Wednesday, 5 June 2019

 Ms HENNESSY (Altona—Attorney-General, Minister for Workplace Safety) (10:19): In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Legal Profession Uniform Law Application Amendment Bill 2019.

In my opinion, the Legal Profession Uniform Law Application Amendment Bill 2019, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

Part 3 of the Bill retrospectively confirms that the Victorian Legal Services Commissioner (VLSC) is the entity with power to deal with disciplinary complaints and investigations commenced under the Legal Profession Act 2004. Part 3 clearly prescribes that the VLSC is the correct body to deal with such complaints and investigations, and provides that anything that the VLSC (or the Victorian Legal Services Board or any court or tribunal) has previously done in relation to such complaints and investigations has effect as though the VLSC had been so prescribed. Part 3 might limit rights under the Charter. However, those limitations are justified in view of the amendment’s objective of protecting the public from legal practitioners who have engaged in misconduct.

Human Rights Issues

Right to a fair hearing

The right to a fair hearing in section 24 of the Charter is engaged by proposed new s 186, inserted by clause 10 of the Bill. This is because this provision may affect the outcome of court proceedings by changing the substantive law by retrospectively validating acts that may otherwise have been subject to challenge. However, although the provision amends the substantive law in a way that may affect legal rights, it does not interfere with any procedural rights. It does not interfere with a person’s ability to have their legal rights heard and determined before a fair and impartial decision maker. As such, the right to a fair hearing is not limited by these provisions.

Right against self-incrimination

Section 25(k) of the Charter protects the right of a person not to be compelled to testify against themselves or to confess guilt (the right against self-incrimination). This right may be limited to some degree by ss 185 and 186, because these provisions authorise and retrospectively validate the exercise of coercive investigatory powers under the Legal Profession Act 2004. In particular, the right against self-incrimination may be limited by the exercise of the powers in s 4.4.11 of that Act to require a lawyer, a law practice, or an associate of a law practice, to provide an explanation, documents or information, even where to do so would tend to incriminate the person providing those documents or information.

However, authorising the use of these powers is reasonable and justifiable for the same reasons that the powers were justifiable under the Legal Profession Act 2004 prior to the introduction of the Uniform Law. The powers are necessary to ensure adequate compliance with the regulatory scheme by lawyers. They go no further than necessary to achieve this purpose: where a person objects to producing a document or providing information on the grounds of self-incrimination, the document or information cannot be used against that person in a proceeding for a criminal offence, other than an offence against the Legal Profession Act 2004, an offence relating to trust accounts, or a perjury offence. Further, the provision applies only to lawyers, law practices and associates of law practices, who have voluntarily chosen to take part in the profession and comply with its regulatory scheme.

While retrospective validation of the use of coercive powers would not generally be appropriate, in this case, it is justifiable to do so on the basis of the amendment’s overarching purpose of protecting the public from legal practitioners who have engaged in misconduct. The amendments are reasonable and justified to ensure the continuity and validity of the scheme for professional regulation of legal practitioners as set out in the Legal Profession Act 2004 and the Legal Profession Uniform Law Application Act 2014.

Further, it was clearly intended that the VLSC should have jurisdiction over complaints and investigations commenced under the Legal Profession Act 2004. The Bill does not introduce or extend any powers that limit rights, it simply clarifies that the VLSC is able to exercise the powers that the Legal Profession Act 2004 gave to the Legal Services Commissioner.

Right to privacy and reputation

Section 13 of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with and the right not to have their reputation unlawfully attacked. These rights are engaged by these provisions, because they authorise the VLSC to exercise powers that may involve disclosure of private information, and to conduct investigations which may negatively impact upon the reputation of legal practitioners. However, to the extent that privacy and reputation are interfered with by the VLSC, any such interference will be neither unlawful nor arbitrary. The lawfulness of any interference is provided for by the provisions themselves, and the powers in the Legal Profession Act 2004 can only be exercised for the purposes and in the specific circumstances set out in the Act, and therefore will not be arbitrary. As such, the rights in s 13 are not limited by these provisions.

For the reasons outlined above, the amendments contained in this Bill are compatible with human rights set out in the Charter.

Hon Jill Hennessy MP Attorney-General

 Ms HENNESSY (Altona—Attorney-General, Minister for Workplace Safety) (10:19): I move:

That this bill now be read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Bill will amend the Legal Profession Uniform Law Application Act 2014 (the Application Act), including the Legal Profession Uniform Law (the Uniform Law), which is a schedule to the Application Act.

The Act commenced on 1 July 2015, and created a harmonised system for the regulation of the legal profession in Victoria and New South Wales. Victoria is the ‘host jurisdiction’ for the Uniform Law, and amendments made to the Uniform Law are automatically applied in other participating jurisdictions.

In February, the New South Wales, Victorian, and Western Australian Attorneys-General signed a new intergovernmental agreement on behalf of their respective jurisdictions, to formalise Western Australia’s entry into the Uniform Law scheme.

The expansion of the Uniform Law scheme to Western Australia is a major step in the evolution of the scheme. A significant majority of Australia’s lawyers and law practices will be covered by the scheme, delivering benefits to the legal industry and consumers alike.

Victorian legal practitioners and law practices will benefit through the harmonisation of regulation in another jurisdiction, thereby further reducing barriers to interstate legal practice.

Some of the scheme’s existing governance arrangements reflect the fact that when the scheme was established, there were only two participating jurisdictions. To reflect the expansion of the scheme to include Western Australia, changes to the governance of the scheme are necessary. These changes should also position the scheme to accommodate new states and territories in the future.

The Bill will amend the Uniform Law to facilitate Western Australia’s participation in the Uniform Law scheme, by increasing the total number of members of the Legal Services Council, the peak interjurisdictional body that oversees the scheme and sets policy under the scheme. The Legal Services Council will increase from five members to seven and the Uniform Law will be amended to provide that, at all times, at least one member of the Council is drawn from each participating jurisdiction. The Bill will also provide for greater inter-jurisdictional participation on the Admissions Committee, which supports the Legal Services Council by making uniform rules relating to the admission of lawyers. The Bill will remove the current seven-member limit on the size of the Admissions Committee, and provide that the Admissions Committee must include a current or former Supreme Court judge from each participating jurisdiction.

These amendments to the Uniform Law will ensure that the membership of the key governance bodies under the Uniform Law scheme is appropriately balanced between its respective participating jurisdictions.

Once the amendments to the Uniform Law have been passed in Victoria, Western Australia will introduce a Bill to adopt the Uniform Law. The Western Australian Attorney-General has announced that the Uniform Law will formally commence in Western Australia on 1 July 2020.

The Bill also includes amendments to the Application Act, to retrospectively clarify that the Victorian Legal Services Commissioner (VLSC) is the responsible entity for continuing disciplinary complaints and investigations against legal practitioners that were commenced under the legislation that preceded the Application Act—that is, the Legal Profession Act 2004. Although it was clearly intended that the VLSC should have jurisdiction in respect of such earlier matters, the Bill will clearly prescribe that the VLSC is the correct body to deal with such complaints and investigations, and will provide that anything that the VLSC (or the Victorian Legal Services Board or any court or tribunal) has previously done in relation to such complaints and investigations has the effect as though the VLSC had been so prescribed.

I commend the Bill to the house.

 Mr SOUTHWICK (Caulfield) (10:19): I move:

That debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday, 19 June.