Hansard - Legal Profession (Education) Bill

PARLIAMENT OF VICTORIA – LEGISLATIVE ASSEMBLY
9 August 2007
pages 17 to 19

LEGAL PROFESSION AMENDMENT (EDUCATION) BILL

Mr WAKELING (Ferntree Gully) – It gives me pleasure to rise to speak on the Legal Profession Amendment (Education) Bill. The purpose of this bill is to amend the Legal Profession Act 2004 regarding the assessment of applications for admission to practise as lawyers, the composition of the Council of Legal Education and the Board of Examiners and the requirements for statements of legal costs and the recovery of unpaid costs.

This bill seeks to make a number of amendments to the Act.

These include the requirement of applicants who apply for admission based on overseas qualifications to pay the reasonable cost of investigating the claimed qualifications, and I would like to deal with that a little bit later.

The bill also contains amendments that allow the board to consider any disciplinary action taken against persons whilst they were students in deciding whether they are fit for admission; require universities and other educational bodies to provide the board with documents relating to any disciplinary proceedings and require applicants to pay the cost of providing those documents; allow the council to make procedural rules regarding admission to practice and requiring applicants to undergo police checks; allow the board to require mental impairment assessments, including assessments relating to alcoholism or drug dependency of applicants for admission, if the board believes on reasonable grounds that they may have a mental impairment affecting fitness to practice. Other amendments include altering the composition of the Council of Legal Education and the Board of Examiners from 1 July 2008. The council will also consist of judges and legal education representatives, and the board will consist of legal practitioners under the chairmanship of a former judge.

The amended bill will also provide for administrative support for the council by the staff of the board, instead of an honorary secretary, which is the current situation. It will provide for the removal from the roll of a practitioner whose interstate practising certificate is cancelled. It will also allow statements about legal costs provided by law firms to clients to be based on standard forms prescribed in the regulations and make clear that the existing $750 threshold for requirements for statements about legal costs is based on fees excluding GST, which is currently an issue. It also allows for legal fees held by the legal services commissioner to be released if a complainant fails to attend mediation, and it allows settlement agreements about legal fees to be enforced through the Magistrates Court.

As stated by the member for Box Hill, the Liberal Party will not be opposing this legislation.

It deals with the implementation of a range of changes which have been brought about by the report which the member for Prahran alluded to earlier. As the member for Box Hill and the Leader of The Nationals indicated, we have some concerns about the draft legislation, and I refer to those points now.

The first is in regard to the proposed insertion of new subsection (1A) following section 2.3.2(1), which deals with the payment of reasonable costs incurred by the council in assessing overseas persons seeking admission to practice as a lawyer. We were advised by departmental staff who assisted us at the briefing that at present the qualifications of those persons are assessed on an honorary basis. Whilst it is not unreasonable to expect that a charge be levied for that service, we have some concern about the definition of ‘reasonable cost’. Like most things, it is open to legal challenge, but we believe the proposed legislation does not provide a clear definition as to what a reasonable cost would be.

There was some advice that a fee of, potentially, $250, may apply, but as members could appreciate, given that the legislation does not seek to provide any clarity as to what that fee will be, it is incumbent upon this government to provide that clarity, particularly so that people who are seeking admission as legal practitioners can be well aware of what the fee will be. I hope the minister, in his summing up on the bill, will provide some greater clarity on that point.

The other point I would like to discuss relates to disciplinary proceedings, which the member for Box Hill also alluded to. After section 2.3.3(1)(a) of the principal act a new provision, paragraph (ab) will be inserted. It says:

(ab) whether the person is or has been the subject of disciplinary action, however described, arising out of the person’s conduct in –

(i) attaining approved academic qualifications or corresponding academic qualifications; or
(ii) completing approved practical legal training requirements or corresponding practical legal training requirements ...

At the bill briefing it was put to us that this new provision would relate specifically to the area of plagiarism. On the face of it that is a position that we would not necessarily oppose, but given that the way it is provided for in the legislation is quite broad, because it relates solely to disciplinary action, one can only assume that this provision could be used to deal with a whole range of issues. These could include involvement in political activities at university – like many members in this place, I was engaged in political activities. It could cover various bodies, particularly student representative councils.

That would be relevant if the body were not of the same political ilk and if it were the same as the one I was involved in. I am sure it is no surprise that the Students Representative Council of La Trobe University was not dominated by the Liberal Party. Actions that could be brought before that body could well fall under those to be dealt with under the category of disciplinary action.

Whilst I understand and appreciate the need for this provision in the bill, as explained at the briefing, I believe there is a requirement for the minister to provide greater clarity. As the member for Box Hill said, in his second-reading speech on this bill the minister said that this provision includes extending the range of issues the Board of Examiners may be informed about to include conduct while in tertiary education. Obviously that is a very broad definition, and whilst the legislation is a bit more specific we believe it is incumbent upon the minister to provide greater clarification on this issue so that that matter can be resolved. If that could happen at the earliest opportunity, it would reduce the need for this legislation to come back before the house to provide greater clarity and resolve both those issues.

As I have indicated, we will not be opposing the bill. We will be supporting the general thrust of the bill, but there are certainly areas of it which we have concerns about. It is incumbent upon the minister to provide clarity on these concerns.

Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm