Update: The Bill became legislation when royal assent was given on 17 September 2019.
Original post: There is a bill before the Victorian parliament, the Legal Profession Uniform Law Application Amendment Bill 2019. What the last few sections propose to do, rather sotto voce, is ‘validate’ retrospectively everything the Victorian Legal Services Commissioner has done since the 1 July 2015 commencement of the LPUL and repeal of the Legal Profession Act 2004 (Vic) in relation to investigations which commenced before that date. It also seeks to validate retrospectively orders made by VCAT in disciplinary prosecutions in matters arising from such investigations brought by the VLSC instead of the predecessor office, the Legal Services Commissioner (LSC). The relevant provisions are even going to commence retrospectively, on the date of the Bill’s second reading (Weird! Why?).
You’re probably sick of my fascination with transitional provisions by now, but this is actually quite the silent snafu which just shows why everyone should sweat over transitional provisions. Usually I curse those who draft these damned bits of legislation, but not this time. For once the drafters made their intentions clear in clauses 26 and 27 of the transitional provisions. It’s just that, presumably, nearly everyone assumed they intended something else, and read the transitional provisions with that bias.
If a person without standing (e.g. the VLSC) sought to invoke VCAT’s 2004 Act jurisdiction, then VCAT’s decisions were nullities (The Herald and Weekly Times Pty Ltd v Victoria  VSCA 146 at ) whether or not the respondent lawyer took the point (since parties cannot bestow jurisdiction on a statutory tribunal: Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163, 167), as this blog points out from time to time. So the validating legislation will retrospectively impose penalties upon practitioners where none previously existed as a matter of law. That’s quite an exercise of retrospective power.
The funny thing is that the VLSC responded to my clients’ arguments that she ain’t got no power and VCAT ain’t got no jurisdiction under the 2004 Act by saying that she did, and even convinced VCAT of that in one case in which the proper Applicant point was squarely taken. And the Attorney-General seemed to say in the second reading speech that the situation after the ‘validation’ will reflect parliament’s clear intent all along (hmmm). So it’s kind of weird if the VLSC or the Legal Services Board has asked the Victorian parliament to pass a law which undermines the VLSC’s contention that she has always had power to tidy up pre-1 July 2015 complaints, and kind of weird that the parliament can be bothered to clarify by ‘validation’ that which is apparently perfectly clear already. It’s all a bit ‘Nothing to see here, folks, move right along.’
The other weird thing is that VCAT seems to continue to exercise 2004 Act jurisdiction on the application of the VLSC, even after the introduction of this Bill into parliament, even while parliament’s lower house seems to be of the view that legislation is needed to allow the VLSC to invoke that jurisdiction. It could not be that VCAT is exercising jurisdiction it does not have because it is confident that such a course will in the future be retrospectively validated, so one wonders if anyone has actually raised this legislation with VCAT at a high level.Continue reading “The great transitional provisions debacle #1”