As the peak body representing the interests of in-house lawyers in Australia, ACC Australia advocates on matters of interest to the in-house profession to shape Australia’s corporate legal environment and promote the public's understanding of the law within the business and legal communities. While 2020 has been a challenging year on many fronts, ACC Australia through its state committees and the ACC Australia Advocacy Committee, has had success with several key advocacy initiatives on behalf of its members.
Key ACC Australia advocacy initiatives:
1. CPD Review - Uniform Law jurisdictions - potential change to CPD Rules
ACC Australia recently contributed to a review of Continuing Professional Development (CPD) in Victoria by the Victorian Legal Services Board + Commissioner (VLSB+C). ACC Australia was one of over 170 organisations that provided feedback about how the CPD system in Victoria could be improved to enable the legal profession to have meaningful, relevant and accessible learning opportunities.
ACC Australia’s submission was informed by the ACC Australia member survey and focus groups. Members’ feedback demonstrated largely consistent views between corporate and government in-house counsel, but identified specific differences in the Ethics and Practice Management learning requirements. ACC Australia’s submission also encouraged a wider range of learning opportunities to be eligible for CPD points, and flexibility introduced in the regime to recognise that it is needs that drive the type of CPD session which a lawyer chooses to attend as well as the stage at which a lawyer is in their career.
Recently VLSB +C released its findings, and the attached table summarises and compares the main issues raised by ACC Australia and the recommendations made by the report. Many of ACC Australia’s recommendations were taken up in the report such as suggested changes to Ethics CPD requirements, mentoring and the need for non-substantive subjects in CPD as the role of in-house counsel evolves. The report also recommends that:
- the VLSB+C actively promote and support training in areas of diversity and inclusion, family violence, health and wellbeing; and
- the VLSB+C establish a CPD Steering Committee to implement the recommendations of the review and the VLSB+C has asked that ACC Australia be involved.
2. Definition of ‘related entity’ and ‘corporate legal practitioner’ in the Legal Profession Uniform Law - progression of new ‘control test’ towards Legislation
ACC Australia has been advocating for several years for changes to the Legal Profession Uniform Law (UL) because, as currently worded, the UL provides that in-house counsel can only provide advice to their employer or their employer’s “Related Entities”. ACC Australia has repeatedly submitted that the definition of “Related Entities” is too narrow and does not recognise the modern day corporate structure across which an in-house counsel is expected to advise. Presently, the only viable work-around is for in-house counsel to take out a Principal Practising Certificate with the concomitant requirement to also take out professional indemnity insurance. Most recently ACC Australia proposed a “control test” to allow in-house legal counsel to provide legal services to “controlled entities” within the same corporate group, which would enable in-house counsel to fulfil their employer’s legitimate needs for legal services within their corporate structure without breaching any of the provisions of the UL. ACC Australia’s proposed amendments would also negate the onerous requirement to take out a Principal Practising Certificate and insurance.
The Victorian Legal Services Board + Commissioner has recently advised that ACC Australia’s proposed solution to this advocacy issue has been approved by the relevant Regulators and the relevant Attorneys-General and is currently being drafted in a Bill. If the Bill is passed, this will be a significant and long-awaited win for ACC Australia, its members, and their employers.
3. Use of the title ‘Senior Legal Counsel’ by in-house legal counsel in WA
In late 2019 the Legal Practice Board of Western Australia (LPBWA) wrote to in-house practitioners in WA stating they had 21 days to cease using the title “Senior Legal Counsel” or variants thereof (including the words “senior” and “counsel”) in their job titles, on the basis that this was misleading and potentially in contravention of the Legal Profession Act and Regulations in WA.
ACC Australia lobbied on this issue and ultimately the LPBWA’s Professional Affairs Committee resolved to take no further action against legal counsel using the titles, subject to care being exercised.
4. ASIC Consultation Paper (CP) 321 Whistleblowing Policies
ACC Australia’s submission to ASIC in response to Consultation Paper 321 Whistleblower Policies and Draft Guidance offered three points of feedback and comment:
- ACC Australia was pleased that ASIC good practice guidance expressed a preference for internal reporting.
- ACC Australia believed the ASIC good practice guidance on roles and responsibilities under a whistleblower policy was overly prescriptive and further believed ASIC should revise this section to be more principles-based.
- ACC Australia requested further guidance on protections that might be afforded to in-house legal counsel whom themselves are put into a position where they feel it necessary to become whistleblowers.
ASIC released regulatory guide 270 on Whistleblower policies in response to the recent submissions. Whilst some of ACC Australia’s requests were met regarding simplification and prescription, ACC Australia remains concerned about lack of clarity of protection of corporate counsel as whistleblowers particularly with respect to legal professional privilege.
Feedback
ACC Australia welcomes your feedback and suggestions on/contribution to future advocacy initiatives. Get in touch at ausmembership@acc.com.