Commentary

“Regulatory burden”?!

The legal profession is a regulated industry in Victoria (Australia), as elsewhere.  Duncan Lawyers has a particular interest in this particular form of industry regulation as it applies to us. It has for quite some time - the writer (Campbell Duncan) was first registered as a legal practitioner in Victoria in 1977.  Yes, it has been a few decades.

So, we were interested by a letter dated 11 March 2011 from the industry regulator, the Legal Services Board. The letter (in part) advised:

“Practising certificate renewals for 2011/2012 - change of process

I am writing to notify you of an anticipated amendment to the Legal Profession Act 2004 that will affect the process for the renewal of your practising certificate for 2011/2012.

The amendment, if approved, will remove the requirement for you to complete a statutory declaration confirming that the information provided on your renewal form is true and correct. When the law comes into effect you will still be required to declare that the information is true, however it does not need to be a statutory declaration. This therefore reduces the regulatory burden and matches interstate arrangements.”

The offending provision was section 2.4.9 of the Legal Profession Act 2004, which specified that an application for renewal of a practising certificate (read – renewal of accreditation) was to be in a form approved by the Board, accompanied by “a statutory declaration in the form approved by the Board”.

This provision was in force for around seven years, which makes it around seven times that the writer went hunting for an approved person to witness his renewal application. So, why, only in March 2011, was there concern about the burden it imposed, welcome though that concern was?  We can think of several possibilities:

  • the Legal Services Board developed an interest in reducing the cost to itself of checking on compliance with this requirement by each of the thousands of legal pratitioners who post in their forms each year;

  • Someone noticed that the requirement for accredited lawyers (“legal practitioners”) to expose themselves to liability for perjury each year (in the event of making a false declaration) is rather heavy-handed;

  • someone in Government – or in the LSB – wanted to reduce the regulatory burden imposed by this legislation.

This third possibility is the most interesting, for two reasons:

  1. The regulatory burden referred to was in an Act, not in subordinate legislation.  Subordinate legislation, in Victoria, has a life of ten years - after which there must be regulatory impact analysis by means of a regulatory impact statement.  Acts, however, last forever, unless Parliament decides otherwise.  There is no routine process designed to locate regulatory burdens of this type in Acts;

  2. “Regulatory burden” is a term often associated with regulatory impact statements — which, again, are made with reference to subordinate legislation, not Acts.  Possibly a business impact statement was prepared as part of the process for obtaining Cabinet approval for an amending Act — but such a document is generated and read only behind closed doors.  Not even members of Parliament have a right to see it, even after the Bill has been approved by Cabinet and introduced into Parliament.