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Commissioner Update August

In this issue:

  • Message from the Commissioner
  • COVID-19 Update
  • Office closure impact of Stage 4 restrictions
  • e-conveyancing guideline released
  • CPD review update
  • Sexual harassment guidelines released by VEOHRC
  • Appearing before the courts in NSW?
  • Legal Services Council – Uniform Law Update

Message from the Commissioner

I recently attended the Victoria University 2020 Sir Zelman Cowen Oration where The Hon Kenneth Hayne AC QC spoke about Trust, Confidence and Public Institutions.

I’ve spoken before about the speech Robert Fitzgerald AM gave to legal regulators at our annual conference last year. In his speech, he reflected on his time on the Royal Commission into Institutional Responses to Child Sexual Abuse, as well as the findings of the Banking Royal Commission. 

Mr Fitzgerald observed that lawyers were often involved in the design of the legal framework that enabled the conduct subsequently being examined by Royal Commissions or were involved in attempts to avoid accountability for this conduct. This was often conduct which in many cases had broken the law, and if not, had fallen short of the behaviour that the community not only expects but deserves. 

At the Cowan Oration, I took the opportunity to ask Mr Hayne whether he believed that lawyers have played a part in the erosion of public trust in institutions, and if so, what role should they play in helping to rebuild it. His response was thought-provoking and I share it with you here in full:

Hon Kenneth Hayne AC QC: 

“The question you ask is very deep and very important. To do justice to it I think would take quite some time. There are two points I think I would want to make and answer.  

The first is, one of the hardest thing as a lawyer, but one of the necessary skills of a lawyer, is to give what I refer to as steely-eyed advice. By that I mean the law officer advising a Minister of the crown, "No minister, you may not do that. To do so would be contrary to law." Or the solicitor or the newest solicitor who is advising his or her client and who has to say to the client, "No, you can't do that. It's contrary to law." 

There emerged at one time a view I think among some practitioners that their primary task was to ease the way for their client to do what their client wished to do. That's an accurate but partial statement of their obligation. And often it is incumbent on the lawyer to take one step firmly back, look at overall what is proposed, and say either, "No, you can't do that because it's contrary to law," or, "Well, you might do that and it might not be a breach of the criminal law, but I can tell you your reputation will be shot if you do it." 

And giving that form of steely-eyed advice takes courage. And it may see the client in a huff gathering the papers up and storming out of the office, and that's going to make for interesting discussion at the next meeting of partners, isn't it? But there comes that time and you've got to do it. 

And the second point I should like to make is: it's about institutions. Institutions of which we are members are important. I think the courts on which I had the privilege to serve play extraordinarily important roles in the government and order of our society. But I was a temporary passing figure and the institution mattered much more than I did. But so too the law matters much more than the individual lawyer.” 

Maintaining public trust and confidence in the legal profession should be a key objective for all of us. The integrity of the legal profession is fundamental to the legitimacy of the justice system and the maintenance and protection of the rule of law. This is a shared responsibility and we all have a part to play.  

As Mr Hayne reminds us, providing steely eyed advice takes courage, and the institution of the law matters more than any individual lawyer within it.  I encourage you to think about this as you undertake your work as a lawyer.

Be well,

Fiona McLeay
Board CEO + Commissioner

COVID-19 Update 

Last week we met with the Department of Health and Human Services, the Department of Jobs, Precincts and Regions and the Department of Justice and Community Safety for a second legal industry roundtable. Some clarifications on the stage 4 restriction advice was provided and there was an opportunity to offer feedback on how the restrictions are impacting lawyers. 

Since the roundtable the DJCS have provided some further clarification, including lawyers’ access to childcare. There are very limited reasons to be accessing your office. Simply working largely in a paper based way is not sufficient to be a permitted reason to be working on site under the “administration of justice” exception and attracts considerable penalties. 

Read more here.

Our office is closed and we are not attending to deliveries

The stage 4 restrictions in Melbourne mean we are no longer attending the office to receive mail or file deliveries. This means:

  • If you are sending mail please send this electronically as an attachment to 
  • We are not accepting deliveries, so use the lawyer enquiry form on our website to discuss options if you have something you need to send
  • Make online payments wherever possible, please don’t send cheques
  • All other enquiries please use the lawyer enquiry form on our websit

eConveyancing regulatory guideline released

We have released a new Regulatory Guideline for conducting electronic conveyancing. In the guideline we confirm that:

  • eConveyancing funds are best categorised as general trust money under the Uniform Law and therefore they must be placed in a general trust account
  • non-legal employees of law practices in Victoria will be permitted to sign registry instruments, provided they are appropriately supervised by the responsible principal as set out in the guideline.

You can read more about the new guideline and download a copy on our website.

Continuing Professional Development review

Our consultation into Continuing Professional Development has now closed. Over 170 organisations and individuals participated in the review through completing the consultation questions, providing written email comments on specific issues or attending a focus group session.

Submissions were received from institutional stakeholders, including from both national and Victorian based professional associations, education providers, academics, government bodies, other regulators (nationally and internationally) and of course lawyers working across the profession. Thank you to all who participated in the review and contributed their thoughts.

The engagement we have received has been positive and considered and we are very grateful for everyone’s time and energy.  Our independent consultant, Chris Humphreys, is working through the material received. His report and recommendations are expected to be released later in the year and will be made available on our website, along with all organisational submissions where there is agreement to publication. 

VEOHRC sexual harassment guidelines launched

The Victorian Equal Opportunity and Human Rights Commission has released a new edition of their Guideline: Preventing and responding to workplace sexual harassment, which provides practical, easy-to-implement advice for employers to help them comply with their legal obligation to keep every employee safe from sexual harassment.

The results of our Sexual Harassment in the Victorian Legal Sector report found that sexual harassment is widespread in Victoria’s legal profession, with more than one in three lawyers, and two thirds of women lawyers having experienced sexual harassment at work. Our report also found that a significant number of legal workplaces do not have documented sexual harassment policies, and that specific workplace training and education to prevent sexual harassment is rare.

You can read more about the new guidelines and how they can help your law practice on our website.

Appearing before the courts in NSW? Information from Courts NSW

Legal practitioners who are currently residing in Victoria and have matters before a NSW Local or District Court are encouraged to contact the court to seek alternate appearance arrangements or for consideration that the matter be adjourned. Where in-person attendance is required by the court, it is suggested that an agent in NSW be arranged to appear on the practitioner’s behalf whilst border restrictions are in place. 

Legal Services Council – Uniform Law Update

The Legal Services Council have made an urgent amendment to the Legal Profession Uniform General Rules 2015 in relation to litigation funding which commenced on 22 August 2020.
They are also inviting feedback on changes to the Fidelity Fund interest rate. 

Read more here.


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