Yarraside spankings … The wrong disciplinary body has been doling out punishment to bad lawyers … Hundred of cases that were legal nullities have to be rescued by retrospective legislation … For four years one paid attention to the defect … Charter of Rights sent packing … Janek Drevikovsky reports
Now, the Victorian AG has rammed through retrospective amendments to save hundreds of discipline cases from becoming legal nullities.
The mess is a by-product of Victoria’s shift to the Uniform Legal Profession Law on July 1, 2015. On that date, the VLSC came into existence. It replaced the plain old Legal Services Commissioner (LSC), which had doled out wallopings under the Legal Profession Act 2004.
Except the VLSC did not completely replace the LSC – at least not legally. A pesky transitional measure meant the older body had to stay around.
This is explained with exquisite clarity in Stephen Warne’s Lawyer’s Lawyer professional liability blog.
The measure was clause 26 schedule 4 of the LPUL. Its effect? All investigations launched before the LPUL’s commencement would be carried on by the LSC, not the VLSC. The same went for the actual proceedings against lawyers tangled in the disciplinary machinery – if it happened before July 1, 2015, the LSC remained the proper walloper.
The law applying to pre-LPUL complaints was the old Legal Profession Act 2004.
McGarvie set to work with his spanking paddle, with most matters still pre-dating the LPUL’s commencement. Under clause 26, that meant they were cases for the LSC.
Details were mere trifles to the mighty VLSC. Case after case was brought in the name of the new commissioner, with VCAT the forum. There, the VLSC acted as though it had standing in all misconduct cases.
Under clause 26, that clearly was not so. The ramifications could have been a nightmare – if an applicant addresses VCAT without standing, any decision made by the tribunal is a “nullity”.
Parties cannot by consent invest tribunals with jurisdiction. A few miscreants tried quibbling with the VLSC’s authority; but VCAT was unconvinced, and concluded (despite the clear language of clause 26) that VLSC had the power to bring complaints.
In 2018, Fiona McLeay was appointed the new VLSC. Under her predecessor one could fancy that the old LSC had persisted, with a simple name change. But unlike McGarvie, McLeay was never the LSC. The conceit of a transubstantiated commissioner became obvious fantasy.
Someone in government must have caught on. There was a risk that a black-letter appeal bench would void the bulk of spankings delivered since July 2015.
The government took another look at clause 26, which has a second component. This was sub-clause (3), which tells parliament it can “substitute” the vestigial LSC with another entity. In other words, it was always envisioned that the LSC would be replaced when it came to pre-LPUL complaints.
This arrangement may sound complicated, but the LPUL had to do double duty, for both NSW and Victoria. The two jurisdictions had different plans for their respective Bureaux de Spank. So it was easier to let parliament fill in the details.
Yet, no one in Yarraside bothered to do so – until this year. In June, the Legal Profession Uniform Application Amendment Bill was introduced. The Act names the VLSC as the “substituted entity” under clause 26, giving it power to hear pre-LPUL matters.
Actually, we are to imagine that the VLSC has been the “substituted entity” all along – right back to July 1, 2015. In effect, it’s as though the little problem with clause 26 and the LSC never happened. So no one misses the point, there is a series of retrospective “validations”, applying to pre-LPUL complaints.
The stamp of approval is given to tribunal decisions on disciplinary matters. Also approved are all actions taken by the VLSC and related bodies. There is to be no quibbling on the basis the VLSC was doing a job it had no right to do.
In her second reading speech, the AG made out the amendments were a gentle legislative clarification:
“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.”
Which keeps rather hush-hush the extent of the revisionism. One senior barrister wondered what would happen if, for example, a respondent failed to pay a fine ordered when the VLSC was acting without proper power.
Under the new amendments, would the defaulter now be in contempt? Would VCAT’s decision have been a “nullity”?
The committee scrutinising the amendments had little to say about their retrospective effect. It did, however, note that the VLSC – unlike the LSC – is not bound by Victoria’s Charter of Human Rights and Responsibilities. One wonders whether the VLSC applied the Charter, as the LSC would have done, while handling pre-LPUL matters.
But that’s just another pesky detail – easy to sweep away with a burst of retrospective reform. The new amendments are before Victoria’s Legislative Council, having passed the Assembly last week.