment Act 2008

22Statute law revision

Part 3—Amendments to Legal Profession Act 2004

23Complaints

24New Part 14 inserted in Schedule 2

Part 14—Professional Standards and Legal Profession ActS Amendment Act 2008

14.1Dealing with complaints

Part 4—General

25Repeal of amending Act

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Endnotes

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

1Purposes

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

(ii)to make other amendments; and

(b)to amend the Legal Profession Act 2004 to make further provision regarding complaints about legal practitioners.

2Commencement

This Act comes into operation on the day after the day on which it receives the Royal Assent.

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Part 2—Amendments to Professional Standards Act 2003

3Definitions

(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;".

4Does 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).".

5Preparation 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.".

6Public 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.".

7Consideration 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.".

8Submission 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.".

9Gazettal, 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".

(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.".

10Commencement 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.".

11Challenges 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.

(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.".

12Review 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.".

13Amendment 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".

(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.".

14New 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.

(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.

18BTermination 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.

(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.".

15Officers 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".

16Duration 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

(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.".

17Functions 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".

18New 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.".

19No 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.".

20Review of Act

In section 58(2) and 58(3) of the Professional Standards Act 2003, for "5 years" substitute "6 years".

21New 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 ProfessionActsAmendment 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.".

22Statute law revision

In the Professional Standards Act 2003—

(a)section 57(4) is repealed;

(b)Schedule 4 to that Act is repealed.

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Part 3—Amendments to Legal Profession Act 2004

23Complaints

(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.".

24New 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

14.1Dealing 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.".

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Part 4—General

25Repeal 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).

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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."