The Law Society of South Australia

National Legal Profession Reform Project

Latest Developments

Attached are copies of the latest versions of the National Legal Profession Reform proposed National Law and Rules which were released in late December 2010.

Also attached is an Overview of the proposed regulatory framework which was prepared by the Law Council.

Please note that -

1. Having considered submissions made and having issued an Interim Report, the Taskforce has recommended a number of
changes to the legislative package previously developed by it;

2. SCAG noted the legislative package at its meeting on 10 December 2010;

3. COAG is to consider the legislative package at its meeting on 14 February 2011;

4. The next step of the reform process will be determined by COAG at its meeting;

5. The Taskforce, having satisfied COAG’s request for the development of a package, has now disbanded.

Roger Wilkins, as Chair of the Taskforce, gave a speech to the ACLA National Conference on 12 November, which is repeated in the publication Lawyers’ Weekly on 15 November, wherein he stated:

Any shortcomings of the proposed reform package will have to be sorted out once the legislation is passed;
It will be the task for the National Legal Services Board to do this;
The Taskforce has deliberately left flexibility in the Board (by means of making Rules and Guidelines) to sort out these issues.

Whether or not it will be possible to influence policy direction is unknown, however the Law Council have suggested the following:

1. Constituent bodies should examine the legislation and pass their comments to the Law Council for consolidation;

2. These comments may take the form of minor changes to the package, for reasons of clarity or error.

3. Notwithstanding the flexibility which lies in the Board to make Rules or Guidelines to clarify or enhance the National law, there may
be policy issues the profession still wishes to raise at the appropriate time.

4. All comments should be provided to the Law Council by 28 January 2011 and these comments will be collated and passed to
Directors and the Executive for consideration.

A report is being prepared for consideration by the members of the Executive Committee setting out commentary/analysis on the redrafted version at its meeting on 17 January 2011 to enable the Society to determine its attitude, response to the Law Council and if necessary, an appropriate strategy.

Background and History

The National Legal Profession Reform (NLPR) Project is an initiative of the Council of Australian Governments (COAG). The project has significant implications for the regulation of the profession.

Members of the Profession are invited to contact the Society with any questions, queries or comments they may have in relation to the process and the proposed legislation. Please click here to send any response you might have.

The Federal Attorney-General's office has released its package of materials related to the National Legal Profession Reform. There is a 3 month consultation period, ending 13 August 2010.

The package includes:

draft National Law which contains the Taskforce's proposals on national regulation of the profession;
draft National Rules;
Consultation Regulation Impact Statement;
Consultation Report which explains some of the key proposals made by the Taskforce and poses questions about proposals on which submissions are particularly sought; and
Solicitors’ Rules and Barristers’ Rules which were developed by the Law Council of Australia and the Australian Bar Association respectively, not the Taskforce.

The submission which has been made to the Law Council of Australia by this Society is attached. In addition to this submission, the Society will also be providing a detailed report on technical matters, legislative drafting issues and other "micro" concerns. The Society has reserved its right to submit a separate response to the Taskforce should its position on any substantive matter be inconsistent with that of the Law Council.

The submission was drafted by its "Act as a Whole" Sub-Committee of Council and settled by the Executive Committee at its meeting on Monday, 28 June 2010.

The drafting of that response would not have been possible without the significant input of all of the Sub-Committees of Council which were established for this purpose. The composition of each Sub-Committee and the Terms of Reference of each are shown below:-

Act as a Whole	Ralph Bönig (Chair) Morry Bailes Richard Mellows Jan Martin Stephen Hodder	This Sub-Committee will have two responsibilities: § The first of these will be to pull together each of the responses of the other sub-committees into a consolidated draft response, having regard to identifying and dealing with any overlap or inconsistencies and § Secondly, it will have the responsibility of considering the impact of the draft legislation on the Society itself, having regard to identifying matters such as:- v Income and costs recoupment v Administration fees v Loss of relevance as a result of any reduced role including membership pricing v Financial implications as a result of loss of any role such as management of the Guarantee Fund, professional standards, Law Claims and PIIF, issue of practising certificates and the like v Space and staffing requirements with a view to the preparation of a summary thereof for consideration as part of the Society’s response and highlighting implications for later consideration by the Executive Committee. (That is, whilst not the role of this sub-committee to take such action or make decisions, it will have the role of highlighting any such concerns and their potential impact).
Admissions	Rocky Perrotta (Chair) David Bamford Kim Eldridge John White Jan Martin David Milne	To review the entire Bill for implications in respect of Admissions. Compare the Bill with the existing legislation. Prepare a cross-referenced summary of issues and draft comments for inclusion in the response of the Society.
Business Structures	James Jarvis (Chair) Manik Meah Tim Mellor Libby Bishop David Milne	To review the entire Bill for implications in respect of Business Structures. Compare the Bill with the existing legislation. Prepare a cross-referenced summary of issues and draft comments for inclusion in the response of the Society. The main focus of this Sub-Committee will be to look at issues associated with MDP’s and ILP’s. This Sub-Committee will also need to identify the requirements within the Bill which might affect (positively or negatively) the costs of practice.
Complaints and Discipline	Dami Sheldon (Chair) Jane Schammer Philippa Branson Sue Bishop	To review the entire Bill for implications in respect of Complaints and Discipline Compare the Bill with the existing legislation. Prepare a cross-referenced summary of issues and draft comments for inclusion in the response of the Society. This Sub-Committee will deal with the issues associated with complaints handling, separation as between Trust Account, fee, conduct and consumer complaints, responsibility at state level, roles of the various agencies in relation to complaints, discipline, committee powers and roles, the role of the Courts in the complaints and discipline process.
Costs and Retainer Agreements	Jan Martin (Chair) Michael Janus Kate Henning Philippa Branson Sue Bishop	To review the entire Bill for implications in respect of Costs. Compare the Bill with the existing legislation. Prepare a cross-referenced summary of issues and draft comments for inclusion in the response of the Society.
Fidelity Funds	John Goldberg (Chair) Jane Schammer (Dep) Libby Bishop Sue Bishop David Milne	To review the entire Bill for implications in respect of Fidelity Funds. Compare the Bill with the existing legislation. Prepare a cross-referenced summary of issues and draft comments for inclusion in the response of the Society.
Professional Indemnity Insurance	John White (Chair) Ralph Bönig Grant Mitchell Libby Bishop David Milne Geoff Thomas	To review the entire Bill for implications in respect of Professional Indemnity Insurance. Compare the Bill with the existing legislation. Prepare a cross-referenced summary of issues and draft comments for inclusion in the response of the Society.
Regulatory Framework	Morry Bailes (Chair) Richard Mellows Ralph Bönig Rocky Perrotta Jan Martin Stephen Hodder Philippa Branson	To review the entire Bill for implications in respect of Regulatory Framework. Compare the Bill with the existing legislation. Prepare a cross-referenced summary of issues and draft comments for inclusion in the response of the Society. This Sub-Committee will deal with the issues and repercussions such as the appointment (if any) of an Ombudsman, justification for that additional layer and the associated costs, the role of the Board and its composition, how the Board members are to be appointed and by whom, independence of the profession (noting a Government appointed body will lead to Government control), consistency between the states, role of the Society in relation to regulation, whether there will be Rules or Regulations (and who will have the ability to change them), how, and what consultation will be involved.
Trust Accounting	John Goldberg (Chair) Jan Martin Philippa Branson Sue Bishop David Milne	To review the entire Bill for implications in respect of Trust Accounting. Compare the Bill with the existing legislation. Prepare a cross-referenced summary of issues and draft comments for inclusion in the response of the Society.
Comparison of current and proposed legislation	Lorna Hartwell Sue Bishop	The role of this Sub-Committee will be to undertake a “side by side” comparison of the existing legislation and the Bill to identify any provisions in the existing legislation (such as the Litigation Assistance Fund) which are not otherwise dealt with by the areas covered by the other sub-groups.

On behalf of the profession, the Society extends its sincere appreciation to each of the Sub-Committee Chairs and members for their generosity in relation this significant and time consuming task.

Prior to the release of the package, the Taskforce had released a number of papers. The Society's responses to the papers, and the responses of the "K8" group, being the members of the Consultative Group who represent various State and Territory Societies and Bars, are available via the links below:

Taskforce Paper - "The Regulatory Framework: A National Legal Profession" - 16 September 2009

Response of the Law Society of South Australia

Response of the K8 Group

Taskforce paper - "National Legal Services Ombudsman" - 30 October 2009

Response of the Law Society of South Australia

Response of the K8 Group

Taskforce Paper - "Legal Costs" - 4 November 2009

Response of the Law Society of South Australia

Response of the K8 Group

Supplementary response of the K8 Group

Taskforce Paper - "Professional Indemnity Insurance" - 11 November 2009

Response of the Law Society of South Australia