South Australian Current Acts South Australian Current ActsSchedule 4—Investigatory powers
Part 1—Preliminary
(1) In this
Schedule—
complaint investigation means an investigation of a complaint under Part 6 and
includes an investigation made into the conduct of a legal practitioner or
former legal practitioner on the Commissioner's own initiative or at the
request of the Attorney-General or the Society;
ILP compliance audit means the conduct of an audit under Schedule 1
clause 19 in relation to an incorporated legal practice;
investigator means—
(a) an
investigator under Schedule 2; or
(b) an
external examiner under Schedule 2; or
(c) the
Commissioner or a person authorised by the Commissioner to investigate a
complaint or the conduct of a legal practitioner or former legal practitioner
under Part 6 Division 2; or
(d) a
person appointed by the Society to conduct an ILP compliance audit;
law practice includes—
(a) an
Australian-registered foreign lawyer who practises foreign law on the
foreign lawyer's own account; and
(b) a
partnership consisting of 1 or more Australian-registered
foreign lawyers or 1 or more Australian legal practitioners, or
both;
trust account examination means an external examination of the trust records
of a law practice under Schedule 2;
trust account investigation means an investigation of the affairs of a
law practice under Schedule 2.
(2) For the purposes
of this Schedule—
(a)
law practice includes the Legal Services Commission; and
(b) an
associate of the Commission is an employee of the Commission (whether or not a
legal practitioner) who is not a principal of the Commission; and
(c) a
principal of the Commission is a legal practitioner who is generally
responsible for the provision of legal services by the Commission.
(3) In this
Schedule—
(a) a
reference to a legal practitioner is to be taken to include a reference to an
Australian-registered foreign lawyer; and
(b) a
reference to a former legal practitioner is to be taken to include a reference
to a former Australian-registered foreign lawyer.
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.
3—Requirements that may be imposed for investigations, examinations and
audits under Schedule 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 subclause (1) must comply with the
requirement.
Maximum penalty: $50 000 or imprisonment for 1 year.
4—Requirements that may be imposed for investigations under Part 6
(1) For the purpose of
carrying out a complaint investigation in relation to a legal practitioner or
former legal practitioner, an investigator may, by notice served on the
practitioner or former practitioner, require the practitioner or former
practitioner 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 cooperate with, the investigation of the complaint in
a specified manner.
(2) For the purpose of
carrying out a complaint investigation in relation to a legal practitioner or
former legal practitioner, 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 practitioner or former practitioner is or was an
associate or any other person (including, for example, an ADI, auditor or
liquidator but not including the practitioner) who has or has had control of
documents relating to the affairs of the practitioner or former practitioner
to give the investigator either or both of the following:
(a)
access to the documents relating to the affairs of the practitioner or former
practitioner the investigator reasonably requires;
(b)
information relating to the affairs of the practitioner or former practitioner
the investigator reasonably requires (verified by statutory declaration if the
requirement so states).
(3) A person who is
subject to a requirement under subclause (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 clause is to be notified in writing to the
person and is to specify a reasonable time for compliance.
5—Provisions relating to requirements under this Part
(1) This clause
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 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
disciplinary proceedings under this Act or 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 a
legal practitioner to comply with the requirement is capable of constituting
unsatisfactory professional conduct or professional misconduct.
(7) The Supreme Court
may, on application by the Commissioner or the Society, or on its own
initiative, suspend a 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.
7—Investigator's power to enter premises
(1) Subject to this
clause, for the purpose of carrying out an investigation, an investigator may
enter and remain on premises to exercise the powers in clause 9.
(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 subclause (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
subclause (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 clause, 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.
9—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 (whether engaged in
legal practice on their own account or in partnership).
(2) The provisions of
this Part are additional to the other provisions of this Schedule.
11—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 clause, 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
a 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 clause.
(1) The investigator,
by force of this clause, 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
clause—
appropriate authority means—
(a) in
the case of a complaint investigation—the Commissioner; 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
clause—
appropriate authority has the same meaning as in clause 13.
15—Failure to comply with investigation
The following acts or omissions are capable of constituting unsatisfactory
professional conduct or professional misconduct:
(a) a
failure by a 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 a 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.
Part 5—Miscellaneous
16—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 clause 9(1)(j) must not, without reasonable excuse,
fail to comply with the request.
Maximum penalty: $50 000.
(3) In this
clause—
obstruct includes hinder, delay, resist and attempt to obstruct.
17—Obligation of legal practitioners
(1) The duties imposed
on a legal practitioner by this clause are additional to obligations imposed
under other provisions of this Schedule, whether or not the legal practitioner
is the subject of the investigation, examination or audit concerned.
(2) A legal
practitioner must not mislead an investigator, the Commissioner or the Society
in the exercise of—
(a) any
power or function under this Schedule; or
(b) any
power or function under a provision of a corresponding law that corresponds to
this Schedule.
(3) A legal
practitioner who is subject to—
(a) a
requirement under clause 4; or
(b) a
requirement under provisions of a corresponding law that correspond to that
clause,
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.
19—Permitted disclosure of confidential information
(1) Subject to this
clause, the Society, the Commissioner or an investigator, or a person employed
or engaged on work related to the affairs of the Society or the Commissioner,
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) with
the consent of the person to whom the information relates; or
(c) as
may be authorised by or under any law.
Maximum penalty: $50 000.
(2) The Commissioner
or the Council, or a person employed or engaged on work related to the affairs
of the Commissioner, may divulge information referred to in subclause (1)
as authorised by an agreement or arrangement that has been approved by the
Attorney-General under section 77A.
(3) A person referred
to in subclause (1) may disclose information obtained in the course of a
trust account investigation, trust account examination, complaint
investigation or ILP compliance audit 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 legal practitioner instructed by—
(i)
the Society or Commissioner 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)
a legal practitioner—the practitioner or a
principal of the law practice of which the practitioner 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)
a legal practitioner—a client or former client of
the law practice of which the legal practitioner 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)
a legal practitioner—a supervisor, manager or
receiver appointed in relation to the law practice of which the
legal practitioner is or was an associate,
or a 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 legal practitioner who is or was the subject
of the investigation, examination or audit.
(4) Nothing in this
clause prevents the disclosure of information relating to a complaint to the
complainant or a person acting on behalf of the complainant.
(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 disclosing information under this clause.
(6) In this
clause—
protected person means—
(a) the
Commissioner; or
(b) an
employee or agent of the Commissioner; 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.