Update on National Legal Profession Reform
National Legal Profession Reform is progressing in New South Wales and Victoria notwithstanding the decision of the other States and Territories not to commit at this stage. The New South Wales and Victorian Governments are engaged in ongoing discussions on implementation and the Law Society will continue to be consulted.
Proposed regulatory structure
The proposed new structure for regulation includes the creation of two new bodies – a National Legal Services Board and a National Legal Services Commissioner (who would also be Chief Executive Officer of the Board). While most regulatory powers would reside in these national bodies, many of the powers of the Board, and most of the powers of the Commissioner would actually be exercised locally by State and Territory regulators.
Each jurisdiction would need to consider how regulatory functions would be delivered at the local level, and by which regulatory bodies. It is expected that the Law Society will continue to be responsible for the administration of practising certificates and that we will continue to be a co regulator for compliance and complaints-handling functions in NSW.
A key step in constructing the national framework would be for the proposed legislation to be enacted by the Parliament of a host jurisdiction. It would then be adopted in identical terms in each of the other participating States and Territories.
History of the reforms
Since 2004, nearly all States and Territories have enacted their legal profession legislation on the basis of a national Model Bill. However, variations between the jurisdictions meant that a single national framework for legal profession regulation was not achieved. It was in this context that the Council of Australian Governments (COAG) decided to bring regulation of the legal profession onto its microeconomic and regulatory reform agenda.
Following COAG’s decision in February 2009, the National Legal Profession Reform Taskforce was appointed to make recommendations and propose draft legislation. In addition to achieving uniformity, the Taskforce agreed that the reform process provided an opportunity to enhance the clarity and accessibility of consumer protection. Consumer protection has since become one of the recurring themes of this process.
The Taskforce started its consultation process with the release of seven Discussion Papers in late 2009. The result was a proposed new framework for national regulation embodied in a draft National Law and National Rules. These were released for a three month public consultation exercise starting in May 2010.
In November 2010, the Taskforce released an interim report which addressed, at a high level, some of the key issues raised during the consultation, and made recommendations on funding. Just before Christmas 2010, amended draft legislation was released which reflected the Taskforce’s revised views.
At its meeting on 13 February 2011, COAG “agreed in principle to settle reforms to legal profession regulation by May 2011 (with the exception of Western Australia and South Australia)”. By the end of May 2011, COAG had received a revised legal profession reform package but it was not made publicly available. Following cancellation of its 15 July meeting, COAG was expected to finalise the reforms at its meeting on 19 August. This did not eventuate and it was reported that Tasmania and the Australian Capital Territory also had reservations about the scheme.
On 9 September 2011, the Commonwealth Attorney-General released the revised draft National Law following discussions between the Attorneys-General of the Commonwealth, New South Wales, Victoria, Queensland and the Northern Territory. On 19 October 2011, the Commonwealth Attorney-General announced that the new National Legal Services Board and National Legal Services Commissioner will be established in New South Wales. The Law Society welcomed the announcement and will give the new Board and Commissioner every assistance in the discharge of their functions. The Attorney-General also announced that Victoria will introduce the legislation to implement the reforms that will be replicated across participating jurisdictions.
On 3 October 2012, the Attorney-General of Queensland announced that Queensland will not participate in the national scheme. The Law Society understands that the project is progressing in New South Wales and Victoria notwithstanding the decision of the other States and Territories not to commit at this stage. The New South Wales and Victorian Governments are engaged in ongoing discussions on implementation and the Law Society will continue to be consulted. The Law Society has consistently supported the objectives of national regulation and will continue working with the NSW Government and other stakeholders as implementation proceeds.
For further information about the reforms please click here to access:
- National Legal Profession Reform Legislation - September 2011 (draft)
- Attorney-General's Media Release 'National Legal Profession one step closer' - 9 September 2011
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