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TASMANIA
__________
LEGAL PROFESSION AMENDMENT BILL
2004
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 6 amended (Functions and powers of Society)
6. Section 10 repealed
7. Section 12 amended (Power of Council to make by-laws)
8. Section 16 amended (Society entitled to appear in certain
proceedings)
9. Section 17 substituted
PART 3A - Legal Profession Board
Division 1 - The Board
17. Establishment of Legal Profession Board
17A. Membership of Board
Division 2 - Functions and powers of Board
17B. Functions of Board
17C. Powers of Board
17D. Delegation by Board
17E. Contracts
17F. Committees
17G. Employees
Division 3 - Rules of Board
[Bill 11]-I
17H. Rules of Practice
17I. General rules
Division 4 - Finance and reports
17J. Funds of Board
17K. Accounts
17L. Audit
17M. Annual report
Division 5 - Miscellaneous
17N. Confidentiality
17O. Protection from liability
10. Part 4 repealed
11. Section 27 amended (Admission of other persons)
12. Section 28 amended (Admission of barristers)
13. Section 30 amended (Publication of notice for admission)
14. Section 32 amended (Objection to admission)
15. Section 51 amended (Practising certificates)
16. Section 51A amended (Appeals against cancellation or
suspension)
17. Section 51C inserted
51C. Register of practising certificates
18. Section 52 amended (Effect of not practising)
19. Section 53 amended (Offence to practise without
certificate)
20. Section 55 amended (Foreign lawyers)
21. Section 55A amended (Interstate legal practitioners
entitled to practise in State)
22. Section 55D amended (Indemnity insurance if no State
office)
23. Section 55F repealed
24. Section 55J amended (Local legal practitioners subject to
interstate regulatory authorities)
25. Part 8 substituted
PART 8 - Complaints and Discipline
Division 1 - Preliminary
56. Interpretation of Part 8
2
57. Conduct capable of constituting unsatisfactory
professional conduct or professional misconduct
58. Practitioners to whom this Part applies
59. Conduct to which this Part applies
Division 2 - Complaints
60. Complaints
61. Making of complaints
62. Further information and verification
63. Complaints made more than 6 years after
conduct concerned
64. Summary dismissal of complaints
65. Withdrawal of complaints
Division 3 - Procedural fairness
66. Practitioner to be notified of complaint
67. Submissions by practitioner
68. Complainant and practitioner to be informed of
action by Board
Division 4 - Cost disputes
69. Cost disputes
Division 5 - Investigations
70. Investigation of complaints
71. Timeframe for investigation of complaints
72. Report to complainant
73. Other investigations
74. Powers of Board when investigating complaints
75. Entry and search of premises
76. Interim order for suspension or non-issue of
practising certificate
Division 6 - Consumer disputes
77. Referral for conciliation
78. Agreement reached through conciliation
79. Confidentiality of conciliation process
80. Consumer disputes heard and determined by
Board
81. Application to Tribunal relating to compensation
orders
Division 7 - Conduct complaints
82. Hearing before Board
83. Referral of matters relating to professional
misconduct
84. Determination of Board
3
85. Application to Tribunal relating to compensation
orders
86. Procedure for less serious complaints
87. Appeals against determinations
Division 8 - Disciplinary Tribunal
88. Interpretation
89. Disciplinary Tribunal
90. Composition of Tribunal for proceedings
91. Change in composition
92. Immunity of members of Tribunal
93. Confidentiality
93A. General functions and powers of Tribunal
93B. Secretary to Tribunal
93C. Report of Tribunal
93D. Applications to Tribunal
93E. Procedure of Tribunal
93F. Procedure at hearing of application
93G. Evidence of conviction and sentence
93H. Orders of Tribunal
93I. Costs
93J. Appeals against orders of Tribunal
93K. Hearing and determination of appeal
Division 9 - Disciplinary proceedings before Supreme
Court
93L. Applications to Supreme Court
93M. Hearing and determination of application
93N. Orders pending determination of complaint
Division 10 - Compensation orders
93O. Compensation orders
93P. Prerequisites to making of compensation orders
93Q. Other remedies not affected
Division 11 - Publication of disciplinary action
93R. Publication of disciplinary action
93S. Suppression of publication
Division 12 - Miscellaneous
93T. Hearings of Board under this Part
93U. Notice of determination and record of
determination
93V. Jurisdiction of Supreme Court
93W. Power to remove name from roll
93X. Power to suspend from practice
93Y. Referral of matter involving crimes
4
26. Section 96 amended (Membership of Trust)
27. Section 100 amended (Accounts, reports and audit)
28. Section 102 amended (Deposit of trust money)
29. Section 103 amended (Withdrawals)
30. Section 104 amended (Interest on trust account)
31. Section 105 amended (Trust to invest interest)
32. Section 106 amended (Audited accounts of interest)
33. Section 107 amended (Solicitors' Guarantee Fund)
34. Section 108 amended (Application of funds of Guarantee
Fund)
35. Section 109 amended (Prohibition on withdrawal of
certain property)
36. Section 110 amended (Appeal against notice)
37. Section 111 amended (Default order and Court fund)
38. Section 112 amended (Application of Court fund)
39. Section 119 amended (Management of practice)
40. Section 121 amended (Inspections of accounts)
41. Section 123 amended (Rules)
42. Section 125 amended (Provision of information)
43. Section 125A inserted
125A. Notification of Board
44. Section 128 amended (Rules in respect of costs and
taxation of costs)
45. Section 134 amended (Appointment by Board of persons
to tax costs)
46. Section 135A amended (Assistance to taxing officer)
47. Section 141 amended (Arbitrators)
48. Section 143A amended (Information for client)
49. Section 143F amended (Effect of failure to give
information)
50. Section 148 amended (Practising certificates for legal
practitioner corporations)
5
51. Section 149 amended (Application for practising
certificate)
52. Section 150 amended (Issue of practising certificates)
53. Section 151 amended (Memorandum and articles of
association)
54. Section 152 amended (Notification of non-compliance
with memorandum and articles of association)
55. Section 153 amended (Alteration to memorandum or
articles of association)
56. Section 155 amended (Applications for renewal of
practising certificates)
57. Section 156 amended (Issue of renewal of practising
certificates)
58. Section 157 amended (List of legal practitioner
corporations)
59. Section 158 amended (Evidentiary provision with respect
to list)
60. Section 159 amended (Appeals)
61. Section 162 amended (Foreign corporations)
62. Section 165 amended (Protection from liability)
63. Sections 165A and 165B inserted
165A. Change of name
165B. Rules of procedural fairness
64. Section 166 amended (Regulations)
65. Schedules 1 and 2 substituted
Schedule 1 - Provisions with Respect to Membership of
Board
Schedule 2 - Provisions with Respect to Meetings of
Board
66. Schedule 3A inserted
Schedule 3A - Provisions with respect to hearings of
board under Part 8
67. Schedule 4 amended (Provisions with Respect to
Membership of Tribunal)
6
68. Schedule 5 amended (Provisions with respect to
membership of trust)
69. Statutory Rules rescinded
70. Legal Aid Commission Act 1990 amended
71. Payment to Board with respect to practising certificate
fees
72. Recovery of costs by Board
73. Savings and transitional provisions
Schedule 1 - Savings and Transitional Provisions
Schedule 2 - Statutory Rules rescinded
7
8
LEGAL PROFESSION AMENDMENT BILL
2004
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to amend the Legal Profession Act 1993
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
Short title
1. This Act may be cited as the Legal Profession
Amendment Act 2004.
Commencement
2. The provisions of this Act commence on a day or days to
be proclaimed.
Principal Act
3. In this Act, the Legal Profession Act 1993* is referred to
as the Principal Act.
*No. 90 of 1993
[Bill 11] 9
s. 4 No. Legal Profession Amendment 2004
Section 3 amended (Interpretation)
4. Section 3 of the Principal Act is amended as follows:
(a) by omitting the definition of "Board" and
substituting the following definition:
"Board" means the Legal Profession
Board established by section 17;
(b) by inserting the following definitions after the
definition of "company":
"compensation order" means an order
referred to in section 93O;
"complaint" means a complaint under
this Act and includes a complaint
relating to a consumer dispute;
(c) by inserting the following definitions after the
definition of "conditions":
"conduct", in relation to a practitioner,
means conduct of the practitioner
whether consisting of an act or
omission;
"consumer dispute" means a dispute
between a person and a
practitioner about the conduct of
the practitioner, in connection
with the provision of legal
services, to the extent that the
dispute does not involve an issue
of unsatisfactory professional
conduct or professional
misconduct;
(d) by inserting the following definitions after the
definition of "Council":
10
2004 Legal Profession Amendment No. s. 4
"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;
"employee", in relation to the Board,
means a person appointed under
section 17G;
11
s. 4 No. Legal Profession Amendment 2004
"executive officer" means the
executive officer of the Board
appointed under section 17G;
(e) by omitting the definition of "Legal
Ombudsman";
(f) by inserting the following definitions after the
definition of "practising certificate":
"practitioner" means a person who -
(a) is a barrister or legal
practitioner; or
(b) holds a certificate issued
under section 41(2); or
(c) was a barrister or legal
practitioner on the date on
which any matter which is
the subject of a complaint
occurred; or
(d) was a barrister or solicitor,
or barrister and solicitor, of
any State on the date on
which any matter which is
the subject of a complaint
occurred;
"professional misconduct" includes -
(a) unsatisfactory professional
conduct of a practitioner,
where the conduct involves a
substantial or consistent
failure to reach or maintain
a reasonable standard of
12
2004 Legal Profession Amendment No. s. 4
competence and diligence;
and
(b) conduct of a 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;
(g) by omitting "Council" from paragraph (a) of
the definition of "regulatory authority" and
substituting "Board";
(h) by omitting "section 17" from the definition of
"Rules of Practice" and substituting
"section 17H";
(i) by inserting the following definition after the
definition of "State":
"State authority" has the same
meaning as in section 3 of the
State Service Act 2000;
(j) by omitting "under section 66" from the
definition of "Tribunal" and substituting "by
section 89";
(k) by omitting "section 101." from the definition
of "trust financial institution account" and
substituting "section 101;";
(l) by inserting the following definition after the
definition of "trust financial institution
account":
13
s. 5 No. Legal Profession Amendment 2004
"unsatisfactory professional
conduct" includes conduct of a
practitioner occurring in
connection with the practice of law
that falls short of the standard of
competence and diligence that a
reasonable member of the public is
entitled to expect of a reasonably
competent practitioner.
Section 6 amended (Functions and powers of
Society)
5. Section 6(1)(a) of the Principal Act is amended by
omitting "regulation,".
Section 10 repealed
6. Section 10 of the Principal Act is repealed.
Section 12 amended (Power of Council to make by-
laws)
7. Section 12(1) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (c) "regulation,";
(b) by omitting paragraphs (n) and (na).
14
2004 Legal Profession Amendment No. s. 8
Section 16 amended (Society entitled to appear in
certain proceedings)
8. Section 16 of the Principal Act is amended by omitting
subsection (2).
Section 17 substituted
9. Section 17 of the Principal Act is repealed and the
following Part is substituted:
PART 3A - LEGAL PROFESSION BOARD
Division 1 - The Board
Establishment of Legal Profession Board
17. (1) The Legal Profession Board is established.
(2) The Board -
(a) is a body corporate with perpetual
succession; and
(b) may sue and be sued in its corporate
name.
Membership of Board
17A. (1) The Board consists of -
(a) four persons who are barristers or legal
practitioners holding practising
certificates and who are nominated by
the Minister from among the names
provided, recommended or accepted
under subsection (4); and
15
s. 9 No. Legal Profession Amendment 2004
(b) two persons who are not barristers or
legal practitioners nominated by the
Minister.
(2) The members are appointed by the
Governor.
(3) The Board is to elect one of its members
referred to in subsection (1)(a) to be chairperson of
the Board and that person holds office as
chairperson for such term and on such conditions as
are determined by the Board.
(4) For the purpose of making nominations
under subsection (1)(a), the Minister is to -
(a) request any body that purports to
represent the professional interests of
barristers or legal practitioners to
provide the Minister with a list of
names; and
(b) accept a recommendation from any body
that purports to represent the
professional interests of barristers or
legal practitioners or from any barrister
or legal practitioner holding a practising
certificate; and
(c) accept an expression of interest from
any barrister or legal practitioner
holding a practising certificate.
(5) Schedule 1 has effect with respect to
membership of the Board.
(6) Schedule 2 has effect with respect to
meetings of the Board.
16
2004 Legal Profession Amendment No. s. 9
Division 2 - Functions and powers of Board
Functions of Board
17B. The Board has the following functions:
(a) to issue practising certificates;
(b) to monitor the standard and provision of
legal professional services;
(c) to develop and promulgate Rules of
Practice;
(d) to receive, investigate and determine
complaints against practitioners and, as
necessary, refer complaints to the
Tribunal or Supreme Court for hearing
and determination;
(e) to monitor legal practitioners' and firms'
trust financial institution accounts;
(f) to advise the profession on appropriate
standards of conduct;
(g) to monitor and identify trends and
issues that emerge within the legal
profession;
(h) to carry out legal education functions
including -
(i) the provision of input into the
standards of education for
barristers and legal practitioners;
and
(ii) the conduct of such examinations
as it considers necessary; and
17
s. 9 No. Legal Profession Amendment 2004
(iii) the determination of the subjects
which candidates for admission
under Part 5 must pass; and
(iv) the approval of courses of practical
instruction on the duties of a legal
practitioner; and
(v) the approval of courses of
continuing legal education;
(i) to advise the Minister on any matters
relating to this Act;
(j) such other functions as may be imposed
by this or any other Act.
Powers of Board
17C. The Board has the power to do all things
necessary or convenient to be done in connection
with the performance of its functions.
Delegation by Board
17D. The Board may delegate any of its functions or
powers under this or any other Act other than this
power of delegation and the making of a
determination under Part 8.
Contracts
17E. The Board may enter into a contract with any
person for the performance or exercise by that
person of any of the Board's functions or powers
under this Act or any other Act.
18
2004 Legal Profession Amendment No. s. 9
Committees
17F. (1) The Board may establish such committees
as it considers necessary for the purpose of assisting
it in the performance of any of its functions or the
exercise of any of its powers or advising it on any
matter relating to this Act.
(2) A committee comprises such persons as the
Board appoints.
(3) A member of the Board may be a member
of a committee.
(4) Subject to subsection (5), a member of a
committee may be paid such remuneration and
allowances as the Board may from time to time
determine and any such remuneration and
allowances are to be paid by the Board.
(5) A member of a committee who is a State
Service officer or State Service employee is not
entitled to remuneration under subsection (4) except
with the approval of the Minister administering the
State Service Act 2000.
(6) The Board may give written directions to a
committee and the committee must comply with
those directions.
(7) A committee is to keep accurate minutes of
its proceedings.
(8) Except as otherwise provided in this Act, a
committee may regulate its own proceedings.
19
s. 9 No. Legal Profession Amendment 2004
Employees
17G. (1) The Board is to appoint a suitably
qualified person as the executive officer of the Board
and may appoint such other persons as it considers
necessary.
(2) The executive officer is to act as secretary
to the Board.
(3) The State Service Act 2000 does not apply
to employees of the Board.
Division 3 - Rules of Board
Rules of Practice
17H. (1) The Board may make rules to be known as
Rules of Practice for regulating any of the following
matters:
(a) the professional practice, conduct and
discipline of barristers and legal
practitioners, and foreign lawyers
practising in Tasmania;
(b) the practice of foreign law in this State;
(c) the approval to practise as a combined
firm and foreign law firm, or legal
practitioner corporation and foreign law
firm, and conditions of such an approval;
(d) the establishment by firms or legal
practitioner corporations of accounts at
authorised deposit-taking institutions
for money of clients;
(e) the supervision of legal practitioners'
and firms' trust financial institution
20
2004 Legal Profession Amendment No. s. 9
accounts, including the keeping,
inspection and audit of records relating
to money received, held or paid on behalf
of clients;
(f) the recovery of fees by barristers and
legal practitioners.
(2) Any rules made under subsection (1) may
empower the Board -
(a) to grant exemptions, either conditionally
or unconditionally, from the
requirement to comply with any of those
rules; and
(b) to do all things necessary to ascertain
whether the rules are being complied
with.
(3) The Board is to develop the Rules of
Practice in consultation with the Society, the
Tasmanian Bar Association, the Tasmanian
Independent Bar and any other body purporting to
represent the interests of barristers or legal
practitioners that the Board considers appropriate.
(4) Any rules made under subsection (1) may
be made subject to conditions, or be made so as to
apply differently according to factors, limitations or
restrictions, as are specified in the rules.
General rules
17I. (1) The Board may make rules for the purposes
of exercising its powers and performing its functions
under this Act.
21
s. 9 No. Legal Profession Amendment 2004
(2) Without limiting subsection (1), rules made
under subsection (1) may be made for any or all of
the following purposes related to legal education:
(a) prescribing examinations for the
purposes of Part 5;
(b) providing for the form of articles of
clerkship and the filing and execution of
those articles;
(c) providing for such matters relating to
the admission and enrolment of legal
practitioners and barristers as may be
necessary;
(d) providing for the manner in which a
person may satisfy the Board as to the
fulfilment of requirements relating to
admission as a legal practitioner or
barrister.
(3) Rules made under subsection (1) may be
made subject to conditions, or be made so as to apply
differently according to factors, limitations or
restrictions, as are specified in the rules.
Division 4 - Finance and reports
Funds of Board
17J. (1) The Board is authorised to keep such
authorised deposit-taking institution accounts as it
considers necessary.
(2) The funds of the Board are to be paid to
the credit of such of its authorised deposit-taking
institution accounts as it determines and are to
consist of money received by the Board from any
source.
22
2004 Legal Profession Amendment No. s. 9
(3) The funds of the Board are to be applied -
(a) for the purposes of this Act, which
include the administration and
enforcement of regulations or rules
made under this Act; and
(b) in payment or discharge of the expenses,
charges and obligations incurred or
undertaken by the Board in the
performance of its functions or the
exercise of its powers; and
(c) where considered necessary by the
Board, in payment to any person in
connection with any of the functions
under this Act; and
(d) in the payment of any remuneration
payable by the Board.
(4) The Board may invest any money that it is
holding in any manner in which a trustee is
authorised by law to invest funds.
Accounts
17K. The Board is to keep proper accounts and
records of its financial affairs and, not later than 15
August after the end of each financial year, prepare
a statement of accounts in a form approved by the
Auditor-General exhibiting a true and correct view
of the financial position and transactions of the
Board for that financial year.
23
s. 9 No. Legal Profession Amendment 2004
Audit
17L. The accounts of the Board are subject to the
Financial Management and Audit Act 1990.
Annual report
17M. (1) The Board is to, on or before 31 August
after the end of each financial year, prepare and
present to the Minister a report on its operations for
that financial year.
(2) The report is to contain -
(a) an audited statement of accounts
prepared for that financial year under
section 17K; and
(b) a statement regarding the number and
nature of complaints received and
matters subject to investigation or
hearing; and
(c) information as to the handling of
complaints including information
relating to the number of complaints
dismissed and the number of
uncompleted matters outstanding at the
end of the financial year; and
(d) the outcome of disciplinary action taken
during the year to which the report
relates; and
(e) the report of the Tribunal as provided in
accordance with section 93C; and
(f) any other matters the Board thinks are
relevant; and
24
2004 Legal Profession Amendment No. s. 9
(g) such other information as the Minister
may require.
(3) The Minister is to cause a copy of the
Board's report to be laid before each House of
Parliament by not later than 31 October after the
end of the financial year to which it relates.
Division 5 - Miscellaneous
Confidentiality
17N. (1) Subject to this section, a member of the
Board, a member of a committee of the Board or a
person employed or engaged on work related to the
affairs of 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 and for a purpose
related to carrying out the duties of that
office or position; or
(b) as may be authorised by or under this
Act or any other Act; or
(c) in evidence before a court in which
proceedings arising from matters subject
to a report of the Board have been
brought.
Penalty: Fine not exceeding 100 penalty units.
(2) Notwithstanding subsection (1), a person
referred to in that subsection may divulge
information referred to in that subsection to -
(a) the Board; and
(b) the Minister; and
25
s. 10 No. Legal Profession Amendment 2004
(c) a member of a law enforcement or
prosecution authority of a State, or of
the Commonwealth, relating to a matter
referred to the authority by the Minister
or reported to the authority by the Board
to which the information is relevant; and
(d) a regulatory authority of a participating
State who has requested the information
in connection with actual or possible
disciplinary action against a
practitioner; and
(e) a person to whom the Board has
delegated its power to investigate
pursuant to this Act.
Protection from liability
17O. (1) An action does not lie against a member or
employee of the Board or against a member of a
committee of the Board for any act or omission by
the member or employee, or by the Board or a
committee, in good faith and in the exercise or
purported exercise of powers, or in the performance
or purported performance of functions, under this
Act.
(2) A person who makes a complaint under
Part 8 in good faith does not incur any personal
liability in respect of any loss, damage or injury
suffered by another person as a result of the making
of the complaint.
Part 4 repealed
10. Part 4 of the Principal Act is repealed.
26
2004 Legal Profession Amendment No. s. 11
Section 27 amended (Admission of other persons)
11. Section 27(1)(b)(ii) of the Principal Act is amended by
omitting "or has demonstrated competence as a solicitor or
as a barrister and solicitor in that other jurisdiction".
Section 28 amended (Admission of barristers)
12. Section 28(1)(b)(ii) of the Principal Act is amended by
omitting "or has demonstrated competence as a barrister
in that other jurisdiction".
Section 30 amended (Publication of notice for
admission)
13. Section 30 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "section 22"
and substituting "section 17I";
(b) by omitting from subsection (3) "Society" and
substituting "Board";
(c) by omitting from subsection (4)(b) "Society"
and substituting "Board".
Section 32 amended (Objection to admission)
14. Section 32(1) of the Principal Act is amended by
inserting "Board, the" after "The".
Section 51 amended (Practising certificates)
15. Section 51 of the Principal Act is amended as follows:
27
s. 15 No. Legal Profession Amendment 2004
(a) by inserting in subsection (1) "a barrister or"
after "Part 5 as";
(b) by omitting from subsection (1) "Society" and
substituting "Board";
(c) by omitting from subsection (1) "barrister and
solicitor or as a barrister" and substituting
"barrister or as a barrister and solicitor";
(d) by omitting from subsection (2)(b) "fee." and
substituting "fee; and";
(e) by inserting the following paragraph after
paragraph (b) in subsection (2):
(c) accompanied by such information
as the Board requires.
(f) by omitting from subsection (3) "Society" and
substituting "Board, subject to
subsection (3B),";
(g) by omitting from subsection (3) "including
compliance with indemnity rules made under
section 124";
(h) by inserting the following subsections after
subsection (3):
(3A) Without limiting subsection (3), the
Board may impose one or more of the following
conditions on the practising certificate of a
barrister or legal practitioner:
(a) a condition requiring the holder to
comply with indemnity rules made
under section 124;
(b) a condition requiring the holder to
undertake and complete one or
28
2004 Legal Profession Amendment No. s. 16
more courses of continuing legal
education;
(c) a condition requiring the holder to
undertake additional academic or
training courses.
(3B) The Board may refuse to issue a
practising certificate to a person in any year if
that person has failed to comply with a
condition imposed under subsection (3A) on
the practising certificate in the immediately
preceding year.
(i) by inserting in subsection (4) "barrister or"
after "A";
(j) by omitting from subsection (4) "Society" and
substituting "Board";
(k) by omitting from subsection (7) "Society" and
substituting "Board";
(l) by omitting from subsection (7A) "Society" and
substituting "Board";
(m) by inserting in subsection (7A) "barrister or"
after "if a";
(n) by inserting in subsection (7A)(a) "barrister
or" after "the";
(o) by omitting subsection (8).
Section 51A amended (Appeals against cancellation
or suspension)
16. Section 51A(1) of the Principal Act is amended by
inserting "barrister or" after "A".
29
s. 17 No. Legal Profession Amendment 2004
Section 51C inserted
17. After section 51B of the Principal Act, the following
section is inserted in Part 7:
Register of practising certificates
51C. (1) The Board is to keep a register of
practising certificates in any form the Board
considers appropriate.
(2) A member of the public may inspect the
register of practising certificates kept under this
section on the payment of such fee (if any) as the
Board determines.
(3) The Board may publish a list of all current
practising certificates in any manner or form the
Board determines.
(4) The Board must not make available to the
public or publish in any form the private address of
a barrister or legal practitioner without the
barrister's or legal practitioner's written consent.
Section 52 amended (Effect of not practising)
18. Section 52 of the Principal Act is amended as follows:
(a) by omitting from subsection (1)(b) "or taken to
hold a practising certificate under section
51(8)";
(b) by omitting from subsection (3) "Society" and
substituting "Board";
(c) by omitting from subsection (4) "Society" and
substituting "Board".
30
2004 Legal Profession Amendment No. s. 19
Section 53 amended (Offence to practise without
certificate)
19. Section 53 of the Principal Act is amended as follows:
(a) by inserting in subsection (1) "barrister or"
after "A";
(b) by omitting from subsection (1) "Council" and
substituting "Board";
(c) by inserting in subsection (1) "barrister or"
after "as a";
(d) by inserting the following subsection after
subsection (1):
(1A) A barrister or legal practitioner
who is employed to practise as a barrister or
legal practitioner -
(a) in a State Service Agency; or
(b) by a State authority; or
(c) in the Australian Securities
Investment Commission; or
(d) in a State or Commonwealth
instrumentality; or
(e) in a municipal corporation; or
(f) in a Commonwealth or State
statutory office -
must hold a practising certificate for the
purposes of this Act and for the purposes of
that employment.
Penalty: Fine not exceeding 50 penalty
units.
31
s. 20 No. Legal Profession Amendment 2004
(e) by inserting in subsection (2) "barrister or"
after "as a".
Section 55 amended (Foreign lawyers)
20. Section 55 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "Council" and
substituting "Board";
(b) by omitting from subsection (2) "Council" and
substituting "Board".
Section 55A amended (Interstate legal practitioners
entitled to practise in State)
21. Section 55A(4) of the Principal Act is amended by
omitting "constitutes professional misconduct or
unprofessional conduct" and substituting "is capable of
constituting unsatisfactory professional conduct or
professional misconduct".
Section 55D amended (Indemnity insurance if no
State office)
22. Section 55D(2) of the Principal Act is amended by
omitting "constitutes professional misconduct or
unprofessional conduct" and substituting "is capable of
constituting unsatisfactory professional conduct or
professional misconduct".
Section 55F repealed
23. Section 55F of the Principal Act is repealed.
32
2004 Legal Profession Amendment No. s. 24
Section 55J amended (Local legal practitioners
subject to interstate regulatory authorities)
24. Section 55J(2) of the Principal Act is amended by
omitting "constitutes professional misconduct or
unprofessional conduct" and substituting "is capable of
constituting unsatisfactory professional conduct or
professional misconduct".
Part 8 substituted
25. Part 8 of the Principal Act is repealed and the
following Part is substituted:
PART 8 - COMPLAINTS AND DISCIPLINE
Division 1 - Preliminary
Interpretation of Part 8
56. In this Part -
"conduct complaint" means a complaint
that appears to involve an issue of
unsatisfactory professional conduct or
professional misconduct;
"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
(b) a person who has executed a deed
of arrangement under Part X of
the Bankruptcy Act 1966 of the
33
s. 25 No. Legal Profession Amendment 2004
Commonwealth (or the
corresponding provisions of the
law of a foreign country) 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) 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) if the
debt agreement has not ended or
has not been terminated;
"party to a complaint" means -
(a) the practitioner to whom the
complaint relates; and
(b) the person who makes the
complaint;
"serious offence" means an offence whether
committed in or outside this State that
is -
(a) an indictable offence against a law
of the Commonwealth or the State
in which the offence is committed
34
2004 Legal Profession Amendment No. s. 25
(whether or not the offence is or
may be dealt with summarily); or
(b) an offence against a law of another
State that would be an indictable
offence against a law of this State
if committed in this State
(whether or not the offence could
be dealt with summarily if
committed in this State); 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 State if
committed in this State (whether
or not the offence could be dealt
with summarily if committed in
this State);
"tax offence" means any offence under the
Taxation Administration Act 1953 of the
Commonwealth, whether committed in
or outside this State.
Conduct capable of constituting unsatisfactory
professional conduct or professional
misconduct
57. Without limiting the definitions of "professional
misconduct" and "unsatisfactory professional
conduct", conduct which is capable of constituting
unsatisfactory professional conduct or professional
misconduct includes -
(a) conduct consisting of a contravention of
this Act or any regulations, rules or by-
laws made under this Act; and
35
s. 25 No. Legal Profession Amendment 2004
(b) neglect or delay in connection with the
provision of legal services; and
(c) charging of excessive fees or costs in
connection with the provision of legal
services; and
(d) conduct in respect of which a court
makes a finding of guilt for -
(i) a serious offence; or
(ii) a tax offence; or
(iii) an offence involving dishonesty;
and
(e) becoming insolvent under
administration; and
(f) conduct that results in disqualification
from managing or being involved in the
management of any corporation under
the Corporations Act 2001 of the
Commonwealth.
Practitioners to whom this Part applies
58. This Part applies to a practitioner in respect of
conduct to which this Part applies, and so applies -
(a) whether or not the practitioner is a legal
practitioner referred to in paragraph (a)
of the definition of "legal practitioner" in
section 3; and
(b) whether or not the practitioner holds a
practising certificate issued under this
Act; and
36
2004 Legal Profession Amendment No. s. 25
(c) whether or not the practitioner holds a
practising certificate issued under a
corresponding law; and
(d) whether or not the practitioner resides
or has an office in this State; and
(e) whether or not the person making a
complaint about the conduct resides or
has an office in this State.
Conduct to which this Part applies
59. (1) Subject to subsection (3), this Part applies to
conduct of a practitioner occurring in this State.
(2) This Part also applies to a practitioner's
conduct occurring outside this State, but only -
(a) if it is part of a course of conduct that
has occurred partly in this State and
partly in another State, and either -
(i) the regulatory authority of each
other State 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 State and the practitioner is
a legal practitioner referred to in
paragraph (a) of the definition of "legal
practitioner" in section 3 or holds a
current practising certificate issued
under this Act, and either -
37
s. 25 No. Legal Profession Amendment 2004
(i) the regulatory authority of each
State 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 legal
practitioner referred to in
paragraph (a) of the
definition of "legal practitioner" in
section 3 or holds a current
practising certificate issued under
this Act.
(3) This Part does not apply to conduct
occurring in this State if -
(a) the Board consents to it being dealt with
under a corresponding law; or
(b) the complainant and the practitioner
consent to its being dealt with under a
corresponding law and it is so dealt
with.
(4) Subsection (3) does not apply if the conduct
is not capable of being dealt with under the
corresponding law.
(5) The Board may give consent for the
purposes of subsection (3)(a), and may do so
conditionally or unconditionally.
38
2004 Legal Profession Amendment No. s. 25
Division 2 - Complaints
Complaints
60. (1) Any person may make a complaint under
this Part about a practitioner's conduct to which this
Part applies.
(2) A complaint that is duly made is to be
dealt with in accordance with this Part.
(3) If a complaint relates to a consumer
dispute and also involves an issue of unsatisfactory
professional conduct or professional misconduct, the
Board may (but need not) treat the complaint as 2
complaints, one being a complaint relating to a
consumer dispute and the other being a conduct
complaint.
Making of complaints
61. (1) A complaint is to be made to the Board.
(2) A complaint is to be in writing.
(3) A complaint is to -
(a) identify the complainant and the
practitioner against whom the complaint
is made; and
(b) describe the alleged conduct of the
practitioner that is the subject of the
complaint; and
(c) if compensation is claimed, specify to the
best of the complainant's knowledge any
pecuniary loss incurred; and
39
s. 25 No. Legal Profession Amendment 2004
(d) be lodged with the executive officer.
(4) The executive officer is to take all
reasonable steps to ensure that a person who wishes
to make a complaint is given such assistance as is
necessary to enable that person to make the
complaint in accordance with this Part.
(5) On receipt of a complaint, the executive
officer is to -
(a) record the date on which the complaint
was received; and
(b) place the complaint before the Board
without undue delay.
Further information and verification
62. The Board may require the complainant to do
either or both of the following:
(a) to give further information about the
complaint;
(b) to verify the complaint, or any further
information, by statutory declaration.
Complaints made more than 6 years after
conduct concerned
63. (1) Subject to subsection (2), a complaint may be
made about conduct of a practitioner whether or not
the conduct occurred or allegedly occurred before or
after the commencement of this Part.
(2) A complaint cannot be dealt with if the
complaint -
40
2004 Legal Profession Amendment No. s. 25
(a) is made more than 6 years after the
conduct is alleged to have occurred,
unless the Board determines, after
giving both the complainant and the
respondent to the complaint the
opportunity to be heard, that -
(i) it is just and fair to deal with the
complaint having regard to the
delay and the reasons for the
delay; and
(ii) the complaint involves an
allegation of professional
misconduct and it is in the public
interest to deal with the
complaint; or
(b) is a consumer dispute and the conduct
giving rise to the dispute occurred or
allegedly occurred before the
commencement of this Part.
(3) A determination made under subsection (2)
is final and cannot be challenged in any proceedings
by the complainant or the practitioner concerned.
Summary dismissal of complaints
64. (1) The Board may dismiss a complaint if -
(a) further information is not given by the
complainant as required by the Board;
or
(b) the complaint or further information is
not verified by the complainant as
required by the Board; or
41
s. 25 No. Legal Profession Amendment 2004
(c) in the opinion of the Board the
complaint is vexatious, misconceived,
frivolous or lacking in substance; or
(d) it is not in the public interest to deal
with the complaint having regard to the
fact that the name of the practitioner to
whom the complaint relates has already
been removed from each roll of
practitioners in which he or she was
enrolled.
(2) The Board must dismiss a complaint if -
(a) the complaint was made more than 6
years after the conduct complained of is
alleged to have occurred, unless a
determination is made under section 63
in relation to the complaint; or
(b) the conduct complained about has been
the subject of a previous complaint that
has been dismissed or dealt with by the
Council before the commencement of
this Part or by the Board, unless the
complaint contains new evidence that, in
the opinion of the Board, warrants
investigation; or
(c) the complaint is not one that the Board
has power to deal with.
(3) The Board may dismiss a complaint under
subsection (1) without completing an investigation
if, having considered the complaint, the Board forms
the view that the complaint requires no further
investigation.
(4) During or after the investigation of a
complaint against a practitioner, the Board may
42
2004 Legal Profession Amendment No. s. 25
dismiss the complaint and discontinue any
investigation, if satisfied that it is in the public
interest to do so.
(5) If proceedings have been instituted in the
Tribunal by the Board, the Tribunal may, on the
application of the Board pursuant to subsection (4),
dismiss the proceedings.
Withdrawal of complaints
65. (1) The complainant may withdraw the
complaint by giving written notice to the Board or to
an employee of the Board.
(2) The Board is to notify the practitioner who
is the subject of the complaint of the withdrawal.
(3) A complaint may be withdrawn even
though the Board has commenced or completed an
investigation of the complaint, but cannot be
withdrawn if proceedings with respect to the
complaint have been instituted in the Tribunal.
(4) Notwithstanding the withdrawal of the
complaint, the Board may continue to investigate a
complaint if it is satisfied that investigation or
further investigation of the complaint is justified in
the particular circumstances.
(5) Subject to subsections (3) and (4), if a
complaint is duly withdrawn, no further action is to
be taken under this Part with respect to the
complaint.
(6) The withdrawal of a complaint does not
prevent action being taken on any other complaint
duly made with respect to that matter.
43
s. 25 No. Legal Profession Amendment 2004
(7) A further complaint about the matter that
is the subject of the withdrawn complaint cannot be
made by the same person unless the Board is
satisfied that it is appropriate to do so in the
circumstances.
Division 3 - Procedural fairness
Practitioner to be notified of complaint
66. (1) The Board is to ensure that written notice of
the making of a complaint, the nature of the
complaint and the identity of the complainant is
given to the practitioner about whom the complaint
is made.
(2) The practitioner is to be notified within 7
days of receipt of the complaint by the Board.
(3) The Board is to also inform the
practitioner in writing -
(a) of any action already taken by the Board
in relation to the complaint; and
(b) of the practitioner's right to make
submissions to the Board, unless the
Board advises the practitioner that the
Board has dismissed or intends to
dismiss the complaint.
(4) Notice is not required to be given under
subsection (1) -
(a) if the giving of the notice will or is
likely -
(i) to prejudice the investigation of
the complaint; or
44
2004 Legal Profession Amendment No. s. 25
(ii) to place the safety of the
complainant or another person at
risk; or
(iii) to place the complainant or
another person at risk of
intimidation or harassment; or
(b) if the Board has dismissed the complaint
under section 64.
(5) If a notice is not given because of the
circumstances referred to in subsection (4)(a), notice
must be given under subsection (1) as soon as
practicable after the Board considers those
circumstances cease to be relevant.
Submissions by practitioner
67. (1) The practitioner about whom a complaint is
made may, within a reasonable time after being
notified of the complaint, make submissions to the
Board about the complaint or its subject matter or
both.
(2) The Board may determine what constitutes
a reasonable time limit for response by the
practitioner under subsection (1).
(3) The Board is to consider any submissions
made under subsection (1) before deciding what
action is to be taken in relation to the complaint,
unless the Board has dismissed or intends to dismiss
the complaint.
45
s. 25 No. Legal Profession Amendment 2004
Complainant and practitioner to be informed
of action by Board
68. (1) If a complaint has been made about a
practitioner -
(a) the Board is to notify the complainant in
writing of receipt of the complaint by the
Board; and
(b) the Board is to notify the complainant
and the practitioner in writing of action
taken by the Board in relation to the
complaint.
(2) Without limiting subsection (1), the
complainant and the practitioner are entitled to
receive written notice of -
(a) a decision to dismiss the complaint; or
(b) a decision to omit, from the allegations
particularised in an application made to
the Tribunal in respect of the complaint,
a matter that was originally part of the
complaint.
(3) In the case of a decision by the Board to
dismiss a conduct complaint under section 64, the
Board is to notify the complainant in writing of the
right of the complainant to apply to the Tribunal or
Supreme Court under section 87 for the matter to be
heard.
Division 4 - Cost disputes
Cost disputes
69. (1) If any part of a complaint relates to a bill of
costs, the Board may -
46
2004 Legal Profession Amendment No. s. 25
(a) refer the bill to a taxing officer referred
to in Part 11 to be taxed; or
(b) deal with that part of the complaint.
(2) The referral of a bill of costs under
subsection (1) does not affect the power of the Board
to investigate any other part of a complaint which
does not relate to the dispute about the bill of costs.
Division 5 - Investigations
Investigation of complaints
70. (1) Except as otherwise provided in this Part,
the Board is required to conduct an investigation of
each complaint.
(2) The Board, on its own motion, may
investigate the conduct of any practitioner if it has
reason to believe that that conduct may amount to
unsatisfactory professional conduct or professional
misconduct.
(3) This section does not apply to -
(a) a complaint referred to another
regulatory authority by the Board; or
(b) a complaint that is dismissed or
withdrawn under this Part; or
(c) a consumer dispute if an agreement has
been reached under section 78.
47
s. 25 No. Legal Profession Amendment 2004
Timeframe for investigation of complaints
71. In investigating a complaint, the Board is to
conduct the investigation as efficiently and
expeditiously as possible.
Report to complainant
72. (1) The Board, at the request of a complainant,
must provide the complainant, free of charge, with -
(a) full details of -
(i) the person or persons conducting
the investigation; and
(ii) the progress of the investigation
into the matter; and
(iii) the documents being examined;
and
(b) copies of any documents relating to the
investigation.
(2) The Board is not required to provide the
details or copies of documents referred to in
subsection (1) -
(a) if the provision of the details or
documents will or is likely -
(i) to prejudice the investigation of
the complaint; or
(ii) to place the safety of the
complainant or another person at
risk; or
48
2004 Legal Profession Amendment No. s. 25
(iii) to place the complainant or
another person at risk of
intimidation or harassment; or
(b) if the Board has previously provided the
details or documents to the complainant
and there has been no material change
to the details of the complaint; or
(c) if the Board considers that the details or
documents should not be provided in
order to protect the Board's legal
professional privilege.
Other investigations
73. An investigation into the affairs of a
practitioner under any other Part or under any other
Act may be conducted despite any provisions of this
Part.
Powers of Board when investigating
complaints
74. (1) For the purpose of investigating a complaint,
the Board may, by notice served on a practitioner,
require the practitioner to do any one or more of the
following:
(a) to provide written information, on or
before a specified date, and to verify the
information by statutory declaration;
(b) to produce, at a specified time and
specified place, any specified document
or a copy of the document;
49
s. 25 No. Legal Profession Amendment 2004
(c) to otherwise assist in, or cooperate with,
the investigation of the complaint in a
specified manner.
(2) The Board may -
(a) inspect any document produced before
the Board under this section; and
(b) make copies of the document or any part
of the document; and
(c) retain the document for such period as
the Board reasonably thinks necessary
for the purposes of the investigation of
the complaint in relation to which it was
produced.
(3) The Board may exercise its powers under
this section despite any lien claimed over a
document by a practitioner.
(4) A practitioner cannot claim professional
privilege as a reason for failure to comply with a
notice under subsection (1) except with the written
consent of the person to whom the professional
privilege relates.
(5) A requirement imposed on a practitioner
under this section is to be notified in writing to the
practitioner and is to specify a reasonable time for
compliance.
(6) A practitioner must not, without
reasonable excuse, fail to comply with -
(a) a requirement under this section; or
(b) a requirement under a provision of a
corresponding law that corresponds to
this section.
50
2004 Legal Profession Amendment No. s. 25
(7) A practitioner must not mislead the Board
in the performance of -
(a) any function by the Board under this
Division; or
(b) any function under a provision of a
corresponding law that corresponds to
this Division.
(8) A contravention of subsection (6) or (7) is
capable of being unsatisfactory professional conduct
or professional misconduct.
Entry and search of premises
75. (1) The Board may, for the purpose of searching
for evidence relating to the subject matter of the
complaint, enter and search premises where the
Board believes on reasonable grounds that the
evidence may be located or available.
(2) The entry and search may be made -
(a) only with the consent of the occupier of
the premises; or
(b) under the authority of a search warrant.
(3) Nothing in this Act requires a practitioner
or other person to give consent for the purposes of
this section.
(4) The Board may apply to a magistrate for a
search warrant for the purposes of this section, but a
search warrant is not to be issued unless -
(a) the Board satisfies the magistrate that
there are reasonable grounds to suspect
51
s. 25 No. Legal Profession Amendment 2004
that evidence relating to the complaint
is located at the premises; and
(b) the magistrate is satisfied that there are
reasonable grounds for issuing the
warrant.
(5) During a search under this section, the
Board may do any or all of the following:
(a) search for any document or information
relating to the subject matter of the
complaint;
(b) with respect to any such documents of
that kind -
(i) inspect a document; and
(ii) make copies of a document or any
part of a document; and
(iii) seize and take away a document;
(c) with respect to any computer or other
equipment that the Board suspects on
reasonable grounds may contain any
such documents or information of that
kind -
(i) inspect and gain access to a
computer or equipment; and
(ii) download or otherwise obtain any
documents or information; and
(iii) make copies of any documents or
information held in it; and
52
2004 Legal Profession Amendment No. s. 25
(iv) seize and take away any such
computer or equipment or any
part of it;
(d) do anything else reasonably necessary to
obtain information for the purposes of
the investigation of the complaint.
(6) Any documents, information or anything
else obtained by the Board may be used for the
purposes of the investigation of the complaint.
(7) Subject to subsection (8), the Board may
exercise powers under this section despite any
professional privilege that may exist in respect of
any document or information.
(8) A practitioner cannot claim professional
privilege in respect of any document or information
except with the written consent of the person to
whom the professional privilege relates.
(9) If information is obtained during a search
under this section, the information cannot be used in
any proceedings other than proceedings relating to
the complaint.
Interim order for suspension or non-issue of
practising certificate
76. (1) During the investigation of a complaint
about a practitioner, the Board may by order -
(a) suspend a practising certificate held by
the practitioner for a specified period; or
(b) decline to issue a practising certificate to
the practitioner for a specified period.
53
s. 25 No. Legal Profession Amendment 2004
(2) If a period of time specified in an order
made under subsection (1) expires, the Board may
make another order for a further specified period of
time.
(3) The Board may revoke an order made
under subsection (1) or (2).
(4) The Board must not make an order under
subsection (1) or (2) unless it is satisfied -
(a) that the practitioner is likely to be found
guilty of professional misconduct; and
(b) that it is necessary in the public interest
that the order be made.
(5) The practitioner may appeal to the
Tribunal or Supreme Court against an order under
this section.
(6) The Tribunal or Supreme Court may -
(a) affirm the order; or
(b) amend the order (whether by extending
or reducing any period specified in the
order or otherwise); or
(c) set aside the order.
Division 6 - Consumer disputes
Referral for conciliation
77. (1) The Board may -
(a) refer a complaint relating to a consumer
dispute for conciliation; or
54
2004 Legal Profession Amendment No. s. 25
(b) if it is of the opinion that conciliation is
unlikely to succeed, hear and determine
the matter under section 80.
(2) The Board may appoint a suitably
qualified person as a conciliator.
(3) A person appointed under subsection (2)
may be a member or delegate of the Board.
(4) Participation in the conciliation by the
parties to a complaint relating to a consumer
dispute is voluntary.
(5) If the parties do not agree to participate in
a conciliation, the complaint relating to a consumer
dispute is to be dealt with by the Board under
section 80.
(6) If in the course of the conciliation it
becomes apparent that the matter involves a
conduct complaint, the part of the matter that is the
subject of the conduct complaint must be dealt with
by the Board in accordance with this Part.
Agreement reached through conciliation
78. (1) If agreement is reached through conciliation
under this Division between the parties to a
complaint relating to a consumer dispute -
(a) the agreement must be recorded in
writing and signed by the parties to the
agreement and certified by the Board by
a person authorised for the purpose; and
(b) a signed and certified copy of the
agreement must be given to each of the
parties.
55
s. 25 No. Legal Profession Amendment 2004
(2) 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.
(3) The Board or a party to a complaint
relating to a consumer dispute may cause an
agreement made under section 78(1) to be filed in
the Supreme Court as a judgment made under the
Supreme Court Civil Procedure Act 1932 within 6
months after the date of that agreement.
(4) An agreement filed in the Supreme Court
is enforceable under the provisions of the Supreme
Court Civil Procedure Act 1932.
(5) Without limiting subsections (3) and (4), if
a practitioner contravenes or fails to comply with the
terms of an agreement reached following conciliation
under this section, the contravention or non-
compliance is capable of being unsatisfactory
professional conduct or professional misconduct.
Confidentiality of conciliation process
79. (1) Subject to subsection (2), evidence of
anything said or admitted during the conciliation or
attempted conciliation of a consumer dispute and
any document prepared for the purposes of any such
conciliation are not admissible in any proceedings in
a court or before a person or body authorised to hear
and receive evidence.
(2) Subsection (1) does not apply to an
agreement reached during conciliation.
56
2004 Legal Profession Amendment No. s. 25
(3) A conciliator may recommend to the Board
that a complaint should be investigated (but without
disclosing any such evidence, admission or
document).
Consumer disputes heard and determined by
Board
80. (1) If a complaint relating to a consumer dispute
is not resolved by conciliation, the Board is to hold a
hearing to determine the complaint.
(2) If a member of the Board is appointed as a
conciliator under section 77(2), that member must
not take part in any hearing or determination of the
dispute by the Board.
(3) After hearing the complaint relating to the
consumer dispute, the Board may make any one or
more of the following determinations:
(a) that the complaint relating to the
consumer dispute be dismissed;
(b) that the practitioner be cautioned or
reprimanded;
(c) that the practitioner make an apology;
(d) that the practitioner take or refrain from
taking specified action;
(e) that the practitioner waive the whole or
part of any fees charged to a specified
person in respect of specified work;
(f) that the practitioner repay the whole or
part of any fees paid by a specified
person in respect of specified work;
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(g) that the practitioner carry out for a
specified person such professional legal
work, either free of charge or for such
fee, as the Board may specify;
(h) that the practitioner waive any lien in
respect of a specified document or
documents;
(i) that the dispute be referred to the
Tribunal with a recommendation that
the Tribunal make a compensation
order.
(4) Failure to comply with a determination
made under subsection (3), other than paragraph (f),
is capable of being unsatisfactory professional
conduct or professional misconduct.
(5) The Board may cause a determination
made under subsection (3)(f) to be filed in the
Supreme Court as a judgment under the Supreme
Court Civil Procedure Act 1932 after the expiration
of 21 days after the date of that determination.
(6) A determination filed in the Supreme
Court is enforceable under the provisions of the
Supreme Court Civil Procedure Act 1932.
Application to Tribunal relating to
compensation orders
81. (1) If the Board makes a determination under
section 80(3)(i), the Board is to make an application
under section 93D for the Tribunal to determine the
matter.
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(2) An application is to contain the
recommendation of the Board for the making of the
compensation order.
Division 7 - Conduct complaints
Hearing before Board
82. (1) If, as a result of an investigation carried out
under this Part, the Board considers that any
matter which is the subject of that investigation
amounts to unsatisfactory professional conduct, the
Board, subject to subsections (2), (3) and (4), is to
hold a hearing in relation to the matter in
accordance with this Division.
(2) If the Board considers that the subject
matter of a complaint amounts to unsatisfactory
professional conduct that is not sufficiently serious
to warrant a hearing under this section, it may deal
with the complaint in accordance with section 86.
(3) The Board may make an application under
section 93D for the Tribunal to hear and determine
any matter the Board considers -
(a) amounts to both unsatisfactory
professional conduct and professional
misconduct; or
(b) is conduct which ought to be determined
by the Tribunal.
(4) If after completing an investigation under
section 70(2) the Board considers that the conduct
amounts to unsatisfactory professional conduct, the
Board is to make an application under section 93D
for the Tribunal to hear and determine the matter.
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Referral of matters relating to professional
misconduct
83. If, during an investigation or hearing under this
Division, the Board considers that any matter which
is the subject of the investigation or hearing
amounts to professional misconduct, it is to make an
application -
(a) under section 93D for the Tribunal to
hear and determine the matter; or
(b) to the Supreme Court to hear and
determine the matter.
Determination of Board
84. (1) If, after it has completed a hearing under
this Division, the Board is not satisfied that a
practitioner is guilty of unsatisfactory professional
conduct, the Board is to dismiss the complaint.
(2) If, after it has completed a hearing under
this Division, the Board is satisfied that a
practitioner is guilty of unsatisfactory professional
conduct, the Board may make any one or more of the
following determinations:
(a) a determination that the practitioner be
admonished or reprimanded;
(b) a determination that the practitioner
pay a fine not exceeding 50 penalty units
as it may specify;
(c) a determination that the complaint be
referred to the Tribunal with a
recommendation that the Tribunal make
a compensation order;
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2004 Legal Profession Amendment No. s. 25
(d) a determination that the practitioner
waive the whole or part of any fees
charged to a specified person in respect
of specified work;
(e) a determination that the practitioner
repay the whole or part of any fees paid
by a specified person in respect of
specified work;
(f) a determination that the practitioner
carry out for a specified person such
professional legal work, either free of
charge or for such fee, as the Board may
specify;
(g) a determination that the practitioner
waive any lien in respect of a specified
document or class of document;
(h) a determination that the practitioner,
within a specified period, complete a
specified course of further legal
education or receive counselling as
specified by the Board;
(i) a determination that the practitioner
subject his or her practice to periodic
supervision or inspection by a specified
person and for a specified period;
(j) a determination that the practitioner
seek appropriate advice from a specified
person in relation to the management of
the practice of the practitioner;
(k) a determination that the practitioner
cease to accept instructions in relation to
a specified class of work for a specified
period;
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(l) a determination prohibiting the
practitioner from acting as a practitioner
otherwise than in the course of
employment by a practitioner holding an
unrestricted practising certificate;
(m) a determination that the practitioner
pay to the Board any costs incurred by
the Board in investigating and hearing a
complaint.
(3) If the Board makes a determination under
subsection (2)(l), the Board may endorse the
practising certificate to give effect to that
determination.
(4) The Board has the power to do all things
necessary to give effect to any determination made
by it.
(5) If -
(a) the Board makes a determination under
subsection (2)(b), (e) or (m); and
(b) an application for appeal is not made -
the Board may, after the expiration of 21 days after
the making of the determination, cause that
determination to be filed in the Supreme Court as a
judgment under the Supreme Court Civil Procedure
Act 1932.
(6) A determination filed in the Supreme
Court is enforceable under the provisions of the
Supreme Court Civil Procedure Act 1932.
(7) If a practitioner fails to comply with a
determination made under subsection (2)(d), (f), (g),
(h), (i), (j), (k), (l) or (m), the Board may, after the
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2004 Legal Profession Amendment No. s. 25
expiration of 21 days after the making of the
determination, apply to the Supreme Court for an
appropriate order.
(8) Any fine imposed under this section is to
be paid to the Board.
Application to Tribunal relating to
compensation orders
85. (1) If the Board makes a determination under
section 84(2)(c), the Board is to make an application
under section 93D for the Tribunal to determine the
matter.
(2) An application is to contain the
recommendation of the Board for the making of the
compensation order.
Procedure for less serious complaints
86. (1) If the Board considers that a conduct
complaint may not be sufficiently serious to warrant
a hearing, it may serve on the practitioner -
(a) notice to appear before it to give an
explanation of the matter; or
(b) notice to provide it with a written
explanation.
(2) A notice under subsection (1)(a) is to -
(a) set out particulars of the matter; and
(b) state that the practitioner is entitled to
make submissions and give and adduce
evidence when appearing before the
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Board but is not entitled to be
represented; and
(c) state that the appearance before the
Board is not open to the public; and
(d) inform the practitioner that he or she
may request that the matter be referred
directly to the Tribunal; and
(e) inform the practitioner of the other
circumstances in which the matter may
be referred to the Tribunal; and
(f) specify the date, time and place at which
the practitioner is required to appear.
(3) A notice under subsection (1)(b) is to -
(a) contain the same information as is
specified in subsection (2)(a), (d) and (e)
in relation to a notice requiring a
personal appearance; and
(b) specify a date by which the practitioner
is required to provide the Board with the
written explanation.
(4) A notice may contain such other
information as the Board considers necessary or
expedient.
(5) The date specified under subsection (2)(f)
or subsection (3)(b) is to be not less than 14 days
after the date of serving the notice.
(6) The Board is to dismiss the complaint if,
after considering the explanation of the practitioner
concerned, it is not satisfied that the matter has
been substantiated.
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(7) If the Board is satisfied, after considering
the explanation, that the matter has been
substantiated but that it is not sufficiently serious to
warrant a hearing, the Board may make any one or
more of the following determinations:
(a) that the practitioner be cautioned or
reprimanded;
(b) that the practitioner make an apology;
(c) that the practitioner make an
undertaking to take, or refrain from
taking, any specified action;
(d) that the practitioner make reparation on
terms specified by the Board;
(e) that the practitioner, within a specified
timeframe, complete a specified course
of further legal education or receive
counselling, as specified by the Board.
(8) Failure to comply with a determination
made under subsection (7), other than a
determination under subsection (7)(a), is capable of
constituting unsatisfactory professional conduct or
professional misconduct.
(9) The Board is to refer a matter to the
Tribunal if -
(a) the practitioner concerned fails to
appear before the Board as required by a
notice under subsection (1)(a) or, before
the date of appearance specified in the
notice, requests in writing that the
matter be so referred; or
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(b) the practitioner concerned fails to
provide the Board with a written
explanation as required by a notice
under subsection (1)(b) or, before the
date on which the explanation is
required to be provided, requests in
writing that the matter be so referred; or
(c) in the course of giving an explanation of
the matter the practitioner concerned
requests, orally or in writing, that the
matter be so referred; or
(d) after or in the course of considering an
explanation of the matter the Board
determines that the matter is
sufficiently serious to warrant a hearing.
(10) A meeting of the Board convened for the
purposes of this section is not open to the public.
Appeals against determinations
87. (1) A person who is served with a notice of the
determination of the Board in relation to a conduct
complaint may, within 21 days after the date of that
determination -
(a) apply to the Supreme Court or Tribunal
to have the matter to which the
determination relates heard by the
Tribunal under Division 8 or the
Supreme Court under Division 9; and
(b) make an application to the Supreme
Court or Tribunal to stay that order
pending the determination of the appeal.
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2004 Legal Profession Amendment No. s. 25
(2) For the purposes of this section, a decision
of the Board to dismiss a conduct complaint under
section 64 is a determination of the Board.
Division 8 - Disciplinary Tribunal
Interpretation
88. In this Division -
"lay member" means a person referred to in
section 89(2)(b);
"practitioner member" means a person
referred to in section 89(2)(a).
Disciplinary Tribunal
89. (1) The Disciplinary Tribunal is established.
(2) The Tribunal consists of -
(a) 10 barristers or legal practitioners
appointed by the judges from a panel of
15 barristers or legal practitioners
consisting of 2 persons to be nominated
by the Tasmanian Bar Association, 2
persons to be nominated by the
Tasmanian Independent Bar and the
balance to be nominated by the Society;
and
(b) 5 persons, who are not barristers or
legal practitioners, appointed by the
judges on the nomination of the
Minister.
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(3) The judges are to appoint a chairperson
and deputy chairperson of the Tribunal from the
practitioner members of the Tribunal.
(4) Schedule 4 has effect with respect to the
membership of the Tribunal.
Composition of Tribunal for proceedings
90. (1) The powers and functions of the Tribunal
may be exercised and performed by any 3 or more of
its members, of whom -
(a) one must be the chairperson or, in the
absence of the chairperson, the deputy
chairperson or, in the absence of both
the chairperson and deputy chairperson,
a practitioner member appointed by the
chairperson; and
(b) at least one must be a practitioner
member; and
(c) at least one must be a lay member.
(2) Subject to subsection (1), the chairperson is
to determine the members who are to constitute the
Tribunal for a particular hearing.
(3) The chairperson of the Tribunal may
appoint a person as a special member of the
Tribunal for a particular hearing whom the
chairperson considers to have the skill, knowledge or
experience that is relevant for the purposes of that
hearing.
(4) A person referred to in subsection (3) may
or may not be a legal practitioner or barrister.
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2004 Legal Profession Amendment No. s. 25
(5) Notwithstanding subsection (1), the
chairperson or deputy chairperson of the Tribunal
may sit alone for the purpose of making an interim
order, giving directions or adjourning proceedings.
(6) The chairperson or deputy chairperson or
practitioner member appointed by the chairperson
under subsection (1)(a) is to preside at a Tribunal
hearing.
Change in composition
91. (1) If one of the members (other than the
member presiding) constituting the Tribunal for the
purposes of a hearing vacates office or becomes
incapable of sitting for any reason before the hearing
is completed, the hearing may be continued and
completed by the remaining members.
(2) If the member presiding or more than one
member vacates office or becomes incapable of
sitting before the Tribunal has completed the
hearing or made a determination in respect of the
hearing, the hearing is terminated and a new
hearing may be commenced before the Tribunal
constituted in accordance with this Division.
(3) In a new hearing the Tribunal may have
regard to the record of the proceeding before the
Tribunal as previously constituted, including the
record of any evidence taken in the proceeding.
Immunity of members of Tribunal
92. An action does not lie against a member of the
Tribunal in respect of any act done by that member
in good faith and in the exercise or purported
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exercise of any power conferred, or in the
performance or purported performance of any
function imposed, by this Act.
Confidentiality
93. (1) A member of the Tribunal or a person
employed or engaged on work related to the affairs
of the Tribunal must not divulge any information
gained by virtue of that office or position except -
(a) in the course of and for a purpose
related to carrying out the duties of the
office or position; or
(b) as may be authorised by this Act or any
other Act; or
(c) as may be required by a court in relation
to proceedings before the court.
Penalty: Fine not exceeding 100 penalty units.
(2) Notwithstanding subsection (1), a person
referred to in that subsection may divulge
information referred to in that subsection to -
(a) the Tribunal; and
(b) the Minister; and
(c) a member of a law enforcement or
prosecution authority of a State, or of
the Commonwealth, relating to a matter
referred to the authority by the Minister
or reported to the authority by the
Tribunal to which the information is
relevant; and
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2004 Legal Profession Amendment No. s. 25
(d) a regulatory authority of a participating
State who has requested the information
in connection with actual or possible
disciplinary action against a
practitioner.
General functions and powers of Tribunal
93A. (1) Subject to subsection (2), the Tribunal
must hear and determine any -
(a) matter relating to professional
misconduct; and
(b) matter referred to it in an application
made under this Division.
(2) If, during the course of a hearing, the
Tribunal is of the opinion that a matter is one which
should be heard and determined by the Supreme
Court -
(a) it may refer the matter to the Supreme
Court to be dealt with as an application
under Division 9; and
(b) it must suspend the hearing with effect
from the date of the referral; and
(c) it must advise the parties accordingly.
(3) If, during the course of a hearing, the
Tribunal is of the opinion that a related matter may
constitute professional misconduct, it may require
the Board to conduct an investigation under this
Part.
(4) The Tribunal may do all things necessary
or convenient to be done for hearing and
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determining a matter to which an application under
this Division relates.
(5) The Tribunal may make rules for
regulating the making, hearing and determining of
applications under this Division.
Secretary to Tribunal
93B. (1) Subject to subsection (2), the Tribunal is to
appoint a secretary to the Tribunal to assist the
Tribunal in the performance of its functions and
exercise of its powers under this Act.
(2) The Tribunal must not appoint a person
who is a member of the Board as secretary to the
Tribunal.
Report of Tribunal
93C. (1) The Tribunal must provide on or before 31
July after the end of each financial year to the Board
a report, stating -
(a) the number of applications made to it
under section 93D for that financial year
and the nature of those applications; and
(b) the orders made by it in respect of those
applications; and
(c) any other information the Tribunal
considers relevant.
(2) The Board may require the Tribunal to
provide further information in relation to any
matter contained in a report submitted under
subsection (1).
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2004 Legal Profession Amendment No. s. 25
Applications to Tribunal
93D. (1) An application may be made to the
Tribunal to hear and determine a complaint by -
(a) any person if the application relates to a
complaint other than a complaint
relating to a consumer dispute; or
(b) the Board if a determination has been
made by the Board under section 80(3)(i)
and the application to the Tribunal
recommends the making of a
compensation order.
(2) An application -
(a) is to be made in writing; and
(b) is to specify the facts upon which the
application is based; and
(c) is to be lodged with the secretary to the
Tribunal.
(3) The secretary to the Tribunal is to serve a
copy of an application on all the other parties to the
complaint.
(4) The Tribunal may direct or authorise the
amendment of an application at any time.
(5) On receipt of an application, the Tribunal
is to serve on the parties to the complaint a notice in
writing specifying the date, time and place for the
hearing of the application.
(6) The date specified in a notice for the
hearing of an application shall be a date that is 14
days or more after the date of service of the notice.
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Procedure of Tribunal
93E. (1) In respect of an application under this
Division, the Tribunal may do any or all of the
following:
(a) summon any person whose evidence
appears to be material to the
application;
(b) proceed to hear and determine the
application in the absence of any party
who has been summoned to appear
before it and who has failed to appear in
response to the summons;
(c) take evidence by affidavit;
(d) take evidence on oath or affirmation
and, for that purpose, administer oaths
and affirmations;
(e) require any person to produce or
authorise another person to produce any
documents or records, or class of
documents or records, in that person's
possession or subject to that person's
control that in the opinion of the
Tribunal appear to be material to the
application;
(f) require a person who appears before it to
answer any question that, in the opinion
of the Tribunal, appears to be material
to the application;
(g) require the Board to conduct any
investigation that the Tribunal
considers necessary in order to hear and
determine a complaint;
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2004 Legal Profession Amendment No. s. 25
(h) require any person to assist the Board in
such an investigation;
(i) adjourn the hearing of an application or
any part of an application from place to
place and from time to time;
(j) regulate its own procedure in relation to
the hearing of an application;
(k) subject to its rules, order the joinder of
more than one application against the
same or different practitioners.
(2) The Tribunal may make an order imposing
a fine not exceeding 50 penalty units on any person
who, if required to do so under subsection (1),
neglects or fails, without reasonable excuse -
(a) to comply with a summons; or
(b) to make an oath or affirmation; or
(c) to produce or authorise another person
to produce any documents or records
when required to do so; or
(d) to answer any question when lawfully
required to do so; or
(e) to assist the Board in an investigation.
(3) Any fine imposed under subsection (2) is to
be paid to the Board.
(4) The Tribunal may cause an order made
under subsection (2) to be filed in the Supreme
Court as a judgment under the Supreme Court Civil
Procedure Act 1932 after the expiration of 21 days
after the date of the order.
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(5) An order filed in the Supreme Court is
enforceable under the provisions of the Supreme
Court Civil Procedure Act 1932.
(6) A person may not claim professional
privilege as a reason for failure to comply with a
requirement made under subsection (1)(e) or (f)
except with the written consent of the person to
whom the professional privilege relates.
(7) The Tribunal may refer the subject matter
of an application to be heard and determined by the
Board under this Part if, after taking into account
any report made by the Board, it considers that the
matter -
(a) relates to unsatisfactory professional
conduct; or
(b) is an alleged contravention of a
regulation, rule or by-law made under
this Act which is of such a nature that it
ought to be heard and determined by the
Board.
Procedure at hearing of application
93F. (1) The hearing of an application under this
Division is to be open to the public unless the
Tribunal otherwise orders.
(2) If the Tribunal orders that a hearing of an
application under this Division is not open to the
public, the Tribunal may determine who, other than
the parties or their representative, may be present
before it at any stage of the proceedings.
(3) At the hearing of an application under this
Division, a party to the application may -
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2004 Legal Profession Amendment No. s. 25
(a) be represented by a barrister or legal
practitioner who holds a practising
certificate; and
(b) give and adduce evidence and examine
any other person who gives evidence at
the hearing; and
(c) give the Tribunal a written submission
in respect of the matter to which the
hearing relates.
(4) The Tribunal may make an order imposing
a fine not exceeding 50 penalty units on any person
who -
(a) obstructs, hinders or interrupts the
proceedings of the Tribunal; or
(b) threatens or insults a member of the
Tribunal; or
(c) gives an answer or makes a statement
which, to that person's knowledge, is
false or misleading.
(5) Any fine imposed under this section is to
be paid to the Board.
(6) The Tribunal may cause an order made
under subsection (4) to be filed in the Supreme
Court as a judgment under the Supreme Court Civil
Procedure Act 1932 after the expiration of 21 days
after the date of the order.
(7) An order filed in the Supreme Court is
enforceable under the provisions of the Supreme
Court Civil Procedure Act 1932.
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Evidence of conviction and sentence
93G. At a hearing held under this Division, a
certificate purporting to be signed by a proper officer
of a court of this State, of another State or of a court
in any jurisdiction relating to the conviction and
sentencing of a person by that court is admissible.
Orders of Tribunal
93H. (1) The Tribunal, pending the determination
of the application made to it under section 93D,
may -
(a) make an order suspending the
practitioner from practice; or
(b) make an order imposing such conditions
on the right of the practitioner to
practise as it thinks necessary; or
(c) make any other order it thinks fit.
(2) After holding a hearing in respect of a
complaint against a practitioner, the Tribunal may
make any one or more of the following orders:
(a) an order dismissing the complaint;
(b) an order admonishing or reprimanding
the practitioner;
(c) an order that the practitioner pay a fine
not exceeding 200 penalty units;
(d) an order suspending the practitioner
from practising as a barrister or legal
practitioner for such period as is
specified in the order;
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2004 Legal Profession Amendment No. s. 25
(e) an order prohibiting the practitioner
from practising as a barrister or legal
practitioner, otherwise than in
accordance with such conditions as are
specified in the order;
(f) an order directing the Registrar to
remove the name of the practitioner
from the roll of barristers or legal
practitioners;
(g) an order in respect of costs, including
the costs incurred by the Board in
investigating and hearing a complaint;
(h) an order directing that costs be taxed in
accordance with the Supreme Court
Rules 2000;
(i) a compensation order;
(j) an order that the practitioner undertake
and complete a specified course of
further legal education;
(k) an order that the practitioner subject his
or her practice to periodic supervision or
inspection by a specified person and for
a specified period;
(l) an order that the practitioner seek
appropriate advice from a specified
person or class of persons in relation to
the management of the practice of the
practitioner;
(m) an order that the practitioner cease to
employ in the practice of the practitioner
a specified person;
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(n) an order that the practitioner employ in
the practice of the practitioner a person
belonging to a specified class of persons;
(o) an order that the practitioner cease to
accept instructions in relation to a
specified class of work for a specified
period;
(p) an order prohibiting the practitioner
from acting as a practitioner, otherwise
than in the course of employment by a
practitioner holding an unrestricted
practising certificate;
(q) an order that the practitioner waive the
whole or part of any fees charged to a
specified person in respect of specified
work;
(r) an order that the practitioner repay the
whole or part of any fees paid by a
specified person in respect of specified
work;
(s) an order that the practitioner carry out
for a specified person such work, either
free of charge or for such fee, as the
Tribunal may so specify;
(t) an order that the practitioner waive any
lien in respect of a specified document or
class of document;
(u) an order that the Board publish or
broadcast an order under this section
including a statement of findings;
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2004 Legal Profession Amendment No. s. 25
(v) an order wholly or partly suspending the
payment of a fine, or making the
payment of a fine conditional.
(3) The Tribunal may make an order imposing
a fine not exceeding 50 penalty units on any
practitioner who fails to comply with or contravenes
a prohibition under subsection (2)(e) or (p).
(4) The Tribunal may cause an order made
under subsection (2)(c), (g), (h), (i) or (r) of
subsection (3) to be filed in the Supreme Court as a
judgment under the Supreme Court Civil Procedure
Act 1932 after the expiration of 21 days after the
date of that order.
(5) An order filed in the Supreme Court is
enforceable under the provisions of the Supreme
Court Civil Procedure Act 1932.
(6) If a practitioner fails to comply with an
order made under subsection (1) or subsection (2)(d),
(e), (j), (k), (l), (m), (n), (o), (p), (q), (s) or (t), the
Tribunal may, after the expiration of 21 days after
the date of the order, apply to the Supreme Court for
an appropriate order.
(7) An order made under this section, except
an order under subsection (2)(d) or (f), takes effect
after the period within which an appeal under
section 93J may be instituted expires.
(8) The Tribunal is to record an order made by
it under this section together with the reasons for
the order.
(9) The Tribunal is to provide the Board with
a copy of any order made by it under this section
together with the reasons for the order.
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(10) Any fine imposed under this section is to
be paid to the Board.
(11) The Tribunal may make ancillary orders,
including an order for payment by the practitioner of
expenses associated with orders under
subsection (2).
(12) Where an order of the Tribunal is made
against a practitioner under this section, the Board
is to cancel, suspend or endorse the practising
certificate of that practitioner to accord with or give
effect to that order.
(13) The Tribunal may find a person guilty
of -
(a) unsatisfactory professional conduct even
though the complaint alleged
professional misconduct; or
(b) professional misconduct even though the
complaint alleged unsatisfactory
professional conduct.
Costs
93I. (1) The Tribunal must make orders requiring a
practitioner whom it has found guilty of
unsatisfactory professional conduct or professional
misconduct to pay costs (including costs of the Board
and the complainant), unless the Tribunal is
satisfied that exceptional circumstances exist.
(2) The Tribunal may make orders requiring a
practitioner whom it has not found guilty of
unsatisfactory professional conduct or professional
misconduct to pay costs (including costs of the Board
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2004 Legal Profession Amendment No. s. 25
and the complainant), if the Tribunal is satisfied
that -
(a) the sole or principal reason why the
proceedings were instituted in the
Tribunal was a failure of the
practitioner to cooperate with the Board;
or
(b) exceptional circumstances exist which
warrant the making of such an order in
the particular circumstances.
(3) An order for costs -
(a) may be for a specified amount; or
(b) may be for an unspecified amount but
must specify the basis on which the
amount is to be determined.
(4) An order for costs may specify the terms on
which costs must be paid.
Appeals against orders of Tribunal
93J. A party to a complaint who is aggrieved by an
order made by the Tribunal under this Part may -
(a) appeal against that order to the
Supreme Court; and
(b) make an application to stay that order
pending the determination of the appeal.
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s. 25 No. Legal Profession Amendment 2004
Hearing and determination of appeal
93K. (1) An appeal under this Division is to be
made in accordance with the Supreme Court Rules
2000 and dealt with by way of rehearing.
(2) Any rehearing conducted under
subsection (1) is to be limited to consideration of the
matters considered at the hearing which is the
subject of appeal.
(3) The Supreme Court, in deciding an appeal
against an order made by the Tribunal under this
Division, may -
(a) confirm that order; or
(b) vary that order; or
(c) quash that order; or
(d) substitute for that order any order that
the Tribunal had jurisdiction to make; or
(e) refer the matter of the appeal to the
Tribunal for rehearing; or
(f) make any other order, including an
order in respect of costs, it thinks
appropriate.
(4) An order varied or substituted under
subsection (3) takes effect on and from the date of
the decision to vary or substitute the order.
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2004 Legal Profession Amendment No. s. 25
Division 9 - Disciplinary proceedings before
Supreme Court
Applications to Supreme Court
93L. (1) Any person may make an application to
the Supreme Court to hear and determine a
complaint.
(2) An application under this section, unless
the Supreme Court otherwise orders, is to be heard
in open court and in accordance with the Supreme
Court Rules 2000.
(3) Notice of an application made under this
section is to be given to the parties to the complaint
to which the application relates.
(4) If the Supreme Court considers that an
application relating to a complaint should be heard
and determined by the Board or the Tribunal, it may
refer that complaint to be heard and determined by
the Board or Tribunal.
Hearing and determination of application
93M. The Supreme Court, in deciding an
application made under this Division, may -
(a) dismiss the application; or
(b) make any one or more of the orders
specified in section 93H; or
(c) make a default order under section 111;
or
(d) make any order, including an order in
respect of costs, it thinks appropriate.
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Orders pending determination of complaint
93N. (1) If a complaint is made against a
practitioner under this Part, the Supreme Court
may, on application made to it and pending the
determination of the complaint -
(a) make an order suspending the
practitioner from practice; or
(b) make an order imposing such conditions
on the right of the practitioner to
practise as it thinks necessary; or
(c) make any other order it thinks fit.
(2) An application under subsection (1) may be
made ex parte.
Division 10 - Compensation orders
Compensation orders
93O. (1) A compensation order is an order, made in
respect of a complaint against a practitioner under
this Part, to compensate the complainant for
pecuniary loss suffered because of conduct that is
the subject of the complaint.
(2) A compensation order consists of an order
that the practitioner pay to the complainant, by way
of monetary compensation for the loss, a specified
amount within a specified period.
(3) A compensation order for the payment of
an amount exceeding 50 penalty units, or such other
amount as may be determined by the Minister, is
not to be made unless the complainant and the
practitioner both consent to the order.
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2004 Legal Profession Amendment No. s. 25
(4) Failure to comply with a compensation
order is capable of being unsatisfactory professional
conduct or professional misconduct.
Prerequisites to making of compensation
orders
93P. (1) A compensation order is not to be made
unless the Tribunal or Supreme Court is satisfied -
(a) that the complainant has suffered loss
because of the conduct concerned; and
(b) that it is in the interests of justice that
the order be made.
(2) A compensation order is not to be made in
respect of any loss for which the complainant has
received or is entitled to receive -
(a) compensation under an order made by a
court; or
(b) compensation from the Guarantee Fund.
Other remedies not affected
93Q. The recovery of compensation awarded under
this Part does not affect any other remedy available
to a complainant, but any compensation so awarded
is to be taken into account in any other proceedings
by or on behalf of the complainant in respect of the
same loss.
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Division 11 - Publication of disciplinary action
Publication of disciplinary action
93R. (1) Subject to section 93S(1), if a practitioner
is found guilty of unsatisfactory professional conduct
or professional misconduct by the Board, Tribunal or
Supreme Court, the details referred to in
subsection (2) are to be published in the next annual
report of the Board and in any publication circulated
to the profession by the Board, after the later of -
(a) the expiry of the period during which a
party may appeal against the order; and
(b) the determination of any appeal against
the order.
(2) The details to be published are -
(a) the name of the practitioner; and
(b) whether the practitioner was found
guilty of unsatisfactory professional
conduct or professional misconduct and
the nature of the offence; and
(c) the order made by the Board, Tribunal
or Supreme Court; and
(d) the result of the appeal (if any).
(3) Information regarding the outcome of
disciplinary action may be provided to members of
the public on request.
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2004 Legal Profession Amendment No. s. 25
Suppression of publication
93S. (1) The Board, Tribunal or Supreme Court
may, if it thinks it appropriate in the circumstances,
order that particulars of, or any matters relating to,
the making of a complaint or an application under
this Part not be published.
(2) Any person who publishes any matter
contrary to an order made under subsection (1) is
guilty of an offence.
Penalty: Fine not exceeding 100 penalty units.
Division 12 - Miscellaneous
Hearings of Board under this Part
93T. Schedule 3A has effect with respect to
hearings of the Board under this Part.
Notice of determination and record of
determination
93U. (1) The Board, by notice in writing served on
each party to a complaint, is to state its
determination and the reasons for the
determination.
(2) The Board is to cause a record of its
determination with respect to a complaint, together
with reasons for the determination, to be kept in
respect of each complaint dealt with under this Part.
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Jurisdiction of Supreme Court
93V. Nothing in this Part derogates from the
inherent jurisdiction of the Supreme Court to
discipline a practitioner.
Power to remove name from roll
93W. A power under this Part to remove the name
of a person from the roll of barristers or legal
practitioners includes a power -
(a) in the case of a person who is a
barrister, to disbar that person; or
(b) in the case of a person who is an articled
clerk -
(i) to terminate the articles of
clerkship of that person; and
(ii) to terminate the limited right of
audience granted to that person
under section 45; and
(iii) to cancel a certificate issued to
that person under section 41(2).
Power to suspend from practice
93X. A power under this Part to suspend a person
from practising is a power, in the case of a person
who is an articled clerk -
(a) to suspend the articles of clerkship of
that person; or
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2004 Legal Profession Amendment No. s. 25
(b) to suspend the limited right of audience
granted to that person under section 45.
Referral of matter involving crimes
93Y. (1) If, during the course of any investigation or
hearing, the Tribunal or Board is of the opinion that
a crime has been committed, it must refer the
subject matter of the investigation or hearing to the
Commissioner of Police.
(2) If the subject matter of the investigation or
hearing has been referred to the Commissioner of
Police under subsection (1), the Board may -
(a) suspend that part of the hearing that
relates to the crime with effect from the
date of the referral until -
(i) after criminal proceedings relating
to that matter are concluded; or
(ii) the Commissioner of Police
advises the Tribunal or Board that
no criminal proceedings are to be
taken; or
(b) suspend the hearing with effect from the
date of the referral until -
(i) after criminal proceedings relating
to that matter are concluded; or
(ii) the Commissioner of Police
advises the Tribunal or Board that
no criminal proceedings are to be
taken; or
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s. 26 No. Legal Profession Amendment 2004
(3) If a hearing is suspended, the Tribunal or
Board may, if it thinks it appropriate to do so -
(a) serve a notice in accordance with
section 109; and
(b) suspend the practising certificate of the
practitioner who is the subject of the
hearing for such period as the Tribunal
or Board considers appropriate.
Section 96 amended (Membership of Trust)
26. Section 96 of the Principal Act is amended as follows:
(a) by omitting from subsection (1)(b) "Attorney-
General" and substituting "Minister";
(b) by omitting from subsection (5) "Attorney-
General" and substituting "Minister".
Section 100 amended (Accounts, reports and audit)
27. Section 100 of the Principal Act is amended as follows:
(a) by omitting from subsection (3) "Council" and
substituting "Board";
(b) by omitting from subsection (4) "Council" twice
occurring and substituting "Board";
(c) by omitting from subsection (5) "Society" and
substituting "Board".
Section 102 amended (Deposit of trust money)
28. Section 102 of the Principal Act is amended as follows:
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2004 Legal Profession Amendment No. s. 29
(a) by omitting from subsection (2) "Council" and
substituting "Board";
(b) by omitting from subsection (3) "Council" and
substituting "Board";
(c) by omitting from subsection (6) "Council" twice
occurring and substituting "Board";
(d) by omitting from subsection (7) "Council" and
substituting "Board";
(e) by omitting from subsection (8) "Council" and
substituting "Board".
Section 103 amended (Withdrawals)
29. Section 103 of the Principal Act is amended as follows:
(a) by omitting from subsection (4) "Council" and
substituting "Board";
(b) by omitting from subsection (5) "Council" and
substituting "Board";
(c) by omitting from subsection (6) "Council" and
substituting "Board".
Section 104 amended (Interest on trust account)
30. Section 104(1) of the Principal Act is amended by
omitting "Society" twice occurring and substituting
"Board".
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Section 105 amended (Trust to invest interest)
31. Section 105(1) of the Principal Act is amended by
omitting "Society" and substituting "Board".
Section 106 amended (Audited accounts of interest)
32. Section 106 of the Principal Act is amended by
omitting "Society" and substituting "Board".
Section 107 amended (Solicitors' Guarantee Fund)
33. Section 107(3)(b) of the Principal Act is amended by
omitting "Society" and substituting "Board".
Section 108 amended (Application of funds of
Guarantee Fund)
34. Section 108 of the Principal Act is amended as follows:
(a) by omitting subparagraph (i) from subsection
(2)(a);
(b) by omitting from subsection (2)(a)(ii) "Society"
and substituting "Board";
(c) by omitting from subsection (2)(b)(iii) "Law
Society" and substituting "Board";
(d) by omitting from subsection (2)(b)(iii)
"Council" and substituting "Board";
(e) by omitting from subsection (3) "Council" and
substituting "Board".
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2004 Legal Profession Amendment No. s. 35
Section 109 amended (Prohibition on withdrawal of
certain property)
35. Section 109 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "Council" and
substituting "Board or Tribunal";
(b) by omitting from subsection (4) "Council" and
substituting "Board or Tribunal".
Section 110 amended (Appeal against notice)
36. Section 110(3) of the Principal Act is amended by
omitting "Council" and substituting "Board".
Section 111 amended (Default order and Court
fund)
37. Section 111(1)(a) of the Principal Act is amended by
omitting "Society" and substituting "Board".
Section 112 amended (Application of Court fund)
38. Section 112(3) of the Principal Act is amended by
omitting "Society" and substituting "Board".
Section 119 amended (Management of practice)
39. Section 119 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "Council" and
substituting "Board";
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(b) by omitting from subsection (2)(a) "Council"
and substituting "Board";
(c) by omitting from subsection (2)(c) "Council"
and substituting "Board";
(d) by omitting from subsection (2)(d) "Council"
and substituting "Board or Tribunal";
(e) by omitting from subsection (5) "Council" and
substituting "Board".
Section 121 amended (Inspections of accounts)
40. Section 121 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "Council" and
substituting "Board";
(b) by omitting from subsection (2) "Council" and
substituting "Board".
Section 123 amended (Rules)
41. Section 123(1) of the Principal Act is amended by
omitting "Council" and substituting "Board".
Section 125 amended (Provision of information)
42. Section 125 of the Principal Act is amended as follows:
(a) by omitting from subsection (2)(d) "paragraph
(c)." and substituting "paragraph (c); or";
(b) by inserting the following paragraph after
paragraph (d) in subsection (2):
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2004 Legal Profession Amendment No. s. 43
(e) a member, employee or delegate of
the Board.
(c) by omitting from subsection (3)(b) "Attorney-
General" and substituting "Minister";
(d) by inserting in subsection (3)(c) "Board or"
after "the".
Section 125A inserted
43. After section 125 of the Principal Act, the following
section is inserted in Part 10:
Notification of Board
125A. The Society is to notify the Board of -
(a) any failure by a firm or legal
practitioner corporation to make any
payment required under the rules made
under section 124; and
(b) any default by a firm or legal
practitioner corporation in relation to
the firm's or legal practitioner
corporation's professional indemnity
insurance.
Section 128 amended (Rules in respect of costs and
taxation of costs)
44. Section 128 of the Principal Act is amended by
omitting "Council" and substituting "Board".
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s. 45 No. Legal Profession Amendment 2004
Section 134 amended (Appointment by Board of
persons to tax costs)
45. Section 134(1) of the Principal Act is amended by
omitting "Council" and substituting "Board".
Section 135A amended (Assistance to taxing officer)
46. Section 135A(1) of the Principal Act is amended by
omitting "Council" and substituting "Board".
Section 141 amended (Arbitrators)
47. Section 141 of the Principal Act is amended by
omitting "Council" and substituting "Board".
Section 143A amended (Information for client)
48. Section 143A(3)(h) of the Principal Act is amended by
omitting "Law Society" and substituting "Board".
Section 143F amended (Effect of failure to give
information)
49. Section 143F(b) of the Principal Act is amended by
omitting "Council" and substituting "Board".
Section 148 amended (Practising certificates for
legal practitioner corporations)
50. Section 148 of the Principal Act is amended by
omitting "Council" and substituting "Board".
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2004 Legal Profession Amendment No. s. 51
Section 149 amended (Application for practising
certificate)
51. Section 149 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "Council" first
occurring and substituting "Board";
(b) by omitting from subsection (1)(a) "Council"
and substituting "Board";
(c) by omitting from subsection (2) "Council" twice
occurring and substituting "Board".
Section 150 amended (Issue of practising
certificates)
52. Section 150 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "Council" and
substituting "Board";
(b) by omitting from subsection (2) "Council" and
substituting "Board";
(c) by omitting from subsection (3) "Council" and
substituting "Board".
Section 151 amended (Memorandum and articles of
association)
53. Section 151 of the Principal Act is amended as follows:
(a) by omitting from paragraph (b)(ii) "Council"
and substituting "Board";
(b) by omitting from paragraph (c) "Council" and
substituting "Board";
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s. 54 No. Legal Profession Amendment 2004
(c) by omitting from paragraph (e)(ii) "Council"
and substituting "Board";
(d) by omitting from paragraph (g) "Council" and
substituting "Board";
(e) by omitting from paragraph (h) "Council" and
substituting "Board";
(f) by omitting from paragraph (j) "the Legal
Profession Act 1993" and substituting "this
Act".
Section 152 amended (Notification of non-
compliance with memorandum and articles of
association)
54. Section 152 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "Council" twice
occurring and substituting "Board";
(b) by omitting from subsection (2) "Council" and
substituting "Board";
(c) by omitting from subsection (3) "Council" first
occurring and substituting "Board";
(d) by omitting from subsection (3)(b) "Council"
and substituting "Board".
Section 153 amended (Alteration to memorandum or
articles of association)
55. Section 153 of the Principal Act is amended by
omitting "Council" and substituting "Board".
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2004 Legal Profession Amendment No. s. 56
Section 155 amended (Applications for renewal of
practising certificates)
56. Section 155 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "Council" and
substituting "Board";
(b) by omitting from subsection (2)(a) "Council"
and substituting "Board";
(c) by omitting from subsection (3) "Council" twice
occurring and substituting "Board".
Section 156 amended (Issue of renewal of practising
certificates)
57. Section 156 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "Council" and
substituting "Board";
(b) by omitting from subsection (2) "Council" and
substituting "Board";
(c) by omitting from subsection (3) "Council" and
substituting "Board";
(d) by omitting from subsection (4) "Council" and
substituting "Board".
Section 157 amended (List of legal practitioner
corporations)
58. Section 157 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "Council" and
substituting "Board";
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(b) by omitting from subsection (2) "Council" first
occurring and substituting "Board";
(c) by omitting from subsection (2)(b)(iv) "Council"
and substituting "Board";
(d) by omitting from subsection (3) "Council" and
substituting "Board";
(e) by omitting from subsection (4) "Council" and
substituting "Board";
(f) by omitting from subsection (5) "Council" and
substituting "Board".
Section 158 amended (Evidentiary provision with
respect to list)
59. Section 158(2) of the Principal Act is amended by
omitting "President of the Society" and substituting
"executive officer".
Section 159 amended (Appeals)
60. Section 159 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "Council" and
substituting "Board";
(b) by omitting from subsection (5) "Council" and
substituting "Board".
Section 162 amended (Foreign corporations)
61. Section 162 of the Principal Act is amended as follows:
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2004 Legal Profession Amendment No. s. 62
(a) by omitting from subsection (2) "Council" and
substituting "Board";
(b) by omitting from subsection (3)(a) "Council"
and substituting "Board";
(c) by omitting from subsection (3)(b) "Council"
and substituting "Board";
(d) by omitting from subsection (4) "Council" first
occurring and substituting "Board";
(e) by omitting from subsection (4) "Council"
second occurring and substituting "Board";
(f) by omitting from subsection (4)(b) "Council"
and substituting "Board";
(g) by omitting from subsection (5) "Council" and
substituting "Board".
Section 165 amended (Protection from liability)
62. Section 165 of the Principal Act is amended by
omitting subsection (2) and substituting the following
subsection:
(2) A liability that would, but for this section,
attach to -
(a) a member of the Council or a delegate
under section 11, attaches to the Society;
or
(b) an arbitrator, attaches to the Board.
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Sections 165A and 165B inserted
63. After section 165 of the Principal Act, the following
sections are inserted in Part 14:
Change of name
165A. (1) If a body referred to in this Act changes
its name, the Governor, by order, may amend the
provisions of this Act in which the name of the body
occurs by substituting the body's new name.
(2) If a body referred to in this Act ceases to
exist, the Governor may amend the provisions of this
Act in which the name of the body occurs by
substituting the name of a body which the Governor
is satisfied substantially represents the interests
represented by the first-mentioned body.
Rules of procedural fairness
165B. The rules of procedural fairness, to the extent
that they are not inconsistent with the provisions of
this Act, apply in relation to dealing with complaints
under this Act by the Board or Tribunal.
Section 166 amended (Regulations)
64. Section 166 of the Principal Act is amended by
omitting subsection (2) and substituting the following
subsection:
(2) Without limiting the generality of
subsection (1), regulations may be made -
(a) for or with respect to the fees payable
under this Act including -
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2004 Legal Profession Amendment No. s. 65
(i) fees payable in respect of
practising certificates; and
(ii) fees payable in respect of an
application to sit for examinations
conducted by the Board; and
(iii) fees payable in respect of articles
of clerkship; and
(iv) fees payable in respect of
admission of barristers or legal
practitioners; and
(v) fees payable for an audit or
inspection of records relating to
money received, held or paid on
behalf of clients; and
(b) the manner in which those fees may be
disbursed.
Schedules 1 and 2 substituted
65. Schedules 1 and 2 to the Principal Act are repealed
and the following Schedules are substituted:
SCHEDULE 1 - PROVISIONS WITH RESPECT
TO MEMBERSHIP OF BOARD
Section 17A(5)
Interpretation
1. In this Schedule -
"member" means a member of the Board, and
includes the chairperson of the Board.
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Term of office
2. (1) A member is appointed for such term, not
exceeding 3 years, as is specified in the member's
instrument of appointment.
(2) A member may serve any number of terms
but may not serve more than 6 years in succession.
Holding other office
3. The holder of an office who is required under any
Act to devote the whole of his or her time to the
duties of that office is not disqualified from -
(a) holding that office and also the office of a
member; or
(b) accepting any remuneration payable to a
member.
State Service Act 2000
4. (1) The State Service Act 2000 does not apply in
relation to a member in his or her capacity as a
member.
(2) A person may hold the office of member in
conjunction with State Service employment.
Remuneration of members and conditions of
appointment
5. (1) A member is entitled to be paid such
remuneration and allowances as the Minister
determines.
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2004 Legal Profession Amendment No. s. 65
(2) A member who is a State Service employee
or State Service officer is not entitled to
remuneration or allowances under subclause (1)
except with the approval of the Minister
administering the State Service Act 2000.
(3) A member holds office on such conditions
in relation to matters not provided for by this Act as
are specified in the member's instrument of
appointment.
Vacation of office
6. (1) A member vacates office if the member -
(a) dies; or
(b) resigns by written notice to the Minister;
or
(c) is removed from office under
subclause (2) or (3); or
(d) ceases to be qualified for office by virtue
of subclause (4).
(2) The Governor may remove a member from
office if the member -
(a) is absent from 3 consecutive meetings of
the Board without the permission of the
Board; or
(b) becomes bankrupt, applies to take the
benefit of any law for the relief of
bankrupt or insolvent debtors,
compounds with the member's creditors
or makes an assignment of the member's
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s. 65 No. Legal Profession Amendment 2004
remuneration or estate for their benefit;
or
(c) is convicted, in Tasmania or elsewhere,
of a crime or an offence punishable by
imprisonment for a term exceeding 3
months; or
(d) fails, without reasonable excuse, to
comply with the member's obligation
under clause 7 of Schedule 2; or
(e) is convicted of an offence against this
Act.
(3) The Governor may remove a member from
office if satisfied that the member is unable to
perform or is not performing adequately or
competently the duties of the office.
(4) A member referred to in section 17A(1)(a)
vacates office if he or she ceases to be eligible for
appointment.
Chairperson may resign but remain a member
7. The chairperson may resign from that office but
remain a member.
Validity of proceedings, &c.
8. (1) An act or proceeding of the Board or of a
person acting under any direction of the Board is not
invalidated by reason only that at the time when the
act or proceeding was done, taken or commenced
there was a vacancy in the office of a member.
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2004 Legal Profession Amendment No. s. 65
(2) All acts and proceedings of the Board or of
a person acting under a direction of the Board are,
despite the subsequent discovery of a defect in the
appointment of a member or that any other person
was disqualified from acting as, or was incapable of
being, a member, as valid as if the member had been
duly appointed and was qualified to act as, or was
capable of being, a member, and as if the Board had
been fully constituted.
Presumptions
9. In any proceeding by or against the Board, unless
evidence is given to the contrary, proof is not
required of -
(a) the constitution of the Board; or
(b) the appointment of any member.
SCHEDULE 2 - PROVISIONS WITH RESPECT
TO MEETINGS OF BOARD
Section 17A(6)
Interpretation
1. In this Schedule -
"meeting" does not include a hearing under Part 8.
Convening of meetings
2. (1) The chairperson of the Board, after giving
each member of the Board reasonable notice of a
meeting -
(a) may convene a meeting at any time; and
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s. 65 No. Legal Profession Amendment 2004
(b) must convene a meeting when requested
to do so by 2 or more other members.
(2) If the chairperson of the Board is absent
from duty or otherwise unable to perform the duties
of the office, a meeting may be convened, after
reasonable notice of the meeting has been given,
by -
(a) two or more members of the Board; or
(b) a person authorised by the Board to do
so.
(3) For the purposes of subclauses (1) and (2),
what constitutes reasonable notice is to be
determined by the Board.
Presiding at meetings
3. (1) The chairperson of the Board is to preside at
all meetings of the Board at which he or she is
present.
(2) If the chairperson of the Board is not
present at a meeting of the Board, a member of the
Board elected by the members present at the
meeting is to preside.
Quorum and voting at meetings
4. (1) Four members of the Board, one of whom
must be a person referred to in section 17A(1)(b),
constitute a quorum at a duly convened meeting of
the Board.
(2) Notwithstanding subclause (1), three
members of the Board, two of whom must be persons
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referred to in section 17A(1)(a) and one of whom
must be a person referred to in section 17A(1)(b),
constitute a quorum at a duly convened meeting of
the Board for the purpose of dealing with a matter
under section 86.
(3) A meeting of the Board under subclause (1)
at which a quorum is present is competent to
transact any business of the Board for which the
meeting is convened.
(4) A meeting of the Board under subclause (2)
at which a quorum is present is competent to
transact any business of the Board for which the
meeting is convened.
(5) At a meeting of the Board -
(a) the member of the Board presiding has a
deliberative vote only; and
(b) a question is decided by a majority of
votes of the members present and
voting; and
(c) if there is an equality of votes of the
members present and voting, the matter
stands adjourned until the next meeting.
Conduct of meetings
5. (1) Subject to this Act, the Board may regulate
the calling of, and the conduct of business at, its
meetings as it considers appropriate.
(2) The Board may permit members of the
Board to participate in a particular meeting or all
meetings by -
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(a) telephone; or
(b) video conference; or
(c) any other means of communication
approved by the Board.
(3) A member of the Board who participates in
a meeting under a permission granted under
subclause (2) is taken to be present at the meeting.
(4) Without limiting subclause (1), the Board
may allow a person to attend a meeting for the
purpose of advising or informing it on any matter.
Minutes
6. The Board is to keep accurate minutes of its
meetings.
Disclosure of interests
7. (1) If a member of the Board has or acquires an
interest (whether pecuniary or otherwise) that
would conflict with the proper performance of the
member's functions in relation to a matter being
considered, or about to be considered, by the Board,
the member must, as soon as practicable after the
relevant facts come to the member's knowledge,
disclose the nature of the interest to the Board.
(2) Unless the Board otherwise determines, a
member of the Board who has made a disclosure
under subclause (1) in relation to a matter must
not -
(a) be present during any deliberation of the
Board in relation to the matter; or
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2004 Legal Profession Amendment No. s. 65
(b) take part in any decision of the Board in
relation to the matter.
(3) For the purpose of making a determination
under subclause (2), the member to whom the
determination relates must not -
(a) be present during any deliberation of the
Board for the purpose of making the
determination; or
(b) take part in making the determination.
Meetings to be open to public
8. (1) Except as provided in subclause (2), a meeting
of the Board is to be open to the public.
(2) The Board may do any or all of the
following at a meeting if it considers that there are
compelling grounds to do so:
(a) make an order excluding any person
from the meeting;
(b) make an order prohibiting the reporting
or other disclosure of all or any of the
proceedings at the meeting or
prohibiting the reporting or other
disclosure of particular information in
respect of the meeting.
(3) Without limiting the range of grounds that
may be relevant for the purposes of subclause (2),
the Board may exercise its power under that
subclause if -
(a) it is dealing with privileged information
or information that has been
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communicated to the Board in
confidence; or
(b) it is dealing with information concerning
the personal affairs, finances or business
arrangements of a practitioner or any
other person; or
(c) the disclosure of the proceedings or the
information may be unfairly prejudicial
to the reputation of a practitioner or any
other person.
General procedure
9. Except as provided by this Act, the Board may
regulate its own proceedings.
Presumptions
10. In any proceeding by or against the Board,
unless evidence is given to the contrary, proof is not
required of -
(a) any resolution of the Board; and
(b) the presence of a quorum at any meeting
of the Board.
Schedule 3A inserted
66. After Schedule 3 to the Principal Act, the following
Schedule is inserted:
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2004 Legal Profession Amendment No. s. 66
SCHEDULE 3A - PROVISIONS WITH
RESPECT TO HEARINGS OF BOARD UNDER
PART 8
Section 93T
Convening of hearings
1. (1) The chairperson of the Board, after giving
each member of the Board reasonable notice of a
hearing, may convene a hearing of the Board at any
time.
(2) If the chairperson of the Board is absent
from duty or otherwise unable to perform the duties
of the office, a hearing of the Board may be
convened, after reasonable notice of the hearing has
been given, by a person authorised by the Board to
do so.
(3) For the purposes of subclauses (1) and (2),
what constitutes reasonable notice is to be
determined by the Board.
Presiding at hearings
2. (1) The chairperson of the Board is to preside at
all hearings of the Board at which he or she is
present.
(2) If the chairperson of the Board is not
present at a hearing of the Board, a member of the
Board elected by the members present is to preside
at the hearing.
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Quorum and voting at hearings
3. (1) Three members of the Board, two of whom
must be persons referred to in section 17A(1)(a) and
one of whom must be a person referred to in
section 17A(1)(b), constitute a quorum at a duly
convened hearing of the Board under section 80.
(2) Four members of the Board, one of whom
must be a person referred to in section 17A(1)(b),
constitute a quorum at a duly convened hearing of
the Board under section 82.
(3) At a hearing of the Board -
(a) the member of the Board presiding has a
deliberative vote only; and
(b) an issue is decided -
(i) by a majority of votes of the
members present and voting; or
(ii) in the negative if there is an
equality of votes of the members
present and voting.
Hearings to be open to public
4. (1) Except as provided in subclause (2), a hearing
of the Board is to be open to the public.
(2) The Board may do any or all of the
following at a hearing if it considers that there are
compelling grounds to do so:
(a) make an order that the hearing be
closed to the public;
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2004 Legal Profession Amendment No. s. 66
(b) make an order excluding any person
from the hearing;
(c) make an order prohibiting the reporting
or other disclosure of all or any of the
proceedings at the hearing or
prohibiting the reporting or other
disclosure of particular information in
respect of the hearing.
(3) Without limiting the range of grounds that
may be relevant for the purposes of subclause (2),
the Board may exercise its power under that
subclause if -
(a) it is dealing with privileged information
or information that has been
communicated to the Board in
confidence; or
(b) it is dealing with information concerning
the personal affairs, finances or business
arrangements of a practitioner or any
other person; or
(c) the disclosure of the proceedings or the
information may be unfairly prejudicial
to the reputation of a practitioner or any
other person.
(4) If the Board makes an order under
subclause (2)(b), the Board may determine who,
other than the parties or their representative, may
be present before it at any stage of the proceedings.
Procedure
5. (1) If the Board convenes a hearing, it is to serve
a notice in writing on the practitioner to attend the
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hearing, not less than 14 days before the date of the
hearing.
(2) The Board may require a party to a
complaint to provide evidence relating to the
complaint.
(3) In respect of a hearing of the Board, the
Board may do any or all of the following:
(a) summon any person whose evidence, in
the opinion of the Board, appears to be
material to the hearing;
(b) proceed to hold a hearing in the absence
of any person who has been duly
summoned to appear;
(c) take evidence by affidavit;
(d) take evidence on oath or affirmation
and, for that purpose, administer oaths
and affirmations;
(e) require any person to produce or to
authorise another person to produce any
documents or records, or class of
documents or records, in that person's
possession or subject to that person's
control that, in the opinion of the Board,
appear to be material to the hearing;
(f) require a person who appears at the
hearing to answer any questions that, in
the opinion of the Board, appear to be
material to the hearing;
(g) adjourn the hearing from place to place
and from time to time.
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(4) In respect of a hearing of the Board, the
Board is not bound to observe the rules of law
governing the admission of evidence but may inform
itself of any matter in such manner as it thinks fit.
(5) A person may not claim any professional
privilege as a reason for failure to comply with a
requirement made under subclause (3)(e) or (f)
except with the written consent of the person in
respect of whom the professional privilege is
claimed.
(6) Except as provided by this Act, the Board
may regulate its own procedure in relation to a
hearing.
(7) A person who fails without reasonable
excuse to -
(a) attend a hearing of the Board as
required by the Board; or
(b) take an oath or make an affirmation; or
(c) produce or authorise another person to
produce any documents when required
to do so; or
(d) answer any question when required to
do so; or
(e) assist in the course of an investigation -
is guilty of an offence.
Penalty: Fine not exceeding 10 penalty units.
(8) If a practitioner contravenes subclause (7),
the Board may refer the complaint that is the
subject matter of the hearing to the Tribunal by
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making an application to the Tribunal under
section 93D.
Representation
6. Each party to a complaint is entitled to be
represented by an advocate at a hearing of the
Board under that Part.
Disclosure of interests
7. (1) If a member of the Board has or acquires an
interest (whether pecuniary or otherwise) that
would conflict with the proper performance of the
member's functions in relation to a matter being
considered, or about to be considered, by the Board,
the member must, as soon as practicable after the
relevant facts come to the member's knowledge,
disclose the nature of the interest to the Board.
(2) Unless the Board otherwise determines, a
member of the Board who has made a disclosure
under subclause (1) in relation to a matter must
not -
(a) be present during any deliberation of the
Board in relation to the matter; or
(b) take part in any decision of the Board in
relation to the matter.
(3) For the purpose of making a determination
under subclause (2), the member to whom the
determination relates must not -
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2004 Legal Profession Amendment No. s. 67
(a) be present during any deliberation of the
Board for the purpose of making the
determination; or
(b) take part in making the determination.
Schedule 4 amended (Provisions with Respect to
Membership of Tribunal)
67. Schedule 4 to the Principal Act is amended as follows:
(a) by inserting "and includes the chairperson or
deputy chairperson of the Tribunal" after
"Tribunal" in the definition of "member" in
clause 1;
(b) by omitting the definition of "substitute
member" from clause 1;
(c) by inserting in clause 2 ", and is eligible for
reappointment" after "appointment";
(d) by omitting from clause 3(a) "or substitute
member";
(e) by omitting from clause 3(b) "or substitute
member";
(f) by omitting clauses 4 and 5 and substituting
the following clauses:
State Service Act 2000
4. (1) The State Service Act 2000 does not
apply in relation to a member in his or her
capacity as a member.
(2) A person may hold the office of
member in conjunction with State Service
employment.
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Remuneration of members and
conditions of appointment
5. (1) A member is entitled to be paid such
remuneration and allowances as the Minister
determines.
(2) A member who is a State Service
employee or State Service officer is not
entitled to remuneration or allowances under
subclause (1) except with the approval of the
Minister administering the State Service Act
2000.
(3) A member holds office on such
conditions in relation to matters not provided
for by this Act as are specified in the member's
instrument of appointment.
(g) by inserting the following paragraph after
paragraph (b) in clause 6(3):
(ba) fails, without reasonable excuse,
to comply with the member's
obligation under clause 7A; or
(h) by omitting from clause 6(4) "or substitute
member" twice occurring;
(i) by inserting the following clause after clause
7:
Disclosure of interests
7A. (1) If a member has or acquires an
interest (whether pecuniary or otherwise) that
would conflict with the proper performance of
the member's functions in relation to a matter
being heard, or about to be heard, by the
Tribunal, the member must, as soon as
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2004 Legal Profession Amendment No. s. 67
practicable after the relevant facts come to the
member's knowledge, disclose the nature of
the interest to the Tribunal.
(2) Unless the Tribunal otherwise
determines, a member who has made a
disclosure under subclause (1) in relation to a
matter must not -
(a) be present during any deliberation
of the Tribunal in relation to the
matter; or
(b) take part in any decision of the
Tribunal in relation to the matter.
(3) For the purpose of making a
determination under subclause (2), the
member to whom the determination relates
must not -
(a) be present during any deliberation
of the Tribunal for the purpose of
making the determination; or
(b) take part in making the
determination.
(j) by inserting the following clause after clause
8:
Presumptions
9. In any proceeding by or against the
Tribunal, unless evidence is given to the
contrary, proof is not required of -
(a) the constitution of the Tribunal; or
(b) the appointment of any member.
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Schedule 5 amended (Provisions with respect to
membership of trust)
68. Schedule 5 to the Principal Act is amended as follows:
(a) by omitting from clause 4 "Society" and
substituting "Board";
(b) by omitting from clause 6(3)(a) "Council" and
substituting "Board";
(c) by omitting from clause 6(4)(b) "Council" and
substituting "Board";
(d) by omitting from clause 7 "Council" and
substituting "Board".
Statutory Rules rescinded
69. The Statutory Rules specified in Schedule 2 are
rescinded.
Legal Aid Commission Act 1990 amended
70. Section 8 of the Legal Aid Commission Act 1990 is
amended by omitting subsection (3).
Payment to Board with respect to practising
certificate fees
71. The Society must pay to the Board any fee collected by
the Society in respect of practising certificates for the
period commencing on the commencement of section 9 of
this Act and ending on 31 December immediately
following that commencement.
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Recovery of costs by Board
72. The Board may recover from the Society as a debt due
to the Board any reasonable costs incurred in relation to
dealing with any complaint made under Part 8 of the
Principal Act as in force immediately before the
commencement of section 23 of this Act which has, by
virtue of Schedule 1, been dealt with by the Board under
the Principal Act as amended by this Act.
Savings and transitional provisions
73. The savings and transitional provisions set out in
Schedule 1 have effect.
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SCHEDULE 1 - SAVINGS AND TRANSITIONAL
PROVISIONS
Section 73
Acts, &c., done by or in relation to Board of Legal
Education
1. All acts, matters and things done or omitted before the
commencement of section 9 of this Act by or in relation to
the Board of Legal Education under the Principal Act as in
force immediately before that commencement have, on and
after that commencement, the same force and effect as if
they had been done or omitted by or in relation to the
Board.
Applications
2. (1) Any application which, immediately before the
commencement of section 23 of this Act, was made under
the Principal Act as in force immediately before that
commencement, other than an application under section
63 or 72 of the Principal Act as so in force, and was not
finally determined at that commencement, is to be dealt
with under the Principal Act as amended by this Act.
(2) Any application made to the Society or Council
before the commencement of section 9 of this Act and not
finally determined by the Society or Council before that
commencement is to be dealt with by the Board as if the
application had been made to that Board.
(3) Any application which, immediately before the
commencement of section 23 of this Act, was made by the
Society or Council under the Principal Act as in force
immediately before that commencement, other than an
application under section 63 or 72 of the Principal Act as
so in force, and was not finally determined at that
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2004 Legal Profession Amendment No. sch. 1
commencement, is taken on that commencement to be
made by the Board.
(4) Any application which, immediately before the
commencement of section 23 of this Act, was made to the
Supreme Court under section 80 of the Principal Act as in
force immediately before that commencement and was not
finally determined at that commencement is taken on that
commencement to be made under section 93L of the
Principal Act as inserted by this Act.
Notices
3. (1) Any notice made or served under the Principal Act,
as in force immediately before the commencement of
section 23 of this Act, is taken to have been made or
served and has effect under the Principal Act as amended
by this Act.
(2) Any notice made or served by the Council under
the Principal Act, as in force immediately before the
commencement of section 23 of this Act, is taken to have
been made or served by the Board and has effect under the
Principal Act as amended by this Act.
Complaints
4. Any complaint made under Part 8 of the Principal Act
as in force immediately before the commencement of
section 23 of this Act -
(a) that has not been dismissed or finally
determined by the Council; or
(b) in relation to which a hearing has not begun
under Part 8 of the Principal Act as in force
immediately before that commencement; or
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(c) in relation to which an application has not
been made under section 72 of the Principal
Act as in force immediately before that
commencement -
is to be dealt with by the Board as if it were a complaint
made to the Board under the Principal Act as amended by
this Act.
Hearing of complaints
5. (1) If, immediately before the commencement of section
23 of this Act, a hearing had begun into a complaint made
under Part 8 of the Principal Act as in force immediately
before that commencement, but had not been concluded,
the Council may -
(a) terminate the hearing; or
(b) continue and conclude the hearing as if this
Act had not been enacted.
(2) In making a decision under subclause (1), the
Council may have regard to such matters as it considers
appropriate but must have particular regard to -
(a) how far the hearing had progressed by the
commencement of section 23 of this Act; and
(b) fairness to the person who is the subject of the
hearing; and
(c) cost and inconvenience to any person; and
(d) any submissions made to the Board by or on
behalf of the person who is the subject of the
hearing.
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2004 Legal Profession Amendment No. sch. 1
(3) If a hearing is terminated under subclause (1)(a),
the complaint is to be dealt with as if it were a complaint
made to the Board under the Principal Act as amended by
this Act.
(4) The Council, upon the conclusion of the hearing
continued under subclause (1)(b), may take such action as
it considers appropriate as if this Act had not been
enacted.
Application to Tribunal
6. (1) If, before the commencement of section 23 of this
Act, an application was made under section 72 of the
Principal Act as in force immediately before that
commencement, and a hearing in relation to the
application had not commenced at that commencement,
the application is taken on that commencement to be
made under section 93D of the Principal Act as inserted by
this Act.
(2) If, immediately before the commencement of
section 23 of this Act, a hearing had begun into an
application made under section 72 of the Principal Act as
in force immediately before that commencement but had
not been concluded, the Tribunal, as constituted under the
Principal Act as in force immediately before that
commencement, may -
(a) terminate the hearing; or
(b) continue and conclude the hearing as if this
Act had not been enacted.
(3) If a decision is made to terminate the hearing
under subclause (2)(a), the application is to be dealt with
as if it were an application made to the Tribunal under
section 93D of the Principal Act as inserted by this Act.
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(4) In making a decision under subclause (2), the
Tribunal may have regard to such matters as it considers
appropriate but must have particular regard to -
(a) how far the hearing had progressed by the
commencement of section 23 of this Act; and
(b) fairness to the person who is the subject of the
hearing; and
(c) cost and inconvenience to the Tribunal, the
person who is the subject of the hearing or
other persons; and
(d) any submissions made to the Tribunal by or on
behalf of the person who is the subject of the
hearing.
(5) In a case to which subclause (2)(b) applies, the
Tribunal, on the conclusion of the hearing, may take such
action as it considers appropriate having regard to the
findings of the hearing, as if this Act had not been
enacted.
Application for rehearing
7. (1) If, before the commencement of section 23 of this
Act, an application was made under section 63 of the
Principal Act as in force immediately before that
commencement and a hearing in relation to the
application had not commenced at that commencement,
the application is taken on that commencement to be
made under section 87 of the Principal Act as inserted by
this Act.
(2) If, immediately before the commencement of
section 23 of this Act, a hearing had begun into an
application made under section 63(1)(a) of the Principal
Act as in force immediately before that commencement but
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2004 Legal Profession Amendment No. sch. 1
had not been concluded, the Tribunal, as constituted
under the Principal Act as in force immediately before
that commencement may -
(a) terminate the hearing; or
(b) continue and conclude the hearing as if this
Act had not been enacted.
(3) If a decision is made to terminate the hearing
under subclause (2)(a), the application is to be dealt with
as if it were an application made to the Tribunal under
section 87 of the Principal Act as inserted by this Act.
(4) In making a decision under subclause (2), the
Tribunal may have regard to such matters as it considers
appropriate but must have particular regard to -
(a) how far the hearing had progressed by the
commencement of section 23 of this Act; and
(b) fairness to the person who is the subject of the
hearing; and
(c) cost and inconvenience to the Tribunal, the
person who is the subject of the hearing or
other persons; and
(d) any submissions made to the Tribunal by or on
behalf of the person who is the subject of the
hearing.
(5) In a case to which subclause (2)(b) applies, the
Tribunal, on the conclusion of the hearing, may take such
action as it considers appropriate, as if this Act had not
been enacted.
(6) If, immediately before the commencement of
section 23 of this Act, a hearing had begun in relation to
an application made under section 63(1)(b) of the Principal
Act as in force immediately before that commencement,
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but had not been concluded, the Supreme Court is to
continue and conclude the hearing and take such action as
it considers appropriate, as if this Act had not been
enacted.
Orders
8. (1) An order made under section 76 of the Principal Act
as in force immediately before the commencement of
section 23 of this Act is taken to have been made under
section 93H(2) of the Principal Act as inserted by this Act.
(2) An action taken under section 79(2) of the
Principal Act as in force immediately before the
commencement of section 23 of this Act is taken to have
been taken under section 93K(2) of the Principal Act as
inserted by this Act.
(3) An order made under section 81 of the Principal
Act as in force immediately before the commencement of
section 23 of this Act is taken to have been made under
section 93M of the Principal Act as inserted by this Act.
(4) An order made under section 89 of the Principal
Act as in force immediately before the commencement of
section 23 of this Act is taken to have been made under
section 93N of the Principal Act as inserted by this Act.
Determinations under sections 61 and 65B
9. (1) A determination made under section 61(2) of the
Principal Act as in force immediately before the
commencement of section 23 of this Act is taken to have
been made under section 83(2) of the Principal Act as
inserted by this Act.
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2004 Legal Profession Amendment No. sch. 1
(2) A determination made under section 65B(2) of
the Principal Act as in force immediately before the
commencement of section 23 of this Act is taken to have
been made under section 85(8) of the Principal Act as
inserted by this Act.
Determinations imposing fines
10. Where a fine imposed on a person pursuant to Part 8
of the Principal Act as in force immediately before the
commencement of section 23 of this Act had not been paid,
or paid in full, immediately before that commencement,
that fine, or the unpaid balance of that fine, is due and
payable to the Board, and may be recovered as a debt due
to the Board in a court of competent jurisdiction.
Appeals
11. Where, before the commencement of section 23 of this
Act, an appeal was made in accordance with section 78 of
the Principal Act as in force immediately before that
commencement but has not been determined, that appeal
is taken to be made under section 93J of the Principal Act
as inserted by this Act.
Undertakings
12. (1) The requirement of a practitioner to give an
undertaking to the Council or Tribunal in accordance with
a determination or order under Part 8 of the Principal Act
as in force immediately before the commencement of
section 23 of this Act that has not been complied with
immediately before that commencement is taken to be a
requirement to give an undertaking to the Board or
Tribunal under the Principal Act as amended by this Act.
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(2) An undertaking given to the Council or Tribunal
by a practitioner under Part 8 of the Principal Act as in
force immediately before the commencement of section 23
of this Act and subsisting immediately before that
commencement is taken to be an undertaking given to the
Board or Tribunal under the Principal Act as amended by
this Act and any breach of the undertaking may be dealt
with and have consequences under the Principal Act as
amended by this Act in all respects the same as a failure
to honour an undertaking given to the Board or Tribunal
after that commencement.
Practising certificates
13. A practising certificate in force under the Principal
Act, as in force immediately before the commencement of
section 9 of this Act, continues in force for a period of 3
months after that commencement.
Legal Profession (Board of Legal Education) Rules
1994
14. The Legal Profession (Board of Legal Education) Rules
1994 made under section 22 of the Principal Act as in force
immediately before the commencement of section 10 of
this Act are taken to have been made under section 17I of
the Principal Act as inserted by this Act.
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SCHEDULE 2 - STATUTORY RULES RESCINDED
Section 69
Rules of Practice 1994 (No. 229 of 1994)
Legal Profession (Disciplinary Tribunal) Rules 1995 (No.
99 of 1995)
Rules of Practice Amendment 1995 (No. 176 of 1995)
Rules of Practice Amendment Rules 2000 (No. 182 of 2000)
Rules of Practice Amendment Rules 2003 (No. 33 of 2003)
Government Printer, Tasmania 135