South Australian Current Acts South Australian Current Acts21—Entitlement to practise
(1) A natural person
must not practise the profession of the law, or hold himself or herself out,
or permit another to hold him or her out, as being entitled to practise the
profession of the law unless the person—
(a) is a
local legal practitioner; or
(b) is
an interstate legal practitioner.
Maximum penalty: $50 000.
(2) Without limiting
the generality of subsection (1), but subject to subsection (3), a
person practises the profession of the law, if acting for fee or reward on
behalf of some other person he or she—
(a)
prepares any will or other testamentary instrument; or
(b)
prepares an instrument creating, transferring, assigning, modifying or
extinguishing any estate or interest in real or personal property; or
(c)
prepares any instrument relating to the formation of a body corporate, any
amendment to the constitution, rules or regulations of a body corporate, any
prospectus or take-over scheme relating to a body corporate, or any instrument
affecting the rights of shareholders or debenture holders in a body corporate
or any scheme of arrangement in respect of a body corporate; or
(d)
prepares any other instrument creating, transferring, assigning, modifying or
extinguishing any right, power or liability at law or in equity; or
(e)
represents any party to proceedings in a court or tribunal.
(3) This section does
not prevent—
(a) an
employee whose employer is a party to an instrument or otherwise entitled to
prepare an instrument and who is acting in the ordinary course of employment
from preparing the instrument provided that no separate charge is made by the
employer or the employee for the preparation of the instrument; or
(b) an
unqualified person from charging a fee for the preparation of a bill of sale,
stock mortgage or lien over wool or fruit to which the person is the party in
whose favour the security is given or an instrument varying or discharging a
bill of sale, stock mortgage or lien over wool or fruit to which the person is
such a party; or
(c) an
unqualified person from charging a fee for the preparation of a mortgage over
land to which the person is the party in whose favour the security is given,
or an instrument varying or discharging a mortgage over land to which the
person is such a party, provided that the mortgage or other instrument is
prepared by a legal practitioner or conveyancer registered under the
Conveyancers Act 1994 ; or
(d) an
unqualified person from charging a fee for the preparation of an instrument
provided that—
(i)
the instrument is prepared by a legal practitioner in the
employment of that unqualified person; and
(ii)
the legal practitioner has been in the employment of that
unqualified person continuously since 1 July, 1980; or
(da) an
unqualified person from reproducing, or completing the standard variables of,
a pro forma loan instrument for fee or reward for an ADI or other commercial
lending institution provided that—
(i)
the substantive terms and conditions of the
loan instrument are modified only by the parties or a legal practitioner or,
where authorised by this or any other Act, by a conveyancer registered under
the Conveyancers Act 1994 ; and
(ii)
the pro forma loan instrument is an approved Lands Titles
Office document or has been prepared by a legal practitioner or, where
authorised by this or any other Act, by a conveyancer registered under the
Conveyancers Act 1994 ; or
(e) an
agent who has been commissioned to sell goods or let them out on hire, or to
contract for the performance of services from preparing a contract for the
sale or hire of goods or the provision of services provided that the agent is
remunerated only by salary or commission and no separate charge is made by the
agent or the principal for the preparation of the contract; or
(f) an
unqualified person from engrossing an instrument for fee or reward; or
(g) an
unqualified person from representing a party to proceedings in a court or
tribunal for fee or reward, if the person is authorised by or under the Act by
which the court or tribunal is constituted, or any other Act, to do so; or
(i)
an unqualified person who is an employee or officer of an
association of employers or employees from representing the association or any
of its members in proceedings brought pursuant to an Act relating to
industrial conciliation or arbitration provided that the unqualified person
(as distinct from the association of which the person is an employee or
officer) makes no charge for providing the representation; or
(j) an
unqualified person who is an employee of a body corporate that is a party to
proceedings brought pursuant to an Act relating to industrial conciliation or
arbitration from representing the body corporate in the proceedings; or
(k) an
unqualified person who was on 2 March, 1981, carrying on the business of
representing parties to proceedings brought pursuant to an Act relating to
industrial conciliation and arbitration from continuing to carry on that
business; or
(l) an
unqualified person from preparing, for fee or reward, any instrument relating
to the transfer of shares or securities issued, or made available, by a body
corporate; or
(m) an
agent registered under the Land Agents Act 1994 from preparing an
instrument (other than an instrument registrable under the Real Property
Act 1886 ) relating to the sale and purchase of any land or business that
the agent has been commissioned to sell or buy, provided that the instrument
is prepared by the agent personally or by a sales representative lawfully
employed by the agent and no charge (apart from the commission payable to the
agent in respect of the transaction) is made for the preparation of the
instrument; or
(n) an
agent registered under the Land Agents Act 1994 from preparing for fee or
reward—
(i)
a tenancy agreement relating to residential
premises—
(A) under which a rental not exceeding a
maximum prescribed for the purposes of this subparagraph is payable; or
(B) in respect of which the agent has
approved professional indemnity insurance; or
(ii)
a tenancy agreement relating to non-residential premises
arising from a transaction in respect of which the agent has acted as
agent—
(A) under which a rental not exceeding a
maximum prescribed for the purposes of this subparagraph is payable; or
(B) in respect of which the agent has
approved professional indemnity insurance,
provided that the instrument is prepared by the agent personally or by a sales
representative lawfully employed by the agent; or
(o) a
conveyancer registered under the Conveyancers Act 1994 from preparing for
fee or reward—
(i)
an instrument registrable under the Real Property
Act 1886 , the Community Titles Act 1996 or the Strata Titles
Act 1988 ; or
(ii)
an instrument that creates or records a bill of sale,
stock mortgage or lien over wool or fruit; or
(p) a
conveyancer registered under the Conveyancers Act 1994 from preparing for
fee or reward—
(i)
a contract for the sale and purchase of land or a
business;
(iii)
an assignment of the benefit of a contract for the sale
and purchase of land or a business or of a tenancy agreement;
(iv)
an instrument that arises from, and is incidental to, a
contract, agreement or assignment of the kind mentioned in
subparagraph (i), (ii) or (iii); or
(q) an
agent registered under the Land Agents Act 1994 , being the employer of a
legal practitioner or conveyancer registered under the
Conveyancers Act 1994 from charging a fee for the preparation of an
instrument of a kind mentioned in paragraph (o) or (p) where—
(i)
the instrument is prepared by the legal practitioner or
conveyancer; and
(ii)
the agent is authorised by the
Land and Business (Sale and Conveyancing) Act 1994 to charge a fee for
the preparation by the legal practitioner or conveyancer of instruments
registrable under the Real Property Act 1886 ; or
(r) a
notary public admitted and enrolled under the Notaries Public Act 2016
acting in the ordinary course of business from preparing an instrument for fee
or reward; or
(s) an
officer or employee of a body corporate authorised by a special Act of
Parliament of this State to administer the estates of deceased persons from
preparing a will or other testamentary instrument for fee or reward provided
that, if the body corporate or a related body corporate (within the meaning of
the Corporations Act 2001 of the Commonwealth) is to be named as the
executor, or one of the executors, of the will or instrument, any commission
or other remuneration that will, or might, become payable in consequence of
that appointment must be disclosed to the person on whose instructions the
will or instrument is to be prepared; or
(sa) an
officer or employee of a trustee company from providing for fee or reward
traditional trustee company services (within the meaning of Chapter 5D of
the Corporations Act 2001 of the Commonwealth); or
(u) an
unqualified person from serving any process for fee or reward where the person
is authorised or permitted by statute to do so; or
(v)
a clerk employed by a legal practitioner from serving any
process for fee or reward; or
(w) the
preparation for fee or reward of an opinion on a question of law by a member
of the faculty of law of a university provided that the opinion is prepared at
the request of a legal practitioner, the Attorney-General of the State or of
the Commonwealth, the Crown Solicitor or the Australian Government Solicitor
or the Director of Public Prosecutions; or
(x)
the preparation for fee or reward of any prescribed
instrument or the performance for fee or reward of any prescribed service.
(3a)
Subsection (1) does not apply to the practice of foreign law by an
Australian-registered foreign lawyer in accordance with Schedule 1A.
(4) For the purposes
of this Act—
(a) a
person practises the profession of the law, or holds himself or herself out as
entitled to practise the profession of the law, if the person does so
personally, or through the agency or instrumentality of some other person;
(b) a
person acts for fee or reward if the person acts for, or in expectation of, a
pecuniary benefit or material advantage;
(ba) a
person prepares an instrument if the person takes instructions for the
preparation of such an instrument;
(c) a
person represents a party to proceedings before a court or tribunal if the
person—
(i)
prepares, on behalf of that party, any legal process
relating to the proceedings; or
(ii)
takes instructions from or gives advice to that party in
relation to the conduct of the proceedings; or
(iii)
takes, on behalf of that party, any other step in the
proceedings;
(d) an
employed legal practitioner who provides legal advice, or legal services of a
kind mentioned in subsection (2), for or on behalf of his or her employer
or clients of his or her employer practises the profession of the law.
(4a) In proceedings
for an offence against subsection (1), a certificate purporting to be
signed by the Chief Executive and stating that a person is not a
local legal practitioner or not an interstate legal practitioner is, in the
absence of proof to the contrary, prima facie evidence of that fact.
(5) In this
section—
"approved professional indemnity insurance" means insurance—
(a) that
has been approved by the Attorney-General; or
(b) that
is of a class or kind that has been approved by the Attorney-General;
"business" means a business as defined by the Land and Business (Sale and
Conveyancing) Act 1994 ;
"loan instrument" means a loan contract, mortgage, mortgage discharge,
guarantee, or other instrument arising from, or incidental to, a loan
transaction;
"member" in relation to an association whose members include another
association includes a member of that other association;
"tribunal" includes a royal commission, the Independent Commission Against
Corruption and an arbitrator who is a judge, special magistrate or
legal practitioner;
"trustee company" means a trustee company within the meaning of
Chapter 5D of the Corporations Act 2001 of the Commonwealth.