Untitled document

Legal Practice (Practising Certificates) Act 1999

Act No. 9/1999

TABLE OF PROVISIONS

Section	Page
PART 1—PRELIMINARY	1

1.	Purpose	1
2.	Commencement	2
3.	Principal Act	2

PART 2—PRACTISING CERTIFICATE YEAR 3

4.	Definitions	3
5.	Duration of practising certificates	3
6.	Application for practising certificate	4
7.	New section 23A inserted	7

23A. Late application for practising certificate 7

8.	Trust account irregularities	7
9.	Refunds	8
10.	Suspension of practising certificate for failure to pay contribution	8
11.	Re-allocation of practitioners	8
12.	Annual report of trust account audits	8
13.	Fidelity Fund contributions	9
14.	Enrolment for Board elections	9
15.	Refunds payable out of Legal Practice Fund	10
16.	Transitional arrangements for 1999–2001	10

PART 3—FURTHER AMENDMENTS TO PRINCIPAL ACT 14

17.	Additional deputy registrars of the Tribunal	14
18.	Repeal of spent transitional provisions	14

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NOTES 15

i

Victoria

No. 9 of 1999

Legal Practice (Practising Certificates)

Act 1999†

[Assented to 11 May 1999]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purpose

The purpose of this Act is to amend the Legal

Practice Act 1996—

(a) to alter the practising certificate year from the calendar year to the financial year and deal with related matters; and

Legal Practice (Practising Certificates) Act 1999

Act No. 9/1999 s. 2

(b) to allow for the appointment of additional deputy registrars to the Legal Profession Tribunal.

2. Commencement

(1) This Act (except Part 2) comes into operation on

the day on which it receives the Royal Assent.

(2) Part 2 comes into operation on 15 August 1999.

3. Principal Act No. 35/1996. Reprint No. 1

In this Act the Legal Practice Act 1996 is called	as at 16 December
the Principal Act.	1997. Further amended by
Nos 46/1998, 52/1998,
62/1998 and 79/1998.

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Legal Practice (Practising Certificates) Act 1999

s. 4 Act No. 9/1999

PART 2—PRACTISING CERTIFICATE YEAR

4. Definitions

In section 3(1) of the Principal Act—

(a)	in the definition of "audit year" for "31 March" substitute "31 October";
(b)	in the definition of "insolvent under administration", after paragraph (c) insert—

"or

(d)	a person for whom a debt agreement has been made under Part IX of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of another jurisdiction) if the debt agreement has not ended or has not been terminated;";
(c)	year ending on 30 June;'.

after the definition of "practising certificate" ' "practising certificate year" means the

5. Duration of practising certificates

(1) In section 21(1) of the Principal Act for paragraph

(b) substitute—

"(b) subject to sub-section (3), is valid until the

following 30 June unless cancelled or

suspended sooner.".

(2) In section 21 of the Principal Act for sub-section

(2) substitute—

"(2) A practising certificate issued to an applicant

under section 23 (renewing practitioner)—

(a) subject to section 23(3C), takes effect on 1 July in the year in which it is

Legal Practice (Practising Certificates) Act 1999

Act No. 9/1999	s. 6
issued or at the time of issue, whichever is the later; and

(b) subject to sub-section (3), is valid until the following 30 June unless suspended or cancelled sooner.".

(3) In section 21(3) of the Principal Act for "the end

of the calendar year" substitute "1 July in the

year".

6. Application for practising certificate

(1) After section 22(2)(b)(iv) of the Principal Act

insert—

"(v) except in the case of an incorporated

practitioner, a nomination of the roll on
which the applicant wishes to be enrolled for
the purpose of elections of practitioner

members to the Board1; and".

(2) After section 22(2) of the Principal Act insert—

"(3) An RPA must notify the Board of

nominations made under sub-section

(2)(b)(v).

(4) A person—

(a) who applies under this section for a practising certificate during the first 3 months of a practising certificate

year; and

(b)

who was a current practitioner previous practising certificate year—

must pay a surcharge of 200% of the

prescribed fee for the certificate.

(5) Sub-section (4) does not apply if the

application is accompanied by a statutory
declaration from the applicant stating—

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s. 6 Act No. 9/1999

(a)	that the applicant has not engaged in legal practice since the end of the previous practising certificate year; and
(b)	that, as at the end of the previous practising certificate year, the applicant did not intend to engage in legal practice for at least the first 3 months of the current practising certificate year; and
(c)	the reasons why the intention referred to in paragraph (b) has changed.

(6) An RPA must forward each statutory

declaration received under sub-section (5) to

the Board.".

(3) In section 23 of the Principal Act—

(a)

in sub-section (2) for paragraph (a) "(a) must be made on or before 30 April

(except as provided by section 23A) or,
in the case of a person who is not a
current practitioner on 30 April, on or

before 30 June; and";

(b)

in sub-section (2)(c) for sub-paragraph (iii) "(iii) except in the case of an incorporated

practitioner, a nomination of the roll on
which the applicant wishes to be
enrolled for the purpose of elections of
practitioner members to the Board2;

and".

(4) In section 23 of the Principal Act, for sub-section

(3) substitute—

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Act No. 9/1999 s. 6

"(3) An RPA must notify the Board of

nominations made under sub-section
(2)(c)(iii).

(3A) An applicant under this section must, on or before 31 May, give the RPA or the Board (as the case requires) satisfactory evidence, in a form approved by the Board, that the

applicant has professional indemnity
insurance as required by this Act in respect
of the year for which the practising

certificate is sought.

(3B) If, as at 31 May, an applicant under this

section—

(a)	has not complied with sub-section (3A); or
(b)	has not complied with section 184 in relation to the preceding audit year; or
(c)	has not restored a deficiency in the applicant's trust account as revealed by the audit report in relation to that account—

the RPA or the Board (as the case requires)
must give notice to the applicant on or before
15 June of the failure to comply or to restore
the deficiency.

(3C) A practising certificate issued on application under this section does not take effect—

(a)	in the circumstances referred to in sub- section (3B)(a) or (b)—until the applicant has remedied the failure to comply to the satisfaction of the RPA or the Board (as the case requires); or
(b)

in the circumstances referred to in sub- has been restored to the satisfaction of

Legal Practice (Practising Certificates) Act 1999

s. 7

s. 8	Act No. 9/1999
the RPA or the Board (as the case requires).

(3D) A legal practitioner whose practising

certificate does not take effect because of sub-section (3C) must surrender it to the RPA that issued it or the Board within

14 days after being requested to do so by the RPA or the Board, unless the certificate has taken effect in the meantime.

Penalty: 20 penalty units.".

7. New section 23A inserted

After section 23 of the Principal Act insert—

"23A. Late application for practising certificate

(1) A current practitioner may apply under

section 23 for a new practising certificate after 30 April in any year on payment of a surcharge of—

(a)	if the application is made on or before 31 May—25% of the prescribed fee for the new certificate;
(b)	if the application is made after 31 May—50% of the prescribed fee for the new certificate.

(2) The RPA or the Board (as the case requires)

may refund all or part of a surcharge paid
under sub-section (1) if it considers that
there are special circumstances.

(3) This section does not apply to a person who was not a current practitioner on 30 April in the relevant year.".

8. Trust account irregularities

In section 27 of the Principal Act—
Legal Practice (Practising Certificates) Act 1999

Act No. 9/1999 s. 12

(a) in sub-section (1) for "Subject to sub-section (2), an RPA or the Board must refuse to issue a practising certificate authorising the receipt of trust money" substitute "An RPA or the Board may refuse to issue a practising certificate";

(b) sub-sections (2) and (3) are repealed.

9. Refunds

In section 29(6) of the Principal Act—

(a)

for "whole year" (where twice occurring) year";

(b) for "calendar year" substitute "practising certificate year".

10.  Suspension of practising certificate for failure to pay contribution

In the Principal Act—

(a)	in section 35 after "due date" insert "a contribution required to be paid by section 202 or";
(b)	in section 36(1) before "levy" (where twice occurring) insert "contribution or".

11. Re-allocation of practitioners

In the Principal Act—

(a)	in section 46(3) for "calendar year" substitute "practising certificate year";
(b)	in section 47(1) for "30 November in any year" substitute "31 May in any practising certificate year";
(c)	in sections 47(2) and 48(3) for "calendar year" substitute "practising certificate year".

12. Annual report of trust account audits

Legal Practice (Practising Certificates) Act 1999

s. 14 Act No. 9/1999

In section 184 of the Principal Act—

(a) in sub-sections (1) and (2)—

(i) for "31 July" substitute "28 February";

(ii)	for "31 March" substitute "31 October";
(b)	in sub-section (3) for "30 April" substitute "30 November".

13. Fidelity Fund contributions

(1) In section 201 of the Principal Act—

(a) in sub-section (1) for "calendar year" substitute "practising certificate year";

(b) in sub-section (2)—

(i)  for "30 September" (where twice occurring) substitute "30 April";

(ii) for "30 November" substitute
"31 May".

(2) In section 202(2), (2A) and (3) of the Principal

Act for "calendar year" (wherever occurring) substitute "practising certificate year".

(3) After section 202(4) of the Principal Act insert—

"(4A) A contribution referred to in sub-section (1)

is payable—

(a)	at the time of applying for the practising certificate or variation; or
(b)	if the amount of the contribution has not been determined by that time—at the time fixed by the Board.".

14. Enrolment for Board elections

In section 365(3) of the Principal Act—

(a) after "under this section" insert "or notification under section 22(3) or 23(3)";

Legal Practice (Practising Certificates) Act 1999

Act No. 9/1999

(b) for paragraph (a) substitute— "(a) in the case of a notice under sub-section

(1) or notification under section 22(3) or 23(3), enrol the practitioner on the roll nominated by him or her and the combined roll;".

15. Refunds payable out of Legal Practice Fund

In section 391(3)(c) of the Principal Act after

"section" insert "23A(2),".

16. Transitional arrangements for 1999–2001

For Part 12 of Schedule 2 to the Principal Act substitute—

'PART 12—TRANSITIONAL ARRANGEMENTS FOR CHANGE OF PRACTISING CERTIFICATE

AND AUDIT YEARS

57. Application of Part

This Part applies despite anything to the contrary in
Division 4 of Part 2, Division 2 or 3 of Part 6 or
Division 1 of Part 7 of this Act or in the Legal

Practice (Fees) Regulations 1997.

58. 1999 practising certificates

(1) A practising certificate in force immediately before 15

August 1999 is valid until 31 December 1999 unless suspended or cancelled sooner.

(2) A practising certificate issued on an application under section 22 on or after 15 August 1999 but before 31 unless suspended or cancelled sooner.

59.  Practising certificate for 2000–2001 (renewing practitioners)

(1) This clause applies to an application under section 23

for a new practising certificate by a person who is a
current practitioner in 1999.

(2) The application must be made on or before

31 October 1999.

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s. 16 Act No. 9/1999

(3) The evidence required by section 23(3A) must be given to the RPA or the Board by 30 November 1999.

(4) A current practitioner who is a regulated practitioner of the Bar complies with section 23(3A) if he or she gives the Bar satisfactory evidence of professional

indemnity insurance, as required by this Act, in
respect of the period from and including 1 January
2000 to 30 June 2000.

(5) A current practitioner who is a regulated practitioner of the Bar must, on or before 31 May 2000, give the Bar satisfactory evidence, in a form approved by the Board, that the practitioner has professional

indemnity insurance as required by this Act in respect
of the period from and including 1 July 2000 to 30

June 2001.

(6) Section 23(3B) applies as if a reference in that

section—

(a) to 31 May were a reference to 30 November; and

(b) to 15 June were a reference to 15 December.

(7) Section 23A applies to the application as if a

reference in that section—

(a) to 30 April were a reference to 31 October; and

(b) to 31 May were a reference to 30 November.

(8) The prescribed fee payable for the practising

certificate is 150% of the fee otherwise payable for

the certificate.

(9) A practising certificate issued in response to the

application—

(a)

subject to section 23(3C), takes effect on is the later; and

(b) subject to section 21(3), is valid until 30 June 2001 unless suspended or cancelled sooner.

Legal Practice (Practising Certificates) Act 1999

Act No. 9/1999 s. 16

60.  Practising certificate for 2000–2001 (new or former practitioners)

(1) This clause applies to an application under section 22

for a practising certificate that is issued on or after
1 January 2000 but before 30 June 2000.

(2) The prescribed fee payable for the practising

certificate is to be determined in accordance with the

formula—

B

F = 1 5A ⋅ ×

547

where—

F is the fee;

A is the fee otherwise payable for the certificate if it were valid for a 12 month period;

B is the number of days for which the certificate is valid.

(3) A practising certificate issued in response to the

application is valid until 30 June 2001 unless

suspended or cancelled sooner.

61. Variation of practising certificate conditions

(1) This clause applies to an application under section 29

for variation of the conditions of a practising
certificate that is valid until 30 June 2001.

(2) Section 29 applies to an application referred to in sub- clause (1) as if—

(a)	a reference in sub-section (6) of that section to a practising certificate year were a reference to the period from and including 1 January 2000 to 30 June 2001; and
(b)	for the formula in sub-section (6) of that section there were substituted—

D

" A = (B − × C) ".

547

62. Statutory deposit and audit requirements

For the purposes of Divisions 2 and 3 of Part 6 of this Act, the period from and including 1 April 1999 to 31 October 2000, is deemed to be an audit year.

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s. 16 Act No. 9/1999

63. Fidelity Fund contributions for 2000–2001

For the purpose of determining contributions to the that section—

(a)	to the prescribed date in 1999 were a reference to 30 September 1999 or such later date up to 30 November 1999 as the Attorney-General may fix by notice published in the Government Gazette before 30 September 1999; and
(b)	to the immediately following practising certificate year in respect of 1999 were a reference to the period from and including 1 January 2000 to 30 June 2001.'.

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Legal Practice (Practising Certificates) Act 1999

Act No. 9/1999 s. 17

PART 3—FURTHER AMENDMENTS TO PRINCIPAL ACT

17. Additional deputy registrars of the Tribunal

In the Principal Act—

(a)	in sections 103(1) and 131(2) for "deputy registrar" substitute "a deputy registrar";
(b)	in sections 132(b) and 158(1) for "the deputy registrar" substitute "a deputy registrar";
(c)

in sections 160(1)(b), 162(4), 165(1), 167 substitute "a deputy registrar";

(d) in section 393—

(i)  in sub-section (2)(b) for "a deputy registrar" substitute "one or more deputy registrars";

(ii)  in sub-section (3) for "deputy registrar" substitute "deputy registrars";

(e)	in section 400(1) for "deputy registrar" substitute "a deputy registrar";
(f)	in section 404(1) for "deputy registrar" (where first occurring) substitute "a deputy registrar";
(g)

in clauses 20(1)(d) and 21(3)(e) of "a deputy registrar".

18. Repeal of spent transitional provisions

In Schedule 2 to the Principal Act clauses 5, 6, 9,
10, 15, 16, 27(1) and (2), 30, 50, 52, 53, 55 and 56

are repealed.

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Legal Practice (Practising Certificates) Act 1999

Notes Act No. 9/1999

NOTES

†

Minister's second reading speech—

Legislative Assembly: 25 March 1999

Legislative Council: 20 April 1999

The long title for the Bill for this Act was "to amend the Legal Practice Act 1996 to alter the practising certificate year from the calendar year to the financial year and for other purposes."

1 S. 6(1): Section 365(4) provides that a person may be enrolled on the roll of

advocates only if he or she engages in legal practice primarily as an

advocate.

2 S. 6(3)(b): See note 1.