ByLawyers News and Updates

Bail amendments – WA

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Bail amendments under the Bail Amendment Act 2022 received assent and commenced on 3 September 2022.

The Bail Act 1982 has been amended in a number of small but important respects, aimed mainly at better protecting the safety and welfare of victims of child sexual offences.

These latest bail amendments include:

  • provision ensuring that a person charged with a serious offence cannot be released without bail;
  • deleting the definition of serious offence under s 6A of the Act, so that the definition of serious offence in s 3 applies throughout the Act. This means that all serious offences are now listed in Schedule 2 of the Act, with the sole exception of the offence of breaching bail under s 51(2a) of the Act;
  • highlighting the capacity of bail decision makers to defer bail under s 9 to inform protective bail conditions in cases involving alleged sexual offences against children;
  • requiring bail decision makers to consider the conduct of the accused towards any alleged victim of the current offences and any victim of an offence the accused has previously been convicted of including any conduct towards the victim’s family;
  • requiring bail decision makers to take into account specific additional considerations that are specific to bail in cases involving alleged sexual offences against child victims;
  • requiring judicial officers to consider the fact that a person has been convicted of an offence and any sentence that is likely to be imposed when determining bail for an accused awaiting sentencing; and
  • expanding the list of serious offences under Schedule 2 to the Act. This means that a broader category of accused persons charged with serious offences while already on bail or on early release for another serious offence will bear the onus of satisfying the court
    that there are exceptional reasons why they should not be kept in custody.

The commentary on bail and the Retainer instructions – Bail precedent in the By Lawyers Magistrates Court (WA) – Criminal publication have been updated to reflect these bail amendments.

Legal Profession Uniform Law – WA

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The Legal Profession Uniform Law applies in Western Australia from 1 July 2022.

Overview

The Legal Profession Uniform Law Application Act 2022 applies the existing national Legal Profession Uniform Law (LPUL) in WA, together with subordinate legislation. it is intended to simplify and standardise regulation for legal practitioners. It brings WA into line with New South Wales and Victoria. The Uniform Law replaces the Legal Profession Act 2008 (WA).

The Uniform Law is governed by the Legal Services Council and the office of the Commissioner for Uniform Legal Services Regulation. Each participating jurisdiction has a representative on the council.

The council establishes the rules and policies that underpin the Uniform Law. The Commissioner oversees the dispute resolution and compliance functions of the Uniform Law.

The WA Legal Services and Complaints Committee and the Legal Practice Board continue to carry out complaint and investigation functions, grant practising certificates, and provide professional development.

While the Uniform Law makes many sweeping changes, the main effects on everyday practice concern costs disclosure and billing.

Costs disclosure

Disclosure obligations vary depending on the estimated legal costs in a matter.

Disclosure is not required where the total legal costs are not expected to exceed $750 excluding GST and disbursements. Where the total legal costs are not expected to exceed $3,000 excluding GST and disbursements, a law practice may use the prescribed uniform standard disclosure form contained in Schedule 1 of the Legal Profession Uniform General Rules.

Costs disclosure must be in writing and given to the client when instructions are taken, or as soon as reasonably practical after. It must include the basis on which legal costs will be calculated and an estimate of the total legal costs. It must include information about the client’s rights to negotiate the costs agreement, receive a bill, request an itemised bill, negotiate the billing method, and whether the costs are subject to a costs determination.

If there is any significant change the disclosure must be updated.

If a law practice fails to meet its disclosure obligations any cost agreement is void and the client is not required to pay the costs. The law practice cannot then commence or maintain any proceedings for recovery of costs until they are assessed, or any dispute determined by the Legal Practice Board. A contravention can also result in disciplinary action.

Where disclosure is made under the main disclosure requirements of the Uniform Law, a law practice must take all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs.

Billing

The billing provisions of the Uniform Law do not apply if the client is a commercial organisation or government authority.

A bill may be expressed as a lump sum, or itemised. A client receiving a lump sum bill may request an itemised bill. The request must be made within 30 days after the date on which the legal costs became payable, and must be complied with within 21 days after receiving the request.

If the total amount of legal costs specified in an itemised bill is higher than the amount previously specified in a lump sum bill, the additional costs are only recoverable if the law practice previously told the client in writing that could be the case.

Each bill or covering letter accompanying each bill must be signed by a principal of the law practice, or nominate a principal of the law practice as the responsible principal for the bill.

A client may request progress reports on costs which must be provided within a reasonable period.

Lawyers may not charge for preparing or giving a bill or a progress report.

Bills must include a written statement setting out the client’s options to dispute the legal and the time limits applicable.

Interest may be charged on unpaid costs 30 days after a complying bill has been given if the bill contains a statement that interest will be payable and the rate chargeable. The maximum rate is prescribed, currently 2% above the cash rate target specified by the Reserve Bank of Australia at the time the bill was given.

By Lawyers updates

By Lawyers have made the introduction of the Legal Profession Uniform Law easy for our WA subscribers. Changes to By Lawyers publications to cover the LPUL include:

  • New costs agreements and short form costs disclosure for all WA guides and Federal guides. These are also available in 101 Costs Answers.
  • Updates to the Example Invoice Incorporating Notification of Client’s Rights – WA and the stand-alone Notification of Client’s Rights – WA precedents available on all WA and Federal matter plans.
  • Updates to the commentary on the requirements for professional executors in the Probate and Letters of Administration publications for WA.
  • Updates to the costs section in the Wills commentary including the Conflicts concerning practitioner’s own interests section and the Solicitors as executors section.
  • Updates to the WA trusts accounting section in the Practice Management guide
  • Relevant updates to 101 Costs Answers.

1 July updates – All states

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1 July updates are always a big focus for By Lawyers. Many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts and adjustments – usually increases – in government fees and charges. These regular updates occur at the start of every financial year impacting many different areas of law, and therefore numerous By Lawyers publications.

These updates include court filing fees, lodgment fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, and penalty units for fines for various criminal offences and civil penalty provisions.

By Lawyers always monitor and apply these changes for our subscribers. Each year we ensure our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and other specific dates for various areas of law as prescribed by some statutes.

The 1 July updates have been applied this year, or are in the process of being applied as they get released, to the following By Lawyers publications:

  • Conveyancing and Property;
  • Business and Franchise;
  • Criminal;
  • Litigation;
  • Estates;
  • Injuries; and
  • Employment.

Quite separately, there is also usually a raft of new and amending legislation from both Commonwealth and state parliaments which is set to commence on 1 July. This year is no different in that regard. By Lawyers have made various substantive amendments to a number of publications to account for the commencement of such legislation. Please see the various other By Lawyers News and Updates posts dealing with those updates.

By Lawyers always keep our content – and our subscribers – up to date!

Comparative CPD requirements

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In all states and territories of Australia legal practitioners are required, as a condition of their practising certificates, to participate in compulsory professional development and training. Although the requirements are reasonably uniform, the terminology differs. In some states the requirement is known as Continuing Legal Education (CLE), or Mandatory Continuing Legal Education (MCLE). In others it is known as Compulsory Professional Development (CPD). There are also different requirements for barristers and solicitors.

For consistency, Continuing Professional Development (CPD) is used in this guide.

In each jurisdiction, the relevant one-year period begins on 1 April and ends on 31 March.

The CPD requirements in each state and territory are summarised below:

AUSTRALIAN CAPITAL TERRITORY

Annual Mandatory Continuing Professional Development (CPD) = 10 units

Core Areas

A minimum of one CPD unit from each of the following areas:

  • Legal ethics and professional responsibility;
  • Practice management and business skills;
  • Professional skills; and
  • Substantive law and procedural law.

Section 47 of the Legal Profession Act 2006 (ACT) and the Law Society of the ACT CPD Guidelines.

NEW SOUTH WALES

Annual Mandatory Continuing Professional Development = 10 units

Compulsory Fields

A minimum of one unit per year from each of the following fields:

  • Ethics and Professional Responsibility;
  • Practice Management and Business Skills;
  • Professional Skills; and
  • Substantive Law.

Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 and s 52 of the Legal Profession Uniform Law (NSW).

NORTHERN TERRITORY

Annual Mandatory Continuing Professional Development (CPD) = 10 points

Core Competencies

A minimum of one point per year from each of the following mandatory competency areas:

  • Ethics and professional responsibility;
  • Practice management and business skills; and
  • Professional Skills in legal practice.

Schedule 2 of the Legal Profession Regulations 2007.

QUEENSLAND

Annual Mandatory Continuing Professional Development (CPD) = 10 units

Mandatory Core areas

A minimum of one unit per year in each of the following mandatory core areas:

  • Practical legal ethics;
  • Practice management and business skills; and
  • Professional skills.

Part 6 of the Queensland Law Society Administration Rule 2005.

SOUTH AUSTRALIA

Annual Mandatory Continuing Professional Development (MCPD) = 10 units

Required Areas

A minimum of one unit per year from each of the following required areas:

  • Practical legal ethics;
  • Practice management and business skills; and
  • Professional skills.

Legal Practitioners Education and Admission Council Rules 2018.

TASMANIA

Annual Mandatory Continuing Professional Development (CPD) = 10 units

Mandatory Core Competency Areas

A minimum of one unit per year from each of the following mandatory competency areas:

  • Practical legal ethics;
  • Practice management and business skills; and
  • Professional skills; and
  • Substantive law.

Law Society of Tasmania’s Practice Guideline 4 – Continuing Professional Development Scheme and s 56 of the Legal Profession Act 2007.

VICTORIA

Annual Mandatory Continuing Professional Development (CPD) = 10 units

Compulsory Fields

A minimum of one unit per year from each of the following compulsory fields:

  • Ethics and Professional Responsibility;
  • Professional Skills;
  • Substantive Law; and
  • Practice Management and Business Skills.

Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 and s 52 Legal Profession Uniform Law.

WESTERN AUSTRALIA

Annual Mandatory Continuing Professional Development (CPD) = 10 points

Mandatory Competency Areas

A minimum of one point per year from each of the following mandatory competency areas:

  • Practice management;
  • Professional skills;
  • Ethics and professional responsibility; and
  • Substantive law.

Legal Profession Act 2008, Legal Profession Rules 2009 and Legal Profession Regulations 2009.

Summary of continuing professional development activities

CPD Activity Activity format Formula
Max CPD Maximum number of CPD units that can be completed in a day.

  • TAS maximum = 6.
 N/A
Attendance Course, seminar, workshop, lecture, conference, discussion group, multimedia or web-based program.

  • TAS maximum = 3
  • WA maximum = 6
  • All other Jurisdictions = No limit.
 1 Hour = 1 CPD
Study Private study of audio/visual material recording of an event that occurred in the CPD year.

  • NT maximum = 5
  • QLD, VIC, ACT = No limit.
 1 Hour = 1 CPD
View View or listen multimedia or web-based program.

  • ACT – No limit
  • NT maximum =5
  • SA maximum = 5
  • TAS maximum = 5
  • WA maximum = 4.
 1 Hour = 1 CPD
Private Private study of audio/visual material update solicitor’s knowledge and skills.

  • ACT – No limit
  • NSW maximum = 5
  • NT maximum =5
  • QLD maximum = 5
  • VIC maximum = 5.
 1 Hour = 1 CPD
Research Research, preparation or editing of a legal article.

  • ACT maximum = 5
  • NSW maximum = 5
  • NT maximum =5
  • QLD maximum = 5
  • SA maximum =5
  • TAS maximum = 3
  • VIC maximum = 5
  • WA maximum = 5.
 1,000 words = 1 CPD
Activity preparation Preparation of CPD activities.

  • ACT maximum = 5
  • NSW maximum = 5
  • NT maximum =5
  • QLD maximum = 5
  • SA maximum =4
  • TAS maximum = 4
  • VIC maximum = 5.
 1 Hour = 1 CPD
Presenting. Presentation of a CPD activity.

  • ACT maximum = 5
  • NT maximum =5
  • QLD maximum = 5
  • SA maximum =4
  • VIC maximum = 5.
 1 Hour = 1 CPD
Present WA Presentation of a CPD activity and commentator.

  • WA maximum = 6.
 1 hour – 2 CPD
Membership actives Membership of legal committee, taskforce or practice section of a law association or similar body.

  • ACT maximum = 3
  • NSW maximum = 3
  • NT maximum =3
  • QLD maximum = 3
  • SA maximum =5
  • TAS maximum = 3
  • VIC maximum = 3.
 2 hours = 1 CPD
Graduate study Post graduate study.

  • NT maximum = 5
  • TAS maximum =5.
 1 Hour = 1 CPD
Specialist Completion of a specialist accreditation program. 10 points incl compulsory
Practice Management Completion of practice management course. 10 points incl compulsory

Adverse action – FED

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The recent employment law case of Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71 considered adverse action under the Fair Work Act 2009 and the obligation on an employer to establish that a decision affecting a worker is not contrary to the prohibitions in the Act.

Adverse action is covered in the By Lawyers Employment Law guide.

Sections 340 to 345 of the Fair Work Act prevent an employer from taking adverse action, as defined in s 342, against an employee who exercises a workplace right, defined in s 341.

For example, if an employee is dismissed, which constitutes adverse action being taken against them, because they made a complaint against their employer, which constitutes their exercise of a workplace right, then the employee may be able to bring a general protections claim against the employer.

In the recent case Qantas made a decision, while its fleet was grounded for the pandemic, to outsource ground handling operations at Australian airports. That resulted in Qantas employees losing their jobs to external providers. The union sought reinstatement of the employees on the basis that Qantas’ decision constituted adverse action on a number of bases. Qantas denied this and argued that the decision was made for operational business reasons.

The court found for the employees on one of the adverse action grounds, namely that the real reason for Qantas’ action in standing down employees was to prevent the exercise of a workplace right, being their right to negotiate a new Enterprise Bargaining Agreement which fell due shortly afterwards. Interestingly, that meant the court upheld the adverse action claim on the basis of a workplace right that did not exist at the time of the decision, but may exist at some future point in time.

The court looked in detail at how the decision was made, what the company took into account, and its knowledge of the future workplace right. The court found that Qantas knew it was circumventing the future right, whereas if it had no such knowledge the outcome may have been different.

The case may go on appeal, but it serves to remind workers of the robust nature of their rights under the Act and employers of the extent of their obligations.

This case will be added to the By Lawyers 101 Employment Law Answers publication and any developments on any appeal will be monitored.

Work health and safety – WA

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Work, health and safety laws in WA have changed. The Occupational Health and Safety Act 1984 (WA) has been repealed from 31 March, 2022.

The repealed Act has been replaced with the Work Health and Safety Act 2020. The provisions of the old Act have been consolidated and recast in the new Act, which is substantially based on the national model Work Health and Safety Bill.

The national model Bill was developed under the Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety to underpin a harmonised WHS framework in Australia.

This means WA has now harmonised its legislation with the majority of other Australian jurisdictions.

The key elements of the new Act include:

  • a primary duty of care requiring persons conducting a business or undertaking to ensure the health and safety of workers and others who may be affected by their activities;
  • duties of care for persons who influence the way work is carried out, as well as the integrity of products used for work and persons who conduct training in workplaces;
  • a requirement that officers exercise due diligence to ensure compliance;
  • a framework to establish a general scheme for authorisations such as licences, permits and registrations;
  • protection against discrimination for those who exercise or perform or seek to exercise or perform powers, functions or rights under the Act;
  • continuation of Western Australia’s peak consultative bodies, re-established as the Work Health and Safety Commission (WHSC) and the Mining and Petroleum Advisory Committee (MAPAC).

The commentary in the By Lawyers Employment Law publication has been updated accordingly.

Franchise disclosure – FED

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New franchise disclosure requirements apply from 1 April 2022.

A free online franchise disclosure register has been established. The new Part 5A to the Franchising Code of Conduct requires franchisors to upload key franchise systems data. This is intended to allow prospective franchisees to make more informed decisions.

Franchisors have until 14 November 2022 to supply the information. The particulars the franchisor is required to disclose include:

The obligation for franchise disclosure is ongoing. Franchisors must annually publish updated disclosure documents within four months of the end of their financial year.

Franchise disclosure data must be uploaded for at least 14 days before a franchisor can enter into a franchise agreement. Fines of up to 600 penalty units apply for non-compliance.

The By Lawyers commentary on Franchises has been updated. This useful resource can found in the Reference materials folder on the matter plans for both the Sale and Purchase of Business. This includes updated links to the new regulation clauses.

Letter of offer – FED

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Two new Letter of offer precedents have been added to the By Lawyers Employment Law guide.

Letters of offer can be used to create an employment relationship between employer and employee when a full employment agreement is not required. These precedent letters set out the terms and conditions upon which the employment position is offered. The use of an optional schedule allows greater detail of the position description and the employee’s duties and responsibilities to be added if it is considered necessary.

The employee signs and returns a copy of the letter to confirm their acceptance of the position and the terms of employment.

One of the new precedents is for general use, the other is specific to employing apprentices.

The apprentice version extends the employee’s responsibilities to attending and undertaking the necessary training for completion of their apprenticeship. It also includes reference to the relevant requirements such as:

  • training contracts with an Australian Apprenticeship Support Network Provider;
  • specific state-based apprentice training legislation;
  • registered training organisations, such as TAFE;
  • training plans;
  • training records.

The apprentice version of the precedent also provides for the employee’s employment to terminate upon completion, cessation or transfer of the apprenticeship.

These new precedents Letter of offer and Letter of offer for an apprentice have been added to the matter plan in the Acting for Employer sub-folder under Folder B. Employment agreements.

By Lawyers comprehensive employment agreement precedents are also available in Folder B. for use when clients require a more detailed and flexible document. These precedents include:

  • Standard individual employment agreement;
  • Casual employment agreement; and
  • Executive employment agreement.

The new precedents have been added by our employment law author following a subscriber request. By Lawyers loves to receive feedback from our users – don’t hesitate to contact us if there are precedents you need.

Visa subclasses – FED

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There have been changes to a number of visa subclasses. These changes create new conditions and affect the expiration dates and cancellation grounds across various visa subclasses.

The Migration Amendment (2022 Measures No. 2) Regulations 2022 introduce the following three migration law changes.

  1. Visa holders in the 482 temporary skill shortage visa subclass can apply for a further 482 visa without leaving Australia. Applicants must have been in Australia between 1 February 2020 and 14 December 2021, when international borders were shut. This only applies to 482 visas in the short-term stream. Applicants will be able to make a further 482 visa application onshore from 1 July 2022 to 1 July 2023.
  2. Holders of skilled graduate visa subclass 476 who were affected by the COVID-19 pandemic have now had their visas extended to 14 April 2024. The extension commenced retrospectively on 31 January 2022, and includes secondary visa holders.
  3. Tourists who hold an Electronic Travel Authority eligible passport can now apply for a tourist visa subclass 601 through the new Australian ETA digital app, in addition to the existing Electronic Travel Authority website.

The Migration Amendment (Protecting Australia’s Critical Technology) Regulations 2022 introduces concepts of public interest criterion in granting and cancelling visas. These changes impact student visa subclass 500, and a postgraduate research course will satisfy the public interest criterion. However, the Minister may cancel any visa class where there is an unreasonable risk of any unwanted transfer of critical technology by a visa holder.

The By Lawyers Immigration commentary for both LEAP and website subscribers has been updated with these amendments. The commentary summarises the new conditions and dates for each affected visa subclass neatly within existing coverage of those visa subclasses.

Meetings and documents – FED

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COVID-related changes which affected the way companies deal with meetings and documents have been made permanent.

Companies and registered management investment schemes are now permanently able to use technology to hold meetings and execute documents under the Corporations Act 2001.

The Corporations Amendment (Meeting and Documents) Act 2022 makes permanent the previous COVID-related changes in the Treasury Laws Amendment (2021 Measures No. 1) Act 2021.

Meetings

A company can choose to hold a meeting:

  • in one or more physical locations;
  • as a hybrid at one or more physical locations and using technology;
  • virtually, if expressly permitted by the company’s constitution.

Members are to be provided with a reasonable opportunity to participate in meetings s 249S. Appropriate notice and provision of sufficient technology for members to participate and vote is required.

Documents

At least once each financial year members may elect to receive documents either electronically or in paper form. A member can request not to be sent any document prescribed in the regulations. The company is required to make notices available on a website and take reasonable steps to provide the member with any requested documents.

The following documents may be provided by the company in electronic or physical form:

  • notices of meetings;
  • resolutions;
  • matters to be considered at a meeting; and
  • minute books.

Execution

Corporate documents can be signed and executed electronically, with company signatories no longer required to sign the document in the presence of a witness physically.

A copy or counterpart of the document can be signed instead of the original therefore split execution is permitted.

Where there is a sole director, but no company secretary, a document is validly executed if:

  • the sole director signs the document; or
  • the sole director witnesses the fixing of the seal.

Where the new rules are followed people dealing with companies are entitled to assume that a document is validly executed.

The permanent changes apply to documents sent and meetings held on or after 1 April 2022.

The By Lawyers Companies guide has been updated to reflect these changes in the way companies may deal with meetings and documents.

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