Commissioner update

You may have seen a few weeks ago an editorial I wrote for The Age about sexual harassment in the Victorian legal profession. The results of our survey last year were deeply disturbing, and with recent cases getting significant media attention, now is the time for us all to step up and tackle this issue together.

The Attorney General, Jill Hennessey, today announced a review into sexual harassment prevention, support, enforcement and education in the state’s courts and VCAT, as well as a review into the policies and practices of law firms that provide services to the government. 

We are pleased to support the review, and I look forward to working with the government, the Law Institute of Victoria, the Victorian Bar and other stakeholders to implement new awareness and education programs about sexual harassment, as well as working with law firms to help them prevent, respond to and manage sexual harassment in their workplaces. You can read our regulatory strategy on our website here.

While we work in Victoria to address the systemic drivers of harassment, I will also be looking at how this issue can be tackled at a national level. Last week I joined legal stakeholders from across the county at a national roundtable to address sexual harassment, convened by the Law Council of Australia. We looked at the cultural issues that allow sexual harassment to occur and go unreported, and explored the development of a national sexual harassment model policy and guidelines to align the way lawyers respond to and manage harassment across the country.

We also explored the options for federal law reform that might support the work we’re doing here in Victoria at the state level.

I have said before that education and formal reporting mechanisms cannot alone stop harassment. We need to build a legal culture in which sexual harassment is not tolerated and where those who experience, witness and hear about it are able to speak up. We need to identify and introduce mechanisms that limit the potential for abuses of power. And we need to destabilise the structures that support serial harassers.

I’m very encouraged by the response I’ve seen across the sector, and for the leadership shown by the Attorney General, the Courts, the Law Institute of Victoria and the Victorian Bar. I’d also like to thank every lawyer who has told their story of sexual harassment, offered words of support and encouragement or stood up and advocated for change.

Practising certificate renewal

The renewal period for the 2020/21 practising certificate has now closed. Thank you for your patience over this time. This is the busiest time of the year for many of my teams, and the disruption of Covid-19 and the record number of renewals to process this presented additional challenges for us.  The vast majority of applications have been processed and PCs issued. Processing of remaining applications is still underway. If you haven’t received your certificate yet we will be sending you an email link to this when it is processed.

If you submitted a renewal application prior to 1 July, and it remains pending, please don’t worry. You can continue to practise with your 2019/20 certificate as long as you have paid your renewal fees and professional indemnity insurance. We won’t penalise you for our delays, so there is no need to contact us if you haven’t received your new certificate yet. Please note, if you altered the conditions of your certificate – for example, you changed you certificate type, we are prioritising the processing of these. If you’re waiting on a response to an enquiry we will get back to you as soon as possible.

VLSB+C on LinkedIn

We are always looking at ways we can better communicate with you, and last month we launched our new LinkedIn page. If you haven’t already, please follow us on LinkedIn for news updates in real-time.

In this issue:

• CPD review – deadline extended
• National redress scheme for institutional child sexual abuse
• Certificate of fitness
• Illegal phoenix activity

Be well,

Fiona McLeay
Board CEO + Commissioner

National redress scheme for institutional child sexual abuse

Various media reports, including on the ABC’s Background Briefing, have raised the issue of lawyers acting for clients in accessing compensation from the National Redress Scheme (the Scheme) for institutional child sexual abuse.

The media reports raised the issue of law firms in NSW charging clients up to $15,000 to complete an application form for the Scheme, despite the availability of a free government-funded service.

If you are acting for clients who are applying for compensation from the Scheme you must make them aware of the free legal support service available. You must also ensure any fees you charge are fair and reasonable and must be proportionately and reasonably incurred. Failure to disclose to clients their access to free legal advice or to charge unreasonable fees could be conduct investigated by our office.

Certificate of fitness

If you are looking to obtain a Certificate of Fitness, you now need to apply for the certificate through us. From 1 July 2020 the Law Institute of Victoria no longer provides these certificates.

Why do I need a Certificate of Fitness? 

If you are applying to the Supreme Court of Victoria for a Certificate of Good Standing, you will first need to give the Court a Certificate of Fitness.

We can prepare a Certificate of Fitness for lawyers who have either been admitted to practise in Victoria, or who have held a practising certificate in Victoria. The certificate states:

• the date that you were admitted to practice in the Supreme Court of Victoria
• any conditions or restrictions on your current practising certificate
• whether or not you currently hold a practising certificate
• whether or not you have ever had a practising certificate suspended or cancelled in Victoria
• whether or not an order has ever been made to suspend you from practice in Victoria.

How do I request a certificate?

To request a Certificate of Fitness, please make your request via our lawyer enquiry form. Please note there is no charge for obtaining a Certificate of Fitness.

It currently takes between 15–20 business days to process a request for a certificate.

Illegal phoenix activity

Illegal phoenix activity is where a new company is created to continue the business of an existing company that has been deliberately liquidated to avoid paying outstanding debts, including taxes, creditors and employee entitlements.

With Covid-19, there is a risk that this activity may increase once the government financial support ends in September/October. 

ASIC has published valuable resources to help identify illegal phoenix activities, which you can find on their website. If you suspect a client is involved in illegal phoenix activity you can report them to ASIC.

Penalties for illegal phoenix activity

Illegal phoenix activity can involve breaches of director's duties, fraudulent concealment or removal of assets and fraud by company officers under the Corporations Act 2001. Penalties include large fines and up to 5 years imprisonment for company directors and secretaries.

The law holds each of the people involved in the activity, from the pre-insolvency adviser, valuer, liquidator and dummy directors, equally responsible. They may be subjected to the same penalties if it is proved they aided, abetted, counselled or procured a director to engage in illegal phoenix activity.