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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to regulate the practice of law; to repeal the Legal
Practitioners Act 1981; and for other purposes.
Contents
Chapter 1—Introduction
Part 1—Preliminary
1 Short
title
2 Commencement
Part
2—Interpretation
3 Definitions
4 Terms relating to
lawyers
5 Terms relating to legal practitioners
6 Terms relating to
associates and principals of law practices
7 Meaning of engaging in legal
practice
8 Home jurisdiction
9 Suitability matters
10 Information
notices
11 References to convictions for offences
12 Fusion of the legal
profession
Chapter 2—General requirements for engaging in legal
practice
Part 1—Reservation of legal work and legal
titles
13 Prohibition on engaging in legal practice when not
entitled
14 Prohibition on representing or advertising entitlement to engage
in legal practice when not entitled
15 Presumptions about taking or using
name, title or description specified in regulations
16 Right of
audience
17 Unlawful representation
18 Employment of disqualified person
or person convicted or serious offence
19 Professional discipline
Part 2—Admission of local lawyers
Division 1—Admission to the legal
profession
20 Supreme Court to maintain local roll
21 Local lawyer
is officer of Supreme Court
Division 2—Eligibility and suitability for
admission
22 Entitlement to admission
23 Suitability for
admission
Part 3—Legal practice—Australian legal
practitioners
Division 1—Legal practice in this jurisdiction by
Australian legal practitioners
24 Entitlement of holder of Australian
practising certificate to practise in this jurisdiction
Division 2—Local practising certificates
generally
25 Local practising certificates
26 Suitability to hold
local practising certificates
27 Restriction on issue of practising
certificates in certain cases
28 Duration of local practising
certificate
29 Insurance requirements
30 Local legal practitioner is
officer of Supreme Court
Division 3—Grant or renewal of local practising
certificates
31 Application for grant or renewal of local practising
certificate
32 Timing for application for renewal of local practising
certificate
33 Grant or renewal of local practising
certificate
34 Amendment or cancellation of local practising
certificate
Division 4—Conditions on local practising
certificates
35 Statutory condition regarding notification of
offence
36 Statutory condition regarding conditions imposed on interstate
admission
37 Statutory condition regarding practice
38 Conditions as to
training etc
39 Endorsement of conditions on practising
certificates
Division 5—Amendment, suspension or cancellation of
local practising certificates
40 Application of Division
41 Grounds
for amending, suspending or cancelling local practising
certificate
42 Amending, suspending or cancelling local practising
certificates
43 Operation of amendment, suspension or cancellation of local
practising certificate
Division 6—Special powers in relation to local
practising certificates—show cause events
44 Applicant for local
practising certificate—show cause event
45 Holder of local practising
certificate—show cause event
46 Refusal, amendment, suspension or
cancellation of local practising certificate—failure to show
cause
Division 7—Further provisions relating to local
practising certificates
47 Immediate suspension of local practising
certificate
48 Surrender and cancellation of local practising
certificate
Division 8—Interstate legal
practitioners
49 Requirement for professional indemnity
insurance
50 Extent of entitlement of interstate legal practitioner to
practise in this jurisdiction
51 Additional conditions on practice of
interstate legal practitioners
52 Special provisions about interstate legal
practitioner engaging in unsupervised legal practice in this
jurisdiction
53 Interstate legal practitioner is officer of Supreme
Court
Division 9—Miscellaneous
54 Rules of Supreme
Court may assign functions or powers
55 Supreme Court may authorise personal
representative to carry on legal practice
56 Protocols
57 Consideration
and investigation of applicants or holders
58 Register of local practising
certificates
59 Government lawyers of other jurisdictions
Part 4—Inter-jurisdictional provisions regarding
admission and practising certificates
Division
1—Preliminary
60 Definition
Division 2—Notifications to be given by local
authorities to interstate authorities
61 Official notification to
other jurisdictions of applications for admission and associated
matters
62 Official notification to other jurisdictions of removals from
local roll
63 Regulatory authority to notify other jurisdictions of certain
matters
Division 3—Notifications to be given by lawyers to
local authorities
64 Lawyer to give notice of removal in another
jurisdiction
65 Lawyer to give notice of interstate orders
66 Lawyer to
give notice of foreign regulatory action
67 Provisions relating to
requirement to notify
Division 4—Taking of action by local authorities in
response to notifications received
68 Peremptory removal of local
lawyer's name from local roll following removal in another
jurisdiction
69 Peremptory cancellation of local practising certificate
following removal of name from interstate roll
70 Show cause procedure for
removal of lawyer's name from local roll following foreign regulatory
action
71 Show cause procedure for cancellation of local practising
certificate following foreign regulatory action
72 Order for non-removal of
name or non-cancellation of local practising certificate
73 Local authority
may give information to other local authorities
Part 5—Incorporated legal practices and
multi-disciplinary partnerships
Division
1—Preliminary
74 Definitions
Division 2—Incorporated legal
practices
75 Nature of incorporated legal practice
76 Non-legal
services and businesses of incorporated legal practices
77 Corporations
eligible to be incorporated legal practice
78 Notice of intention to start
providing legal services
79 Prohibition on representations that corporation
is incorporated legal practice
80 Notice of termination of provision of legal
services
81 Incorporated legal practice must have legal practitioner
director
82 Obligations of legal practitioner director relating to
misconduct
83 Incorporated legal practice without legal practitioner
director
84 Obligations and privileges of practitioners who are officers or
employees
85 Professional indemnity insurance
86 Conflicts of
interest
87 Disclosure obligations
88 Effect of non-disclosure of
provision of certain services
89 Application of legal profession
rules
90 Requirements relating to advertising
91 Extension of vicarious
liability relating to failure to account, pay or deliver and dishonesty to
incorporated legal practices
92 Sharing of receipts, revenue or other
income
93 Disqualified persons
94 Audit of incorporated legal
practice
95 Application of Chapter 6
96 Banning of incorporated legal
practices
97 Disqualification from managing incorporated legal
practice
98 Disclosure of information to Australian Securities and
Investments Commission
99 External administration proceedings under
Corporations Act 2001
100 External administration proceedings under
other legislation
101 Incorporated legal practice that is subject to
receivership under this Act and external administration under Corporations
Act 2001 (Cth)
102 Incorporated legal practice that is subject to
receivership under this Act and external administration under other
legislation
103 Co-operation between courts
104 Relationship of Act to
constitution of incorporated legal practice
105 Relationship of Act to
legislation establishing incorporated legal practice
106 Relationship of Act
to Corporations legislation
107 Undue influence
Division 3—Multi-disciplinary
partnerships
108 Nature of multi-disciplinary
partnership
109 Conduct of multi-disciplinary partnerships
110 Notice of
intention to start practice in multi-disciplinary partnership
111 General
obligations of legal practitioner partners
112 Obligations of legal
practitioner partner relating to misconduct
113 Actions of partner who is not
an Australian legal practitioner
114 Obligations and privileges of
practitioners who are partners or employees
115 Conflicts of
interest
116 Disclosure obligations
117 Effect of non-disclosure of
provision of certain services
118 Application of legal profession
rules
119 Requirements relating to advertising
120 Sharing of receipts,
revenue or other income
121 Disqualified persons
122 Prohibition on
partnerships with certain partners who are not Australian legal
practitioners
123 Undue influence
Division 4—Miscellaneous
124 Obligations of
individual practitioners not affected
125 Regulations
Part 6—Legal practice—foreign
lawyers
Division
1—Preliminary
126 Definitions
127 This Part does not apply to
Australian legal practitioners
Division 2—Practice of foreign
law
128 Requirement for registration
129 Entitlement of
Australian-registered foreign lawyer to practise in this
jurisdiction
130 Scope of practice
131 Form of practice
132 Application
of Australian professional ethical and practice
standards
133 Designation
134 Letterhead and other identifying
documents
135 Advertising
136 Foreign lawyer employing Australian legal
practitioner
137 Trust money and trust accounts
138 Professional indemnity
insurance
139 Guarantee fund
Division 3—Local registration of foreign lawyers
generally
140 Local registration of foreign lawyers
141 Duration of
registration
142 Locally registered foreign lawyer is not officer of Supreme
Court
Division 4—Applications for grant or renewal of local
registration
143 Application for grant or renewal of
registration
144 Manner of application
145 Requirements regarding
applications for grant or renewal of registration
Division 5—Grant or renewal of
registration
146 Grant or renewal of registration
147 Requirement
to grant or renew registration if criteria satisfied
148 Refusal to grant or
renew registration
Division 6—Amendment, suspension or cancellation of
local registration
149 Application of Division
150 Grounds for
amending, suspending or cancelling registration
151 Amending, suspending or
cancelling registration
152 Operation of amendment, suspension or
cancellation of registration
153 Other ways of amending or cancelling
registration
154 Relationship of this Division with Chapter 4
Division 7—Special powers in relation to local
registration—show cause events
155 Applicant for local
registration—show cause event
156 Locally registered foreign
lawyer—show cause event
157 Refusal, amendment, suspension or
cancellation of local registration—failure to show
cause
158 Restriction on making further applications
159 Relationship of
this Division with Chapter 4 Part 2 and Chapter 6
Division 8—Further provisions relating to local
registration
160 Immediate suspension of registration
161 Surrender
of local registration certificate and cancellation of
registration
162 Automatic cancellation of registration on grant of
practising certificate
163 Suspension or cancellation of registration not to
affect disciplinary processes
164 Return of local registration certificate on
amendment, suspension or cancellation of registration
Division 9—Conditions on
registration
165 Conditions generally
166 Conditions imposed by
Society
167 Statutory condition regarding notification of
offence
168 Conditions imposed by legal profession rules
169 Compliance
with conditions
Division 10—Interstate-registered foreign
lawyers
170 Extent of entitlement of interstate-registered foreign
lawyers to practise in this jurisdiction
171 Additional conditions on
practice of interstate-registered foreign lawyers
Division 11—Miscellaneous
172 Consideration
and investigation of applicants and locally registered foreign
lawyers
173 Register of locally registered foreign lawyers
174 Publication
of information about locally registered foreign lawyers
175 Exemption by
Society
176 Membership of professional association
Part 7—Community legal
centres
177 Definition
178 Community legal
centres
179 Obligations and privileges of practitioners who are officers or
employees
180 Undue influence
181 Application of legal profession
rules
182 Costs
Chapter 3—Conduct of legal practice
Part 1—Manner of legal practice
Division 1—Rules for Australian legal practitioners
and registered foreign lawyers
183 Rules for Australian legal
practitioners
184 Rules for foreign lawyers
185 Subject-matter of legal
profession rules
186 Public notice of proposed legal profession
rules
Division 2—Rules for incorporated legal practices and
multi-disciplinary partnerships
187 Rules
188 Rule-making
procedures
Division 3—General provisions for legal profession
rules
189 Binding nature of legal profession rules
190 Legal
profession rules inconsistent with Act or regulations
191 Availability of
rules
Part 2—Trust money and trust accounts
Division
1—Preliminary
192 Definitions
193 Money granted or provided
under contract to community legal centre
194 Money involved in financial
services or investments
195 Determinations about status of
money
196 Application of Part to law practices and trust
money
197 Protocols for determining where trust money is received
198 When
money is received
199 Discharge by legal practitioner associate of
obligations of law practice
200 Liability of principals of law
practice
201 Former practices, principals and associates
202 Barristers
not to receive trust money
Division 2—Trust accounts and trust
money
203 Maintenance of general trust account
204 Certain trust
money to be deposited in general trust account
205 Holding, disbursing and
accounting for trust money
206 Manner of withdrawal of trust money from
general trust account
207 Controlled money
208 Manner of withdrawal of
controlled money from controlled money account
209 Transit money
210 Trust
money subject to specific powers
211 Trust money received in form of
cash
212 Protection of trust money
213 Intermixing money
214 Dealing
with trust money—legal costs and unclaimed money
215 Deficiency in
trust account
216 Reporting certain irregularities and suspected
irregularities
217 Keeping trust records
218 False names
219 Interest
payable if law practice fails to deposit trust money
Division 3—Investigations and external
examinations
Subdivision 1—Investigations
220 Appointment of
investigators
221 Investigations
222 Application of Chapter
6
223 Investigator's report
224 When costs of investigation are
debt
Subdivision 2—External examinations
225 Designation of external
examiners
226 Trust records to be externally examined
227 Examination of
affairs in connection with examination of trust records
228 Designation and
appointment of associates as external examiners
229 Final examination of
trust records
230 Carrying out examination
231 External examiner's
report
232 Law practice liable for costs of examination
Division 4—Provisions relating to ADIs and statutory
deposits
Subdivision 1—ADIs
233 Approval of ADIs
234 ADI not subject to
certain obligations and liabilities
235 Reports, records and
information
Subdivision 2—The combined trust account
236 Duty to deposit trust
money in combined trust account
237 Immunity from liability
Subdivision 3—The statutory interest account
238 Statutory
interest account
Subdivision 4—Miscellaneous
239 Payment of interest accruing on
trust accounts
240 Accounts and audit
Division 5—Miscellaneous
241 Restrictions on
receipt of trust money
242 Protection from liability
243 Application of
Part to incorporated legal practices and multi-disciplinary
partnerships
244 Disclosure to clients—money not received as trust
money
245 Disclosure of accounts used to hold money entrusted to law practice
or legal practitioner associate
246 Regulations
Part 3—Costs disclosure and
adjudication
Division
1—Preliminary
247 Definitions
248 Terms relating to third
party payers
Division 2—Application of
Part
249 Application of Part—first instructions rule
250 Part
also applies by agreement or at client's election
251 Displacement of
Part
252 How and when does a client first instruct a law
practice?
253 When does a matter have a substantial connection with this
jurisdiction?
254 What happens when different laws apply to a
matter?
Division 3—Costs disclosure
255 Disclosure
of costs to clients
256 Disclosure if another law practice is to be
retained
257 How and when must disclosure be made to a
client?
258 Exceptions to requirement for disclosure
259 Additional
disclosure—settlement of litigious matters
260 Additional
disclosure—uplift fees
261 Form of disclosure
262 Ongoing obligation
to disclose
263 Effect of failure to disclose
264 Progress
reports
265 Disclosures to associated third party payers
Division 4—Legal costs generally
266 On what
basis are legal costs recoverable?
267 Security for legal
costs
268 Interest on unpaid legal costs
Division 5—Costs agreements
269 Making costs
agreements
270 Conditional costs agreements
271 Conditional costs
agreements involving uplift fees
272 Contingency fees are
prohibited
273 Effect of costs agreement
274 Certain costs agreements are
void
275 Setting aside costs agreements
Division 6—Billing
276 Legal costs cannot be
recovered unless Bill has been served
277 Bills
278 Notification of
client's rights
279 Request for itemised Bill
280 Interim Bills
Division 7—Adjudication of
costs
281 Definition
282 Application by clients or third party
payers for adjudication of costs
283 Application for adjudication by law
practice retaining another law practice
284 Application for adjudication of
costs by law practice giving bill
285 Power of Supreme Court on application
for adjudication
286 Board may institute proceedings
287 Court may order
plaintiff to apply for adjudication
288 Consequences of
application
289 Persons to be notified of application
290 Criteria for
adjudication
291 Adjudication of costs by reference to costs
agreement
292 Adjudication of costs by reference to scale of
costs
293 Costs of adjudication
294 Referral for disciplinary
action
295 Contracting out of Division by sophisticated clients
Division 8—Miscellaneous
296 Application of
Part to incorporated legal practices and multi-disciplinary
partnerships
297 Imputed acts, omissions or knowledge
Part 4—Professional indemnity
insurance
298 Professional indemnity insurance scheme
Part 5—The legal practitioners' guarantee
fund
Division
1—Preliminary
299 Interpretation
300 Time of
default
Division 2—Guarantee fund
301 Guarantee
fund
302 Insurance
303 Borrowing
304 Annual report
Division 3—Defaults to which this Part
applies
305 Meaning of relevant jurisdiction
306 Defaults to
which this Part applies
307 Defaults relating to financial services or
investments
Division 4—Claims about defaults
308 Claims
about defaults
309 Personal representative may make claim
310 Time limit
for making claims
311 Advertisements
312 Time limit for making claims
following advertisements
313 Caps on payments following
advertisements
314 Claims not affected by certain
matters
315 Investigation of claims
316 Advance payments
Division 5—Determination of
claims
317 Determination of claims
318 Maximum amount
allowable
319 Costs
320 Interest
321 Reduction of claim because of
other benefits
322 Subrogation
323 Repayment of certain
amounts
324 Notification of delay in making decision
325 Notification of
decision
326 Appeal against decision on claim
327 Appeal against failure
to determine claim
328 Court proceedings
Division 6—Payments from guarantee fund for
defaults
329 Payments for defaults
330 Sufficiency of guarantee
fund
331 Levies
Division 7—Claims by law practices or
associates
332 Claims by law practices or associates about
defaults
333 Claims by law practices or associates about notional
defaults
Division 8—Defaults involving interstate
elements
334 Concerted interstate defaults
335 Defaults involving
interstate elements where committed by 1 associate only
Division 9—Inter-jurisdictional
provisions
336 Protocols
337 Forwarding of
claims
338 Investigation of defaults to which this Part
applies
339 Investigation of defaults to which a corresponding law
applies
340 Investigation of concerted interstate defaults and other defaults
involving interstate elements
341 Recommendations by Society to corresponding
authorities
342 Recommendations to and decisions by Society after receiving
recommendations from corresponding authorities
343 Request to another
jurisdiction to investigate aspects of claim
344 Request from another
jurisdiction to investigate aspects of claim
345 Co-operation with other
authorities
Division 10—Miscellaneous
346 Interstate
legal practitioner becoming authorised to withdraw from local trust
account
347 Application of Part to incorporated legal
practices
348 Application of Part to multi-disciplinary
partnerships
349 Application of Part to sole practitioners whose practising
certificates lapse
Chapter 4—Complaints and discipline
Part 1—Introduction and application
Division 1—Preliminary
350 Application of
Chapter to lawyers, former lawyers and former practitioners
Division 2—Key concepts
351 Unsatisfactory
professional conduct
352 Professional misconduct
353 Conduct capable of
constituting unsatisfactory professional conduct or professional
misconduct
Division 3—Application of
Chapter
354 Practitioners to whom this Chapter applies
355 Conduct
to which this Chapter applies—generally
356 Conduct to which this
Chapter applies—insolvency, serious offences and tax offences
Part 2—Complaints and discipline
Division 1—Investigations by Legal Practitioners
Conduct Board
Subdivision 1—Investigation of unsatisfactory professional conduct
and professional misconduct
357 Investigations by Board
Subdivision 2—Action following investigation
358 Report on
professional misconduct
359 Board to notify persons of suspected
loss
360 Powers of Board to deal with certain unsatisfactory professional
conduct or professional misconduct
Subdivision 3—Complaints of overcharging
361 Investigation of
allegation of overcharging
Subdivision 4—Conciliation
362 Board may conciliate
complaints
Division 2—Proceedings before Legal Practitioners
Disciplinary Tribunal
363 Inquiries
364 Joinder
365 Variation of
complaint
366 Rules of evidence
367 Power to disregard procedural
lapses
368 Determinations of Tribunal
369 Interlocutory and interim
orders
370 Compliance with determinations and orders
371 Notice of
inquiry
372 Powers of Tribunal
373 Proceedings to be generally in
public
374 Tribunal's proceedings to be
privileged
375 Costs
376 Appeal
377 Operation of order may be
suspended
378 Other remedies not affected
Division 3—Disciplinary proceedings before the Supreme
Court
379 Proceedings before Supreme Court
380 Court may order
interim suspension of Australian legal practitioner or impose interim
conditions
381 Jurisdiction of Supreme Court
Division 4—Provisions relating to interstate legal
practice
382 Conduct not to be the subject of separate
proceedings
383 Furnishing information
Division 5—Publicising disciplinary
action
384 Definitions
385 Register of Disciplinary
Action
386 Other means of publicising disciplinary action
387 Quashing of
disciplinary action
388 Liability for publicising disciplinary
action
389 Disciplinary action taken because of infirmity, injury or
illness
390 General
Division 6—Inter-jurisdictional
provisions
391 Protocols
392 Request to another jurisdiction to
investigate complaint
393 Requests from another jurisdiction to investigate
complaint
394 Sharing of information with corresponding
authorities
395 Co-operation with corresponding authorities
396 Compliance
with recommendations or orders made under corresponding laws
397 Other powers
or functions not affected
Division 7—Miscellaneous
398 Protection from
liability
399 Claims of privilege
400 Waiver of privilege or duty of
confidentiality
Chapter 5—External intervention
Part
1—Preliminary
401 Definitions
402 Application of Chapter to
Australian-registered foreign lawyers
403 Application of Chapter to other
persons
Part 2—Initiation of external
intervention
404 Circumstances warranting external
intervention
405 Determination regarding external intervention
Part 3—Supervisors of trust
money
406 Appointment of supervisor of trust money
407 Notice of
appointment
408 Effect of service of notice of appointment
409 Role of
supervisor of trust money
410 Records of and dealing with trust money of law
practice under supervision
411 Termination of supervisor's
appointment
Part 4—Managers
412 Appointment of
manager
413 Notice of appointment
414 Effect of service of notice of
appointment
415 Role of manager
416 Records and accounts of law practice
under management and dealings with trust money
417 Deceased
estates
418 Termination of manager's appointment
Part 5—Receivers
419 Appointment of receiver
by Supreme Court
420 Notice of appointment
421 Effect of service of notice
of appointment
422 Role of receiver
423 Records and accounts of law
practice under receivership and dealings with trust money
424 Power of
receiver to take possession of regulated property
425 Power of receiver to
take delivery of regulated property
426 Power of receiver to deal with
regulated property
427 Power of receiver to require documents or
information
428 Examinations
429 Lien for costs on regulated
property
430 Regulated property not to be attached
431 Recovery of
regulated property where there has been a breach of trust etc
432 Improperly
destroying property etc
433 Deceased estates
434 Termination of receiver's
appointment
Part 6—General
435 Conditions in appointment
of external intervener
436 Status of acts of external
intervener
437 Eligibility for reappointment or authorisation
438 Appeal
against appointment
439 Directions of Supreme Court
440 Manager and
receiver appointed for law practice
441 ADI disclosure
requirements
442 Fees, legal costs and expenses
443 Reports by external
intervener
444 Confidentiality
445 Provisions relating to requirements
under this Part
446 Obstruction of external intervener
447 Protection from
liability
Chapter 6—Investigatory powers
Part 1—Preliminary
448 Definitions
Part 2—Requirements relating to documents, information
and other assistance
449 Application of Part
450 Requirements that
may be imposed for investigations, examinations and audits under Chapter 3 Part
2
451 Requirements that may be imposed for investigations under Chapter
4
452 Provisions relating to requirements under this Part
Part 3—Entry and search of
premises
453 Application of Part
454 Investigator's power to enter
premises
455 Search warrants
456 Powers of investigator while on
premises
Part 4—Additional powers in relation to incorporated
legal practices
457 Application of Part
458 Investigative powers
relating to investigations and audits
459 Examination of
persons
460 Inspection of books
461 Power to hold hearings
462 Failure
to comply with investigation
Part 5—Miscellaneous
463 Obstruction of
investigator
464 Obligation of Australian lawyers and Australian legal
practitioners
465 Protection from liability
466 Permitted disclosure of
confidential information
Chapter 7—Regulatory bodies and
funding
Part 1—The Law Society of South
Australia
Division 1—Administration of the
Society
467 Incorporation and powers of Society
468 Officers and
employees of Society
469 Council of Society
470 Validation of acts of
Council
471 Management of Society's affairs
472 Minutes of
proceedings
473 Society's right of audience
474 Rules of Society
Division 2—The Litigation Assistance
Fund
475 The Litigation Assistance Fund
Division 3—Reporting obligations
476 Certain
matters to be reported by Society
Part 2—The Legal Practitioners Education and Admission
Council and the Board of Examiners
Division 1—The Legal Practitioners Education and
Admission Council
477 LPEAC
478 Functions of
LPEAC
479 Conditions of membership
480 Procedures of LPEAC
481 Validity
of acts and immunity of members
482 Advisory Committees
483 Annual
report
Division 2—The Board of Examiners
484 Board
of Examiners
485 Functions of Board of Examiners
486 Procedures of Board
of Examiners
487 Validity of acts and immunity of members
Part 3—The Legal Practitioners Conduct
Board
488 Legal Practitioners Conduct Board
489 Conditions on which
members of Board hold office
490 Quorum etc
491 Validity of acts of Board
and immunity of its members
492 Director and staff of Board
493 Functions
of Board
494 Power of delegation
Part 4—The Legal Practitioners Disciplinary
Tribunal
495 Legal Practitioners Disciplinary
Tribunal
496 Conditions of membership
497 Constitution and proceedings of
Tribunal
498 Validity of acts of Tribunal and immunity of its
members
499 Rules of Tribunal
Part 5—Lay observers
500 Lay
observers
Part 6—Annual reports
501 Annual
reports
Chapter 8—General
Part 1—Public notaries
502 Appointment of
notaries
503 Roll of notaries
504 Power of Court to strike off name of any
notary
505 Persons acting as notaries contrary to this Part
Part 2—Miscellaneous
506 Liability of
principals
507 Disclosure of information by local regulatory
authorities
508 Confidentiality of personal information
509 Application of
certain revenues
510 Inspection of documents
511 False or misleading
information
512 Service of notices and documents
513 Approved
forms
514 Offences
515 Regulations
Schedule 1—Repeal and transitional
provisions
Part 1—Repeal of Act
1 Repeal of Legal
Practitioners Act 1981
Part 2—Transitional
provisions
2 Authorisation to employ disqualified person or person
convicted of serious offence
3 The roll
4 Admission
5 Practising
certificates
6 Incorporated legal practices
7 Deficiencies in trust
accounts
8 Approved auditors under repealed Act
9 Inspectors under
repealed Act
10 Investigations
11 Costs
12 Professional indemnity
insurance
13 Claims on the guarantee fund
14 Combined trust
account
15 Notices issued by Board
16 Orders under repealed
Act
17 External intervention
18 Rules
19 Officers and Council of
Society continue to hold office
20 Public notaries
21 References to
repealed Act
22 Other provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Legal Profession
Act 2007.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
admission rules means rules made by the Supreme Court
relating to admission to the legal profession;
admission to the legal profession means admission by a
Supreme Court as—
(a) a lawyer; or
(b) a legal practitioner; or
(c) a barrister; or
(d) a solicitor; or
(e) a barrister and solicitor; or
(f) a solicitor and barrister,
under this Act or a corresponding law, but does not include the grant of a
practising certificate under this Act or a corresponding law; and admitted
to the legal profession has a corresponding meaning;
affairs of a law practice includes the following:
(a) all accounts and records required under this Act or the regulations to
be maintained by the practice or an associate or former associate of the
practice;
(b) other records of the practice or an associate or former associate of
the practice;
(c) any transaction—
(i) to which the practice or an associate or former associate of the
practice was or is a party; or
(ii) in which the practice or an associate or former associate of the
practice has acted for a party;
amend includes—
(a) in relation to a practising certificate—
(i) impose a condition on the certificate; and
(ii) amend or revoke a condition already imposed on the certificate;
and
(b) in relation to registration as a foreign lawyer—
(i) amend the lawyer’s registration certificate; and
(ii) impose a condition on the registration; and
(iii) amend or revoke a condition already imposed on the
registration;
approved form—see section 513;
associate—see section 6;
Australian Government Solicitor means the Australian
Government Solicitor constituted under the Judiciary Act 1903 of the
Commonwealth and includes any person authorised by or under that Act to act in
the name of the Australian Government Solicitor;
Australian lawyer—see section 4;
Australian legal practitioner—see
section 5;
Australian practising certificate means a local practising
certificate or an interstate practising certificate;
Australian-registered foreign lawyer means a locally
registered foreign lawyer or an interstate-registered foreign lawyer;
Australian roll means the local roll or an interstate
roll;
Australian trust account means a local trust account or an
interstate trust account;
Board means the Legal Practitioners Conduct Board continued
in existence under Chapter 7 Part 3;
Board of Examiners means the Board of Examiners continued in
existence under Chapter 7 Part 2 Division 2;
Chief Justice means the Chief Justice of the Supreme Court
and includes an acting Chief Justice of the Supreme Court;
client includes a person to whom or for whom legal services
are provided;
combined trust account means the Legal Practitioners Combined
Trust Account maintained by the Society under Chapter 3 Part 2 Division 4
Subdivision 3;
community legal centre means a body that provides legal
services to the community, or a section of the community on a non-profit basis,
and includes the Aboriginal Legal Rights Movement, but does not include the
Legal Services Commission;
conditions means conditions, limitations or
restrictions;
conduct of a person includes any act or omission by the
person;
contravene includes fail to comply with;
conviction—see section 11;
corresponding authority means—
(a) a person or body having powers or functions under a corresponding law;
or
(b) when used in the context of a person or body having powers or
functions under this Act (the local authority)—
(i) a person or body having corresponding powers or functions under a
corresponding law; and
(ii) without limiting subparagraph (i), if the powers or functions of
the local authority relate to local lawyers or local legal practitioners
generally or are limited to any particular class of local lawyers or local legal
practitioners—a person or body having corresponding powers or functions
under a corresponding law regardless of whether they relate to interstate
lawyers or interstate legal practitioners generally or are limited to any
particular class of interstate lawyers or interstate legal
practitioners;
corresponding disciplinary body means—
(a) a court or tribunal having powers or functions under a corresponding
law that correspond to any of the powers and functions of the Tribunal;
or
(b) the Supreme Court of another jurisdiction exercising—
(i) its inherent jurisdiction or powers in relation to the control and
discipline of any Australian lawyers; or
(ii) its jurisdiction or powers to make orders under a corresponding law
of the other jurisdiction in relation to any Australian lawyers;
corresponding foreign law means the following:
(a) a law of a foreign country that corresponds to the relevant provisions
of this Act or, if a regulation is made declaring a law of the foreign country
to be a law that corresponds to this Act, the law declared under that regulation
for the foreign country;
(b) if the term is used in relation to a matter that happened before the
commencement of the law of a foreign country that, under paragraph (a), is
the corresponding law for the foreign country, a previous law applying to legal
practice in the foreign country;
corresponding law means the following:
(a) a law of another jurisdiction that corresponds to the relevant
provisions of this Act or, if a regulation is made declaring a law of the other
jurisdiction to be a law that corresponds to this Act, the law declared under
that regulation for the other jurisdiction;
(b) if the term is used in relation to a matter that happened before the
commencement of the law of another jurisdiction that, under paragraph (a),
is the corresponding law for the other jurisdiction, a previous law applying to
legal practice in the other jurisdiction;
Council means the council of the Law Society;
disqualified person means any of the following persons
whether the thing that has happened to the person happened before or after the
commencement of this definition:
(a) a person whose name has (whether or not at his or her request) been
removed from an Australian roll and who has not subsequently been admitted or
re-admitted to the legal profession under this Act or a corresponding
law;
(b) a person whose Australian practising certificate has been cancelled or
suspended under this Act or a corresponding law and who, because of the
cancellation, is not an Australian legal practitioner or in relation to whom
that suspension has not finished;
(c) a person who has been refused a renewal of an Australian practising
certificate under this Act or a corresponding law, and to whom an Australian
practising certificate has not been granted at a later time;
(d) a person who is the subject of an order under this Act or a
corresponding law prohibiting a law practice from employing or paying the person
in connection with the relevant practice;
(e) a person who is the subject of an order under this Act or a
corresponding law prohibiting an Australian legal practitioner from being a
partner of the person in a business that includes the practitioner's
practice;
(f) a person who is the subject of an order that has been made under
section 97 or section 122 or under provisions of a corresponding law
that correspond to section 97 or section 122;
document means any record of information, and
includes—
(a) anything on which there is writing; and
(b) anything on which there are marks, figures, symbols or perforations
having a meaning for persons qualified to interpret them; and
(c) anything from which sounds, images or writings can be reproduced with
or without the aid of anything else; and
(d) a map, plan, drawing or photograph,
and a reference in this Act to a document (as so defined) includes a
reference to—
(e) any part of the document; and
(f) any copy, reproduction or duplicate of the document or of any part of
the document; and
(g) any part of such a copy, reproduction or duplicate;
elective officer of the Society means an officer of the
Society elected by the members of the Society in accordance with its
rules;
engage in legal practice—see section 7;
Executive Director of the Society means the principal
executive officer employed by the Society and includes any person who is, for
the time being, discharging the duties of that officer;
external territory means a Territory of the Commonwealth (not
being the Australian Capital Territory, the Jervis Bay Territory or the Northern
Territory of Australia) for the government of which as a Territory provision is
made by a Commonwealth Act;
foreign country means—
(a) a country other than Australia; or
(b) a state, province or other part of a country other than
Australia;
foreign roll means an official roll of lawyers (whether
admitted, practising or otherwise) kept in a foreign country, but does not
include a prescribed roll or a prescribed kind of roll;
grant of an interstate practising certificate includes the
issue of an interstate practising certificate;
guarantee fund means the Legal Practitioners' Guarantee Fund
maintained by the Society under Chapter 3 Part 5;
home jurisdiction—see section 8;
incorporated legal practice has the same meaning as in
Chapter 2 Part 5;
information notice—see section 10;
insolvent under administration means—
(a) a person who is an undischarged bankrupt within the meaning of the
Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions
of the law of a foreign country or external territory); or
(b) a person who has executed a deed of arrangement under Part X of
the Bankruptcy Act 1966 of the Commonwealth (or the corresponding
provisions of the law of a foreign country or external territory) if the terms
of the deed have not been fully complied with; or
(c) a person whose creditors have accepted a composition under Part X
of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding
provisions of the law of a foreign country or external territory) if a final
payment has not been made under that composition; or
(d) a person for whom a debt agreement has been made under Part IX of
the Bankruptcy Act 1966 of the Commonwealth (or the corresponding
provisions of the law of a foreign country or external territory) if the debt
agreement has not ended or has not been terminated; or
(e) a person who has executed a personal insolvency agreement under
Part X of the Bankruptcy Act 1966 of the Commonwealth (or the
corresponding provisions of the law of a foreign country or external territory)
but not if the agreement has been set aside or terminated or all of the
obligations that the agreement created have been discharged;
interstate lawyer—see section 4;
interstate legal practitioner—see
section 5;
interstate practising certificate means a current practising
certificate granted under a corresponding law;
interstate-registered foreign lawyer means a person who is
registered as a foreign lawyer under a corresponding law;
interstate roll means a roll of lawyers maintained under a
corresponding law;
interstate trust account means a trust account maintained
under a corresponding law;
jurisdiction means a State or Territory of the
Commonwealth;
law firm means a partnership consisting only
of—
(a) Australian legal practitioners; or
(b) 1 or more Australian legal practitioners and 1 or more
Australian-registered foreign lawyers;
law practice means—
(a) an Australian legal practitioner who is a sole practitioner;
or
(b) a law firm; or
(c) a multi-disciplinary partnership; or
(d) an incorporated legal practice; or
(e) a community legal centre;
Law Society or Society means The Law Society of
South Australia continued in existence under Chapter 7 Part 1;
lay associate—see section 6;
legal costs means amounts that a person has been or may be
charged by, or is or may become liable to pay, a law practice for the provision
of legal services including disbursements but not including interest;
legal practitioner associate—see
section 6;
legal practitioner director, in relation to an incorporated
legal practice, has the meaning given in Chapter 2 Part 5;
legal practitioner partner, in relation to a
multi-disciplinary partnership, has the meaning given in Chapter 2 Part
5;
legal profession rules means rules relating to legal practice
made by the Society under this Act;
legal services means work done, or business transacted, in
the ordinary course of engaging in legal practice;
local lawyer—see section 4;
local legal practitioner—see section 5;
locally registered foreign lawyer means a person who is
registered as a foreign lawyer under this Act;
local practising certificate means a practising certificate
granted under this Act;
local roll means the roll of lawyers maintained under this
Act;
local trust account means a trust account maintained under
this Act;
LPEAC means the Legal Practitioners Education and Admission
Council continued in existence under Chapter 7 Part 2;
managed investment scheme has the same meaning as in Chapter
5C of the Corporations Act 2001 of the Commonwealth;
Master means a master of the Supreme Court;
modifications includes modifications by way of alteration,
omission, addition or substitution;
money includes any instrument for the payment of money that
may be negotiated by an ADI;
mortgage means an instrument under which an interest in real
property is charged, encumbered or transferred as security for the payment or
repayment of money, and includes—
(a) any instrument of a kind that is prescribed by the regulations as
being a mortgage; and
(b) a proposed mortgage;
mortgage financing means facilitating a loan secured or
intended to be secured by mortgage by—
(a) acting as an intermediary to match a prospective lender and borrower;
or
(b) arranging the loan; or
(c) receiving or dealing with payments for the purposes of, or under, the
loan,
but does not include providing legal advice or preparing an instrument for
the loan;
multi-disciplinary partnership has the meaning given in
Chapter 2 Part 5;
practical legal training means—
(a) legal training by participation in course work; or
(b) supervised legal training, whether involving articles of clerkship or
otherwise,
or a combination of both;
principal—see section 6;
professional misconduct—see section 352;
regulatory authority means—
(a) in relation to this jurisdiction—the Supreme Court, LPEAC, the
Society, the Board or the Tribunal; or
(b) in relation to another jurisdiction, means—
(i) if there is only 1 regulatory authority for the other
jurisdiction—that regulatory authority, unless subparagraph (iii)
applies; or
(ii) if there are separate regulatory authorities for the other
jurisdiction for different branches of the legal profession or for persons who
practise in a particular style of legal practice—the regulatory authority
relevant to the branch or style concerned, unless subparagraph (iii)
applies; or
(iii) if the regulations specify or provide for the determination of 1 or
more regulatory authorities for the other jurisdiction either generally or for
particular purposes—the regulatory authority or authorities specified or
determined in accordance with the regulations;
repealed Act means the Legal Practitioners
Act 1981;
serious offence means an offence whether committed in or
outside this jurisdiction that is—
(a) an indictable offence against a law of the Commonwealth or any
jurisdiction (whether or not the offence is or may be dealt with summarily);
or
(b) an offence against a law of another jurisdiction that would be an
indictable offence against a law of this jurisdiction if committed in this
jurisdiction (whether or not the offence could be dealt with summarily if
committed in this jurisdiction); or
(c) an offence against a law of a foreign country that would be an
indictable offence against a law of the Commonwealth or this jurisdiction if
committed in this jurisdiction (whether or not the offence could be dealt with
summarily if committed in this jurisdiction);
show cause event, in relation to a person,
means—
(a) his or her becoming bankrupt or being served with notice of a
creditor's petition presented to the Court under section 43 of the
Bankruptcy Act 1966 of the Commonwealth; or
(b) his or her presentation (as a debtor) of a declaration to the Official
Receiver under section 54A of the Bankruptcy Act 1966 of the
Commonwealth of his or her intention to present a debtor's petition or his or
her presentation (as a debtor) of such a petition under section 55 of that
Act; or
(c) his or her applying to take the benefit of any law for the relief of
bankrupt or insolvent debtors, compounding with his or her creditors or making
an assignment of his or her remuneration for their benefit; or
(d) his or her conviction for a serious offence or a tax offence, whether
or not—
(i) the offence was committed in or outside this jurisdiction;
or
(ii) the offence was committed while the person was engaging in legal
practice as an Australian legal practitioner or was practising foreign law as an
Australian-registered foreign lawyer, as the case requires; or
(iii) other persons are prohibited from disclosing the identity of the
offender;
sole practitioner means an Australian legal practitioner who
engages in legal practice on his or her own account;
solicitor includes attorney and proctor;
statutory interest account means the Statutory Interest
Account maintained by the Society under Chapter 3 Part 2 Division 4 Subdivision
3;
suitability matter—see section 9;
supervised legal practice means legal practice by a person
who is an Australian legal practitioner—
(a) as an employee of a law practice, where—
(i) at least 1 principal or other employee of the law practice is an
Australian legal practitioner who holds an unrestricted practising certificate;
and
(ii) the person engages in legal practice under the supervision of an
Australian legal practitioner referred to in subparagraph (i); or
(b) as a partner in a law firm, where—
(i) at least 1 other partner is an Australian legal practitioner who holds
an unrestricted practising certificate; and
(ii) the person engages in legal practice under the supervision of an
Australian legal practitioner referred to in subparagraph (i); or
(c) in a capacity approved under a legal profession rule;
tax offence means an offence under the Taxation
Administration Act 1953 of the Commonwealth, whether committed in or outside
this jurisdiction;
this jurisdiction means this State;
Tribunal means the Legal Practitioners Disciplinary Tribunal
continued in existence under Chapter 7 Part 4;
trust money has the meaning given in Chapter 3 Part
2;
trust property means property entrusted to a law practice in
the course of or in connection with the provision of legal services by the
practice, but does not include trust money or money referred to in
section 194;
unqualified person means a person (including a body
corporate) who is not entitled to engage in legal practice;
unrestricted practising certificate means an Australian
practising certificate that is not subject to any condition under this Act or a
corresponding law requiring the holder to engage in supervised legal practice or
restricting the holder to practise as or in the manner of a barrister;
unsatisfactory professional conduct—see
section 351.
(2) If under a corresponding law an interstate legal practitioner's right
to practise does not derive from the holding of an interstate practising
certificate, then a reference in this Act to an interstate practising
certificate, or the endorsement of a condition on an interstate practising
certificate, is to be read as a reference to the practitioner's right to engage
in legal practice under that law or to the imposition of a condition on that
right.
For the purposes of this Act—
(a) an Australian lawyer is a person who is admitted to the
legal profession under this Act or a corresponding law; and
(b) a local lawyer is a person who is admitted to the legal
profession under this Act (whether or not the person is also admitted under a
corresponding law); and
(c) an interstate lawyer is a person who is admitted to the
legal profession under a corresponding law, but not under this Act.
5—Terms
relating to legal practitioners
For the purposes of this Act—
(a) an Australian legal practitioner is an Australian lawyer
who holds a current local practising certificate or a current interstate
practising certificate; and
(b) a local legal practitioner is an Australian lawyer who
holds a current local practising certificate; and
(c) an interstate legal practitioner is an Australian lawyer
who holds a current interstate practising certificate, but not a local
practising certificate.
6—Terms
relating to associates and principals of law practices
(1) For the purposes of this Act, an associate of a law
practice is—
(a) an Australian legal practitioner who is—
(i) a sole practitioner (in the case of a law practice constituted by the
practitioner); or
(ii) a partner in the law practice (in the case of a law firm);
or
(iii) a legal practitioner director in the law practice (in the case of an
incorporated legal practice); or
(iv) a legal practitioner partner in the law practice (in the case of a
multi-disciplinary partnership); or
(v) an employee of, or consultant to, the law practice; or
(b) an agent of the law practice who is not an Australian legal
practitioner; or
(c) an employee of the law practice who is not an Australian legal
practitioner; or
(d) an Australian-registered foreign lawyer who is a partner in the law
practice; or
(e) a person (not being an Australian legal practitioner) who is a partner
in a multi-disciplinary partnership; or
(f) an Australian-registered foreign lawyer who has a relationship with
the law practice, being a relationship that is of a class prescribed by the
regulations.
(2) For the purposes of this Act—
(a) a legal practitioner associate of a law practice is an
associate of the practice who is an Australian legal practitioner; and
(b) a lay associate of a law practice means an associate of
the practice who is not an Australian legal practitioner.
(3) For the purposes of this Act, a principal of a law
practice is an Australian legal practitioner who is—
(a) a sole practitioner (in the case of a law practice constituted by the
practitioner); or
(b) a partner in the law practice (in the case of a law firm);
or
(c) a legal practitioner director in the law practice (in the case of an
incorporated legal practice); or
(d) a legal practitioner partner in the law practice (in the case of a
multi-disciplinary partnership).
7—Meaning
of engaging in legal practice
(1) Subject to any regulation made under subsection (2), in this Act
engaging in legal practice includes practising law.
(2) The regulations may make further provision in relation to the meaning
of engaging in legal practice and may, for example—
(a) provide that a person who undertakes activities or work of a
prescribed kind or in prescribed circumstances is, or is not, to be taken to be
engaging in legal practice for the purposes of this Act; or
(b) if a regulation is made providing that a person who undertakes
activities or work of a prescribed kind or in prescribed circumstances is not to
be taken to be engaging in legal practice for the purposes of this
Act—make provision for or with respect to the application (with or without
specified modifications) of provisions of this Act to that person.
(3) For the avoidance of doubt, mortgage financing is not to be regarded
as part of engaging in legal practice.
(4) It is not the intention of Parliament that any implication be drawn
from this Act that mortgage financing was ever part of engaging in legal
practice.
For the purposes of this Act—
(a) the home jurisdiction for an Australian legal
practitioner is the jurisdiction in which the practitioner’s only, or most
recent, current Australian practising certificate was granted; and
(b) the home jurisdiction for an Australian-registered
foreign lawyer is the jurisdiction in which the lawyer’s only, or most
recent, current registration was granted; and
(c) the home jurisdiction for an associate of a law practice
who is neither an Australian legal practitioner nor an Australian-registered
foreign lawyer is—
(i) where only 1 jurisdiction is the home jurisdiction for the only
associate of the practice who is an Australian legal practitioner or for all the
associates of the practice who are Australian legal practitioners—that
jurisdiction; or
(ii) in any other case—
(A) the jurisdiction in which the office is situated at which the
associate performs most of his or her duties for the law practice; or
(B) if a jurisdiction cannot be determined under
subsubparagraph (A)—the jurisdiction in which the associate is
enrolled under a law of the jurisdiction to vote at elections for the
jurisdiction; or
(C) if a jurisdiction can be determined under neither
subsubparagraph (A) nor subsubparagraph (B)—the jurisdiction
determined in accordance with criteria specified or referred to in the
regulations.
(1) Each of the following is a suitability matter in
relation to a natural person:
(a) whether the person is currently of good reputation and
character;
(b) whether the person is or has been an insolvent under
administration;
(c) whether the person has been convicted of an offence in Australia or a
foreign country, and if so—
(i) the nature of the offence; and
(ii) how long ago the offence was committed; and
(iii) the person’s age when the offence was committed;
(d) whether the person engaged in legal practice in
Australia—
(i) when not admitted, or not holding a practising certificate, as
required under this Act or a previous law of this jurisdiction that corresponds
to this Act or under a corresponding law; or
(ii) if admitted—in contravention of a condition on which admission
was granted; or
(iii) if holding an Australia practising certificate—in
contravention of a condition of the certificate or while the certificate was
suspended;
(e) whether the person has practised law in a foreign
country—
(i) when not permitted by or under a law of that country to do so;
or
(ii) if permitted to do so—in contravention of a condition of the
permission;
(f) whether the person is currently subject to an unresolved complaint,
investigation, charge or order under any of the following:
(i) this Act or the repealed Act;
(ii) a corresponding law or corresponding foreign law;
(g) whether the person—
(i) is the subject of current disciplinary action, however expressed, in
another profession or occupation in Australia or a foreign country; or
(ii) has been the subject of disciplinary action, however expressed,
relating to another profession or occupation that involved a finding of guilt or
culpability;
(h) whether the person’s name has been removed from—
(i) a local roll, and has not since been restored to or entered on a local
roll; or
(ii) an interstate roll, and has not since been restored to or entered on
an interstate roll; or
(iii) a foreign roll;
(i) whether the person’s right to engage in legal practice has been
suspended or cancelled in Australia or a foreign country;
(j) whether the person has contravened, in Australia or a foreign country,
a law about trust money or trust accounts;
(k) whether, under this Act, a law of the Commonwealth or a corresponding
law, a supervisor, manager or receiver, however described, is or has been
appointed in relation to any legal practice engaged in by the person;
(l) whether the person is or has been subject to an order, under this Act,
a law of the Commonwealth or a corresponding law, disqualifying the person from
being employed by, or a partner of, an Australian legal practitioner or from
managing a corporation that is an incorporated legal practice;
(m) whether the person is currently unable to carry out satisfactorily the
inherent requirements of practice as an Australian legal practitioner.
(2) A matter is a suitability matter even if it happened before the
commencement of this section.
For the purposes of this Act, an information notice is a
written notice to a person about a decision stating—
(a) the decision; and
(b) the reasons for the decision; and
(c) the rights of appeal available to the person in respect of the
decision and the period within which any such appeal must be made or applied
for.
11—References
to convictions for offences
(1) A reference in this Act to a conviction includes a
finding of guilt, or the acceptance of a guilty plea, whether or not a
conviction is recorded.
(2) Without limiting subsection (1), a reference in this Act to the
quashing of a conviction for an offence includes a reference to
the quashing of—
(a) a finding of guilt in relation to the offence; or
(b) the acceptance of a guilty plea in relation to the offence.
(3) However, a reference in this Act to the quashing of a conviction for
an offence does not include a reference to the quashing of a conviction
where—
(a) a finding of guilt in relation to the offence; or
(b) the acceptance of a guilty plea in relation to the offence,
remains unaffected.
12—Fusion of the
legal profession
(1) It is Parliament's intention that the legal profession of this State
should continue to be a fused profession of barristers and solicitors.
(2) The voluntary establishment of a separate bar is not, however,
inconsistent with that intention, nor is it inconsistent with that intention for
local legal practitioners voluntarily to confine themselves to engaging in legal
practice as solicitors.
(3) An undertaking by a local legal practitioner to engage in legal
practice in this jurisdiction solely as a barrister or solely as a solicitor is
contrary to public policy and void (but this subsection does not extend to an
undertaking contained in or implied by a contract or professional engagement to
provide legal services of a particular kind for or on behalf of another
person).
(4) Nothing in this section affects the validity of any undertaking given
to the Supreme Court by a local legal practitioner who receives the title
"Queen's Counsel" or "King's Counsel" relating to the use of that title in the
course of engaging in legal practice.
(5) Despite this section, an association of Australian legal practitioners
may be lawfully constituted on the basis that membership is confined to
Australian legal practitioners who engage in legal practice solely in a
particular field or in a particular way.
(6) No contractual or other requirement may be lawfully imposed in this
jurisdiction on an Australian legal practitioner to join an association of
Australian legal practitioners.
Chapter
2—General requirements for engaging in legal practice
Part 1—Reservation
of legal work and legal titles
13—Prohibition
on engaging in legal practice when not entitled
(1) A person must not engage in legal practice in this jurisdiction unless
the person is an Australian legal practitioner.
Maximum penalty: $50 000.
(2) Subsection (1) does not apply to engaging in legal practice of
the following kinds:
(a) legal practice engaged in under the authority of a law of this
jurisdiction or of the Commonwealth;
(b) legal practice engaged in by an incorporated legal practice in
accordance with Chapter 2 Part 5;
(c) the practice of foreign law by an Australian-registered foreign lawyer
in accordance with Chapter 2 Part 6;
(d) legal practice of a kind prescribed by the regulations.
(3) A person is not entitled to recover any amount in respect of anything
the person did in contravention of subsection (1).
(4) A person may recover from another person, as a debt due to the person,
any amount the person paid to the other person in respect of anything the other
person did in contravention of subsection (1).
(5) The regulations may make provision for or with respect to the
application (with or without specified modifications) of provisions of this Act
to persons engaged in legal practice of a kind referred to in
subsection (2) other than paragraphs (a) and (b).
14—Prohibition
on representing or advertising entitlement to engage in legal practice when not
entitled
(1) A person must not represent or advertise that the person is entitled
to engage in legal practice in this jurisdiction unless the person is an
Australian legal practitioner.
Maximum penalty: $50 000.
(2) A director, officer, employee or agent of a body corporate must not
represent or advertise that the body corporate is entitled to engage in legal
practice in this jurisdiction unless the body corporate is an incorporated legal
practice.
Maximum penalty: $50 000.
(3) Subsections (1) and (2) do not apply to a representation or
advertisement about being entitled to engage in legal practice of a kind
prescribed by regulation or undertaken in circumstances prescribed by
regulation.
(4) A reference in this section to a person—
(a) representing or advertising that the person is entitled to engage in
legal practice; or
(b) representing or advertising that a body corporate is entitled to
engage in legal practice,
includes a reference to the person doing anything that states or implies
that the person or the body corporate is entitled to engage in legal
practice.
15—Presumptions
about taking or using name, title or description specified in
regulations
(1) This section applies to the following names, titles and
descriptions:
(a) lawyer;
(b) legal practitioner;
(c) barrister;
(d) solicitor;
(e) attorney;
(f) proctor;
(g) counsel;
(h) Queen's Counsel;
(i) King's Counsel;
(j) Her Majesty's Counsel;
(k) His Majesty's Counsel;
(l) Senior Counsel.
(2) The regulations may specify the kind of persons who are entitled, and
the circumstances in which they are entitled, to take or use a name, title or
description to which this section applies.
(3) For the purposes of section 14(1), the taking or using of a name,
title or description to which this section applies by a person who is not
entitled to take or use that name, title or description gives rise to a
rebuttable presumption that the person represented that they are entitled to
engage in legal practice.
(4) For the purposes of section 14(2), the taking or using of a name,
title or description to which this section applies by a person in relation to a
body corporate, of which the person is a director, officer, employee or agent,
gives rise to a rebuttable presumption that the person represented that the body
corporate is entitled to engage in legal practice.
(1) Subject to this Act and any other Act, the following persons are
entitled to practise before any court or tribunal established under the law of
the State:
(a) the Attorney-General and the Solicitor-General of the State or of the
Commonwealth, the Crown Solicitor and the Australian Government Solicitor and
the Director of Public Prosecutions;
(b) an Australian legal practitioner acting on the instructions
of—
(i) the Attorney-General of the State; or
(ii) the Attorney-General of the Commonwealth; or
(iii) the Crown Solicitor; or
(iv) the Australian Government Solicitor; or
(v) the Director of Public Prosecutions;
(c) an Australian legal practitioner acting on the instructions of the
Corporate Affairs Commission;
(d) an Australian legal practitioner acting on the instructions of the
Australian Securities and Investments Commission;
(e) an Australian legal practitioner employed by the Legal Services
Commission and acting in the course of that employment;
(f) an Australian legal practitioner employed by a community legal centre
and acting in the course of that employment;
(g) an Australian legal practitioner who is engaging in legal practice as
a principal or an Australian legal practitioner who is acting in the course of
employment by such a legal practitioner;
(h) an Australian legal practitioner employed by the Society and acting in
the course of that employment;
(i) an Australian legal practitioner employed by the Board and acting in
the course of that employment;
(j) an Australian legal practitioner employed by an organisation that is
not a legal practitioner and acting in the course of that employment
for—
(i) the employer; or
(ii) if the employer is a corporation—a corporation that is related
to the employer under section 50 of the Corporations Act 2001 of the
Commonwealth.
(2) If an Australian legal practitioner who is an employee appears, in the
course of that employment, as counsel or solicitor before a court or tribunal,
any undertaking given by the practitioner in the course of the proceedings is
binding on the employer.
If an Australian legal practitioner or an Australian lawyer (otherwise than
as permitted by this Act, or as may be authorised by the
Society)—
(a) permits or aids an unqualified person to engage in legal practice, or
acts in collusion with an unqualified person so as to enable that person to
engage in legal practice; or
(b) enters into an agreement or an arrangement with an unqualified person
under which the unqualified person is entitled to share in the profits arising
from engagement in legal practice,
the practitioner or lawyer (as the case may be) is guilty of an
offence.
Maximum penalty: $50 000.
18—Employment
of disqualified person or person convicted or serious
offence
(1) Subject to this section, if an Australian legal practitioner is a
party to an agreement or arrangement to employ or engage, in connection with the
practitioner's legal practice—
(a) a disqualified person; or
(b) a person who has been convicted of a serious offence,
the practitioner is guilty of an offence.
Maximum penalty: $50 000.
(2) It is a defence to a charge of an offence under subsection (1) to
prove that the defendant did not know, and could not reasonably be expected to
have known, that the person was a disqualified person or that the person had
been convicted of a serious offence.
(3) Subject to sections 93 and 121, the Tribunal may, on application,
authorise an Australian legal practitioner to be a party to an agreement or
arrangement of a kind referred to in subsection (1), subject to conditions
(if any) specified by the Tribunal.
(4) An application for such an authorisation may be made to the Tribunal
by—
(a) an Australian legal practitioner; or
(b) a disqualified person; or
(c) a person who has been convicted of a serious offence.
(5) The Tribunal should not grant such an authorisation unless
satisfied—
(a) that the person to be employed or engaged will not engage in legal
practice; and
(b) that granting the authorisation on the specified conditions (if any)
is not likely to create a risk to the public or be otherwise contrary to the
public interest.
(6) For the purposes of a hearing of an application under this section,
the Tribunal is constituted of a panel of 3 of its members chosen by the
presiding member (1 of whom may be the presiding member).
(7) The Tribunal must give to the Board and to the Society, and to any
person on whose application a hearing is to be held, not less than 7 days
written notice of the time and place at which it intends to conduct the hearing,
and must afford the Board, the Society and any such person, a reasonable
opportunity to call and give evidence, to examine witnesses, and to make
submissions to the Tribunal.
(8) Subject to this section, sections 372, 374, 375, 376, 497 and 499
apply to a hearing of an application under this section in the same way as to
proceedings before the Tribunal under Chapter 4.
(9) If an application is granted by the Tribunal, and the Tribunal or the
Supreme Court is satisfied that an appeal against the authorisation has been
instituted, or is intended, it may suspend the operation of the authorisation
until the determination of the appeal.
(10) If the Tribunal has suspended the operation of an authorisation under
subsection (9), the Tribunal may terminate the suspension, and where the
Supreme Court has done so, the Supreme Court may terminate the
suspension.
(11) The following provisions apply in relation to an authorisation
granted under this section:
(a) the Tribunal or the Supreme Court must notify the Society of the
authorisation;
(b) the conditions (if any) of the authorisation must be recorded in the
Register of Disciplinary Action and published on an internet site maintained by
the Society;
(c) an Australian legal practitioner who is a party to an agreement or
arrangement entered into pursuant to the authorisation must, at the written
request of the Board, provide the Board with a written report
of—
(i) the duties undertaken by the person employed or engaged in accordance
with the authorisation in the period specified in the written request;
and
(ii) if the authorisation is subject to conditions—the extent to
which the practitioner and the person employed or engaged in accordance with the
authorisation have complied with the conditions during that period.
(12) An Australian legal practitioner who is a party to an agreement or
arrangement that has been authorised by the Tribunal under this section and the
person employed or engaged in accordance with the authorisation must comply with
any conditions of the authorisation.
Maximum penalty: $50 000.
(13) A person who—
(a) is a disqualified person; or
(b) has been convicted of a serious offence,
must not seek to be employed or engaged by a law practice unless the person
first informs the law practice that he or she is a disqualified person or has
been convicted of a serious offence (as the case may be).
Maximum penalty: $50 000.
(1) A contravention of this Part by an Australian lawyer who is not an
Australian legal practitioner is capable of constituting unsatisfactory
professional conduct or professional misconduct.
(2) Nothing in this Part affects any liability that a person who is an
Australian lawyer but not an Australian legal practitioner may have under
Chapter 4, and the person may be punished for an offence under this Part as well
as being dealt with under Chapter 4 in relation to the same matter.
Part
2—Admission of local lawyers
Division
1—Admission to the legal profession
20—Supreme Court
to maintain local roll
(1) The Supreme Court is to maintain a roll of persons admitted to the
legal profession under this Act (the local roll).
(2) When a person is admitted under this Act, the person's name must be
entered on the local roll in accordance with the admission rules.
(3) A person admitted under this Act must sign the local roll.
(4) The admission of a person under this Act is effective from the time
the person signs the local roll.
21—Local lawyer is
officer of Supreme Court
(1) A person becomes an officer of the Supreme Court on being admitted to
the legal profession under this Act.
(2) A person ceases to be an officer of the Supreme Court under
subsection (1) if the person's name is removed from the local
roll.
Division
2—Eligibility and suitability for admission
(1) A natural person who satisfies the Supreme Court—
(a) that he or she is of good reputation and character; and
(b) that—
(i) he or she has complied with—
(A) the admission rules; and
(B) the rules made by LPEAC under Chapter 7 Part 2 Division 1 prescribing
the qualifications for admission to the legal profession under this Act;
or
(ii) insofar as there has been non-compliance with those rules, he or she
should be exempted from such compliance,
is entitled to be admitted to the legal profession under this
Act.
(2) The Supreme Court must refer each application for admission to the
legal profession to the Board of Examiners for its report and recommendation on
the application.
(3) The Board of Examiners may refer any matter raised by an application
to LPEAC for its advice or, if the rules so provide, its
determination.
(4) The Board of Examiners must, on or before the day on which its report
and recommendation on an application is provided to the Supreme Court, provide
the applicant with—
(a) a copy of the report and recommendation; and
(b) if the recommendation is that the application be rejected—a
statement of the reasons for the recommendation.
The Supreme Court must, in determining an application by a person for
admission to the legal profession under this Act, consider—
(a) each of the suitability matters in relation to the person;
and
(b) any other matter it considers relevant.
Note—
The LPEAC rules may provide for a person to apply for an early indication
as to his or her suitability for admission to the legal profession.
Part 3—Legal
practice—Australian legal practitioners
Division 1—Legal
practice in this jurisdiction by Australian legal
practitioners
24—Entitlement of
holder of Australian practising certificate to practise in this
jurisdiction
An Australian legal practitioner is, subject to this Act, entitled to
engage in legal practice in this jurisdiction.
Division 2—Local
practising certificates generally
25—Local
practising certificates
(1) Practising certificates may be granted by the Supreme Court under this
Part.
(2) The Supreme Court may determine that there will be categories of local
practising certificates.
(3) It is a statutory condition of a local practising certificate that the
holder must not hold another local practising certificate, or an interstate
practising certificate, that is in force during the currency of the
first-mentioned local practising certificate.
26—Suitability to
hold local practising certificates
(1) This section has effect for the purposes of any provision of this Act
where the question of whether or not a person is a fit and proper person to hold
a local practising certificate is relevant.
(2) The Supreme Court may, in considering whether or not the person is a
fit and proper person to hold a local practising certificate, take into account
any suitability matter relating to the person, and any of the following, whether
happening before or after the commencement of this section:
(a) whether the person has obtained an Australian practising certificate
because of incorrect or misleading information;
(b) whether the person has contravened a condition of an Australian
practising certificate held by the person;
(c) whether the person has contravened this Act or a corresponding law or
the regulations or legal profession rules under this Act or a corresponding
law;
(d) whether the person has contravened—
(i) an order of the Tribunal; or
(ii) an order of a corresponding disciplinary body or of another court or
tribunal of another jurisdiction exercising jurisdiction or powers by way of
appeal or of an order of a corresponding disciplinary body;
(e) without limiting the operation of any other paragraph—
(i) whether the person has failed to pay a required contribution or levy
to the guarantee fund; or
(ii) whether the person has contravened a requirement imposed by the
Society about professional indemnity insurance; or
(iii) whether the person has contravened a requirement of this Act or the
regulations about trust money; or
(iv) whether the person has failed to pay other costs or expenses for
which the person is liable under this Act or the regulations;
(f) other matters the Supreme Court thinks appropriate.
(3) A person may be determined to be a fit and proper person to hold a
local practising certificate even though the person is within any of the
categories of the matters referred to in subsection (2), if the Supreme
Court considers that the circumstances warrant the determination.
(4) If a matter was—
(a) disclosed in an application for admission to the legal profession in
this or another jurisdiction; and
(b) determined by the Supreme Court or a corresponding authority not to be
sufficient for refusing admission,
the matter may be taken into account when considering other matters in
relation to the person concerned but the matter cannot, of itself, be grounds
for refusing to grant or renew or for suspending or cancelling a local
practising certificate.
27—Restriction on
issue of practising certificates in certain cases
(1) If, for a period exceeding 1 month, an Australian lawyer has not held
an Australian practising certificate, the Supreme Court may, on application for
a local practising certificate, require the Australian lawyer to furnish
evidence satisfying it that the lawyer—
(a) has not engaged in legal practice without holding a practising
certificate; or
(b) has not committed any other act that might constitute a proper ground
for disciplinary action.
(2) If an applicant for a local practising certificate has, without lawful
excuse, engaged in legal practice while not holding a practising certificate,
the Supreme Court may require the applicant to pay a prescribed fee before it
issues a local practising certificate to the applicant.
(3) The Supreme Court may, in any case that it considers appropriate,
issue a local practising certificate that has effect from a date prior to the
date of issue of the certificate.
28—Duration of
local practising certificate
(1) A local practising certificate granted under this Act is in force from
the date specified in it until the end of the financial year in which it is
granted, unless the certificate is sooner suspended or cancelled.
(2) A local practising certificate renewed under this Act is in force
until the end of the financial year following its previous period of currency,
unless the certificate is sooner suspended or cancelled.
(3) If an application for the renewal of a local practising certificate
has not been determined by the following 1 July, the
certificate—
(a) continues in force on and from that 1 July until the Supreme Court
renews or refuses to renew the certificate or the holder withdraws the
application for renewal, unless the certificate is sooner cancelled or
suspended; and
(b) if renewed, is taken to have been renewed on and from that
1 July.
(4) If a local practising certificate that has been suspended under this
Act for a period or until the happening of some event expires before the end of
that period or before the happening of that event, the practising certificate
may not be renewed until the expiration of that period or the happening of that
event (as the case may be).
(1) If a scheme under section 298 is in force requiring local legal
practitioners to be insured against liabilities that may arise in the course of,
or in relation to, engaging in legal practice—
(a) the Supreme Court cannot issue or renew a local practising certificate
unless the applicant produces evidence to the satisfaction of the Court that the
applicant has obtained the insurance against such liabilities required by the
scheme for the term for which the certificate is to be issued or renewed;
and
(b) if, at any time during the term of a local practising certificate so
issued or renewed, the holder of the certificate ceases to be insured against
such liabilities as required by the scheme, the local practising certificate
will be taken to be suspended until the holder of the certificate obtains such
insurance.
(2) This section does not apply in relation to a person of a class
excluded by regulation from the provisions of this section.
30—Local legal
practitioner is officer of Supreme Court
(1) A person who is not already an officer of the Supreme Court becomes an
officer of the Supreme Court on being granted a local practising
certificate.
(2) A person ceases to be an officer of the Supreme Court under
subsection (1) if the person ceases to hold a local practising
certificate.
Division 3—Grant
or renewal of local practising certificates
31—Application for
grant or renewal of local practising certificate
(1) Applications generally
An Australian lawyer may apply to the Supreme Court for the grant or
renewal of a local practising certificate if eligible to do so under this
section.
(2) General eligibility to make application
An Australian lawyer is eligible to apply for the grant or renewal of a
local practising certificate if the lawyer complies with any regulations and
legal profession rules relating to eligibility for the practising certificate
and if—
(a) in the case of a lawyer who is not an Australian legal practitioner at
the time of making the application—
(i) the lawyer reasonably expects to engage in legal practice solely or
principally in this jurisdiction during the currency of the certificate applied
for; or
(ii) if subparagraph (i) does not apply to the lawyer or it is not
reasonably practicable to determine whether it applies to the lawyer—the
lawyer's place of residence in Australia is this jurisdiction or the lawyer does
not have a place of residence in Australia; or
(b) in the case of a lawyer who is an Australian legal practitioner at the
time of making the application—
(i) the jurisdiction in which the lawyer engages in legal practice solely
or principally is this jurisdiction; or
(ii) the lawyer holds a current local practising certificate and engages
in legal practice in another jurisdiction under an arrangement that is of a
temporary nature; or
(iii) the lawyer reasonably expects to engage in legal practice solely or
principally in this jurisdiction during the currency of the certificate applied
for; or
(iv) if subparagraph (i), (ii) or (iii) does not apply to the lawyer
or it is not reasonably practicable to determine whether subparagraph (i),
(ii) or (iii) applies to the lawyer—the lawyer's place of residence in
Australia is this jurisdiction or the lawyer does not have a place of residence
in Australia.
(3) Determination of place of residence
For the purposes of subsection (2)(b), the jurisdiction in which an
Australian lawyer engages in legal practice solely or principally is to be
decided by reference to the lawyer’s legal practice during the certificate
period current at the time—
(a) the application is made; or
(b) in the case of a late application—the application should have
been made.
(4) Circumstances in which application cannot be made (more than 1
Australian practising certificate)
An Australian lawyer is not eligible to apply for the grant or renewal of a
local practising certificate in respect of a financial year if the lawyer would
also be the holder of another Australian practising certificate for that year,
but this subsection does not limit the factors determining ineligibility to
apply for the grant or renewal of a local practising certificate.
(5) Application must not be made by ineligible lawyer
An Australian lawyer must not apply for the grant or renewal of a local
practising certificate if the lawyer is not eligible to make the
application.
(6) Circumstances in which application must be made
An Australian legal practitioner who—
(a) engages in legal practice solely or principally in this jurisdiction
during a financial year; and
(b) reasonably expects to engage in legal practice solely or principally
in this jurisdiction in the following financial year,
must apply for the grant or renewal of a local practising certificate in
respect of the following financial year.
(7) Subsection (6) does not apply to an interstate legal practitioner
who applied for the grant or renewal of an interstate practising certificate on
the basis that the practitioner reasonably expected to engage in legal practice
solely or principally in this jurisdiction under an arrangement that is of a
temporary nature.
(8) The exemption provided by subsection (7) ceases to operate at the
end of the period prescribed by the regulations for the purposes of this
subsection.
(9) A reference in this section to engaging in legal practice principally
in this or any other jurisdiction applies only to legal practice in Australia
and, accordingly, an Australian lawyer who is engaged or expects to engage in
legal practice principally in a foreign country is nevertheless eligible to
apply for the grant or renewal of a local practising certificate if the lawyer
otherwise meets the requirements of this section.
32—Timing for
application for renewal of local practising certificate
(1) An application for the renewal of a local practising certificate must
be made within the period prescribed by the regulations.
(2) That period must be within the currency of the local practising
certificate being sought to be renewed.
33—Grant or
renewal of local practising certificate
(1) The Supreme Court must consider an application that has been made for
the grant or renewal of a local practising certificate and may—
(a) grant or refuse to grant the certificate; or
(b) renew or refuse to renew the certificate.
(2) The Supreme Court may refuse—
(a) to consider an application if—
(i) it is not made in accordance with this Act or the admission rules;
or
(ii) it is not accompanied by the prescribed fee; or
(b) to grant or renew a local practising certificate if the applicant has
not complied with the admission rules in relation to the application.
(3) The Supreme Court must not grant a local practising certificate if it
is satisfied that the applicant—
(a) was not eligible to apply for the grant when the application was made;
and
(b) is not a fit and proper person to hold the certificate.
(4) The Supreme Court must not renew a local practising certificate if it
is satisfied that the applicant—
(a) was not eligible to apply for the renewal when the application was
made; or
(b) is not a fit and proper person to continue to hold the
certificate.
(5) The Supreme Court must not grant or renew a local practising
certificate if the Court considers the applicant’s circumstances have
changed since the application was made and the applicant would (having regard to
information that has come to the Court's attention) not have been eligible to
make the application when the application is being considered.
(6) If the Supreme Court grants or renews a local practising certificate,
the Court must, as soon as practicable, give the applicant—
(a) for the grant of a certificate—a local practising certificate,
or
(b) for the renewal of a certificate—a new local practising
certificate.
(7) If the Supreme Court refuses to grant or renew a local practising
certificate, the Court must, as soon as practicable, give the applicant an
information notice.
34—Amendment or
cancellation of local practising certificate
(1) The Supreme Court may amend or cancel a local practising certificate
if the holder requests the Court to do so.
(2) The Supreme Court may amend a local practising
certificate—
(a) for a formal or clerical reason; or
(b) in another way that does not adversely affect the holder's
interests.
(3) The Supreme Court must cancel a local practising certificate if the
holder's name has been removed from the local roll or the holder ceases to be an
Australian lawyer.
(4) The amendment or cancellation of a local practising certificate under
this section is effected by written notice given to the holder.
(5) This section does not apply in relation to matters referred to in
Division 6.
Division
4—Conditions on local practising certificates
35—Statutory
condition regarding notification of offence
(1) It is a statutory condition of a local practising certificate that the
holder of the certificate—
(a) must notify the Supreme Court that the holder has
been—
(i) convicted of an offence that would have to be disclosed under the
admission rules in relation to an application for admission to the legal
profession under this Act; or
(ii) charged with a serious offence; and
(b) must do so within 7 days of the event and by a written
notice.
(2) The legal profession rules may specify the form of the notice to be
used and the person to whom or the address to which it is to be sent or
delivered.
(3) This section does not apply to an offence to which Division 6
applies.
36—Statutory
condition regarding conditions imposed on interstate
admission
It is a statutory condition of a local practising certificate that the
holder must not contravene a condition that was imposed on the admission of the
person to the legal profession under a corresponding law (with any variations of
the condition made from time to time) and that is still in force.
37—Statutory
condition regarding practice
(1) It is a statutory condition of a local practising certificate that the
holder must engage in supervised legal practice only, until the holder has
completed—
(a) if the holder completed practical legal training under the supervision
of an Australian lawyer, whether involving articles of clerkship or otherwise,
to qualify for admission to the legal profession in this or another
jurisdiction—a period or periods equivalent to 18 months supervised legal
practice, worked out under relevant regulations, after the day the holder's
first practising certificate was granted; or
(b) if the holder completed other practical legal training to qualify for
admission to the legal profession in this or another jurisdiction—a period
or periods equivalent to 2 years supervised legal practice, worked out under
relevant regulations, after the day the holder's first practising certificate
was granted.
(2) Subsection (1) has effect subject to any other conditions that
relate to engaging in supervised legal practice after a period or periods
referred to in that subsection.
(3) The Supreme Court may exempt a person or class of persons from the
requirement for supervised legal practice under subsection (1) or may
reduce a period referred to in that subsection for a person or class of persons,
if satisfied that the person or persons do not need to be supervised or need to
be supervised only for a shorter period, having regard to—
(a) the length and nature of any legal practice previously engaged in by
the person or persons; and
(b) the length and nature of any legal practice engaged in by the
supervisors (if any) who previously supervised the legal practice engaged in by
the person or persons.
(4) An exemption under subsection (3) may be given unconditionally or
subject to such conditions as the Supreme Court thinks appropriate.
38—Conditions
as to training etc
(1) A local practising certificate will, if the rules made by LPEAC under
this Act so require, be issued or renewed subject to conditions determined by
LPEAC—
(a) requiring the holder of the certificate to undertake or obtain further
education, training and experience required or determined under the rules;
and
(b) limiting the rights of practice of the holder of the certificate until
that further education, training and experience is completed or
obtained.
(2) LPEAC may, on such terms as it thinks fit, determine that such
conditions will not apply, either wholly or in part, in relation to any persons
of a particular class.
(3) If the holder of a practising certificate issued or renewed subject to
conditions under subsection (1) fails to satisfy LPEAC, in accordance with
the rules, of compliance with the conditions, LPEAC may
determine—
(a) that further conditions (determined by LPEAC) are to be imposed;
or
(b) that the practising certificate is to be cancelled, or is not to be
renewed, and no new practising certificate is to be issued to the person until
stipulated conditions have been complied with,
(and a determination under this subsection takes effect on a date fixed by
LPEAC).
(4) LPEAC may delegate any of its functions or powers under this section
to the Board of Examiners.
(5) A delegation under this section—
(a) must be in writing; and
(b) may be conditional or unconditional; and
(c) is revocable at will; and
(d) does not prevent LPEAC from acting in any matter.
(6) A decision of LPEAC or the Board of Examiners under this section may
be appealed against to the Supreme Court by the person in relation to whom the
decision was made or the Attorney-General or the Society.
(7) On such an appeal, the Supreme Court—
(a) may confirm, vary or reverse the decision of LPEAC or the Board of
Examiners; and
(b) may make any consequential or ancillary order.
(8) If LPEAC makes a determination under this section that is adverse to
the person in relation to whom the determination was made, LPEAC must, as soon
as practicable, give an information notice to the person.
39—Endorsement of
conditions on practising certificates
(1) If, in accordance with this Act, a regulatory authority of this or
another jurisdiction makes a determination or order—
(a) imposing conditions on, or requiring the endorsement of conditions on,
an Australian legal practitioner's practising certificate; or
(b) varying or revoking conditions on, or requiring the variation or
revocation of conditions on, an Australian legal practitioner's practising
certificate,
the Supreme Court may record or give effect to the determination or order
by revoking the practising certificate currently held by the legal practitioner
and issuing the legal practitioner with a new practising certificate in the
appropriate form.
(2) A regulatory authority of this jurisdiction must notify the Supreme
Court of the making of a determination or order referred to in
subsection (1).
(3) If a determination or order is made imposing, varying or revoking
conditions on a practising certificate, the determination or order will be taken
to have effect from the date it is made, or from a subsequent date specified in
the determination or order, and not from the date of issue of a new practising
certificate under this section.
Division
5—Amendment, suspension or cancellation of local practising
certificates
This Division does not apply in relation to matters referred to in Division
6.
41—Grounds for
amending, suspending or cancelling local practising
certificate
Each of the following is a ground for amending, suspending or cancelling a
local practising certificate:
(a) the holder is no longer a fit and proper person to hold the
certificate;
(b) the holder does not have, or no longer has, professional indemnity
insurance that complies with this Act in relation to the certificate;
(c) if a condition of the certificate is that the holder is or has been
limited to legal practice specified in the certificate—the holder is
engaging in legal practice that the holder is not entitled to engage in under
this Act.
42—Amending,
suspending or cancelling local practising certificates
(1) If the Supreme Court believes a ground exists to amend, suspend or
cancel a local practising certificate (the proposed action), the
Court must give the holder a notice that—
(a) states the proposed action and—
(i) if the proposed action is to amend the certificate—states the
proposed amendment; and
(ii) if the proposed action is to suspend the certificate—states the
proposed suspension period; and
(b) states the ground for proposing to take the proposed action;
and
(c) outlines the facts and circumstances that form the basis for the
Court's belief; and
(d) invites the holder to make written representations to the Court,
within a specified time of not less than 7 days and not more than 28 days, as to
why the proposed action should not be taken.
(2) If, after considering all written representations made within the
specified time and, in its discretion, written representations made after the
specified time, the Court still believes a ground exists to take the proposed
action, the Court may—
(a) if the notice under subsection (1) stated the proposed action was
to amend the practising certificate—amend the certificate in the way
stated or in a less onerous way the Court considers appropriate because of the
representations; or
(b) if the notice stated the proposed action was to suspend the practising
certificate for a specified period—
(i) suspend the certificate for a period no longer than the specified
period; or
(ii) amend the certificate in a less onerous way the Court considers
appropriate because of the representations.
(3) If the Supreme Court decides to amend, suspend or cancel the
practising certificate, the Court must give the holder an information notice
about the decision.
43—Operation of
amendment, suspension or cancellation of local practising
certificate
(1) Application of section
This section applies if a decision is made to amend, suspend or cancel a
local practising certificate under section 42.
(2) Action to take effect on giving of notice or specified
date
Subject to subsections (3) and (4), the amendment, suspension or
cancellation of the practising certificate takes effect on the later of the
following:
(a) the day notice of the decision is given to the holder;
(b) the day specified in the notice.
(3) Grant of stay
If the practising certificate is amended, suspended or cancelled because
the holder has been convicted of an offence—
(a) the Supreme Court may, on the application of the holder, order that
the operation of the amendment, suspension or cancellation of the practising
certificate be stayed until—
(i) the end of the time to appeal against the conviction; and
(ii) if an appeal is made against the conviction—the appeal is
finally decided, lapses or otherwise ends; and
(b) the amendment, suspension or cancellation does not have effect during
any period in respect of which the stay is in force.
(4) Quashing of conviction
If the practising certificate is amended, suspended or cancelled because
the holder has been convicted of an offence and the conviction is
quashed—
(a) the amendment or suspension ceases to have effect when the conviction
is quashed; or
(b) the cancellation ceases to have effect when the conviction is quashed
and the certificate is restored as if it had merely been suspended.
Division
6—Special powers in relation to local practising certificates—show
cause events
44—Applicant
for local practising certificate—show cause event
(1) This section applies if—
(a) a person is applying for the grant of a local practising certificate;
and
(b) a show cause event in relation to the person happened, whether before
or after the commencement of this section, after the person was first admitted
to the legal profession in this or another jurisdiction (however the admission
was expressed at the time of the admission).
(2) As part of the application, the person must provide to the Supreme
Court a written statement, in accordance with any prescribed
requirements—
(a) setting out particulars of the show cause event; and
(b) explaining why, despite the show cause event, the applicant considers
himself or herself to be a fit and proper person to hold a local practising
certificate.
(3) However, the applicant need not provide a statement under
subsection (2) if the person (as a previous applicant for a local
practising certificate or as the holder of a local practising certificate
previously in force) has previously provided to the Supreme
Court—
(a) a statement under this section; or
(b) a notice and statement under section 45,
explaining why, despite the show cause event, the person considers himself
or herself to be a fit and proper person to hold a local practising
certificate.
45—Holder
of local practising certificate—show cause event
(1) This section applies to a show cause event that happens in relation to
the holder of a local practising certificate.
(2) The holder must provide to the Supreme Court both of the
following:
(a) within 7 days after the happening of the event—notice, in the
form approved by the Court, that the event happened;
(b) within 28 days after the happening of the event—a written
statement explaining why, despite the show cause event, the person considers
himself or herself to be a fit and proper person to hold a local practising
certificate.
(3) If a written statement is provided after the 28 days mentioned in
subsection (2)(b), the Supreme Court may accept the statement and take it
into consideration.
46—Refusal,
amendment, suspension or cancellation of local practising
certificate—failure to show cause
(1) The Supreme Court may refuse to grant or renew, or may amend, suspend
or cancel, a local practising certificate if the applicant or
holder—
(a) is required by section 44 or 45 to provide a written statement
relating to a matter and has failed to provide a written statement in accordance
with that requirement; or
(b) has provided a written statement in accordance with section 44 or
45 but the Court does not consider that the applicant or holder has shown in the
statement that, despite the show cause event concerned, he or she is a fit and
proper person to hold a local practising certificate.
(2) For the purposes of this section only, a written statement accepted by
the Supreme Court under section 45(3) is taken to have been provided in
accordance with section 45.
(3) If the Supreme Court makes a determination under this section, the
Court must, as soon as practicable, give the applicant or holder written notice
of the determination.
Division 7—Further
provisions relating to local practising certificates
47—Immediate
suspension of local practising certificate
(1) This section applies, despite Division 5 and Division 6, if the
Supreme Court considers it necessary in the public interest to immediately
suspend a local practising certificate on—
(a) any of the grounds on which the certificate could be suspended or
cancelled under Division 5; or
(b) the ground of the happening of a show cause event in relation to the
holder; or
(c) any other ground that the Court considers warrants suspension of the
certificate in the public interest,
whether or not any action has been taken or commenced under Division 5 or
Division 6 in relation to the holder.
(2) The Court may, by written notice given to the holder, immediately
suspend the practising certificate until the earlier of the following:
(a) the time at which the Court informs the holder of the Court's decision
by notice under section 42;
(b) the end of the period of 56 days after the notice is given to the
holder under this section.
(3) The notice under this section must—
(a) include an information notice about the suspension; and
(b) state that the practitioner may make written representations to the
Court about the suspension.
(4) The holder may make written representations to the Court about the
suspension, and the Court must consider the representations.
(5) The Court may revoke the suspension at any time, whether or not in
response to any written representations made to it by the holder.
48—Surrender and
cancellation of local practising certificate
(1) The holder of a local practising certificate may surrender the
certificate to the Supreme Court.
(2) The Court may cancel the certificate.
Division
8—Interstate legal practitioners
49—Requirement
for professional indemnity insurance
(1) An interstate legal practitioner must not engage in legal practice in
this jurisdiction, or represent or advertise that the practitioner is entitled
to engage in legal practice in this jurisdiction, unless the
practitioner—
(a) is covered by professional indemnity insurance that—
(i) covers legal practice in this jurisdiction; and
(ii) has been approved under or complies with the requirements of the
corresponding law of the practitioner's home jurisdiction; and
(iii) is for at least $1.5 million per claim (inclusive of defence costs),
unless (without affecting subparagraph (i) or (ii)) the practitioner
engages in legal practice solely as or in the manner of a barrister;
or
(b) is employed by a corporation, other than an incorporated legal
practice, and the only legal services provided by the practitioner in this
jurisdiction are in-house legal services.
Maximum penalty: $50 000.
(2) This section does not apply in relation to an interstate legal
practitioner of a class excluded by regulation from the provisions of this
section.
50—Extent of
entitlement of interstate legal practitioner to practise in this
jurisdiction
(1) This Part does not authorise an interstate legal practitioner to
engage in legal practice in this jurisdiction to a greater extent than a local
legal practitioner could be authorised under a local practising
certificate.
(2) Also, an interstate legal practitioner’s right to engage in
legal practice in this jurisdiction—
(a) is subject to any conditions imposed by the Supreme Court under
section 51; and
(b) is, to the greatest practicable extent and with all necessary
changes—
(i) the same as the practitioner’s right to engage in legal practice
in the practitioner’s home jurisdiction; and
(ii) subject to any condition on the practitioner’s right to engage
in legal practice in that jurisdiction, including any conditions imposed on his
or her admission to the legal profession in this or another
jurisdiction.
(3) If there is an inconsistency between conditions mentioned in
subsection (2)(a) and conditions mentioned in subsection (2)(b), the
conditions that are, in the opinion of the Supreme Court, more onerous prevail
to the extent of the inconsistency.
(4) An interstate lawyer must not engage in legal practice in this
jurisdiction in a manner not authorised by this Act or in contravention of any
condition referred to in this section.
51—Additional
conditions on practice of interstate legal practitioners
(1) The Supreme Court may, by written notice to an interstate legal
practitioner engaged in legal practice in this jurisdiction, impose any
condition on the practitioner’s practice that it may impose under this Act
on a local practising certificate.
(2) Conditions imposed under or referred to in this section must not be
more onerous than conditions applying to local legal practitioners.
52—Special
provisions about interstate legal practitioner engaging in unsupervised legal
practice in this jurisdiction
(1) An interstate legal practitioner must not engage in unsupervised legal
practice in this jurisdiction unless—
(a) if the interstate legal practitioner completed practical legal
training principally under the supervision of an Australian lawyer, whether
involving articles of clerkship or otherwise, to qualify for admission to the
legal profession in this or another jurisdiction—the interstate legal
practitioner has undertaken a period or periods equivalent to
18 months’ supervised legal practice, worked out under the
regulations, after the day the practitioner’s first practising certificate
was granted; or
(b) if the interstate legal practitioner completed other practical legal
training to qualify for admission to the legal profession in this or another
jurisdiction—the interstate legal practitioner has undertaken a period or
periods equivalent to 2 years’ supervised legal practice, worked out
under relevant regulations, after the day the practitioner’s first
practising certificate was granted.
(2) Subsection (1) does not apply if the interstate legal
practitioner is exempt from the requirement for supervised legal practice in the
practitioner's home jurisdiction.
(3) If the required period of supervised legal practice has been reduced
for the interstate legal practitioner in the interstate legal practitioner's
home jurisdiction, subsection (1) applies only to the extent of that
reduced period.
53—Interstate
legal practitioner is officer of Supreme Court
An interstate legal practitioner engaged in legal practice in this
jurisdiction has all the duties and obligations of an officer of the Supreme
Court, and is subject to the jurisdiction and powers of the Supreme Court in
respect of those duties and obligations.
54—Rules of
Supreme Court may assign functions or powers
(1) The Supreme Court may, by rules of court, assign any functions or
powers conferred on or vested in it under this Part—
(a) to a specified person or body; or
(b) to a person occupying a specified office or position.
(2) The rules of the Supreme Court may specify that an assignment of
functions or powers under this section is subject to conditions and
limitations.
(3) A decision made by a person or body acting in accordance with an
assignment of functions or powers under this section may, subject to the rules
of the Supreme Court, be appealed against to the Supreme Court by the person in
relation to whom the decision was made.
(4) On such an appeal, the Supreme Court—
(a) may confirm, vary or reverse the decision; and
(b) may make any consequential or ancillary order.
(5) If a person or body makes a decision in accordance with an assignment
of functions or powers under this section that is adverse to the person in
relation to whom the decision was made, the person or body must, as soon as
practicable, give an information notice to the person.
55—Supreme Court
may authorise personal representative to carry on legal
practice
(1) The personal representative of a deceased Australian legal
practitioner may, with the authority of the Supreme Court, carry on the practice
of the deceased legal practitioner in this jurisdiction for a period not
exceeding 12 months (or such longer period as the Supreme Court may allow) from
the date of death.
(2) An authority under this section will be subject to such conditions as
the Supreme Court considers appropriate.
(3) A person to whom an authority has been granted under this section must
not contravene any condition of the authority.
Maximum penalty: $50 000.
(1) The Society may enter into arrangements (referred to in this Part as
protocols) with regulatory authorities of other jurisdictions
about determining—
(a) the jurisdiction in which an Australian lawyer engages in legal
practice principally or can reasonably expect to engage in legal practice
principally; or
(b) the circumstances in which an arrangement under which an Australian
legal practitioner practises in a jurisdiction—
(i) can be regarded as being of a temporary nature; or
(ii) ceases to be of a temporary nature; or
(c) the circumstances in which an Australian legal practitioner can
reasonably expect to engage in legal practice principally in a jurisdiction
during the currency of an Australian practising certificate.
(2) For the purposes of this Act, and to the extent that the protocols are
relevant, a matter referred to in subsection (1)(a), (b) or (c) is to be
determined in accordance with the protocols.
(3) The Society may enter into arrangements that amend, revoke or replace
a protocol.
57—Consideration
and investigation of applicants or holders
(1) To help it consider whether or not to grant, renew, amend, suspend or
cancel a local practising certificate, or impose conditions on a local
practising certificate, the Supreme Court may, by notice to the applicant or
holder, require the applicant or holder—
(a) to give it specified documents or information; or
(b) to co-operate with any inquiries by the Court that it considers
appropriate.
(2) A failure to comply with a notice under subsection (1) by the
date specified in the notice and in the way required by the notice is a ground
for making an adverse decision in relation to the action being considered by the
Supreme Court.
58—Register of
local practising certificates
(1) The Supreme Court must keep a register of the names of local legal
practitioners.
(2) The register must—
(a) state the conditions (if any) imposed on a local practising
certificate in relation to engaging in legal practice; and
(b) include other particulars prescribed by the regulations.
(3) The register may be kept in the way the Court decides.
(4) The register must be available for inspection, without charge, at a
place determined by the Court during normal business hours or at an internet
site maintained by the Court.
59—Government
lawyers of other jurisdictions
(1) A government lawyer of another jurisdiction is not subject
to—
(a) any prohibition under this Act about—
(i) engaging in legal practice in this jurisdiction; or
(ii) making representations about engaging in legal practice in this
jurisdiction; or
(b) conditions imposed on a local practising certificate,
in respect of the performance of his or her official duties or functions as
a government lawyer of the other jurisdiction to the extent that he or she is
exempt from matters of the same kind under a law of the other
jurisdiction.
(2) Contributions and levies are not payable to the guarantee fund by or
in respect of a government lawyer of another jurisdiction in his or her capacity
as a government lawyer.
(3) Without affecting the generality of subsection (1), that
subsection extends to prohibitions under section 49 relating to
professional indemnity insurance.
(4) Without affecting subsections (1), (2) and (3), nothing in this
section prevents a government lawyer of another jurisdiction from being granted
or holding a local practising certificate.
(5) In this section—
another jurisdiction means—
(a) another State or Territory of the Commonwealth; or
(b) the Commonwealth;
government agency of another jurisdiction
means—
(a) a government department of that jurisdiction; or
(b) a body or organisation that is established by or under the law of that
jurisdiction for a public purpose or to exercise governmental
functions,
and includes a body or organisation (or a class of bodies or organisations)
prescribed by the regulations as being within this definition;
government lawyer means an Australian lawyer, or a person
eligible for admission to the legal profession, employed in or by a government
agency of another jurisdiction.
Part
4—Inter-jurisdictional provisions regarding admission and practising
certificates
In this Part—
foreign regulatory action taken in relation to a person
means—
(a) removal of the person's name from a foreign roll for disciplinary
reasons; or
(b) suspension or cancellation of, or refusal to renew, the person's right
to engage in legal practice in a foreign country.
Division
2—Notifications to be given by local authorities to interstate
authorities
61—Official
notification to other jurisdictions of applications for admission and associated
matters
(1) This section applies if an application for admission to the legal
profession is made under this Act.
(2) The Supreme Court may give the corresponding authority for another
jurisdiction written notice of any of the following (as relevant):
(a) the making of the application;
(b) the withdrawal of the application;
(c) the refusal of the Court to admit the applicant to the legal
profession under this Act.
(3) The notice must state the applicant’s name and address as last
known to the Supreme Court and may contain other relevant information.
62—Official
notification to other jurisdictions of removals from local
roll
(1) This section applies if a person's name is removed from the local
roll, except where the removal occurs under section 68.
(2) The Registrar of the Supreme Court must, as soon as practicable, give
written notice of the removal to—
(a) the corresponding authority of every other jurisdiction; and
(b) the Registrar or other proper officer of the High Court.
(3) The notice must state—
(a) the person’s name and contact details as last known to the
Registrar; and
(b) the date the person’s name was removed from the roll;
and
(c) the reason for removing the person’s name,
and may contain other relevant information.
63—Regulatory
authority to notify other jurisdictions of certain matters
(1) This section applies if—
(a) a regulatory authority takes any of the following actions:
(i) refuses to grant an Australian lawyer a local practising
certificate;
(ii) suspends, cancels or refuses to renew the local practising
certificate of an Australian lawyer; or
(b) the lawyer successfully appeals against the action taken.
(2) The authority must, as soon as practicable, give the corresponding
authorities of other jurisdictions written notice of the action taken or the
result of the appeal.
(3) The notice must state—
(a) the lawyer's name and contact details as last known to the authority;
and
(b) particulars of—
(i) the action taken and the reasons for it; or
(ii) the result of the appeal,
and may contain other relevant information.
(4) A regulatory authority may give corresponding authorities written
notice of a condition imposed on any local practising certificate.
Division
3—Notifications to be given by lawyers to local
authorities
64—Lawyer to give
notice of removal in another jurisdiction
(1) If the name of a local lawyer or a local legal practitioner has been
removed from an interstate roll, the lawyer or practitioner must, as soon as
practicable, give the Supreme Court a written notice of the removal.
Maximum penalty: $50 000.
(2) This section does not apply where the name has been removed from an
interstate roll under a provision that corresponds to section 68.
65—Lawyer to give
notice of interstate orders
(1) If an order is made under a corresponding law recommending that the
name of a local lawyer be removed from the local roll, the lawyer must, as soon
as practicable, give the Supreme Court written notice of the order.
Maximum penalty: $50 000.
(2) If an order is made under a corresponding law in relation to a local
legal practitioner that—
(a) the practitioner's local practising certificate be suspended or
cancelled; or
(b) a local practising certificate not be granted to the practitioner for
a period; or
(c) conditions be imposed on the practitioner's local practising
certificate,
the practitioner must, as soon as practicable, give the Supreme Court
written notice of the order.
Maximum penalty: $50 000.
66—Lawyer to give
notice of foreign regulatory action
If foreign regulatory action has been taken in relation to a local lawyer
or a local legal practitioner, the lawyer or practitioner must, as soon as
practicable, give the Supreme Court a written notice of the action
taken.
Maximum penalty: $50 000.
67—Provisions
relating to requirement to notify
A notice to be given under this Division by a person must—
(a) state his or her name and address; and
(b) disclose full details of the action to which the notice relates,
including the date on which that action was taken; and
(c) be accompanied by a copy of any official notification provided to him
or her in connection with that action.
Division 4—Taking
of action by local authorities in response to notifications
received
68—Peremptory
removal of local lawyer's name from local roll following removal in another
jurisdiction
(1) This section applies if the Registrar of the Supreme Court is
satisfied that—
(a) a local lawyer’s name has been removed from an interstate roll;
and
(b) no order referred to in section 72(1)(b) is, at the time of that
removal, in force in relation to it.
(2) The Registrar must remove the lawyer's name from the local
roll.
(3) The Registrar may, but need not, give the lawyer notice of the date on
which the Registrar proposes to remove the name from the local roll.
(4) The Registrar must, as soon as practicable, give the former local
lawyer notice of the removal of the name from the local roll, unless notice of
the date of the proposed removal was previously given.
(5) The name of the former local lawyer is, on his or her application to
the Registrar or on the Registrar’s own initiative, to be restored to the
local roll if the name is restored to the interstate roll.
(6) Nothing in this section prevents the former local lawyer from
afterwards applying for admission under Part 2.
69—Peremptory
cancellation of local practising certificate following removal of name from
interstate roll
(1) This section applies if—
(a) a person’s name is removed from an interstate roll;
and
(b) he or she is the holder of a local practising certificate;
and
(c) no order referred to in section 72(1)(b) is, at the time of that
removal, in force in relation to it.
(2) The Registrar must cancel the local practising certificate as soon as
practicable after receiving official written notification of the
removal.
(3) The Registrar may, but need not, give the person notice of the date on
which the Registrar proposes to cancel the local practising
certificate.
(4) The Registrar must, as soon as practicable, give the person notice of
the cancellation, unless notice of the date of the proposed cancellation was
previously given.
(5) Nothing in this section prevents the former local lawyer from
afterwards applying for a local practising certificate.
70—Show
cause procedure for removal of lawyer's name from local roll following foreign
regulatory action
(1) This section applies if the Society is satisfied that—
(a) foreign regulatory action has been taken in relation to a local
lawyer; and
(b) no order referred to in section 72(1)(a) is in force in relation
to the action taken.
(2) The Society may serve on the lawyer a notice stating that the Society
will apply to the Supreme Court for an order that the lawyer's name be removed
from the local roll unless the lawyer shows cause to the Society why his or her
name should not be removed.
(3) If the lawyer does not satisfy the Society that his or her name should
not be removed from the local roll, the Society may apply to the Supreme Court
for an order that his or her name be removed from the local roll.
(4) Before applying for an order that the lawyer's name be removed, the
Society must afford the lawyer a reasonable opportunity to show cause why his or
her name should not be removed.
(5) The Supreme Court may, on application made under this section, order
that the lawyer's name be removed from the local roll, or may refuse to do
so.
(6) The lawyer is entitled to appear before and be heard by the Supreme
Court at a hearing in respect of an application under this section.
71—Show
cause procedure for cancellation of local practising certificate following
foreign regulatory action
(1) This section applies if the Supreme Court is satisfied
that—
(a) foreign regulatory action has been taken in relation to a local legal
practitioner; and
(b) no order referred to in section 72(1)(b) is in force in relation
to the action taken.
(2) The Supreme Court may serve on the practitioner a notice stating that
the Court proposes to cancel his or her local practising certificate unless the
practitioner shows cause to the Court why his or her practising certificate
should not be cancelled.
(3) The Supreme Court must afford the practitioner a reasonable
opportunity to show cause why his or her practising certificate should not be
cancelled.
(4) If the practitioner does not satisfy the Supreme Court that the
practising certificate should not be cancelled, the Court may cancel the
certificate.
(5) If the Supreme Court cancels the certificate, the Court must, as soon
as practicable, give the practitioner an information notice.
(6) The practitioner may appeal to the Full Court of the Supreme Court
against a decision to cancel the certificate.
(7) The Full Court may make any order it considers appropriate on the
appeal.
72—Order
for non-removal of name or non-cancellation of local practising
certificate
(1) If an Australian lawyer reasonably expects that his or her name will
be removed from an interstate roll or that foreign regulatory action will be
taken against the lawyer, the lawyer may apply to the Supreme Court
for—
(a) an order that his or her name not be removed from the local roll under
section 68 or section 70; or
(b) an order that his or her local practising certificate not be cancelled
under section 69 or section 71,
or both.
(2) The Supreme Court may make the order or orders applied for if
satisfied that—
(a) the lawyer’s name is likely to be removed from the interstate
roll or the foreign regulatory action is likely to be taken; and
(b) the reason for the removal of the name or the taking of the foreign
regulatory action will not involve disciplinary action or the possibility of
disciplinary action,
or may refuse to make an order.
(3) An order under this section may be made subject to any conditions the
Supreme Court considers appropriate and remains in force for the period
specified in it.
(4) The Supreme Court may revoke an order made under this section, and
sections 68 to 71 (as relevant) then apply as if the lawyer's name were
removed from the interstate roll or the foreign regulatory action were taken
when the revocation takes effect.
(5) Nothing in this section affects action being taken in relation to the
lawyer under other provisions of this Act.
73—Local
authority may give information to other local authorities
An authority of this jurisdiction that receives information from an
authority of another jurisdiction under provisions of a corresponding law that
correspond to this Part may furnish the information to other authorities of this
jurisdiction that have powers or duties under this Act.
Part
5—Incorporated legal practices and multi-disciplinary
partnerships
In this Part—
corporation means—
(a) a company within the meaning of the Corporations Act 2001 of
the Commonwealth; or
(b) any other body corporate, or body corporate of a kind, prescribed by
the regulations;
director, in relation to—
(a) a company within the meaning of the Corporations Act 2001 of
the Commonwealth—means a director as defined in section 9 of that Act;
or
(b) any other body corporate, or body corporate of a kind, prescribed by
the regulations—means a person specified or described in the
regulations;
legal practitioner director means a director of an
incorporated legal practice who is an Australian legal practitioner holding an
unrestricted practising certificate;
legal practitioner partner means a partner of a
multi-disciplinary partnership who is an Australian legal practitioner holding
an unrestricted practising certificate;
officer means—
(a) in relation to a company within the meaning of the Corporations Act
2001 of the Commonwealth—an officer as defined in section 9 of that
Act; or
(b) in relation to any other body corporate, or body corporate of a kind,
prescribed by the regulations—a person specified or described in the
regulations;
professional obligations of an Australian legal practitioner
include—
(a) duties to the Supreme Court; and
(b) obligations in connection with conflicts of interest; and
(c) duties to clients, including disclosure; and
(d) ethical rules required to be observed by the practitioner;
Regulator means—
(a) in relation to this jurisdiction—the Board; or
(b) in relation to another jurisdiction—the person or body defined
as the Regulator in relation to that jurisdiction by the corresponding law of
that jurisdiction or, if there is no such definition, the corresponding
authority;
related body corporate means—
(a) in relation to a company within the meaning of the Corporations Act
2001 of the Commonwealth—a related body corporate within the meaning
of section 50 of that Act; or
(b) in relation to any other body corporate, or body corporate of a kind,
prescribed by the regulations—a person specified or described in the
regulations.
Division
2—Incorporated legal practices
75—Nature
of incorporated legal practice
(1) An incorporated legal practice is a corporation that engages in legal
practice in this jurisdiction, whether or not it also provides services that are
not legal services.
(2) However, a corporation is not an incorporated legal practice
if—
(a) the corporation does not receive any form of, or have any expectation
of, a fee, gain or reward for the legal services it provides; or
(b) the only legal services that the corporation provides are any or all
of the following services:
(i) in-house legal services, namely, legal services provided to the
corporation concerning a proceeding or transaction to which the corporation (or
a related body corporate) is a party;
(ii) services that are not legally required to be provided by an
Australian legal practitioner and that are provided by an officer or employee
who is not an Australian legal practitioner; or
(c) this Part or the regulations so provide.
(3) The regulations may make provision for or with respect to the
application (with or without specified modifications) of provisions of this Act
to corporations that are not incorporated legal practices because of the
operation of subsection (2).
(4) Nothing in this Part affects or applies to the provision by an
incorporated legal practice of legal services in 1 or more other
jurisdictions.
76—Non-legal
services and businesses of incorporated legal practices
(1) An incorporated legal practice may provide any service and conduct any
business that the corporation may lawfully provide or conduct, except as
provided by this section.
(2) An incorporated legal practice (or a related body corporate) must not
conduct a managed investment scheme.
(3) The regulations may prohibit an incorporated legal practice (or a
related body corporate) from providing a service or conducting a business of a
kind specified by the regulations.
Note—
Contravention of this section or these regulations is a ground for banning
an incorporated legal practice—see section 96.
77—Corporations
eligible to be incorporated legal practice
(1) Any corporation is, subject to this Part, eligible to be an
incorporated legal practice.
(2) This section does not authorise a corporation to provide legal
services if the corporation is prohibited from doing so by any Act or law
(whether of this jurisdiction, the Commonwealth or any other jurisdiction) under
which it is incorporated or its affairs are regulated.
(3) An incorporated legal practice is not itself required to hold an
Australian practising certificate.
78—Notice
of intention to start providing legal services
(1) Before a corporation starts to engage in legal practice in this
jurisdiction, the corporation must give the Supreme Court written notice, in the
approved form, of its intention to do so.
(2) A corporation must not engage in legal practice in this jurisdiction
if it is in default of this section.
Maximum penalty: $50 000.
(3) A corporation that starts to engage in legal practice in this
jurisdiction without giving a notice under subsection (1) is in default of
this section until it gives the Supreme Court written notice, in the approved
form, of the failure to comply with that subsection and the fact that it has
started to engage in legal practice.
(4) The giving of a notice under subsection (3) does not affect a
corporation’s liability under subsection (1) or (2).
(5) A corporation is not entitled to recover any amount for anything the
corporation did in contravention of subsection (2).
(6) A person may recover from a corporation, as a debt due to the person,
any amount the person paid to or at the direction of the corporation for
anything the corporation did in contravention of subsection (2).
(7) This section does not apply to a corporation referred to in
section 75(2)(a) or (b).
79—Prohibition on
representations that corporation is incorporated legal
practice
(1) A corporation must not, without reasonable excuse, represent or
advertise that the corporation is an incorporated legal practice unless a notice
in relation to the corporation has been given under section 78.
Maximum penalty: $50 000.
(2) A director, officer, employee or agent of a corporation must not,
without reasonable excuse, represent or advertise that the corporation is an
incorporated legal practice unless a notice in relation to the corporation has
been given under section 78.
Maximum penalty: $50 000.
(3) A reference in this section to a person, being—
(a) a corporation—representing or advertising that the corporation
is an incorporated legal practice; or
(b) a director, officer, employee or agent of a
corporation—representing or advertising that the corporation is an
incorporated legal practice,
includes a reference to the person doing anything that states or implies
that the corporation is entitled to engage in legal practice.
80—Notice of
termination of provision of legal services
(1) A corporation must, within the prescribed period after it ceases to
engage in legal practice in this jurisdiction as an incorporated legal practice,
give the Supreme Court a written notice, in the approved form, of that
fact.
Maximum penalty: $50 000.
(2) The regulations may make provision for or with respect to determining
whether and when a corporation ceases to engage in legal practice in this
jurisdiction.
81—Incorporated
legal practice must have legal practitioner director
(1) An incorporated legal practice is required to have at least one legal
practitioner director.
(2) Each legal practitioner director of an incorporated legal practice is,
for the purposes of this Act only, responsible for the management of the legal
services provided in this jurisdiction by the incorporated legal
practice.
(3) Each legal practitioner director of an incorporated legal practice
must ensure that appropriate management systems are implemented and maintained
to enable the provision of legal services by the incorporated legal
practice—
(a) in accordance with the professional obligations of Australian legal
practitioners and other obligations imposed by or under this Act, the
regulations or the legal profession rules; and
(b) so that those obligations of Australian legal practitioners who are
officers or employees of the practice are not affected by other officers or
employees of the practice.
(4) If it ought reasonably to be apparent to a legal practitioner director
of an incorporated legal practice that the provision of legal services by the
practice will result in breaches of the professional obligations of Australian
legal practitioners or other obligations imposed by or under this Act, the
regulations or the legal profession rules, the director must take all reasonable
action available to the director to ensure that—
(a) the breaches do not occur; and
(b) appropriate remedial action is taken in respect of breaches that do
occur.
(5) Nothing in this Part derogates from the obligations or liabilities of
a director of an incorporated legal practice under any other law.
(6) The reference in subsection (1) to a legal practitioner director
does not include a reference to a person who is not validly appointed as a
director, but this subsection does not affect the meaning of the expression
“legal practitioner director” in other provisions of this
Act.
82—Obligations of
legal practitioner director relating to misconduct
(1) Each of the following is capable of constituting unsatisfactory
professional conduct or professional misconduct by a legal practitioner
director:
(a) unsatisfactory professional conduct or professional misconduct of an
Australian legal practitioner employed by the incorporated legal
practice;
(b) conduct of any other director (not being an Australian legal
practitioner) of the incorporated legal practice that adversely affects the
provision of legal services by the practice;
(c) the unsuitability of any other director (not being an Australian legal
practitioner) of the incorporated legal practice to be a director of a
corporation that provides legal services.
(2) A legal practitioner director is not guilty of unsatisfactory
professional conduct or professional misconduct under subsection (1) if the
director establishes that he or she took all reasonable steps to ensure
that—
(a) Australian legal practitioners employed by the incorporated legal
practice did not engage in conduct or misconduct referred to in
subsection (1)(a); or
(b) directors (not being Australian legal practitioners) of the
incorporated legal practice did not engage in conduct referred to in
subsection (1)(b); or
(c) unsuitable directors (not being Australian legal practitioners) of the
incorporated legal practice were not appointed or holding office as referred to
in subsection (1)(c),
as the case requires.
(3) A legal practitioner director of an incorporated legal practice must
ensure that all reasonable action available to the legal practitioner director
is taken to deal with any unsatisfactory professional conduct or professional
misconduct of an Australian legal practitioner employed by the
practice.
83—Incorporated
legal practice without legal practitioner director
(1) An incorporated legal practice contravenes this subsection if it does
not have any legal practitioner directors for a period exceeding 7
days.
Maximum penalty: $50 000.
(2) If an incorporated legal practice ceases to have any legal
practitioner directors, the incorporated legal practice must notify the Supreme
Court as soon as possible.
Maximum penalty: $50 000.
(3) An incorporated legal practice must not provide legal services in this
jurisdiction during any period it is in default of director requirements under
this section.
Maximum penalty: $50 000.
(4) An incorporated legal practice that contravenes subsection (1) is
taken to be in default of director requirements under this section for the
period from the end of the period of 7 days until—
(a) it has at least 1 legal practitioner director; or
(b) a person is appointed under this section or a corresponding law in
relation to the practice.
(5) The Supreme Court may, if it thinks it appropriate, appoint an
Australian legal practitioner who is an employee of the incorporated legal
practice or another person nominated by the Court, in the absence of a legal
practitioner director, to exercise or perform the functions or duties conferred
or imposed on a legal practitioner director under this Part.
(6) An Australian legal practitioner is not eligible to be appointed under
this section unless the practitioner holds an unrestricted practising
certificate.
(7) The appointment under this section of a person to exercise or perform
functions or duties of a legal practitioner director does not, for any other
purpose, confer or impose on the person any of the other functions or duties of
a director of the incorporated legal practice.
(8) An incorporated legal practice does not contravene subsection (1)
during any period during which a person holds an appointment under this section
in relation to the practice.
(9) A reference in this section to a legal practitioner director does not
include a reference to a person who is not validly appointed as a director, but
this subsection does not affect the meaning of the expression “legal
practitioner director” in other provisions of this Act.
84—Obligations
and privileges of practitioners who are officers or
employees
(1) An Australian legal practitioner who provides legal services on behalf
of an incorporated legal practice in the capacity of an officer or employee of
the practice—
(a) is not excused from compliance with professional obligations as an
Australian legal practitioner, or any obligations as an Australian legal
practitioner under any law; and
(b) does not lose the professional privileges of an Australian legal
practitioner.
(2) For the purposes only of subsection (1), the professional
obligations and professional privileges of a practitioner apply as
if—
(a) where there are 2 or more legal practitioner directors of an
incorporated legal practice—the practice were a partnership of the legal
practitioner directors and the employees of the practice were employees of the
legal practitioner directors; or
(b) where there is only 1 legal practitioner director of an incorporated
legal practice—the practice were a sole practitioner and the employees of
the practice were employees of the legal practitioner director.
(3) The law relating to client legal privilege (or other legal
professional privilege) is not excluded or otherwise affected because an
Australian legal practitioner is acting in the capacity of an officer or
employee of an incorporated legal practice.
(4) The directors of an incorporated legal practice do not breach their
duties as directors merely because legal services are provided pro bono by an
Australian legal practitioner employed by the practice.
85—Professional
indemnity insurance
(1) The provisions of this Act relating to insurance apply, with any
necessary changes, to incorporated legal practices in relation to the provision
of legal services in the same way that the provisions apply to Australian legal
practitioners.
(2) However, subsection (1) does not affect an obligation of an
Australian legal practitioner, who is an officer or employee of an incorporated
legal practice, to comply with the provisions of this Act relating to
insurance.
(1) For the purposes of the application of any law (including the common
law) or legal profession rules relating to conflicts of interest to the conduct
of an Australian legal practitioner who is—
(a) a legal practitioner director of an incorporated legal practice;
or
(b) an officer or employee of an incorporated legal practice,
the interests of the incorporated legal practice or any related body
corporate are also taken to be those of the practitioner (in addition to any
interests that the practitioner has apart from this subsection).
(2) Legal profession rules may be made for or with respect to additional
duties and obligations in connection with conflicts of interest arising out of
the conduct of an incorporated legal practice.
Note—
Under section 84, an Australian legal practitioner who is an officer
or employee of an incorporated legal practice must comply with the same
professional obligations as other practitioners.
(1) This section applies if a person engages an incorporated legal
practice to provide services that the person might reasonably assume to be legal
services, but does not apply where the practice provides only legal services in
this jurisdiction.
(2) Each legal practitioner director of the incorporated legal practice,
and any employee who is an Australian legal practitioner and who provides the
services on behalf of the practice, must ensure that a disclosure, complying
with the requirements of this section and the regulations made for the purposes
of this section, is made to the person in connection with the provision of the
services.
Maximum penalty: $50 000.
(3) The disclosure must be made by giving the person a notice in
writing—
(a) setting out the services to be provided; and
(b) stating whether or not all the legal services to be provided will be
provided by an Australian legal practitioner; and
(c) if some or all of the legal services to be provided will not be
provided by an Australian legal practitioner—identifying those services
and indicating the status or qualifications of the person or persons who will
provide the services; and
Note—
For example, the person might be a licensed conveyancer. However, this
paragraph would not apply in a case where a law applying in the jurisdiction
prohibits a particular legal service from being provided by a person who is not
an Australian legal practitioner.
(d) stating that this Act applies to the provision of legal services but
not to the provision of the non-legal services.
(4) The regulations may make provision for or with respect to the
following matters:
(a) the manner in which a disclosure is to be made;
(b) additional matters required to be disclosed in connection with the
provision of legal services or non-legal services by an incorporated legal
practice.
(5) Without limiting subsection (4), the additional matters may
include the kind of services provided by the incorporated legal practice and
whether those services are or are not covered by the insurance or other
provisions of this Act.
(6) A disclosure under this section to a person about the provision of
legal services may relate to the provision of legal services on one occasion or
on more than one occasion or on an on-going basis.
88—Effect of
non-disclosure of provision of certain services
(1) This section applies if—
(a) section 87 applies in relation to a service that is provided to a
person who has engaged an incorporated legal practice to provide the service and
that the person might reasonably assume to be a legal service; and
(b) a disclosure has not been made under that section in relation to the
service.
(2) The standard of care owed by the incorporated legal practice in
respect of the service is the standard that would be applicable if the service
had been provided by an Australian legal practitioner.
89—Application of
legal profession rules
Legal profession rules, so far as they apply to Australian legal
practitioners, also apply to Australian legal practitioners who are officers or
employees of an incorporated legal practice, unless the rules otherwise
provide.
90—Requirements
relating to advertising
(1) Any restriction imposed by or under this or any other Act, the
regulations or the legal profession rules in connection with advertising by
Australian legal practitioners applies to advertising by an incorporated legal
practice with respect to the provision of legal services.
(2) If a restriction referred to in subsection (1) is limited to a
particular branch of the legal profession or for persons who practise in a
particular style of legal practice, the restriction applies only to the extent
that the incorporated legal practice carries on the business in that branch of
the legal profession or in that style of legal practice.
(3) Any advertisement of the kind referred to in this section is, for the
purposes of disciplinary proceedings taken against an Australian legal
practitioner, taken to have been authorised by each legal practitioner director
of the incorporated legal practice.
(4) This section does not apply if the provision by which the restriction
is imposed expressly excludes its application to incorporated legal
practices.
91—Extension of
vicarious liability relating to failure to account, pay or deliver and
dishonesty to incorporated legal practices
(1) This section applies to any of the following proceedings (being
proceedings based on the vicarious liability of an incorporated legal
practice):
(a) civil proceedings relating to a failure to account for, pay or deliver
money or property received by, or entrusted to, the practice (or to any officer
or employee of the practice) in the course of the provision of legal services by
the practice, being money or property under the direct or indirect control of
the practice;
(b) civil proceedings for any other debt owed, or damages payable, to a
client as a result of a dishonest act or omission by an Australian legal
practitioner who is an employee of the practice in connection with the provision
of legal services to the client.
(2) If the incorporated legal practice would not (but for this section) be
vicariously liable for any acts or omissions of its officers and employees in
those proceedings, but would be liable for those acts or omissions if the
practice and those officers and employees were carrying on business in
partnership, the practice is taken to be vicariously liable for those acts or
omissions.
92—Sharing of
receipts, revenue or other income
(1) Nothing in this Act, the regulations or the legal profession rules
prevents an Australian legal practitioner from sharing with an incorporated
legal practice receipts, revenue or other income arising from the provision of
legal services by the practitioner.
(2) This section does not extend to the sharing of receipts, revenue or
other income in contravention of section 93.
(1) An incorporated legal practice is guilty of an offence if a person who
is a disqualified person—
(a) is an officer or employee of the incorporated legal practice (whether
or not the person provides legal services) or is an officer or employee of a
related body corporate; or
(b) is a partner of the incorporated legal practice in a business that
includes the provision of legal services; or
(c) shares the receipts, revenue or other income arising from the
provision of legal services by the incorporated legal practice; or
(d) is engaged or paid in connection with the provision of legal services
by the incorporated legal practice.
Maximum penalty: $50 000.
(2) The failure of a legal practitioner director of an incorporated legal
practice to ensure that the practice complies with subsection (1) is
capable of constituting unsatisfactory professional conduct or professional
misconduct.
94—Audit of
incorporated legal practice
(1) The Society may conduct an audit of—
(a) the compliance of an incorporated legal practice (and of its officers
and employees) with the requirements of—
(i) this Part; or
(ii) the regulations or the legal profession rules, so far as they relate
specifically to incorporated legal practices; and
(b) the management of the provision of legal services by the incorporated
legal practice (including the supervision of officers and employees providing
the services).
Note—
Section 81 requires legal practitioner directors to ensure that
appropriate management systems are implemented and maintained.
(2) The Society may, in writing, appoint a suitably qualified person to
conduct an audit under this section.
(3) The appointment may be made generally, or in relation to a particular
incorporated legal practice, or in relation to a particular audit.
(4) An audit may be conducted whether or not a complaint has been made
against an Australian lawyer with respect to the provision of legal services by
the incorporated legal practice.
(5) A report of an audit—
(a) is to be provided to the incorporated legal practice concerned;
and
(b) may be provided by the Society to the Regulator or a corresponding
authority; and
(c) may be provided by the Regulator to a corresponding authority;
and
(d) may be taken into account in connection with any disciplinary
proceedings taken against legal practitioner directors or other persons or in
connection with the grant, amendment, suspension or cancellation of Australian
practising certificates.
Chapter 6 applies to an audit under this Division.
96—Banning
of incorporated legal practices
(1) The Supreme Court may, on the application of the Regulator, the
Attorney-General or the Society, make an order disqualifying a corporation from
providing legal services in this jurisdiction for the period the Court considers
appropriate if satisfied that—
(a) a ground for disqualifying the corporation under this section has been
established; and
(b) the disqualification is justified.
(2) An order under this section may, if the Supreme Court thinks it
appropriate, be made—
(a) subject to conditions as to the conduct of the incorporated legal
practice; or
(b) subject to conditions as to when or in what circumstances the order is
to take effect; or
(c) together with orders to safeguard the interests of clients or
employees of the incorporated legal practice.
(3) Action may be taken against an incorporated legal practice on any of
the following grounds:
(a) that a legal practitioner director or an Australian legal practitioner
who is an officer or employee of the corporation is found guilty of professional
misconduct under a law of this jurisdiction or another jurisdiction;
(b) that the Society is satisfied, after conducting an audit of the
incorporated legal practice, that the incorporated legal practice has failed to
implement satisfactory management and supervision of its provision of legal
services;
(c) that the incorporated legal practice (or a related body corporate) has
contravened section 76 or the regulations made under that
section;
(d) that the incorporated legal practice has contravened
section 93;
(e) that a person who is an officer of the incorporated legal practice and
who is the subject of an order under:
(i) section 97 or under provisions of a corresponding law that
correspond to that section; or
(ii) section 122 or under provisions of a corresponding law that
correspond to that section,
is acting in the management of the incorporated legal practice.
(4) If a corporation is disqualified under this section, the applicant for
the order must, as soon as practicable, notify the Regulator of every other
jurisdiction.
(5) If a corporation is disqualified from providing legal services in
another jurisdiction under a corresponding law, the Regulator may determine that
the corporation is taken to be disqualified from providing legal services in
this jurisdiction for the same period, but nothing in this subsection prevents
the Regulator, the Attorney-General or the Society from instead applying for an
order under this section.
(6) A corporation that provides legal services in contravention of a
disqualification under this section is guilty of an offence.
Maximum penalty: $50 000.
(7) A corporation that is disqualified under this section ceases to be an
incorporated legal practice.
(8) Conduct of an Australian legal practitioner who provides legal
services on behalf of a corporation in the capacity of an officer or employee of
the corporation is capable of constituting unsatisfactory professional conduct
or professional misconduct where the practitioner ought reasonably to have known
that the corporation is disqualified under this section.
(9) The regulations may make provision for or with respect to the
publication and notification of orders made under this section, including
notification of appropriate authorities of other jurisdictions.
97—Disqualification
from managing incorporated legal practice
(1) The Supreme Court may, on the application of the Regulator, the
Attorney-General or the Society, make an order disqualifying a person from
managing a corporation that is an incorporated legal practice for the period the
Court considers appropriate if satisfied that—
(a) the person is a person who could be disqualified under section 206C,
206D, 206E or 206F of the Corporations Act 2001 of the Commonwealth from
managing corporations; and
(b) the disqualification is justified.
(2) The Supreme Court may, on the application of a person subject to a
disqualification order under this section, revoke the order.
(3) A disqualification order made under this section has effect for the
purposes only of this Act and does not affect the application or operation of
the Corporations Act 2001 of the Commonwealth.
(4) The regulations may make provision for or with respect to the
publication and notification of orders made under this section.
(5) A person who is disqualified from managing a corporation under
provisions of a corresponding law that correspond to this section is taken to be
disqualified from managing a corporation under this section.
98—Disclosure of
information to Australian Securities and Investments
Commission
(1) This section applies if the Regulator, the Attorney-General or the
Society, in connection with exercising powers or performing functions under this
Act, acquired information concerning a corporation that is or was an
incorporated legal practice.
(2) The Regulator, the Attorney-General or the Society may disclose to the
Australian Securities and Investments Commission information concerning the
corporation that is relevant to the Commission’s functions.
(3) Information may be provided under subsection (2) despite any law
relating to secrecy or confidentiality, including any provisions of this
Act.
99—External
administration proceedings under Corporations
Act 2001
(1) This section applies to proceedings in any court under Chapter 5
(External administration) of the Corporations Act 2001 of the
Commonwealth—
(a) relating to a corporation that is an externally-administered body
corporate under that Act; or
(b) relating to a corporation becoming an externally-administered body
corporate under that Act,
being a corporation that is or was an incorporated legal
practice.
(2) The Regulator, the Attorney-General and the Society are entitled to
intervene in the proceedings, unless the court determines that the proceedings
do not concern or affect the provision of legal services by the incorporated
legal practice.
(3) The court may, when exercising its jurisdiction in the proceedings,
have regard to the interests of the clients of the incorporated legal practice
who have been or are to be provided with legal services by the
practice.
(4) Subsection (3) does not authorise the court to make any decision
that is contrary to a specific provision of the Corporations Act 2001 of
the Commonwealth.
(5) The provisions of subsections (2) and (3) are declared to be
Corporations legislation displacement provisions for the purposes of section 5G
of the Corporations Act 2001 of the Commonwealth in relation to the
provisions of Chapter 5 of that Act.
Note—
Section 5G of the Corporations Act 2001 of the Commonwealth provides
that if a State law declares a provision of a State law to be a Corporations
legislation displacement provision, any provision of the Corporations
legislation with which the State provision would otherwise be inconsistent does
not apply to the extent necessary to avoid the inconsistency.
100—External
administration proceedings under other legislation
(1) This section applies to proceedings for the external administration
(however expressed) of an incorporated legal practice, but does not apply to
proceedings to which section 99 applies.
(2) The Regulator, the Attorney-General and the Society are entitled to
intervene in the proceedings, unless the court determines that the proceedings
do not concern or affect the provision of legal services by the incorporated
legal practice.
(3) The court may, when exercising its jurisdiction in the proceedings,
have regard to the interests of the clients of the incorporated legal practice
who have been or are to be provided with legal services by the
practice.
(4) Subsection (3) does not authorise the court to make any decision
that is contrary to a specific provision of any legislation applicable to the
incorporated legal practice.
101—Incorporated
legal practice that is subject to receivership under this Act and external
administration under Corporations Act 2001
(Cth)
(1) This section applies if an incorporated legal practice is the subject
of both—
(a) the appointment of a Chapter 5 receiver; and
(b) the appointment of a Corporations Act administrator.
(2) The Chapter 5 receiver is under a duty to notify the Corporations Act
administrator of the appointment of the Chapter 5 receiver, whether the
appointment precedes, follows or is contemporaneous with the appointment of the
Corporations Act administrator.
(3) The Chapter 5 receiver or the Corporations Act administrator (or both
of them jointly) may apply to the Supreme Court for the resolution of issues
arising from or in connection with the dual appointments and their respective
powers, except where proceedings referred to in section 99 have been
commenced.
(4) The Supreme Court may make any orders it considers appropriate, and no
liability attaches to the Chapter 5 receiver or the Corporations Act
administrator for any act or omission done by the receiver or administrator in
good faith for the purpose of carrying out or acting in accordance with the
orders.
(5) The Society and the Regulator are entitled to intervene in the
proceedings, unless the Court determines that the proceedings do not concern or
affect the provision of legal services by the incorporated legal
practice.
(6) The provisions of subsections (3) and (4) are declared to be
Corporations legislation displacement provisions for the purposes of section 5G
of the Corporations Act 2001 of the Commonwealth in relation to the
provisions of Chapter 5 of that Act.
(7) In this section—
Corporations Act administrator means—
(a) a receiver, receiver and manager, liquidator (including a provisional
liquidator), controller, administrator or deed administrator appointed under the
Corporations Act 2001 of the Commonwealth; or
(b) a person who is appointed to exercise powers under that Act and who is
prescribed, or of a class prescribed, by the regulations for the purposes of
this definition;
Chapter 5 receiver means a receiver appointed under Chapter
5.
102—Incorporated
legal practice that is subject to receivership under this Act and external
administration under other legislation
(1) This section applies if an incorporated legal practice is the subject
of both—
(a) the appointment of a Chapter 5 receiver; and
(b) the appointment of an external administrator.
(2) The Chapter 5 receiver is under a duty to notify the external
administrator of the appointment of the Chapter 5 receiver, whether the
appointment precedes, follows or is contemporaneous with the appointment of the
external administrator.
(3) The Chapter 5 receiver or the external administrator (or both of them
jointly) may apply to the Supreme Court for the resolution of issues arising
from or in connection with the dual appointments and their respective
powers.
(4) The Supreme Court may make any orders it considers appropriate, and no
liability attaches to the Chapter 5 receiver or the external administrator for
any act or omission done by the receiver or administrator in good faith for the
purpose of carrying out or acting in accordance with the orders.
(5) The Society and the Regulator are entitled to intervene in the
proceedings, unless the Court determines that the proceedings do not concern or
affect the provision of legal services by the incorporated legal
practice.
(6) In this section—
external administrator means a person who is appointed to
exercise powers under other legislation (whether or not of this jurisdiction)
and who is prescribed, or of a class prescribed, by the regulations for the
purposes of this definition;
Chapter 5 receiver means a receiver appointed under Chapter
5.
103—Co-operation
between courts
Courts of this jurisdiction may make arrangements for communicating and
co-operating with other courts or tribunals in connection with the exercise of
powers under this Part.
104—Relationship
of Act to constitution of incorporated legal practice
The provisions of this Act or the regulations that apply to an incorporated
legal practice prevail, to the extent of any inconsistency, over the
constitution or other constituent documents of the practice.
105—Relationship
of Act to legislation establishing incorporated legal
practice
(1) This section applies to a corporation that is established by or under
a law (whether or not of this jurisdiction), is an incorporated legal practice,
but is not a company within the meaning of the Corporations Act 2001 of
the Commonwealth.
(2) The provisions of this Act or the regulations that apply to an
incorporated legal practice prevail, to the extent of any inconsistency, over
provisions of the legislation by or under which the corporation is established
or regulated that are specified or described in the regulations.
106—Relationship
of Act to Corporations legislation
(1) The regulations may declare any provision of this Act or the
regulations that relates to an incorporated legal practice to be a Corporations
legislation displacement provision for the purposes of section 5G of the
Corporations Act 2001 of the Commonwealth.
(2) The regulations may declare any matter relating to an incorporated
legal practice that is prohibited, required, authorised or permitted by or under
this Act or the regulations to be an excluded matter for the purposes of section
5F of the Corporations Act 2001 of the Commonwealth in relation
to—
(a) the whole of the Corporations legislation; or
(b) a specified provision of the Corporations legislation; or
(c) the Corporations legislation other than a specified provision;
or
(d) the Corporations legislation otherwise than to a specified
extent.
(3) In this section—
matter includes act, omission, body, person or
thing.
A person (whether or not an officer or an employee of an incorporated legal
practice) must not cause or induce or attempt to cause or
induce—
(a) a legal practitioner director; or
(b) another Australian legal practitioner who provides legal services on
behalf of an incorporated legal practice,
to contravene this Act, the regulations, the legal profession rules or his
or her professional obligations as an Australian legal practitioner.
Maximum penalty: $50 000.
Division
3—Multi-disciplinary partnerships
108—Nature of
multi-disciplinary partnership
(1) A multi-disciplinary partnership is a partnership between 1 or more
Australian legal practitioners and 1 or more other persons who are not
Australian legal practitioners, where the business of the partnership includes
the provision of legal services in this jurisdiction as well as other
services.
(2) However, a partnership consisting only of 1 or more Australian legal
practitioners and 1 or more Australian-registered foreign lawyers is not a
multi-disciplinary partnership.
(3) Nothing in this Part affects or applies to the provision by a
multi-disciplinary partnership of legal services in one or more other
jurisdictions.
109—Conduct of
multi-disciplinary partnerships
(1) An Australian legal practitioner may be in partnership with a person
who is not an Australian legal practitioner, where the business of the
partnership includes the provision of legal services.
(2) Subsection (1) does not prevent an Australian legal practitioner
from being in partnership with a person who is not an Australian legal
practitioner, where the business of the partnership does not include the
provision of legal services.
(3) The regulations may prohibit an Australian legal practitioner from
being in partnership with a person providing a service or conducting a business
of a kind specified by the regulations, where the business of the partnership
includes the provision of legal services.
Note—
Contravention of these regulations is a ground for making a prohibition
order under section 122.
110—Notice of
intention to start practice in multi-disciplinary
partnership
A legal practitioner partner must, before starting to provide legal
services in this jurisdiction as a member of a multi-disciplinary partnership,
give the Supreme Court written notice, in the approved form, of his or her
intention to do so.
Maximum penalty: $50 000.
111—General
obligations of legal practitioner partners
(1) Each legal practitioner partner of a multi-disciplinary partnership
is, for the purposes only of this Act, responsible for the management of the
legal services provided in this jurisdiction by the partnership.
(2) Each legal practitioner partner must ensure that appropriate
management systems are implemented and maintained to enable the provision of
legal services by the multi-disciplinary partnership—
(a) in accordance with the professional obligations of Australian legal
practitioners and the other obligations imposed by this Act, the regulations and
the legal profession rules; and
(b) so that the professional obligations of legal practitioner partners
and employees who are Australian legal practitioners are not affected by other
partners and employees of the partnership.
112—Obligations
of legal practitioner partner relating to misconduct
(1) Each of the following is capable of constituting unsatisfactory
professional conduct or professional misconduct by a legal practitioner
partner:
(a) unsatisfactory professional conduct or professional misconduct of an
Australian legal practitioner employed by the multi-disciplinary
partnership;
(b) conduct of any other partner (not being an Australian legal
practitioner) of the multi-disciplinary partnership that adversely affects the
provision of legal services by the partnership;
(c) the unsuitability of any other partner (not being an Australian legal
practitioner) of the multi-disciplinary partnership to be a member of a
partnership that provides legal services.
(2) A legal practitioner partner of a multi-disciplinary partnership must
ensure that all reasonable action available to the legal practitioner partner is
taken to deal with any unsatisfactory professional conduct or professional
misconduct of an Australian legal practitioner employed by the
partnership.
113—Actions of
partner who is not an Australian legal practitioner
A partner of a multi-disciplinary partnership who is not an Australian
legal practitioner does not contravene a provision of this Act, the regulations
or the legal profession rules merely because of any of the following:
(a) the partner is a member of a partnership where the business of the
partnership includes the provision of legal services;
(b) the partner receives any fee, gain or reward for business of the
partnership that is the business of an Australian legal practitioner;
(c) the partner holds out, advertises or represents himself or herself as
a member of a partnership where the business of the partnership includes the
provision of legal services;
(d) the partner shares with any other partner the receipts of business of
the partnership that is the business of an Australian legal
practitioner,
unless the provision expressly applies to a partner of a multi-disciplinary
partnership who is not an Australian legal practitioner.
114—Obligations
and privileges of practitioners who are partners or
employees
(1) An Australian legal practitioner who provides legal services in the
capacity of a partner or an employee of a multi-disciplinary
partnership—
(a) is not excused from compliance with professional obligations as an
Australian legal practitioner, or any other obligations as an Australian legal
practitioner under any law; and
(b) does not lose the professional privileges of an Australian legal
practitioner.
(2) The law relating to client legal privilege (or other legal
professional privilege) is not excluded or otherwise affected because an
Australian legal practitioner is acting in the capacity of a partner or an
employee of a multi-disciplinary partnership.
(1) For the purposes of the application of any law (including the common
law) or legal profession rules relating to conflicts of interest to the conduct
of an Australian legal practitioner who is—
(a) a legal practitioner partner of a multi-disciplinary partnership;
or
(b) an employee of a multi-disciplinary partnership,
the interests of the partnership or any partner of the multi-disciplinary
partnership are also taken to be those of the practitioner concerned (in
addition to any interests that the practitioner has apart from this
subsection).
(2) Legal profession rules may be made for or with respect to additional
duties and obligations in connection with conflicts of interest arising out of
the conduct of a multi-disciplinary partnership.
Note—
Under section 114, an Australian legal practitioner who is a partner
or employee of a multi-disciplinary partnership must comply with the same
professional obligations as other practitioners.
(1) This section applies if a person engages a multi-disciplinary
partnership to provide services that the person might reasonably assume to be
legal services.
(2) Each legal practitioner partner of the multi-disciplinary partnership,
and any employee of the partnership who is an Australian legal practitioner and
who provides the services on behalf of the partnership, must ensure that a
disclosure, complying with the requirements of this section and the regulations
made for the purposes of this section, is made to the person in connection with
the provision of the services.
Maximum penalty: $50 000.
(3) The disclosure must be made by giving the person a notice in
writing—
(a) setting out the services to be provided; and
(b) stating whether or not all the legal services to be provided will be
provided by an Australian legal practitioner; and
(c) if some or all of the legal services to be provided will not be
provided by an Australian legal practitioner—identifying those services
and indicating the status or qualifications of the person or persons who will
provide the services; and
Note—
For example, the person might be a licensed conveyancer. However, this
paragraph would not apply in a case where a law applying in the jurisdiction
prohibits a particular legal service from being provided by a person who is not
an Australian legal practitioner.
(d) stating that this Act applies to the provision of legal services but
not to the provision of the non-legal services.
(4) The regulations may make provision for or with respect to the
following matters:
(a) the manner in which disclosure is to be made;
(b) additional matters required to be disclosed in connection with the
provision of legal services or non-legal services by a multi-disciplinary
partnership.
(5) Without limiting subsection (4), the additional matters may
include the kind of services provided by the multi-disciplinary partnership and
whether those services are or are not covered by the insurance or other
provisions of this Act.
(6) A disclosure under this section to a person about the provision of
legal services may relate to the provision of legal services on 1 occasion or on
more than 1 occasion or on an on-going basis.
117—Effect of
non-disclosure of provision of certain services
(1) This section applies if—
(a) section 116 applies in relation to a service that is provided to
a person who has engaged a multi-disciplinary partnership to provide the service
and that the person might reasonably assume to be a legal service; and
(b) a disclosure has not been made under that section in relation to the
service.
(2) The standard of care owed by the multi-disciplinary partnership in
respect of the service is the standard that would be applicable if the service
had been provided by an Australian legal practitioner.
118—Application
of legal profession rules
Legal profession rules, so far as they apply to Australian legal
practitioners, also apply to Australian legal practitioners who are legal
practitioner partners or employees of a multi-disciplinary partnership, unless
the rules otherwise provide.
119—Requirements
relating to advertising
(1) Any restriction imposed by or under this or any other Act, the
regulations or the legal profession rules in connection with advertising by
Australian legal practitioners applies to advertising by a multi-disciplinary
partnership with respect to the provision of legal services.
(2) If a restriction referred to in subsection (1) is limited to a
particular branch of the legal profession or for persons who practise in a
particular style of legal practice, the restriction applies only to the extent
that the multi-disciplinary partnership carries on the business of the relevant
class of Australian legal practitioners.
(3) An advertisement of the kind referred to in this section is, for the
purposes of disciplinary proceedings taken against an Australian legal
practitioner, taken to have been authorised by each legal practitioner partner
of the multi-disciplinary partnership.
(4) This section does not apply if the provision by which the restriction
is imposed expressly excludes its applications to multi-disciplinary
partnerships.
120—Sharing of
receipts, revenue or other income
(1) Nothing in this Act, the regulations or the legal profession rules
prevents a legal practitioner partner, or an Australian legal practitioner who
is an employee of a multi-disciplinary partnership, from sharing receipts,
revenue or other income arising from the provision of legal services by the
partner or practitioner with a partner or partners who are not Australian legal
practitioners.
(2) This section does not extend to the sharing of receipts, revenue or
other income in contravention of section 121.
A legal practitioner partner of a multi-disciplinary partnership must not
knowingly—
(a) be a partner of a disqualified person in the multi-disciplinary
partnership; or
(b) share with a disqualified person the receipts, revenue or other income
arising from the provision of legal services by the multi-disciplinary
partnership; or
(c) employ or pay a disqualified person in connection with the provision
of legal services by the multi-disciplinary partnership.
122—Prohibition
on partnerships with certain partners who are not Australian legal
practitioners
(1) This section applies to a person who—
(a) is not an Australian legal practitioner; and
(b) is or was a partner of an Australian legal practitioner.
(2) On application by the Regulator or the Society, the Supreme Court may
make an order prohibiting any Australian legal practitioner from being a
partner, in a business that includes the provision of legal services, of a
specified person to whom this section applies if—
(a) the Court is satisfied that the person is not a fit and proper person
to be a partner; or
(b) the Court is satisfied that the person has been guilty of conduct
that, if the person were an Australian legal practitioner, would have
constituted unsatisfactory professional conduct or professional misconduct;
or
(c) in the case of a corporation, if the Court is satisfied that the
corporation has been disqualified from providing legal services in this
jurisdiction or there are grounds for disqualifying the corporation from
providing legal services in this jurisdiction.
(3) An order made under this section may be revoked by the Supreme Court
on application by the Regulator or the Society or by the person against whom the
order was made.
(4) The death of an Australian legal practitioner does not prevent an
application being made for, or the making of, an order under this section in
relation to a person who was a partner of the practitioner.
(5) The regulations may make provision for or with respect to the
publication and notification of orders made under this section.
A person (whether or not a partner, or employee, of a multi-disciplinary
partnership) must not cause or induce or attempt to cause or
induce—
(a) a legal practitioner partner; or
(b) an employee of a multi-disciplinary partnership who provides legal
services and who is an Australian legal practitioner,
to contravene this Act, the regulations, the legal profession rules or his
or her professional obligations as an Australian legal practitioner.
Maximum penalty: $50 000.
124—Obligations
of individual practitioners not affected
Except as provided by this Part, nothing in this Part affects any
obligation imposed on—
(a) a legal practitioner director or an Australian legal practitioner who
is an employee of an incorporated legal practice; or
(b) a legal practitioner partner or an Australian legal practitioner who
is an employee of a multi-disciplinary partnership,
under this or any other Act, the regulations or the legal profession rules
in his or her capacity as an Australian legal practitioner.
(1) The regulations may make provision for or with respect to the
following matters:
(a) the legal services provided by incorporated legal practices or legal
practitioner partners or employees of multi-disciplinary partnerships;
(b) other services provided by incorporated legal practices or legal
practitioner partners or employees of multi-disciplinary partnerships in
circumstances where a conflict of interest relating to the provision of legal
services may arise.
(2) A regulation prevails over any inconsistent provision of the legal
profession rules.
(3) A regulation may provide that a breach of the regulations is capable
of constituting unsatisfactory professional conduct or professional
misconduct:
(a) in the case of an incorporated legal practice—by a legal
practitioner director, or by an Australian legal practitioner responsible for
the breach, or both; or
(b) in the case of a multi-disciplinary partnership—by a legal
practitioner partner, or by an Australian legal practitioner responsible for the
breach, or both.
Part
6—Legal practice—foreign lawyers
In this Part—
Australia includes the external territories;
Australian law means the law of the Commonwealth or of a
jurisdiction;
foreign law means law of a foreign country;
foreign law practice means a partnership or corporate entity
that is entitled to engage in legal practice in a foreign country;
foreign registration authority means an entity in a foreign
country having the function, conferred by the law of the foreign country, of
registering persons to engage in legal practice in the foreign
country;
local registration certificate means a registration
certificate given under this Part;
overseas-registered foreign lawyer means a natural person who
is properly registered to engage in legal practice in a foreign country by the
foreign registration authority for the country;
practise foreign law means do work, or transact business, in
this jurisdiction concerning foreign law, being work or business of a kind that,
if it concerned the law of this jurisdiction, would ordinarily be done or
transacted by an Australian legal practitioner;
registered, when used in connection with a foreign country,
means having all necessary licences, approvals, admissions, certificates or
other forms of authorisation (including practising certificates) required by or
under legislation for engaging in legal practice in that country.
127—This Part
does not apply to Australian legal practitioners
(1) This Part does not apply to an Australian legal practitioner
(including an Australian legal practitioner who is also an overseas-registered
foreign lawyer).
(2) Accordingly, nothing in this Part requires or enables an Australian
legal practitioner (including an Australian legal practitioner who is also an
overseas-registered foreign lawyer) to be registered as a foreign lawyer under
this Act in order to practise foreign law in this jurisdiction.
Division
2—Practice of foreign law
128—Requirement
for registration
(1) A person must not practise foreign law in this jurisdiction unless the
person is—
(a) an Australian-registered foreign lawyer; or
(b) an Australian legal practitioner.
Maximum penalty: $50 000.
(2) However, a person does not contravene subsection (1) if the
person is an overseas-registered foreign lawyer—
(a) who—
(i) practises foreign law in this jurisdiction for 1 or more periods that
do not in aggregate exceed 90 days in any period of 12 months;
or
(ii) is subject to a restriction imposed under the Migration
Act 1958 of the Commonwealth that has the effect of limiting the period
during which work may be done, or business transacted, in Australia by the
person; and
(b) who—
(i) does not maintain an office for the purpose of practising foreign law
in this jurisdiction; or
(ii) does not become a partner or director of a law practice.
129—Entitlement
of Australian-registered foreign lawyer to practise in this
jurisdiction
An Australian-registered foreign lawyer is, subject to this Act, entitled
to practise foreign law in this jurisdiction.
(1) An Australian-registered foreign lawyer may provide only the following
legal services in this jurisdiction:
(a) doing work, or transacting business, concerning the law of a foreign
country where the lawyer is registered by the foreign registration authority for
the country;
(b) legal services (including appearances) in relation to arbitration
proceedings of a kind prescribed under the regulations;
(c) legal services (including appearances) in relation to proceedings
before bodies other than courts, being proceedings in which the body concerned
is not required to apply the rules of evidence and in which knowledge of the
foreign law of a country referred to in paragraph (a) is
essential;
(d) legal services for conciliation, mediation and other forms of
consensual dispute resolution of a kind prescribed under the
regulations.
(2) Nothing in this Act authorises an Australian-registered foreign lawyer
to appear in any court (except on the lawyer’s own behalf) or to practise
Australian law in this jurisdiction.
(3) Despite subsection (2), an Australian-registered foreign lawyer
may advise on the effect of an Australian law if—
(a) the giving of advice on Australian law is necessarily incidental to
the practice of foreign law; and
(b) the advice is expressly based on advice given on the Australian law by
an Australian legal practitioner who is not an employee of the foreign
lawyer.
(1) An Australian-registered foreign lawyer may (subject to any conditions
attaching to the foreign lawyer’s registration) practise foreign
law—
(a) on the foreign lawyer’s own account; or
(b) in partnership with 1 or more Australian-registered foreign lawyers or
1 or more Australian legal practitioners, or both, in circumstances where, if
the Australian-registered foreign lawyer were an Australian legal practitioner,
the partnership would be permitted under a law of this jurisdiction;
or
(c) as a director or employee of an incorporated legal practice or a
partner or employee of a multi-disciplinary partnership that is permitted by a
law of this jurisdiction; or
(d) as an employee of an Australian legal practitioner or law firm in
circumstances where, if the Australian-registered foreign lawyer were an
Australian legal practitioner, the employment would be permitted under a law of
this jurisdiction; or
(e) as an employee of an Australian-registered foreign lawyer.
(2) An affiliation referred to in subsection (1)(b) to (e) does not
entitle the Australian-registered foreign lawyer to practise Australian law in
this jurisdiction.
132—Application
of Australian professional ethical and practice standards
(1) An Australian-registered foreign lawyer must not engage in any conduct
in practising foreign law that would, if the conduct were engaged in by an
Australian legal practitioner in practising Australian law in this jurisdiction,
be capable of constituting professional misconduct or unsatisfactory
professional conduct.
(2) Chapter 4 applies to a person who—
(a) is an Australian-registered foreign lawyer; or
(b) was an Australian-registered foreign lawyer when the relevant conduct
allegedly occurred, but is no longer an Australian-registered foreign lawyer (in
which case Chapter 4 applies as if the person were an Australian-registered
foreign lawyer),
and so applies as if references in Chapter 4 to an Australian legal
practitioner were references to a person of that kind.
(3) The regulations may make provision with respect to the application
(with or without modification) of the provisions of Chapter 4 for the purposes
of this section.
(4) Without limiting the matters that may be taken into account in
determining whether a person should be disciplined for a contravention of
subsection (1), the following matters may be taken into account:
(a) whether the conduct of the person was consistent with the standard of
professional conduct of the legal profession in any foreign country where the
person is registered;
(b) whether the person contravened the subsection wilfully or without
reasonable excuse.
(5) Without limiting any other provision of this section or the orders
that may be made under Chapter 4 as applied by this section, the following
orders may be made under that Part as applied by this section:
(a) an order that a person’s registration under this Act as a
foreign lawyer be cancelled;
(b) an order that a person’s registration under a corresponding law
as a foreign lawyer be cancelled.
(1) An Australian-registered foreign lawyer may use only the following
designations:
(a) the lawyer’s own name;
(b) a title or business name the lawyer is authorised by law to use in a
foreign country where the lawyer is registered by a foreign registration
authority;
(c) subject to this section, the name of a foreign law practice with which
the lawyer is affiliated or associated (whether as a partner, director, employee
or otherwise);
(d) if the lawyer is a principal of any law practice in Australia whose
principals include both 1 or more Australian-registered foreign lawyers and 1 or
more Australian legal practitioners—a description of the practice that
includes reference to both Australian legal practitioners and
Australian-registered foreign lawyers (for example, “Solicitors and
locally registered foreign lawyers” or “Australian solicitors and US
attorneys”).
(2) An Australian-registered foreign lawyer who is a principal of a
foreign law practice may use the practice’s name in or in connection with
practising foreign law in this jurisdiction only if—
(a) the lawyer indicates, on the lawyer’s letterhead or any other
document used in this jurisdiction to identify the lawyer as an
overseas-registered foreign lawyer, that the foreign law practice practises only
foreign law in this jurisdiction; and
(b) the lawyer has provided the Society with acceptable evidence that the
lawyer is a principal of the foreign law practice.
(3) An Australian-registered foreign lawyer who is a principal of a
foreign law practice may use the name of the practice as referred to in this
section whether or not other principals of the practice are
Australian-registered foreign lawyers.
(4) This section does not authorise the use of a name or other designation
that contravenes any requirements of the law of this jurisdiction concerning the
use of business names or that is likely to lead to any confusion with the name
of any established domestic law practice or foreign law practice in this
jurisdiction.
134—Letterhead
and other identifying documents
(1) An Australian-registered foreign lawyer must indicate, in each public
document distributed by the lawyer in connection with the lawyer’s
practice of foreign law, the fact that the lawyer is an Australian-registered
foreign lawyer and is restricted to the practice of foreign law.
(2) Subsection (1) is satisfied if the lawyer includes in the public
document the words—
(a) “registered foreign lawyer” or “registered foreign
practitioner”; and
(b) “entitled to practise foreign law only”.
(3) An Australian-registered foreign lawyer may (but need not) include any
or all of the following on any public document:
(a) an indication of all foreign countries in which the lawyer is
registered to engage in legal practice;
(b) a description of himself or herself, and any law practice with which
the lawyer is affiliated or associated, in any of the ways designated in
section 133.
(4) In this section—
public document includes any business letter, statement of
account, invoice, business card, and promotional and advertising
material.
(1) An Australian-registered foreign lawyer is required to comply with any
advertising restrictions imposed by the Society or by law on legal practice
engaged in by an Australian legal practitioner that are relevant to the practice
of law in this jurisdiction.
(2) Without limiting subsection (1), an Australian-registered foreign
lawyer must not advertise (or use any description on the lawyer’s
letterhead or any other document used in this jurisdiction to identify the
lawyer as a lawyer) in any way that—
(a) might reasonably be regarded as—
(i) false, misleading or deceptive; or
(ii) suggesting that the Australian-registered foreign lawyer is an
Australian legal practitioner; or
(b) contravenes any requirements of the regulations.
136—Foreign
lawyer employing Australian legal practitioner
(1) An Australian-registered foreign lawyer may employ 1 or more
Australian legal practitioners.
(2) Employment of an Australian legal practitioner does not entitle an
Australian-registered foreign lawyer to practise Australian law in this
jurisdiction.
(3) An Australian legal practitioner employed by an Australian-registered
foreign lawyer may practise foreign law.
(4) An Australian legal practitioner employed by an Australian-registered
foreign lawyer must not—
(a) provide advice on Australian law to, or for use by, the
Australian-registered foreign lawyer; or
(b) otherwise practise Australian law in this jurisdiction in the course
of that employment.
(5) Subsection (4) does not apply to an Australian legal practitioner
employed by a law firm a partner of which is an Australian-registered foreign
lawyer, if at least 1 other partner is an Australian legal
practitioner.
(6) Any period of employment of an Australian legal practitioner by an
Australian-registered foreign lawyer cannot be used to satisfy a requirement
imposed by a condition on a local practising certificate to complete a period of
supervised legal practice.
137—Trust
money and trust accounts
(1) The provisions of Chapter 3 Part 2, and any other provisions of this
Act, the regulations or any legal profession rule relating to requirements for
trust money and trust accounts, apply (subject to this section) to
Australian-registered foreign lawyers in the same way as they apply to
Australian legal practitioners.
(2) In this section, a reference to money is not limited to a reference to
money in this jurisdiction.
(3) The regulations may make provision with respect to the application
(with or without modification) of the provisions of this Act relating to trust
money and trust accounts for the purposes of this section.
138—Professional
indemnity insurance
(1) An Australian-registered foreign lawyer must, at all times while
practising foreign law in this jurisdiction, comply with 1 of the
following:
(a) the foreign lawyer must have professional indemnity insurance that
conforms with the requirements for professional indemnity insurance applicable
for Australian legal practitioners in any jurisdiction;
(b) if the foreign lawyer does not have professional indemnity insurance
that complies with paragraph (a)—the foreign lawyer—
(i) must have professional indemnity insurance that covers the practise of
foreign law in this jurisdiction and that complies with the relevant
requirements of a foreign law or foreign registration authority; and
(ii) if the insurance is for less than $1.5 million per claim
(inclusive of defence costs)—must provide a disclosure statement to each
client disclosing the level of cover;
(c) if the foreign lawyer does not have professional indemnity insurance
that complies with paragraph (a) or (b)—the foreign lawyer must
provide a disclosure statement to each client stating that the lawyer does not
have complying professional indemnity insurance.
(2) A disclosure statement must be made in writing before, or as soon as
practicable after, the foreign lawyer is retained in the matter.
(3) A disclosure statement provided to a person before the foreign lawyer
is retained in a matter is taken to be provided to the person as a client for
the purposes of this section.
(4) A disclosure statement is not valid unless it is given in accordance
with, and otherwise complies with, any applicable requirements of the
regulations.
The regulations may provide that provisions of Chapter 3 Part 5 apply to
prescribed classes of Australian-registered foreign lawyers and so apply with
any modifications specified in the regulations.
Division 3—Local
registration of foreign lawyers generally
140—Local
registration of foreign lawyers
Overseas-registered foreign lawyers may be registered as foreign lawyers
under this Act.
(1) Registration as a foreign lawyer granted under this Act is in force
from the day specified in the local registration certificate until the end of
the financial year in which it is granted, unless the registration is sooner
suspended or cancelled.
(2) Registration as a foreign lawyer renewed under this Act is in force
until the end of the financial year following its previous period of currency,
unless the registration is sooner suspended or cancelled.
(3) If an application for the renewal of registration as a foreign lawyer
has not been determined by the following 1 July, the
registration—
(a) continues in force on and from that 1 July until the Society
renews or refuses to renew the registration or the holder withdraws the
application for renewal, unless the registration is sooner suspended or
cancelled; and
(b) if renewed, is taken to have been renewed on and from that
1 July.
142—Locally
registered foreign lawyer is not officer of Supreme Court
A locally registered foreign lawyer is not an officer of the Supreme
Court.
Division
4—Applications for grant or renewal of local
registration
143—Application
for grant or renewal of registration
An overseas-registered foreign lawyer may apply to the Society for the
grant or renewal of registration as a foreign lawyer under this Act.
(1) An application for the grant or renewal of registration as a foreign
lawyer must be—
(a) made in the approved form; and
(b) accompanied by the required fees.
(2) Different fees may be set according to different factors determined by
the Society.
(3) The fees are not to be greater than the maximum fees for a local
practising certificate.
(4) The Society may also require the applicant to pay any reasonable costs
and expenses incurred by the Society in considering the application, including
(for example) costs and expenses of making inquiries and obtaining information
or documents about whether the applicant meets the criteria for
registration.
(5) The fees and costs must not include any component for compulsory
membership of any professional association.
(6) The approved form may require the applicant to
disclose—
(a) matters that may affect the Society's consideration of the application
for the grant or renewal of registration; and
(b) particulars of any offences for which the applicant has been convicted
in Australia or a foreign country, whether before or after the commencement of
this section.
(7) The approved form may indicate that convictions of a particular kind
need not be disclosed for the purposes of the current application.
(8) The approved form may indicate that specified kinds of matters or
particulars previously disclosed in a particular manner need not be disclosed
for the purposes of the current application.
145—Requirements
regarding applications for grant or renewal of registration
(1) An application for grant of registration must state the
applicant’s educational and professional qualifications.
(2) An application for grant or renewal of registration
must—
(a) state that the applicant is registered to engage in legal practice by
1 or more specified foreign registration authorities in 1 or more foreign
countries; and
(b) state that the applicant is not an Australian legal practitioner;
and
(c) state that the applicant is not the subject of disciplinary
proceedings in Australia or a foreign country (including any preliminary
investigations or action that might lead to disciplinary proceedings) in his or
her capacity as—
(i) an overseas-registered foreign lawyer; or
(ii) an Australian-registered foreign lawyer; or
(iii) an Australian lawyer; and
(d) state whether the applicant has been convicted of an offence in
Australia or a foreign country, and if so—
(i) the nature of the offence; and
(ii) how long ago the offence was committed; and
(iii) the applicant's age when the offence was committed; and
(e) state that the applicant’s registration is not cancelled or
currently suspended in any place as a result of any disciplinary action in
Australia or a foreign country; and
(f) state—
(i) that the applicant is not otherwise personally prohibited from
engaging in legal practice in any place or bound by any undertaking not to carry
out the practice of law in any place; and
(ii) whether or not the applicant is subject to any special conditions in
engaging in legal practice in any place,
as a result of criminal, civil or disciplinary proceedings in Australia or
a foreign country; and
(g) specify any special conditions imposed in Australia or a foreign
country as a restriction on legal practice engaged in by the applicant or any
undertaking given by the applicant restricting the applicant’s practice of
law; and
(h) give consent to the making of inquiries of, and the exchange of
information with, any foreign registration authorities the Society considers
appropriate regarding the applicant’s activities in engaging in legal
practice in the places concerned or otherwise regarding matters relevant to the
application; and
(i) specify which of the paragraphs of section 138(1) the applicant
proposes to rely on and be accompanied by supporting proof of the relevant
matters; and
(j) provide the information or be accompanied by the other information or
documents (or both) that is specified in the application form or in material
accompanying the application form as provided by the Society.
(3) The application must (if the Society so requires) be accompanied by an
original instrument, or a copy of an original instrument, from each foreign
registration authority specified in the application that—
(a) verifies the applicant’s educational and professional
qualifications; and
(b) verifies the applicant’s registration by the authority to engage
in legal practice in the foreign country concerned, and the date of
registration; and
(c) describes anything done by the applicant in engaging in legal practice
in that foreign country of which the authority is aware and that, in the opinion
of the authority, has had or is likely to have had an adverse effect on the
applicant’s professional standing within the legal profession of that
place.
(4) The applicant must (if the Society so requires) certify in the
application that the accompanying instrument is the original or a complete and
accurate copy of the original.
(5) The Society may require the applicant to verify the statements in the
application by statutory declaration or by other proof acceptable to the
Society.
(6) If the accompanying instrument is not in English, it must be
accompanied by a translation in English that is authenticated or certified to
the satisfaction of the Society.
Division 5—Grant
or renewal of registration
146—Grant or
renewal of registration
(1) The Society must consider an application that has been made for the
grant or renewal of registration as a foreign lawyer and may—
(a) grant or refuse to grant the registration; or
(b) renew or refuse to renew the registration.
(2) The Society may, when granting or renewing registration, impose
conditions as referred to in section 166.
(3) If the Society grants or renews registration, the Society must, as
soon as practicable, give the applicant a registration certificate or a notice
of renewal.
(4) If the Society—
(a) refuses to grant or renew registration; or
(b) imposes a condition on the registration and the applicant does not
agree to the condition,
the Society must, as soon as practicable, give the applicant an information
notice.
(5) A notice of renewal may be in the form of a new registration
certificate or any other form the Society considers appropriate.
147—Requirement
to grant or renew registration if criteria satisfied
(1) The Society must grant an application for registration as a foreign
lawyer if the Society—
(a) is satisfied the applicant is registered to engage in legal practice
in 1 or more foreign countries and is not an Australian legal practitioner;
and
(b) considers an effective system exists for regulating engaging in legal
practice in 1 or more of the foreign countries; and
(c) considers the applicant is not, as a result of criminal, civil or
disciplinary proceedings in any of the foreign countries, subject
to—
(i) any special conditions in engaging in legal practice in any of the
foreign countries; or
(ii) any undertakings concerning engaging in legal practice in any of the
foreign countries,
that would make it inappropriate to register the person; and
(d) is satisfied the applicant demonstrates an intention to commence
practising foreign law in this jurisdiction within a reasonable period if
registration were to be granted,
unless the Society refuses the application under this Part.
(2) The Society must grant an application for renewal of a person’s
registration, unless the Society refuses renewal under this Part.
(3) Residence or domicile in this jurisdiction is not to be a prerequisite
for or a factor in entitlement to the grant or renewal of
registration.
148—Refusal to
grant or renew registration
(1) The Society may refuse to consider an application if it is not made in
accordance with this Act or the regulations.
(2) The Society may refuse to grant or renew registration
if—
(a) the application is not accompanied by, or does not contain, the
information required by this Part or prescribed by the regulations; or
(b) the applicant has contravened this Act or a corresponding law;
or
(c) the applicant has contravened an order of the Tribunal or a
corresponding disciplinary body, including but not limited to an order to pay
any fine or costs; or
(d) the applicant has contravened an order of a regulatory authority of
any jurisdiction to pay any fine or costs; or
(e) the applicant has failed to comply with a requirement under this Act
to pay a contribution to, or levy for, the guarantee fund; or
(f) the applicant has contravened a requirement of or made under this Act
about professional indemnity insurance; or
(g) the applicant has failed to pay any expenses of receivership payable
under this Act; or
(h) the applicant's foreign legal practice is in receivership (however
described).
(3) The Society may refuse to grant or renew registration if an authority
of another jurisdiction has under a corresponding law—
(a) refused to grant or renew registration for the applicant; or
(b) suspended or cancelled the applicant’s registration.
(4) The Society may refuse to grant registration if the Society is
satisfied that the applicant is not a fit and proper person to be registered
after considering—
(a) the nature of any offence for which the applicant has been convicted
in Australia or a foreign country, whether before or after the commencement of
this section; and
(b) how long ago the offence was committed; and
(c) the person’s age when the offence was committed.
(5) The Society may refuse to renew registration if the Society is
satisfied that the applicant is not a fit and proper person to continue to be
registered after considering—
(a) the nature of any offence for which the applicant has been convicted
in Australia or a foreign country, whether before or after the commencement of
this section, other than an offence disclosed in a previous application to the
Society; and
(b) how long ago the offence was committed; and
(c) the person’s age when the offence was committed.
(6) The Society may refuse to grant or renew registration on any ground on
which registration could be suspended or cancelled.
(7) If the Society refuses to grant or renew registration, the Society
must, as soon as practicable, give the applicant an information
notice.
(8) Nothing in this section affects the operation of Division 7.
Division
6—Amendment, suspension or cancellation of local
registration
This Division does not apply in relation to matters referred to in Division
7.
150—Grounds for
amending, suspending or cancelling registration
(1) Each of the following is a ground for amending, suspending or
cancelling a person’s registration as a foreign lawyer:
(a) the registration was obtained because of incorrect or misleading
information;
(b) the person fails to comply with a requirement of this Part;
(c) the person fails to comply with a condition imposed on the person's
registration;
(d) the person becomes the subject of disciplinary proceedings in
Australia or a foreign country (including any preliminary investigations or
action that might lead to disciplinary proceedings) in his or her capacity
as—
(i) an overseas-registered foreign lawyer; or
(ii) an Australian-registered foreign lawyer; or
(iii) an Australian lawyer;
(e) the person has been convicted of an offence in Australia or a foreign
country;
(f) the person's registration is cancelled or currently suspended in any
place as a result of any disciplinary action taken in Australia or a foreign
country;
(g) the person does not meet the requirements of
section 138;
(h) another ground the Society considers sufficient.
(2) Subsection (1) does not limit the grounds on which conditions may
be imposed on registration as a foreign lawyer under section 166.
151—Amending,
suspending or cancelling registration
(1) If the Society considers reasonable grounds exist to amend, suspend or
cancel a person’s registration as a foreign lawyer (the
action), the Society must give the person a notice
that—
(a) states the action proposed and—
(i) if the proposed action is to amend the registration in any
way—states the proposed amendment; and
(ii) if the proposed action is to suspend the registration—states
the proposed suspension period; and
(b) states the grounds for proposing to take the action; and
(c) outlines the facts and circumstances that form the basis for the
Society’s belief; and
(d) invites the person to make written representations to the Society,
within a specified time not less than 7 days and not more than
28 days, as to why the action proposed should not be taken.
(2) If, after considering all written representations made within the
specified time, the Society still believes grounds exist to take the action, the
Society may—
(a) if the notice stated the action proposed was to amend the
registration—amend the registration in the way specified or in another way
the Society considers appropriate in the light of the representations;
or
(b) if the notice stated the action proposed was to suspend the
registration for a specified period—suspend the registration for a period
no longer than the specified period; or
(c) if the notice stated the action proposed was to cancel the
registration—
(i) cancel the registration; or
(ii) suspend the registration for a period; or
(iii) amend the registration in a less onerous way the Society considers
appropriate because of the representations.
(3) The Society may, at its discretion, consider representations made
after the specified time.
(4) The Society must give the person notice of the Society’s
decision.
(5) If the Society amends, suspends or cancels the registration, the
Society must give the person an information notice.
(6) In this section—
amend registration means amend the registration under
section 166 during its currency, otherwise than at the request of the
foreign lawyer concerned.
152—Operation
of amendment, suspension or cancellation of registration
(1) This section applies if a decision is made to amend, suspend or cancel
a person’s registration under section 151.
(2) Subject to subsections (3) and (4), the amendment, suspension or
cancellation of the registration takes effect on the later of the
following:
(a) the day notice of the decision is given to the person;
(b) the day specified in the notice.
(3) If the registration is amended, suspended or cancelled because the
person has been convicted of an offence—
(a) the Society may, on the application of the person, order that the
operation of the amendment, suspension or cancellation of the registration be
stayed until—
(i) the end of the time to appeal against the conviction; and
(ii) if an appeal is made against the conviction—the appeal is
finally decided, lapses or otherwise ends; and
(b) the amendment, suspension or cancellation does not have effect during
any period in respect of which the stay is in force.
(4) If the registration is amended, suspended or cancelled because the
person has been convicted of an offence and the conviction is
quashed—
(a) the amendment or suspension ceases to have effect when the conviction
is quashed; or
(b) the cancellation ceases to have effect when the conviction is quashed
and the registration is restored as if it had merely been suspended.
153—Other ways of
amending or cancelling registration
(1) This section applies if—
(a) a locally registered foreign lawyer requests the Society to amend or
cancel the registration and the Society proposes to give effect to the request;
or
(b) the Society proposes to amend a locally registered foreign
lawyer’s registration only—
(i) for a formal or clerical reason; or
(ii) in another way that does not adversely affect the lawyer’s
interests.
(2) The Society may amend or cancel the registration as referred to in
subsection (1) by written notice given to the lawyer, and section 151
does not apply in that case.
154—Relationship
of this Division with Chapter 4
Nothing in this Division prevents a complaint from being made under Chapter
4 about a matter to which this Division relates.
Division
7—Special powers in relation to local registration—show cause
events
155—Applicant
for local registration—show cause event
(1) This section applies if—
(a) a person is applying for registration as a foreign lawyer under this
Act; and
(b) a show cause event in relation to the person happened, whether before
or after the commencement of this section, after the person first became an
overseas-registered foreign lawyer.
(2) As part of the application, the person must provide to the Society a
written statement, in accordance with the regulations—
(a) about the show cause event; and
(b) explaining why, despite the show cause event, the applicant considers
himself or herself to be a fit and proper person to be a locally registered
foreign lawyer.
(3) However, the person need not provide a statement under
subsection (2) if the person has previously provided to the Society a
statement under this section, or a notice and statement under section 156,
explaining why, despite the show cause event, the person considers himself or
herself to be a fit and proper person to be a locally registered foreign
lawyer.
156—Locally
registered foreign lawyer—show cause event
(1) This section applies to a show cause event that happens in relation to
a locally registered foreign lawyer.
(2) The locally registered foreign lawyer must provide to the Society both
of the following:
(a) within 7 days after the happening of the event—notice, in the
approved form, that the event happened;
(b) within 28 days after the happening of the event—a written
statement explaining why, despite the show cause event, the person considers
himself or herself to be a fit and proper person to be a locally registered
foreign lawyer.
(3) If a written statement is provided after the 28 days mentioned in
subsection (2)(b), the Society may accept the statement and take it into
consideration.
157—Refusal,
amendment, suspension or cancellation of local registration—failure to
show cause
(1) The Society may refuse to grant or renew, or may amend, suspend or
cancel, local registration if the applicant for registration or the locally
registered foreign lawyer—
(a) is required by section 155 or 156 to provide a written statement
relating to a matter and has failed to provide a written statement in accordance
with that requirement; or
(b) has provided a written statement in accordance with section 155
or 156 but the Society does not consider that the applicant or foreign lawyer
has shown in the statement that, despite the show cause event concerned, he or
she is a fit and proper person to be a locally registered foreign
lawyer.
(2) For the purposes of this section only, a written statement accepted by
the Society under section 156(3) is taken to have been provided in
accordance with section 156.
(3) If the Society makes a determination under this section, the Society
must, as soon as practicable, give the applicant or lawyer an information
notice.
158—Restriction
on making further applications
(1) If the Society determines under this Division to cancel a
person’s registration, the Society may also determine that the person is
not entitled to apply for registration under this Part for a specified period
(being a period not exceeding 5 years).
(2) A person in respect of whom a determination has been made under this
section, or under a provision of a corresponding law that corresponds to this
section, is not entitled to apply for registration under this Part during the
period specified in the determination.
159—Relationship
of this Division with Chapter 4 Part 2 and Chapter 6
(1) The Society has and may exercise powers under Chapter 4 Part 2, and
Chapter 6, in relation to a matter under this Division, as if the matter were
the subject of a complaint under Chapter 4 Part 2.
(2) Accordingly, the provisions of Chapter 4 Part 2 Division 1, and
Chapter 6, apply in relation to a matter under this Division, and so apply with
any necessary modifications.
(3) Nothing in this Division prevents a complaint from being made under
Chapter 4 Part 2 about a matter to which this Division relates.
Division
8—Further provisions relating to local registration
160—Immediate
suspension of registration
(1) This section applies, despite section 151 and 152, if the Society
considers it necessary in the public interest to immediately suspend a
person’s registration as a foreign lawyer.
(2) The Society may, by written notice given to the person, immediately
suspend the registration until the earlier of the following:
(a) the time at which the Society informs the person of the
Society’s decision by notice under section 151;
(b) the end of the period of 56 days after the notice is given to the
person under this section.
(3) The notice under this section must state—
(a) the reasons for the suspension; and
(b) that the person may make written representations to the Society about
the suspension.
(4) The person may make written representations to the Society about the
suspension, and the Society must consider the representations.
(5) The Society may revoke the suspension at any time, whether or not in
response to any written representations made to it by the person.
161—Surrender of
local registration certificate and cancellation of
registration
(1) A person registered as a foreign lawyer under this Part may surrender
the local registration certificate to the Society.
(2) The Society may cancel the registration.
162—Automatic
cancellation of registration on grant of practising
certificate
A person’s registration as a foreign lawyer under this Part is taken
to be cancelled if the person becomes an Australian legal
practitioner.
163—Suspension or
cancellation of registration not to affect disciplinary
processes
The suspension or cancellation of a person’s registration as a
foreign lawyer under this Part does not affect any disciplinary processes in
respect of matters arising before the suspension or cancellation.
164—Return of
local registration certificate on amendment, suspension or cancellation of
registration
(1) This section applies if a person’s registration under this Part
as a foreign lawyer is amended, suspended or cancelled.
(2) The Society may give the person a notice requiring the person to
return the local registration certificate to the Society in the way specified in
the notice within a specified period of not less than 14 days.
(3) The person must comply with the notice, unless the person has a
reasonable excuse.
Maximum penalty: $50 000.
(4) If the certificate is amended, the Society must return the certificate
to the person as soon as practicable after amending it.
Division
9—Conditions on registration
Registration as a foreign lawyer under this Part is subject
to—
(a) any conditions imposed by the Society; and
(b) any statutory conditions imposed by this or any other Act;
and
(c) any conditions imposed by or under the legal profession rules;
and
(d) any conditions imposed under Chapter 4 Part 2 or under provisions of a
corresponding law that correspond to Chapter 4 Part 2.
166—Conditions
imposed by Society
(1) The Society may impose conditions on registration as a foreign
lawyer—
(a) when it is granted or renewed; or
(b) during its currency.
(2) A condition imposed under this section may be about any of the
following:
(a) any matter in respect of which a condition could be imposed on a local
practising certificate;
(b) a matter agreed to by the foreign lawyer.
(3) The Society must not impose a condition under subsection (2)(a)
that is more onerous than a condition that would be imposed on a local
practising certificate of a local legal practitioner in the same or similar
circumstances.
(4) The Society may vary or revoke conditions imposed by it under this
section.
167—Statutory
condition regarding notification of offence
(1) It is a statutory condition of registration as a foreign lawyer that
the lawyer—
(a) must notify the Society that the lawyer has been—
(i) convicted of an offence that would have to be disclosed in relation to
an application for registration as a foreign lawyer under this Act; or
(ii) charged with a serious offence; and
(b) must do so within 7 days of the event and by a written
notice.
(2) The legal profession rules may specify the form of the notice to be
used and the person to whom or the address to which it is to be sent or
delivered.
(3) This section does not apply to an offence to which Division 7
applies.
168—Conditions
imposed by legal profession rules
The legal profession rules may—
(a) impose conditions on the registration of foreign lawyers or any class
of foreign lawyers; or
(b) authorise conditions to be imposed on the registration of foreign
lawyers or any class of foreign lawyers.
169—Compliance
with conditions
A locally registered foreign lawyer must not contravene a condition to
which the registration is subject.
Maximum penalty: $50 000.
Division
10—Interstate-registered foreign lawyers
170—Extent of
entitlement of interstate-registered foreign lawyers to practise in this
jurisdiction
(1) This Part does not authorise an interstate-registered foreign lawyer
to practise foreign law in this jurisdiction to a greater extent than a locally
registered foreign lawyer could be authorised under a local registration
certificate.
(2) Also, an interstate-registered foreign lawyer’s right to
practise foreign law in this jurisdiction—
(a) is subject to—
(i) any conditions imposed by the Society under section 171;
and
(ii) any conditions imposed by or under the legal profession rules as
referred to in that section; and
(b) is, to the greatest practicable extent and with all necessary
changes—
(i) the same as the interstate-registered foreign lawyer’s right to
practise foreign law in the lawyer’s home jurisdiction; and
(ii) subject to any condition on the interstate-registered foreign
lawyer’s right to practise foreign law in that jurisdiction.
(3) If there is an inconsistency between conditions mentioned in
subsection (2)(a) and conditions mentioned in subsection (2)(b), the
conditions that are, in the opinion of the Society, more onerous prevail to the
extent of the inconsistency.
(4) An interstate-registered foreign lawyer must not practise foreign law
in this jurisdiction in a manner not authorised by this Act or in contravention
of any condition referred to in this section.
171—Additional
conditions on practice of interstate-registered foreign
lawyers
(1) The Society may, by written notice to an interstate-registered foreign
lawyer practising foreign law in this jurisdiction, impose any condition on the
interstate-registered foreign lawyer’s practice that it may impose under
this Act in relation to a locally registered foreign lawyer.
(2) Also, an interstate-registered foreign lawyer’s right to
practise foreign law in this jurisdiction is subject to any condition imposed by
or under an applicable legal profession rule.
(3) Conditions imposed under or referred to in this section must not be
more onerous than conditions applying to locally registered foreign lawyers in
the same or similar circumstances.
172—Consideration
and investigation of applicants and locally registered foreign
lawyers
(1) To help it consider whether or not to grant, renew, suspend or cancel
registration under this Part, or impose conditions on a person’s
registration under this Part, the Society may, by notice to the applicant or
locally registered foreign lawyer, require the applicant or locally registered
foreign lawyer—
(a) to give it specified documents or information; or
(b) to co-operate with any inquiries that it considers
appropriate.
(2) A failure to comply with a notice under subsection (1) by the
date specified in the notice and in the way required by the notice is a ground
for making an adverse decision in relation to the action being considered by the
Society.
173—Register of
locally registered foreign lawyers
(1) The Society must keep a register of the names of locally registered
foreign lawyers.
(2) The register must—
(a) state the conditions (if any) imposed on a foreign lawyer’s
registration; and
(b) include other particulars prescribed by the regulations.
(3) The register may be kept in the way the Society decides.
(4) The register must be available for inspection, without charge, at a
place determined by the Society during normal business hours or at an internet
site maintained by the Society.
174—Publication
of information about locally registered foreign lawyers
The Society may publish, in circumstances that it considers appropriate,
the names of persons registered by it as foreign lawyers under this Part and any
relevant particulars concerning those persons.
(1) The Society may exempt an Australian-registered foreign lawyer or
class of Australian-registered foreign lawyers from compliance with a specified
provision of this Act or the regulations, or from compliance with a specified
rule or part of a rule that would otherwise apply to the foreign lawyer or class
of foreign lawyers.
(2) An exemption may be granted unconditionally or subject to conditions
specified in writing.
(3) The Society may revoke or vary any conditions imposed under this
section or impose new conditions.
176—Membership of
professional association
An Australian-registered foreign lawyer is not required to join (but may,
if eligible, join) any professional association.
Part 7—Community
legal centres
In this Part—
professional obligations of an Australian legal practitioner
include—
(a) duties to the Supreme Court; and
(b) obligations in connection with conflicts of interest; and
(c) duties to clients, including disclosure; and
(d) ethical rules required to be observed by the practitioner.
(1) A community legal centre does not contravene this Act merely
because—
(a) it employs, or otherwise uses the services of, Australian legal
practitioners to provide legal services; or
(b) it has a contractual relationship with a person to whom those legal
services are provided.
(2) The regulations may modify or exclude the application of a provision
of this Act to community legal centres or Australian legal practitioners
employed by community legal centres.
(3) This section has effect despite anything to the contrary in this
Act.
179—Obligations
and privileges of practitioners who are officers or
employees
(1) An Australian legal practitioner who provides legal services on behalf
of a community legal centre—
(a) is not excused from compliance with professional obligations as an
Australian legal practitioner, or any obligations as an Australian legal
practitioner under any law; and
(b) does not lose the professional privileges of an Australian legal
practitioner.
(2) The regulations may make further provision in relation to the
application of the professional obligations and professional privileges of a
practitioner for the purposes of subsection (1).
(3) The law relating to client legal privilege (or other legal
professional privilege) is not excluded or otherwise affected because an
Australian legal practitioner is providing legal services on behalf of a
community legal centre.
(4) An Australian legal practitioner who is providing legal services on
behalf of a community legal centre may, for any proper purpose, disclose a
matter to the officers of the centre (whether or not those officers are
Australian legal practitioners) and such disclosure will be taken not to affect
the operation of client legal privilege (or other legal professional
privilege).
A person must not cause or induce or attempt to cause or induce an
Australian legal practitioner who is providing legal services on behalf of a
community legal centre to contravene this Act, the regulations, the legal
profession rules or his or her professional obligations as an Australian legal
practitioner.
Maximum penalty: $50 000.
181—Application
of legal profession rules
Legal profession rules, so far as they apply to Australian legal
practitioners, also apply to Australian legal practitioners who provide legal
services on behalf of a community legal centre, unless the rules otherwise
provide.
If legal assistance has been provided to a person by a community legal
centre, the centre is subrogated to the rights of the assisted person to costs
in respect of that legal assistance.
Chapter
3—Conduct of legal practice
Part
1—Manner of legal practice
Division
1—Rules for Australian legal practitioners and registered foreign
lawyers
183—Rules for
Australian legal practitioners
The Society may make rules about legal practice in this jurisdiction
engaged in by Australian legal practitioners.
The Society may make rules about engaging in legal practice in this
jurisdiction as an Australian-registered foreign lawyer.
185—Subject-matter
of legal profession rules
(1) Legal profession rules for Australian legal practitioners, locally
registered foreign lawyers or interstate-registered foreign lawyers may make
provision about any aspect of legal practice, including standards of conduct
expected of practitioners or lawyers to whom the rules apply.
(2) The power to make rules is not limited to any matters for which this
Act specifically authorises the making of legal profession rules.
186—Public notice
of proposed legal profession rules
(1) If the Society proposes to make a legal profession rule under this
Division, it must ensure that a notice is published on the Society's internet
site and in such other publications as the Attorney-General
directs—
(a) advising where or how a copy of the proposed rule may be accessed,
obtained or inspected; and
(b) inviting comments and submissions within a specified period of not
less than 21 days from the date of first publication of the
notice.
(2) The Society must ensure that a copy of the proposed rule is given to
the Attorney-General before the notice is published.
(3) The Society must not make the rule before the end of the period
specified in the notice for making comments and submissions and must ensure that
any comments and submissions received within that period are
considered.
(4) However, the Society may make the rule before the end of the period
specified in the notice for making comments and submissions if—
(a) the Society considers that the urgency of the case warrants immediate
action; and
(b) the notice indicates that the Society is of that view and intends to
act immediately.
(5) Subsections (1) to (4) do not apply to a proposed rule that the
Attorney-General considers does not warrant publication because of its minor or
technical nature.
Division 2—Rules
for incorporated legal practices and multi-disciplinary
partnerships
(1) The Society may make legal profession rules for or with respect to the
following matters:
(a) the provision of legal services by or in connection with incorporated
legal practices or multi-disciplinary partnerships, and in particular the
provision of legal services by—
(i) officers or employees of incorporated legal practices; or
(ii) partners or employees of multi-disciplinary partnerships;
(b) the provision of services that are not legal services by or in
connection with incorporated legal practices or multi-disciplinary partnerships,
but only if the provision of those services by—
(i) officers or employees of incorporated legal practices; or
(ii) partners or employees of multi-disciplinary partnerships,
may give rise to a conflict of interest relating to the provision of legal
services.
(2) Without limiting subsection (1), legal profession rules may be
made for or with respect to professional obligations relating to legal services
provided by or in connection with incorporated legal practices or
multi-disciplinary partnerships.
(3) However, the legal profession rules cannot—
(a) regulate any services that an incorporated legal practice may provide
or conduct (other than the provision of legal services or other services that
may give rise to a conflict of interest relating to the provision of legal
services); or
(b) regulate or prohibit the conduct of officers or employees of an
incorporated legal practice (other than in connection with the provision of
legal services or other services that may give rise to a conflict of interest
relating to the provision of legal services); or
(c) regulate any services that a multi-disciplinary partnership or
partners or employees of a multi-disciplinary partnership may provide or conduct
(other than the provision of legal services or other services that may give rise
to a conflict of interest relating to the provision of legal services);
or
(d) regulate or prohibit the conduct of partners or employees of a
multi-disciplinary partnership (other than in connection with the provision of
legal services or other services that may give rise to a conflict of interest
relating to the provision of legal services).
(4) The power to make rules is not limited to any matters for which this
Act specifically authorises the making of legal profession rules.
The regulations may make provision for or with respect to the making of
legal profession rules under this Division.
Division
3—General provisions for legal profession rules
189—Binding
nature of legal profession rules
(1) Legal profession rules are binding on Australian legal practitioners
and Australian-registered foreign lawyers to whom they apply.
(2) Failure to comply with legal profession rules is capable of
constituting unsatisfactory professional conduct or professional
misconduct.
190—Legal
profession rules inconsistent with Act or regulations
Legal profession rules do not have effect to the extent that they are
inconsistent with this Act or the regulations.
The Society must ensure that the legal profession rules are available for
public inspection (including on its internet site, if any, or on any other
specified internet site), and that amendments are incorporated as soon as
possible.
Part
2—Trust money and trust accounts
(1) In this Part—
approved ADI means an ADI approved under section 233 by
the Society;
controlled money means money received or held by a law
practice in respect of which the practice has a written direction to deposit the
money in an account (other than a general trust account) over which the practice
has or will have exclusive control;
Note—
See section section 207(6), which prevents pooling of controlled
money.
controlled money account means an account maintained by a law
practice with an ADI for the holding of controlled money received by the
practice;
deposit record includes a deposit slip or duplicate deposit
slip;
external examination means an external examination under
Division 3 Subdivision 2 of a law practice’s trust records;
external examiner means a person holding an appointment as an
external examiner under Division 3 Subdivision 2;
general trust account means an account maintained by a law
practice with an approved ADI for the holding of trust money received by the
practice, other than controlled money or transit money;
investigation means an investigation under Division 3
Subdivision 1 of the affairs of a law practice;
investigator means a person holding an appointment as an
investigator under Division 3 Subdivision 1;
permanent form, in relation to a trust record, means printed
or, on request, capable of being printed, in English on paper or other
material;
power includes authority;
transit money means money received by a law practice subject
to instructions to pay or deliver it to a third party, other than an associate
of the practice;
trust account means an account maintained by a law practice
with an approved ADI to hold trust money;
trust money means money entrusted to a law practice in the
course of or in connection with the provision of legal services by the practice,
and includes—
(a) money received by the practice on account of legal costs in advance of
providing the services; and
(b) controlled money received by the practice; and
(c) transit money received by the practice; and
(d) money received by the practice, that is the subject of a power,
exercisable by the practice or an associate of the practice, to deal with the
money for or on behalf of another person;
trust records includes the following documents:
(a) receipts;
(b) cheque butts or cheque requisitions;
(c) records of authorities to withdraw by electronic funds
transfer;
(d) deposit records;
(e) trust account ADI statements;
(f) trust account receipts and payments cash books;
(g) trust ledger accounts;
(h) records of monthly trial balances;
(i) records of monthly reconciliations;
(j) trust transfer journals;
(k) statements of account as required to be furnished under the
regulations;
(l) registers required to be kept under the regulations;
(m) monthly statements required to be kept under the
regulations;
(n) files relating to trust transactions or bills of costs or
both;
(o) written directions, authorities or other documents required to be kept
under this Act or the regulations;
(p) supporting information required to be kept under the regulations in
relation to powers to deal with trust money.
(2) A reference in this Part to a law practice’s trust account or
trust records includes a reference to an associate’s trust account or
trust records.
(3) A reference in this Part to a power given to a law practice or an
associate of the practice to deal with money for or on behalf of another person
is a reference to a power given to the practice or associate that is exercisable
by—
(a) the practice alone; or
(b) an associate of the practice alone (otherwise than in a private and
personal capacity); or
(c) the practice or an associate of the practice jointly or severally, or
jointly and severally, with either or both of the following:
(i) 1 or more associates of the practice;
(ii) the person, or 1 or more nominees of the person, for whom or on whose
behalf the money may or is to be dealt with under the power.
193—Money granted
or provided under contract to community legal centre
Money granted, or provided under contract, to a community legal centre to
enable the centre to deliver legal services to the community or a section of the
community is not trust money or controlled money for the purposes of this
Act.
194—Money
involved in financial services or investments
(1) Money that is entrusted to or held by a law practice for or in
connection with—
(a) a financial service provided by the practice or an associate of the
practice in circumstances where the practice or associate is required to hold an
Australian financial services licence covering the provision of the service
(whether or not such a licence is held at any relevant time); or
(b) a financial service provided by the practice or an associate of the
practice in circumstances where the practice or associate provides the service
as a representative of another person who carries on a financial services
business (whether or not the practice or associate is an authorised
representative at any relevant time),
is not trust money for the purposes of this Act.
(2) Without limiting the operation of subsection (1), money that is
entrusted to or held by a law practice for or in connection
with—
(a) a managed investment scheme; or
(b) mortgage financing,
undertaken by the practice is not trust money for the purposes of this
Act.
(3) Without limiting the operation of subsections (1) and (2), money
that is entrusted to or held by a law practice for investment purposes, whether
on its own account or as agent, is not trust money for the purposes of this Act,
unless—
(a) the money was entrusted to or held by the practice—
(i) in the ordinary course of legal practice; and
(ii) primarily in connection with the provision of legal services to or at
the direction of the client; and
(b) the investment is or is to be made—
(i) in the ordinary course of legal practice; and
(ii) for the ancillary purpose of maintaining or enhancing the value of
the money pending completion of the matter or further stages of the matter or
pending payment or delivery of the money or property to or at the direction of
the client.
(4) In this section—
Australian financial services, authorised
representative, financial service and financial
services business have the same meaning as in Chapter 7 of the
Corporations Act 2001 of the Commonwealth.
195—Determinations
about status of money
(1) This section applies to money received by a law practice if the
Society considers that there is doubt or a dispute as to whether the money is
trust money.
(2) The Society may determine that the money is or is not trust
money.
(3) The Society may revoke or modify a determination under this
section.
(4) While a determination under this section is in force that money is
trust money, the money is taken to be trust money for the purposes of this
Act.
(5) While a determination under this section is in force that money is not
trust money, the money is taken not to be trust money for the purposes of this
Act.
(6) This section has effect subject to a decision of a court made in
relation to the money concerned.
196—Application
of Part to law practices and trust money
(1) This Part applies to the following law practices in respect of trust
money received by them in this jurisdiction:
(a) a law practice that has an office in this jurisdiction, whether or not
the practice has an office in another jurisdiction;
(b) a law practice that does not have an office in any jurisdiction at
all.
Note—
It is intended that a law practice that receives trust money in this
jurisdiction, that does not have an office in this jurisdiction, but that has an
office in another jurisdiction, must deal with the money in accordance with the
corresponding law of the other jurisdiction.
(2) This Part applies to the following law practices in respect of trust
money received by them in another jurisdiction:
(a) a law practice that has an office in this jurisdiction and in no other
jurisdiction;
(b) a law practice that has an office in this jurisdiction and in 1 or
more other jurisdictions but not in the jurisdiction in which the trust money
was received, unless the money is dealt with in accordance with the
corresponding law of another jurisdiction.
(3) However, this Part does not apply to—
(a) prescribed law practices or classes of law practices; or
(b) prescribed law practices, or classes of law practices, in prescribed
circumstances; or
(c) prescribed kinds of trust money; or
(d) prescribed kinds of trust money in prescribed circumstances.
(4) A reference in this section to having an office in a jurisdiction is a
reference to having, or engaging in legal practice from, an office or business
address in the jurisdiction.
Note—
Section 137 applies this Part to Australian-registered foreign
lawyers.
197—Protocols for
determining where trust money is received
(1) The Society may enter into arrangements (referred to in this Part as
protocols) with corresponding authorities about any or all of the
following:
(a) determining the jurisdiction where a law practice receives trust
money;
(b) sharing information about whether, and (if so) how, trust money is
being dealt with under this Act or a corresponding law.
(2) For the purposes of this Act, to the extent that the protocols are
relevant, the jurisdiction where a law practice receives trust money is to be
determined in accordance with the protocols.
(3) The Society may enter into arrangements that amend, revoke or replace
a protocol.
(1) For the purposes of this Act, a law practice receives money
when—
(a) the practice obtains possession or control of it directly;
or
(b) the practice obtains possession or control of it indirectly as a
result of its delivery to an associate of the practice; or
(c) the practice, or an associate of the practice (otherwise than in a
private and personal capacity), is given a power to deal with the money for or
on behalf of another person.
(2) For the purposes of this Act, a law practice or associate is taken to
have received money if the money is available to the practice or associate by
means of an instrument or other way of authorising an ADI to credit or debit an
amount to an account with the ADI, including, for example, an electronic funds
transfer, credit card transaction or telegraphic transfer.
199—Discharge by
legal practitioner associate of obligations of law practice
(1) The following actions, if taken by a legal practitioner associate of a
law practice on behalf of the practice in relation to trust money received by
the practice, discharge the corresponding obligations of the practice in
relation to the money:
(a) the establishment of a trust account;
(b) the maintenance of a trust account;
(c) the payment of trust money into and out of a trust account and other
dealings with trust money;
(d) the maintenance of trust records;
(e) engaging an external examiner to examine trust records;
(f) the payment of an amount into an ADI account as referred to in
section 236;
(g) the obtaining of a Supreme Court approval in relation to trust money
or a trust account;
(h) an action of a kind prescribed by the regulations.
(2) If the legal practitioner associate maintains a trust account in
relation to trust money received by the law practice, the provisions of this
Part and the regulations made for the purposes of this Part apply to the
associate in the same way as they apply to a law practice.
(3) Subsection (1) does not apply to the extent that the associate is
prevented by the regulations from taking any action referred to in that
subsection.
200—Liability of
principals of law practice
(1) A provision of this Part or the regulations made for the purposes of
this Part expressed as imposing an obligation on a law practice imposes the same
obligation on the principals of the law practice jointly and severally, but
discharge of the practice’s obligation also discharges the corresponding
obligation imposed on the principals.
(2) References in this Part and the regulations made for the purposes of
this Part to a law practice include references to the principals of the law
practice.
201—Former
practices, principals and associates
(1) This Part applies in relation to former law practices and former
principals and associates of law practices in relation to conduct occurring
while they were respectively law practices, principals and associates in the
same way as it applies to law practices, principals and associates, and so
applies with any necessary modifications.
(2) For the purposes of this Part, a law practice that is a sole
practitioner does not cease to be a law practice solely because of the
cancellation or suspension of the practitioner's practising
certificate.
202—Barristers
not to receive trust money
A barrister is not, in the course of practising as a barrister, to receive
trust money.
Division
2—Trust accounts and trust money
203—Maintenance
of general trust account
(1) A law practice that receives trust money to which this Part applies
must maintain a general trust account in this jurisdiction.
Maximum penalty: $50 000.
(2) A law practice that is required to maintain a general trust account in
this jurisdiction must establish and maintain the account in accordance with the
regulations.
Maximum penalty: $50 000.
(3) Subsection (1) does not apply to a law practice in respect of any
period during which the practice receives or holds only either or both of the
following:
(a) controlled money;
(b) transit money received in a form other than cash.
(4) Subject to any requirements of the regulations, a requirement of this
section for a law practice to maintain, or establish and maintain, a general
trust account in this jurisdiction does not prevent the practice from
maintaining, or establishing and maintaining, more than 1 general trust account
in this jurisdiction, whether during the same period or during different
periods.
(5) Without limiting the other provisions of this section, the regulations
may provide that a law practice must not close a general trust account except as
permitted by the regulations, either generally or in any prescribed
circumstances.
204—Certain trust
money to be deposited in general trust account
(1) Subject to section 211, as soon as practicable after receiving
trust money, a law practice must deposit the money in a general trust account of
the practice unless—
(a) the practice has a written direction by an appropriate person to deal
with it otherwise than by depositing it in the account; or
(b) the money is controlled money; or
(c) the money is transit money; or
(d) the money is the subject of a power given to the practice or an
associate of the practice to deal with the money for or on behalf of another
person.
Maximum penalty: $50 000.
(2) Subject to section 211, a law practice that has received money
that is the subject of a written direction mentioned in subsection (1)(a)
must deal with the money in accordance with the direction—
(a) within the period (if any) specified in the direction; or
(b) subject to paragraph (a), as soon as practicable after it is
received.
Maximum penalty: $50 000.
(3) The law practice must keep a written direction mentioned in
subsection (1)(a) for the period prescribed by the regulations.
Maximum penalty: $50 000.
(4) A person is an appropriate person for the purposes of
this section if the person is legally entitled to give the law practice
directions in respect of dealings with the trust money.
205—Holding,
disbursing and accounting for trust money
(1) A law practice must—
(a) hold trust money deposited in a general trust account of the practice
exclusively for the person on whose behalf it is received; and
(b) disburse the trust money only in accordance with a direction given by
the person.
Maximum penalty: $50 000.
(2) Subsection (1) applies subject to an order of a court of
competent jurisdiction or as authorised by law.
(3) The law practice must account for the trust money as required by the
regulations.
Maximum penalty: $50 000.
206—Manner of
withdrawal of trust money from general trust account
(1) A law practice must not withdraw trust money from a general trust
account otherwise than by cheque or electronic funds transfer.
Maximum penalty: $50 000.
(2) Without limiting subsection (1), the following are specifically
prohibited:
(a) cash withdrawals;
(b) ATM withdrawals or transfers;
(c) telephone banking withdrawals or transfers.
(3) The regulations may make provision for or with respect to withdrawals
by cheque or electronic funds transfer.
(4) This section has effect despite anything to the contrary in any
directions given to the law practice concerned, even if the directions are given
by a person who is otherwise legally entitled to give the law practice
directions in respect of dealings with the trust money.
(1) As soon as practicable after receiving controlled money, a law
practice must deposit the money in the account specified in the written
direction relating to the money.
Maximum penalty: $50 000.
(2) The law practice must hold controlled money deposited in a controlled
money account in accordance with subsection (1) exclusively for the person
on whose behalf it was received.
Maximum penalty: $50 000.
(3) The law practice that holds controlled money deposited in a controlled
money account in accordance with subsection (1) must not disburse the money
except in accordance with—
(a) the written direction mentioned in that subsection; or
(b) a later written direction given by or on behalf of the person on whose
behalf the money was received.
Maximum penalty: $50 000.
(4) The law practice must maintain the controlled money account, and
account for the controlled money, as required by the regulations.
Maximum penalty: $50 000.
(5) The law practice must keep a written direction mentioned in this
section for the period prescribed by the regulations.
Maximum penalty: $50 000.
(6) The law practice must ensure that the controlled money account is used
for the deposit of controlled money received on behalf of the person referred to
in subsection (2), and not for the deposit of controlled money received on
behalf of any other person, except to the extent that the regulations otherwise
permit.
Maximum penalty: $50 000.
(7) Subsection (3) applies subject to an order of a court of
competent jurisdiction or as authorised by law.
208—Manner of
withdrawal of controlled money from controlled money
account
(1) A law practice must not withdraw controlled money from a controlled
money account otherwise than by cheque or electronic funds transfer.
Maximum penalty: $50 000.
(2) Without limiting subsection (1), the following are specifically
prohibited:
(a) cash withdrawals;
(b) ATM withdrawals or transfers;
(c) telephone banking withdrawals or transfers.
(3) The regulations may make provision of or with respect to withdrawals
by cheque or electronic funds transfer.
(4) This section has effect despite anything to the contrary in any
directions given to the law practice concerned, even if the directions are given
by a person who is otherwise legally entitled to give the law practice
directions in respect of dealings with the controlled money.
(1) Subject to section 211, a law practice that has received transit
money must pay or deliver the money as required by the instructions relating to
the money—
(a) within the period (if any) specified in the instructions; or
(b) subject to paragraph (a), as soon as practicable after it is
received.
Maximum penalty: $50 000.
(2) The law practice must account for the money as required by the
regulations.
Maximum penalty: $50 000.
210—Trust money
subject to specific powers
(1) Subject to section 211, a law practice must ensure that trust
money that is the subject of a power given to the practice or an associate of
the practice is dealt with by the practice or associate only in accordance with
the power relating to the money.
Maximum penalty: $50 000.
(2) The law practice must account for the money in the way prescribed by
the regulations.
Maximum penalty: $2 500.
211—Trust
money received in form of cash
(1) General trust money
A law practice must deposit general trust money received in the form of
cash in a general trust account of the practice.
Maximum penalty: $50 000.
(2) If the law practice has a written direction by an appropriate person
to deal with general trust money received in the form of cash otherwise than by
first depositing it in a general trust account of the practice—
(a) the money must nevertheless be deposited in the general trust account
of the practice in accordance with subsection (1); and
(b) the money is thereafter to be dealt with in accordance with any
applicable terms of the direction so far as those terms are not inconsistent
with paragraph (a).
(3) Controlled money
Controlled money received in the form of cash must be deposited in a
controlled money account in accordance with section 207.
(4) Transit money
A law practice must deposit transit money received in the form of cash in a
general trust account of the practice before the money is otherwise dealt with
in accordance with the instructions relating to the money.
Maximum penalty: $50 000.
(5) Trust money subject of a power
A law practice must deposit trust money that is received in the form of
cash and is the subject of a power in a general trust account (or a controlled
money account in the case of controlled money) of the practice before the money
is otherwise dealt with in accordance with the power.
Maximum penalty: $50 000.
(6) Paramount operation of this section
This section has effect despite anything to the contrary in any relevant
direction, instruction or power.
(7) Definitions
In this section—
appropriate person, in relation to trust money, means a
person who is legally entitled to give the law practice concerned directions in
respect of dealings with the money;
general trust money means trust money, other
than—
(a) controlled money; and
(b) transit money; and
(c) money that is the subject of a power.
(1) Money standing to the credit of a trust account maintained by a law
practice is not available for the payment of debts of the practice or any of its
associates.
(2) Money standing to the credit of a trust account maintained by a law
practice is not liable to be attached or taken in execution for satisfying a
judgment against the practice or any of its associates.
(3) This section does not apply to money to which a law practice or
associate is entitled.
(1) A law practice must not, otherwise than as permitted by
subsection (2), mix trust money with other money.
Maximum penalty: $50 000.
(2) A law practice is permitted to mix trust money with other money to the
extent only that is authorised by the Society and in accordance with any
conditions imposed by the Society in relation to the authorisation.
214—Dealing with
trust money—legal costs and unclaimed money
(1) A law practice may do any of the following, in relation to trust money
held in a general trust account or controlled money account of the practice for
a person:
(a) exercise a lien, including a general retaining lien, for the amount of
legal costs reasonably due and owing by the person to the practice;
(b) withdraw money for payment to the practice’s account for legal
costs owing to the practice if the relevant procedures or requirements
prescribed by this Act and the regulations are complied with;
(c) after deducting any legal costs properly owing to the practice, deal
with the balance as unclaimed money under the Unclaimed Moneys
Act 1891.
(2) Subsection (1) applies despite any other provision of this Part
but has effect subject to Part 3.
215—Deficiency
in trust account
(1) An Australian legal practitioner is guilty of an offence if he or she,
without reasonable excuse, causes—
(a) a deficiency in any trust account or trust ledger account;
or
(b) a failure to pay or deliver any trust money.
Maximum penalty: $50 000.
(2) A reference in subsection (1) to an account includes a reference
to an account of the practitioner or of the law practice of which the
practitioner is an associate.
(3) In this section—
cause includes be responsible for;
deficiency in a trust account or trust ledger includes the
non-inclusion or exclusion of the whole or any part of an amount that is
required to be included in the account.
216—Reporting
certain irregularities and suspected irregularities
(1) As soon as practicable after a legal practitioner associate of a law
practice becomes aware that there is an irregularity in any of the
practice’s trust accounts or trust ledger accounts, the associate must
give written notice of the irregularity to—
(a) the Society; and
(b) if a corresponding authority is responsible for the regulation of the
accounts concerned—the corresponding authority.
Maximum penalty: $50 000.
(2) If an Australian legal practitioner believes on reasonable grounds
that there is an irregularity in connection with the receipt, recording or
disbursement of any trust money received by a law practice of which the
practitioner is not a legal practitioner associate, the practitioner must, as
soon as practicable after forming the belief, give written notice of it
to—
(a) the Society; and
(b) if a corresponding authority is responsible for the regulation of the
accounts relating to the trust money concerned—the corresponding
authority.
Maximum penalty: $50 000.
(3) The validity of a requirement imposed on an Australian legal
practitioner under subsection (1) or (2) is not affected, and the
practitioner is not excused from complying with subsection (1) or (2), on
the ground that giving the notice may tend to incriminate the
practitioner.
(4) An Australian legal practitioner is not liable for any loss or damage
suffered by another person as a result of the practitioner’s compliance
with subsection (1) or (2).
(1) A law practice must keep in permanent form trust records in relation
to trust money received by the practice.
Maximum penalty: $50 000.
(2) The law practice must keep the trust records—
(a) in accordance with the regulations; and
(b) in a way that at all times discloses the true position in relation to
trust money received for or on behalf of any person; and
(c) in a way that enables the trust records to be conveniently and
properly investigated or externally examined; and
(d) for a period determined in accordance with the regulations.
Maximum penalty: $50 000.
(1) A law practice must not knowingly receive money or record receipt of
money in the practice’s trust records under a false name.
Maximum penalty: $50 000.
(2) If a person on whose behalf trust money is received by a law practice
is commonly known by more than 1 name, the practice must ensure that the
practice’s trust records record all names by which the person is
known.
Maximum penalty: $50 000.
219—Interest
payable if law practice fails to deposit trust money
(1) A law practice that fails to deposit trust money in a trust account as
required by this Division is liable to pay the Society interest on the amount of
the trust money at the prescribed rate for the period of the default.
(2) The Society may, for proper reasons, remit interest payable under
subsection (1) wholly or in part.
(3) Any interest received or recovered by the Society under
subsection (1) must be paid into the statutory interest account.
Division
3—Investigations and external examinations
220—Appointment
of investigators
(1) The Society may, in writing, appoint a suitably qualified person to
investigate the affairs or specified affairs of a law practice.
(2) The appointment may be made generally or for the law practice
specified in the instrument of appointment.
(1) The instrument of appointment may authorise the investigator to
conduct either or both of the following:
(a) routine investigations on a regular or other basis;
(b) investigations in relation to particular allegations or suspicions
regarding trust money, trust property, trust accounts or any other aspect of the
affairs of the law practice.
(2) The principal purposes of an investigation are to ascertain whether
the law practice has complied with or is complying with the requirements of this
Part and to detect and prevent fraud or defalcation, but this subsection does
not limit the scope of the investigation or the powers of the
investigator.
Chapter 6 applies to an investigation under this Subdivision.
(1) As soon as practicable after completing the investigation, the
investigator must give a written report of the investigation to the
Society.
(2) The investigator must not disclose information in the report or
acquired in carrying out the investigation except—
(a) to the practice that or person who is a subject of the investigation
or report; or
(b) as is necessary for properly conducting the investigation and making
the report of the investigation; or
(c) as provided in section 466.
Maximum penalty: $50 000.
224—When costs of
investigation are debt
(1) If—
(a) an investigator states in his or her report of an investigation that
there is evidence that a breach of this Act or the regulations has been
committed or evidence that a default (within the meaning of Chapter 3 Part 5)
has occurred in relation to the law practice whose affairs are under
investigation; and
(b) the Society is satisfied that the breach or default is wilful or of a
substantial nature,
the Society may decide that the whole or part of the costs of carrying out
the investigation is payable to the Society and may specify the amount
payable.
(2) The amount specified by the Society is a debt payable to the Society
by the law practice whose affairs are under investigation.
(3) The Society must, before seeking to recover the amount payable, give
the law practice an information notice about the Society’s decision and
the amount specified as being payable.
Subdivision
2—External examinations
225—Designation
of external examiners
(1) The Society may, in writing, designate persons (referred to in this
Subdivision as designated persons) as being eligible to be
appointed as external examiners.
(2) Only designated persons may be appointed as external
examiners.
(3) An employee or agent of the Society may be a designated
person.
(4) The Society may revoke a person’s designation under this
section.
226—Trust records
to be externally examined
(1) A law practice must at least once in each financial year have its
trust records externally examined by an external examiner appointed in
accordance with the regulations.
Maximum penalty: $50 000.
(2) The Society may appoint an external examiner to examine a law
practice's trust records if the Society is not satisfied—
(a) that the practice has had its trust records externally examined as
required by this section; or
(b) that an external examination of the practice's trust records has been
carried out in accordance with the regulations.
(3) Without affecting the generality of section 246, this section has
effect subject to any exemptions provided by or given under the regulations from
the requirement to have trust records examined as otherwise required by this
section.
227—Examination
of affairs in connection with examination of trust records
(1) An external examiner appointed to examine a law practice’s trust
records may examine the affairs of the practice for the purposes of and in
connection with an examination of the trust records.
(2) If the law practice is an incorporated legal practice or a
multi-disciplinary partnership, the reference in subsection (1) to the
affairs of the law practice extends to the affairs of the incorporated legal
practice or multi-disciplinary partnership or of an associate, so far as they
are relevant to trust money, trust records and associated matters.
(3) A reference in this Subdivision and Chapter 6 to trust
records includes a reference to the affairs of a law practice that may
be examined under this section for the purposes of and in connection with an
examination of the practice’s trust records.
228—Designation
and appointment of associates as external examiners
(1) The Society may designate an associate of a law practice under this
Subdivision only if the Society is satisfied that it is appropriate to do
so.
(2) However, an associate of a law practice cannot be appointed as an
external examiner under this Subdivision to examine the practice’s trust
records.
229—Final
examination of trust records
(1) This section applies if a law practice—
(a) ceases to be authorised to receive trust money; or
(b) ceases to engage in legal practice in this jurisdiction.
(2) The law practice must appoint an external examiner to examine the
practice’s trust records—
(a) in respect of the period since an external examination was last
conducted; and
(b) in respect of each period thereafter, comprising a completed period of
12 months or any remaining partly completed period, during which the
practice continued to hold trust money.
Maximum penalty: $50 000.
(3) The law practice must lodge with the Society—
(a) a report of each examination under subsection (2) within
60 days after the end of the period to which the examination relates;
and
(b) a statutory declaration in a form approved by the Attorney-General or
the Society within 60 days of ceasing to hold trust money.
Maximum penalty: $50 000.
(4) If an Australian legal practitioner who is a principal or an associate
of a law practice dies, the practitioner’s legal personal representative
must assist the law practice to comply with this section as if the
representative were the practitioner.
(5) Nothing in this section affects any other requirements under this
Part.
(1) Chapter 6 applies to an external examination under this
Subdivision.
(2) Subject to Chapter 6, an external examination of trust records is to
be carried out in accordance with the regulations.
(3) Without limiting subsection (2), the regulations may provide for
the following:
(a) the standards to be adopted and the procedures to be followed by
external examiners;
(b) the form and content of an external examiner's report on an
examination.
231—External
examiner's report
(1) As soon as practicable after completing an external examination, an
external examiner must give a written report of the examination to the
Society.
(2) The examiner must not disclose information in the report or acquired
in carrying out the examination, unless permitted to do so under
subsection (3) or under section 466.
Maximum penalty: $50 000.
(3) The examiner may disclose information in the report or acquired in
carrying out the examination—
(a) as is necessary for properly conducting the examination and making the
report of the examination; or
(b) to an investigator or a supervisor, manager or receiver appointed
under this Act; or
(c) to the law practice concerned or an associate of the law
practice.
232—Law practice
liable for costs of examination
(1) A law practice whose trust accounts have been externally examined must
pay the costs of the examination.
(2) If the Society appointed the external examiner to carry out the
examination, the Society may specify the amount payable as the costs of the
examination, and the specified amount is a debt payable to it by the law
practice.
(3) The Society must, before seeking to recover the amount payable, give
the law practice an information notice about the Society’s decision and
the amount specified as being payable.
Division
4—Provisions relating to ADIs and statutory deposits
(1) Subject to subsection (2), the Society may approve ADIs at which
trust accounts to hold trust money may be maintained.
(2) The Society may not approve an ADI unless the ADI is prepared to pay
interest on trust accounts at a rate equal to or above the rate determined by
the Society.
(3) The Society may approve an ADI for the purposes of maintaining the
combined trust account under section 236 if satisfied that the ADI is
prepared to pay a reasonable rate of interest on money deposited in the combined
trust account.
(4) The Society may impose conditions, of the kinds prescribed by the
regulations, on and under this section, when the approval is given or during the
currency of the approval, and may amend or revoke any conditions
imposed.
(5) The Society may revoke an approval given under this section.
(6) If the Society revokes the approval of an ADI under
subsection (5), the combined trust account, so far as it was kept at that
ADI, must be transferred to an ADI that continues as an approved ADI.
234—ADI not
subject to certain obligations and liabilities
(1) An ADI at which a trust account is maintained by a law
practice—
(a) is not under any obligation to control or supervise transactions in
relation to the account or to see to the application of money disbursed from the
account; and
(b) does not have, in relation to any liability of the law practice to the
ADI, any recourse or right (whether by way of set-off counterclaim, charge or
otherwise) against money in the account.
(2) Subsection (1) does not relieve an ADI from any liability to
which it is subject apart from this Act.
235—Reports,
records and information
(1) An ADI at which a trust account is maintained must report any
deficiency in the account to the Society as soon as practicable after becoming
aware of the deficiency.
Maximum penalty: $50 000.
(2) An ADI at which a trust account is maintained must report a suspected
offence in relation to the trust account to the Society as soon as practicable
after forming the suspicion.
Maximum penalty: $50 000.
(3) An ADI must furnish to the Society reports about trust accounts in
accordance with the regulations.
Maximum penalty: $50 000.
(4) An ADI at which a trust account is maintained must without
charge—
(a) produce for inspection or copying by an investigator or external
examiner any records relating to the trust account or trust money deposited in
the trust account; and
(b) provide the investigator or external examiner with full details of any
transactions relating to the trust account or trust money,
on demand by the investigator or the external examiner and on production to
the ADI of evidence of the appointment of the investigator or the external
examiner in relation to the law practice concerned.
Maximum penalty: $50 000.
(5) Subsections (1) to (4) apply despite any rule of legislation or
duty of confidence to the contrary.
(6) An ADI or an officer or employee of an ADI is not liable to any action
for any loss or damage suffered by another person as a result
of—
(a) reporting a deficiency in accordance with subsection (1);
or
(b) making or furnishing a report in accordance with subsection (2)
or (3); or
(c) producing records or providing details in accordance with
subsection (4).
Subdivision
2—The combined trust account
236—Duty
to deposit trust money in combined trust account
(1) A law practice must, within 14 days after 31 May, and within
14 days after 30 November, in each year, out of trust money held in
the practice's general trust account, deposit the appropriate amount in the
combined trust account.
(2) The appropriate amount is the amount (if any) necessary to ensure that
the following formula is satisfied:
Where—
A1 is the
amount held on the practice's behalf in the combined trust account
A2 is the
lowest aggregate (determined by reference to the relevant ADI statements) of the
amount held in the practice's general trust account and the amount (if any)
simultaneously held in the combined trust account on the practice's behalf
during the period of 6 months ending on 31 May or 30 November (as the
case requires).
(3) The combined trust account is a composite account consisting of
separate accounts established by the Society at each approved ADI.
(4) If a law practice maintains 2 or more general trust accounts, those
accounts will, for the purposes of this section, be taken to be a single trust
account the balance of which is the aggregate of the respective balances of each
of those trust accounts.
(5) A law practice—
(a) may withhold money from deposit under subsection (1)
if—
(i) the money is necessary to meet an immediate claim on the practice's
general trust account or to establish or maintain a reasonable balance in the
general trust account sufficient to meet claims reasonably expected in the
ordinary course of legal practice in the near future; and
(ii) the practice has, on or before the day on which a deposit under
subsection (1) is required to be made, given written notice to the Society
accordingly; and
(b) is not obliged to deposit money under subsection (1) in relation
to a particular period of 6 months if the lowest aggregate referred to in
subsection (2) was, during that period, less than $1 000 (or some
other sum fixed by regulation for the purposes of this subsection).
(6) If the Council has reasonable cause to suspect that a law practice has
not complied with the obligations of this section, it may, by notice in writing
served on the practice, require the practice to attend before it and to produce
evidence of the trust money received by the practice, the amount from time to
time standing to the credit of the general trust account, and such other
relevant matters as may be specified in the notice.
(7) If a law practice establishes a general trust account and has, at the
time of establishing the account, no other trust account, the balance of the
general trust account during the first month after its establishment is, for the
purposes of this section, to be ignored.
(8) A law practice that fails to make the appropriate deposit by the last
date for payment is liable to pay the Society, for the credit of the statutory
interest account, interest on the outstanding amount at the prescribed rate for
the period of the default but, if the appropriate deposit is made within
7 days after that date, no liability for interest arises under this
subsection.
(9) A law practice may withdraw money held on the practice's account in
the combined trust account if, and only if, the withdrawal is necessary to meet
an immediate claim on the practice's general trust account or to establish a
reasonable balance in the general trust account sufficient to meet claims
reasonably expected in the ordinary course of legal practice in the near
future.
(10) If a law practice withholds money from deposit under
subsection (5)(a) or withdraws money under subsection (9), the
external examiner for the law practice must, in the external examiner's report
for the relevant year, express an opinion on whether the withholding or
withdrawal was justified, and if the amount exceeds the amount that could, in
the external examiner's opinion, be reasonably justified, on the amount of the
excess (but before the external examiner includes a statement expressing such an
opinion in the report, the external examiner must allow the practice a
reasonable opportunity to comment on the proposed statement and may make any
modification to the proposed statement that the external examiner considers
justified in the light of the practice's comments).
(11) If the withholding or withdrawal of money is not justified, or
exceeds an amount that could be reasonably justified, the law practice is liable
to pay to the Society, for the credit of the statutory interest account,
interest on the amount withheld or withdrawn, or the amount of the excess, (as
the case requires), from the date of the withholding or withdrawal until the
amount on deposit in the combined trust account is restored to the level
required by this section.
(12) The Society may, for any proper reason, remit interest payable under
subsection (8) or (11) wholly or in part.
(1) No action at law or in equity lies against the Society or a law
practice for any action done in compliance with this Subdivision.
(2) This Subdivision does not affect the interest or claim of a person
beneficially entitled to trust money and any such interest or claim may be
asserted and enforced as effectually as if this Subdivision had not been
enacted.
Subdivision
3—The statutory interest account
238—Statutory
interest account
(1) The Society must continue to maintain the statutory interest
account.
(2) The Society must pay into the statutory interest account all interest
earned from deposits in the combined trust account.
(3) The Society may invest any money contained in the statutory interest
account in any manner in which trustees are authorised by statute to invest
trust funds and must pay the income derived from any such investment into the
statutory interest account.
(4) The amount held in the statutory interest account may be applied to
defraying any management fee or other expenditure relating to the management or
administration of the combined trust account and the statutory interest
account.
(5) After making such provision for defraying expenditure under
subsection (4) as the Society thinks fit, the Society must pay the balance
of the money comprised in the statutory interest account (excepting money
advanced to the statutory interest account for the purpose of investment), as to
five-eighths to the Legal Services Commission, and, subject to
subsection (6), as to three-eighths, to the guarantee fund.
(6) If on 30 June in any year the amount of the guarantee fund (being the
audited net assets, including investments, of the fund) exceeds an amount
calculated by multiplying $7 500 by the number of local legal practitioners
on that date, the Society must hold the excess in the statutory interest
account, to be paid or applied by the Society to the Legal Services Commission,
or for any purpose approved by the Attorney-General and the Society.
239—Payment of
interest accruing on trust accounts
(1) Interest accruing on a trust account (other than a separate trust
account maintained by a local legal practitioner for the exclusive benefit of a
particular client) must be paid by the ADI concerned to the Society.
(2) Subject to subsection (3), the Society must deal with money
received by it pursuant to subsection (1) as follows:
(a) 50 per cent of the money must be paid to 1 or more of the Legal
Services Commission or 1 or more community legal centres in such shares and
subject to such conditions as the Attorney-General directs; and
(b) 40 per cent of the money must be paid to the guarantee fund;
and
(c) 10 per cent of the money must be paid to a person nominated by the
Attorney-General subject to such conditions as the Attorney-General
directs.
(3) The Attorney-General may, from time to time, vary or revoke the
conditions subject to which money is paid under subsection (2) and may,
from time to time, with the approval of the Society, vary the portion of the
money allocated for payment pursuant to each paragraph of that
subsection.
(4) The Attorney-General may, from time to time, without the approval of
the Society, vary the shares in which money allocated for payment pursuant to
subsection (2)(a) is distributed under that paragraph.
(5) Money paid to a person pursuant to subsection (2)(c) must be
applied in, or in relation to, the provision of legal services to the community,
or to a section of the community, or must be applied for the purposes of legal
research and education.
(1) The Society must keep proper accounts of all money received,
disbursed, invested and otherwise dealt with under Subdivision 2 and Subdivision
3 and Part 5.
(2) The Society must cause the combined trust account, the statutory
interest account, and the guarantee fund to be audited at least once in every
calendar year by an accountant approved by the Attorney-General and must send
copies of the duly audited accounts to the Attorney-General.
241—Restrictions
on receipt of trust money
(1) A law practice (other than an incorporated legal practice or a
community legal centre) must not receive trust money unless a principal holds an
Australian practising certificate authorising the receipt of trust
money.
Maximum penalty: $50 000.
(2) An incorporated legal practice must not receive trust money
unless—
(a) at least 1 legal practitioner director of the practice holds an
Australian practising certificate authorising the receipt of trust money;
or
(b) a person is holding an appointment under section 83 in relation
to the practice and the person holds an Australian practising certificate
authorising the receipt of trust money; or
(c) the money is received during any period during which the
practice—
(i) does not have any legal practitioner directors; and
(ii) is not in default of director requirements under
section 83,
so long as there was, immediately before the start of that period, at least
1 legal practitioner director of the practice who held an Australian practising
certificate authorising the receipt of trust money.
Maximum penalty: $50 000.
(1) A matter or thing done or omitted to be done by a protected person
does not, if the matter or thing was done or omitted to be done in good faith
for the purpose of the administration of this Part, subject the person to any
action, liability, claim or demand.
(2) In this section—
protected person means—
(a) the Society; or
(b) the Council; or
(c) an officer, employee or agent of the Society; or
(d) an investigator; or
(e) an external examiner.
243—Application
of Part to incorporated legal practices and multi-disciplinary
partnerships
(1) The obligations imposed on law practices by this Part, and any other
provisions of this Act, the regulations or any legal profession rule relating to
trust money and trust accounts, apply to an incorporated legal practice or
multi-disciplinary partnership only in connection with legal services provided
by the practice or partnership.
(2) The regulations may provide that specified provisions of this Part,
and any other provisions of this Act, the regulations or the legal profession
rules relating to trust money and trust accounts, do not apply to incorporated
legal practices or multi-disciplinary partnerships or both or apply to them with
specified modifications.
244—Disclosure to
clients—money not received as trust money
(1) In this section—
non-trust money means money that is not trust money for the
purposes of this Act because of section 194 or because of a determination
under section 195.
(2) When money entrusted to a law practice is or becomes non-trust money,
the practice must, in accordance with this section and the regulations, notify
the person who entrusted the money to the practice that—
(a) the money is not treated as trust money for the purposes of this Act
and is not subject to any supervision, investigation or external examination
requirements of this Act; and
(b) a claim against the guarantee fund under this Act cannot be made in
respect of the money.
Maximum penalty: $50 000.
(3) The notification must be given, in writing, to the person at the
time—
(a) the money is entrusted to the law practice, if the money is non-trust
money when it is entrusted to the practice; or
(b) the money becomes non-trust money, if the money was trust money when
it was entrusted to the practice.
(4) The regulations may make provision for or with respect to the form and
manner in which notification required by this section is to be given and the
contents of the notification.
245—Disclosure of
accounts used to hold money entrusted to law practice or legal practitioner
associate
(1) A law practice must in accordance with the regulations notify the
Society of the details required by the regulations of each account maintained at
an ADI in which the law practice or any legal practitioner associate of the law
practice holds money entrusted to the practice or legal practitioner
associate.
Maximum penalty: $50 000.
(2) Subsection (1) applies whether or not the money is trust money
and whether or not section 194 or 195 applies to the money.
The regulations may make provision for or with respect to any matter to
which this Part relates, including for or with respect to—
(a) the establishment, maintenance and closure of general trust accounts
and controlled money accounts; and
(b) the manner of receiving, depositing, withdrawing, making records about
and otherwise dealing with and accounting for trust money; and
(c) without limiting paragraph (a) or (b)—
(i) the keeping and reconciliation of trust records; and
(ii) the establishment and keeping of trust ledger accounts; and
(iii) the establishment and keeping of records about controlled money and
transit money; and
(iv) the establishment and keeping of registers of powers and estates
where trust money is involved; and
(v) the recording of information about the investment of trust money;
and
(vi) the furnishing of statements regarding trust money; and
(d) the notification to the Society of information relating directly or
indirectly to matters to which this Part relates, including information
about—
(i) trust accounts, trust money and trust records; and
(ii) the proposed or actual termination of a law practice that holds trust
money; and
(iii) the proposed or actual termination of engaging in legal practice in
this jurisdiction by a law practice that holds trust money; and
(iv) the proposed or actual restructuring of the business of a law
practice so that it no longer holds or no longer will hold trust money;
and
(e) the creation and exercise of liens over trust money; and
(f) providing exemptions, or providing for the giving of exemptions, from
all or any specified requirements of this Part.
Part
3—Costs disclosure and adjudication
In this Part—
adjudication means an adjudication of legal costs under
Division 7;
business day means a day other than a Saturday, a Sunday or a
public holiday;
conditional costs agreement means a costs agreement that
provides that the payment of some or all of the legal costs is conditional on
the successful outcome of the matter to which those costs relate, as referred to
in section 270, but does not include a costs agreement to the extent to
which section 272(1) applies;
costs agreement means an agreement about the payment of legal
costs;
itemised bill means a bill that specifies in detail how the
legal costs are made up;
litigious matter means a matter that involves, or is likely
to involve, the issue or defence of proceedings in a court or
tribunal;
Note—
A matter is a litigious matter when proceedings are initiated or at any
stage when proceedings are likely.
lump sum bill means a bill that describes the legal services
to which it relates and specifies the total amount of the legal costs;
public authority means an authority or body (whether a body
corporate or not) established or incorporated for a public purpose by a law of a
jurisdiction or of the Commonwealth, and includes a body corporate incorporated
under a law of a jurisdiction or of the Commonwealth in which a jurisdiction or
the Commonwealth has a controlling interest;
scale of costs means a scale of costs of a court or tribunal
of this jurisdiction;
sophisticated client means a client to whom, because of
section 258(1)(c) or (d), disclosure under section 255 or
section 256(1) is or was not required;
third party payer—see section 248;
uplift fee means additional legal costs (excluding
disbursements) payable under a costs agreement on the successful outcome of the
matter to which the agreement relates.
248—Terms
relating to third party payers
(1) For the purposes of this Part—
(a) a person is a third party payer, in relation to a client
of a law practice, if the person is not the client and—
(i) is under a legal obligation to pay all or any part of the legal costs
for legal services provided to the client; or
(ii) being under that obligation, has already paid all or a part of those
legal costs; and
(b) a third party payer is an associated third party payer
if the legal obligation referred to in paragraph (a) is owed to the law
practice, whether or not it is also owed to the client or another person;
and
(c) a third party payer is a non-associated third party
payer if the legal obligation referred to in paragraph (a) is owed
to the client or another person but not the law practice.
(2) The legal obligation referred to in subsection (1) can arise by
or under contract or legislation or otherwise.
(3) A law practice that retains another law practice on behalf of a client
is not on that account a third party payer in relation to that client.
Division
2—Application of Part
249—Application
of Part—first instructions rule
This Part applies to a matter if the client first instructs the law
practice in relation to the matter in this jurisdiction.
250—Part
also applies by agreement or at client's election
(1) This Part applies to a matter if—
(a) either—
(i) this Part does not currently apply to the matter; or
(ii) it is not possible to determine the jurisdiction in which the client
first instructs the law practice in relation to the matter; and
(b) either—
(i) the legal services are or will be provided wholly or primarily in this
jurisdiction; or
(ii) the matter has a substantial connection with this
jurisdiction,
or both; and
(c) either—
(i) the client accepts, in writing or by other conduct, a written offer to
enter into an agreement under subsection (2)(a) in respect of the matter;
or
(ii) the client gives a notification under subsection (2)(b) in
respect of the matter.
(2) For the purposes of subsection (1)(c), the client
may—
(a) accept, in writing or by other conduct, a written offer that complies
with subsection (3) to enter into an agreement with the law practice that
this Part is to apply to the matter; or
(b) notify the law practice in writing that the client requires this Part
to apply to the matter.
(3) An offer referred to in subsection (2)(a) must clearly
state—
(a) that it is an offer to enter into an agreement that this Part is to
apply to the matter; and
(b) that the client may accept it in writing or by other conduct;
and
(c) the type of conduct that will constitute acceptance.
(4) A notification has no effect for the purposes of
subsection (2)(b) if it is given after the period of 28 days after the
law practice discloses to the client (under a corresponding law) information
about the client’s right to make a notification of that kind, but nothing
in this subsection prevents an agreement referred to in subsection (2)(a)
from coming into effect at any time.
(1) This section applies if this Part applies to a matter by the operation
of section 249 or 250.
(2) This Part ceases to apply to the matter if—
(a) either—
(i) the legal services are or will be provided wholly or primarily in
another jurisdiction; or
(ii) the matter has a substantial connection with another
jurisdiction,
or both; and
(b) either—
(i) the client enters, under the corresponding law of the other
jurisdiction, into an agreement with the law practice that the corresponding
provisions of the corresponding law apply to the matter; or
(ii) the client notifies, under the corresponding law of the other
jurisdiction (and within the time allowed by the corresponding law), the law
practice in writing that the client requires the corresponding provisions of the
corresponding law to apply to the matter.
(3) Nothing in this section prevents the application of this Part to the
matter by means of a later agreement or notification under
section 250.
252—How
and when does a client first instruct a law practice?
A client first instructs a law practice in relation to a matter in a
particular jurisdiction if the law practice first receives instructions from or
on behalf of the client in relation to the matter in that jurisdiction, whether
in person or by post, telephone, fax, email or other form of
communication.
253—When does a
matter have a substantial connection with this
jurisdiction?
The regulations may prescribe the circumstances in which, or the rules to
be used to determine whether, a matter has or does not have a substantial
connection with this jurisdiction for the purposes of this Part.
254—What happens
when different laws apply to a matter?
(1) This section applies if this Part applies to a matter for a period and
a corresponding law applies for another period.
(2) If this Part applied to a matter for a period and a corresponding law
applies to the matter afterwards, this Part continues to apply in respect of
legal costs (if any) incurred while this Part applied to the matter.
(3) If a corresponding law applied to a matter for a period and this Part
applies to the matter afterwards, this Part does not apply in respect of legal
costs (if any) incurred while the corresponding law applied to the matter, so
long as the corresponding law continues to apply in respect of those
costs.
(4) However—
(a) the client may enter into a written agreement with the law practice
that the adjudication of costs provisions of this Part are to apply in respect
of all legal costs incurred in relation to the matter, and Division 7
accordingly applies in respect of those legal costs; or
(b) if the client enters into a written agreement with the law practice
that the adjudication of costs provisions of a corresponding law are to apply in
respect of all legal costs incurred in relation to the matter, Division 7
accordingly does not apply in respect of those legal costs.
(5) A written agreement referred to in subsection (4) need not be
signed by the client but in that case the client's acceptance must be
communicated to the law practice by facsimile transmission, email or some other
written form.
(6) If a corresponding law applied to a matter for a period and this Part
applies to the matter afterwards, this Part does not require disclosure of any
matters to the extent that they have already been disclosed under a
corresponding law.
(7) This section has effect despite any other provisions of this
Part.
255—Disclosure
of costs to clients
(1) A law practice must disclose to a client in accordance with this
Division—
(a) the basis on which legal costs will be calculated, including whether a
scale of costs applies to any of the legal costs; and
(b) the client's right to—
(i) negotiate a costs agreement with the law practice; and
(ii) receive a bill from the law practice; and
(iii) request an itemised bill after receipt of a lump sum bill;
and
(iv) be notified under section 262 of any substantial change to the
matters disclosed under this section; and
(c) an estimate of the total legal costs, if reasonably practicable or, if
that is not reasonably practicable, a range of estimates of the total legal
costs and an explanation of the major variables that will affect the calculation
of those costs; and
(d) details of the intervals (if any) at which the client will be billed;
and
(e) the rate of interest (if any) that the law practice charges on overdue
legal costs, whether that rate is a specific rate of interest or is a benchmark
rate of interest (as referred to in subsection (2)); and
(f) if the matter is a litigious matter, an estimate of—
(i) the range of costs that may be recovered if the client is successful
in the litigation; and
(ii) the range of costs the client may be ordered to pay if the client is
unsuccessful; and
(g) the client's right to progress reports in accordance with
section 264; and
(h) details of the person whom the client may contact to discuss the legal
costs; and
(i) the following avenues that are open to the client in the event of a
dispute in relation to legal costs:
(i) raising the matter with the practice;
(ii) adjudication of costs under Division 7;
(iii) the setting aside of a costs agreement under
section 275;
(iv) if the client believes there has been overcharging—making a
complaint to the Board; and
(j) any time limits that apply to the taking of any action referred to in
paragraph (i); and
(k) that the law of this jurisdiction applies to legal costs in relation
to the matter; and
(l) information about the client’s right—
(i) to accept under a corresponding law a written offer to enter into an
agreement with the law practice that the corresponding provisions of the
corresponding law apply to the matter; or
(ii) to notify under a corresponding law (and within the time allowed by
the corresponding law) the law practice in writing that the client requires the
corresponding provisions of the corresponding law to apply to the
matter.
Note—
The client’s right to enter into an agreement or give a notification
as mentioned in paragraph (l) will be under provisions of the law of the
other jurisdiction that correspond to section 250.
(2) For the purposes of subsection (1)(e), a benchmark rate of
interest is a rate of interest for the time being equal to or calculated
by reference to a rate of interest that is specified or determined from time to
time by an ADI or another body or organisation, or by or under other
legislation, and that is publicly available.
(3) The regulations may make provision for or with respect to the use of
benchmark rates of interest, and in particular for or with respect to
permitting, regulating or preventing the use of particular benchmark rates or
particular kinds of benchmark rates.
(4) For the purposes of subsection (1)(f), the disclosure must
include—
(a) a statement that an order by a court for the payment of costs in
favour of the client will not necessarily cover the whole of the client's legal
costs; and
(b) if applicable, a statement that disbursements may be payable by the
client even if the client enters a conditional costs agreement.
(5) A law practice is taken to have complied with the requirement to
disclose the details referred to in subsection (1)(b)(i) to (iii), (g),
(i), (j) and (l) if it provides a written statement in or to the effect of a
form prescribed by the regulations for the purposes of this subsection at the
same time as the other details are disclosed as required by this
section.
(6) A form prescribed for the purposes of subsection (5) may, instead
of itself containing details of the kind referred to in that subsection, refer
to publicly accessible sources of information (such as an internet website) from
which those details can be obtained.
(7) The regulations may—
(a) require the Society to develop a statement of the relevant details and
to revise it as necessary to keep it up to date; and
(b) require the Society to make the statement publicly available in the
prescribed manner.
256—Disclosure
if another law practice is to be retained
(1) If a law practice intends to retain another law practice on behalf of
the client, the first law practice must disclose to the client the details
specified in section 255(1)(a), (c) and (d) in relation to the other law
practice, in addition to any information required to be disclosed to the client
under section 255.
(2) A law practice retained or to be retained on behalf of a client by
another law practice is not required to make disclosure to the client under
section 255, but must disclose to the other law practice the information
necessary for the other law practice to comply with
subsection (1).
(3) This section does not apply if the first law practice ceases to act
for the client in the matter when the other law practice is retained.
257—How and when
must disclosure be made to a client?
(1) Disclosure under section 255 must be made in writing before, or
as soon as practicable after, the law practice is retained in the
matter.
(2) Disclosure under section 256(1) must be made in writing before,
or as soon as practicable after, the other law practice is retained.
(3) Disclosure made to a person before the law practice is retained in a
matter is taken to be disclosure to the person as a client for the purposes of
sections 255 and 256.
258—Exceptions
to requirement for disclosure
(1) Disclosure under section 255 or 256(1) is not required to be made
in any of the following circumstances:
(a) if the total legal costs in the matter, excluding disbursements, are
not likely to exceed $1 500 (exclusive of GST) or the prescribed amount
(whichever is higher);
(b) if—
(i) the client has received 1 or more disclosures under section 255
or 256(1) from the law practice in the previous 12 months; and
(ii) the client has agreed in writing to waive the right to disclosure;
and
(iii) a principal of the law practice decides on reasonable grounds that,
having regard to the nature of the previous disclosures and the relevant
circumstances, the further disclosure is not warranted;
(c) if the client is—
(i) a law practice or an Australian legal practitioner; or
(ii) a public company, a subsidiary of a public company, a large
proprietary company, a foreign company, a subsidiary of a foreign company or a
registered Australian body (each within the meaning of the Corporations
Act 2001 of the Commonwealth); or
(iii) a financial services licensee (within the meaning of that Act);
or
(iv) a liquidator, administrator or receiver (as respectively referred to
in that Act); or
(v) a partnership that carries on the business of providing professional
services if the partnership consists of more than 20 members or if the
partnership would be a large proprietary company (within the meaning of that
Act) if it were a company; or
(vi) a proprietary company (within the meaning of that Act) formed for the
purpose of carrying out a joint venture, if any shareholder of the company is a
person to whom disclosure of costs is not required; or
(vii) an unincorporated group of participants in a joint venture, if any
member of the group is a person to whom disclosure of costs is not required and
if any other members of the group who are not such persons have indicated that
they waive their right to disclosure; or
(viii) a Minister of the Crown in right of a jurisdiction or the
Commonwealth acting in his or her capacity as such, or a government department
or public authority of a jurisdiction or the Commonwealth;
(d) if the legal costs or the basis on which they will be calculated have
or has been agreed as a result of a tender process;
(e) if the client will not be required to pay the legal costs or they will
not otherwise be recovered by the law practice;
Note—
For instance, disclosure would not be required where the law practice acts
in the matter on a pro bono basis.
(f) in any circumstances prescribed by the regulations.
(2) Despite subsection (1)(a), if a law practice becomes aware that
the total legal costs are likely to exceed $1 500 (exclusive of GST) or the
prescribed amount (whichever is higher), the law practice must disclose the
matters in section 255 or 256 (as the case requires) to the client as soon
as practicable.
(3) A law practice must ensure that a written record of a
principal’s decision that further disclosure is not warranted as mentioned
in subsection (1)(b) is made and kept with the files relating to the matter
concerned.
(4) The reaching of a decision referred to in subsection (3)
otherwise than on reasonable grounds is capable of constituting unsatisfactory
professional conduct or professional misconduct on the part of the
principal.
(5) Nothing in this section affects or takes away from any client's
right—
(a) to progress reports in accordance with section 264; or
(b) to obtain reasonable information from the law practice in relation to
any of the matters specified in section 255; or
(c) to negotiate a costs agreement with a law practice and to obtain a
bill from the law practice.
259—Additional
disclosure—settlement of litigious matters
(1) If a law practice negotiates the settlement of a litigious matter on
behalf of a client, the law practice must disclose to the client, before the
settlement is executed—
(a) a reasonable estimate of the amount of legal costs payable by the
client if the matter is settled (including any legal costs of another party that
the client is to pay); and
(b) a reasonable estimate of any contributions towards those costs likely
to be received from another party.
(2) A law practice retained on behalf of a client by another law practice
is not required to make a disclosure to the client under subsection (1), if
the other law practice makes the disclosure to the client before the settlement
is executed.
260—Additional
disclosure—uplift fees
(1) A law practice must, before entering into a costs agreement that
involves an uplift fee—
(a) provide the client with—
(i) an estimate of the total legal costs the client would be likely to
incur if the agreement did not involve an uplift fee; or
(ii) if it is not reasonably practicable to provide an estimate of the
total legal costs—a range of estimates of the total legal costs the client
would be likely to incur if the agreement did not involve an uplift fee and an
explanation of the major variables that would affect the calculation of those
costs; and
(b) disclose to the client in writing—
(i) the uplift fee (or the basis of the calculation of the uplift fee);
and
(ii) the reasons why the uplift fee is warranted.
(2) A law practice is not required to make a disclosure under
subsection (1) to a sophisticated client.
(1) Written disclosures under this Division—
(a) must be expressed in clear plain language; and
(b) may be in a language other than English if the client is more familiar
with that language.
(2) If the law practice is aware that the client is unable to read, the
law practice must arrange for the information required to be given to a client
under this Division to be conveyed orally to the client in addition to providing
the written disclosure.
262—Ongoing
obligation to disclose
A law practice must, in writing, disclose to a client any substantial
change to anything included in a disclosure already made under this Division as
soon as is reasonably practicable after the law practice becomes aware of that
change.
263—Effect of
failure to disclose
(1) Postponement of payment of legal costs until assessed
If a law practice does not disclose to a client or an associated third
party payer anything required by this Division to be disclosed, the client or
associated third party payer need not pay the legal costs unless they have been
adjudicated under Division 7.
Note—
Under section 293, the costs of an adjudication in these circumstances
are generally payable by the law practice.
(2) Bar on recovery proceedings until legal costs
assessed
A law practice that does not disclose to a client or an associated third
party payer anything required by this Division to be disclosed may not maintain
proceedings against the client or associated third party payer (as the case may
be) for the recovery of legal costs unless the costs have been adjudicated under
Division 7.
(3) Setting costs agreement aside
If a law practice does not disclose to a client or an associated third
party payer anything required by this Division to be disclosed and the client or
associated third party payer has entered a costs agreement with the law
practice, the client or associated third party payer may also apply under
section 275 for the costs agreement to be set aside.
(4) Reduction of legal costs on adjudication
If a law practice does not disclose to a client or an associated third
party payer anything required by this Division to be disclosed, then, on an
adjudication of the relevant legal costs, the amount of the costs may be reduced
by an amount considered by the Supreme Court to be proportionate to the
seriousness of the failure to disclose.
(5) Effect on legal costs where law practice retains another law
practice that fails to disclose
If a law practice retains another law practice on behalf of a client and
the first law practice fails to disclose something to the client solely because
the retained law practice failed to disclose relevant information to the first
law practice as required by section 256(2), then subsections (1) to
(4)—
(a) do not apply to the legal costs owing to the first law practice on
account of legal services provided by it, to the extent that the non-disclosure
by the first law practice was caused by the failure of the retained law practice
to disclose the relevant information; and
(b) do apply to the legal costs owing to the retained law
practice.
(6) Circumstances where associated third party payer
involved
In a matter involving both a client and an associated third party payer
where disclosure has been made to one of them but not the other—
(a) subsection (1) does not affect the liability of the one to whom
disclosure was made to pay the legal costs; and
(b) subsection (2) does not prevent proceedings being maintained
against the one to whom the disclosure was made for the recovery of those legal
costs.
(7) Non-disclosure capable of constituting unsatisfactory professional
conduct or professional misconduct
Failure by a law practice to comply with this Division is capable of
constituting unsatisfactory professional conduct or professional misconduct on
the part of any Australian legal practitioner or Australian-registered foreign
lawyer involved in the failure.
(1) A law practice must give a client, on reasonable
request—
(a) a written report of the progress of the matter in which the law
practice is retained; and
(b) a written report of the legal costs incurred by the client to date, or
since the last bill (if any), in the matter.
(2) A law practice may charge a client a reasonable amount for a report
under subsection (1)(a) but must not charge a client for a report under
subsection (1)(b).
(3) A law practice retained on behalf of a client by another law practice
is not required to give a report to the client under subsection (1), but
must disclose to the other law practice any information necessary for the other
law practice to comply with that subsection.
(4) Subsection (3) does not apply if the other law practice ceases to
act for the client in the matter when the law practice is retained.
265—Disclosures
to associated third party payers
(1) If a law practice is required to make a disclosure to a client of the
practice under this Division, the practice must, in accordance with
subsections (2) and (3), also make the same disclosure to any associated
third party payer for the client, but only to the extent that the details or
matters disclosed are relevant to the associated third party payer and relate to
costs that are payable by the associated third party payer in respect of legal
services provided to the client.
(2) A disclosure under subsection (1) must be made in
writing—
(a) at the time the disclosure to the client is required under this
Division; or
(b) if the law practice only afterwards becomes aware of the legal
obligation of the associated third party payer to pay legal costs of the
client—as soon as practicable after the practice became aware of the
obligation.
(3) Section 261 applies to a disclosure to an associated third party
payer under subsection (1) in the same way as it applies to a
client.
(4) An associated third party payer for a client of a law practice has the
same right as the client to obtain reports under section 264(1)(b) of legal
costs incurred by the client, but only to the extent that the costs are payable
by the associated third party payer in respect of legal services provided to the
client, and the law practice must comply with that section
accordingly.
Division 4—Legal
costs generally
266—On
what basis are legal costs recoverable?
Subject to Division 2, legal costs are recoverable—
(a) under a costs agreement made in accordance with Division 5 or the
corresponding provisions of a corresponding law; or
(b) if paragraph (a) does not apply, in accordance with an applicable
scale of costs; or
(c) if neither paragraph (a) nor (b) applies, according to the fair
and reasonable value of the legal services provided.
Note—
See section 290(2) for the criteria that are to be applied on an
adjudication of costs to determine whether legal costs are fair and
reasonable.
A law practice may take reasonable security from a client for legal costs
(including security for the payment of interest on unpaid legal costs) and may
refuse or cease to act for a client who does not provide reasonable
security.
268—Interest on
unpaid legal costs
(1) A law practice may charge interest on unpaid legal costs if the costs
are unpaid 30 days or more after the practice has given a bill for the costs in
accordance with this Part.
(2) A law practice may also charge interest on unpaid legal costs in
accordance with a costs agreement.
(3) A law practice must not charge interest under subsection (1) or
(2) on unpaid legal costs unless the bill for those costs contains a statement
that interest is payable and of the rate of interest.
(4) A law practice may not charge interest under this section or under a
costs agreement at a rate that exceeds the rate prescribed by the
regulations.
(1) A costs agreement may be made—
(a) between a client and a law practice retained by the client;
or
(b) between a client and a law practice retained on behalf of the client
by another law practice; or
(c) between a law practice and another law practice that retained that law
practice on behalf of a client; or
(d) between a law practice and an associated third party payer.
(2) A costs agreement must be written or evidenced in writing.
(3) A costs agreement may consist of a written offer in accordance with
subsection (4) that is accepted in writing or by other conduct.
Note—
Acceptance by other conduct is not permitted for conditional costs
agreements—see section 270.
(4) The offer must clearly state—
(a) that it is an offer to enter into a costs agreement; and
(b) that the offer can be accepted in writing or by other conduct;
and
(c) the type of conduct that will constitute acceptance.
(5) Except as provided by section 295, a costs agreement cannot
provide that the legal costs to which it relates are not subject to adjudication
of costs under Division 7.
Note—
If it attempts to do so, the costs agreement will be void—see
section 274(1).
(6) A reference in section 275 and in prescribed provisions of this
Part to a client is, in relation to a costs agreement that is
entered into between a law practice and an associated third party payer as
referred to in subsection (1)(d) and to which a client of the law practice
is not a party, a reference to the associated third party payer.
270—Conditional
costs agreements
(1) A costs agreement may provide that the payment of some or all of the
legal costs is conditional on the successful outcome of the matter to which
those costs relate.
(2) A conditional costs agreement may relate to any matter,
except—
(a) a criminal matter; or
(b) a matter that relates to or involves child protection, custody or
guardianship or adoption; or
(c) proceedings under any of the following Acts of the
Commonwealth:
(i) the Family Law Act 1975;
(ii) the Migration Act 1958;
(iii) the Child Support (Assessment) Act 1989; or
(d) any other matter of a kind prescribed by regulation.
(3) A conditional costs agreement—
(a) must set out the circumstances that constitute the successful outcome
of the matter to which it relates; and
(b) may provide for disbursements to be paid irrespective of the outcome
of the matter; and
(c) must be—
(i) in writing; and
(ii) in clear plain language; and
(iii) signed by the client; and
(d) must contain a statement that the client has been informed of the
client's right to seek independent legal advice before entering into the
agreement; and
(e) must contain a cooling-off period of not less than 5 clear business
days during which the client, by written notice, may terminate the
agreement.
(4) Subsection (3)(c)(iii), (d) and (e) do not apply to a conditional
costs agreement made under section 269(1)(c).
(5) Subsection (3)(c)(iii), (d) and (e) do not apply to a conditional
costs agreement made with a sophisticated client.
(6) If a client terminates an agreement within the period referred to in
subsection (3)(e), the law practice—
(a) may recover only those legal costs in respect of legal services
performed for the client before that termination that were performed on the
instructions of the client and with the client's knowledge that the legal
services would be performed during that period; and
(b) without affecting the generality of paragraph (a), may not
recover the uplift fee (if any).
271—Conditional
costs agreements involving uplift fees
(1) A conditional costs agreement may provide for the payment of an uplift
fee.
(2) The basis of calculation of the uplift fee must be separately
identified in the agreement.
(3) The agreement must contain an estimate of the uplift fee or, if that
is not reasonably practicable—
(a) a range of estimates of the uplift fee; and
(b) an explanation of the major variables that will affect the calculation
of the uplift fee.
(4) If a conditional costs agreement relates to a litigious
matter—
(a) the agreement must not provide for the payment of an uplift fee unless
the risk of the claim failing, and of the client having to meet his or her own
costs, is significant; and
(b) the uplift fee must not exceed 25% of the legal costs (excluding
disbursements) otherwise payable.
(5) A law practice must not enter into a costs agreement in contravention
of this section.
Maximum penalty: $50 000.
272—Contingency
fees are prohibited
(1) A law practice must not enter into a costs agreement under which the
amount payable to the law practice, or any part of that amount, is calculated by
reference to the amount of any award or settlement or the value of any property
that may be recovered in any proceedings to which the agreement
relates.
Maximum penalty: $50 000.
(2) Subsection (1) does not apply to the extent that the costs
agreement adopts an applicable scale of costs.
Subject to this Division and Division 7, a costs agreement may be enforced
in the same way as any other contract.
274—Certain
costs agreements are void
(1) A costs agreement that contravenes, or is entered into in
contravention of, any provision of this Division is void.
(2) Subject to this section and Division 7, legal costs under a void costs
agreement are recoverable as set out in section 266(b) or (c).
(3) However, a law practice is not entitled to recover any amount in
excess of the amount that the law practice would have been entitled to recover
if the costs agreement had not been void and must repay any excess amount
received.
(4) A law practice that has entered into a costs agreement in
contravention of section 271 is not entitled to recover the whole or any
part of the uplift fee and must repay the amount received in respect of the
uplift fee to the person from whom it was received.
(5) A law practice that has entered into a costs agreement in
contravention of section 272 is not entitled to recover any amount in
respect of the provision of legal services in the matter to which the costs
agreement related and must repay any amount received in respect of those
services to the person from whom it was received.
(6) If a law practice does not repay an amount required by
subsection (3), (4) or (5) to be repaid, the person entitled to be repaid
may recover the amount from the law practice as a debt in a court of competent
jurisdiction.
275—Setting
aside costs agreements
(1) On application by a client, the Supreme Court may order that a costs
agreement be set aside if satisfied that the agreement is not just or
reasonable.
(2) In determining whether or not a costs agreement is just or reasonable,
and without limiting the matters to which the Court can have regard, the Court
may have regard to any or all of the following matters:
(a) whether the client was induced to enter into the agreement by the
fraud or misrepresentation of the law practice or of any representative of the
law practice;
(b) whether any Australian legal practitioner or Australian-registered
foreign lawyer acting on behalf of the law practice has been found guilty of
unsatisfactory professional conduct or professional misconduct in relation to
the provision of legal services to which the agreement relates;
(c) whether the law practice failed to make any of the disclosures
required under Division 3;
(d) the circumstances and conduct of the parties before and when the
agreement was made;
(e) the circumstances and the conduct of the parties in the matters after
the agreement was made;
(f) whether and how the agreement addresses the effect on costs of matters
and changed circumstances that might foreseeably arise and affect the extent and
nature of legal services provided under the agreement;
(g) whether and how billing under the agreement addresses changed
circumstances affecting the extent and nature of legal services provided under
the agreement.
(3) The Supreme Court may adjourn the hearing of an application under this
section pending the completion of any investigation or determination of any
charge in relation to the conduct of any Australian legal practitioner or
Australian-registered foreign lawyer.
(4) If the Supreme Court orders that a costs agreement be set aside, it
may make an order in relation to the payment of legal costs the subject of the
agreement.
(5) In making an order under subsection (4)—
(a) the Supreme Court must apply the applicable scale of costs (if any);
or
(b) if there is no applicable scale of costs—the Court must
determine the fair and reasonable legal costs in relation to the work to which
the agreement related, taking into account—
(i) the seriousness of the conduct of the law practice or any Australian
legal practitioner or Australian-registered foreign lawyer acting on its behalf;
and
(ii) whether or not it was reasonable to carry out the work; and
(iii) whether or not the work was carried out in a reasonable
manner.
(6) In making an order under subsection (4), the Court may not order
the payment of an amount in excess of the amount that the law practice would
have been entitled to recover if the costs agreement had not been set
aside.
(7) For the purposes of subsection (5), the Court may have regard to
any or all of the following matters:
(a) whether the law practice and any Australian legal practitioner or
Australian-registered foreign lawyer acting on its behalf complied with any
relevant legislation or legal profession rules;
(b) any disclosures made by the law practice under Division 5, or the
failure to make any disclosures required under that Division;
(c) any relevant advertisement as to—
(i) the law practice's costs; or
(ii) the skills of the law practice or of any Australian legal
practitioner or Australian-registered foreign lawyer acting on its
behalf;
(d) the skill, labour and responsibility displayed on the part of the
Australian legal practitioner or Australian-registered foreign lawyer
responsible for the matter;
(e) the retainer and whether the work done was within the scope of the
retainer;
(f) the complexity, novelty or difficulty of the matter;
(g) the quality of the work done;
(h) the place where, and circumstances in which, the work was
done;
(i) the time within which the work was required to be done;
(j) any other relevant matter.
(8) The Court may determine whether or not a costs agreement
exists.
(9) The Court may order the payment of the costs of and incidental to an
application under this section.
(10) In this section—
client means a person to whom or for whom legal services are
or have been provided.
276—Legal costs
cannot be recovered unless Bill has been served
(1) A law practice must not commence legal proceedings to recover legal
costs from a person until at least 30 days after the law practice has given
a bill to the person in accordance with sections 277 and 278.
(2) A court of competent jurisdiction may make an order authorising a law
practice to commence legal proceedings against a person sooner if satisfied
that—
(a) the law practice has given a bill to the person in accordance with
section 277 and 278; and
(b) the person is about to leave this jurisdiction.
(3) A court or tribunal before which any proceedings are brought in
contravention of subsection (1) must stay those proceedings on the
application of a party.
(4) This section applies whether or not the legal costs are the subject of
a costs agreement.
(1) A bill may be in the form of a lump sum bill or an itemised
bill.
(2) A bill must be signed on behalf of a law practice by an Australian
legal practitioner.
(3) It is sufficient compliance with subsection (2) if a letter
signed on behalf of a law practice by an Australian legal practitioner is
attached to, or enclosed with, the bill.
(4) A bill is to be given to a person—
(a) by delivering it personally to the person or to an agent of the
person; or
(b) by sending it by post to the person or agent at—
(i) the usual or last known business or residential address of the person
or agent; or
(ii) an address nominated for the purpose by the person or agent;
or
(c) by leaving it for the person or agent at—
(i) the usual or last known business or residential address of the person
or agent; or
(ii) an address nominated for the purpose by the person or
agent,
with a person on the premises who is apparently at least 16 years old
and apparently employed or residing there; or
(d) by transmitting it by facsimile transmission or email to a facsimile
number or email address provided by the person or agent; or
(e) by sending or delivering it to the person or agent in a manner
prescribed by regulation.
(5) A reference in subsection (4) to any method of giving a bill to a
person includes a reference to arranging for the bill to be given to that person
by that method (for example, by delivery by courier).
(6) In this section—
agent of a person means an agent, law practice or Australian
legal practitioner who has authority to accept service of legal process on
behalf of the person.
278—Notification
of client's rights
(1) A bill must include or be accompanied by a written statement setting
out—
(a) the following avenues that are open to the client in the event of a
dispute in relation to legal costs:
(i) raising the matter with the law practice;
(ii) adjudication of costs by the Supreme Court under Division
7;
(iii) the setting aside of a costs agreement under
section 275;
(iv) if the client believes there has been overcharging—making a
complaint to the Board; and
(b) any time limits that apply to the taking of any action referred to in
paragraph (a).
Note—
These matters will already have been disclosed under
section 255(1).
(2) Subsection (1) does not apply in relation to a sophisticated
client.
(3) A law practice is taken to have complied with the requirement to
provide the written statement referred to in subsection (1) if it provides
a written statement in or to the effect of a form prescribed by the regulations
for the purposes of this subsection.
(4) A form prescribed for the purposes of subsection (3) may, instead
of itself containing details of the kind referred to in that subsection, refer
to publicly accessible sources of information (such as an internet website) from
which those details can be obtained.
(5) The regulations may—
(a) require the Society to develop a statement of the relevant details and
to revise it as necessary to keep it up to date; and
(b) require the Society to make the statement publicly available in the
prescribed manner.
(1) If a bill that is not an itemised bill is given by a law practice, any
person who is entitled to apply for an adjudication of the legal costs to which
the bill relates may request the law practice to give the person an itemised
bill.
(2) The law practice must comply with the request within 21 days
after the date on which the request is made.
(3) If the person making the request is liable to pay only a part of the
legal costs to which the bill relates, the request for an itemised bill may only
be made in relation to those costs that the person is liable to pay.
(4) Subject to subsection (5), a law practice must not commence legal
proceedings to recover legal costs from a person who has been given a lump sum
bill until at least 30 days after the date on which the person is given the
bill.
(5) If the person makes a request for an itemised bill in accordance with
this section, the law practice must not commence legal proceedings to recover
the legal costs from the person until at least 30 days after complying with
the request.
(6) A law practice is not entitled to charge a person for the preparation
of an itemised bill requested under this section.
(7) Section 277(4) applies to the giving of an itemised bill under
this section.
(1) A law practice may give a person an interim bill covering part only of
the legal services the law practice was retained to provide.
(2) Legal costs that are the subject of an interim bill may be adjudicated
under Division 7, either at the time of the interim bill or at the time of the
final bill, whether or not the interim bill has previously been adjudicated or
paid.
Division
7—Adjudication of costs
In this Division—
client means a person to whom or for whom legal services are
or have been provided.
282—Application
by clients or third party payers for adjudication of costs
(1) The Supreme Court may—
(a) on the application of a client for an adjudication of the whole or any
part of legal costs; or
(b) on the application of a third party payer for an adjudication of the
whole or any part of legal costs payable by the third party payer,
adjudicate and settle the bill for those costs.
(2) An application for an adjudication of costs may be made even if the
legal costs have been wholly or partly paid.
(3) If any legal costs have been paid without a bill, the client or third
party payer may nevertheless apply for an adjudication.
(4) An application by a client or third party payer for an adjudication of
costs under this section must be made within 6 months after—
(a) the bill was given or the request for payment was made to the client
or third party payer; or
(b) the costs were paid if neither a bill was given nor a request was
made.
(5) However, an application that is made out of time, otherwise than
by—
(a) a sophisticated client; or
(b) a third party payer who would be a sophisticated client if the third
party payer were a client of the law practice concerned,
may be dealt with by the Supreme Court if the Court, on application by the
client or third party payer who made the application for adjudication,
determines, after having regard to the delay and the reasons for the delay, that
it is just and fair for the application for adjudication to be dealt with after
the 6 month period.
(6) If the third party payer is a non-associated third party payer, the
law practice must provide the third party payer, on the written request of the
third party payer, with sufficient information to allow the third party payer to
consider making, and if thought fit to make, an application for an adjudication
of costs under this section.
(7) If there is an associated third party payer for a client of a law
practice—
(a) nothing in this section prevents—
(i) the client from making 1 or more applications for adjudication under
this section in relation to costs for which the client is solely liable;
and
(ii) the associated third party payer from making 1 or more applications
for adjudication under this section in relation to costs for which the
associated third party payer is solely liable,
and those applications may be made by them at the same time or at different
times and may be dealt with jointly or separately; and
(b) the client or the associated third party payer—
(i) may participate in the adjudication of costs process where the other
of them makes an application for adjudication under this section in relation to
costs for which they are both liable; and
(ii) is taken to be a party to the adjudication and is bound by the
adjudication; and
(c) the law practice is taken to be a party to the adjudication and is
bound by the adjudication.
(8) If there is a non-associated third party payer for a client of a law
practice—
(a) nothing in this section prevents—
(i) the client from making 1 or more applications for adjudication under
this section in relation to costs for which the client is liable; and
(ii) the non-associated third party payer from making 1 or more
applications for adjudication under this section in relation to costs for which
the non-associated third party payer is liable,
and those applications may be made by them at the same time or at different
times but must be dealt with separately; and
(b) the client—
(i) may participate in the adjudication of costs process where the
non-associated third party payer makes an application for adjudication under
this section in relation to the legal costs for which the non-associated third
party payer is liable; and
(ii) is taken to be a party to the adjudication and is bound by the
adjudication; and
(c) despite any other provision of this Division, the adjudication of the
costs payable by the non-associated third party payer does not affect the amount
of legal costs payable by the client to the law practice.
(9) In this section—
client includes the following:
(a) an executor or administrator of a client;
(b) a trustee of the estate of a client;
third party payer includes the following:
(a) an executor or administrator of a third party payer;
(b) a trustee of the estate of a third party payer.
283—Application
for adjudication by law practice retaining another law
practice
(1) If a law practice retains another law practice to act on behalf of a
client, the law practice—
(a) may apply to the Supreme Court; and
(b) if instructed to do so by the client or third party payer (if
any)—must apply to the Supreme Court,
for an adjudication of the whole or any part of the legal costs to which a
bill given by the other law practice in accordance with Division 6
relates.
(2) If any legal costs have been paid without a bill, the law practice may
nevertheless apply for an adjudication.
(3) An application for an adjudication of costs may be made even if the
legal costs have been wholly or partly paid.
(4) An application under this section must be made within 60 days
after—
(a) the bill was given or the request for payment was made; or
(b) the costs were paid if neither a bill was given nor a request was
made; or
(c) in the case of an application made on the instructions of a client or
third party payer—within 60 days of the day on which the client or third
party payer was given notification in writing of the legal costs to which the
bill relates.
(5) An application cannot be made under this section if—
(a) there is a costs agreement between the client and the other law
practice; and
(b) the bill given by the other law practice is in accordance with the
terms of the costs agreement.
284—Application
for adjudication of costs by law practice giving bill
(1) A law practice that has given a bill in accordance with Division 6 may
apply to the Supreme Court for an adjudication of the whole or any part of the
legal costs to which the bill relates.
(2) If any legal costs have been paid without a bill, the law practice may
nevertheless apply for an adjudication.
(3) An application for an adjudication of costs may be made even if the
legal costs have been wholly or partly paid.
(4) An application may not be made under this section unless at least
30 days have passed since—
(a) the bill was given or the request for payment was made; or
(b) the costs were paid if neither a bill was given nor a request was
made; or
(c) an application has been made under this Division by another person in
respect of the legal costs.
285—Power of
Supreme Court on application for adjudication
(1) The Supreme Court's power to adjudicate and settle a bill of costs
(but no other power of the Supreme Court under this section) may, subject to any
rule, order or direction of the Court, be exercised by the Registrar of the
Court.
(2) Subject to the rules of the Court, an appeal lies to a judge against a
decision of the Registrar pursuant to subsection (1).
(3) If an application for adjudication of legal costs has been made in
accordance with this Division, the Court may—
(a) restrain a person claiming to be entitled to the costs from commencing
an action for recovery of the costs; or
(b) stay any proceedings for recovery of the costs.
(4) The Court may, on adjudication of a bill of costs under this
Division—
(a) order the refund of any amount overpaid; or
(b) if the proceedings have been instituted by the person seeking recovery
of the costs—order payment of legal costs in accordance with the
adjudicated bill.
286—Board
may institute proceedings
The Board may institute proceedings for the adjudication of legal costs
under section 282 and must institute such proceedings if ordered to do so
by the Tribunal.
287—Court may
order plaintiff to apply for adjudication
Any court in which proceedings for the recovery of legal costs have been
instituted may order the plaintiff to apply to have the legal costs adjudicated
in accordance with this Division, and may adjourn the proceedings until the
adjudication has been completed.
288—Consequences
of application
If an application for an adjudication of costs is made in accordance with
this Division—
(a) a party to the adjudication cannot be required to pay money into court
on account of the legal costs the subject of the application; and
(b) any proceedings to recover the legal costs that may have been
commenced by the law practice are stayed until the adjudication has been
completed; and
(c) the law practice must not commence any proceedings to recover the
legal costs until the adjudication has been completed.
289—Persons to be
notified of application
(1) The Supreme Court may cause a copy of an application for adjudication
of legal costs to be given to any law practice or client concerned or any other
person whom the Court thinks it appropriate to notify.
(2) A person who is notified by the Court under
subsection (1)—
(a) is entitled to participate in the adjudication process; and
(b) is taken to be a party to the adjudication; and
(c) if the Court so determines, is bound by the adjudication.
(1) In conducting an adjudication of legal costs, the Supreme Court must
consider—
(a) whether or not it was reasonable to carry out the work to which the
legal costs relate; and
(b) whether or not the work was carried out in a reasonable manner;
and
(c) the fairness and reasonableness of the amount of legal costs in
relation to the work, except to the extent that section 291 or 292 applies
to any disputed costs.
(2) In considering what is a fair and reasonable amount of legal costs,
the Supreme Court may have regard to any or all of the following
matters:
(a) whether the law practice and any Australian legal practitioner or
Australian-registered foreign lawyer acting on its behalf has complied with the
law;
(b) any disclosures made by the law practice under Division 3;
(c) any relevant advertisement as to—
(i) the law practice's costs; or
(ii) the skills of the law practice or of any Australian legal
practitioner or Australian-registered foreign lawyer acting on its
behalf;
(d) the skill, labour and responsibility displayed on the part of the
Australian legal practitioner or Australian-registered foreign lawyer
responsible for the matter;
(e) the retainer and whether the work done was within the scope of the
retainer;
(f) the complexity, novelty or difficulty of the matter;
(g) the quality of the work done;
(h) the place where, and circumstances in which, the legal services were
provided;
(i) the time within which the work was required to be done;
(j) any other relevant matter.
(3) In conducting an adjudication of legal costs payable by a
non-associated third party payer, the Supreme Court must also consider whether
it is fair and reasonable in the circumstances for the non-associated third
party payer to be charged the amount claimed.
291—Adjudication
of costs by reference to costs agreement
(1) The Supreme Court must adjudicate the amount of any disputed costs
that are subject to a costs agreement by reference to the provisions of the
costs agreement if—
(a) a relevant provision of the costs agreement specifies the amount, or a
rate or other means for calculating the amount, of the costs; and
(b) the agreement has not been set aside under section 275,
unless the Court is satisfied—
(c) that the agreement does not comply in a material respect with any
applicable disclosure requirements of Division 3; or
(d) that Division 5 precludes the law practice concerned from recovering
the amount of the costs; or
(e) that the parties otherwise agree.
(2) The Court is not required to initiate an examination of the matters
referred to in subsection (1)(c) and (d).
292—Adjudication
of costs by reference to scale of costs
The Supreme Court must adjudicate the amount of any disputed costs that are
subject to a scale of costs by reference to the scale.
(1) The Supreme Court must determine the costs of an adjudication of
costs.
(2) Unless the Court otherwise orders, the law practice to which the legal
costs are payable or were paid must pay the costs of the adjudication
if—
(a) on the adjudication the legal costs are reduced by 15% or more;
or
(b) the Court is satisfied that the law practice failed to comply with
Division 3.
(3) Unless the Court otherwise orders, if the law practice is not, under
subsection (2), liable to pay the costs of the adjudication, the costs of
the adjudication must be paid by the applicant for the adjudication.
294—Referral for
disciplinary action
(1) If, on an adjudication, the Supreme Court considers that the legal
costs charged by a law practice are grossly excessive, the Court must refer the
matter to the Board to consider whether disciplinary action should be
taken.
(2) If the Court considers that an adjudication raises any other matter
that may amount to unsatisfactory professional conduct or professional
misconduct on the part of an Australian legal practitioner or
Australian-registered foreign lawyer, the Court may refer the matter to the
Board or a corresponding authority to consider whether disciplinary action
should be taken.
295—Contracting
out of Division by sophisticated clients
A sophisticated client of a law practice, or an associated third party
payer who would be a sophisticated client if the third party payer were a client
of the law practice concerned, may contract out of this Division (but no such
contract affects the Board's power to institute proceedings for the adjudication
of legal costs under section 286).
296—Application
of Part to incorporated legal practices and multi-disciplinary
partnerships
The regulations may provide that specified provisions of this Part do not
apply to incorporated legal practices or multi-disciplinary partnerships or both
or apply to them with specified modifications.
297—Imputed acts,
omissions or knowledge
For the purposes of this Part—
(a) anything done or omitted by, to or in relation to—
(i) an Australian legal practitioner; or
(ii) an Australian-registered foreign lawyer (except for the purposes of
section 271(4) or for the purposes of any provision of this Part prescribed
for the purposes of this section),
in the course of acting on behalf of a law practice is taken to have been
done or omitted by, to or in relation to the law practice; and
(b) without limiting paragraph (a), the law practice is taken to
become or be aware of, or to have a belief as to, any matter if—
(i) an Australian legal practitioner; or
(ii) an Australian-registered foreign lawyer (except for the purposes of
section 271(4) or for the purposes of any provision of this Part prescribed
for the purposes of this section),
becomes or is aware of, or has a belief as to, the matter in the course of
acting on behalf of the law practice.
Part
4—Professional indemnity insurance
298—Professional
indemnity insurance scheme
(1) The Society may, with the approval of the Attorney-General, establish
a scheme providing professional indemnity insurance, to an extent provided by
the scheme, for the benefit of local legal practitioners.
(2) The scheme—
(a) will operate for the benefit of a class, or classes, of local legal
practitioners defined in the scheme;
(b) will provide for insurance indemnity partially under a master policy
negotiated between the Society and insurers participating in the scheme and
partially from a professional indemnity fund to be established, administered and
applied in accordance with the scheme;
(c) may provide for the determination and settlement of claims against
local legal practitioners covered by the scheme;
(d) may impose on local legal practitioners obligations to pay premiums,
levies, fees or other charges (which may vary according to factors stipulated in
the scheme);
(e) may impose, or provide for the imposition of, civil or criminal
sanctions or penalties against local legal practitioners who fail to comply with
their obligations under the scheme;
(f) may confer discretionary powers on the Society in relation to the
administration or enforcement of the scheme;
(g) may make any other provision reasonably necessary for, or incidental
to, the administration or enforcement of the scheme.
(3) The scheme, and any amendment to the scheme made by the Society with
the approval of the Attorney-General, have the force of law and are binding
on—
(a) the Society;
(b) the local legal practitioners covered by the scheme;
(c) the insurers and other persons to whom the scheme applies.
(4) The Society must keep a copy of the scheme and of any amendment to the
scheme available for inspection at its public office and must, on request for a
copy of the scheme or amendment and payment of a reasonable fee fixed by the
Society, provide such a copy.
(5) In this section—
local legal practitioner includes a person who has ceased to
be a local legal practitioner but who was a local legal practitioner when a
liability covered by the scheme arose;
professional indemnity insurance means insurance
against—
(a) civil liability arising in connection with engaging in legal practice
(whether the liability arises from an act or omission on the part of the insured
legal practitioner or some other person); or
(b) civil liability incurred by a local legal practitioner in connection
with the administration of a trust of which the practitioner is a
trustee.
Part
5—The legal practitioners' guarantee fund
In this Part—
capping and sufficiency provisions of—
(a) this jurisdiction—means sections 313 and 330; or
(b) another jurisdiction—means the provisions of the corresponding
law of that jurisdiction that correspond to those sections;
claim means a claim under this Part;
claimant means a person who makes a claim under this
Part;
concerted interstate default means a default of a law
practice arising from or constituted by an act or omission—
(a) that was committed jointly by 2 or more associates of the practice;
or
(b) parts of which were committed by different associates of the practice
or different combinations of associates of the practice,
where this jurisdiction is the relevant jurisdiction for at least 1 of the
associates and another jurisdiction is the relevant jurisdiction for at least 1
of the associates;
default, in relation to a law practice,
means—
(a) a failure of the practice to pay or deliver trust money or trust
property that was received by the practice in the course of it engaging in legal
practice, where the failure arises from an act or omission of an associate that
involves dishonesty; or
(b) a fraudulent dealing with trust property that was received by the
practice in the course of it engaging in legal practice, where the fraudulent
dealing arises from or is constituted by an act or omission of an associate that
involves dishonesty;
Note—
Section 198 describes when money is received for the purposes of this
Act.
dishonesty includes fraud;
pecuniary loss, in relation to a default,
means—
(a) the amount of trust money, or the value of trust property, that is not
paid or delivered; or
(b) the amount of money that a person loses or is deprived of, or the loss
of value of trust property, as a result of a fraudulent dealing;
relevant jurisdiction—see section 305.
(1) This section applies for the purpose of determining which
jurisdiction’s law applies in relation to a default.
(2) The default is taken to have occurred when the act or omission giving
rise to or constituting the default occurred.
(3) An omission is taken to have occurred on the day on or by which the
act not performed ought reasonably to have been performed or on such other day
as is determined in accordance with the regulations.
(1) The Society must continue to maintain the legal practitioners'
guarantee fund.
(2) The Society may from time to time invest any of the money
constituting, or forming part of, the guarantee fund in any manner in which
trustees are authorised by statute to invest trust funds, and may advance, on
such terms and conditions as the Society thinks fit, money from the guarantee
fund to the statutory interest account.
(3) The guarantee fund consists of—
(a) the money paid into it from the statutory interest account;
and
(b) all money recovered by the Society under this Part; and
(c) a prescribed proportion of the fees paid in respect of the issue or
renewal of local practising certificates; and
(d) costs recovered by the Attorney-General, the Board or the Society in
disciplinary proceedings against Australian legal practitioners or former
Australian legal practitioners; and
(e) any fee paid to the Board; and
(f) any other money required to be paid into the guarantee fund under this
Act; and
(g) any money that the Society thinks fit to include in the guarantee
fund; and
(h) the income and accretions arising from the investment of the money
constituting the guarantee fund.
(4) Subject to subsection (5), money in the guarantee fund may be
applied for any of the following purposes:
(a) meeting any expenses incurred by LPEAC in exercising its functions and
powers under this Act;
(b) meeting any expenses incurred by the Board of Examiners in exercising
its functions and powers under this Act;
(c) the costs incurred by the Society in appointing an Australian legal
practitioner to appear in proceedings in which a person seeks admission to the
legal profession in this or another jurisdiction;
(d) the costs of investigating complaints against Australian legal
practitioners or former Australian legal practitioners and of disciplinary
proceedings against Australian legal practitioners or former Australian legal
practitioners;
(e) the costs of investigating complaints against Australian-registered
foreign lawyers or former Australian-registered foreign lawyers and of
disciplinary proceedings against Australian-registered foreign lawyers or former
Australian-registered foreign lawyers;
(f) the costs of proceedings instituted by the Board for the adjudication
of legal costs;
(g) the costs of prosecutions for offences against this Act;
(h) the costs of an investigation or external examination conducted at the
direction of the Society under Chapter 3 Part 2;
(i) costs consequent on the appointment of a supervisor of trust money, a
manager or a receiver under Chapter 5;
(j) the payment of honoraria, approved by the Attorney-General, to members
of the Board and the Tribunal;
(k) the legal costs payable by—
(i) a member of the Board in relation to any action against the member
arising from an honest act or omission in the performance or purported
performance of a duty imposed by or under this Act; or
(ii) any person in relation to any action arising from an honest act or
omission in the exercise or purported exercise of powers or functions under
Chapter 3 Part 2 or delegated by the Board;
(l) the payment of money towards the costs of an arrangement under Part 4
to the extent that those costs are, in accordance with the terms of the scheme
and with the approval of the Attorney-General, to be paid from the guarantee
fund;
(m) the costs of processing claims under this Part and of paying out those
claims to the extent authorised by this Part;
(n) defraying any management fee or other expenditure relating to the
management or administration of the guarantee fund;
(o) educational or publishing programs conducted for the benefit of
Australian legal practitioners or members of the public.
(5) No payment may be made from the guarantee fund except with the
authorisation of the Attorney-General.
(6) The Attorney-General may, before authorising a payment from the
guarantee fund, require the Society, the Tribunal, the Board or any person
engaged in the administration of this Act to provide such information and
explanations as to the reason for the proposed payment as the Attorney-General
may reasonably require.
(1) The Society may arrange with an insurer for the insurance of the
guarantee fund.
(2) Without limiting subsection (1), the Society may arrange for the
insurance of the guarantee fund against particular claims or particular classes
of claims.
(3) The premium on a policy of insurance entered into under this section
must be paid out of the guarantee fund.
(4) The proceeds paid under a policy of insurance against particular
claims or particular classes of claims are to be paid into the guarantee fund,
and a claimant is not entitled to have direct recourse to the proceeds or any
part of them.
(5) No liability (including liability in defamation) is incurred by a
protected person in respect of anything done or omitted to be done in good faith
for the purpose of arranging for the insurance of the guarantee fund.
(6) In this section—
protected person means—
(a) the Society; or
(b) the Council; or
(c) an officer, employee or agent of the Society; or
(d) a person acting at the direction of any person or entity referred to
in this definition.
The Society cannot borrow money for the purposes of the guarantee
fund.
(1) The Society must, on or before 31 October in each year, report to the
Attorney-General on the administration of this Part during the preceding
financial year.
(2) The report must state—
(a) the amount of the payments from the guarantee fund; and
(b) the nature of the claims in respect of which payments were made;
and
(c) any other purpose for which money in the fund has been
applied,
during the financial year.
(3) The Attorney-General must, within 12 sitting days after receiving
a report under this section, cause copies of the report to be laid before both
Houses of Parliament.
Division
3—Defaults to which this Part applies
305—Meaning
of relevant
jurisdiction
(1) The relevant jurisdiction for an associate of a law practice whose act
or omission (whether alone or with 1 or more other associates of the practice)
gives rise to or constitutes a default of the practice is to be determined under
this section.
Note—
The concept of an associate’s “relevant jurisdiction” is
used to determine the jurisdiction whose guarantee fund is liable for a default
of a law practice arising from an act or omission committed by the associate.
The relevant jurisdiction for an associate is in most cases the
associate’s home jurisdiction.
(2) In the case of a default involving trust money received in Australia
(whether or not it was paid into an Australian trust account), the relevant
jurisdiction for the associate is—
(a) if the trust money was paid into an Australian trust account and if
the associate (whether alone or with a co-signatory) was authorised to withdraw
any or all of the trust money from the only or last Australian trust account in
which the trust money was held before the default—the jurisdiction under
whose law that trust account was maintained; or
(b) in any other case—the associate’s home
jurisdiction.
(3) In the case of a default involving trust money received outside
Australia and paid into an Australian trust account, the relevant jurisdiction
for the associate is—
(a) if the associate (whether alone or with a co-signatory) was authorised
to withdraw any or all of the trust money from the only or last Australian trust
account in which the trust money was held before the default—the
jurisdiction under whose law that trust account was maintained; or
(b) in any other case—the associate’s home
jurisdiction.
(4) In the case of a default involving trust property received in
Australia, or received outside Australia and brought to Australia, the relevant
jurisdiction for the associate is the associate’s home
jurisdiction.
Note—
Section 335 provides that the Society may treat the default as
consisting of 2 or more defaults for the purpose of determining the liability of
the guarantee fund.
306—Defaults to
which this Part applies
(1) This Part applies to a default of a law practice arising from or
constituted by an act or omission of 1 or more associates of the practice, where
this jurisdiction is the relevant jurisdiction for the only associate or 1 or
more of associates involved.
(2) It is immaterial where the default occurs.
(3) It is immaterial that the act or omission giving rise to or
constituting a default does not constitute a crime or other offence under the
law of this or any other jurisdiction or of the Commonwealth or that proceedings
have not been commenced or concluded in relation to a crime or other offence of
that kind.
307—Defaults
relating to financial services or investments
(1) This Part does not apply to a default of a law practice to the extent
that the default occurs in relation to money or property that is entrusted to or
held by the practice for or in connection with—
(a) a financial service provided by the practice or an associate of the
practice in circumstances where the practice or associate is required to hold an
Australian financial services licence covering the provision of the service
(whether not such a licence is held at any relevant time); or
(b) a financial service provided by the practice or an associate of the
practice in circumstances where the practice or associate provides the service
as a representative of another person who carries on a financial services
business (whether or not the practice or associate is an authorised
representative at any relevant time).
(2) Without limiting subsection (1), this Part does not apply to a
default of a law practice to the extent that the default occurs in relation to
money or property that is entrusted to or held by the practice for or in
connection with—
(a) a managed investment scheme; or
(b) mortgage financing,
undertaken by the practice.
(3) Without limiting subsections (1) and (2), this Part does not
apply to a default of a law practice to the extent that the default occurs in
relation to money or property that is entrusted to or held by the practice for
investment purposes, whether on its own account or as agent,
unless—
(a) the money or property was entrusted to or held by the
practice—
(i) in the ordinary course of legal practice; and
(ii) primarily in connection with the provision of legal services to or at
the direction of the client; and
(b) the investment is or is to be made—
(i) in the ordinary course of legal practice; and
(ii) for the ancillary purpose of maintaining or enhancing the value of
the money or property pending completion of the matter or further stages of the
matter or pending payment or delivery of the money or property to or at the
direction of the client.
(4) In this section—
Australian financial services licence, authorised
representative, financial service and financial
services business have the same meanings as in Chapter 7 of the
Corporations Act 2001 of the Commonwealth.
Division 4—Claims
about defaults
(1) A person who suffers pecuniary loss because of a default to which this
Part applies may make a claim against the guarantee fund to the Society about
the default.
(2) A claim is to be made in writing in a form approved by the
Society.
(3) The Society may, in considering any claim made under this Part, by
notice in writing served on any person, require the person, within the time
specified in the notice, to do any or all of the following:
(a) to give further information about the claim or any dispute to which
the claim relates;
(b) to verify the claim or any further information, by statutory
declaration;
(c) to deliver up any document in his or her possession or power relevant
to the determination of the claim.
(4) A person must not, without reasonable excuse, fail to comply with a
notice served on him or her under subsection (3).
Maximum penalty: $5 000.
309—Personal
representative may make claim
The personal representative of a person (including a deceased person) is
entitled to make a claim under this Part on behalf of the person or the person's
estate.
310—Time
limit for making claims
(1) Subject to section 312, a claim does not lie against the
guarantee fund unless the prospective claimant notifies the Society of the
default concerned—
(a) within the period of 6 months after the prospective claimant becomes
aware of the default; or
(b) within a further period allowed by the Society; or
(c) if the Supreme Court allows further time after the Society refuses to
do so—within a period allowed by the Supreme Court.
(2) The Supreme Court or Society may allow a further period referred to in
subsection (1) if satisfied that—
(a) it would be reasonable to do so after taking into account all
ascertained and contingent liabilities of the guarantee fund; and
(b) it would be appropriate to do so in a particular case having regard to
matters the Supreme Court or Society considers relevant.
(1) If the Society considers that there has been, or may have been, a
default by a law practice, it may publish 1 or more of the following:
(a) a notice that seeks information about the default;
(b) a notice that invites claims about the default and fixes a final date
after which claims relating to the default cannot be made;
(c) a notice that states that a cap applies to claims relating to the
default.
(2) The final date fixed by a notice must be a date that
is—
(a) at least 3 months later than the date of the first or only publication
of the notice; and
(b) not more than 12 months after the date of that first or only
publication.
(3) A notice must be published—
(a) in a newspaper circulating generally throughout Australia;
and
(b) in a newspaper circulating generally in each jurisdiction where the
law practice—
(i) has an office; or
(ii) at any relevant time had an office,
if known to the Society; and
(c) on the internet site (if any) of the Society.
(4) The Society may provide information to persons making inquiries in
response to a notice published under this section.
(5) Apart from extending the period during which claims can be made under
this Part (where relevant), publication of a notice under this section does not
confer any entitlements in relation to any claim or the default to which it
relates or provide any grounds affecting the determination of any
claim.
(6) Neither the publication in good faith of a notice under this section,
nor the provision of information in good faith under this section, subjects a
protected person to any liability (including liability in defamation).
(7) In this section—
protected person, in relation to the publication of a notice
under this section, means—
(a) the Society; or
(b) the Council; or
(c) an officer, employee or agent of the Society; or
(d) the proprietor, editor or publisher of any newspaper in which the
notice is published; or
(e) an internet service provider or internet content host for any internet
site on which the notice is published; or
(f) a person acting at the direction of any person or entity referred to
in this definition; or
(g) a person who responds to a notice under this section.
312—Time
limit for making claims following advertisements
(1) This section applies if the Society publishes a notice under
section 311 fixing a final date after which claims relating to a default
cannot be made.
(2) A claim may be made—
(a) up to and including the final date fixed under the notice;
or
(b) within a further period allowed by the Society; or
(c) if the Supreme Court allows further time after the Society refuses to
do so—within a period allowed by the Supreme Court,
even though it would have been barred under section 310 had the notice
not been published.
313—Caps
on payments following advertisements
(1) If a notice is published by the Society under section 311(1)(c),
the maximum amount that may be applied towards satisfaction of all claims to
which the notice relates is—
(a) if a percentage is prescribed by regulation—the prescribed
percentage; or
(b) if no percentage is prescribed by regulation—5
percent,
of the balance of the guarantee fund (calculated to the nearest
$1 000) as disclosed in the accounts of the guarantee fund last audited
before the proposed application of money towards satisfaction of the
claims.
(2) Despite subsection (1), the Society may authorise payment of a
larger amount if satisfied that it would be reasonable to do so after taking
into account the position of the guarantee fund and the circumstances of the
particular case.
314—Claims not
affected by certain matters
(1) A claim may be made about a law practice’s default despite a
change in the status of the practice or the associate concerned after the
occurrence of the act or omission giving rise to or constituting the
default.
(2) A claim that has been made is not affected by a later change in the
status of the practice or associate.
(3) For the purposes of this section, a change in status
includes—
(a) a change in the membership or staffing or the dissolution of the
practice (in the case of a partnership); and
(b) a change in the directorship or staffing or the winding up or
dissolution of the practice (in the case of an incorporated legal practice);
and
(c) the fact that the associate has ceased to practise or to hold an
Australian practising certificate (in the case of an associate who was an
Australian legal practitioner); and
(d) the death of the associate (in the case of a natural
person).
The Society may investigate a claim made to it, including the default to
which it relates, in any manner it considers appropriate.
(1) The Society may, at its absolute discretion, make payments to a
claimant in advance of the determination of a claim if satisfied
that—
(a) the claim is likely to be allowed; and
(b) payment is warranted to alleviate hardship.
(2) A payment may be made under this section even if there is some
prospect that the whole or a part of the claimant's pecuniary loss will be
recovered from another source.
(3) Any payments made in advance are to be taken into account when the
claim is determined.
(4) Payments under this section are to be made from the guarantee
fund.
(5) If the claim is disallowed, the amounts paid under this section are
recoverable by the Society as a debt due to the guarantee fund.
(6) If the claim is allowed but the amount payable is less than the amount
paid under this section, the excess paid under this section is recoverable by
the Society as a debt due to the guarantee fund.
(7) Nothing in this section affects the right of the Society to recover
surplus payments under section 323.
Division
5—Determination of claims
(1) The Society may determine a claim by wholly or partly allowing or
disallowing it.
(2) The Society may disallow a claim to the extent that the claim does not
relate to a default for which the guarantee fund is liable.
(3) The Society may wholly or partly disallow a claim, or reduce a claim,
to the extent that—
(a) the claimant knowingly assisted in or contributed towards, or was a
party or accessory to, the act or omission giving rise to the claim;
or
(b) the negligence of the claimant contributed to the loss; or
(c) the conduct of the transaction with the law practice in relation to
which the claim is made was illegal, and the claimant knew or ought reasonably
to have known of that illegality; or
(d) proper and usual records were not brought into existence during the
conduct of the transaction, or were destroyed, and the claimant knew or ought
reasonably to have known that records of that kind would not be kept or would be
destroyed; or
(e) the claimant has unreasonably refused to disclose information or
documents to or co-operate with—
(i) the Society; or
(ii) any other authority (including, for example, an investigative or
prosecuting authority),
in the investigation of the claim.
(4) Subsections (2) and (3) do not limit the Society's power to
disallow a claim on any other ground.
(5) Without limiting subsection (2) or (3), the Society may reduce
the amount otherwise payable on a claim to the extent the Society considers
appropriate—
(a) if satisfied that the claimant assisted in or contributed towards, or
was a party or accessory to, the act or omission giving rise to the claim;
or
(b) if satisfied that the claimant unreasonably failed to mitigate losses
arising from the act or omission giving rise to the claim; or
(c) if satisfied that the claimant has unreasonably hindered the
investigation of the claim.
(6) The Society must, in allowing a claim, specify the amount
payable.
(1) The amount payable in respect of a default must not exceed the
pecuniary loss resulting from the default.
(2) This section does not apply to costs payable under section 319 or
to interest payable under section 320.
(1) If the Society wholly or partly allows a claim, the Society must order
payment of the claimant’s reasonable legal costs involved in making and
proving the claim, unless the Society considers that special circumstances exist
warranting a reduction in the amount of costs or warranting a determination that
no amount should be paid for costs.
(2) If the Society wholly disallows a claim, the Society may order payment
of the whole or part of the claimant’s reasonable legal costs involved in
making and attempting to prove the claim, where the Society considers it is
appropriate to make the order.
(3) The costs are payable from the guarantee fund.
(1) In determining the amount of pecuniary loss resulting from a default,
the Society is to add interest on the amount payable (excluding interest),
unless the Society considers that special circumstances exist warranting a
reduction in the amount of interest or warranting a determination that no amount
should be paid by way of interest.
(2) The interest is to be calculated from the date on which the claim was
made, to the date the Society notifies the claimant that the claim has been
allowed, at the rate specified in or determined under the regulations.
(3) To the extent that regulations are not in force for the purposes of
subsection (2), interest is to be calculated at the rate of 5 per cent per
annum.
(4) The interest is payable from the guarantee fund.
321—Reduction of
claim because of other benefits
A person is not entitled to recover from the guarantee fund any amount
equal to amounts or to the value of other benefits—
(a) that have already been paid to or received by the person; or
(b) that have already been determined and are payable to or receivable by
the person; or
(c) that (in the opinion of the Society) are likely to be paid to or
received by the person; or
(d) that (in the opinion of the Society) might, but for neglect or failure
on the person’s part, have been paid or payable to or received or
receivable by the person,
from other sources in respect of the pecuniary loss to which a claim
relates.
(1) On payment of a claim from the guarantee fund, the Society is
subrogated to the rights and remedies of the claimant against any person in
relation to the default to which the claim relates.
(2) Without limiting subsection (1), that subsection extends to a
right or remedy against—
(a) the associate in respect of whom the claim is made; or
(b) the person authorised to administer the estate of the associate in
respect of whom the claim is made and who is deceased or an insolvent under
administration.
(3) Subsection (1) does not apply to a right or remedy against an
associate if, had the associate been a claimant in respect of the default, the
claim would not be disallowable on any of the grounds set out in
section 317(3).
(4) The Society may exercise its rights and remedies under this section in
its own name or in the name of the claimant.
(5) If the Society brings proceedings under this section in the name of
the claimant, it must indemnify the claimant against any costs awarded against
the claimant in the proceedings.
(6) Despite any other law, the limitation period within which the Society
may exercise its rights and remedies under this section commences on the day on
which payment of the claim from the guarantee fund is made to the
claimant.
(7) The Society must pay into the guarantee fund any money recovered in
exercising its rights and remedies under this section.
323—Repayment
of certain amounts
(1) If a claimant—
(a) receives a payment from the guarantee fund in respect of the claim;
and
(b) receives or recovers from another source or sources a payment on
account of the pecuniary loss; and
(c) there is a surplus after deducting the amount of the pecuniary loss
from the total amount received or recovered by the claimant from both or all
sources,
the amount of the surplus is a debt payable by the claimant to the
fund.
(2) However, the amount payable by the claimant cannot exceed the amount
the claimant received from the guarantee fund in respect of the claim.
324—Notification
of delay in making decision
(1) If the Society considers that a claim is not likely to be determined
within 12 months after the claim was made, the Society must notify the claimant
in writing that the claim is not likely to be determined within that
period.
(2) The notification must contain a brief statement of reasons for the
delay.
(1) The Society must, as soon as practicable, notify the claimant in
writing about any decision it makes about the claim.
(2) If the decision is to disallow the claim, wholly or partly, or to
reduce the amount allowed in respect of the claim, the notification must include
an information notice.
(3) If the decision is to limit the amount payable, or to decline to pay
an amount, under the capping and sufficiency provisions of this jurisdiction,
the notification must include advice that—
(a) the decision was made under those provisions; and
(b) an appeal does not lie against the decision.
(4) The notification must be served—
(a) on the claimant or the claimant's personal representative;
or
(b) if the claimant is dead and has not left a personal representative
known to the Society, or if the whereabouts of the claimant is unknown—by
publication in the Gazette.
326—Appeal
against decision on claim
(1) A claimant may appeal to the Supreme Court against—
(a) a decision of the Society to wholly or partly disallow a claim;
or
(b) a decision of the Society to reduce the amount allowed in respect of a
claim,
but an appeal does not lie against a decision of the Society to limit the
amount payable, or to decline to pay an amount, under the capping and
sufficiency provisions of this jurisdiction.
(2) An appeal against a decision must be lodged within 3 months of
receiving the information notice about the decision.
(3) On an appeal under this section—
(a) the appellant must establish that the whole or part of the amount
sought to be recovered from the guarantee fund is not reasonably available from
other sources, unless the Society waives that requirement; and
(b) the Supreme Court may, on application by the Society, stay the appeal
pending further action being taken to seek recovery of the whole or part of that
amount from other sources.
(4) In any proceedings under this section, evidence of an admission or
confession is admissible to prove a fiduciary or professional default, despite
the fact that the person by whom the admission or confession was made is not a
party to the proceedings.
(5) The Supreme Court may—
(a) affirm the decision; or
(b) if satisfied that the reasons for varying or setting aside the
Society's decision are sufficiently cogent to warrant doing so—
(i) vary the decision; or
(ii) set aside the decision and make a decision in substitution for the
decision set aside; or
(iii) set aside the decision and remit the matter for reconsideration by
the Society in accordance with any directions or recommendations of the
Court,
and may make other orders as it thinks fit.
(6) No order for costs is to be made on an appeal under this section
unless the Supreme Court is satisfied that an order for costs should be made in
the interests of justice.
327—Appeal
against failure to determine claim
(1) A claimant may appeal to the Supreme Court against a failure of the
Society to determine a claim within the period of 12 months after the claim
was made.
(2) An appeal against a failure to determine a claim may be made at any
time after the period of 12 months after the claim was made and while the
failure continues.
(3) On an appeal under this section—
(a) the appellant must establish that the whole or part of the amount
sought to be recovered from the guarantee fund is not reasonably available from
other sources, unless the Society waives that requirement; and
(b) the Supreme Court may, on application by the Society, stay the appeal
pending further action being taken to seek recovery of the whole or part of that
amount from other sources.
(4) The Supreme Court may determine the appeal—
(a) by—
(i) giving directions to the Society for the expeditious determination of
the matter; and
(ii) if the Court is satisfied that there has been unreasonable
delay—ordering that interest be paid at a specified rate that is higher
than the rate applicable under section 320, until further order or the
determination of the claim; and
(iii) if the Court is satisfied that there has not been unreasonable
delay—ordering that, if delay continues in circumstances of a specified
kind, interest be paid for a specified period at a specified rate that is higher
than the rate applicable under section 320, until further order or the
determination of the claim; or
(b) by deciding not to give directions or make orders under
paragraph (a).
(5) No order for costs is to be made on an appeal under this section
unless the Supreme Court is satisfied that an order for costs should be made in
the interests of justice.
In any proceedings brought in a court under section 322 or
section 326—
(a) evidence of any admission or confession by, or other evidence that
would be admissible against, an Australian legal practitioner or other person
with respect to an act or omission giving rise to a claim is admissible to prove
the act or omission despite the fact that the practitioner or other person is
not a defendant in, or a party to, the proceedings; and
(b) any defence that would have been available to the practitioner or
other person is available to the Society.
Division
6—Payments from guarantee fund for defaults
(1) Subject to this Act, the guarantee fund is to be applied by the
Society for the purpose of compensating claimants in respect of claims allowed
under this Part in respect of defaults to which this Part applies.
(2) An amount payable from the guarantee fund in respect of a claim is
payable to the claimant or to another person at the claimant’s
direction.
330—Sufficiency
of guarantee fund
(1) If the Society is of the opinion that the guarantee fund is likely to
be insufficient to meet the fund’s ascertained and contingent liabilities,
the Society may do any or all of the following:
(a) postpone all payments relating to all or any class of claims out of
the fund;
(b) impose a levy under section 331;
(c) make partial payments of the amounts of 1 or more allowed claims out
of the fund with payment of the balance being a charge on the fund;
(d) make partial payments of the amounts of 2 or more allowed claims out
of the fund on a pro rata basis, with payment of the balance ceasing to be a
liability of the fund.
(2) In deciding whether to do any or all of the things mentioned in
subsection (1), the Society—
(a) must have regard to hardship where relevant information is known to
the Society; and
(b) must endeavour to treat outstanding claims equally and equitably, but
may make special adjustments in cases of hardship.
(3) If the Society declares that a decision is made under
subsection (1)(d)—
(a) the balance specified in the declaration ceases to be a liability of
the guarantee fund; and
(b) the Society may (but need not) at any time revoke the declaration in
relation to either the whole or a specified part of the balance and the balance
or that part of the balance again becomes a liability of the guarantee
fund.
(4) A decision of the Society made under this section is final and not
subject to appeal or review.
(1) If the Society is at any time of the opinion that the guarantee fund
is likely to be insufficient to meet the liabilities to which it is subject, the
Society may, by resolution of the Council, impose on each local legal
practitioner a levy payable to the Society on account of the guarantee
fund.
(2) A levy is to be of such amount as the Attorney-General determines
following consultation with the Society and may differ according to factors
determined by the Attorney-General.
(3) Without limiting subsection (2), the Attorney-General may
determine that the amount of the levy is to differ according to whether a
practitioner is practising—
(a) on his or her own account or in partnership; or
(b) as an employee of another solicitor; or
(c) as an employee of a person who is not a solicitor, or of a
corporation; or
(d) as an employee of the Crown.
(4) A levy is payable at the time, and in the manner, fixed by the Society
and is recoverable by the Society as a debt due to the guarantee fund.
Division 7—Claims
by law practices or associates
332—Claims by law
practices or associates about defaults
(1) This section applies to a default of a law practice arising from or
constituted by an act or omission of an associate of the practice.
(2) A claim may be made under section 308 by another associate of the
law practice, if the associate suffers pecuniary loss because of the
default.
(3) A claim may be made under section 308 by the law practice, if the
practice is an incorporated legal practice and it suffers pecuniary loss because
of the default.
333—Claims by law
practices or associates about notional defaults
(1) This section applies if a default of a law practice arising from or
constituted by an act or omission of an associate of the practice was avoided,
remedied or reduced by a financial contribution made by the practice or by 1 or
more other associates.
(2) The default, to the extent that it was avoided, remedied or reduced,
is referred to in this section as a notional default.
(3) This Part applies to a notional default in the same way as it applies
to other defaults of law practices, but only the law practice or the other
associate or associates concerned are eligible to make claims about the notional
default.
Division
8—Defaults involving interstate elements
334—Concerted
interstate defaults
(1) The Society may treat a concerted interstate default as if the default
consisted of 2 or more separate defaults—
(a) 1 of which is a default to which this Part applies, where this
jurisdiction is the relevant jurisdiction for 1 or more of the associates
involved; and
(b) the other or others of which are defaults to which this Part does not
apply, where another jurisdiction or jurisdictions are the relevant
jurisdictions for 1 or more of the associates involved.
(2) The Society may treat a claim about a concerted interstate default as
if the claim consisted of—
(a) 1 or more claims made under this Part; and
(b) 1 or more claims made under a corresponding law or laws.
(3) A claim about a concerted interstate default is to be assessed on the
basis that the guarantee funds of the relevant jurisdictions involved are to
contribute—
(a) in equal shares in respect of the default, regardless of the number of
associates involved in each of those jurisdictions, and disregarding the capping
and sufficiency provisions of those jurisdictions; or
(b) in other shares as agreed by the Society and the corresponding
authority or authorities involved.
(4) Subsection (3) does not affect the application of the capping and
sufficiency requirements of this jurisdiction in respect of the amount payable
from the guarantee fund after the claim has been assessed.
335—Defaults
involving interstate elements where committed by 1 associate
only
(1) This section applies to a default of a law practice arising from or
constituted by an act or omission that was committed by only 1 associate of the
practice, where the default involves more than 1 of the cases referred to in
section 305(2) to (4).
(2) The Society may treat the default to which this section applies as if
the default consisted of 2 or more separate defaults—
(a) 1 of which is a default to which this Part applies, where this
jurisdiction is the relevant jurisdiction; and
(b) the other or others of which are defaults to which this Part does not
apply, where another jurisdiction or jurisdictions are the relevant
jurisdictions.
(3) The Society may treat a claim about the default to which this section
applies as if the claim consisted of—
(a) 1 or more claims made under this Part; and
(b) 1 or more claims made under a corresponding law or laws.
(4) A claim about a default to which this section applies is to be
assessed on the basis that the guarantee funds of the relevant jurisdictions
involved are to contribute—
(a) in equal shares in respect of the default, and disregarding the
capping and sufficiency provisions of those jurisdictions; or
(b) in other shares as agreed by the Society and the corresponding
authority or authorities involved.
(5) Subsection (4) does not affect the application of the capping and
sufficiency requirements of this jurisdiction in respect of the amount payable
from the guarantee fund after the claim has been assessed.
Division
9—Inter-jurisdictional provisions
(1) The Society is authorised to enter into arrangements (referred to in
this Part as protocols) with corresponding authorities for or with respect to
matters to which this Part relates.
(2) Without limiting subsection (1), protocols may provide that the
Society is taken to have—
(a) requested a corresponding authority to act as agent of the Society in
specified classes of cases; or
(b) agreed to act as agent of a corresponding authority in specified
classes of cases.
(3) Protocols may be amended, revoked or replaced by agreement between the
Society and the corresponding authority.
(1) If a claim is made to the Society about a default that appears to the
Society to be a default to which a corresponding law applies, the Society must
forward the claim or a copy of it to a corresponding authority of the
jurisdiction concerned.
(2) If a claim is made to a corresponding authority about a default that
appears to the Society to be a default to which this Part applies and the claim
or a copy of it is forwarded under a corresponding law to the Society by the
corresponding authority, the claim is taken—
(a) to have been made under this Part; and
(b) to have been so made when the claim was received by the corresponding
authority.
338—Investigation
of defaults to which this Part applies
(1) This section applies if a default appears to the Society to be a
default to which this Part applies and to have—
(a) occurred solely in another jurisdiction; or
(b) occurred in more than 1 jurisdiction; or
(c) occurred in circumstances in which it cannot be determined precisely
in which jurisdiction the default occurred.
(2) The Society may request a corresponding authority or corresponding
authorities to act as agent or agents for the Society, for the purpose of
processing or investigating a claim about the default or aspects of the
claim.
(3) A corresponding authority may act as agent of the Society, if
requested to do so by the Society, for the purpose of processing or
investigating a claim about the default or aspects of the claim.
339—Investigation
of defaults to which a corresponding law applies
(1) This section applies if a default appears to the Society to be a
default to which a corresponding law applies and to have—
(a) occurred solely in this jurisdiction; or
(b) occurred in more than 1 jurisdiction (including this jurisdiction);
or
(c) occurred in circumstances in which it cannot be determined precisely
in which jurisdiction the default occurred.
(2) The Society may act as agent of a corresponding authority, if
requested to do so by the corresponding authority, for the purpose of processing
or investigating a claim about the default or aspects of the claim.
(3) If the Society agrees to act as agent of a corresponding authority
under subsection (2), the Society may exercise any of its powers or
functions in relation to processing or investigating the claim or aspects of the
claim as if the claim had been made under this Part.
340—Investigation
of concerted interstate defaults and other defaults involving interstate
elements
(1) This section applies if it appears to the Society
that—
(a) a concerted interstate default; or
(b) a default to which section 335 applies,
has occurred.
(2) The Society may request a corresponding authority or corresponding
authorities to act as agent or agents for the Society, for the purpose of
processing or investigating a claim about the default or aspects of the
claim.
(3) The Society may act as agent of a corresponding authority, if
requested to do so by the corresponding authority, for the purpose of processing
or investigating a claim about the default or aspects of the claim.
(4) If the Society agrees to act as agent of a corresponding authority
under subsection (3), the Society may exercise any of its powers or
functions in relation to processing or investigating the claim or aspects of the
claim as if the claim had been made entirely under this Part.
341—Recommendations
by Society to corresponding authorities
If the Society is acting as agent of a corresponding authority in relation
to a claim made under a corresponding law, the Society may make recommendations
about the decision the corresponding authority might make about the
claim.
342—Recommendations
to and decisions by Society after receiving recommendations from corresponding
authorities
(1) If a corresponding authority makes recommendations about the decision
the Society might make about a claim in relation to which the corresponding
authority was acting as agent of the Society, the Society may—
(a) make its decision about the claim in conformity with all or any of the
recommendations, whether with or without further consideration, investigation or
inquiry; or
(b) disregard all or any of the recommendations.
(2) A corresponding authority cannot, as agent of the Society, make a
decision about the claim under Division 5.
343—Request to
another jurisdiction to investigate aspects of claim
(1) The Society may request a corresponding authority to arrange for the
investigation of any aspect of a claim being dealt with by the Society and to
provide a report on the result of the investigation.
(2) A report on the result of the investigation received
from—
(a) the corresponding authority; or
(b) a person or entity authorised by the corresponding authority to
conduct the investigation,
may be used and taken into consideration by the Society in the course of
dealing with the claim under this Part.
344—Request from
another jurisdiction to investigate aspects of claim
(1) This section applies in relation to a request received by the Society
from a corresponding authority to arrange for the investigation of any aspect of
a claim being dealt with under a corresponding law.
(2) The Society may conduct the investigation.
(3) The provisions of this Part relating to the investigation of a claim
apply, with any necessary adaptations, in relation to the investigation of the
relevant aspect of the claim that is the subject of the request.
(4) The Society must provide a report on the result of the investigation
to the corresponding authority.
345—Co-operation
with other authorities
(1) When dealing with a claim under this Part involving a law practice or
an Australian legal practitioner, the Society may consult and co-operate with
another person or body who or which has powers under the corresponding law of
another jurisdiction in relation to the practice or practitioner.
(2) For the purposes of subsection (1), the Society and the other
person or body may exchange information concerning the claim.
346—Interstate
legal practitioner becoming authorised to withdraw from local trust
account
(1) This section applies to an interstate legal practitioner who (whether
alone or with a co-signatory) becomes authorised to withdraw money from a local
trust account.
(2) The regulations may do either or both of the following:
(a) require the practitioner to notify the Society of the authorisation in
accordance with the regulations;
(b) require the practitioner to make contributions to the guarantee fund
in accordance with the regulations.
(3) Without limiting subsection (2), the regulations may determine or
provide for the determination of any or all of the following:
(a) the manner in which the notification is to be made and the information
or material that is to be included in or to accompany the
notification;
(b) the amount of the contributions, their frequency and the manner in
which they are to be made.
347—Application
of Part to incorporated legal practices
(1) The regulations may provide that specified provisions of this Part,
and any other provision of this Act or any legal profession rule relating to the
guarantee fund, do not apply to incorporated legal practices or apply to them
with specified modifications.
(2) Nothing in this section affects any obligation of an Australian legal
practitioner who is an officer or employee of an incorporated legal practice to
comply with the provisions of this Act or any legal profession rule relating to
the guarantee fund.
348—Application
of Part to multi-disciplinary partnerships
(1) The regulations may provide that specified provisions of this Part,
and any other provision of this Act or any legal profession rule relating to the
guarantee fund, do not apply to multi-disciplinary partnerships or apply to them
with specified modifications.
(2) Nothing in this section affects any obligation of an Australian legal
practitioner who is a partner or employee of a multi-disciplinary partnership to
comply with the provisions of this Act or any legal profession rule relating to
the guarantee fund.
349—Application
of Part to sole practitioners whose practising certificates
lapse
(1) This section applies if an Australian lawyer is not an Australian
legal practitioner because the practising certificate issued to the lawyer has
lapsed and the lawyer was a sole practitioner immediately before the certificate
lapsed, but does not apply where—
(a) the certificate has been suspended or cancelled under this Act or a
corresponding law; or
(b) the lawyer's application for the grant or renewal of an Australian
practising certificate has been refused under this Act or a corresponding law
and the lawyer would be an Australian legal practitioner had the application
been granted or renewed.
(2) For the purposes of other provisions of this Part, the practising
certificate is taken not to have lapsed, and accordingly the lawyer is taken to
continue to be an Australian legal practitioner.
(3) Subsection (2) ceases to apply—
(a) if a manager or receiver is appointed under this Act for the law
practice; or
(b) when the period of 6 months after the practising certificate actually
lapsed expires; or
(c) if the lawyer's application for the grant or renewal of an Australian
practising certificate is refused under this Act or a corresponding
law,
whichever first occurs.
Chapter
4—Complaints and discipline
Part
1—Introduction and application
350—Application
of Chapter to lawyers, former lawyers and former
practitioners
(1) This Chapter applies to Australian lawyers and former Australian
lawyers in relation to conduct occurring while they were Australian lawyers, but
not Australian legal practitioners, in the same way as it applies to Australian
legal practitioners and former Australian legal practitioners, and so applies
with any necessary modifications.
(2) This Chapter applies to former Australian legal practitioners in
relation to conduct occurring while they were Australian legal practitioners in
the same way as it applies to persons who are Australian legal practitioners,
and so applies with any necessary modifications.
Note—
See section 132 in relation to the application of this Chapter to
Australian-registered foreign lawyers.
351—Unsatisfactory
professional conduct
For the purposes of this Act—
unsatisfactory professional conduct includes conduct of an
Australian legal practitioner occurring in connection with the practice of law
that falls short of the standard of competence and diligence that a member of
the public is entitled to expect of a reasonably competent Australian legal
practitioner.
(1) For the purposes of this Act—
professional misconduct includes—
(a) unsatisfactory professional conduct of an Australian legal
practitioner, where the conduct involves a substantial or consistent failure to
reach or maintain a reasonable standard of competence and diligence;
and
(b) conduct of an Australian legal practitioner whether occurring in
connection with the practice of law or occurring otherwise than in connection
with the practice of law that would, if established, justify a finding that the
practitioner is not a fit and proper person to engage in legal
practice.
(2) For the purposes of finding that an Australian legal practitioner is
not a fit and proper person to engage in legal practice as mentioned in
subsection (1), regard may be had to the suitability matters that would be
considered if the practitioner were an applicant for admission to the legal
profession under this Act or for the grant or renewal of a local practising
certificate and any other relevant matters.
353—Conduct
capable of constituting unsatisfactory professional conduct or professional
misconduct
Without limiting section 351 or 352, the following conduct is capable
of constituting unsatisfactory professional conduct or professional
misconduct:
(a) conduct consisting of a contravention of this Act, the regulations or
the legal profession rules;
(b) charging of excessive legal costs in connection with the practice of
law;
(c) conduct in respect of which there is a conviction for—
(i) a serious offence; or
(ii) a tax offence; or
(iii) an offence involving dishonesty;
(d) conduct of an Australian legal practitioner as or in becoming an
insolvent under administration;
(e) conduct of an Australian legal practitioner in becoming disqualified
from managing or being involved in the management of any corporation under the
Corporations Act 2001 of the Commonwealth;
(f) conduct of an Australian legal practitioner in failing to comply with
an order of the Tribunal made under this Act or an order of a corresponding
disciplinary body made under a corresponding law (including but not limited to a
failure to pay wholly or partly a fine imposed under this Act or a corresponding
law);
(g) conduct of an Australian legal practitioner in failing to comply with
a compensation order made under this Act or a corresponding law.
Division
3—Application of Chapter
354—Practitioners
to whom this Chapter applies
This Chapter applies to an Australian legal practitioner in respect of
conduct to which this Chapter applies, and so applies—
(a) whether or not the practitioner is a local lawyer; and
(b) whether or not the practitioner holds a local practising certificate;
and
(c) whether or not the practitioner holds an interstate practising
certificate; and
(d) whether or not the practitioner resides or has an office in this
jurisdiction; and
(e) whether or not the person making a complaint about the conduct
resides, works or has an office in this jurisdiction.
355—Conduct
to which this Chapter applies—generally
(1) Subject to subsection (3), this Chapter applies to conduct of an
Australian legal practitioner occurring in this jurisdiction.
(2) This Chapter also applies to conduct of an Australian legal
practitioner occurring outside this jurisdiction, but only—
(a) if it is part of a course of conduct that has occurred partly in this
jurisdiction and partly in one or more other jurisdictions, and
either—
(i) the corresponding authority of each other jurisdiction in which the
conduct has occurred consents to its being dealt with under this Act;
or
(ii) the complainant and the practitioner consent to its being dealt with
under this Act; or
(b) if it occurs in Australia but wholly outside this jurisdiction and the
practitioner is a local lawyer or a local legal practitioner, and
either—
(i) the corresponding authority of each jurisdiction in which the conduct
has occurred consents to its being dealt with under this Act; or
(ii) the complainant and the practitioner consent to its being dealt with
under this Act; or
(c) if—
(i) it occurs wholly or partly outside Australia; and
(ii) the practitioner is a local lawyer or a local legal
practitioner.
(3) This Chapter does not apply to conduct of an Australian legal
practitioner occurring in this jurisdiction if the conduct is capable of being
dealt with under a corresponding law and—
(a) the Board consents to its being dealt with under the corresponding
law; or
(b) the complainant and the Australian legal practitioner consent to its
being dealt with under the corresponding law.
(4) The Board may give consent for the purposes of subsection (3)(a),
and may do so conditionally or unconditionally.
356—Conduct to
which this Chapter applies—insolvency, serious offences and tax
offences
(1) This Chapter applies to the following conduct of a local legal
practitioner whether occurring in Australia or elsewhere:
(a) conduct of the practitioner in respect of which there is a conviction
for—
(i) a serious offence; or
(ii) a tax offence; or
(iii) an offence involving dishonesty;
(b) conduct of the practitioner as or in becoming an insolvent under
administration;
(c) conduct of the practitioner in becoming disqualified from managing or
being involved in the management of any corporation under the Corporations
Act 2001 of the Commonwealth.
(2) This section has effect despite anything in
section 355.
Part
2—Complaints and discipline
Division
1—Investigations by Legal Practitioners Conduct Board
Subdivision
1—Investigation of unsatisfactory professional conduct and professional
misconduct
(1) The Board may, on its own initiative, make an investigation into the
conduct of an Australian legal practitioner who the Board has reasonable cause
to suspect has been guilty of unsatisfactory professional conduct or
professional misconduct.
(2) The Board must make an investigation into the conduct of an Australian
legal practitioner if—
(a) the Board has been directed to make the inquiry by the
Attorney-General or the Society; or
(b) a complaint has been received in relation to the conduct of the
Australian legal practitioner.
(3) Despite subsection (2), the Board may determine not to commence
or continue an investigation that would otherwise be required as a result of
receipt of a complaint if it is apparent to the Board that the complaint is
frivolous or vexatious or if the Board is satisfied that the subject matter of
the complaint has been resolved prior to commencement or completion of an
investigation.
(4) No direction may be given to the Board under this section unless the
Attorney-General or the Society (as the case may require) has reasonable cause
to suspect that the Australian legal practitioner to whom the proposed
investigation relates has been guilty of unsatisfactory professional conduct or
professional misconduct.
(5) The Board may, by notice in writing, require an Australian legal
practitioner whose conduct is under investigation to make a detailed report to
the Board, within the time specified in the notice, in relation to any matters
relevant to the investigation.
(6) An Australian legal practitioner must comply with a requirement under
subsection (5).
Maximum penalty: $50 000 or imprisonment for 1 year.
Subdivision
2—Action following investigation
358—Report
on professional misconduct
(1) If, in the course or in consequence of an investigation under this
Division, the Board is satisfied that there is evidence of professional
misconduct by an Australian legal practitioner, the Board must make a report on
the matter to the Attorney-General and the Society.
(2) The Board must, in addition, report suspected professional misconduct
that would constitute an offence to all relevant law enforcement and prosecution
authorities.
(3) The Board must, at the request of a law enforcement or prosecution
authority, furnish the law enforcement or prosecution authority with material in
its possession relevant to the investigation or prosecution of the suspected
offence.
359—Board to
notify persons of suspected loss
If, in the course or in consequence of an investigation under this
Division, the Board has reason to believe that a person has suffered loss as a
result of professional misconduct or unsatisfactory professional conduct by an
Australian legal practitioner, the Board may notify the person.
360—Powers
of Board to deal with certain unsatisfactory professional conduct or
professional misconduct
(1) If, after conducting an investigation into conduct by an Australian
legal practitioner under this Division, the Board is satisfied
that—
(a) there is evidence of unsatisfactory professional conduct or
professional misconduct by the practitioner; but
(b) the conduct in question can be adequately dealt with under this
subsection,
the Board may, if the practitioner consents to such a course of action,
determine not to lay a complaint before the Tribunal and may instead exercise
any 1 or more of the following powers:
(c) it may reprimand the practitioner;
(d) it may make an order imposing specified conditions on the
practitioner's local practising certificate or recommending that specified
conditions be imposed on the practitioner's interstate practising
certificate—
(i) relating to the manner or circumstances in which the practitioner
engages in legal practice; or
(ii) requiring that the practitioner, within a specified time, complete
further education or training, or receive counselling, of a type specified by
the Board;
(e) it may make an order requiring that the practitioner make a specified
payment (whether to a client of the practitioner or to any other person) or do
or refrain from doing a specified act in connection with engaging in legal
practice.
(2) The Board may, in determining whether to exercise a power under this
section in relation to an Australian legal practitioner, take into
account—
(a) any previous action relating to the practitioner under this section or
under section 77AB of the repealed Act; or
(b) any finding relating to the practitioner by the Tribunal, the Supreme
Court or a corresponding disciplinary body or other corresponding authority
of—
(i) professional misconduct or unsatisfactory professional conduct;
or
(ii) unprofessional conduct or unsatisfactory conduct (within the meaning
of the repealed Act).
(3) An order under this section must be reduced to writing and be
signed—
(a) by the Australian legal practitioner to whom it relates; and
(b) on behalf of the Board.
(4) A condition imposed on a local practising certificate by an order
under this section may be varied or revoked at any time on application by the
Australian legal practitioner to the Tribunal.
(5) An apparently genuine document purporting to be a copy of an order
under this section and providing for the payment of a monetary sum by an
Australian legal practitioner, will be accepted in legal proceedings, in the
absence of proof to the contrary, as proof of such a debt.
(6) A contravention of an order under this section is professional
misconduct.
Subdivision
3—Complaints of overcharging
361—Investigation
of allegation of overcharging
(1) Subject to subsection (2), if a complaint of overcharging is made
against a law practice, the Board must, unless the Board is of the opinion that
the complaint is frivolous or vexatious, investigate the complaint.
(2) The Board—
(a) may require a complainant to pay a reasonable fee, fixed by the Board,
for investigation of the complaint and may decline to proceed with the
investigation unless the fee is paid; and
(b) is not required to investigate a complaint made more than 1 year
following receipt by the complainant of the final bill for the matter in respect
of which the overcharging is alleged to have occurred.
(3) For the purposes of an investigation the Board may, by notice in
writing—
(a) require the law practice to make a detailed report to the Board,
within the time specified in the notice, on the work carried out for the
complainant; and
(b) require the law practice to produce to the Board, within the time
specified in the notice, documents relating to the work.
(4) A law practice must comply with a requirement under
subsection (3).
Maximum penalty: $50 000.
(5) At the conclusion of the investigation the Board—
(a) must report to the complainant and the law practice on the results of
the investigation; and
(b) may recommend that the law practice reduce a charge or refund an
amount to the complainant.
362—Board may
conciliate complaints
(1) The Board may, at any time, arrange for a conciliation to be conducted
in relation to a matter the subject of a complaint received by the
Board.
(2) Nothing said or done in the course of a conciliation under this
section or section 77B of the repealed Act can subsequently be given in evidence
in any proceedings (other than proceedings for a criminal offence).
(3) A person who has been involved in a conciliation under this section is
disqualified from investigating or further investigating conduct to which the
complaint relates and from otherwise dealing with the complaint.
(4) If agreement is reached through a conciliation under this
section—
(a) the agreement must be recorded in writing and signed by the parties to
the agreement and on behalf of the Board by a person authorised by the Board for
the purpose; and
(b) a copy of the agreement must be given to each of the
parties.
(5) An apparently genuine document purporting to be an agreement signed in
accordance with this section and providing for the payment of a monetary sum by
a party to the agreement, will be accepted in legal proceedings, in the absence
of proof to the contrary, as proof of such a debt.
(6) If an Australian legal practitioner contravenes the terms of an
agreement reached following conciliation under this section, the contravention
is professional misconduct.
(7) The fact that a conciliation is conducted or an agreement is reached
in relation to a matter the subject of a complaint received by the Board does
not prevent investigation or further investigation or the laying of a complaint
before the Tribunal in relation to conduct to which the complaint
relates.
Division
2—Proceedings before Legal Practitioners Disciplinary
Tribunal
(1) A complaint may be laid under this section alleging professional
misconduct or unsatisfactory professional conduct on the part of an Australian
legal practitioner.
(2) A complaint may be laid under this section by—
(a) the Attorney-General; or
(b) the Board; or
(c) the Society; or
(d) a person claiming to be aggrieved by reason of the alleged
professional misconduct or unsatisfactory professional conduct.
(3) A complaint relating to conduct by an Australian legal practitioner
must be laid before the Tribunal within 5 years of the conduct unless the
complaint is laid by, or with the written consent of, the
Attorney-General.
(4) In any proceedings, an apparently genuine document purporting to be
the written consent of the Attorney-General given under subsection (3) will
be accepted, in the absence of proof to the contrary, as proof of such
consent.
(5) A complaint may be laid before the Tribunal despite the fact that
criminal proceedings have been or are to be commenced in relation to a matter to
which the complaint relates.
(6) A complaint laid under this section must be in the form prescribed by
the rules of the Tribunal.
(7) If a complaint has been laid under this section, the Tribunal must,
subject to subsection (8), inquire into each allegation particularised in
the complaint.
(8) The Tribunal may summarily dismiss any complaint that it considers
frivolous or vexatious.
(9) After completing an inquiry under this section, the Tribunal must
transmit the evidence taken by the Tribunal on the inquiry together with a
memorandum of its findings to the Attorney-General, the Society and the
Board.
The Tribunal may, subject to its rules and the rules of procedural
fairness, order the joinder of more than 1 complaint against the same or
different Australian legal practitioners.
(1) The Tribunal may, on the application of the complainant or on its own
motion, vary a complaint laid so as to omit allegations or to include additional
allegations, if satisfied that it is reasonable to do so having regard to all
the circumstances.
(2) Without limiting subsection (1), when considering whether or not
it is reasonable to vary a complaint, the Tribunal is to have regard to whether
varying the complaint will affect the fairness of the proceedings.
(3) The inclusion of an additional allegation is not precluded on any or
all of the following grounds:
(a) the additional allegation has not been the subject of a complaint to
the Board;
(b) the additional allegation has not been the subject of an
investigation;
(c) the alleged conduct occurred more than 5 years ago.
The Tribunal is bound by the rules of evidence in conducting a hearing
under this Division.
367—Power to
disregard procedural lapses
(1) The Tribunal may order that a failure of a party to a hearing to
observe a procedural requirement in relation to a complaint is to be
disregarded, if satisfied that the parties have not been prejudiced by the
failure.
(2) This section applies to a failure occurring before proceedings were
instituted in the Tribunal in relation to the complaint as well as to a failure
occurring afterwards.
368—Determinations
of Tribunal
(1) Orders generally
If, after it has completed a hearing under this Division in relation to a
complaint against an Australian legal practitioner, the Tribunal is satisfied
that the practitioner is guilty of unsatisfactory professional conduct or
professional misconduct, the Tribunal may make such orders as it thinks fit,
including any 1 or more of the orders specified in this section.
(2) Orders requiring official implementation in this
jurisdiction
The Tribunal may make the following orders under this subsection:
(a) an order that the practitioner’s local practising certificate be
suspended for a specified period (not exceeding 6 months);
(b) an order that a local practising certificate not be granted to the
practitioner before the end of a specified period;
(c) an order that—
(i) specified conditions be imposed on the practitioner’s practising
certificate granted or to be granted under this Act; and
(ii) the conditions be imposed for a specified period; and
(iii) specifies the time (if any) after which the practitioner may apply
to the Tribunal for the conditions to be amended or removed;
(d) an order reprimanding the practitioner;
(e) an order with respect to the examination of the Australian legal
practitioner's files and records by a person approved by the Tribunal (at the
expense of the practitioner) at the intervals, and for the period, specified in
the order;
(f) an order recommending that disciplinary proceedings be commenced
against the practitioner in the Supreme Court.
(3) Orders requiring official implementation in another
jurisdiction
The Tribunal may make the following orders under this subsection:
(a) an order recommending that the name of the practitioner be removed
from an interstate roll;
(b) an order recommending that the practitioner’s interstate
practising certificate be suspended for a specified period or
cancelled;
(c) an order recommending that an interstate practising certificate not be
granted to the practitioner before the end of a specified period;
(d) an order recommending—
(i) that specified conditions be imposed on the practitioner’s
interstate practising certificate; and
(ii) that the conditions be imposed for a specified period; and
(iii) a specified time (if any) after which the practitioner may apply to
the Tribunal for the conditions to be amended or removed.
(4) Orders requiring compliance by practitioner
The Tribunal may make the following orders under this subsection:
(a) an order that the practitioner pay a fine of a specified amount, not
exceeding $50 000;
(b) an order that the practitioner undertake and complete a specified
course of further legal education;
(c) an order that the practitioner undertake a specified period of
practice under specified supervision;
(d) an order that the practitioner do or refrain from doing something in
connection with the practice of law;
(e) an order that the practitioner cease to accept instructions as a
public notary in relation to notarial services;
(f) an order that the practitioner’s practice be managed for a
specified period in a specified way or subject to specified
conditions;
(g) an order that the practitioner’s practice be subject to periodic
inspection by a specified person for a specified period;
(h) an order that the practitioner seek advice in relation to the
management of the practitioner’s practice from a specified
person;
(i) an order that the practitioner not apply for a local practising
certificate before the end of a specified period.
(5) Ancillary or other orders
The Tribunal may make ancillary or other orders, including an order for
payment by the practitioner of expenses associated with orders under
subsection (4), as assessed or reviewed in or in accordance with the order
or as agreed.
(6) Orders that may be made if practitioner guilty of unsatisfactory
professional conduct
If an Australian legal practitioner is found guilty only of unsatisfactory
professional conduct, the Tribunal may not impose a fine or suspension on the
practitioner or recommend that disciplinary proceedings be commenced against the
practitioner in the Supreme Court.
(7) Alternative finding
The Tribunal may find a person guilty of unsatisfactory professional
conduct even though the complaint alleged professional misconduct.
(8) Condition may be varied or revoked on application
A condition imposed on a local practising certificate pursuant to an order
under this section may be varied or revoked at any time on application by the
Australian legal practitioner.
369—Interlocutory
and interim orders
(1) The Tribunal may make interlocutory or interim orders as it thinks fit
before making its final decision about a complaint against an Australian legal
practitioner.
(2) Without limiting subsection (1), orders of the kinds referred to
in section 368 may be made as interlocutory or interim orders.
370—Compliance
with determinations and orders
(1) Persons and bodies having relevant powers or functions under this Act
must—
(a) give effect to the following orders:
(i) an order of the Tribunal made under section 368(2);
(ii) any interlocutory or interim order of the Tribunal made under
section 369 so far as it is an order of the kind referred to in
section 368(2) or otherwise needs to be, or is capable of being, given
effect to in this jurisdiction; and
(b) enforce the following orders (to the extent that they relate to the
practitioner's engaging in legal practice in this jurisdiction):
(i) an order of the Tribunal made under section 368(4);
(ii) any interlocutory or interim order of the Tribunal made under
section 369 so far as it is an order of the kind referred to in
section 368(4) or otherwise needs to be, or is capable of being, enforced
in this jurisdiction.
Note—
Section 396 contains provisions relating to compliance in this
jurisdiction with orders made under corresponding laws.
(2) The Tribunal must ensure that persons or bodies having relevant powers
or functions under a corresponding law of another jurisdiction are notified of
the making and contents of—
(a) the following orders:
(i) an order of the Tribunal made under section 368(3) in relation to
that corresponding law;
(ii) any interlocutory or interim order of the Tribunal made under
section 369 so far as it is an order of the kind referred to in
section 368(3) or otherwise needs to be, or is capable of being, given
effect to in the other jurisdiction; and
(b) the following orders (to the extent that they relate to the
practitioner's practice of law in the other jurisdiction):
(i) an order of the Tribunal made under section 368(4);
(ii) any interlocutory or interim order of the Tribunal made under
section 369 so far as it is an order of the kind referred to in
section 368(4) or otherwise needs to be, or is capable of being, enforced
in this jurisdiction.
(1) The Tribunal must give to an Australian legal practitioner whose
conduct is subject to inquiry under this Chapter, and to any person on whose
application an inquiry is to be held, not less than 14 days written notice
of the time and place at which it intends to conduct the inquiry, and must
afford any such person a reasonable opportunity to call and give evidence, to
examine or cross-examine witnesses, and to make submissions to the
Tribunal.
(2) If a person to whom notice has been given pursuant to
subsection (1) does not attend at the time and place fixed by the notice,
the Tribunal may proceed with the inquiry in the person's absence.
(3) A person whose conduct is subject to an inquiry under this Chapter is
entitled to be represented at the inquiry by counsel.
(1) For the purposes of an inquiry under this Chapter, the Tribunal
may—
(a) by summons signed on behalf of the Tribunal by a member of the
Tribunal, require the attendance before the Tribunal of any person (including a
party to the proceedings) whom the Tribunal thinks fit to call before it;
or
(b) by summons signed on behalf of the Tribunal by a member of the
Tribunal, require the production of documents; or
(c) inspect any documents produced before it, and retain them for such
reasonable period as it thinks fit, and make copies of any of them, or of any of
their contents; or
(d) require any person to make an oath or affirmation to truly answer all
questions put by the Tribunal, or by any person appearing before the Tribunal,
relevant to any matter being inquired into by the Tribunal (which oath or
affirmation may be administered by any member of the Tribunal); or
(e) require any person appearing before the Tribunal (whether summoned to
appear or not) to answer any relevant question put by any member of the
Tribunal, or by any other person appearing before the Tribunal; or
(f) require any person appearing before the Tribunal (whether summoned to
appear or not) to prepare a document (including a bill of costs in a form
suitable for adjudication) as reasonably directed by the Tribunal, or to comply
with any other reasonable direction issued by the Tribunal in furtherance of the
inquiry.
(2) A summons may be issued under subsection (1) on the application
of a party to proceedings before the Tribunal, despite the fact that the
Tribunal has not met to authorise the issue of the summons.
(3) If a person—
(a) who has been served with a summons to attend before the Tribunal,
neglects or fails without reasonable excuse to attend in obedience to the
summons; or
(b) who has been served with a summons to produce any documents neglects
or fails without reasonable excuse to comply with the summons; or
(c) misbehaves before the Tribunal, wilfully insults the Tribunal or any
member of the Tribunal, or interrupts the proceedings of the Tribunal;
or
(d) refuses to be sworn or to affirm or to answer any relevant question
when required to do so by the Tribunal; or
(e) neglects or fails without reasonable excuse to comply with any other
reasonable requirement of the Tribunal,
the person is guilty of an offence.
Maximum penalty: $50 000.
(4) If a person summoned as mentioned in subsection (1) refuses or
fails to attend before the Tribunal as required by the summons, or having
attended refuses to be sworn or to affirm, or to answer any relevant question
when required to do so by the Tribunal, a certificate of the refusal or failure,
signed by a member of the Tribunal, may be filed in the Supreme Court.
(5) If a certificate has been filed under subsection (4), a party
requiring the attendance of the person may apply to the Supreme Court for an
order directing that person to attend, or to be sworn or to affirm, or to answer
questions (as the case may require), and on that application the Court may make
such orders as it thinks fit (including orders for costs).
(6) The Court may require that notice be given of an application under
subsection (5) to the person against whom the order is sought or any other
person (but an order may be made, if the Court thinks fit, although no notice
has been given of the application).
(7) In the course of an inquiry, the Tribunal may—
(a) receive in evidence a transcript of evidence taken in proceedings
before a court, tribunal or other body constituted under the law of South
Australia, another jurisdiction, the Commonwealth or another country (and any
exhibits referred to in such a transcript) and draw any conclusions of fact from
the evidence that it considers proper; and
(b) adopt, as in its discretion it considers proper, any findings,
decision, judgment, or reasons for judgment, of any such court that may be
relevant to the proceedings.
373—Proceedings
to be generally in public
(1) Subject to subsection (2), an inquiry under this Chapter must be
held in public.
(2) The Tribunal may order that an inquiry or part of an inquiry be
conducted in private if satisfied that it is necessary to do so in the interests
of justice or in order to protect the privacy of clients of the Australian legal
practitioner whose conduct is the subject of the inquiry.
(3) If proceedings of the inquiry are held in private, the Tribunal must
prepare a summary of the proceedings containing such information as may be
disclosed consistently with the interests of justice and the need to protect the
privacy of clients.
(4) A copy of any such summary must be made available on request at the
Tribunal's public office for inspection by any interested member of the
public.
374—Tribunal's
proceedings to be privileged
Anything said or done in the course of the Tribunal's proceedings is
protected by absolute privilege.
(1) The Tribunal may make such orders as to costs against a person on
whose application an inquiry has been held, or against an Australian legal
practitioner whose conduct has been subject to inquiry, as the Tribunal
considers just and reasonable.
(2) Costs of proceedings before the Tribunal may be adjudicated in the
Supreme Court.
(3) If the Tribunal has ordered payment of a fine or costs, a certificate
of the fine or costs must be filed in the Supreme Court.
(4) If a certificate has been filed under subsection (3), proceedings
may be taken for the recovery of the fine or costs as if the certificate were a
judgment of the Supreme Court.
(1) Subject to subsection (2), a right of appeal to the Supreme Court
lies against a decision of the Tribunal made in the exercise or purported
exercise of powers or functions under this Act.
(2) An appeal must be instituted within 1 month of the date on which
the appellant is notified of the decision unless the Supreme Court is satisfied
that there is good reason to dispense with the requirement that the appeal
should be so instituted.
(3) The Supreme Court may, on the hearing of an appeal, exercise any 1 or
more of the following powers, as the case requires:
(a) affirm, vary, quash or reverse the decision subject to the appeal and
administer any reprimand, or make any order, that should have been administered
or made in the first instance;
(b) remit the subject matter of the appeal to the Tribunal for further
hearing or consideration or for rehearing;
(c) make any further or other order as to costs or any other matter that
the case requires.
377—Operation of
order may be suspended
(1) If an order has been made by the Tribunal, and the Tribunal or the
Supreme Court is satisfied that an appeal against the order has been instituted,
or is intended, it may suspend the operation of the order, until the
determination of the appeal.
(2) If the Tribunal has suspended the operation of an order under
subsection (1), the Tribunal may terminate the suspension, and where the
Supreme Court has done so, the Supreme Court may terminate the
suspension.
378—Other
remedies not affected
This Division does not affect any other remedy available to a person
claiming to be aggrieved by reason of the alleged professional misconduct or
unsatisfactory professional conduct of an Australian legal
practitioner.
Division
3—Disciplinary proceedings before the Supreme Court
379—Proceedings
before Supreme Court
(1) If the Tribunal, after conducting an inquiry into the conduct of an
Australian legal practitioner, recommends that disciplinary proceedings be
commenced against the practitioner in the Supreme Court, the Board, the
Attorney-General or the Society may institute disciplinary proceedings in the
Supreme Court against the practitioner.
(2) In disciplinary proceedings against an Australian legal practitioner
(whether instituted under this section or not), the Supreme Court may exercise
any 1 or more of the following powers:
(a) it may make an order that could have been made by the Tribunal in
relation to the practitioner;
(b) it may order that the practitioner's local practising certificate be
suspended until the end of the period specified in the order or until further
order;
(c) it may make an order recommending that the practitioner's interstate
practising certificate be suspended until the end of the period specified in the
order or until further order;
(d) it may order that the practitioner's name be struck off the local
roll;
(e) it may make an order recommending that the practitioner's name be
struck off an interstate roll;
(f) it may make any other order (including an order as to the costs of
proceedings before the Court and the Tribunal) that it considers just.
(3) In any disciplinary proceedings, the Supreme Court may refer any
matter to a Judge or Master, or to the Tribunal, for investigation and
report.
(4) In any disciplinary proceedings—
(a) the Supreme Court may, without further inquiry, accept and act on any
findings of the Tribunal or of a Judge or Master to whom a matter has been
referred for investigation and report under subsection (3); and
(b) the Supreme Court may—
(i) receive in evidence a transcript of evidence taken in proceedings
before a court, tribunal or other body constituted under the law of South
Australia, another jurisdiction, the Commonwealth or another country (and any
exhibits referred to in such a transcript) and draw any conclusions of fact from
the evidence that it considers proper; and
(ii) adopt, as in its discretion it considers proper, any findings,
decision, judgment or reasons for judgment of any such court that may be
relevant to the proceedings.
(5) If the Supreme Court is satisfied, on the application of the Board,
the Attorney-General or the Society, that an Australian legal practitioner is
disqualified or suspended from practice under the law of any other State, it
may, without further inquiry, impose a corresponding disqualification or
suspension under the provisions of this section.
380—Court may
order interim suspension of Australian legal practitioner or impose interim
conditions
If—
(a) disciplinary proceedings have been instituted against an Australian
legal practitioner before the Tribunal or the Supreme Court or an Australian
legal practitioner has been charged with or convicted of a criminal offence;
and
(b) the Supreme Court is satisfied that the circumstances are such as to
justify invoking the provisions of this section,
the Supreme Court may, on its own initiative or on the application of the
Board, the Attorney-General or the Society—
(c) in the case of a local legal practitioner—make an interim
order—
(i) imposing specified conditions on the practitioner's local practising
certificate relating to the practitioner's legal practice; or
(ii) suspending the practitioner's local practising certificate;
or
(d) in the case of an interstate legal practitioner—make an order
recommending—
(i) that specified conditions be imposed on the practitioner's interstate
practising certificate relating to the practitioner's legal practice;
or
(ii) that the practitioner's interstate practising certificate be
suspended,
until disciplinary proceedings against the practitioner have been finalised
or until further order.
381—Jurisdiction
of Supreme Court
The inherent jurisdiction and powers of the Supreme Court with respect to
the control and discipline of local lawyers are not affected by anything in this
Chapter, and extend to—
(a) local legal practitioners; and
(b) interstate legal practitioners engaged in legal practice in this
jurisdiction.
Division
4—Provisions relating to interstate legal practice
382—Conduct not
to be the subject of separate proceedings
If conduct by an Australian legal practitioner has been the subject of
disciplinary proceedings in another State that have been finally determined, no
proceedings are to be commenced or continued under this Chapter in relation to
that conduct (other than proceedings authorised under
section 379(5)).
(1) A regulatory authority in this State must furnish without delay any
information about a local legal practitioner or interstate legal practitioner
reasonably required by a regulatory authority in another jurisdiction in
connection with actual or possible disciplinary action against the
practitioner.
(2) A regulatory authority may provide the information despite any law
relating to secrecy or confidentiality.
(3) Nothing in this section affects any obligation or power to provide
information apart from this section.
Division
5—Publicising disciplinary action
In this Division—
disciplinary action means—
(a) the making of an order by a court or tribunal for or following a
finding of professional misconduct by an Australian legal practitioner under
this Act or under a corresponding law; or
(b) the exercise by the Board or a corresponding authority of a power
under section 360(1) or a corresponding law where the Board or
corresponding authority is satisfied that there is evidence of professional
misconduct by an Australian legal practitioner; or
(c) any of the following actions taken under this Act or under a
corresponding law, following a finding by a court or tribunal of professional
misconduct by an Australian legal practitioner:
(i) removal of the name of the practitioner from an Australian
roll;
(ii) the suspension or cancellation of the Australian practising
certificate of the practitioner;
(iii) the refusal to grant or renew an Australian practising certificate
to the practitioner;
(iv) the appointment of—
(A) a supervisor of trust money of the practitioner's practice;
or
(B) a receiver for the practitioner’s practice; or
(C) a manager for the practitioner’s practice;
Register means the Register of Disciplinary Action referred
to in section 385.
385—Register
of Disciplinary Action
(1) The Society is to maintain a register (in this Act referred to as the
Register of Disciplinary Action) of—
(a) disciplinary action taken under this Act against Australian legal
practitioners; and
(b) disciplinary action taken under a corresponding law against Australian
legal practitioners who are or were enrolled or engaging in legal practice in
this jurisdiction when the conduct that is the subject of the disciplinary
action occurred.
(2) The following particulars are to be included when information about
disciplinary action is entered into the Register:
(a) the full name of the person against whom the disciplinary action was
taken;
(b) the person’s business address or former business
address;
(c) the person’s home jurisdiction or most recent home
jurisdiction;
(d) particulars of the disciplinary action taken;
(e) other particulars prescribed by the regulations or determined by the
Society.
(3) The Register may be kept in a form determined or identified by the
Society and may form part of other registers.
(4) The Register is to be made available for public inspection
on—
(a) the internet site of the Society; or
(b) an internet site identified on the internet site of the
Society.
(5) Information recorded in the Register may be provided to members of the
public in any other manner approved by the Society.
(6) The Society may cause any error in or omission from the Register to be
corrected.
(7) The requirement to keep the Register applies only in relation to
disciplinary action taken after the commencement of this section, but details
relating to earlier disciplinary action may be included in the
Register.
386—Other
means of publicising disciplinary action
(1) The Society may publicise disciplinary action taken against an
Australian legal practitioner in any manner the Society thinks fit.
(2) Nothing in this section affects the provisions of this Division
relating to the Register.
387—Quashing of
disciplinary action
(1) If disciplinary action is quashed on appeal or review, any reference
to that disciplinary action must be removed from the Register.
(2) If disciplinary action is quashed on appeal or review after the action
was publicised by the Society under section 386, the result of the appeal
or review must be publicised with equal prominence by the Society.
388—Liability for
publicising disciplinary action
(1) No liability is incurred by a protected person in respect of anything
done or omitted to be done in good faith for the purpose of—
(a) publicising disciplinary action taken against an Australian legal
practitioner; or
(b) publicising the conditions of an authorisation granted under
section 18; or
(c) exercising the powers or functions of the Society under
section 18 or this Division; or
(d) keeping, publishing or enabling access to the Register.
(2) Without limiting subsection (1), no liability (including
liability in defamation) is incurred by a person publishing in good
faith—
(a) information about disciplinary action—
(i) recorded in the Register; or
(ii) otherwise publicised by the Society under this Division,
or matter purporting to contain information of that kind where the matter
is incorrect in any respect; or
(b) information about the conditions of an authorisation granted under
section 18 recorded in the Register or published on the Society's internet
site as required by that section; or
(c) a fair report or summary of information referred to in
paragraph (a) or (b).
(3) In this section—
protected person means—
(a) the State; or
(b) the Society; or
(c) the Council; or
(d) an officer, employee or agent of the Society; or
(e) the Board; or
(f) a member, employee or agent of the Board; or
(g) a person responsible for keeping the whole or any part of the
Register; or
(h) an internet service provider or internet content host; or
(i) a person acting at the direction of the State or of any person or body
referred to in this definition.
389—Disciplinary
action taken because of infirmity, injury or illness
If a person against whom disciplinary action has been taken satisfies the
Tribunal that he or she was, at the time of the professional misconduct to which
the disciplinary action relates, suffering from a medical condition that
explains and extenuates, at least to some extent, the misconduct, the person may
elect to have a statement disclosing the nature of the medical condition
included in the Register with the entry relating to the disciplinary
action.
(1) The provisions of this Division are subject to any order made
by—
(a) the Supreme Court or the Tribunal in relation to disciplinary action
taken under this Chapter; or
(b) a corresponding disciplinary body in relation to disciplinary action
taken under provisions of a corresponding law that correspond to this Chapter;
or
(c) a court or tribunal of this or another jurisdiction,
so far as the order prohibits or restricts the disclosure of
information.
(2) Despite subsection (1), the name and other identifying
particulars of the person against whom the disciplinary action was taken, and
the kind of disciplinary action taken, must be recorded in the Register in
accordance with the requirements of this Division and may be otherwise
publicised under this Division.
Division
6—Inter-jurisdictional provisions
(1) The Board may enter into arrangements (referred to in this Act as
protocols) with corresponding authorities for or with respect to investigating
and dealing with conduct that appears to have occurred in another jurisdiction
or more than 1 jurisdiction.
(2) In particular, the protocols may make provision for or with respect
to—
(a) providing principles to assist in determining where conduct occurs,
either generally or in specified classes of cases; and
(b) giving and receiving consent for conduct occurring in a jurisdiction
to be dealt with under a law of another jurisdiction; and
(c) the procedures to be adopted for requesting and conducting the
investigation of any aspect of complaints under this Division.
392—Request to
another jurisdiction to investigate complaint
(1) The Board may request a corresponding authority to arrange for the
investigation of any aspect of a complaint being dealt with by the Board and to
provide a report on the result of the investigation.
(2) A report on the result of the investigation received
from—
(a) the corresponding authority; or
(b) a person or body authorised by the corresponding authority to conduct
the investigation,
may be used and taken into consideration by the Board, the Tribunal or the
Supreme Court in the course of dealing with the complaint under this
Chapter.
393—Requests from
another jurisdiction to investigate complaint
(1) This section applies in relation to a request received by the Board
from a corresponding authority to arrange for the investigation of any aspect of
a complaint being dealt with under a corresponding law.
(2) The Board may conduct the investigation or authorise another authority
to conduct it.
(3) The provisions of this Chapter relating to the investigation of a
complaint apply, with any necessary adaptations, in relation to the
investigation of the relevant aspect of the complaint that is the subject of the
request.
(4) The Board or other authority must provide a report on the result of
the investigation to the corresponding authority.
394—Sharing of
information with corresponding authorities
The Board may enter into arrangements with a corresponding authority for
providing information to the corresponding authority about—
(a) complaints and investigations under this Chapter; and
(b) any action taken with respect to any complaints made or investigations
conducted under this Chapter, including determinations of the Tribunal under
this Chapter.
395—Co-operation
with corresponding authorities
(1) When dealing with a complaint or conducting an investigation, the
Board may consult and co-operate with another person or body (whether in or of
Australia or a foreign country) who or which has or may have relevant
information or powers in relation to the person against whom the complaint was
made or the person under investigation.
(2) For the purposes of subsection (1), the Board and the other
person or body may exchange information concerning the complaint or
investigation.
396—Compliance
with recommendations or orders made under corresponding
laws
(1) Persons and bodies having relevant powers or functions under this Act
must—
(a) give effect to or enforce any recommendation or order of a
corresponding disciplinary body or other corresponding authority made under a
corresponding law in relation to powers exercisable under this Act;
and
(b) give effect to or enforce any recommendation or order of a
corresponding disciplinary body or other corresponding authority made under a
corresponding law so far as the recommendation or order relates to engaging in
legal practice in this jurisdiction by the Australian legal practitioner
concerned.
(2) If a corresponding disciplinary body makes a recommendation or order
that a person’s name be removed from the local roll, the Supreme Court
must order the removal of the name from the local roll.
(3) If a corresponding disciplinary body makes an order that an Australian
legal practitioner pay a fine, a copy of the order may be filed in the
Magistrates Court and the order may be enforced as if it were an order of that
Court.
(4) This section has effect despite any other provision of this
Act.
397—Other powers
or functions not affected
Nothing in this Division affects any powers or functions that a person or
body has apart from this Division.
(1) A matter or thing done or omitted to be done by a protected person
does not, if the matter or thing was done or omitted to be done in good faith
for the purpose of the administration of this Chapter, subject the protected
person to any action, liability, claim or demand.
(2) In this section—
protected person means—
(a) the Board or any member of the Board; or
(b) a committee or subcommittee of the Board or any member of a committee
or subcommittee; or
(c) any person involved in the conduct of an investigation under this
Chapter; or
(d) the Tribunal or any member of the Tribunal; or
(e) the Registrar of the Tribunal; or
(f) any member of the staff of any of the above.
If, in any investigation or proceedings under this Chapter, a person
properly claims privilege in respect of any information—
(a) the Board or Tribunal may require the person to disclose the
information; and
(b) if any information adverse to the interests of that person is then
disclosed, no question or answer relating to that information may be used in or
in connection with any procedures or proceedings other than—
(i) those relating to the complaint concerned; or
(ii) those resulting from a report under section 358.
400—Waiver of
privilege or duty of confidentiality
(1) If a client of an Australian legal practitioner makes a complaint
about the practitioner, the complainant is taken to have waived legal
professional privilege, or the benefit of any duty of confidentiality, to enable
the practitioner to disclose to the appropriate authorities any information
necessary for investigating and dealing with the complaint.
(2) Without limiting subsection (1), any information so disclosed may
be used in or in connection with any procedures or proceedings relating to the
complaint.
Chapter
5—External intervention
(1) In this Chapter—
external intervener means a supervisor, manager or receiver
under this Part;
external intervention means the appointment of, and the
exercise of the powers and functions of, a supervisor, manager or receiver under
this Part;
regulated property, in relation to a law practice, means the
following:
(a) trust money or trust property received, receivable or held by the
practice;
(b) interest, dividends or other income or anything else derived from or
acquired with money or property referred to in paragraph (a);
(c) documents or records of any description relating to anything referred
to in paragraph (a) or (b);
(d) any computer hardware or software, or other device, in the custody or
control of the practice by which any records referred to in paragraph (c)
may be produced or reproduced in visible form.
(2) Other expressions used in this Chapter have the same meanings as in
Chapter 3 Part 2.
402—Application
of Chapter to Australian-registered foreign lawyers
This Chapter applies, with any necessary adaptations, to
Australian-registered foreign lawyers and former Australian-registered foreign
lawyers in the same way as it applies to law practices.
403—Application
of Chapter to other persons
This Chapter applies, with any necessary adaptations, to—
(a) a former law practice or former Australian legal practitioner;
and
(b) the executor (original or by representation) or administrator for the
time being of a deceased Australian legal practitioner or of his or her estate;
and
(c) the administrator, or receiver, or receiver and manager, or official
manager, of the property of an incorporated legal practice; and
(d) the liquidator of an incorporated legal practice that is being or has
been wound up,
in the same way as it applies to law practices.
Part 2—Initiation
of external intervention
404—Circumstances
warranting external intervention
External intervention may take place in relation to a law practice in any
of the following circumstances:
(a) where a legal practitioner associate involved in the
practice—
(i) has died; or
(ii) ceases to be an Australian legal practitioner; or
(iii) has become an insolvent under administration; or
(iv) is in prison;
(b) in the case of a firm—where the partnership has been wound up or
dissolved;
(c) in the case of an incorporated legal practice—where the
corporation concerned—
(i) ceases to be an incorporated legal practice; or
(ii) is being or has been wound up; or
(iii) has been deregistered or dissolved;
(d) in any case—where the Society forms a belief on reasonable
grounds that the practice or an associate of the practice—
(i) is not dealing adequately with trust money or trust property or is not
properly attending to the affairs of the practice; or
(ii) has committed a serious irregularity, or a serious irregularity has
occurred, in relation to trust money or trust property or the affairs of the
practice; or
(iii) has failed properly to account in a timely manner to any person for
trust money or trust property received by the practice for or on behalf of that
person; or
(iv) has failed properly to make a payment of trust money or a transfer of
trust property when required to do so by a person entitled to that money or
property or entitled to give a direction for payment or transfer; or
(v) is in breach of the regulations or legal profession rules with the
result that the record-keeping for the practice’s trust account is
inadequate; or
(vi) has been or is likely to be convicted of an offence relating to trust
money or trust property; or
(vii) is the subject of a complaint relating to trust money or trust
property received by the practice; or
(viii) has failed to comply with any requirement of an investigator or
external examiner appointed under this Act; or
(ix) has ceased to be engaged in legal practice without making provision
for properly dealing with trust money or trust property received by the practice
or for properly winding up the affairs of the practice; or
(e) where any other proper cause exists in relation to the
practice.
405—Determination
regarding external intervention
(1) This section applies when the Society becomes aware that 1 or more of
the circumstances referred to in section 404 exist in relation to a law
practice and decides that, having regard to the interests of the clients of the
practice and to other matters that it considers appropriate, external
intervention is warranted.
(2) The Society may determine—
(a) to appoint a supervisor of trust money of the law practice, if the
Society is of the opinion—
(i) that external intervention is required because of issues relating to
the practice’s trust accounts; and
(ii) that it is not appropriate that the provision of legal services by
the practice be wound up and terminated because of those issues; or
(b) to appoint a manager for the law practice, if the Society is of the
opinion—
(i) that external intervention is required because of issues relating to
the practice's trust records; or
(ii) that the appointment is necessary to protect the interests of clients
in relation to trust money or trust property; or
(iii) that there is a need for an independent person to be appointed to
take over professional and operational responsibility for the practice;
or
(c) to apply to the Supreme Court for the appointment of a receiver for
the law practice, if the Society is of the opinion—
(i) that the appointment is necessary to protect the interests of clients
in relation to trust money or trust property; or
(ii) that it may be appropriate that the provision of legal services by
the practice be wound up and terminated.
(3) The Society may, from time to time, make further determinations in
relation to the law practice and for that purpose may revoke a previous
determination with effect from a date or event specified by the
Society.
(4) A further determination may be made under subsection (3) whether
or not there has been any change in the circumstances in consequence of which
the original determination was made and whether or not any further circumstances
have come into existence in relation to the law practice after the original
determination was made.
(5) An appointment of an external intervener for a law practice may be
made in respect of the practice generally or may be limited in any way the
Society considers appropriate, including for example to matters connected with a
particular legal practitioner associate or to matters connected with a
particular office or a particular subject-matter.
Part
3—Supervisors of trust money
406—Appointment
of supervisor of trust money
(1) This section applies if the Society determines to appoint a supervisor
of trust money of a law practice.
(2) The Society may, by instrument in writing, appoint a person as
supervisor of trust money.
(3) The appointee must be either—
(a) an Australian legal practitioner who holds an unrestricted practising
certificate; or
(b) a person holding accounting qualifications with experience in law
practices’ trust accounts,
and may (but need not) be an employee of the Society.
(4) The instrument of appointment must—
(a) identify the practice and the supervisor; and
(b) indicate that the external intervention is by way of appointment of a
supervisor of trust money; and
(c) specify the term of the appointment; and
(d) specify any conditions imposed by the Society when the appointment is
made; and
(e) specify any fees payable by way of remuneration to the supervisor
specifically for carrying out his or her duties in relation to the external
intervention; and
(f) provide for the legal costs and the expenses that may be incurred by
the supervisor in relation to the external intervention.
(5) The instrument of appointment may specify any reporting requirements
to be observed by the supervisor.
(1) As soon as possible after an appointment of a supervisor of trust
money of a law practice is made, the Society must serve a notice of the
appointment on—
(a) the practice; and
(b) any other person authorised to operate any trust account of the
practice; and
(c) any external examiner appointed to examine the practice’s trust
records; and
(d) the ADI with which any trust account of the practice is maintained;
and
(e) any person whom the Society reasonably believes should be served with
the notice.
(2) The notice must—
(a) identify the law practice and the supervisor; and
(b) indicate that the external intervention is by way of appointment of a
supervisor of trust money; and
(c) specify the term of the appointment; and
(d) specify any reporting requirements to be observed by the supervisor;
and
(e) specify any conditions imposed by the Society when the appointment is
made; and
(f) include a statement that the law practice may appeal against the
appointment of the supervisor under section 438; and
(g) contain or be accompanied by other information or material prescribed
by the regulations.
408—Effect of
service of notice of appointment
(1) After service on an ADI of a notice of the appointment of a supervisor
of trust money of a law practice and until the appointment is terminated, the
ADI must ensure that no funds are withdrawn or transferred from a trust account
of the practice unless—
(a) the withdrawal or transfer is made by cheque or other instrument drawn
on that account signed by the supervisor or a nominee of the supervisor;
or
(b) the withdrawal or transfer is made by the supervisor or a nominee of
the supervisor by means of electronic or internet banking facilities;
or
(c) the withdrawal or transfer is made in accordance with an authority to
withdraw or transfer funds from the account signed by the supervisor or a
nominee of the supervisor.
(2) After service on a person (other than the supervisor or an ADI) of a
notice of the appointment of a supervisor of trust money of a law practice and
until the appointment is terminated, the person must not—
(a) deal with any of the practice’s trust money; or
(b) sign any cheque or other instrument drawn on a trust account of the
practice; or
(c) authorise the withdrawal or transfer of funds from a trust account of
the practice.
Maximum penalty: $50 000.
(3) A supervisor of trust money may, for the purposes of
subsection (1)(b), enter into arrangements with an ADI for withdrawing
money from a trust account of the law practice concerned by means of electronic
or internet banking facilities.
(4) Any money that is withdrawn or transferred in contravention of
subsection (1) may be recovered from the ADI concerned by the supervisor as
a debt in any court of competent jurisdiction, and any amount recovered is to be
paid into a trust account of the law practice.
409—Role of
supervisor of trust money
(1) A supervisor of trust money of a law practice has the powers and
duties of the practice in relation to trust money of the practice, including
powers—
(a) to receive trust money entrusted to the practice; and
(b) to open and close trust accounts.
(2) For the purpose of exercising or performing his or her powers or
duties under subsection (1), the supervisor may exercise any or all of the
following powers:
(a) to enter and remain on premises used by the law practice for or in
connection with its engaging in legal practice;
(b) to require the practice or an associate or former associate of the
practice or any other person who has or had control of documents relating to
trust money received by the practice to give the supervisor either or both of
the following:
(i) access to the files and documents the supervisor reasonably
requires;
(ii) information relating to the trust money the supervisor reasonably
requires;
(c) to operate equipment or facilities on the premises, or to require any
person on the premises to operate equipment or facilities on the premises, for a
purpose relevant to his or her appointment;
(d) to take possession of any relevant material and retain it for as long
as may be necessary;
(e) to secure any relevant material found on the premises against
interference, if the material cannot be conveniently removed;
(f) to take possession of any computer equipment or computer program
reasonably required for a purpose relevant to his or her appointment.
(3) If the supervisor takes anything from the premises, the supervisor
must issue a receipt in a form approved by the Society and—
(a) if the occupier or a person apparently responsible to the occupier is
present at or near the premises, give it to him or her; or
(b) otherwise, leave it at the premises in an envelope addressed to the
occupier.
(4) If the supervisor is refused access to the premises or the premises
are unoccupied, the supervisor may use reasonable force to enter the premises
and may be accompanied by a police officer to assist entry.
(5) This section applies to trust money held by the practice before the
supervisor is appointed, as well as to trust money received
afterwards.
(6) The supervisor does not have a role in the management of the affairs
of the law practice except in so far as the affairs relate to a trust account of
the practice.
410—Records of
and dealing with trust money of law practice under
supervision
(1) A supervisor of trust money of a law practice must maintain the
records of his or her dealings with trust money of the practice—
(a) separately from records relating to dealings with trust money before
his or her appointment as supervisor; and
(b) separately from the affairs of any other law practice for which he or
she is supervisor; and
(c) in the manner (if any) prescribed by the regulations.
(2) Subject to subsection (1), a supervisor of trust money of a law
practice must deal with the trust money in the same way as a law practice must
deal with trust money.
411—Termination
of supervisor's appointment
(1) The appointment of a supervisor of trust money of a law practice
terminates in the following circumstances:
(a) the term of the appointment comes to an end;
(b) the appointment is set aside under section 438;
(c) the appointment of a manager for the practice takes effect;
(d) the appointment of a receiver for the practice takes effect;
(e) the supervisor has distributed all trust money received by the
practice and wound up all trust accounts;
(f) a determination of the Society that the appointment be terminated has
taken effect.
(2) The Society may determine in writing that the appointment be
terminated immediately or with effect from a specified date.
(3) The Society must serve a written notice of the termination on all
persons originally served with notice of the appointment.
(1) This section applies if the Society determines to appoint a manager
for a law practice.
(2) The Society may, by instrument in writing, appoint a person as
manager.
(3) The appointee must be an Australian legal practitioner who holds an
unrestricted practising certificate, and may (but need not) be an employee of
the Society.
(4) The instrument of appointment must—
(a) identify the law practice and the manager; and
(b) indicate that the external intervention is by way of appointment of a
manager; and
(c) specify the term of the appointment; and
(d) specify any conditions imposed by the Society when the appointment is
made; and
(e) specify any fees payable by way of remuneration to the manager
specifically for carrying out his or her duties in relation to the external
intervention; and
(f) provide for the legal costs and the expenses that may be incurred by
the manager in relation to the external intervention.
(5) The instrument of appointment may specify any reporting requirements
to be observed by the manager.
(1) As soon as possible after an appointment of a manager for a law
practice is made, the Society must serve a notice of the appointment
on—
(a) the practice; and
(b) any other person authorised to operate any trust account of the
practice; and
(c) any external examiner appointed to examine the practice’s trust
records; and
(d) the ADI with which any trust account of the practice is maintained;
and
(e) any person whom the Society reasonably believes should be served with
the notice.
(2) The notice must—
(a) identify the law practice and the manager; and
(b) indicate that the external intervention is by way of appointment of a
manager; and
(c) specify the term of the appointment; and
(d) specify any reporting requirements to be observed by the manager;
and
(e) specify any conditions imposed by the Society when the appointment is
made; and
(f) include a statement that the law practice may appeal against the
appointment of the manager under section 438; and
(g) contain or be accompanied by other information or material prescribed
by the regulations.
414—Effect of
service of notice of appointment
(1) After service on a law practice of a notice of the appointment of a
manager for the practice and until the appointment is terminated, a legal
practitioner associate of the practice who is specified or referred to in the
notice must not participate in the affairs of the practice except under the
direct supervision of the manager.
Maximum penalty: $50 000.
(2) After service on an ADI of a notice of the appointment of a manager
for a law practice and until the appointment is terminated, the ADI must ensure
that no funds are withdrawn or transferred from a trust account of the practice
unless—
(a) the withdrawal or transfer is made by cheque or other instrument drawn
on that account signed by—
(i) the manager; or
(ii) a receiver appointed for the practice; or
(iii) a nominee of the manager or receiver; or
(b) the withdrawal or transfer is made by means of electronic or internet
banking facilities by—
(i) the manager; or
(ii) a receiver appointed for the practice; or
(iii) a nominee of the manager or receiver; or
(c) the withdrawal or transfer is made in accordance with an authority to
withdraw or transfer funds from the account signed by—
(i) the manager; or
(ii) a receiver appointed for the practice; or
(iii) a nominee of the manager or receiver.
(3) After service on a person of a notice of the appointment of a manager
for a law practice and until the appointment is terminated, the person must
not—
(a) deal with any of the practice’s trust money; or
(b) sign any cheque or other instrument drawn on a trust account of the
practice; or
(c) authorise the withdrawal or transfer of funds from a trust account of
the practice,
but this subsection does not apply to a legal practitioner associate
referred to in subsection (1), an ADI or the manager or receiver for the
practice.
Maximum penalty: $50 000.
(4) A manager may, for the purposes of subsection (2)(b), enter into
arrangements with an ADI for withdrawing money from a trust account of the law
practice concerned by means of electronic or internet banking
facilities.
(5) Any money that is withdrawn or transferred in contravention of
subsection (2) may be recovered from the ADI concerned by the manager, or a
receiver for the law practice, as a debt in any court of competent jurisdiction,
and any amount recovered is to be paid into a trust account of the practice or
another account nominated by the manager or receiver.
(1) A manager for a law practice may carry on the practice and may do all
things that the practice or a legal practitioner associate of the practice might
lawfully have done, including but not limited to the following:
(a) transacting any urgent business of the practice;
(b) transacting, with the approval of any or all of the existing clients
of the practice, any business on their behalf, including—
(i) commencing, continuing, defending or settling any proceedings;
and
(ii) receiving, retaining and disposing of property;
(c) accepting instructions from new clients and transacting any business
on their behalf, including—
(i) commencing, continuing, defending or settling any proceedings;
and
(ii) receiving, retaining and disposing of regulated property;
(d) charging and recovering legal costs, including legal costs for work in
progress at the time of the appointment of the manager;
(e) entering into, executing or performing any agreement;
(f) dealing with trust money in accordance with this Act and the
regulations;
(g) paying to the Society any amounts that the Society is entitled to
recover from the law practice under section 442;
(h) winding up the affairs of the practice;
(i) performing any other act relating to the practice that the manager may
be authorised to perform by the Society.
(2) For the purpose of exercising his or her powers under
subsection (1), the manager may exercise any or all of the following
powers:
(a) to enter and remain on premises used by the law practice for or in
connection with its engaging in legal practice;
(b) to require the practice, an associate or former associate of the
practice or any other person who has or had control of client files and
associated documents (including documents relating to trust money received by
the practice) to give the manager either or both of the following:
(i) access to the files and documents the manager reasonably
requires;
(ii) information relating to client matters the manager reasonably
requires;
(c) to operate equipment or facilities on the premises, or to require any
person on the premises to operate equipment or facilities on the premises, for a
purpose relevant to his or her appointment;
(d) to take possession of any relevant material and retain it for as long
as may be necessary;
(e) to secure any relevant material found on the premises against
interference, if the material cannot be conveniently removed;
(f) to take possession of any computer equipment or computer program
reasonably required for a purpose relevant to his or her appointment.
(3) If the manager takes anything from the premises, the manager must
issue a receipt in a form approved by the Society and—
(a) if the occupier or a person apparently responsible to the occupier is
present at or near the premises, give it to him or her; or
(b) otherwise, leave it at the premises in an envelope addressed to the
occupier.
(4) If the manager is refused access to the premises or the premises are
unoccupied, the manager may use reasonable force to enter the premises and may
be accompanied by a police officer to assist entry.
416—Records and
accounts of law practice under management and dealings with trust
money
(1) The manager for a law practice must maintain the records and accounts
of the practice that he or she manages—
(a) separately from the management of the affairs of the practice before
his or her appointment as manager; and
(b) separately from the affairs of any other law practice for which he or
she is manager; and
(c) in the manner (if any) prescribed by the regulations.
(2) Subject to subsection (1), the manager for a law practice must
deal with trust money of the practice in the same way as a law practice must
deal with trust money.
(1) It is the duty of the manager for a law practice to co-operate with
the legal personal representative of a deceased legal practitioner associate of
the practice for the orderly winding up of the estate.
(2) The manager is not, in the exercise or performance of powers and
duties as manager, a legal personal representative of the deceased legal
practitioner associate, but nothing in this subsection prevents the manager from
exercising or performing powers or duties as a legal personal representative if
otherwise appointed as representative.
(3) Subject to subsections (1) and (2) and to the terms of the
manager’s appointment, if the manager was appointed before the death of
the legal practitioner associate, the manager’s appointment, powers and
duties are not affected by the death.
418—Termination
of manager's appointment
(1) The appointment of a manager for a law practice terminates in the
following circumstances:
(a) the term of the appointment comes to an end;
(b) the appointment is set aside under section 438;
(c) the appointment of a receiver for the practice takes effect, where the
terms of the appointment indicate that the receiver is authorised to exercise
the powers and duties of a manager;
(d) the manager has wound up the affairs of the practice;
(e) a determination of the Society that the appointment be terminated has
taken effect.
(2) The Society may determine in writing that the appointment be
terminated immediately or with effect from a specified date.
(3) If the appointment terminates in the circumstances referred to in
subsection (1)(a), (c) or (e), the former manager must, as soon as
practicable after the termination, transfer and deliver the regulated property
and client files of the law practice to—
(a) another external intervener appointed for the practice; or
(b) the practice, if another external intervener is not appointed for the
practice.
(4) The former manager need not transfer regulated property and files to
the law practice in compliance with subsection (3) unless the
manager’s expenses have been paid to the Society.
(5) The Society must serve a written notice of the termination on all
persons originally served with notice of the appointment.
419—Appointment
of receiver by Supreme Court
(1) This section applies if the Society determines to apply to the Supreme
Court for the appointment of a receiver for a law practice.
(2) The Supreme Court may, on the application of the Society, appoint a
person as receiver for the law practice.
(3) The Supreme Court may make the appointment whether or not the law
practice or a principal of the practice concerned has been notified of the
application and whether or not the practice or principal is a party to the
proceedings.
(4) Before commencing to hear an application for appointment of a
receiver, the Supreme Court must order from the precincts of the Court any
person who is not—
(a) an officer of the Court; or
(b) a party, an officer or employee of a party, a legal representative of
a party, or a clerk of a legal representative of a party; or
(c) a principal of the law practice concerned; or
(d) a person who is about to give, or is in the course of giving,
evidence; or
(e) a person permitted by the Court to be present in the interests of
justice.
(5) The appointee must be—
(a) an Australian legal practitioner who holds an unrestricted practising
certificate; or
(b) a person holding accounting qualifications with experience in law
practices’ trust accounts,
and may (but need not) be an employee of the Society.
(6) The instrument of appointment must—
(a) identify the law practice and the receiver; and
(b) indicate that the external intervention is by way of appointment of a
receiver; and
(c) specify any conditions imposed by the Supreme Court when the
appointment is made; and
(d) specify any fees payable by way of remuneration to the receiver
specifically for carrying out his or her duties in relation to the external
intervention; and
(e) provide for the legal costs and the expenses that may be incurred by
the receiver in relation to the external intervention.
(7) The instrument of appointment may—
(a) specify the term (if any) of the appointment; and
(b) specify any reporting requirements to be observed by the
receiver.
(1) As soon as possible after an appointment of a receiver for a law
practice is made, the Society must serve a notice of the appointment
on—
(a) the practice; and
(b) any person authorised to operate any trust account of the practice;
and
(c) any external examiner appointed to examine the practice’s trust
records; and
(d) the ADI with which any trust account of the practice is maintained;
and
(e) any person who the Supreme Court directs should be served with the
notice; and
(f) any person who the Society reasonably believes should be served with
the notice.
(2) The notice must—
(a) identify the law practice and the receiver; and
(b) indicate that the external intervention is by way of appointment of a
receiver; and
(c) specify the term (if any) of the appointment; and
(d) indicate the extent to which the receiver has the powers of a manager
for the practice; and
(e) specify any reporting requirements to be observed by the receiver;
and
(f) specify any conditions imposed by the Supreme Court when the
appointment is made; and
(g) contain or be accompanied by other information or material (if any)
prescribed by the regulations.
421—Effect of
service of notice of appointment
(1) After service on a law practice of a notice of the appointment of a
receiver for the practice and until the appointment is terminated, a legal
practitioner associate of the practice who is specified or referred to in the
notice must not participate in the affairs of the practice.
Maximum penalty: $50 000.
(2) After service on an ADI of a notice of the appointment of a receiver
for a law practice and until the appointment is terminated, the ADI must ensure
that no funds are withdrawn or transferred from a trust account of the practice
unless—
(a) the withdrawal or transfer is made by cheque or other instrument drawn
on that account signed by—
(i) the receiver; or
(ii) a manager appointed for the practice; or
(iii) a nominee of the receiver or manager; or
(b) the withdrawal or transfer is made by means of electronic or internet
banking facilities, by—
(i) the receiver; or
(ii) a manager appointed for the practice; or
(iii) a nominee of the receiver or manager; or
(c) the withdrawal or transfer is made in accordance with an authority to
withdraw or transfer funds from the account signed by—
(i) the receiver; or
(ii) a manager appointed for the practice; or
(iii) a nominee of the receiver or manager.
(3) After service on a person of a notice of the appointment of a receiver
for a law practice and until the appointment is terminated, the person must
not—
(a) deal with any of the practice’s trust money; or
(b) sign any cheque or other instrument drawn on a trust account of the
practice; or
(c) authorise the withdrawal or transfer of funds from a trust account of
the practice,
but this subsection does not apply to an ADI or the receiver or manager for
the practice.
Maximum penalty: $50 000.
(4) A receiver may, for the purposes of subsection (2)(b), enter into
arrangements with an ADI for withdrawing money from a trust account of the law
practice concerned by means of electronic or internet banking
facilities.
(5) Any money that is withdrawn or transferred in contravention of
subsection (2) may be recovered from the ADI concerned by the receiver or a
manager for the practice, as a debt in any court of competent jurisdiction, and
any amount recovered is to be paid into a trust account of the law practice or
another account nominated by the receiver or manager.
(1) The role of a receiver for a law practice is—
(a) to be the receiver of regulated property of the practice;
and
(b) to wind up and terminate the affairs of the practice.
(2) For the purpose of winding up the affairs of the law practice and in
the interests of the practice’s clients, the Supreme Court may, by order,
authorise—
(a) the receiver to carry on the legal practice engaged in by the law
practice, if the receiver is an Australian legal practitioner who holds an
unrestricted practising certificate; or
(b) an Australian legal practitioner who holds an unrestricted practising
certificate, or a law practice whose principals are or include 1 or more
Australian legal practitioners who hold unrestricted practising certificates,
specified in the instrument to carry on the legal practice on behalf of the
receiver.
(3) Subject to any directions given by the Supreme Court by instrument in
writing, the person authorised to carry on the legal practice engaged in by a
law practice has all the powers of a manager under this Part and is taken to
have been appointed as manager for the law practice.
(4) The Supreme Court may, by instrument in writing, terminate an
authorisation to carry on a legal practice granted under this section.
(5) For the purposes of exercising his or her powers under this section,
the receiver may exercise any or all of the following powers:
(a) to enter and remain in premises used by the law practice for or in
connection with its engaging in legal practice;
(b) to require the practice, an associate or former associate of the
practice or any other person who has or had control of client files and
associated documents (including documents relating to trust money received by
the practice) to give the receiver—
(i) access to the files and documents the receiver reasonably requires;
and
(ii) information relating to client matters the receiver reasonably
requires;
(c) to operate equipment or facilities on the premises, or to require any
person on the premises to operate equipment or facilities on the premises, for a
purpose relevant to his or her appointment;
(d) to take possession of any relevant material and retain it for as long
as may be necessary;
(e) to secure any relevant material found on the premises against
interference, if the material cannot be conveniently removed;
(f) to take possession of any computer equipment or computer program
reasonably required for a purpose relevant to his or her appointment.
(6) If the receiver takes anything from the premises, the receiver must
issue a receipt in a form approved by the Supreme Court and—
(a) if the occupier or a person apparently responsible to the occupier is
present at or near the premises—give it to him or her; or
(b) otherwise—leave it at the premises in an envelope addressed to
the occupier.
(7) If the receiver is refused access to the premises or the premises are
unoccupied, the receiver may use reasonable force to enter the premises and may
be accompanied by a police officer to assist entry.
423—Records and
accounts of law practice under receivership and dealings with trust
money
(1) The receiver for a law practice must maintain the records and accounts
of the practice that he or she manages—
(a) separately from the management of the affairs of the practice before
his or her appointment as receiver; and
(b) separately from the affairs of any other law practice that the
receiver is managing; and
(c) in the manner prescribed by the regulations.
(2) Subject to subsection (1), the receiver for a law practice must
deal with trust money of the practice in the same way as a law practice must
deal with trust money.
424—Power of
receiver to take possession of regulated property
(1) A receiver for a law practice may take possession of regulated
property of the practice.
(2) A person in possession or having control of regulated property of the
law practice must permit the receiver to take possession of the regulated
property if required by the receiver to do so.
(3) If a person contravenes subsection (2), the Supreme Court may, on
application by the receiver, order the person to deliver the regulated property
to the receiver.
(4) If, on application made by the receiver, the Supreme Court is
satisfied that an order made under subsection (3) has not been complied
with, the Court may order the seizure of any regulated property of the law
practice that is located on the premises specified in the order and make any
further orders it thinks fit.
(5) An order under subsection (4) operates to
authorise—
(a) any police officer; or
(b) the receiver or a person authorised by the receiver, together with any
police officer,
to enter the premises specified in the order and search for, seize and
remove anything that appears to be regulated property of the law
practice.
(6) The receiver must, as soon as possible, return anything seized under
this section if it turns out that it is not regulated property of the law
practice.
(7) This section does not limit the jurisdiction of the Supreme Court to
deal with failure to comply with an order as a contempt of court.
425—Power of
receiver to take delivery of regulated property
(1) If a receiver for a law practice believes on reasonable grounds that
another person is under an obligation, or will later be under an obligation, to
deliver regulated property to the practice, the receiver may, by notice in
writing, require that other person to deliver the property to the
receiver.
(2) If a person has notice that a receiver has been appointed for a law
practice and the person is under an obligation to deliver regulated property to
the practice, the person must deliver the property to the receiver.
Maximum penalty: $50 000.
(3) A document signed by a receiver acknowledging the receipt of regulated
property delivered to the receiver is as valid and effectual as if it had been
given by the law practice.
426—Power of
receiver to deal with regulated property
(1) This section applies if a receiver for a law practice acquires or
takes possession of regulated property of the practice.
(2) The receiver may deal with the regulated property in any manner in
which the law practice might lawfully have dealt with the property.
427—Power of
receiver to require documents or information
(1) A receiver for a law practice may require—
(a) a person who is an associate or former associate of the practice;
or
(b) a person who has or has had control of documents relating to the
affairs of the practice; or
(c) a person who has information relating to regulated property of the
practice or property that the receiver believes on reasonable grounds to be
regulated property of the practice,
to give the receiver either or both of the following:
(d) access to the documents relating to the affairs of the practice the
receiver reasonably requires;
(e) information relating to the affairs of the practice the receiver
reasonably requires (verified by statutory declaration if the requirement so
states).
(2) A person who is subject to a requirement under subsection (1)
must comply with the requirement.
Maximum penalty: $50 000.
(3) The validity of the requirement is not affected, and a person is not
excused from complying with the requirement, on the ground that compliance with
the requirement may tend to incriminate the person.
(4) If, before complying with the requirement, the person objects to the
receiver on the ground that compliance may tend to incriminate the person, the
information given or the information in the documents to which access is given
is inadmissible in evidence against the person in any proceedings for an
offence, other than—
(a) an offence against this Act; or
(b) any other offence relating to the keeping of trust accounts or the
receipt of trust money; or
(c) an offence relating to the falsity of the answer; or
(d) proceedings taken by the receiver for the recovery of regulated
property.
(1) The Supreme Court may, on the application of a receiver for a law
practice, make an order directing that an associate or former associate of the
practice or any other person appear before the Court for examination on oath or
affirmation in relation to the regulated property of the practice.
(2) On an examination of a person under this section, the person must
answer all questions that the Court allows to be put to the person.
Maximum penalty: $50 000.
(3) The person is not excused from answering a question on the ground that
the answer might tend to incriminate the person.
(4) If, before answering the question, the person objects on the ground
that it may tend to incriminate the person, the answer is not admissible in
evidence against the person in any proceedings for an offence, other
than—
(a) an offence against this Act; or
(b) an offence relating to the falsity of the answer.
429—Lien for
costs on regulated property
(1) This section applies if—
(a) a receiver has been appointed for a law practice; and
(b) the practice or a legal practitioner associate of the practice claims
a lien for legal costs on regulated property of the practice.
(2) The receiver may serve on the law practice or legal practitioner
associate a written notice requiring the practice or associate to give the
receiver within a specified period of not less than
1 month—
(a) particulars sufficient to identify the regulated property;
and
(b) a detailed bill of costs.
(3) If the law practice or legal practitioner associate requests the
receiver in writing to give access to the regulated property that is reasonably
necessary to enable the practice or associate to prepare a bill of costs in
compliance with subsection (2), the time allowed does not begin to run
until the access is provided.
(4) If a requirement of a notice under this section is not complied with,
the receiver may, in dealing with the regulated property claimed to be subject
to the lien, disregard the claim.
430—Regulated
property not to be attached
Regulated property of a law practice for which a receiver has been
appointed (including regulated property held by the receiver) is not liable to
be taken, levied on or attached under any judgment, order or process of any
court or any other process.
431—Recovery of
regulated property where there has been a breach of trust
etc
(1) This subsection applies if regulated property of or under the control
of a law practice has, before or after the appointment of a receiver for the
practice, been taken by, paid to, or transferred to, a person (the
transferee) in breach of trust, improperly or unlawfully and the
transferee—
(a) knew or believed at the time of the taking, payment or transfer that
it was done in breach of trust, improperly or unlawfully; or
(b) did not provide to the practice or any other person any or any
adequate consideration for the taking, payment or transfer; or
(c) because of the taking, payment or transfer, became indebted or
otherwise liable to the practice or to a client of the practice in the amount of
the payment or in another amount.
(2) The receiver is entitled to recover from the
transferee—
(a) if subsection (1)(a) applies—the amount of the payment or
the value of the regulated property taken or transferred; or
(b) if subsection (1)(b) applies—the amount of the inadequacy
of the consideration or, if there was no consideration, the amount of the
payment or the value of the regulated property taken or transferred;
or
(c) if subsection (1)(c) applies—the amount of the debt or
liability,
and, on the recovery of that amount from the transferee, the transferee
ceases to be liable for it to any other person.
(3) If any money of or under the control of a law practice has, before or
after the appointment of a receiver for the practice, been paid in breach of
trust, improperly or unlawfully to a person (the prospective
plaintiff) in respect of a cause of action that the prospective
plaintiff had, or claimed to have, against a third party—
(a) the receiver may prosecute the cause of action against the third party
in the name of the prospective plaintiff; or
(b) if the prospective plaintiff did not have at the time the payment was
made a cause of action against the third party, the receiver may recover the
money from the prospective plaintiff.
(4) If any regulated property of or under the control of a law practice
has, before or after the appointment of a receiver for the practice, been used
in breach of trust, improperly or unlawfully so as to discharge or reduce a debt
or liability of a person (the debtor), the receiver may recover
from the debtor the amount of the debt or liability so discharged or reduced
less the consideration (if any) provided by the debtor for the
discharge.
(5) A person authorised by the Society to do so may give a certificate
with respect to all or any of the following facts:
(a) the receipt of regulated property by the law practice concerned from
any person, the nature and value of the property, the date of receipt, and the
identity of the person from whom it was received;
(b) the taking, payment or transfer of regulated property, the nature and
value of the property, the date of the taking, payment or transfer, and the
identity of the person by whom it was taken or to whom it was paid or
transferred;
(c) the entries made in the trust account and in any other ledgers, books
of account, vouchers or records of the practice and the truth or falsity of
those entries;
(d) the money and securities held by the practice at the specified
time.
(6) If the receiver brings a proceeding under subsection (2), (3) or
(4), a certificate given under subsection (5) is evidence and, in the
absence of evidence to the contrary, is proof of the facts specified in
it.
432—Improperly
destroying property etc
A person must not, with intent to defeat the operation of this Division,
and whether before or after appointment of a receiver, destroy, conceal, remove
from 1 place to another or deliver into the possession, or place under the
control, of another person any regulated property of a law practice for which a
receiver has been or is likely to be appointed.
Maximum penalty: $50 000.
(1) It is the duty of the receiver for a law practice to co-operate with
the legal personal representative of a deceased legal practitioner associate of
the practice for the orderly winding up of the estate.
(2) The receiver is not, in the exercise or performance of powers and
duties as receiver, a legal personal representative of the deceased legal
practitioner associate, but nothing in this subsection prevents the receiver
from exercising or performing powers or duties as a legal personal
representative if otherwise appointed as representative.
(3) Subject to subsection (1) and (2) and to the terms of the
receiver’s appointment, if the receiver was appointed before the death of
the legal practitioner associate, the receiver’s appointment, powers and
duties are not affected by the death.
434—Termination
of receiver's appointment
(1) The appointment of a receiver for a law practice terminates in either
of the following circumstances:
(a) the term (if any) of the appointment comes to an end;
(b) the appointment is terminated under subsection (3).
(2) Any of the following may apply to the Supreme Court for an order that
the appointment of a receiver be terminated:
(a) the receiver;
(b) the principal of the law practice for which the receiver was
appointed;
(c) the Society.
(3) On an application under subsection (2), the Supreme Court may
make any order that it thinks fit, including an order terminating the
appointment and an order appointing another person as receiver.
(4) The appointment of a receiver is not stayed by the making of an
application for termination of the receiver's appointment, and the receiver may
accordingly continue to exercise his or her powers and functions as receiver
pending the Supreme Court's decision on the application except to the extent (if
any) that the Court otherwise directs.
(5) If the appointment of a receiver is terminated, the former receiver
must, as soon as practicable, transfer and deliver the regulated property of the
law practice to—
(a) another external intervener appointed for the practice within the
period of 14 days beginning with the day after the date of the termination;
or
(b) the practice, if another external intervener is not appointed for the
practice within that period and paragraph (c) does not apply; or
(c) another person in accordance with arrangements approved by the Supreme
Court, if it is not practicable to transfer and deliver the regulated property
to the practice.
(6) The former receiver need not transfer and deliver regulated property
to the law practice in compliance with subsection (5) unless the expenses
of the receivership have been paid to the Society.
(7) The Society must serve a written notice of the termination on all
persons originally served with notice of the appointment.
435—Conditions in
appointment of external intervener
(1) An appointment of an external intervener is subject
to—
(a) any conditions imposed by the appropriate authority; and
(b) any conditions imposed by or under the regulations.
(2) The appropriate authority may impose conditions—
(a) when the appointment is made; or
(b) during the term of the appointment.
(3) The appropriate authority may revoke or vary conditions imposed under
subsection (2).
(4) In this section—
appropriate authority means—
(a) in the case of a supervisor or manager—the Society;
(b) in the case of a receiver—the Supreme Court.
436—Status of
acts of external intervener
An act done or omitted to be done by an external intervener for a law
practice is, for the purposes of—
(a) any proceeding; or
(b) any transaction that relies on that act or omission,
taken to have been done or omitted to be done by the practice.
437—Eligibility
for reappointment or authorisation
A person who has been appointed as an external intervener for a law
practice is eligible for re-appointment as an external intervener for the
practice, whether the later appointment is made in respect of the same type of
external intervention or is of a different type.
438—Appeal
against appointment
(1) The following persons may appeal to the Supreme Court against the
appointment of an external intervener for a law practice:
(a) the practice;
(b) an associate of the practice;
(c) any person authorised to operate a trust account of the
practice;
(d) any other person whose interests may be adversely affected by the
appointment.
(2) The appeal is to be lodged within 7 days after notice of the
appointment is served on—
(a) the person who proposes to appeal; or
(b) the law practice, if a notice is not required to be served on the
person who proposes to appeal.
(3) The Supreme Court may make any order it considers appropriate on the
appeal.
(4) The appointment of a supervisor or manager is not stayed by the making
of an appeal, and the supervisor or manager may accordingly continue to exercise
his or her powers and functions as supervisor or manager during the currency of
the appeal except to the extent (if any) that the Supreme Court otherwise
directs.
439—Directions of
Supreme Court
The Supreme Court may, on application by—
(a) an external intervener for a law practice; or
(b) a principal of the practice; or
(c) any other person affected by the external intervention,
give directions in relation to any matter affecting the intervention or the
intervener’s powers, duties or functions under this Act.
440—Manager and
receiver appointed for law practice
If a manager and a receiver are appointed for a law practice, any decision
of the receiver prevails over any decision of the manager in the exercise of
their respective powers, to the extent of any inconsistency.
441—ADI
disclosure requirements
(1) An ADI must, at the request of an external intervener for a law
practice, disclose to the intervener—
(a) whether or not the practice, or an associate of the practice specified
by the intervener, maintains or has maintained an account at the ADI during a
period specified by the intervener; and
(b) details identifying every account so maintained.
Maximum penalty: $50 000.
(2) An ADI at which an account of a law practice or associate of a law
practice is or has been maintained must, at the request of an external
intervener for the law practice—
(a) produce for inspection or copying by the intervener, or a nominee of
the intervener, any records relating to any such account or money deposited in
any such account; and
(b) provide the intervener with full details of any transactions relating
to any such account or money.
Maximum penalty: $50 000.
(3) If an external intervener believes, on reasonable grounds, that trust
money has, without the authorisation of the person who entrusted the trust money
to the law practice, been deposited into the account of a third party who is not
an associate of the law practice, the ADI at which the account is maintained
must disclose to the intervener—
(a) whether or not a person specified by the intervener maintains or has
maintained an account at the ADI during a period specified by the intervener;
and
(b) the details of any such account.
(4) An obligation imposed by this section on an ADI does not apply unless
the external intervener produces to the ADI evidence of the appointment of the
intervener in relation to the law practice concerned.
(5) A request under this section may be general or limited to a particular
kind of account.
(6) This section applies despite any legislation or duty of confidence to
the contrary.
(7) An ADI or an officer or employee of an ADI is not liable to any action
for any loss or damage suffered by another person as a result of producing
records or providing details in accordance with this section.
442—Fees,
legal costs and expenses
(1) An external intervener is entitled to be paid—
(a) fees by way of remuneration; and
(b) the legal costs and the expenses incurred in relation to the external
intervention,
in accordance with the instrument of appointment.
(2) An account of the external intervener for fees, costs and expenses
may, on the application of the Society, be adjudicated.
(3) The fees, costs and expenses are payable by and recoverable from the
law practice.
(4) Fees, costs and expenses not paid to the external intervener by the
law practice are payable from the guarantee fund.
(5) The Society may recover any unpaid fees, costs and expenses from the
law practice.
(6) Fees, costs and expenses paid by or recovered from the law practice
after they have been paid from the guarantee fund are to be paid to the
fund.
443—Reports by
external intervener
(1) An external intervener must provide written reports in accordance with
any reporting requirements to be observed by the intervener as specified in the
instrument of appointment.
(2) If the instrument of appointment does not specify any reporting
requirements, an external intervener must provide—
(a) written reports as required from time to time by the Society;
and
(b) a written report to the Society at the termination of the
appointment.
(3) An external intervener must also keep the Society informed of the
progress of the external intervention, including reports to the Society about
any significant events occurring or state of affairs existing in connection with
the intervention or with any of the matters to which the intervention
relates.
(4) Nothing in this section affects any other reporting obligations that
may exist in respect of the law practice concerned.
(1) An external intervener must not disclose information obtained as a
result of his or her appointment except—
(a) so far as is necessary for exercising his or her powers or functions;
or
(b) as provided in subsection (2).
(2) An external intervener may disclose information to any of the
following:
(a) any court, tribunal or other person acting judicially;
(b) a regulatory authority of any jurisdiction;
(c) any officer of, or Australian legal practitioner instructed
by—
(i) a regulatory authority of any jurisdiction; or
(ii) the Commonwealth or a State or Territory of the Commonwealth;
or
(iii) an authority of the Commonwealth or of a State or Territory of the
Commonwealth,
in relation to any proceedings, inquiry or other matter pending or
contemplated arising out of the investigation or examination;
(d) an investigative or prosecuting authority established by or under
legislation (for example, the Australian Securities and Investments
Commission);
(e) a member of the police force of any jurisdiction if the Society or
external intervener believes on reasonable grounds that the information relates
to an offence that may have been committed by the law practice concerned or by
an associate of the law practice;
(f) the law practice concerned or a principal of the law practice or, if
the practice is an incorporated legal practice, a shareholder in the
practice;
(g) a client or former client of the law practice concerned if the
information relates to the client or former client;
(h) another external intervener appointed in relation to the law practice
or any Australian legal practitioner or accountant employed by that other
external intervener;
(i) any other external examiner carrying out an external examination of
the trust records of the law practice concerned.
445—Provisions
relating to requirements under this Part
(1) This section applies to a requirement imposed on a person under this
Part to give an external intervener access to documents or
information.
(2) The validity of the requirement is not affected, and the person is not
excused from compliance with the requirement, on the ground that a law practice
or Australian legal practitioner has a lien over a particular document or class
of documents.
(3) The external intervener imposing the requirement may—
(a) inspect any document provided pursuant to the requirement;
and
(b) make copies of the document or any part of the document; and
(c) retain the document for a period the intervener thinks necessary for
the purposes of the external intervention in relation to which it was
produced.
(4) The person is not subject to any liability, claim or demand merely
because of compliance with the requirement.
(5) A failure of an Australian lawyer to comply with the requirement is
capable of constituting unsatisfactory professional conduct or professional
misconduct.
(6) The Supreme Court may on application by the Board or the Society, or
on its own initiative, suspend a local practitioner's practising certificate
while a failure by the practitioner to comply with the requirement
continues.
446—Obstruction
of external intervener
(1) A person must not, without reasonable excuse, obstruct an external
intervener exercising a power under this Act.
Maximum penalty: $50 000.
(2) In this section—
obstruct includes hinder, delay, resist and attempt to
obstruct.
No liability attaches to—
(a) the Society; or
(b) the Council; or
(c) an officer, employee or agent of the Society; or
(d) a person appointed as an external intervener for a law
practice,
for any act or omission by the intervener done in good faith and in the
exercise or purported exercise of the intervener’s powers or duties under
this Act.
Chapter
6—Investigatory powers
In this Chapter—
complaint investigation means an investigation of a complaint
under Chapter 4;
ILP compliance audit means the conduct of an audit under
Chapter 2 Part 5 Division 2 in relation to an incorporated legal
practice;
investigator means—
(a) an investigator under Chapter 3 Part 2 Division 3 Subdivision 1;
or
(b) an external examiner under Chapter 3 Part 2 Division 3 Subdivision 2;
or
(c) the Board or a person authorised by the Board to investigate a
complaint under Chapter 4;
trust account examination means an external examination of
the trust records of a law practice under Chapter 3 Part 2 Division 3
Subdivision 2;
trust account investigation means an investigation of the
affairs of a law practice under Chapter 3 Part 2 Division 3 Subdivision
1.
Part
2—Requirements relating to documents, information and other
assistance
This Part applies to—
(a) trust account investigations; and
(b) trust account examinations; and
(c) complaint investigations; and
(d) ILP compliance audits.
450—Requirements
that may be imposed for investigations, examinations and audits under Chapter 3
Part 2
(1) For the purpose of carrying out a trust account investigation or trust
account examination in relation to a law practice, an investigator may, on
production of evidence of his or her appointment, require the practice or an
associate or former associate of the practice or any other person (including,
for example, an ADI, auditor or liquidator) who has or has had control of
documents relating to the affairs of the practice to give the investigator
either or both of the following:
(a) access to the documents relating to the affairs of the practice the
investigator reasonably requires;
(b) information relating to the affairs of the practice the investigator
reasonably requires (verified by statutory declaration if the requirement so
states).
(2) A person who is subject to a requirement under subsection (1)
must comply with the requirement.
Maximum penalty: $50 000 or imprisonment for 1 year.
451—Requirements
that may be imposed for investigations under Chapter 4
(1) For the purpose of carrying out a complaint investigation in relation
to an Australian lawyer, an investigator may, by notice served on the lawyer,
require the lawyer to do any 1 or more of the following:
(a) to produce, at or before a specified time and at a specified place,
any specified document (or a copy of the document);
(b) to provide written information on or before a specified date (verified
by statutory declaration if the requirement so states);
(c) to otherwise assist in, or co-operate with, the investigation of the
complaint in a specified manner.
(2) For the purpose of carrying out a complaint investigation in relation
to an Australian lawyer, the investigator may, on production of evidence of his
or her appointment, require an associate or former associate of a law practice
of which the lawyer is or was an associate or any other person (including, for
example, an ADI, auditor or liquidator but not including the lawyer) who has or
has had control of documents relating to the affairs of the lawyer to give the
investigator either or both of the following:
(a) access to the documents relating to the affairs of the lawyer the
investigator reasonably requires;
(b) information relating to the affairs of the lawyer the investigator
reasonably requires (verified by statutory declaration if the requirement so
states).
(3) A person who is subject to a requirement under subsection (1) or
(2) must comply with the requirement.
Maximum penalty: $50 000 or imprisonment for 1 year.
(4) A requirement imposed on a person under this section is to be notified
in writing to the person and is to specify a reasonable time for
compliance.
452—Provisions
relating to requirements under this Part
(1) This section applies to a requirement imposed on a person under this
Part.
(2) The validity of the requirement is not affected, and the person is not
excused from compliance with the requirement, on—
(a) the ground that the giving of the information or access to information
may tend to incriminate the person; or
(b) the ground that a law practice or Australian legal practitioner has a
lien over a particular document or class of documents.
(3) If compliance by a person with a requirement to answer a question or
to produce, or provide a copy of, a document or information might tend to
incriminate the person or make the person liable to a penalty,
then—
(a) in the case of a person who is required to produce, or provide a copy
of, a document or information—the fact of production, or provision of a
copy of, the document or the information (as distinct from the contents of the
document or the information); or
(b) in any other case—the answer given in compliance with the
requirement,
is not admissible in evidence against the person in proceedings other than
proceedings——
(c) for an offence—
(i) against this Act; or
(ii) relating to the keeping of trust accounts or the receipt of trust
money; or
(d) in respect of the making of a false or misleading statement.
(4) The investigator imposing the requirement may—
(a) inspect any document provided pursuant to the requirement;
and
(b) make copies of the document or any part of the document; and
(c) retain the document for a period the investigator thinks necessary for
the purposes of the investigation in relation to which it was
produced.
(5) The person is not subject to any liability, claim or demand merely
because of compliance with the requirement.
(6) A failure by an Australian lawyer to comply with the requirement is
capable of constituting unsatisfactory professional conduct or professional
misconduct.
(7) The Supreme Court may, on application by the Board or the Society, or
on its own initiative, suspend a local legal practitioner's practising
certificate while a failure by the practitioner to comply with the requirement
continues.
Part 3—Entry and
search of premises
This Part applies to—
(a) trust account investigations; and
(b) complaint investigations;
but does not apply to—
(c) trust account examinations; or
(d) ILP compliance audits.
454—Investigator's
power to enter premises
(1) Subject to this section, for the purpose of carrying out an
investigation, an investigator may enter and remain on premises to exercise the
powers in section 456.
(2) In the case of a trust account investigation—
(a) the investigator may enter premises, other than residential premises,
without the need for consent or a search warrant; and
(b) the investigator may only enter residential premises as
follows:
(i) the investigator may enter the premises at any time with the consent
of the occupier;
(ii) the investigator may enter the premises under the authority of a
search warrant issued under this Part;
(iii) the investigator may enter the premises at any time without the
consent of the occupier and without a warrant, but only if the investigator
believes, on reasonable grounds, that it is urgently necessary to do so in order
to prevent the destruction of or interference with relevant material.
(3) In the case of a complaint investigation, the investigator may only
enter premises as follows:
(a) the investigator may enter the premises at any time with the consent
of the occupier;
(b) the investigator may enter the premises under the authority of a
search warrant issued under this Part.
(4) The investigator must not exercise the power in
subsection (2)(b)(iii) unless the Society has, when appointing the
investigator, authorised the use of that power.
(5) An investigator may use reasonable force for the purposes of entering
premises under subsection (2)(a) or (2)(b)(iii).
(6) The investigator must, at the reasonable request of a person
apparently in charge of the premises or any other person on the premises,
produce evidence of his or her appointment.
Maximum penalty: $2 500.
(1) For the purpose of carrying out an investigation, an investigator may
apply to a Magistrate for a search warrant.
(2) A Magistrate may, on application made under this section, issue a
search warrant to an investigator if—
(a) an investigator satisfies the Magistrate that there are reasonable
grounds to suspect that relevant material is located at the premises;
and
(b) the Magistrate is satisfied that there are reasonable grounds for
issuing the warrant.
(3) A search warrant authorises an investigator to enter the premises
specified in the warrant, by the use of reasonable force if necessary, at the
time or within the period specified in the warrant.
(4) A search warrant may be executed by the investigator to whom it is
issued or by any other investigator engaged in the investigation to which the
warrant relates.
(5) An investigator executing a warrant must, at the reasonable request of
a person apparently in charge of the premises or any other person on the
premises, produce the warrant.
Maximum penalty: $2 500.
456—Powers
of investigator while on premises
(1) An investigator who enters premises under this Part may exercise any
or all of the following powers:
(a) search the premises and examine anything on the premises;
(b) search for any information, document or other material relating to the
matter to which the investigation relates;
(c) operate equipment or facilities on the premises for a purpose relevant
to the investigation;
(d) take possession of any relevant material and retain it for as long as
may be necessary to examine it to determine its evidentiary value;
(e) make copies of any relevant material or any part of any relevant
material;
(f) seize and take away any relevant material or any part of any relevant
material;
(g) use (free of charge) photocopying equipment on the premises for the
purpose of copying any relevant material;
(h) with respect to any computer or other equipment that the investigator
suspects on reasonable grounds may contain any relevant
material—
(i) inspect and gain access to a computer or equipment;
(ii) download or otherwise obtain any documents or information;
(iii) make copies of any documents or information held in it;
(iv) seize and take away any computer or equipment or any part of
it;
(i) if any relevant material found on the premises cannot be conveniently
removed—secure it against interference;
(j) request any person who is on the premises to do any of the
following:
(i) to state his or her full name, date of birth and address;
(ii) to answer (orally or in writing) questions asked by the investigator
relevant to the investigation;
(iii) to produce relevant material;
(iv) to operate equipment or facilities on the premises for a purpose
relevant to the investigation;
(v) to provide access (free of charge) to photocopying equipment on the
premises the investigator reasonably requires to enable the copying of any
relevant material;
(vi) to give other assistance the investigator reasonably requires to
carry out the investigation;
(k) do anything else reasonably necessary to obtain information or
evidence for the purposes of the investigation.
(2) Any documents, information or anything else obtained by the
investigator may be used for the purposes of the investigation.
(3) If an investigator takes anything away from the premises, the
investigator must issue a receipt and—
(a) if the occupier or a person apparently responsible to the occupier is
present, give it to him or her; or
(b) otherwise, leave it on the premises in an envelope addressed to the
occupier.
(4) An investigator may be accompanied by any assistants the investigator
requires, including persons with accounting expertise and persons to assist in
finding and gaining access to electronically stored information.
Part 4—Additional
powers in relation to incorporated legal practices
(1) This Part applies to—
(a) trust account investigations; and
(b) complaint investigations; and
(c) ILP compliance audits,
conducted in relation to incorporated legal practices.
(2) The provisions of this Part are additional to the other provisions of
this Chapter.
458—Investigative
powers relating to investigations and audits
An investigator conducting an investigation or audit to which this Part
applies may exercise the powers set out in this Part.
(1) The investigator, by force of this section, has and may exercise the
same powers as those conferred on the Australian Securities and Investments
Commission by Division 2 of Part 3 of the Australian Securities and
Investments Commission Act 2001 of the Commonwealth.
(2) Division 2 of Part 3 of the Australian Securities and
Investments Commission Act 2001 of the Commonwealth applies to the
exercise of those powers, with the following modifications (and any other
necessary modifications):
(a) a reference to the Australian Securities and Investments Commission
(however expressed) is taken to be a reference to the investigator;
(b) a reference to a matter that is being or is to be investigated under
Division 1 of Part 3 of that Act is taken to be a reference to a
matter that is being or is to be investigated, examined or audited by the
investigator;
(c) a reference in section 19 of that Act to a person is taken to be a
reference to an Australian legal practitioner or an incorporated legal
practice;
(d) a reference to a prescribed form is taken to be a reference to a form
approved by the Society.
(3) Sections 22(2) and (3), 25(2) and (2A), 26 and 27 of the
Australian Securities and Investments Commission Act 2001 of the
Commonwealth do not apply in respect of the exercise of the powers conferred by
this section.
(1) The investigator, by force of this section, has and may exercise the
same powers as those conferred on the Australian Securities and Investments
Commission by sections 30(1), 34 and 37 to 39 of the Australian
Securities and Investments Commission Act 2001 of the
Commonwealth.
(2) Those provisions apply to the exercise of those powers, with the
following modifications (and any other necessary modifications):
(a) a reference to the Australian Securities and Investments Commission
(however expressed) is taken to be a reference to the investigator;
(b) a reference to a body corporate (including a body corporate that is
not an exempt public authority) is taken to be a reference to an incorporated
legal practice;
(c) a reference to an eligible person in relation to an incorporated legal
practice is taken to be a reference to an officer or employee of the
incorporated legal practice;
(d) a reference to a member or staff member is taken to be a reference to
the appropriate authority or a person authorised by the appropriate authority
who is an officer or employee of the authority;
(e) a reference in section 37 of that Act to a proceeding is taken to be a
reference to an investigation, examination or audit to which this Part
applies.
(3) In this section—
appropriate authority means—
(a) in the case of a complaint investigation—the Board;
and
(b) in the case of an ILP compliance audit, a trust account investigation
or a trust account examination—the Society.
(1) The investigator may hold hearings for the purposes of an
investigation, examination or audit to which this Part applies.
(2) Sections 52, 56(1), 58, 59(1), (2), (5), (6) and (8) and 60
(paragraph (b) excepted) of the Australian Securities and Investments
Commission Act 2001 of the Commonwealth apply to a hearing, with the
following modifications (and any other necessary modifications):
(a) a reference to the Australian Securities and Investments Commission
(however expressed) is taken to be a reference to the investigator;
(b) a reference to a member or staff member is taken to be a reference to
the appropriate authority or a person authorised by the appropriate authority
who is an officer or employee of the authority;
(c) a reference to a prescribed form is taken to be a reference to a form
approved by the Society.
(3) In this section—
appropriate authority has the same meaning as in
section 460.
462—Failure to
comply with investigation
The following acts or omissions are capable of constituting unsatisfactory
professional conduct or professional misconduct:
(a) a failure by an Australian legal practitioner to comply with any
requirement made by the investigator, or a person authorised by the
investigator, in the exercise of powers conferred by this Part;
(b) a contravention by an Australian legal practitioner of any condition
imposed by the investigator in the exercise of powers conferred by this
Part;
(c) a failure by a legal practitioner director of an incorporated legal
practice to ensure that the incorporated legal practice, or any officer or
employee of the incorporated legal practice, complies with any of the
following:
(i) any requirement made by the investigator, or a person authorised by
the investigator, in the exercise of powers conferred by this Part;
(ii) any condition imposed by the investigator in the exercise of powers
conferred by this Part.
463—Obstruction
of investigator
(1) A person must not, without reasonable excuse, obstruct an investigator
exercising a power under this Act.
Maximum penalty: $50 000.
(2) A person requested to do anything under section 456(1)(j) must
not, without reasonable excuse, fail to comply with the request.
Maximum penalty: $50 000.
(3) In this section—
obstruct includes hinder, delay, resist and attempt to
obstruct.
464—Obligation of
Australian lawyers and Australian legal practitioners
(1) The duties imposed on an Australian lawyer or Australian legal
practitioner by this section are additional to obligations imposed under other
provisions of this Chapter, whether or not the lawyer or legal practitioner is
the subject of the investigation, examination or audit concerned.
(2) An Australian lawyer or Australian legal practitioner must not mislead
an investigator or the Board or the Society in the exercise of—
(a) any power or function under this Chapter; or
(b) any power or function under a provision of a corresponding law that
corresponds to this Chapter.
(3) An Australian lawyer or Australian legal practitioner who is subject
to—
(a) a requirement under section 451; or
(b) a requirement under provisions of a corresponding law that correspond
to that section,
must not, without reasonable excuse, fail to comply with the
requirement.
No liability attaches to an investigator for any act or omission by the
investigator done in good faith and in the exercise or purported exercise of the
investigator's powers or duties under this Act.
466—Permitted
disclosure of confidential information
(1) Subject to this section, the Society, the Board or an investigator, or
a person employed or engaged on work related to the affairs of the Society or
the Board, must not divulge information that comes to his or her knowledge by
virtue of that office or position except—
(a) in the course of carrying out the duties of that office or position;
or
(b) as may be authorised by or under any law.
Maximum penalty: $50 000.
(2) A person referred to in subsection (1) may disclose information
obtained in the course of a trust account investigation, trust account
examination or complaint investigation to any of the following:
(a) any court, tribunal or other person acting judicially;
(b) any body regulating legal practitioners in any jurisdiction;
(c) the Attorney-General;
(d) a person authorised to appoint an investigator;
(e) any officer of or Australian legal practitioner instructed
by—
(i) the Society or Board or any other body regulating legal practitioners
in any jurisdiction; or
(ii) the Commonwealth or a State or Territory of the Commonwealth;
or
(iii) an authority of the Commonwealth or of a State or Territory of the
Commonwealth;
(f) an investigative or prosecuting authority established by or under
legislation (for example, the Australian Securities and Investments
Commission);
(g) a law enforcement authority;
(h) if the subject of the investigation, examination or audit is or
was—
(i) a law practice—a principal of the law practice; or
(ii) an incorporated legal practice—a director or shareholder in the
practice; or
(iii) an Australian lawyer—the lawyer or a principal of the law
practice of which the lawyer is or was an associate;
(i) if the subject of the investigation, examination or audit is or
was—
(i) a law practice—a client or former client of the practice;
or
(ii) an Australian lawyer—a client or former client of the law
practice of which the lawyer is or was an associate,
but only to the extent that the disclosure does not breach legal
professional privilege or a duty of confidentiality;
(j) if the subject of the investigation, examination or audit is or
was—
(i) a law practice—a supervisor, manager or receiver appointed in
relation to the law practice; or
(ii) an Australian lawyer—a supervisor, manager or receiver
appointed in relation to the law practice of which the lawyer is or was an
associate;
or an Australian legal practitioner or accountant employed by the
supervisor, manager or receiver;
(k) an investigator carrying out another investigation, examination or
audit in relation to the law practice or Australian lawyer who is or was the
subject of the investigation, examination or audit.
(3) Nothing in this section prevents the disclosure of information
relating to a complaint to the complainant or a person acting on behalf of the
complainant.
(4) No liability (including liability in defamation) is incurred by a
protected person in respect of anything done or omitted to be done in good faith
for the purpose of disclosing information under this section.
(5) In this section—
protected person means—
(a) the Board; or
(b) a member, employee or agent of the Board; or
(c) the Society; or
(d) the Council; or
(e) an officer, employee or agent of the Society; or
(f) an investigator; or
(g) a person acting at the direction of any person or entity referred to
in this definition.
Chapter
7—Regulatory bodies and funding
Part
1—The Law Society of South Australia
Division
1—Administration of the Society
467—Incorporation
and powers of Society
(1) The Law Society of South Australia continues in existence as a body
corporate.
(2) The Society—
(a) has perpetual succession and a common seal; and
(b) is capable of suing and being sued.
(3) If an apparently genuine document purports to bear the common seal of
the Society, it will be presumed in any legal proceedings, in the absence of
proof to the contrary, that the common seal of the Society was duly affixed to
that document.
(4) The Society has the powers of a natural person.
(5) The membership of the Society consists of all persons who have been
admitted to membership of the Society, and who, for the time being, continue to
be members of the Society, in accordance with the rules of the
Society.
468—Officers
and employees of Society
(1) The following officers of the Society will be elected in accordance
with the rules of the Society:
(a) the President;
(b) the President-Elect;
(c) the Vice-Presidents (the number of whom will be determined by the
rules);
(d) such other elective officers as may be stipulated by the
rules.
(2) There will be an Executive Director of the Society.
(3) The Executive Director and any other employees of the Society will be
appointed and hold office on such terms and conditions as the Society may
determine.
(1) There will be a council of the Society.
(2) The Council consists of—
(a) the Attorney-General; and
(b) the President of the Society; and
(c) the President-Elect of the Society; and
(d) the Vice-Presidents of the Society; and
(e) the other elective officers of the Society; and
(f) any persons who are, in accordance with the rules of the Society,
members of the Council ex officio; and
(g) any persons who are co-opted in accordance with the rules of the
Society to membership of the Council; and
(h) such other persons as are elected, in accordance with the rules of the
Society, to be members of the Council.
470—Validation of
acts of Council
No act or proceeding of the Council is invalid by virtue of any vacancy in
its membership or any defect in the appointment or election of any member of the
Council.
471—Management of
Society's affairs
(1) Subject to this Act, and to the rules of the Society, the Council has
the management of all the affairs of the Society, and may exercise all the
powers of the Society.
(2) Subject to this Act, the Council may delegate any of its powers
to—
(a) a committee consisting of such persons as the Council thinks fit;
or
(b) a company that is a subsidiary of the Society within the meaning of
section 46 of the Corporations Act 2001 of the Commonwealth;
or
(c) an officer or employee of the Society.
(3) A delegation under this section is revocable at will and does not
derogate from the power of the Council to act itself in any matter.
(1) The Society must cause minutes of the proceedings of—
(a) all general meetings of the members of the Society; and
(b) all meetings of the Council,
to be entered in a book or books kept for the purpose.
(2) An apparently genuine document purporting to be verified by the
Executive Director and—
(a) purporting to be—
(i) minutes entered in pursuance of this section; or
(ii) an extract from any such minutes; or
(b) purporting to be—
(i) minutes of the proceedings of any committee established by the
Council; or
(ii) an extract from any such minutes,
will be accepted in any legal proceedings as evidence of the proceedings to
which the document relates.
(3) Subject to subsection (4), the Society must at the request of any
member of the Society produce for inspection the minutes of—
(a) any general meeting of the Society; and
(b) any meeting of the Council; and
(c) any meeting of any committee established by the Council.
(4) The Society is not required to produce minutes for inspection under
subsection (3) if the minutes are of a confidential nature and have been
entered in a minute book kept specifically for the purpose of recording minutes
of such a nature.
(5) In any legal proceedings it will be presumed, in the absence of proof
to the contrary, that a meeting of—
(a) the members of the Society; or
(b) the Council; or
(c) any committee established by the Council,
was duly convened and constituted, and that the proceedings of any such
meeting were regularly conducted.
(6) An apparently genuine document purporting to be under the hand of the
President, the President-Elect, a Vice-President, or the Executive Director, of
the Society and to certify that a person named in the document has been duly
elected or appointed to a specified office in the Society, or in the employment
of the Society, will be accepted in any legal proceedings, in the absence of
proof to the contrary, as proof of the matter so certified.
473—Society's
right of audience
(1) The Society may appoint an Australian legal practitioner to appear
before any court, commission or tribunal in any matter affecting the interests
of the Society or the members of the Society, or in which the Society is
directly or indirectly concerned or interested.
(2) Without limiting the generality of subsection (1), a practitioner
so appointed is entitled to appear—
(a) in any proceedings instituted by the Society; or
(b) in any proceedings in which a person seeks admission to the legal
profession under this Act; or
(c) in any proceedings in which it is alleged that an Australian legal
practitioner is guilty of unsatisfactory professional conduct or professional
misconduct; or
(d) in any proceedings under this Act.
(1) The Society, in general meeting, may make rules—
(a) to define the objects of the Society; or
(b) to provide for the election of a President, the President-Elect,
Vice-Presidents and other elective officers of the Society and to define the
conditions on which they hold office; or
(c) to provide for the election of members of the Council, and to define
the conditions on which they hold office; or
(d) to provide for the filling of casual vacancies occurring in elective
offices of the Society and in the membership of the Council; or
(e) to regulate the meetings and proceedings of, and the conduct of
business by, the Council, or any committee to which it has delegated any of its
powers; or
(f) to provide for the execution of documents by or on behalf of the
Society; or
(g) to define the terms and conditions on which a person may be admitted
to membership of the Society and to provide for the resignation, expulsion and
re-admission of members of the Society; or
(h) to prescribe, and provide for the payment of, subscriptions by members
of the Society; or
(i) to provide for the administration of any fund or ADI account under the
control of the Society; or
(j) to make any other provision relating to the administration of the
Society.
(2) A member of the Society, or an Australian legal practitioner, is
entitled, on payment of such fee as may be prescribed by rules under this
section, to receive a printed copy of the rules in force for the time being
under this section.
(3) The Attorney-General may, by instrument in writing, certify that a
rule made by the Society under this section relates only to the internal
administration of the Society and where such a certificate has been given under
this section, section 10 of the Subordinate Legislation Act 1978
does not apply in respect of the rule.
Division 2—The
Litigation Assistance Fund
475—The
Litigation Assistance Fund
(1) The Society must continue to administer the Litigation Assistance Fund
in accordance with the Deed of Trust.
(2) The Society may, despite any other law, enter into an agreement with a
party to legal proceedings to whom assistance is provided in accordance with the
Deed of Trust, under which the party is required to make a payment to the
Society, for the credit of the Litigation Assistance Fund, if those legal
proceedings are resolved in favour of that party.
(3) Any—
(a) communication between the Society, or any officer, employee or agent
of the Society, and an applicant for assistance from the Litigation Assistance
Fund; or
(b) document in the possession of the Society concerning the affairs of an
applicant for assistance from the Fund,
is privileged from production or disclosure in the same way and to the same
extent as if it were a communication between an Australian legal practitioner
and client.
(4) In this section—
Deed of Trust means the Deed of Trust dated
2 April 1992 under which the Litigation Assistance Fund is
established, and includes that Deed as amended from time to time.
Division
3—Reporting obligations
476—Certain
matters to be reported by Society
(1) If—
(a) the Society appoints an investigator under Chapter 3 Part 2 or a
supervisor, manager or receiver under Chapter 5; or
(b) the Society determines that a claim made against the guarantee fund is
valid; or
(c) a matter comes to the attention of the Society such that the Society
decides that there are reasonable grounds to suspect that an Australian legal
practitioner has committed an act or omission that would constitute
unsatisfactory professional conduct or professional misconduct,
the Society must, as soon as practicable, provide a report to the Board in
relation to the matter.
(2) The Society must comply with any reasonable request of the Board for
further information in relation to the subject matter of a report under this
section.
Part
2—The Legal Practitioners Education and Admission Council and the Board of
Examiners
Division
1—The Legal Practitioners Education and Admission
Council
(1) The Legal Practitioners Education and Admission Council
(LPEAC) continues in existence.
(2) LPEAC—
(a) is a body corporate; and
(b) has perpetual succession and a common seal; and
(c) is capable of suing and being sued.
(3) If an apparently genuine document purports to bear the common seal of
LPEAC, it will be presumed in any legal proceedings, in the absence of proof to
the contrary, that the common seal of LPEAC was duly affixed to that
document.
(4) LPEAC has the powers of a natural person.
(5) LPEAC consists of—
(a) the Chief Justice; and
(b) the Attorney-General; and
(c) 3 judges (each of whom is either a judge of the Supreme Court or a
judge of the Federal Court) appointed by the Chief Justice; and
(d) the Dean (or acting Dean) of the faculty or school of law at The
University of Adelaide; and
(e) the Dean (or acting Dean) of the faculty or school of law at The
Flinders University of South Australia; and
(f) the Dean (or acting Dean) of the faculty or school of law at the
University of South Australia; and
(g) a law student nominated in a manner determined by the Chief Justice
and appointed by the Chief Justice; and
(h) an Australian legal practitioner appointed by the Attorney-General;
and
(i) 4 Australian legal practitioners appointed by the Society (at least 1
of whom will, at the time of appointment, be a legal practitioner who is engaged
in legal practice predominantly as a barrister).
(6) The Chief Justice and the Attorney-General may each appoint a person
to act as his or her deputy at any meeting of LPEAC that the Chief Justice or
the Attorney-General is unable to attend.
(7) The Chief Justice will be the presiding member of LPEAC.
(1) LPEAC has the following functions:
(a) to make rules prescribing—
(i) the qualifications for admission to the legal profession under this
Act; and
(ii) the qualifications for the issue and renewal of local practising
certificates, including requirements for post-admission education, training or
experience;
(b) to participate in the development of uniform national standards
relating to the qualifications necessary for persons engaging in legal
practice;
(c) to keep the effectiveness of legal education and training courses and
post-admission experience under review so far as is relevant to qualifications
for engaging in legal practice;
(d) to perform any other functions assigned to LPEAC by this
Act.
(2) A rule made under this section may leave a matter to be determined
according to the discretion of LPEAC or the Supreme Court.
(3) Subject to subsection (4), a rule requiring Australian legal
practitioners to undertake further education or training or obtain further
experience may only be made under this section with the concurrence of the
Attorney-General.
(4) A rule requiring Australian legal practitioners who have been engaging
in legal practice for less than 2 years to undertake further education or
training or obtain further experience within a time specified in the rule, or
providing for extensions of the specified time to be granted, may be made
without the concurrence of the Attorney-General.
(1) Subject to this Act, an appointed member of LPEAC (other than the
member appointed as a law student) will be appointed for a term of office of
3 years and, on the expiration of a term of office, is eligible for
reappointment.
(2) The member of LPEAC appointed as a law student will hold office for a
term of 1 year.
(3) The Chief Justice may remove an appointed member of LPEAC from office
for—
(a) mental or physical incapacity to carry out official duties
satisfactorily; or
(b) neglect of duty; or
(c) dishonourable conduct.
(4) The office of an appointed member of LPEAC becomes vacant if the
member—
(a) dies; or
(b) completes a term of office; or
(c) resigns by written notice addressed to the Chief Justice; or
(d) in the case of a member who is an Australian legal
practitioner—ceases to be an Australian legal practitioner or is
disciplined under this Act or by the Supreme Court or under a corresponding law;
or
(e) in the case of a member appointed as a law student—ceases to be
a law student; or
(f) is removed from office pursuant to subsection (3).
(5) On the office of a member of LPEAC becoming vacant, a person may be
appointed in accordance with this Act to the vacant office but, if the office of
a member of LPEAC becomes vacant before the expiration of a term of appointment,
the successor will be appointed only for the balance of the term.
(1) 7 members of LPEAC (1 of whom must be the presiding member or a
judicial member of LPEAC) constitute a quorum of LPEAC, and no business may be
transacted at a meeting of LPEAC unless a quorum is present.
(2) A decision carried by a majority of the votes cast by the members
present at a meeting of LPEAC is a decision of LPEAC.
(3) Subject to this section, each member of LPEAC is entitled to 1 vote on
any matter arising for decision by LPEAC and, in the event of an equality of
votes, the person presiding at the meeting is entitled to a second or casting
vote.
(4) The member of LPEAC appointed as a law student is not to be counted
for the purposes of determining whether a quorum is present and is not entitled
to vote on any matter arising for decision by LPEAC.
(5) The presiding member will preside at any meeting of LPEAC at which the
member is present and, in the absence of the presiding member, a judicial member
chosen in a manner determined by the Chief Justice, will preside at the
meeting.
(6) Subject to this Act, the business of LPEAC may be conducted in such
manner as LPEAC may determine.
481—Validity of
acts and immunity of members
(1) An act or proceeding of LPEAC is not invalid by reason only of a
vacancy in its membership, and, despite the subsequent discovery of a defect in
the nomination or appointment of a member, any such act or proceeding is as
valid and effectual as if the member had been duly nominated or
appointed.
(2) No liability attaches to a member of LPEAC for an act or omission by
the member, or by LPEAC, in good faith and in the exercise or purported exercise
of powers or functions, or in the discharge or purported discharge of duties,
under this Act.
(1) LPEAC may appoint such advisory committees as LPEAC considers
necessary for the purpose of providing LPEAC with expert advice on any matter to
be determined by LPEAC.
(2) A member of an advisory committee holds office on terms and conditions
determined by LPEAC.
(3) The procedures to be observed in relation to the conduct of the
business of a committee will be—
(a) as determined by LPEAC; or
(b) insofar as the procedure is not determined under
paragraph (a)—as determined by the relevant committee.
(1) LPEAC must, on or before 31 October in each year, prepare and present
to the Attorney-General a report on the operations of LPEAC for the last
financial year.
(2) The Attorney-General must, within 12 sitting days after receiving a
report from LPEAC, cause copies of the report to be laid before both Houses of
Parliament.
Division
2—The Board of Examiners
(1) The Board of Examiners continues in existence.
(2) The Board of Examiners consists of 15 members appointed by the Chief
Justice of whom—
(a) 1 must be a Master of the Supreme Court; and
(b) 2 must be persons nominated by the Attorney-General; and
(c) 12 must be Australian legal practitioners.
(3) A member of the Board of Examiners holds office on terms and
conditions determined by the Chief Justice.
(4) The Chief Justice may appoint a person to be the deputy of the member
of the Board of Examiners who is a Master of the Supreme Court and the deputy
may, in the absence of the member, act in his or her place.
(5) The member of the Board of Examiners who is a Master of the Supreme
Court will be the presiding member.
485—Functions of
Board of Examiners
The Board of Examiners has the functions and powers conferred on it under
this Act or by LPEAC.
486—Procedures of
Board of Examiners
(1) 5 members of the Board of Examiners (1 of whom must be the presiding
member or the presiding member's deputy) constitute a quorum of the Board of
Examiners, and no business may be transacted at a meeting of the Board of
Examiners unless a quorum is present.
(2) Subject to this Act, the procedures to be observed in relation to the
conduct of the business of the Board of Examiners will be—
(a) as determined by LPEAC; or
(b) insofar as the procedure is not determined under
paragraph (a)—as determined by the Board of Examiners.
487—Validity of
acts and immunity of members
(1) An act or proceeding of the Board of Examiners is not invalid by
reason only of a vacancy in its membership, and, despite the subsequent
discovery of a defect in the nomination or appointment of a member, any such act
or proceeding is as valid and effectual as if the member had been duly nominated
or appointed.
(2) No liability attaches to a member of the Board of Examiners for an act
or omission by the member, or by the Board of Examiners, in good faith and in
the exercise or purported exercise of powers or functions, or in the discharge
or purported discharge of duties, under this Act.
Part
3—The Legal Practitioners Conduct Board
488—Legal
Practitioners Conduct Board
(1) The Legal Practitioners Conduct Board continues in
existence.
(2) The Board—
(a) is a body corporate; and
(b) has perpetual succession and a common seal; and
(c) is capable of suing and being sued.
(3) If an apparently genuine document purports to bear the common seal of
the Board, it will be presumed in any legal proceedings, in the absence of proof
to the contrary, that the common seal of the Board was duly affixed to that
document.
(4) The Board has the powers of a natural person.
(5) The Board consists of 7 members appointed by the Governor of
whom—
(a) 3 will be persons nominated by the Attorney-General of whom 1 will be
an Australian legal practitioner and 2 will be persons who are not Australian
lawyers; and
(b) 4 will be persons nominated by the Society (at least 1 of whom will,
at the time of nomination, be an Australian legal practitioner of not more than
7 years standing and at least 1 will be a person who is not an Australian
lawyer).
(6) A member of the Board, nominated by the Attorney-General after
consultation with the President of the Society, will be appointed by the
Governor to be the presiding member of the Board for such term and on such
conditions as may be fixed in the instrument of appointment.
(7) A member is not eligible for appointment as presiding member of the
Board unless the member is an Australian legal practitioner.
(8) The Governor may appoint a suitable person to be a deputy of a member
of the Board.
(9) A deputy of a member—
(a) must be qualified for membership of the Board in the same way as the
member of whom he or she is appointed deputy; and
(b) must be nominated for the appointment by the Attorney-General or the
Society according to whether that member was nominated by the Attorney-General
or the Society.
(10) If a member of the Board is absent, or unable, because of a conflict
of interest or for any other reason, to act as a member of the Board, the deputy
may act in his or her place.
489—Conditions on
which members of Board hold office
(1) Subject to this Act, a member of the Board will be appointed for a
term of office of 3 years and, on the expiration of a term of office, is
eligible for reappointment.
(2) The Governor may remove a member of the Board from office
for—
(a) mental or physical incapacity to carry out official duties
satisfactorily; or
(b) neglect of duty; or
(c) dishonourable conduct.
(3) The office of a member of the Board becomes vacant if the
member—
(a) dies; or
(b) completes a term of office; or
(c) resigns by written notice addressed to the Attorney-General;
or
(d) in the case of a member who is an Australian legal
practitioner—ceases to be an Australian legal practitioner or is
disciplined under this Act or by the Supreme Court or under a corresponding law;
or
(e) is removed from office by the Governor pursuant to
subsection (2).
(4) On the office of a member of the Board becoming vacant, a person will
be appointed in accordance with this Act to the vacant office but where the
office of a member of the Board becomes vacant before the expiration of a term
of appointment, the successor will be appointed only for the balance of the
term.
(1) 4 members of the Board (of whom not less than 2 are Australian legal
practitioners) constitute a quorum of the Board, and no business may be
transacted at a meeting of the Board unless a quorum is present.
(2) A decision carried by a majority of the votes cast by the members
present at a meeting of the Board is a decision of the Board.
(3) Each member of the Board is entitled to 1 vote on any matter arising
from the decision of the Board and, in the event of an equality of votes, the
person presiding at the meeting is entitled to a second or casting
vote.
(4) The presiding member will preside at any meeting of the Board at which
the member is present, and, in the absence of the presiding member, the members
present will decide who is to preside at that meeting.
(5) Subject to this Act, the business of the Board will be conducted in
such a manner as the Board determines.
(6) The Board must not meet to transact business on premises of the
Society except with the approval of the Attorney-General.
491—Validity of
acts of Board and immunity of its members
(1) An act or proceeding of the Board is not invalid by reason only of a
vacancy in its membership, and, despite the subsequent discovery of a defect in
the nomination or appointment of a member, any such act or proceeding is as
valid and effectual as if the member had been duly nominated or
appointed.
(2) No liability attaches to a member of the Board for any act or omission
by the member, or by the Board, in good faith and in the exercise or purported
exercise of powers or functions, or in the discharge or purported discharge of
duties, under this Act.
492—Director and
staff of Board
(1) There will be a Director appointed by the Board with the approval of
the Attorney-General.
(2) The Director is the chief administrative officer of the
Board.
(3) The Board may appoint other staff to assist in carrying out its
functions.
(1) The functions of the Board are as follows:
(a) to investigate suspected professional misconduct or unsatisfactory
professional conduct by Australian legal practitioners in accordance with
Chapter 4 Part 2 Division 1 Subdivision 1;
(b) following an investigation, to take action authorised under Chapter 4
Part 2 Division 1 Subdivision 2 or to lay a complaint before the
Tribunal;
(c) to receive and deal with complaints of overcharging in accordance with
Chapter 4 Part 2 Division 1 Subdivision 3;
(d) to arrange for the conciliation of complaints in accordance with
Chapter 4 Part 2 Division 1 Subdivision 4;
(e) to commence disciplinary proceedings against Australian legal
practitioners in the Supreme Court on the recommendation of the
Tribunal;
(f) to carry out any other functions conferred on the Board under this
Act.
(2) The Board may, with the approval of the Attorney-General, fix, and
require the payment of, fees in connection with the performance of functions of
the Board under this Act.
(3) The Board may exercise any of its functions or powers in relation to a
person who is a former Australian legal practitioner if, at the time of the
alleged professional misconduct or unsatisfactory professional conduct or
overcharging, the person was an Australian legal practitioner.
(1) Subject to subsection (2), the Board may delegate any of its
powers or functions under this Act to any person.
(2) The Board cannot delegate the making of a determination as
to—
(a) whether evidence exists of professional misconduct or unsatisfactory
professional conduct by an Australian legal practitioner; or
(b) whether professional misconduct or unsatisfactory professional conduct
by an Australian legal practitioner should be dealt with under section 360;
or
(c) whether to recommend that an Australian legal practitioner reduce or
refund an amount charged by the practitioner; or
(d) whether to lay a complaint before the Tribunal.
(3) Despite subsection (2)(a), the Board may delegate the making of a
determination that no evidence exists of professional misconduct or
unsatisfactory professional conduct by an Australian legal
practitioner.
(4) A delegation under this section is revocable at will and does not
derogate from the power of the Board to act itself in any matter.
Part
4—The Legal Practitioners Disciplinary Tribunal
495—Legal
Practitioners Disciplinary Tribunal
(1) The Legal Practitioners Disciplinary Tribunal continues in
existence.
(2) There will be 15 members of the Tribunal appointed by the Governor on
the nomination of the Chief Justice.
(3) A person is not eligible for appointment as a member of the Tribunal
unless that person is an Australian legal practitioner of at least 5 years
standing.
(4) 1 member of the Tribunal will be appointed, on the nomination of the
Chief Justice, to be the presiding member of the Tribunal, and another member
will be appointed by the Governor, on the nomination of the Chief Justice, to be
the deputy of that member.
(5) The deputy may, in the absence, or at the request, of the presiding
member, exercise any powers conferred by this Act on the presiding
member.
(1) Subject to this Act, a member of the Tribunal will be appointed for a
term of office of 3 years and, on the expiration of a term of office, is
eligible for reappointment.
(2) The Governor may remove a member of the Tribunal from office
for—
(a) mental or physical incapacity to carry out official duties
satisfactorily; or
(b) neglect of duty; or
(c) dishonourable conduct.
(3) The office of a member of the Tribunal becomes vacant if the
member—
(a) dies; or
(b) completes a term of office; or
(c) resigns by written notice addressed to the Attorney-General;
or
(d) ceases to be an Australian legal practitioner or is disciplined under
this Act or by the Supreme Court or under a corresponding law; or
(e) is removed from office by the Governor pursuant to
subsection (2).
(4) On the office of a member of the Tribunal becoming vacant a person
will be appointed, in accordance with this Act, to the vacant office.
(5) A member of the Tribunal who completes his or her term of office and
is not reappointed may continue to act as a member of the Tribunal for the
purpose of completing the hearing and determination of proceedings part-heard at
completion of the term.
497—Constitution
and proceedings of Tribunal
(1) In relation to any proceedings instituted before the Tribunal alleging
professional misconduct by an Australian legal practitioner, the Tribunal
consists of a panel of 3 of its members chosen by the presiding member to
constitute the Tribunal for the purposes of those proceedings (1 of whom may be
the presiding member).
(2) In relation to any proceedings instituted before the Tribunal alleging
only unsatisfactory professional conduct by an Australian legal practitioner,
the Tribunal consists of 1 of its members chosen by the presiding member to
constitute the Tribunal for the purposes of those proceedings (and that member
may be the presiding member).
(3) If the presiding member is a member of a panel chosen under
subsection (1), the member will preside at the proceedings, and in any
other case a member of the panel nominated by the presiding member will
preside.
(4) The Tribunal separately constituted under this section in respect of
separate proceedings may sit contemporaneously to hear and determine those
separate proceedings.
(5) If, before proceedings are finalised, a member of a panel chosen under
subsection (1) dies or is otherwise unable to continue acting, the 2
remaining members of the panel may continue to hear and determine the
proceedings.
(6) The Tribunal, when constituted of a panel of 3, may decide matters by
majority decision of its members.
(7) If the Tribunal is completing the hearing and determination of
proceedings in relation to a complaint with 2 members only under
subsection (5), a decision of the Tribunal must be arrived at unanimously
(and if a decision cannot be arrived at unanimously the complaint may be
relaid).
(8) Subject to this Act, the proceedings of the Tribunal will be conducted
in such manner as the Tribunal determines.
498—Validity of
acts of Tribunal and immunity of its members
(1) An act or proceeding of the Tribunal is not invalid by reason only of
a vacancy in its membership, and, despite the subsequent discovery of a defect
in the nomination or appointment of a member, any such act or proceeding is as
valid and effectual as if the member had been duly nominated or
appointed.
(2) No liability attaches to a member of the Tribunal for an act or
omission by the member, or by the Tribunal, in good faith and in the exercise or
purported exercise of functions, or in the discharge or purported discharge of
duties under this Act.
Any 3 or more Judges of the Supreme Court may make rules for any of the
following purposes:
(a) regulating the practice and procedure of the Tribunal;
(b) conferring on the Tribunal additional powers necessary or expedient
for carrying out its functions;
(c) making other provision that is necessary or expedient for carrying
into effect the provisions of this Part relating to the Tribunal.
(1) The Attorney-General may appoint suitable persons (not being
Australian lawyers) to be lay observers for the purposes of this Chapter and
Chapter 4.
(2) A lay observer is not, in that capacity, subject to the Public
Sector Management Act 1995, but holds office on terms and conditions
determined by the Attorney-General.
(3) A lay observer is entitled to be present at any proceedings of the
Board or the Tribunal and may report to the Attorney-General on any aspect of
the proceedings of the Board or the Tribunal.
(4) A complainant in proceedings before the Board or Tribunal who is
dissatisfied with the proceedings or the decision of the Board or Tribunal is
entitled to make representations directly to the lay observer.
(1) The Board and the Tribunal must each, on or before 31 October in
each year, prepare and present to the Attorney-General and the Chief Justice a
report on their proceedings for the last financial year.
(2) A report must contain—
(a) a statement of the nature of the matters subject to investigation or
inquiry; and
(b) information as to case management, and the number of uncompleted
matters outstanding at the end of the financial year; and
(c) such other information as the Attorney-General may require.
(3) The Attorney-General must, within 12 sitting days after receiving a
report from the Board or the Tribunal under this section, cause copies of the
report to be laid before both Houses of Parliament.
(1) A person may apply to the Supreme Court for an order admitting the
person as a public notary.
(2) The Supreme Court may, in its discretion, admit the applicant as a
notary or dismiss the application.
(3) A person admitted as a public notary under this Part must make an oath
in the prescribed form before the Registrar of the Supreme Court or a
Commissioner authorised to take affidavits in the Supreme Court.
(4) A person admitted as a notary under this Part has all the powers and
authorities (including the power to take affidavits) exercisable by law or
custom by public notaries.
(1) The Registrar of the Supreme Court must cause a roll to be kept of all
notaries admitted in pursuance of this Part.
(2) On the application of any person whose name appears on the roll, the
Registrar must grant a certificate in the prescribed form certifying that that
person is a public notary duly authorised and admitted to practise as such in
this State.
(3) An apparently genuine document purporting to be a certificate under
this section will, in the absence of proof to the contrary, be accepted in any
legal proceedings as evidence that the person named in the certificate is a
public notary.
504—Power of
Court to strike off name of any notary
(1) If the Supreme Court is satisfied that the name of a public notary
should be struck from the roll of public notaries, the Court may, on its own
initiative, or on the application of the Attorney-General or the Society, strike
the name of the public notary from the roll of public notaries.
(2) A person whose name is struck off the roll of public notaries ceases
to be a public notary, but the Court may at any time, if it thinks fit, order
the name of that person to be reinstated on the roll.
(3) If an Australian legal practitioner is admitted as a public notary,
and the name of that practitioner is struck from the local roll, his or her name
must also be struck from the roll of public notaries.
505—Persons
acting as notaries contrary to this Part
If a person in his or her own name, or in the name of another person, acts
as a public notary without being admitted under this Part, the person is guilty
of an offence.
Maximum penalty: $50 000.
(1) If a law practice contravenes, whether by act or omission, any
provision of this Act or the regulations imposing an obligation on the practice,
each principal of the practice is taken to have contravened the same provision,
unless the principal establishes that—
(a) the practice contravened the provision without the knowledge actual,
imputed or constructive of the principal; or
(b) the principal was not in a position to influence the conduct of the
law practice in relation to its contravention of the provision; or
(c) the principal, if in that position, used all due diligence to prevent
the contravention by the practice.
(2) Subsection (1) does not affect the liability of the law practice
for the contravention.
(3) A contravention of a requirement imposed on a law practice by this Act
is capable of constituting unsatisfactory professional conduct or professional
misconduct by a principal of the practice.
507—Disclosure of
information by local regulatory authorities
(1) A local regulatory authority may disclose information to another local
regulatory authority about any matter relating to or arising under this Act or a
corresponding law.
(2) A local regulatory authority may disclose information to an interstate
regulatory authority about any matter relating to or arising under this Act or a
corresponding law.
(3) In this section—
interstate regulatory authority means—
(a) an authority having powers or functions under a corresponding law;
or
(b) a person or body prescribed, or of a class prescribed, by the
regulations;
local regulatory authority means—
(a) an authority constituted, and having powers or functions under, this
Act; or
(b) a person or body prescribed, or of a class prescribed, by the
regulations.
508—Confidentiality
of personal information
(1) A relevant person must not disclose to any other person, whether
directly or indirectly, any personal information obtained by reason of being a
relevant person.
Maximum penalty: $50 000.
(2) Subsection (1) does not apply to the disclosure of
information—
(a) to the extent that the disclosure is reasonably required to perform
duties or exercise functions under this Act, the regulations or the legal
profession rules or under any other Act or regulations made under any other Act;
or
(b) to the extent that the relevant person is expressly authorised,
permitted or required to disclose the information under this Act, the
regulations or the legal profession rules or under any other Act or regulations
made under any other Act; or
(c) with the prior consent in writing of the person to whom the
information relates; or
(d) to a court or tribunal in the course of legal proceedings;
or
(e) pursuant to an order of a court or tribunal under any Act or law;
or
(f) to the extent the disclosure is reasonably required to enable the
enforcement or investigation of the criminal law or a disciplinary
matter.
(3) Subsection (1) extends to the disclosure of information that was
disclosed under a corresponding law to a local regulatory authority or a
relevant person.
(4) In this section—
local regulatory authority means—
(a) an authority constituted, and having powers or functions under, this
Act; or
(b) a person or body prescribed, or of a class prescribed, by the
regulations;
personal information means information or an opinion
(including information or an opinion forming part of a database), that is
recorded in any form and whether true or not, about a natural person whose
identity is apparent, or can be reasonably ascertained, from the information or
opinion, but does not include information or an opinion of a kind prescribed by
the regulations;
relevant person means—
(a) a local regulatory authority; or
(b) a member or former member of a local regulatory authority;
or
(c) a person currently or previously employed by or acting at the
direction of a local regulatory authority.
509—Application
of certain revenues
(1) Subject to subsection (2), the Treasurer must in each year pay to
the Society, from the money paid by way of practising certificate
fees—
(a) an amount approved by the Attorney-General towards the Society's costs
in exercising any powers or functions delegated to the Society under this Act;
and
(b) after deduction of the amount described in
paragraph (a)—
(i) a prescribed proportion of the balance for the purpose of maintaining
and improving the library of the Society;
(ii) a prescribed proportion of the balance to be credited by the Society
to the guarantee fund.
(2) If the Society collects practising certificate fees pursuant to an
assignment of functions by the Supreme Court, the Society may retain a
proportion of those fees approved by the Attorney-General for the purposes
specified in subsection (1).
(3) The revenue raised from practising certificate levies will be applied
for the purpose of maintaining and improving the Supreme Court
library.
(4) The Treasurer may, on the recommendation of the Attorney-General, make
payments towards—
(a) meeting any expenses incurred by LPEAC in exercising its functions and
powers under this Act; and
(b) defraying the costs of administering Chapter 4 Part 2
(5) This section is, without further appropriation, sufficient authority
for the payment of the money to which it relates from the Consolidated
Account.
A power to inspect or require production of a document includes, in
relation to a record of information that is accessible only through the use of a
computer or other device, power to produce or require production of the
information in an understandable form through the use of that computer or other
device.
511—False or
misleading information
A person must not knowingly make a statement that is false or misleading in
a material particular (whether by reason of the inclusion or omission of a
particular) in information provided, or a record kept, under this Act.
Maximum penalty: $50 000.
512—Service of
notices and documents
Subject to this Act, a notice or document required or authorised by this
Act to be served on or given to a person may—
(a) be served on the person personally; or
(b) be posted in an envelope addressed to the person at the person's last
known address; or
(c) be left for the person at his or her place of residence or business
with someone apparently of or over 16 years of age or in a letterbox to
which it would have been delivered if sent by post; or
(d) be transmitted by facsimile transmission or email to a facsimile
number or email address provided by the person (in which case the notice or
document will be taken to have been given or served at the time of
transmission).
An authority having a power or function under this Act may approve
application forms and other forms for use in connection with that power or
function.
(1) Proceedings for an offence against this Act must not be brought unless
the Attorney-General has, by instrument in writing, authorised the institution
of the proceedings.
(2) An apparently genuine document purporting to be an authorisation under
this section will, in the absence of proof to the contrary, be accepted as such
in any legal proceedings.
(1) The Governor may make such regulations as are contemplated by this
Act, or as are necessary or expedient for the purposes of this Act.
(2) Without limiting the generality of the foregoing, those regulations
may—
(a) prescribe, and provide for the recovery of, any fee or levy for the
purposes of this Act; and
(b) prescribe any form for the purposes of this Act; and
(c) impose penalties, not exceeding $10 000, for offences against the
regulations; and
(d) fix expiation fees, not exceeding $750, for alleged offences against
this Act or the regulations.
(3) Regulations under this Act—
(a) may be of general application or limited application; and
(b) may make different provision according to the matters or circumstances
to which they are expressed to apply; and
(c) may provide that a matter or thing in respect of which regulations may
be made is to be determined according to the discretion of the Attorney-General,
the Supreme Court or the Society.
(4) This section is in addition to, and does not derogate from, any other
provision of this Act providing for the making of regulations.
Schedule 1—Repeal
and transitional provisions
Part 1—Repeal of Act
1—Repeal of
Legal Practitioners
Act 1981
The Legal Practitioners Act 1981 is repealed.
Part 2—Transitional provisions
2—Authorisation
to employ disqualified person or person convicted of serious
offence
(1) An authorisation granted and in force or suspended under
section 23AA of the repealed Act immediately before the commencement of
this clause continues as if it were an authorisation granted and in force or
suspended (as the case may require) under section 18 of this Act.
(2) If a disqualified person or a person convicted of a serious offence
(other than a person who is the subject of an authorisation referred to in
subclause (1)) is, immediately before the commencement of this clause,
employed or engaged by a law practice, the person must, within 1 month of the
commencement of this clause, inform the law practice that he or she is a
disqualified person or has been convicted of a serious offence (as
appropriate).
Maximum penalty: $50 000.
(3) If—
(a) immediately before the commencement of this clause, an Australian
legal practitioner is a party to an agreement or arrangement to employ or
engage, in connection with the practitioner's legal practice, a disqualified
person (other than a person who is the subject of an authorisation referred to
in subclause (1)) or a person who has been convicted of a serious offence;
and
(b) the agreement or arrangement was lawful immediately before the
commencement of section 18,
the Australian legal practitioner has a defence to a charge for an offence
against section 18(1) if the agreement or arrangement is the subject of an
application for authorisation under section 18 that was made within the allowed
period and has not yet been determined.
(4) For the purposes of subclause (3), an application for
authorisation under section 18 was made within the allowed period
if the application was made—
(a) in the case of an application for authorisation of an agreement or
arrangement where the Australian legal practitioner was aware, immediately
before the commencement of this clause, that the person employed or engaged
pursuant to the agreement or arrangement is a disqualified person or has been
convicted of a serious offence—within 5 working days of the commencement
of this clause; or
(b) in any other case—within 5 working days of the Australian legal
practitioner becoming aware that the person employed or engaged pursuant to the
agreement or arrangement is a disqualified person or has been convicted of a
serious offence.
The roll of legal practitioners maintained by the Supreme Court immediately
before the commencement of this clause continues as the local roll under this
Act.
(1) A person who, immediately before the commencement of this clause was
admitted and enrolled as a barrister and solicitor of the Supreme Court is, on
the commencement of this clause, taken to be a local lawyer (but, for the
avoidance of doubt, the date of admission of the person will continue to be the
date on which he or she was admitted to legal practice by the Supreme
Court).
(2) If an application for admission made under the repealed Act has not
been determined before the commencement of this clause, the application is to be
determined as if it were an application under this Act for admission to the
legal profession.
(1) A practising certificate in force under the repealed Act immediately
before the commencement of this clause is, on the commencement of this clause,
taken to be a local practising certificate and is taken to be subject to the
same conditions or restrictions (if any) as applied to it immediately before the
commencement of this clause.
(2) If an application for a practising certificate made under the repealed
Act has not been determined before the commencement of this clause, the
application is to be determined as if it were an application under this Act for
a local practising certificate.
6—Incorporated
legal practices
A company that is a legal practitioner within the meaning of the repealed
Act immediately before the commencement of Chapter 2 Part 5 will be taken, on
that commencement, to have given written notice to the Supreme Court under
section 78 of its intention to engage in legal practice in this
jurisdiction.
7—Deficiencies in
trust accounts
Sections 215 and 216 apply to trust money whether the money was received
before, on or after the commencement of those sections.
8—Approved
auditors under repealed Act
A person who was, immediately before the commencement of this clause, an
approved auditor within the meaning of section 33 of the repealed Act is,
on the commencement of this clause, taken to be designated as being eligible to
be appointed as an external examiner in accordance with section 225 (and
the Society may subsequently revoke the designation in accordance with that
section).
9—Inspectors
under repealed Act
Section 34 of the repealed Act continues to apply to a person appointed, by
the Attorney-General or the Society, as an inspector under that section and
money may be applied from the guarantee fund to meet the costs of the
examination conducted by the inspector as if the person had been appointed as an
investigator under Chapter 3 Part 2 Division 3.
An investigation may be undertaken under Chapter 3 Part 2 Division 3 in
relation to an aspect of the affairs of a law practice whether the investigation
relates to matters that occurred before or after the commencement of this
clause.
(1) Subject to this clause, Chapter 3 Part 3 applies to a matter if the
client first instructs the law practice in the matter on or after the
commencement of that Part and Part 3 Division 8 of the repealed Act
continues to apply to a matter if the client first instructed the law practice
in the matter before the commencement of Chapter 3 Part 3.
(2) Chapter 3 Part 3 does not apply in respect of a law practice that is
retained by another law practice on behalf of a client on or after the
commencement of that Part in relation to a matter in which the other law
practice was retained by the client before the commencement of that Part and in
that case Part 3 Division 8 of the repealed Act continues to
apply.
12—Professional
indemnity insurance
The scheme providing professional indemnity insurance in force under
section 52 of the repealed Act immediately before the commencement of this
clause continues as if it were a scheme established under
section 298.
13—Claims on the
guarantee fund
(1) Chapter 3 Part 5 applies to—
(a) a default (within the meaning of that Part) occurring on or after the
commencement of this clause; or
(b) a default (within the meaning of that Part) occurring before the
commencement of this clause if a claim had not been served on the Society under
Part 5 of the repealed Act in respect of the default before the
commencement of this clause.
(2) Nothing in this clause affects the operation of section 16 of the
Acts Interpretation Act 1915.
An ADI that was, immediately before the commencement of this clause, an
approved ADI within the meaning of section 53 of the repealed Act is, on the
commencement of this clause, taken to be an approved ADI for the purposes of
section 233(3).
A notice issued by the Board under section 76(4a) or 77A of the repealed
Act and in force immediately before the commencement of this clause continues as
if were a notice issued under section 357(5) or section 361(3)
(respectively).
An order of the Tribunal or the Supreme Court under Part 6 of the repealed
Act and in force immediately before the commencement of this clause continues as
if it were an order of the Tribunal or the Supreme Court (as the case may be)
under Chapter 4.
Part 3 Division 9 of the repealed Act continues to apply to a person
appointed as a supervisor or manager under that Division and money may be
applied from the guarantee fund for the purposes of paying remuneration,
allowances and expenses to such a person in accordance with section 48 of
the repealed Act.
(1) Rules made by the Society under section 14 of the repealed Act
continue as if they were rules made by the Society under section 474 of
this Act and may be amended or revoked accordingly.
(2) Rules made by LPEAC under section 14C of the repealed Act continue as
if they were rules made by LPEAC under section 478 of this Act and may be
amended or revoked accordingly.
(3) The rules of the Tribunal made under section 88 of the repealed Act
continue as if they were rules made under section 499 of this Act and may
be amended or revoked accordingly.
19—Officers and
Council of Society continue to hold office
(1) A person who is, immediately before the commencement of this clause,
an officer of the Society elected in accordance with section 8 of the repealed
Act or who has been so elected but is yet to commence holding office as an
officer of the Society is, on the commencement of this clause, taken to have
been so elected in accordance with section 468.
(2) A person who is, immediately before the commencement of this clause, a
member of the Council of the Society in accordance with section 9 of the
repealed Act or who has been co-opted or elected as a member of the Council of
the Society in accordance with section 9 but is yet to commence holding office
as a member of the Council of the Society is, on the commencement of this
clause, taken to be a member or to have been so co-opted or elected (as the case
may be) in accordance with section 469.
(1) The roll of notaries maintained by the Supreme Court under section 92
of the repealed Act immediately before the commencement of this clause continues
as the roll of notaries under this Act.
(2) A person who, immediately before the commencement of this clause was
admitted as a notary under Part 7 of the repealed Act is, on the
commencement of this clause, taken to be admitted as a notary under Chapter 8
Part 1 (but, for the avoidance of doubt, the date of admission of the person
will continue to be the date on which he or she was admitted as a notary by the
Supreme Court).
(3) If an application for admission as a notary made under the repealed
Act has not been determined before the commencement of this clause, the
application is to be determined as if it were an application under this Act for
admission as a notary.
A reference to the repealed Act in any agreement or instrument is to be
read as a reference to this Act, so far as the reference relates to any period
on or after the commencement of this clause and if not inconsistent with the
subject-matter of the agreement or instrument.
(1) The Governor may, by regulation, make additional provisions of a
saving or transitional nature consequent on the enactment of this Act.
(2) A provision of a regulation made under subclause (1) may, if the
regulation so provides, take effect from the commencement of this Act or from a
later day.
(3) To the extent to which a provision takes effect under
subclause (2) from a day earlier than the day of the regulation's
publication in the Gazette, the provision does not operate to the disadvantage
of a person by—
(a) decreasing the person's rights; or
(b) imposing liabilities on the person.
(4) The Acts Interpretation Act 1915 will, except to the
extent of any inconsistency with the provisions of this Schedule, apply to any
amendment or repeal effected by this Schedule.