Commissioner update

28 September 2023

In this issue:

• Introduction from the Commissioner
• Record $8 million awarded in bumper grants round
• VLA and LIV partnering to build First Nations cultural capability across legal sector
• Generative AI and lawyers
• Advice on sexual harassment confidentiality clauses
• Guidance on labour hire arrangements
• New content on how we assess fair and reasonable costs
• VLF updates
• Law Library Victoria is always open online

Introduction from the Commissioner

Since my last update to the profession, I have had the pleasure of meeting a number of lawyers in regional Victoria as part of the LIV’s scheduled visits to regional and suburban law associations.

This is the first time since the pandemic that we have been able to tour the regions, and I’d like to thank LIV CEO Adam Awty for his generous invitation to me and my staff to be involved.

So far we have visited lawyers in Colac, Warrnambool, Hamilton, Horsham, the Gippsland region, Ballarat and the Mornington Peninsula. We also took the opportunity to call in at Victoria Legal Aid offices and local Community Legal Centres.

At each stop we have heard directly from local lawyers about matters of concern and interest to them. My staff and I returned from these visits full of admiration for the work these lawyers do providing necessary legal services to our rural and regional communities. Regional practitioners continue to work hard for their communities. They are busy and for the most part, positive about regional practice.

Demographic changes as a result of the pandemic, which saw more people moving to the regions, have also increased demand for lawyers outside Melbourne. Challenges I heard from lawyers I spoke to include recruiting and retaining staff, especially support staff and junior lawyers. In some places, increasing property prices and a lack of rental properties exacerbate these issues.

However, for those who are able to offer paralegal and graduate roles, with associated training and support, there is a terrific group of newly-qualified lawyers — both young at the start of their career, and more mature embarking on new challenges — who are keen to practise in their home towns.

It has been pleasing to hear a number of lawyers making use of our resources and communications (including this update!). Many were also interested to hear about our role in supporting access to justice as a funder. You can read below about our latest grant round, in which we have invested a record $8 million in community-led projects that will deliver fairer and more accessible justice where it is needed most.

My staff and I look forward to meeting some more of you in Geelong, the Goulbourn Valley and Mildura as the tour continues into October.

Fiona McLeay
Board CEO and Commissioner

Record $8 million awarded in bumper grants round

Recently, Victorian Parliamentary Secretary for Justice Nina Taylor MP joined us at an event to announce the projects that received funding in the latest round of our grants program. All up, 27 projects will share in $8 million — making this our biggest round ever.

Climate justice was one of the key themes to emerge this year, with several projects aimed at providing legal support to communities impacted by climate change. Other initiatives will help groups as diverse as First Nations artists, young L-platers, survivors of family violence, expectant mums, and migrant and refugee families.

This is a watershed moment for our long-running grants program, which has been a stalwart of the funding landscape for 16 years, distributing nearly $60 million. We have launched a new grants strategy to strengthen the program and now offer two distinct funding streams: Change Grants and Strong Foundations Grants.

As we implement our new strategy we signal our commitment to continue to provide meaningful support to the community legal centres and other not-for-profit organisations making justice fairer and more accessible for everyone in the Victorian community.

VLA and LIV partnering to build First Nations cultural capability across legal sector

Our justice system, with its origins in colonialism, continues to disempower and dispossess First Nations people. The Yoorrook Justice Commission hearings and recent coronial recommendations have highlighted the devastating impacts of such systems and practices on First Nations people, families and communities.

With funding from the VLSB+C, the Law Institute of Victoria and Victoria Legal Aid are working in collaboration to develop a First Nations Cultural Capability Framework. The framework is being developed through a process founded on principles of respect, accountability and collaboration, and prioritises First Nations voices and expertise.

This commitment reflects LIV and VLA's organisational roles and responsibilities to promote professional practice and prescribe standards of service for legally aided clients.

The framework will support Victorian legal practitioners in meeting their responsibilities to deliver culturally safe and responsive services to First Nations clients.

Generative AI and lawyers

We continue to watch with interest the development of Generative Artificial Intelligence (AI) tools like ChatGPT, Google Bard and Microsoft CoPilot.

Our article, Generative AI and lawyers, provides commentary on the nature of these tools, their risks and potential uses.  We consider the applicable rules of ethics and some practical examples of where AI can be helpful, and where caution needs to be exercised.

We are actively monitoring the development of AI tools and will release guidance in the near future.

Advice on sexual harassment confidentiality clauses

Lawyers play a key role in drafting, negotiating and advising on confidentiality clauses to resolve workplace sexual harassment complaints.

While these clauses can be beneficial in providing a complainant with privacy, finality and greater bargaining power in settling their complaint, they can also facilitate repeat offending and inhibit oversight by executives and boards. They may contribute to the under-reporting and systemic nature of sexual harassment by keeping its prevalence and the steps taken to address it hidden.

As part of our regulatory strategy to reduce sexual harassment in the profession, we’ve put together some advice for Victorian lawyers about:

• the professional and ethical obligations relevant to drafting, negotiating and advising on confidentiality clauses.
• the regulatory consequences of breaching these obligations.
• new AHRC Respect@Work Council Guidelines and Fact Sheets on the Use of Confidentiality Clauses.

We encourage you to read this advice and consider how it relates to your own work

We have resources available on our website for people who have experienced or witnessed sexual harassment in the legal profession and we encourage you to let us know about your experiences. You have the option of reporting anonymously, in your own time, via our online reporting tool.

Guidance on labour hire arrangements

There’s a growing trend of more lawyers being offered job opportunities through labour hire agencies. These lawyers are employed by an agency and then placed in specific roles within host employers such as law practices, government departments and private companies, offering flexibility and access to skilled legal professionals.

Recently, questions have come up about how these labour hire agencies should be registered, and the type of practising certificate lawyers need when working for the host employer. To clear up any confusion, we confirm that if an agency exclusively provides labour hire arrangements, they don’t need to register with us.

For lawyers hired by these agencies to work at host employers, the type of practising certificate they need depends on the nature of the work undertaken at the host employer. Here’s what’s needed in different situations:

• Lawyers working at a private law firm need an employee practising certificate.
• Lawyers working for government agencies or departments need a government practising certificate.
• Lawyers providing in-house legal services for private companies or agencies should have a corporate practising certificate.
• Lawyers employed by a labour hire agency who also provide legal services to private clients, friends or family must establish their own law practice and hold a principal practising certificate.

If a lawyer needs supervision, they need to make sure a qualified supervisor is in place at the host employer. If no supervisor is available, lawyers need to submit a remote supervision plan to us, which must be approved by us before starting their role.

If a labour hire agency offers legal services directly to consumers, it's considered a law practice and needs to be registered with us.

You can find more information on our website.

New content on how we assess fair and reasonable costs

When someone has concerns about the cost of their lawyer’s work, we encourage them to speak with their lawyer first — knowing most issues can usually be resolved this way.

However, if you do end up the subject of a complaint about a legal bill, we may need to review your work and costs. This is done to assess if what you have charged your client is “fair and reasonable”, which you are obliged to ensure under the Uniform Law.

We have produced a short video and related web content to explain this process to consumers, including some of the factors we consider when assessing what is fair and reasonable. You may find them useful for your own knowledge.

It’s important to remember we don’t take sides in cost disputes. The information and resources we provide consumers, such as those above or our ‘Six questions to ask about legal costs’ checklist, are designed to help people understand what to expect when their lawyer bills them.

They are also intended to encourage better communication and improve understanding between consumers and lawyers to avoid cost disputes arising in the first place.

Victoria Law Foundation updates

PULS Volume 1: Everyday Problems and Legal Need 

The team at VLF is thrilled to have launched their first report from their flagship research project, the Public Understanding of Law Survey (PULS). This first volume updates the broad picture of access to justice and legal need, explores how justiciable problems are experienced, what people do about them, and how they progress and conclude. The report is fascinating reading and I encourage you all to take a look at it. Explore PULS Volume 1 at the PULS website – and keep an eye out for Volumes 2 and 3, due later this year

Final Data Mapping Project report: Calibrating Justice 

VLF also recently released its fourth and final Data Mapping Project report, Calibrating Justice: The use and utility of administrative data in Victoria’s civil justice system. This report completes the project to build an understanding on how everyday data collection could be harnessed to deliver access to civil justice in Victoria. Read the full report.

In Conversation with the Victorian Ombudsman 

Fairness, integrity, and respect for human rights. Next year Deborah Glass OBE will wrap up her 10-year term as the Victorian Ombudsman. For this year's In Conversation, Deborah reflects on the role, her priorities and how to have the most impact for Victorians. Watch the conversation here.

Law Library Victoria is always open online

No matter where Victorian lawyers are working, you can log into the Law Library Victoria website and access a wide range of authoritative legal resources.

Conduct comprehensive legal research, and bridge any gaps in your collection, with 24/7 online access to legal databases, eBooks, reference material, and research guides. No login? It’s free to register.

Practitioners visiting Melbourne are welcome to come into the Supreme Court Library to research and work, with ready access to the print and digital collections, including forms and precedents, as well as Microsoft Office. The library is open Monday to Friday.