Calls for a National Legal Profession with National Uniform Legislation
Friday 10 April 2015 @ 1.20 p.m. | Judiciary, Legal Profession & Procedure | Legal Research
The preservation of separate, overly complex regulatory systems for lawyers in each of Australia’s eight jurisdictions is holding the profession back, the Law Council of Australia has said in a release on 7 April 2015.
President of the Law Council of Australia, Duncan McConnel, said:
"We need a national legal profession. There are 23 million people in Australia, 60,000 lawyers … 55 different bodies administering the legal profession [and] something like 4,700 pages of legislation – it is madness...We’re all Australians, we are all lawyers, the common law of Australia is the common law everywhere… It makes sense [to have a national profession].”
The idea of a single legal profession has been in the pipeline for a number of years. However, this year is quite special as NSW and Victoria are set to sign on to the Legal Profession Uniform Legislation in July 2015. This will create a common legal market for almost three-quarters of Australian lawyers for the first time.
What is National Uniform Legislation?
National Uniform legislation is a type of legislation brought about by agreement between the Commonwealth and state and territory executive governments in intergovernmental agreements. National Uniform legislation is important because it achieves consistency and harmonisation in common functional areas in which the Commonwealth constitutionally has very little power. It also avoids duplication of services or functions.
National Uniform legislation is composed of three types of legislation:
- National Applied laws (or template legislation) - legislation enacted in one jurisdiction and applied (as in force from time to time) by other participating jurisdictions as a law of those other jurisdictions; and
- National Model Legislation - legislation that is drafted as model legislation and that is enacted in participating jurisdictions as a mirror act (with any local variations that are necessary to achieve the agreed uniform national policy when the legislation forms part of the local law);
- Legislation of the States referring legislative power to the Commonwealth.
Some of the most common examples of this type of legislation include:
- Australian Crime Commission Act 2002 (Cth) - powers for Australian Crime covered by mirror model legislation enacted in the States and applied;
- Competition and Consumer Act 2010 (Cth) - powers in relations to competition policy reform were enacted at State level through national application laws;
- Corporations Act 2001 (Cth) - powers relating to governance of corporations referred by the States to the Commonwealth;
- Evidence Act 1995 (Cth) - mirror legislation enacted by all States and Territories to reflect Commonwealth law; and
- Work Health and Safety Act 2011 (Cth) - mirror legislation enacted throughout most States and Territories reflecting the Commonwealth model provisions.
Legal Profession Uniform Legislation
The Legal Profession Uniform Legislation aims to standardise:
- practising certificates;
- billing arrangements;
- complaint handling processes;
- professional discipline issues; and
- continuing professional development.
Stuart Clark, president elect of the Law Council of Australia has said a national profession was an important microeconomic reform for clients who are currently burdened with the cost of dealing with multiple systems of administration across the country and also pointed out that the reforms would also break down barriers for lawyers wishing to practice across different states and territories by creating a single CLE system.
Other states and territories will have the option of joining once the regulatory framework is up and running in New South Wales and Victoria.
Mr McConnel said his primary concern at the moment was reaching an agreement on the national Legal Profession Conduct Rules. These have already been implemented in Queensland and South Australia and are close to being implemented in the ACT, Tasmania and the Northern Territory.The rules should feed into the Uniform Law in NSW and Victoria once negotiations conclude:
“What we are trying to do is hold that national consensus on conduct rules while the Uniform Law is implemented. I think if we achieve that then we will be able to hold the interest of the jurisdictions that aren’t yet in.”
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