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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
LEGAL PROFESSION AMENDMENT BILL 2013
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
PART 2 - LEGAL PROFESSION ACT 2007 AMENDED
3. Principal Act
4. Section 24 amended (Definitions)
5. Section 221 amended (Rules for Australian legal practitioners)
6. Section 221A inserted
221A. Rules for barristers
7. Section 224 amended (Prior consultation with professional
associations and Board)
8. Section 225 amended (Public notice of proposed legal profession
rules)
9. Section 228 amended (Availability of rules)
10. Section 427 amended (Making of complaints)
11. Section 428 amended (Complaints made more than 3 years after
conduct concerned)
12. Section 430 amended (Practitioner to be notified of complaint)
13. Section 431 amended (Submissions by practitioner)
14. Section 432A inserted
432A. Delivery up of documents
[Bill 75]-I
15. Section 433 amended (Summary dismissal of complaints)
16. Section 444 amended (Report to complainant)
17. Section 450 amended (Powers of Board after investigation)
18. Section 454 amended (Determination of Board)
19. Section 456 amended (Procedure for less serious complaint)
20. Section 458 amended (Application against determinations)
21. Section 461A inserted
461A. Dismissal of part of complaint
22. Section 462 amended (Complainant and practitioner to be
informed of action taken)
23. Section 464 amended (Applications to Tribunal)
24. Section 467 amended (Procedure at hearing of application)
25. Section 471 amended (Orders of Tribunal requiring official
implementation in this jurisdiction)
26. Section 480 amended (Compliance with determinations and
orders of Tribunal)
27. Section 497 amended (Register of Disciplinary Action)
28. Section 508 amended (Compliance with recommendations or
orders made under corresponding laws)
29. Section 512 amended (Referral of matter involving crimes)
30. Section 590 amended (Membership of Board)
31. Section 610 amended (Disciplinary Tribunal)
32. Schedule 2 amended (Provisions with respect to membership of
Board)
PART 3 - RIGHT TO INFORMATION ACT 2009 AMENDED
33. Principal Act
34. Section 6 amended (Exclusions of certain persons or bodies)
PART 4 - MISCELLANEOUS
35. Repeal of Act
2
LEGAL PROFESSION AMENDMENT BILL 2013
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
14 November 2013
(Brought in by the Minister for Justice, the Honourable Brian
Neal Wightman)
A BILL FOR
An Act to amend the Legal Profession Act 2007 and the
Right to Information Act 2009
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:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Legal Profession
Amendment Act 2013.
2. Commencement
This Act commences on a day to be proclaimed.
[Bill 75] 3
Legal Profession Amendment Act 2013
Act No. of
s. 3 Part 2 - Legal Profession Act 2007 Amended
PART 2 - LEGAL PROFESSION ACT 2007 AMENDED
3. Principal Act
In this Part, the Legal Profession Act 2007* is
referred to as the Principal Act.
4. Section 24 amended (Definitions)
Section 24 of the Principal Act is amended by
omitting "Association, Tasmanian Independent
Bar" from the definition of professional
association.
5. Section 221 amended (Rules for Australian legal
practitioners)
Section 221 of the Principal Act is amended by
inserting "other than those legal practitioners
practising solely as barristers" after
"practitioners".
6. Section 221A inserted
After section 221 of the Principal Act, the
following section is inserted in Division 2:
221A. Rules for barristers
(1) The Tasmanian Bar may make rules
about legal practice in this jurisdiction
engaged in by Australian legal
*No. 24 of 2007
4
Legal Profession Amendment Act 2013
Act No. of
Part 2 - Legal Profession Act 2007 Amended s. 7
practitioners who practise solely as
barristers.
(2) The rules made under subsection (1) may
adopt, either wholly or in part and with
or without modification, and either
specifically or by reference, the
Australian Bar Association model rules
whether made before or after the
commencement of this section.
(3) A reference in subsection (2) to the
Australian Bar Association model rules
includes a reference to an amendment of
those rules.
(4) The rules made under subsection (1) may
rescind Part 8 of the Rules of Practice
1994.
7. Section 224 amended (Prior consultation with
professional associations and Board)
Section 224 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "or the
Tasmanian Bar" after "authority";
(b) by omitting "Association, the Tasmanian
Independent Bar" from the definition of
professional association in subsection
(2).
5
Legal Profession Amendment Act 2013
Act No. of
s. 8 Part 2 - Legal Profession Act 2007 Amended
8. Section 225 amended (Public notice of proposed
legal profession rules)
Section 225 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "or the
Tasmanian Bar" after "authority";
(b) by inserting in subsection (2) "or the
Tasmanian Bar" after "authority";
(c) by inserting in subsection (3) "or the
Tasmanian Bar" after "authority";
(d) by inserting in subsection (4) "or the
Tasmanian Bar" after "However, the
prescribed authority";
(e) by inserting in subsection (4)(a) "or the
Tasmanian Bar" after "authority";
(f) by inserting in subsection (4)(b) "or the
Tasmanian Bar" after "authority".
9. Section 228 amended (Availability of rules)
Section 228 of the Principal Act is amended as
follows:
(a) by inserting "or the Tasmanian Bar"
after "The prescribed authority";
(b) by inserting "or the Tasmanian Bar"
after "the prescribed authority".
6
Legal Profession Amendment Act 2013
Act No. of
Part 2 - Legal Profession Act 2007 Amended s. 10
10. Section 427 amended (Making of complaints)
Section 427 of the Principal Act is amended as
follows:
(a) by inserting the following subsections
after subsection (1):
(1A) If a person wishes to make a
complaint about the conduct of an
Australian legal practitioner in a
law practice but does not know
the name of the practitioner, that
person may request the law
practice to advise that person of
the name of the practitioner.
(1B) If a law practice fails to comply
with a request under
subsection (1A) within 14 days of
receiving the request, the person
may make a complaint under this
Chapter against the law practice.
(b) by inserting in subsection (5) "and to
prosecute the complaint" after "Chapter".
11. Section 428 amended (Complaints made more than
3 years after conduct concerned)
Section 428(2)(b) of the Principal Act is
amended by omitting "involves" and substituting
"is capable of amounting to".
7
Legal Profession Amendment Act 2013
Act No. of
s. 12 Part 2 - Legal Profession Act 2007 Amended
12. Section 430 amended (Practitioner to be notified of
complaint)
Section 430 of the Principal Act is amended by
inserting after subsection (1) the following
subsection:
(1A) Subsection (1) does not apply if the
complaint is summarily dismissed by the
Board in any of the prescribed
circumstances.
13. Section 431 amended (Submissions by practitioner)
Section 431(3) of the Principal Act is amended
by omitting "permitted" and substituting
"specified".
14. Section 432A inserted
After section 432 of the Principal Act, the
following section is inserted in Part 4.2:
432A. Delivery up of documents
(1) The Board may require an Australian
legal practitioner whose conduct is the
subject of a complaint to deliver up to the
Board documents -
(a) held by the legal practitioner on
behalf of a person; and/or
(b) relating to any proceedings taken
or work done by the practitioner
on behalf of a person.
8
Legal Profession Amendment Act 2013
Act No. of
Part 2 - Legal Profession Act 2007 Amended s. 15
(2) The Australian legal practitioner in
respect of whom a requirement under
subsection (1) is made must comply with
the request notwithstanding that there is a
lien on the documents.
15. Section 433 amended (Summary dismissal of
complaints)
Section 433 of the Principal Act is amended as
follows:
(a) by omitting paragraphs (b) and (c) from
subsection (1) and substituting the
following paragraph:
(b) the conduct complained about has
been the subject of a previous
complaint under the Legal
Profession Act 1993 (the repealed
Act) or this Act that has been
dismissed; or
(b) by omitting from subsection (3)
"without" and substituting "after
commencing but before".
16. Section 444 amended (Report to complainant)
Section 444 of the Principal Act is amended as
follows:
(a) by inserting in subsection (1) "or the
Australian legal practitioner in relation to
whom a complaint is made" after "a
complainant";
9
Legal Profession Amendment Act 2013
Act No. of
s. 17 Part 2 - Legal Profession Act 2007 Amended
(b) by inserting in subsection (1) "or
practitioner" after "the complainant";
(c) by inserting in subsection (2)(b) "or the
Australian legal practitioner" after
"complainant".
17. Section 450 amended (Powers of Board after
investigation)
Section 450 of the Principal Act is amended as
follows:
(a) by omitting from paragraph (a)
"amounts" and substituting "is capable of
amounting";
(b) by omitting from paragraph (b)
"amounts" and substituting "is capable of
amounting";
(c) by omitting from paragraph (c)
"amounts" and substituting "is capable of
amounting";
(d) by omitting from paragraph (d)
"amounts" and substituting "is capable of
amounting";
(e) by omitting from paragraph (e)
"amounts" and substituting "is capable of
amounting".
10
Legal Profession Amendment Act 2013
Act No. of
Part 2 - Legal Profession Act 2007 Amended s. 18
18. Section 454 amended (Determination of Board)
Section 454(2)(l) of the Principal Act is
amended by inserting "and who has been
approved by the Board" after "certificate".
19. Section 456 amended (Procedure for less serious
complaint)
Section 456(7) of the Principal Act is amended
by inserting after paragraph (a) the following
paragraph:
(ab) that no further action be taken against the
Australian legal practitioner if the Board
is satisfied that -
(i) the practitioner is generally
competent and diligent; and
(ii) there has been no substantiated
complaint (other than the
complaint that led to the notice
being served under
subsection (1)) about the conduct
of the practitioner within the last
5 years;
20. Section 458 amended (Application against
determinations)
Section 458 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(a)
"heard" and substituting "determined";
11
Legal Profession Amendment Act 2013
Act No. of
s. 21 Part 2 - Legal Profession Act 2007 Amended
(b) by inserting the following subsection
after subsection (2):
(3) The determination of a matter
pursuant to an application made
under subsection (1)(a) is to be by
way of a re-hearing.
21. Section 461A inserted
After section 461 of the Principal Act, the
following section is inserted in Part 4.6:
461A. Dismissal of part of complaint
The Board may dismiss any part or parts
of a complaint or exercise any of its
powers under Chapter 4 or 6 in respect of
any part or parts of a complaint.
22. Section 462 amended (Complainant and
practitioner to be informed of action taken)
Section 462 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(b)
"action taken" and substituting
"determination made";
(b) by inserting the following subsections
after subsection (1):
(1A) Notwithstanding
subsection (1)(a), the Board is not
required to notify the Australian
12
Legal Profession Amendment Act 2013
Act No. of
Part 2 - Legal Profession Act 2007 Amended s. 23
legal practitioner of the receipt of
a complaint about the practitioner
if the Board has referred the
subject matter of the complaint to
the Commissioner of Police, the
Commissioner of Taxation, the
Australian Securities and
Investments Commission or the
Australian Federal Police
Commissioner pursuant to
section 512, as the case may
require.
(1B) Subsection (1) does not apply if
the complaint has been
summarily dismissed by the
Board in any of the circumstances
prescribed under section 430(1A).
(c) by inserting in subsection (2)(a) "other
than a summary dismissal to which
subsection (1B) applies" after
"complaint".
23. Section 464 amended (Applications to Tribunal)
Section 464 of the Principal Act is amended by
omitting subsection (2) and substituting the
following subsection:
(2) The Board may refer a complaint to the
Tribunal with a recommendation that the
Tribunal make a compensation order.
13
Legal Profession Amendment Act 2013
Act No. of
s. 24 Part 2 - Legal Profession Act 2007 Amended
24. Section 467 amended (Procedure at hearing of
application)
Section 467 of the Principal Act is amended by
inserting after subsection (5) the following
subsection:
(5A) A party to any application made under
this Division may include any party to a
complaint made under section 427 to
which the application relates.
25. Section 471 amended (Orders of Tribunal requiring
official implementation in this jurisdiction)
Section 471 of the Principal Act is amended by
omitting paragraph (a) and substituting the
following paragraph:
(a) an order that the name of an Australian
legal practitioner be removed from the
local roll by the Registrar of the Supreme
Court.
26. Section 480 amended (Compliance with
determinations and orders of Tribunal)
Section 480 of the Principal Act is amended by
omitting subsection (3) and substituting the
following subsection:
(3) If the Tribunal makes an order that the
name of an Australian legal practitioner
be removed from the local roll by the
Registrar of the Supreme Court, the
Registrar of the Supreme Court is to
14
Legal Profession Amendment Act 2013
Act No. of
Part 2 - Legal Profession Act 2007 Amended s. 27
remove the name of the practitioner from
the local roll.
27. Section 497 amended (Register of Disciplinary
Action)
Section 497(2) of the Principal Act is amended
as follows:
(a) by inserting the following paragraph after
paragraph (c):
(ca) details of the conduct that was the
subject of the complaint in
respect of which the disciplinary
action was taken; and
(b) by inserting in paragraph (d) "including
the final determination and the reasons
for the determination" after "taken".
28. Section 508 amended (Compliance with
recommendations or orders made under
corresponding laws)
Section 508 of the Principal Act is amended by
omitting subsection (2) and substituting the
following subsection:
(2) If a corresponding disciplinary body
makes an order that the name of an
Australian legal practitioner be removed
from the roll of lawyers under this Act by
the Registrar of the Supreme Court, the
Registrar is to remove the name of the
practitioner from the roll.
15
Legal Profession Amendment Act 2013
Act No. of
s. 29 Part 2 - Legal Profession Act 2007 Amended
29. Section 512 amended (Referral of matter involving
crimes)
Section 512 of the Principal Act is amended as
follows:
(a) by omitting subsection (1) and
substituting the following subsection:
(1) If, during the course of any
investigation or hearing, the
Board suspects on reasonable
grounds that an offence has been
committed, the Board must refer
the suspected offence to -
(a) the Commissioner of
Police; or
(b) the Commissioner of
Taxation; or
(c) the Australian Securities
and Investment
Commission; or
(d) the Australian Federal
Police Commissioner -
as the case may require.
(b) by omitting from subsection (2) "the
Commissioner of Police" first occurring
and substituting "a person referred to in
subsection (1)(a), (b), (c) or (d)";
(c) by omitting from subsection (2)(a)(ii)
"the Commissioner of Police" and
16
Legal Profession Amendment Act 2013
Act No. of
Part 2 - Legal Profession Act 2007 Amended s. 30
substituting "a person referred to in
subsection (1)(a), (b), (c) or (d)";
(d) by omitting from subsection (2)(b)(ii)
"the Commissioner of Police" and
substituting "a person referred to in
subsection (1)(a), (b), (c) or (d)".
30. Section 590 amended (Membership of Board)
Section 590(1)(b) of the Principal Act is
amended by omitting "jointly by the Tasmanian
Independent Bar and the Tasmanian Bar
Association" and substituting "by the Tasmanian
Bar".
31. Section 610 amended (Disciplinary Tribunal)
Section 610(2)(a) of the Principal Act is
amended by omitting "2 legal practitioners to be
nominated by the Tasmanian Bar Association, 2
legal practitioners to be nominated by the
Tasmanian Independent Bar" and substituting "4
legal practitioners nominated by the Tasmanian
Bar".
32. Schedule 2 amended (Provisions with respect to
membership of Board)
Clause 8(b) of Schedule 2 to the Principal Act is
amended by omitting "Tasmanian Independent
Bar and Tasmanian Bar Association" and
substituting "Tasmanian Bar".
17
Legal Profession Amendment Act 2013
Act No. of
s. 33 Part 3 - Right to Information Act 2009 Amended
PART 3 - RIGHT TO INFORMATION ACT 2009
AMENDED
33. Principal Act
In this Part, the Right to Information Act 2009*
is referred to as the Principal Act.
34. Section 6 amended (Exclusions of certain persons or
bodies)
Section 6(1) of the Principal Act is amended by
inserting after paragraph (k) the following
paragraph:
(ka) the Legal Profession Board of Tasmania;
*No. 70 of 2009
18
Legal Profession Amendment Act 2013
Act No. of
Part 4 - Miscellaneous s. 35
PART 4 - MISCELLANEOUS
35. Repeal of Act
This Act is repealed on the three hundred and
sixty fifth day from the day on which it
commences.
Government Printer, Tasmania 19