South Australian Current Acts South Australian Current Acts23AA—Employment of disqualified person
(1) Subject to this
section, if a legal practitioner is a party to an agreement or arrangement to
employ or engage, in connection with the practitioner's legal practice—
(a) a
person whose practising certificate is under suspension (whether a
practising certificate under this Act or an
interstate practising certificate); or
(b) a
person whose name has been struck off the roll of legal practitioners
maintained under this Act or the roll kept in a participating State that
corresponds to the roll maintained under this Act (unless the person has been
re-admitted),
the practitioner is guilty of an offence.
Maximum penalty: $10 000.
(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's practising certificate was under suspension or that the person's name
had been struck off a roll of legal practitioners.
(3) On application,
the Tribunal may authorise a 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) a
legal practitioner; or
(b) a
person whose practising certificate is under suspension or whose name has been
struck off a roll of legal practitioners.
(5) The Tribunal may
grant such an authorisation in its discretion but only if satisfied—
(a) that
the person to be employed or engaged will not practise the
profession of the law; and
(b) that
granting the authorisation on the specified conditions (if any) is not likely
to create a risk to the public.
(6) For the purposes
of a hearing of an application under this section, the Tribunal is constituted
of a panel of three of its members chosen by the presiding member (one of whom
may be the presiding member).
(7) The Tribunal must
give to the Commissioner, and to any person on whose application a hearing is
to be held, not less than seven days written notice of the time and place at
which it intends to conduct the hearing, and must afford the Commissioner, 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 80, 84, 84B, 85, 86 and 88 apply to a hearing of an
application under this section in the same way as to proceedings before
the Tribunal under Part 6.
(9) Where 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) Where
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) A
legal practitioner must comply with any conditions imposed on an authorisation
by the Tribunal or the Supreme Court.
Maximum penalty: $10 000.
(12) A
legal practitioner is not guilty of an offence against this section in
relation to an agreement or arrangement to which the practitioner is a party
at the commencement of this section if—
(a) the
agreement or arrangement is authorised under this section on an application
made within 12 months after that commencement; and
(b) the
legal practitioner complies with any conditions imposed on the authorisation.