BILATERAL AGREEMENT ON THE LEGAL PROFESSION UNIFORM FRAMEWORK

Transcription

1 INTERGOVERNMENTAL AGREEMENT BILATERAL AGREEMENT ON THE LEGAL PROFESSION UNIFORM FRAMEWORK The State of New South Wales The State of Victoria

2 BILATERAL AGREEMENT ON THE LEGAL PROFESSION UNIFORM FRAMEWORK PARTIES This Agreement is made between the State of New South Wales and the State of Victoria ( the Parties ). RECITALS In Australia, the regulation of the legal profession is the responsibility of the States and Territories. The Parties recognise that further harmonisation of legal profession regulation across their respective jurisdictions would generate significant economic and social benefits for law practices and consumers alike. Building on the work undertaken under the auspices of the Council of Australian Governments ( COAG ) National Partnership to Deliver a Seamless National Economy, the Parties will enact uniform legal profession legislation to establish a common legal services market across their respective jurisdictions. This market will be governed by the Legal Profession Uniform Framework, which the Parties shall jointly establish and administer in equal partnership. The Framework adopts an applied law approach and establishes inter-governmental statutory bodies to ensure that the benefits of uniformity are secured into the future. This Agreement sets out the principles and processes for cooperation between the Parties to achieve this aim. The Parties are committed to the goal of achieving national uniformity of regulation, and believe that benefits of the Framework will be maximised with the addition of all jurisdictions as participants in the Framework. OBJECTIVES OF THE LEGAL PROFESSION UNIFORM FRAMEWORK The objectives of the Framework are to promote the administration of justice and to establish an efficient and effective Australian legal profession, by: a. providing and promoting uniformity in the law applying to the Australian legal profession; b. ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; c. enhancing the protection of clients of law practices and the protection of the public generally; d. empowering clients of law practices to make informed choices about the services they access and the costs involved; e. promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and f. providing a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained. Page 1

3 OPERATIVE PROVISIONS The Parties agree as follows. 1 Definitions Unless the contrary intention appears, in this Agreement a term in bold type has the meaning shown opposite it. Additional Jurisdictional Provisions Admissions Committee COAG Commissioner Council Host Attorney- General for the Council and Commissioner Host Attorney- General for the Uniform Law Host Jurisdiction for the Council and Commissioner Host Jurisdiction for the Uniform Law Implementation Timetable designated local regulatory authority Participating Jurisdiction Standing Committee Start-up costs Uniform Law Legal Profession Uniform Framework legislation and subordinate legislation that regulate the legal profession in the States and Territories Party to this Agreement, other than the Uniform Law, Uniform Rules or Uniform Regulations. the Admissions Committee of the Legal Services Council established under the Uniform Law the Council of Australian Governments the office of the Commissioner for Uniform Legal Services Regulation established under the Uniform Law the Legal Services Council established under the Uniform Law the Attorney-General of New South Wales the Attorney-General of Victoria the State in which offices of the Council and Commissioner will be established, being New South Wales the State that will enact and maintain the Uniform Law, being Victoria the timetable in Attachment A to this Agreement the same meaning as under the Uniform Law the same meaning as under the Uniform Law the Standing Committee on the Framework, which comprises the Attorney-General of each Party the costs associated with the establishment of the Council and Commissioner and associated infrastructure the Legal Profession Uniform Law as amended from time to time the uniform framework for regulation of the legal profession as described in this Agreement and including the Uniform Law, the Page 2

4 (or Framework) Uniform Regulations Uniform Rules Uniform Rules and the Uniform Regulations the Legal Profession Uniform Regulations as amended from time to time the Legal Profession Uniform Rules promulgated under the Uniform Law and as amended from time to time 2 General 2.1 Citation This Agreement may be cited as the Bilateral Agreement on the Uniform Legal Profession Framework. 2.2 Commencement and execution by counterpart This Agreement commences on the date that the last of the Parties signs it This Agreement may be executed in counterparts, which will together constitute one agreement. 2.3 Not legally binding This Agreement is not intended to create any legally enforceable rights or obligations that are binding upon the Parties. 2.4 Comply with timeframes The Parties will take all reasonable steps to comply with the timeframes and dates set out in this Agreement, including the Implementation Timetable. 2.5 Cooperative action and decision making To further the aims of this Agreement, the Parties agree to work cooperatively to: a. establish the Council and appoint the Commissioner in accordance with the Uniform Law; b. ensure an orderly transition from the current system of legal profession regulation; c. endeavour to rationalise existing legal profession regulatory bodies and functions to support the aim of establishing an efficient regulatory system; and d. support ongoing cooperation between jurisdictions with the aim of enhancing and maintaining uniform legal profession regulation into the future The Parties agree that the Standing Committee should engage in collaborative and cooperative decision-making. Page 3

5 3 Standing Committee 3.1 Role of the Standing Committee The Parties agree that the role and responsibilities of the Standing Committee under the Framework are to develop and ensure consistent policy for the regulation of the legal profession and to perform the functions allocated to it under the Uniform Law The Parties agree that the Standing Committee will not intervene in the day to day operations of the Council, the Commissioner or Local Regulatory Authorities, including in decisions relating to: a. the determination of an application for admission to the legal profession; b. the grant or renewal of an Australian practising certificate, or the suspension, variation or cancellation of an Australian practising certificate; or c. individual complaints or disciplinary matters. 3.2 Procedural and voting arrangements Decisions of the Standing Committee pursuant to this agreement are to be made unanimously Where a decision of the Standing Committee is to be made by vote, the Standing Committee may vote either at a meeting of the Standing Committee or out of session by an exchange of letters The Parties may jointly develop administrative procedures for the taking and recording of votes. 4 Implementation of the Legal Profession Uniform Framework 4.1 Adoption of the Uniform Law, Uniform Rules and Uniform Regulations Each Party agrees to adopt an inter-governmental legislative scheme for the regulation of the legal profession comprising the Uniform Law, the Uniform Rules and the Uniform Regulations in accordance with the Implementation Timetable The Parties agree that the State of Victoria will be the Host Jurisdiction for the Uniform Law The Parties agree that the State of New South Wales will be the Host Jurisdiction for the Council and Commissioner Victoria agrees to use its best endeavours to: a. enact the Uniform Law in accordance with the Implementation Timetable; and Page 4

6 b. gazette or notify new or amended Uniform Rules or Uniform Regulations made in accordance with the Uniform Law as soon as practicable after they are made New South Wales agrees to use its best endeavours to: a. enact legislation applying the Uniform Law in accordance with the Implementation Timetable; and b. establish the offices of the Council and the Commissioner, including securing premises and hiring or seconding staff, in accordance with the funding arrangements provided for by this agreement. 4.2 Amendment to existing legislation and subordinate legislation Each Party agrees to use its best endeavours, in accordance with the Implementation Timetable, to: a. repeal or amend legislation or subordinate legislation that is inconsistent with or would undermine the purposes of the Uniform Law, Uniform Rules or Uniform Regulations or, subject to clauses 4.3.3, and 5.2.3, would alter the effect, scope or operation of the Uniform Law, Uniform Rules or Uniform Regulations; and b. enact or make any necessary transitional arrangements or consequential amendments, and undertake any other necessary actions, to support and ensure a seamless transition to the Framework. 4.3 Necessary Additional Jurisdictional Provisions Each Party agrees not to make or introduce into its Parliament any Additional Jurisdictional Provisions that: a. are inconsistent with the Uniform Law, Uniform Rules or Uniform Regulations; or b. subject to clauses 4.3.3, and 5.2.3, would alter the effect, scope or operation of the Uniform Law, Uniform Rules or Uniform Regulations (other than the provisions referred to in clause 4.3.2) Each Party agrees to introduce into its Parliament and use its best endeavours to enact Additional Jurisdictional Provisions that provide for: a. those parts of the costs assessment process not included in the Uniform Law or Uniform Rules; b. any arrangements with, or establishing, a professional indemnity insurer or other provider; c. fidelity fund arrangements not included in the Uniform Law or Uniform Rules, including provisions establishing a fidelity fund and specifying the nominated fidelity authority for the fund; Page 5

7 d. review or appeal mechanisms required for the operation of the Uniform Law and Uniform Rules (including limits on appeals); e. provisions specifying designated tribunals for the purpose of the Uniform Law and Uniform Rules; f. any arrangements relating to the interest earned on trust moneys, including any arrangements for the establishment and administration of statutory accounts or funds; g. provision for designated local regulatory authorities; h. arrangements for the setting of fees for practising certificates and related matters; i. arrangements for the setting of fees for admission and related matters; j. provisions excluding the application of local framework legislation to the Council and Commissioner; k. provision for the maintenance of Registers of the details of Australian legal practitioners; and l. any other area required by the Uniform Law The Parties agree that: a. Victoria may enact Additional Jurisdictional Provisions to preclude or modify the application of Uniform Law section (Prohibited services and businesses) in Victoria for a period of five years from the proclamation of the Uniform Law in the Host Jurisdiction for the Uniform Law; and b. the Standing Committee may agree to extensions of the period The Parties agree that any Party may enact Additional Jurisdictional Provisions to exempt persons, or classes of persons, who would have been government lawyers within their jurisdiction prior to the commencement of the Uniform Law had the Uniform Law been in force, from the requirement to hold a practising certificate in accordance with the relevant provision of the Uniform Law that deals with this issue. 5 Maintenance of consistency and amendment of the Framework 5.1 Maintaining consistency The Parties agree to use their best endeavours to ensure that the Uniform Law, Uniform Rules and Uniform Regulations are consistently applied across Participating Jurisdictions over time A Party will not take any action that would limit the operation of the Uniform Law, Uniform Rules and Uniform Regulations without the prior agreement of the Standing Committee, except pursuant to clause 5.2 of this Agreement. Page 6

8 5.2 Discretionary Additional Jurisdictional Provisions Where a Party proposes to introduce Additional Jurisdictional Provisions that do not fall within the categories of provisions described in clause of this Agreement, the Party agrees to notify the Council and the Standing Committee of those proposed Additional Jurisdictional Provisions prior to making those provisions or introducing those provisions into its Parliament The notice to the Council and to the Parties under clause shall include a description of: a. the problem to be addressed by the proposed Additional Jurisdictional Provisions; and b. the key features of the legislative provisions by which it is proposed to address the problem Where, in the opinion of the Council, a Party s proposed Additional Jurisdictional Provisions are consistent with or could beneficially alter the effect, scope or operation of the Uniform Law, Uniform Rules and Uniform Regulations, the Council may: a. apply the provision across participating jurisdictions through amendment of the Uniform Rules in accordance with the Uniform Law; or b. recommend an amendment to the Uniform Law or Uniform Regulations to the Standing Committee Where the Council is of the opinion that a Party s proposed Additional Jurisdictional Provisions are inconsistent with or would detrimentally alter the effect, scope or operation of the Uniform Law, Uniform Rules or Uniform Regulations, the Council is to provide the reasons for its opinion to the Standing Committee, through the Secretary of the Standing Council on Law and Justice In the interests of maintaining consistency, each Party will not introduce into its Parliament proposed Additional Jurisdictional Provisions where the Council is of the opinion that the provisions are inconsistent with the Uniform Law, Uniform Rules or Uniform Regulations, unless the Standing Committee otherwise agrees If, because of exceptional and unavoidable circumstances, the requirements of and cannot be met before the making or introduction of the Additional Jurisdictional Provisions concerned, the Party will, at the earliest practicable time (and in the case of a Bill, preferably before passage of the Bill), provide copies of the Additional Jurisdictional Provisions to the Standing Committee and indicate the extent to which comments made by them are able to be taken into account. 5.3 Amendments to the Uniform Law Where the Standing Committee agrees amendments to the Uniform Law, whether of its own accord or pursuant to clause 5.2.3, the Host Jurisdiction will: Page 7

9 a. submit to its Parliament a Bill in a form agreed by the Standing Committee or its delegates which has the effect of amending the legislation in the manner agreed; and b. take all reasonable steps to secure the passage of the Bill and bring it into force in accordance with a timetable agreed by the Standing Committee. 6 Legal Services Council and Commissioner 6.1 Legal Services Council The Council will be established in accordance with the Uniform Law The Parties agree to work cooperatively in determining the Standing Committee s recommendations for appointees to the Council The Parties agree that the Standing Committee will negotiate a Memorandum of Understanding with the Law Council of Australia and the Australian Bar Association that will establish the consultation processes to be followed to give effect to these provisions The Parties agree that the Host Attorney-General for the Uniform Law will exercise his or her functions in relation to the Council in accordance with the recommendations of the Standing Committee Each Party agrees to co-operate with the Council and to ensure that it does not confer any functions on its designated local regulatory authorities that will interfere with the carrying out of the Council s functions. 6.2 Commissioner for Uniform Legal Services Regulation The Commissioner will be established in accordance with the Uniform Law The Parties agree that the Host Attorney-General for the Uniform Law will exercise his or her functions in relation to the Commissioner in accordance with the recommendations of the Standing Committee Each Party agrees to cooperate with the Commissioner and to ensure that it does not confer any functions on its designated local regulatory authorities that will interfere with the carrying out of the Commissioner s functions. 7 Consequential micro-economic reforms Each Party agrees to assess the efficiency of its existing legal profession regulatory bodies and the functions exercised by those bodies in light of the Framework, with a view to maximising the efficiency, including minimising the cost, of legal profession regulation for each Party. Page 8

10 7.1.2 Each Party agrees to share such information with the other Party as is necessary to facilitate the comprehensive assessment of options for maximising the efficiency of legal profession regulation pursuant to clause Funding Arrangements 8.1 Start-up Costs The Parties will agree to a budget for the Start-up costs. This budget shall include provision for the start-up funding to be provided by the Law Society of NSW The Parties agree to meet the Start-up costs according to the following shares: a. NSW will pay 60 percent of the Start-up costs b. Victoria will pay 40 percent of the Start-up costs 8.2 Recurrent funding The Council must submit an operating budget for its first year of operation to the Standing Committee for consideration and approval, and thereafter on a triennial basis, or other basis as directed by the Standing Committee. An operating budget may include a requirement for a direct funding contribution from the Parties Any direct funding contribution required pursuant to clause will be funded in accordance with each Participating Jurisdiction s proportion of the total number of legal practitioners (excluding Australian-registered foreign lawyers) to whom practising certificates were issued in Participating Jurisdictions over the immediately preceding financial year, unless the Standing Committee agrees otherwise Each Party may individually determine how it will meet any funding obligations that arise pursuant to clauses and The Parties intend that, if the costs of members participation in Council or Admissions Committee meetings exceeds the amount approved by the Standing Committee in the Council budget for that purpose in the given year, the costs in excess of the budgeted amount will be met by the relevant Council or Admissions Committee member, whether personally or through their nominating body or employer, unless otherwise agreed by the Standing Committee. 9 Role of Host Attorney General for the Council and Commissioner in relation to administrative and budgetary matters The Parties agree that matters relating to the budget, administration, governance or functions of the Council or Commissioner, or the performance of either, will be brought to the attention of the Standing Committee by the Host Attorney-General for the Council and Commissioner. Page 9

11 10 Withdrawal A Party may withdraw from this Agreement by giving at least 6 months notice in writing to the other Party of its intention to do so. The Parties will then negotiate in good faith in relation to the terms of withdrawal, including the date on which this Agreement will cease and any legislative changes or other arrangements that may be necessary as a consequence. 11 Variation of Agreement Any variation to this Agreement may be made only with the unanimous agreement of the Parties, must be evidenced in writing and signed by each Party. 12 Review of Scheme The Parties agree that the Uniform Law and this Agreement will be reviewed by the Standing Committee five years after the date of the enactment of the Uniform Law in the Host Jurisdiction for the Uniform Law. Page 10

12 Attachment A Implementation Timetable Task Host Jurisdiction for the Uniform Law to have introduced the Uniform Law Host Jurisdiction for the Council and Commissioner to have introduced legislation applying the Uniform Law. Parties to have reviewed their legislation and regulations, and to have: Due date 31 December March July 2014 repealed or amended legislation that is inconsistent with, or would alter the effect, scope or operation of the Uniform Law, Uniform Rules or Uniform Regulations; and enacted or made any necessary transitional arrangements or consequential amendments. The Standing Committee to have made the Uniform Regulations in accordance with the Uniform Law. The Standing Committee to have appointed the Board and Commissioner Commencement of the elements of the Framework relating to governance and administration 1 July 2014 As soon as practicable after the enactment of the Uniform Law by each participating jurisdiction. As soon as practicable after the enactment of the Uniform Law by each participating jurisdiction. Commencement of the remainder of the Framework 1 July Page 11

13 SIGNATURES SIGNED for and on behalf of the State of New South Wales by: Signature Name of signatory Date SIGNED for and on behalf of the State of Victoria by: Signature Name of signatory Date Page 12