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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Legal Profession Bill 2007
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Interpretation
3. Terms used in this Act 3
4. Terms relating to lawyers 18
5. Terms relating to legal practitioners 18
6. Terms relating to associates and principals of law
practices 18
7. Home jurisdiction 20
8. Suitability matters 21
9. Information notices 23
10. References to conviction and quashing a
conviction 23
Part 3 -- Reservation of legal work
and related matters
Division 1 -- Preliminary
11. Purposes 25
Division 2 -- General prohibitions on
unqualified practice
12. Prohibition on engaging in legal practice when not
entitled 25
13. Prohibition on representing or advertising
entitlement to engage in legal practice when not
entitled 27
14. Presumptions about taking or using name, title or
description specified in regulations 28
245--2 page i
Legal Profession Bill 2007
Contents
15. Associates who are disqualified or convicted
persons 29
16. Sharing income with unqualified persons 30
17. Permitting or assisting unqualified persons to
practise 30
Division 3 -- General
18. Prohibited person must not act as executor or
trustee 30
19. Professional discipline 31
Part 4 -- Admission of local lawyers
Division 1 -- Preliminary
20. Purposes 32
Division 2 -- Eligibility and suitability for
admission
21. Eligibility for admission 32
22. Suitability for admission 33
23. Early consideration of suitability 33
24. Referral of matters to State Administrative
Tribunal 34
Division 3 -- Admission to the legal profession
25. Application for admission 35
26. Admission by the Supreme Court 35
27. Objection to admission 36
28. Roll of persons admitted to the legal profession 36
29. Local lawyer is an officer of the Supreme Court 37
Division 4 -- Functions of Legal Practice Board
in relation to admissions
30. Board to advise on applications for admission 37
31. Compliance certificates 37
32. Consideration of applicant's eligibility and
suitability 38
Division 5 -- Miscellaneous
33. Board is respondent to application under this Part 39
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Legal Profession Bill 2007
Contents
Part 5 -- Legal practice by
Australian legal practitioners
Division 1 -- Preliminary
34. Purposes 40
Division 2 -- Legal practice in this jurisdiction
by Australian legal practitioners
35. Entitlement of Australian legal practitioner to
practise in this jurisdiction 40
36. WA government lawyers taken to be local legal
practitioners 40
Division 3 -- Local practising certificates
generally
37. Local practising certificates 42
38. Suitability to hold local practising certificate 42
39. Duration of local practising certificate 44
40. Professional indemnity insurance 45
41. Local legal practitioner is officer of Supreme Court 45
Division 4 -- Grant or renewal of local
practising certificate
42. Application for grant or renewal of local practising
certificate 45
43. Manner of application and fees 48
44. Timing of application for renewal of local
practising certificate 48
45. Grant or renewal of local practising certificate 50
Division 5 -- Conditions on local practising
certificates
46. Conditions generally 51
47. Conditions imposed by Board 52
48. Imposition or variation of conditions pending
criminal proceedings 54
49. Conditions imposed on interstate admission 55
50. Restricted legal practice 55
51. Notification of offence 57
52. Conditions imposed by legal profession rules 58
53. Compliance with conditions 58
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Legal Profession Bill 2007
Contents
Division 6 -- Amendment, suspension or
cancellation of local practising certificates
54. Application of this Division 58
55. Grounds for amending, suspending or cancelling
local practising certificate 58
56. Amending, suspending or cancelling local
practising certificate 59
57. Operation of amendment, suspension or
cancellation of local practising certificate 60
58. Immediate suspension of local practising
certificate 62
59. Other ways of amending, suspending or cancelling
local practising certificate 63
60. Relationship of this Division with Part 13 63
Division 7 -- Special powers in relation to local
practising certificates -- show cause
events
61. Applicant for local practising certificate -- show
cause event 64
62. Holder of local practising certificate -- show cause
event 64
63. Refusal, amendment, suspension or cancellation of
local practising certificate -- failure to show cause 65
64. Restriction on making further applications 66
65. Power to renew practising certificate or defer
action in special circumstances 66
66. Relationship of this Division with Part 13 67
Division 8 -- Further provisions relating to
local practising certificates
67. Return of local practising certificate 67
Division 9 -- Interstate legal practitioners
68. Requirement for professional indemnity insurance 68
69. Extent of entitlement of interstate legal practitioner
to practise in this jurisdiction 68
70. Additional conditions on practice of interstate legal
practitioners 69
71. Notification requirements for interstate legal
practitioners 70
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Legal Profession Bill 2007
Contents
72. Special provisions about interstate legal
practitioner engaging in unsupervised legal
practice in this jurisdiction 72
73. Interstate legal practitioner is officer of Supreme
Court 74
Division 10 -- Miscellaneous provisions relating
to practice
74. Jurisdiction protocols 74
75. Consideration and investigation of applicants or
holders 75
76. Register of local practising certificates 76
77. Orders about conditions 77
78. Review of decisions of Board 77
79. Interstate government lawyers 77
80. Fees 79
Part 6 -- Inter-jurisdictional
provisions regarding admission
and practising certificates
Division 1 -- Preliminary
81. Purpose 80
82. Other requirements not affected 80
Division 2 -- Notifications to be given by local
authorities to interstate authorities
83. Official notification to other jurisdictions of
applications for admission and associated matters 80
84. Official notification to other jurisdictions of
removals from local roll 81
85. Board to notify other jurisdictions of certain
matters 81
Division 3 -- Notifications to be given by
lawyers to local authorities
86. Lawyer to give notice of removal of name from
interstate roll 82
87. Lawyer to give notice of interstate orders 83
88. Lawyer to give notice of foreign regulatory action 83
89. Provisions relating to requirement to notify 83
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Legal Profession Bill 2007
Contents
Division 4 -- Taking of action by local
authorities in response to notifications
received
90. Peremptory removal of local lawyer's name from
local roll following removal in another jurisdiction 84
91. Peremptory cancellation of local practising
certificate following removal of name from
interstate roll 85
92. Show cause procedure for removal of lawyer's
name from local roll following foreign regulatory
action 85
93. Show cause procedure for cancellation of local
practising certificate following foreign regulatory
action 86
94. Order for non-removal of name 87
95. Order for non-cancellation of local practising
certificate 88
96. Local authority may give information to other local
authorities 89
Part 7 -- Incorporated legal practices
and multi-disciplinary
partnerships
Division 1 -- Preliminary
97. Purposes 90
98. Definitions 90
Division 2 -- Incorporated legal practices
providing legal services
99. Nature of incorporated legal practice 91
100. Non-legal services and businesses of incorporated
legal practices 92
101. Corporations eligible to be incorporated legal
practice 92
102. Notice of intention to start providing legal services 93
103. Prohibition on representations that corporation is
incorporated legal practice 93
104. Notice of corporation ceasing to engage in legal
practice 94
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Legal Profession Bill 2007
Contents
105. Incorporated legal practice must have legal
practitioner director 94
106. Obligations of legal practitioner director relating to
misconduct 96
107. Incorporated legal practice without legal
practitioner director 97
108. Obligations and privileges of practitioners who are
officers or employees 98
109. Professional indemnity insurance 99
110. Conflicts of interest 100
111. Disclosure obligations 100
112. Effect of non-disclosure on provision of certain
services 102
113. Application of legal profession rules 102
114. Requirements relating to advertising 102
115. Extension of vicarious liability relating to failure to
account, pay or deliver and dishonesty to
incorporated legal practices 103
116. Sharing of receipts, revenue or other income 103
117. Disqualified persons 104
118. Audit of incorporated legal practice 104
119. Banning of incorporated legal practices 106
120. Disqualification from managing incorporated legal
practice 108
121. Disclosure of information to Australian Securities
and Investments Commission 109
122. External administration proceedings under
Corporations Act 109
123. External administration proceedings under other
legislation 110
124. Incorporated legal practice is subject to
receivership under this Act and external
administration under Corporations Act 111
125. Incorporated legal practice that is subject to
receivership under this Act and external
administration under other legislation 112
126. Cooperation between courts 113
127. Relationship of Act to constitution of incorporated
legal practice 113
128. Relationship of Act to legislation establishing
incorporated legal practice 113
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Legal Profession Bill 2007
Contents
129. Relationship of Act to Corporations legislation 113
130. Undue influence 114
Division 3 -- Multi-disciplinary partnerships
131. Nature of multi-disciplinary partnership 114
132. Conduct of multi-disciplinary partnership 115
133. Notice of intention to start practice in
multi-disciplinary partnership 115
134. General obligations of legal practitioner partners 115
135. Obligations of legal practitioner partner relating to
misconduct 116
136. Actions of partner who is not Australian legal
practitioner 117
137. Obligations and privileges of practitioners who are
partners or employees 117
138. Conflicts of interest 118
139. Disclosure obligations 118
140. Effect of non-disclosure on provision of certain
services 119
141. Application of legal profession rules 120
142. Requirements relating to advertising 120
143. Sharing of receipts, revenue or other income 121
144. Disqualified persons 121
145. Prohibition on partnerships with certain partners
who are not Australian legal practitioners 121
146. Undue influence 122
Division 4 -- Miscellaneous
147. Obligations of individual practitioners not affected 123
148. Regulations 123
Part 8 -- Legal practice by foreign
lawyers
Division 1 -- Preliminary
149. Purpose 125
150. Definitions 125
151. This Part does not apply to Australian legal
practitioners 126
Division 2 -- Practice of foreign law
152. Requirement for registration 126
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Legal Profession Bill 2007
Contents
153. Entitlement of Australian-registered foreign lawyer
to practise in this jurisdiction 127
154. Scope of practice 127
155. Form of practice 128
156. Application of Australian professional ethical and
practice standards 129
157. Designation 130
158. Letterhead and other identifying documents 131
159. Advertising 132
160. Foreign lawyer employing Australian legal
practitioner 133
161. Trust money and trust accounts 133
162. Professional indemnity insurance 134
163. Fidelity cover 135
Division 3 -- Local registration of foreign
lawyers generally
164. Local registration of foreign lawyers 135
165. Duration of registration 135
166. Locally registered foreign lawyer is not officer of
Supreme Court 136
Division 4 -- Application for grant or renewal
of local registration
167. Application for grant or renewal of registration 136
168. Manner of application 136
169. Requirements regarding applications for grant or
renewal of registration 137
Division 5 -- Grant or renewal of registration
170. Grant or renewal of registration 140
171. Requirement to grant or renew registration if
criteria satisfied 140
172. Refusal to grant or renew registration 141
Division 6 -- Amendment, suspension or
cancellation of local registration
173. Application of this Division 143
174. Grounds for amending, suspending or cancelling
local registration 143
175. Amending, suspending or cancelling registration 144
176. Operation of amendment, suspension or
cancellation of registration 146
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Legal Profession Bill 2007
Contents
177. Other ways of amending or cancelling registration 147
178. Relationship of this Division with Part 13 147
Division 7 -- Special powers in relation to local
registration -- show cause events
179. Applicant for local registration -- show cause
event 148
180. Locally registered foreign lawyer -- show cause
event 148
181. Refusal, amendment, suspension or cancellation of
local registration -- failure to show cause 149
182. Restriction on making further applications 149
183. Relationship of this Division with Part 13 150
Division 8 -- Further provisions relating to
local registration
184. Immediate suspension of registration 150
185. Automatic cancellation of registration on grant of
practising certificate 151
186. Suspension or cancellation of registration not to
affect disciplinary processes 151
187. Return of local registration certificate on
amendment, suspension or cancellation of
registration 151
Division 9 -- Conditions on registration
188. Conditions generally 152
189. Conditions imposed by Board 152
190. Imposition or variation of conditions pending
criminal proceedings 153
191. Condition regarding notification of offence 154
192. Conditions imposed by legal profession rules 154
193. Compliance with conditions 154
Division 10 -- Interstate-registered foreign
lawyers
194. Extent of entitlement of interstate-registered
foreign lawyer to practise in this jurisdiction 155
195. Additional conditions on practice of
interstate-registered foreign lawyers 156
196. Notification requirements for interstate-registered
foreign lawyers 156
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Legal Profession Bill 2007
Contents
Division 11 -- Miscellaneous
197. Consideration and investigation of applicants and
locally registered foreign lawyers 158
198. Register of locally registered foreign lawyers 158
199. Publication of information about locally registered
foreign lawyers 159
200. State Administrative Tribunal orders about
conditions 159
201. Exemption by Board 159
202. Membership of professional association 159
203. Review by State Administrative Tribunal 159
Part 9 -- Trust money and trust
accounts
Division 1 -- Preliminary
204. Purposes 161
205. Definitions 161
206. Money involved in financial services or
investments 164
207. Determinations about status of money 165
208. Application of Part to law practices and trust
money 165
209. Trust money protocols 166
210. When money is received 167
211. Discharge by legal practitioner associate of
obligations of law practice 167
212. Liability of principals of law practices 168
213. Former practices, principals and associates 168
Division 2 -- Trust accounts and trust money
214. Maintenance of general trust account 169
215. Certain trust money to be deposited in general trust
account 169
216. Holding, disbursing and accounting for trust
money 170
217. Manner of withdrawal of trust money from general
trust account 171
218. Controlled money 171
219. Manner of withdrawal of controlled money from
controlled money account 172
220. Transit money 173
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Legal Profession Bill 2007
Contents
221. Trust money subject to specific powers 173
222. Trust money received in the form of cash 174
223. Protection of trust money 175
224. Intermixing money 175
225. Dealing with trust money: legal costs and
unclaimed money 176
226. Deficiency in trust account 176
227. Reporting certain irregularities and suspected
irregularities 177
228. Keeping trust records 178
229. False names 178
Division 3 -- Investigations
230. Appointment of investigators 179
231. Investigations 179
232. Application of Part 15 179
233. Investigator's report and confidentiality 180
234. When costs of investigation are debt 180
Division 4 -- External examinations
235. Designation of external examiners 181
236. Designation and appointment of associates as
external examiners 181
237. Trust records to be externally examined 181
238. Examination of affairs in connection with
examination of trust records 182
239. Final examination of trust records 182
240. Carrying out examination 183
241. External examiner's report and confidentiality 184
242. Law practice liable for costs of examination 184
Division 5 -- Provisions relating to ADIs
243. ADI not subject to certain obligations and
liabilities 184
244. Reports, records and information 185
Division 6 -- Miscellaneous
245. Restrictions on receipt of trust money 186
246. Restrictions on receipt of trust money by interstate
legal practitioners 187
247. Application of Part to incorporated legal practices
and multi-disciplinary partnerships 187
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Legal Profession Bill 2007
Contents
248. Disclosure to clients -- money not received or held
as trust money 187
249. Disclosure of accounts used to hold money
entrusted to law practice or legal practitioner
associate 188
250. Regulations 189
Part 10 -- Costs disclosure and
assessment
Division 1 -- Preliminary
251. Purposes 191
252. Definitions 191
253. Terms relating to third party payers 192
Division 2 -- Application of this Part
254. Application of Part -- first instructions rule 193
255. Part also applies by agreement or at client's
election 193
256. Displacement of Part 194
257. How and where a client first instructs a law
practice 195
258. When a matter has a substantial connection with
this jurisdiction 195
259. What happens when different laws apply to a
matter 196
Division 3 -- Costs disclosure
260. Disclosure of costs to clients 197
261. Disclosure if another law practice is to be retained 200
262. How and when disclosure must be made 200
263. Exceptions to requirement for disclosure 200
264. Additional disclosure -- settlement of litigious
matters 203
265. Additional disclosure -- uplift fees 204
266. Form of disclosure 204
267. Ongoing obligation to disclose 204
268. Effect of failure to disclose 204
269. Progress reports 206
270. Disclosure to associated third party payers 206
Division 4 -- Legal costs generally
271. Basis on which legal costs are recoverable 207
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Legal Profession Bill 2007
Contents
272. Security for legal costs 208
273. Interest on unpaid legal costs 208
Division 5 -- Legal costs determinations
274. Terms used in this Division 208
275. Legal costs determinations 209
276. Review of costs determinations 210
277. Inquiries by Legal Costs Committee 210
278. Notice and submissions in respect of determination 211
279. Report and publication of costs determinations 212
280. Effect of costs determination 212
281. Reports 213
Division 6 -- Costs agreements
282. Making costs agreements 213
283. Conditional costs agreements 214
284. Conditional costs agreements involving uplift fees 216
285. Contingency fees are prohibited 217
286. Effect of costs agreement 217
287. Certain costs agreements void 217
288. Setting aside costs agreements 218
Division 7 -- Billing
289. Legal costs cannot be recovered unless bill has
been given 221
290. Bills 221
291. Notification of client's rights 223
292. Request for itemised bill 224
293. Interim bills 224
Division 8 -- Costs assessment
294. Meaning of "client" 225
295. Application by clients or third party payers for
costs assessment 225
296. Application for costs assessment by law practice
retaining another law practice 228
297. Application for costs assessment by law practice
giving bill 229
298. Consequences of application 229
299. Persons to be notified of application 229
300. Procedure on assessment 230
301. Criteria for assessment 230
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Legal Profession Bill 2007
Contents
302. Assessment of costs by reference to costs
agreement 231
303. Assessment of costs by reference to costs
determination 232
304. Costs of assessment 232
305. Certification and interest 233
306. Assessment of Legal Aid Commission bill 233
307. Referral for disciplinary action 233
308. Review of assessment 234
309. Contracting out of Division by sophisticated clients 234
Division 9 -- Legal Costs Committee
Subdivision 1 -- Establishment
310. Legal Costs Committee 234
311. Nominations 235
312. Term of office 235
313. Deputy chairperson 236
314. Deputy members 236
315. Removal and resignation 237
316. Leave of absence 237
317. Remuneration and allowances 237
Subdivision 2 -- Procedure
318. Meetings 237
319. Voting 238
320. Quorum 238
321. Legal Costs Committee to determine procedures 238
Subdivision 3 -- Support and financial provisions
322. Use of staff and facilities of departments 239
323. Funds 239
324. Application of Financial Management Act 2006
and Auditor General Act 2006 240
Division 10 -- Miscellaneous
325. Application of Part to incorporated legal practices
and multi-disciplinary partnerships 240
326. Imputed acts, omissions or knowledge 241
Part 11 -- Professional indemnity
insurance
327. Terms used in this Part 242
328. Regulations as to professional indemnity insurance 242
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Legal Profession Bill 2007
Contents
329. Law Mutual (WA) 244
330. Law Mutual Fund 244
331. PII management committee 245
332. Delegation 245
Part 12 -- Fidelity cover
Division 1 -- Preliminary
333. Purpose 247
334. Definitions 247
335. Time of default 248
Division 2 -- Solicitors' Guarantee Fund
336. Establishment of Guarantee Fund 249
337. Payment of contributions by local legal
practitioners 250
338. Payment of contributions by interstate legal
practitioners 251
339. Levy to supplement Guarantee Fund 251
340. Failure to pay levy 252
341. Insurance 252
342. Investment of Guarantee Fund 253
343. Borrowing 253
Division 3 -- Fidelity cover
Subdivision 1 -- Application provisions
344. Application to Australian-registered foreign
lawyers 253
345. Application to incorporated legal practices 254
346. Application to multi-disciplinary partnerships 254
347. Application to sole practitioners whose practising
certificates lapse 255
Subdivision 2 -- Defaults to which this Division
applies
348. Meaning of "relevant jurisdiction" 256
349. Defaults to which this Division applies 257
350. Defaults relating to financial services or
investments 257
Subdivision 3 -- Claims about defaults
351. Claims about defaults 259
352. Time limit for making claims 259
353. Advertisements 260
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Legal Profession Bill 2007
Contents
354. Time limit for making claims following
advertisement 261
355. Claims not affected by certain matters 262
356. Investigation of claims 262
357. Advance payments 262
Subdivision 4 -- Determination of claims
358. Determination of claims 263
359. Maximum amount allowable 264
360. Costs 265
361. Interest 265
362. Reduction of claim because of other benefits 265
363. Subrogation 266
364. Repayment of certain amounts 267
365. Notification of delay in making decision 267
366. Notification of decision 268
367. Proceedings against Trust restrained 268
368. Proceedings to establish claim 269
369. Court proceedings 269
Subdivision 5 -- Payments from Guarantee Fund for
defaults
370. Application of Guarantee Fund 270
371. Caps on payments 270
372. Sufficiency of Guarantee Fund 271
Subdivision 6 -- Claims by law practices or
associates
373. Claims by law practices or associates about
defaults 272
374. Claims by law practices or associates about
notional defaults 272
Subdivision 7 -- Defaults involving interstate
elements
375. Concerted interstate defaults 273
376. Defaults involving interstate elements where
committed by one associate only 274
Subdivision 8 -- Inter-jurisdictional provisions
377. Fidelity protocols 275
378. Forwarding of claims 275
379. Investigation of defaults to which this Division
applies 276
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Legal Profession Bill 2007
Contents
380. Investigation of defaults to which a corresponding
law applies 276
381. Investigation of concerted interstate defaults and
other defaults involving interstate elements 277
382. Recommendations by Trust to corresponding
authorities 277
383. Recommendations to and decisions by Trust after
receiving recommendations from corresponding
authorities 277
384. Request to another jurisdiction to investigate
aspects of claim 278
385. Request from another jurisdiction to investigate
aspects of claim 278
386. Cooperation with other authorities 278
Division 4 -- Interest on trust accounts
387. ADI to pay interest on trust accounts to Trust 279
388. Application of interest 280
389. Audit of expenditure 282
390. Application of Financial Management Act 2006
and Auditor General Act 2006 283
Division 5 -- Legal Contribution Trust
391. Establishment of Trust 283
392. Relationship to Crown 283
393. Constitution of Trust 284
394. Chairperson 284
395. Deputies 285
396. Vacation of office 285
397. Meetings 285
398. Voting 286
399. Functions of the Trust 286
400. Execution of documents by the Trust 286
Part 13 -- Complaints and discipline
Division 1 -- Preliminary
401. Purposes 288
Division 2 -- Key concepts
402. Unsatisfactory professional conduct 288
403. Professional misconduct 288
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Legal Profession Bill 2007
Contents
404. Conduct capable of constituting unsatisfactory
professional conduct or professional misconduct 289
Division 3 -- Application
405. Practitioners to whom this Part applies 290
406. Application of Part to lawyers, former lawyers and
former practitioners 290
407. Conduct to which this Part applies -- generally 291
408. Conduct to which this Part applies -- insolvency,
serious offences and tax offences 292
Division 4 -- Complaints about Australian legal
practitioners
409. Complaints 293
410. Making of complaints 293
411. Time of complaint 294
412. Further information and verification 295
413. Practitioner to be notified of complaint 295
414. Submissions by practitioner 296
415. Summary dismissal of complaints 296
416. Withdrawal of complaint 297
Division 5 -- Mediation
417. Mediation of complaints 299
418. Facilitation of mediation 299
419. Admissibility of evidence and documents 299
420. Order following mediation 300
Division 6 -- Investigation by Complaints
Committee
421. Investigations 300
422. Application of Part 15 301
423. Referral of matters for costs assessment 301
Division 7 -- Decision of Complaints Committee
424. Decision of Complaints Committee after
investigation 301
425. Dismissal of complaint 301
426. Summary conclusion of complaint procedure 302
427. Record of decision 303
428. Referrals to State Administrative Tribunal 303
429. Costs 303
Division 8 -- General procedural matters
430. Procedure 304
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Legal Profession Bill 2007
Contents
431. Duty to deal with complaints efficiently and
expeditiously 304
432. Complainant and practitioner to be informed of
action taken 304
433. Parties 305
434. Proceedings generally not to be public 305
435. Review of Complaints Committee decision 306
Division 9 -- Immediate suspension of local
practising certificate
436. Interim restrictions on practice 306
Division 10 -- Proceedings in State
Administrative Tribunal
437. Constitution of State Administrative Tribunal
under this Act 307
438. Jurisdiction of State Administrative Tribunal 308
439. Orders requiring official implementation in this
jurisdiction 309
440. Orders requiring official implementation in another
jurisdiction 310
441. Orders requiring compliance by practitioner 310
442. Alternative finding 311
443. Interlocutory and interim orders 312
444. Court may punish 312
445. Official notification to Board and Complaints
Committee of removals from local roll 312
446. Compliance with orders 313
447. Other remedies not affected 315
Division 11 -- Compensation
448. Compensation orders 315
449. Prerequisites to making of compensation orders 316
450. Effect on other remedies 316
Division 12 -- Publicising disciplinary action
451. Definitions 317
452. Register of Disciplinary Action 317
453. Other means of publicising disciplinary action 319
454. Quashing of disciplinary action 319
455. Liability for publicising disciplinary action 319
456. Disciplinary action taken because of infirmity,
injury or illness 320
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Legal Profession Bill 2007
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457. Effect of secrecy provisions and non-disclosure
orders 321
Division 13 -- Inter-jurisdictional provisions
458. Conduct protocols 321
459. Request to another jurisdiction to investigate
complaint or conduct 322
460. Request from another jurisdiction to investigate
complaint or conduct 322
461. Sharing of information with corresponding
authorities 323
462. Cooperation with other authorities 323
463. Compliance with recommendations or orders made
under corresponding laws 324
464. Other powers or functions not affected 324
Division 14 -- Miscellaneous
465. Jurisdiction of Supreme Court 325
466. Failure to comply with orders 325
467. Confidentiality of client communications 325
468. Claims of privilege 325
469. Waiver of privilege or duty of confidentiality 326
Part 14 -- External intervention
Division 1 -- Preliminary
470. Purposes 327
471. Definitions 327
472. Application of Part to Australian-registered foreign
lawyers 328
473. Application of Part to other persons 328
Division 2 -- Initiation of external intervention
474. Circumstances warranting external intervention 329
475. Determination regarding external intervention 330
Division 3 -- Supervisors of trust money
476. Appointment of supervisor of trust money 332
477. Notice of appointment 333
478. Effect of service of notice of appointment 334
479. Role of supervisor of trust money 335
480. Records of and dealing with trust money of law
practice under supervision 337
481. Termination of supervisor's appointment 337
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Division 4 -- Managers
482. Appointment of manager 338
483. Notice of appointment 338
484. Effect of service of notice of appointment 339
485. Role of manager 341
486. Records and accounts of law practice under
management and dealings with trust money 343
487. Deceased estates 343
488. Termination of manager's appointment 344
Division 5 -- Receivers
489. Appointment of receiver 345
490. Notice of appointment 346
491. Effect of service of notice of appointment 347
492. Role of receiver 349
493. Records and accounts of, and dealing with trust
money of, law practice under receivership 351
494. Power of receiver to take possession of regulated
property 351
495. Power of receiver to take delivery of regulated
property 352
496. Power of receiver to deal with regulated property 352
497. Power of receiver to require documents or
information 353
498. Examinations 354
499. Lien for costs on regulated property 354
500. Regulated property not to be attached 355
501. Recovery of regulated property where there has
been a breach of trust 355
502. Improperly destroying property 357
503. Deceased estates 358
504. Termination of receiver's appointment 358
Division 6 -- General
505. Conditions on appointment of external intervener 359
506. Status of acts of external intervener 360
507. Eligibility for reappointment or authorisation 360
508. Review of appointment 360
509. Directions of State Administrative Tribunal 361
510. Manager and receiver appointed for law practice 361
511. ADI disclosure requirements 361
512. Fees, legal costs and expenses 363
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Legal Profession Bill 2007
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513. Reports by external intervener 363
514. Confidentiality 364
515. Provisions relating to requirements under this Part 365
516. Obstruction of external intervener 366
Part 15 -- Provisions relating to
investigations
Division 1 -- Preliminary
517. Definitions 367
Division 2 -- Requirements relating to
documents, information and other
assistance
518. Application of Division 368
519. Requirement to provide access to documents and
information relating to affairs of law practice 368
520. Requirements in relation to complaint
investigations 369
521. Provisions relating to requirements under this
Division 370
Division 3 -- Entry and search of premises
522. Application of Division 371
523. Investigator's power to enter premises 371
524. Search warrant 372
525. Powers of investigator while on premises 373
Division 4 -- Additional powers in relation to
incorporated legal practices
526. Application of Division 375
527. Powers relating to investigations and audits to
which this Division applies 376
528. Examination of persons 376
529. Inspection of books 377
530. Power to hold hearings 377
Division 5 -- Miscellaneous
531. Obstruction or misleading of investigator 378
532. Obligations of Australian lawyers 378
533. Permitted disclosure of confidential information 379
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Legal Profession Bill 2007
Contents
Part 16 -- Regulatory authorities
Division 1 -- Legal Practice Board
Subdivision 1 -- Establishment
534. Board established 382
535. Relationship to the Crown 382
536. Board members 382
537. Who may vote in election 383
538. Vacation of office by member 383
539. Functions 383
540. Powers 383
541. Chairperson and deputy chairperson 383
542. Casual vacancies 384
Subdivision 2 -- Performance
543. Presiding at meetings 384
544. Quorum 385
545. Voting 385
546. Procedures 385
547. Delegation 385
Subdivision 3 -- Financial and reporting provisions
548. Application of funds 386
549. Accounts and records 386
550. Audit 387
551. Annual and other reports 387
Subdivision 4 -- Miscellaneous
552. Committees 388
553. Secretary of the Board 388
554. Execution of documents by the Board 388
Division 2 -- Legal Profession Complaints
Committee
Subdivision 1 -- Establishment
555. Legal Profession Complaints Committee
established 389
556. Complaints Committee members 390
557. Functions of the Complaints Committee 390
558. Term of appointment -- representative of the
community 391
559. Deputy chairperson 392
560. Deputies of representatives of the community 392
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Legal Profession Bill 2007
Contents
561. Removal or resignation 393
562. Leave of absence 394
563. Termination of office may be deferred 394
564. Remuneration and allowances 394
565. Saving 394
Subdivision 2 -- Performance
566. Quorum 394
567. Meetings 395
568. Divisions 395
569. Voting 396
570. Complaints Committee may determine its own
procedures 396
571. Reports 396
Division 3 -- Law Complaints Officer and staff
572. Law Complaints Officer 398
573. Delegation to Law Complaints Officer 398
574. Staff 399
Part 17 -- Rules
Division 1 -- Admission rules
575. Admission rules 400
Division 2 -- Legal profession rules
576. Subject-matter of legal profession rules 401
577. Rules for Australian legal practitioners 401
578. Rules for Australian-registered foreign lawyers 401
579. Rules for incorporated legal practices and
multi-disciplinary partnerships 401
580. Rules for Board, Law Library and Complaints
Committee 403
Division 3 -- General provisions
581. Binding nature of legal profession rules 403
582. Rules inconsistent with regulations 404
583. Rules are subsidiary legislation 404
Part 18 -- General provisions
584. Liability of principals 405
585. Injunctions 405
586. Disclosure of information by local regulatory
authorities 407
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Legal Profession Bill 2007
Contents
587. Confidentiality of personal information 407
588. Professional privilege or duty of confidence does
not affect validity or compliance with certain
requirements 408
589. Duty to report suspected offences 409
590. Contempt of the Supreme Court 409
591. Protection from liability 410
592. Legal proceedings 411
593. Evidentiary certificates 411
594. Approved forms 413
595. Laying documents before House of Parliament that
is not sitting 413
596. Regulations 414
597. Review of Act 415
Part 19 -- Repeal, savings,
transitional and other provisions
Division 1 -- Repeals
598. Legal Practice Act 2003 repealed 416
599. Legal Contribution Trust Act 1967 repealed 416
600. Interpretation Act 1984 not affected 416
Division 2 -- Savings and transitional
provisions relating to repeal of Legal
Practice Act 2003
601. Definitions 416
602. Articles and other practical legal training 416
603. Admission 417
604. Existing applications for admission 417
605. The Roll 417
606. Practising certificates 417
607. Actions before the commencement day that
continue to have effect 419
608. Restricted legal practice 420
609. Foreign lawyers 420
610. Incorporated legal practices 421
611. Orders in relation to multi-disciplinary
partnerships 421
612. Approvals under section 133 of 2003 Act 421
613. Authority to receive trust money 422
614. Deficiencies in trust accounts 422
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Legal Profession Bill 2007
Contents
615. Investigations 422
616. Client information and legal costs 422
617. Legal costs determinations and Legal Costs
Committee 423
618. Legal Practice Board continued 423
619. Membership of Board 423
620. Complaints Committee continued 424
621. Complaints and investigations under Act of prior
conduct 424
622. Discipline 425
623. Examiners 425
624. Orders under section 149 of 2003 Act 425
625. Orders under section 150 of 2003 Act 425
626. Appointments and authorisations under section 151
of the 2003 Act 426
627. Appointments under section 154 of the 2003 Act 426
628. Appointments and orders under section 156 of the
2003 Act 426
629. Board may give directions 427
630. References to 1893 and 2003 Acts and related
matters 427
Division 3 -- Savings and transitional
provisions relating to repeal of Legal
Contribution Trust Act 1967
631. Terms used in this Division 428
632. Legal Contribution Trust continued 428
633. Solicitors' Guarantee Fund 428
634. Contributions 428
635. Claims for acts happening before the
commencement day 428
636. References to Legal Contribution Trust Act 1967 429
Division 4 -- Transitional regulations
637. Transitional regulations 429
Part 20 -- Consequential
amendments
638. Adoption Act 1994 amended 431
639. Agricultural Practices (Disputes) Act 1995
amended 431
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Legal Profession Bill 2007
Contents
640. Australian Crime Commission (Western Australia)
Act 2004 amended 432
641. Builders' Registration Act 1939 amended 432
642. Children and Community Services Act 2004
amended 433
643. Children's Court of Western Australia Act 1988
amended 434
644. Chiropractors Act 2005 amended 435
645. Civil Judgments Enforcement Act 2004 amended 435
646. Civil Liability Act 2002 amended 436
647. Coal Industry Tribunal of Western Australia
Act 1992 amended 438
648. Commercial Arbitration Act 1985 amended 438
649. Companies (Co-operative) Act 1943 amended 439
650. Constitution Acts Amendment Act 1899 amended 439
651. Consumer Affairs Act 1971 amended 440
652. Coroners Act 1996 amended 440
653. Corporations (Western Australia) Act 1990
amended 441
654. Corruption and Crime Commission Act 2003
amended 441
655. Criminal Injuries Compensation Act 2003
amended 442
1. Qualifications for appointment 443
656. Criminal Investigation Act 2006 amended 444
657. Criminal Procedure Act 2004 amended 445
658. Debt Collectors Licensing Act 1964 amended 446
659. Director of Public Prosecutions Act 1991 amended 447
660. District Court of Western Australia Act 1969
amended 448
661. Equal Opportunity Act 1984 amended 450
662. Evidence Act 1906 amended 450
663. Family Court Act 1997 amended 451
664. Finance Brokers Control Act 1975 amended 452
665. Gas Pipelines Access (Western Australia) Act 1998
amended 452
666. Gender Reassignment Act 2000 amended 453
667. Guardianship and Administration Act 1990
amended 453
668. Industrial Relations Act 1979 amended 454
669. Juries Act 1957 amended 455
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Legal Profession Bill 2007
Contents
670. Jurisdiction of Courts (Cross-vesting) Act 1987
amended 456
671. Land Valuers Licensing Act 1978 amended 456
672. Law Reform Commission Act 1972 amended 457
673. Law Society Public Purposes Trust Act 1985
amended 458
674. Legal Aid Commission Act 1976 amended 459
675. Liquor Control Act 1988 amended 466
676. Long Service Leave Act 1958 amended 467
677. Magistrates Court Act 2004 amended 467
678. Magistrates Court (Civil Proceedings) Act 2004
amended 468
679. Medical Radiation Technologists Act 2006
amended 470
680. Mental Health Act 1996 amended 470
681. Mining Act 1978 amended 472
682. Motor Vehicle (Third Party Insurance) Act 1943
amended 472
683. Nurses and Midwives Act 2006 amended 473
684. Oaths, Affidavits and Statutory Declarations
Act 2005 amended 473
8. Meaning of "experienced legal
practitioner" 473
685. Occupational Therapists Act 2005 amended 474
686. Official Prosecutions (Accused's Costs) Act 1973
amended 474
687. Optometrists Act 2005 amended 475
688. Osteopaths Act 2005 amended 475
689. Physiotherapists Act 2005 amended 476
690. Planning and Development Act 2005 amended 476
691. Podiatrists Act 2005 amended 476
692. Police Act 1892 amended 477
693. Psychologists Act 2005 amended 477
694. Public Notaries Act 1979 amended 477
695. Racing Penalties (Appeals) Act 1990 amended 478
696. Real Estate and Business Agents Act 1978
amended 479
697. Registration of Deeds Act 1856 amended 480
698. Residential Tenancies Act 1987 amended 480
699. Restraining Orders Act 1997 amended 481
700. Royal Commission (Police) Act 2002 amended 481
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Legal Profession Bill 2007
Contents
701. Sale of Goods (Vienna Convention) Act 1986
amended 481
702. Sale of Land Act 1970 amended 482
703. Security and Related Activities (Control) Act 1996
amended 482
704. Settlement Agents Act 1981 amended 482
705. Solicitor-General Act 1969 amended 483
706. State Administrative Tribunal Act 2004 amended 484
707. Strata Titles Act 1985 amended 485
708. Suitors' Fund Act 1964 amended 485
709. Supreme Court Act 1935 amended 486
710. Terrorism (Preventative Detention) Act 2006
amended 488
711. Transfer of Land Act 1893 amended 488
712. Western Australian College of Teaching Act 2004
amended 489
713. Workers' Compensation and Injury Management
Act 1981 amended 490
714. Young Offenders Act 1994 amended 491
Defined Terms
page xxx
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Legal Profession Bill 2007
A Bill for
An Act --
• to provide for the regulation of legal practice in Western
Australia; and
• to facilitate the regulation of legal practice on a national basis;
and
• for other related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Legal Profession Bill 2007
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Legal Profession Act 2007.
2. Commencement
5 This Act comes into operation as follows:
(a) Part 1 -- on the day on which this Act receives the
Royal Assent;
(b) the rest of the Act -- on a day fixed by proclamation
and different days may be fixed for different provisions.
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Legal Profession Bill 2007
Interpretation Part 2
s. 3
Part 2 -- Interpretation
3. Terms used in this Act
In this Act --
"accountant" means a member of --
5 (a) The Institute of Chartered Accountants in Australia
(AR643BN 084 642 571); or
(b) CPA Australia (ACN 008 392 452); or
(c) the National Institute of Accountants (ACN
004 130 643);
10 "ADI" means an authorised deposit-taking institution as defined
in the Banking Act 1959 of the Commonwealth;
"admission rules" means rules relating to the admission of
lawyers and associated matters made under section 575;
"admission to the legal profession" means admission by a
15 Supreme Court as --
(a) a lawyer; or
(b) a legal practitioner; or
(c) a barrister; or
(d) a solicitor; or
20 (e) a barrister and solicitor; or
(f) a solicitor and barrister,
under this Act or a corresponding law but does not include
the grant of a practising certificate under this Act or a
corresponding law and "admitted to the legal profession"
25 has a corresponding meaning;
"affairs" of a law practice include the following --
(a) all accounts and records required under this Act to be
maintained by the practice or an associate or former
associate of the practice;
30 (b) other records of the practice or an associate or former
associate of the practice;
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Legal Profession Bill 2007
Part 2 Interpretation
s. 3
(c) any transaction --
(i) to which the practice or an associate or former
associate of the practice was or is a party; or
(ii) in which the practice or an associate or former
5 associate of the practice has acted for a party;
"amend" includes --
(a) in relation to a practising certificate --
(i) impose a condition on the certificate; and
(ii) vary or revoke a condition already imposed on
10 the certificate;
and
(b) in relation to registration as a foreign lawyer --
(i) amend the lawyer's registration certificate;
and
15 (ii) impose a condition on the registration; and
(iii) vary or revoke a condition already imposed on
the registration;
"approved form" means a form approved by the Board;
"associate" has the meaning given in section 6(1);
20 "Australian lawyer" has the meaning given in section 4(a);
"Australian legal practitioner" has the meaning given in
section 5(a) as affected by section 36(3);
"Australian practising certificate" means a local practising
certificate or an interstate practising certificate;
25 "Australian-registered foreign lawyer" means a locally
registered foreign lawyer or an interstate-registered foreign
lawyer;
"Australian roll" means the local roll or an interstate roll;
"barrister" means an Australian legal practitioner who engages
30 in legal practice solely as a barrister;
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Legal Profession Bill 2007
Interpretation Part 2
s. 3
"Board" means the Legal Practice Board established under
section 534;
"client" includes a person to whom or for whom legal services
are provided;
5 "compensation order" means an order referred to in
section 448;
"complaint" means a complaint under Part 13;
"Complaints Committee" means the committee established
under section 555;
10 "compliance certificate" has the meaning given in section 31;
"condition" means condition, limitation or restriction;
"conduct" means conduct whether consisting of an act or
omission;
"conviction" has the meaning given in section 10;
15 "corporation" means --
(a) a company as defined in the Corporations Act
section 9; or
(b) any other body corporate, or body corporate of a
kind, prescribed by the regulations;
20 "Corporations Act" means the Corporations Act 2001 of the
Commonwealth;
"corresponding authority" means --
(a) a person or body having functions under a
corresponding law; or
25 (b) when used in the context of a person or body having
functions under this Act (the "local authority") --
(i) a person or body having corresponding
functions under a corresponding law; and
page 5
Legal Profession Bill 2007
Part 2 Interpretation
s. 3
(ii)without limiting subparagraph (i), if the
functions of the local authority relate to local
lawyers or local legal practitioners generally
or are limited to any particular class of local
5 lawyers or local legal practitioners -- a
person or body having corresponding
functions under a corresponding law
regardless of whether they relate to interstate
lawyers or interstate legal practitioners
10 generally or are limited to any particular class
of interstate lawyers or interstate legal
practitioners;
"corresponding disciplinary body" means --
(a) a body having functions under a corresponding law
15 that correspond to any of the functions of the
Complaints Committee; or
(b) a court or tribunal having functions under a
corresponding law that correspond to any of the
functions of the Complaints Committee, State
20 Administrative Tribunal or Supreme Court in relation
to the control and discipline of any Australian
lawyers; or
(c) the Supreme Court of another jurisdiction
exercising --
25 (i) its inherent jurisdiction or powers in relation
to the control and discipline of any Australian
lawyers; or
(ii) its jurisdiction or powers to make orders
under a corresponding law of the other
30 jurisdiction in relation to any Australian
lawyers;
"corresponding foreign law" means --
(a) a law of a foreign country that corresponds to the
relevant provisions of this Act or, if a regulation is
35 made declaring a law of the foreign country to be a
page 6
Legal Profession Bill 2007
Interpretation Part 2
s. 3
law that corresponds to this Act, the law declared
under that regulation for the foreign country; or
(b) if the term is used in relation to a matter that
happened before the commencement of the law of a
5 foreign country that, under paragraph (a), is the
corresponding law for the foreign country, a previous
law applying to legal practice in the foreign country;
"corresponding law" means --
(a) a law of another jurisdiction that corresponds to the
10 relevant provisions of this Act or, if a regulation is
made declaring a law of another jurisdiction to be a
law that corresponds to this Act, the law declared
under that regulation for the other jurisdiction; or
(b) if the term is used in relation to a matter that
15 happened before the commencement of the law of
another jurisdiction that, under paragraph (a), is the
corresponding law for the other jurisdiction, a
previous law applying to legal practice in the other
jurisdiction;
20 "director" means --
(a) in relation to a company within the meaning given in
the Corporations Act -- a director as defined in
section 9 of that Act; or
(b) in relation to any other body corporate, or body
25 corporate of a kind, prescribed by the regulations -- a
person specified or described in the regulations;
"disqualified person" means any of the following persons,
whether the thing that has happened to the person happened
before or after the commencement of this definition --
30 (a) a person whose name has (whether or not at his or her
own request) been removed from an Australian roll
and who has not subsequently been admitted or
re-admitted to the legal profession under this Act or a
corresponding law;
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Legal Profession Bill 2007
Part 2 Interpretation
s. 3
(b) a person whose Australian practising certificate has
been suspended or cancelled under this Act or a
corresponding law and who, because of the
cancellation, is not an Australian legal practitioner or
5 in relation to whom that suspension has not finished;
(c) a person who has been refused a renewal of an
Australian practising certificate under this Act or a
corresponding law, and to whom an Australian
practising certificate has not been granted at a later
10 time;
(d) a person who is the subject of an order under this Act
or a corresponding law prohibiting a law practice
from employing or paying the person in connection
with the relevant practice;
15 (e) a person who is the subject of an order under this Act
or a corresponding law prohibiting an Australian
legal practitioner from being a partner of the person
in a business that includes the practitioner's practice;
(f) a person who is subject to an order under section 120
20 or 145 or under provisions of a corresponding law
that correspond to section 120 or 145;
"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
25 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
30 (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
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Legal Profession Bill 2007
Interpretation Part 2
s. 3
(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;
"engage in legal practice" includes practise law;
5 "external examination" means an external examination under
Part 9 Division 4 of a law practice's trust records;
"external examiner" means a person holding an appointment
as an external examiner under Part 9 Division 4;
"external territory" means a Territory of the Commonwealth
10 (not being the Australian Capital Territory, the Jervis Bay
Territory or the Northern Territory of Australia) for the
government of which as a Territory provision is made by a
Commonwealth Act;
"foreign country" means --
15 (a) a country other than Australia; or
(b) a state, province or other part of a country other than
Australia;
"foreign regulatory action" taken in relation to a person
means --
20 (a) removal of the person's name from a foreign roll for
disciplinary reasons; or
(b) suspension or cancellation of, or refusal to renew, the
person's right to engage in legal practice in a foreign
country;
25 "foreign roll" means an official roll of lawyers (whether
admitted, practising or otherwise) kept in a foreign country,
but does not include a roll prescribed by the regulations or
a kind of roll prescribed by the regulations;
"grant" of a practising certificate includes the issue of a
30 practising certificate;
"Guarantee Fund" means the Solicitor's Guarantee Fund
established under section 336;
"home jurisdiction" has the meaning given in section 7;
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Legal Profession Bill 2007
Part 2 Interpretation
s. 3
"incorporated legal practice" has the meaning given in Part 7
Division 2;
"information notice" has the meaning given in section 9;
"insolvent under administration" means --
5 (a) a person who is an undischarged bankrupt under the
Bankruptcy Act 1966 of the Commonwealth (or the
corresponding provisions of the law of a foreign
country or external territory); or
(b) a person who has executed a deed of arrangement
10 under Part X of the Bankruptcy Act 1966 of the
Commonwealth (or the corresponding provisions of
the law of a foreign country or external territory) if
the terms of the deed have not been fully complied
with; or
15 (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 or external
territory) if a final payment has not been made under
20 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 or external territory) if
25 the debt agreement has not ended or has not been
terminated; or
(e) a person who has executed a personal insolvency
agreement under Part X of the Bankruptcy Act 1966
of the Commonwealth (or the corresponding
30 provisions of the law of a foreign country or external
territory) but not if the agreement has been set aside
or terminated or all of the obligations that the
agreement created have been discharged;
"interstate government lawyer" has the meaning given in
35 section 79(1);
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Legal Profession Bill 2007
Interpretation Part 2
s. 3
"interstate lawyer" has the meaning given in section 4(c);
"interstate legal practitioner" has the meaning given in
section 5(c);
"interstate practising certificate" means a current practising
5 certificate granted under a corresponding law;
"interstate-registered foreign lawyer" means a person who is
registered as a foreign lawyer under a corresponding law;
"interstate regulatory authority" means, in relation to another
jurisdiction --
10 (a) if there is only one regulatory authority for the
jurisdiction -- that regulatory authority unless
subparagraph (c) applies; or
(b) if there are separate regulatory authorities for the
jurisdiction for different branches of the legal
15 profession or for persons who practise in a particular
style of legal practice -- the regulatory authority
relevant to the branch or style concerned unless
subparagraph (c) applies; or
(c) if the regulations specify or provide for the
20 determination of one or more regulatory authorities
for the jurisdiction either generally or for particular
purposes -- the regulatory authority or authorities
specified in or determined in accordance with the
regulations;
25 "interstate roll" means a roll of lawyers maintained under a
corresponding law;
"jurisdiction" means a State or Territory of the
Commonwealth;
"Law Complaints Officer" means the person holding the
30 office of that name under section 572;
"law firm" means a partnership consisting only of --
(a) Australian legal practitioners; or
page 11
Legal Profession Bill 2007
Part 2 Interpretation
s. 3
(b) one or more Australian legal practitioners and one or
more Australian-registered foreign lawyers;
"law practice" means --
(a) an Australian legal practitioner who is a sole
5 practitioner; or
(b) a law firm; or
(c) a multi-disciplinary partnership; or
(d) an incorporated legal practice;
"Law Society" means the Law Society of Western Australia
10 (Inc.);
"lay associate" has the meaning given in section 6(2)(b);
"legal costs" means amounts that a person has been or may be
charged by, or is or may become liable to pay to, a law
practice for the provision of legal services including
15 disbursements but not including interest;
"legal practitioner associate" has the meaning given in
section 6(2)(a);
"legal practitioner director", in relation to an incorporated
legal practice, has the meaning given in Part 7 Division 1;
20 "legal practitioner partner", in relation to a multi-disciplinary
partnership, has the meaning given in Part 7 Division 1;
"legal profession rules" means rules relating to legal practice
made under this Act;
"legal services" means work done, or business transacted, in
25 the ordinary course of legal practice;
"local lawyer" has the meaning given in section 4(b);
"local legal practitioner" has the meaning given in section 5(b)
as affected by section 36(3);
"local practising certificate" means a practising certificate
30 granted under this Act;
"local regulatory authority" means --
(a) an authority having functions under this Act; or
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Legal Profession Bill 2007
Interpretation Part 2
s. 3
(b) a person or body prescribed by the regulations as a
local regulatory authority;
"local roll" has the meaning given in section 28(1);
"locally registered foreign lawyer" means a person who is
5 registered as a foreign lawyer under Part 8;
"managed investment scheme" has the same meaning as in the
Corporations Act Chapter 5C;
"modifications" includes modifications by way of alteration,
omission, addition or substitution;
10 "mortgage" means an instrument under which an interest in
real property is charged, encumbered or transferred as
security for the payment or repayment of money, and
includes --
(a) any instrument of a kind that is prescribed by the
15 regulations as being a mortgage; and
(b) a proposed mortgage;
"mortgage financing" means facilitating a loan secured or
intended to be secured by mortgage by --
(a) acting as an intermediary to match a prospective
20 lender and borrower; or
(b) arranging the loan; or
(c) receiving or dealing with payments for the purposes
of, or under, the loan,
but does not include providing legal advice or preparing an
25 instrument for the loan;
"multi-disciplinary partnership" has the meaning given in
Part 7 Division 3;
"practical legal training" means either, or a combination of
both, of the following --
30 (a) legal training by participation in course work;
(b) supervised legal training, whether involving articles
of clerkship or otherwise;
page 13
Legal Profession Bill 2007
Part 2 Interpretation
s. 3
"previous Act" means --
(a) the Legal Practice Act 2003;
(b) the Legal Practitioners Act 1893;
"principal" has the meaning given in section 6(3);
5 "Principal Registrar" has the meaning given in the Supreme
Court Act 1935 section 4(1);
"professional misconduct" has the meaning given in
section 403;
"serious offence" means an offence (whether committed in or
10 outside this jurisdiction) that is --
(a) an indictable offence against a law of the
Commonwealth or any jurisdiction (whether or not
the offence is or may be dealt with summarily); or
(b) an offence against the law of another jurisdiction that
15 would be an indictable offence against a law of this
jurisdiction if committed in this jurisdiction (whether
or not the offence could be dealt with summarily if
committed in this jurisdiction); or
(c) an offence against the law of a foreign country that
20 would be an indictable offence against a law of the
Commonwealth or this jurisdiction if committed in
this jurisdiction (whether or not the offence could be
dealt with summarily if committed in this
jurisdiction);
25 "show cause event", in relation to a person, means --
(a) the person becoming bankrupt or being served with
notice of a creditor's petition presented to the Court
under the Bankruptcy Act 1966 of the
Commonwealth section 43; or
30 (b) the presentation by the person (as a debtor) of a
declaration to the Official Receiver under the
Bankruptcy Act 1966 of the Commonwealth
section 54A of his or her intention to present a
debtor's petition or his or her presentation (as a
page 14
Legal Profession Bill 2007
Interpretation Part 2
s. 3
debtor) of such a petition under section 55 of that
Act; or
(c) the application by the person to take the benefit of
any law for the relief of bankrupt or insolvent
5 debtors, compounding with his or her creditors or
making an assignment of his or her remuneration for
their benefit; or
(d) the conviction of the person for a serious offence or a
tax offence, whether or not --
10 (i) the offence was committed in or outside this
jurisdiction; or
(ii) the offence was committed while the person
was engaging in legal practice as an
Australian legal practitioner or was practising
15 foreign law as an Australian-registered
foreign lawyer, as the case requires; or
(iii) other persons are prohibited from disclosing
the identity of the offender;
"sole practitioner" means an Australian lawyer who engages in
20 legal practice on his or her own account;
"suitability matter" has the meaning given in section 8;
"supervised legal practice" means legal practice by a person
who is an Australian legal practitioner --
(a) as an employee of a law practice if --
25 (i) at least one partner, legal practitioner director
or other employee of the law practice is an
Australian legal practitioner who holds an
unrestricted practising certificate; and
(ii) the person engages in legal practice under the
30 supervision of an Australian legal practitioner
referred to in subparagraph (i);
or
page 15
Legal Profession Bill 2007
Part 2 Interpretation
s. 3
(b) as a partner in a law firm if --
(i) at least one other partner is an Australian legal
practitioner who holds an unrestricted
practising certificate; and
5 (ii) the person engages in legal practice under the
supervision of an Australian legal practitioner
referred to in subparagraph (i);
or
(c) as a WA government lawyer if the person engages in
10 legal practice under the supervision of --
(i) the State Solicitor; or
(ii) the Director of Legal Aid appointed under the
Legal Aid Commission Act 1976 section 18; or
(iii) the Director of Public Prosecutions appointed
15 under the Director of Public Prosecutions
Act 1991 section 5; or
(iv) the holder of an office prescribed by
regulations for the purposes of this paragraph;
or
20 (d) as an interstate government lawyer if the person
engages in legal practice under the supervision of --
(i) a person acting as a Director of the Australian
Government Solicitor established under
Part VIIIB Division 2 of the Judiciary
25 Act 1903 of the Commonwealth; or
(ii) a General Counsel or Regional General
Counsel of the Australian Securities and
Investments Commission; or
(iii) the holder of an office prescribed by
30 regulations for the purposes of this paragraph;
or
(e) as an employee of a body that carries on a business
other than the practice of law if the person engages in
page 16
Legal Profession Bill 2007
Interpretation Part 2
s. 3
legal practice under the supervision of an Australian
legal practitioner who holds an unrestricted practising
certificate; or
(f) in a capacity approved for the purposes of this
5 paragraph under a legal profession rule;
"Supreme Court (full bench)" means the Supreme Court
constituted by at least 3 judges;
"tax offence" means an offence under the Taxation
Administration Act 1953 of the Commonwealth, whether
10 committed in or outside this jurisdiction;
"taxing officer" means a taxing officer of the Supreme Court;
"this jurisdiction" means this State;
"Trust" means the Legal Contribution Trust established under
section 391;
15 "trust account" has the meaning given in section 205(1);
"trust money" has the meaning given in section 205(1);
"trust property" means property entrusted to a law practice in
the course of or in connection with the provision of legal
services by the practice, but does not include trust money
20 or money referred to in section 206;
"trust records" has the meaning given in section 205(1);
"unrestricted practising certificate" means an Australian
practising certificate that is not subject to any condition
under this Act or a corresponding law requiring the holder
25 to engage in supervised legal practice or restricting the
holder to practise as or in the manner of a barrister;
"unsatisfactory professional conduct" has the meaning given
in section 402;
"WA government lawyer" has the meaning given in
30 section 36(1).
page 17
Legal Profession Bill 2007
Part 2 Interpretation
s. 4
4. Terms relating to lawyers
For the purposes of this Act --
(a) an "Australian lawyer" is a person who is admitted to
the legal profession under this Act or a corresponding
5 law; and
(b) a "local lawyer" is a person who is admitted to the legal
profession under this Act (whether or not the person is
also admitted under a corresponding law); and
(c) an "interstate lawyer" is a person who is admitted to
10 the legal profession under a corresponding law, but not
under this Act.
5. Terms relating to legal practitioners
For the purposes of this Act --
(a) an "Australian legal practitioner" is an Australian
15 lawyer who holds a current local practising certificate or
a current interstate practising certificate; and
(b) a "local legal practitioner" is an Australian lawyer who
holds a current local practising certificate; and
(c) an "interstate legal practitioner" is an Australian
20 lawyer who holds a current interstate practising
certificate, but not a local practising certificate.
6. Terms relating to associates and principals of law practices
(1) For the purposes of this Act, an "associate" of a law practice
is --
25 (a) an Australian legal practitioner who is --
(i) a sole practitioner (in the case of a law practice
constituted by the practitioner); or
(ii) a partner in the law practice (in the case of a law
firm); or
30 (iii) a legal practitioner director in the law practice (in
the case of an incorporated legal practice); or
page 18
Legal Profession Bill 2007
Interpretation Part 2
s. 6
(iv) a legal practitioner partner in the law practice (in
the case of a multi-disciplinary partnership); or
(v) an employee of, or consultant to, the law
practice;
5 or
(b) an agent of the law practice who is not an Australian
legal practitioner; or
(c) an employee of the law practice who is not an Australian
legal practitioner; or
10 (d) an Australian-registered foreign lawyer who is a partner
in the law practice; or
(e) a person (not being an Australian legal practitioner) who
is a partner in a multi-disciplinary partnership; or
(f) an Australian-registered foreign lawyer who has a
15 relationship with the law practice, being a relationship
that is of a class prescribed by the regulations; or
(g) a person (not being an Australian legal practitioner) who
is a partner in a business that includes the law practice;
or
20 (h) a person (not being an Australian legal practitioner) who
shares the receipts, revenue or other income arising from
the law practice.
(2) For the purposes of this Act --
(a) a "legal practitioner associate" of a law practice is an
25 associate of the practice who is an Australian legal
practitioner; and
(b) a "lay associate" of a law practice is an associate of the
practice who is not an Australian legal practitioner.
(3) For the purposes of this Act, a "principal" of a law practice is
30 an Australian legal practitioner who is --
(a) a sole practitioner (in the case of a law practice
constituted by the practitioner); or
page 19
Legal Profession Bill 2007
Part 2 Interpretation
s. 7
(b) a partner in the law practice (in the case of a law firm);
or
(c) a legal practitioner director in the law practice (in the
case of an incorporated legal practice); or
5 (d) a legal practitioner partner in the law practice (in the
case of a multi-disciplinary partnership).
7. Home jurisdiction
(1) This section has effect for the purposes of this Act.
(2) The "home jurisdiction" for an Australian legal practitioner is
10 the jurisdiction in which the practitioner's only or most recent
current Australian practising certificate was granted.
(3) The "home jurisdiction" for an Australian-registered foreign
lawyer is the jurisdiction in which the lawyer's only or most
recent current registration was granted.
15 (4) The "home jurisdiction" for an associate of a law practice who
is neither an Australian legal practitioner nor an
Australian-registered foreign lawyer is --
(a) where only one jurisdiction is the home jurisdiction for
the only associate of the practice who is an Australian
20 legal practitioner or for all the associates of the practice
who are Australian legal practitioners -- that
jurisdiction; or
(b) where no one jurisdiction is the home jurisdiction for all
the associates of the practice who are Australian legal
25 practitioners --
(i) the jurisdiction in which the office is situated at
which the associate performs most of the
associate's duties for the law practice; or
(ii) if a jurisdiction cannot be determined under
30 subparagraph (i) -- the jurisdiction in which the
associate is enrolled under a law of the
page 20
Legal Profession Bill 2007
Interpretation Part 2
s. 8
jurisdiction to vote at elections for the
jurisdiction; or
(iii) if a jurisdiction can be determined under neither
subparagraph (i) nor subparagraph (ii) -- the
5 jurisdiction determined in accordance with
criteria specified or referred to in the regulations.
8. Suitability matters
(1) Each of the following is a "suitability matter" in relation to an
individual --
10 (a) whether the person is currently of good fame and
character;
(b) whether the person is or has been an insolvent under
administration;
(c) whether the person has been convicted of an offence in
15 Australia or a foreign country, and if so --
(i) the nature of the offence; and
(ii) how long ago the offence was committed; and
(iii) the person's age when the offence was
committed;
20 (d) whether the person has engaged in legal practice in
Australia --
(i) unlawfully; or
(ii) when not admitted, or not holding a practising
certificate, as required under this Act or a
25 previous law of this jurisdiction that corresponds
to this Act or under a corresponding law; or
(iii) if holding an Australian practising certificate, in
contravention of a condition of the certificate or
while the certificate was suspended;
page 21
Legal Profession Bill 2007
Part 2 Interpretation
s. 8
(e) whether the person has practised law in a foreign
country --
(i) when not permitted under a law of that country
to do so; or
5 (ii) if permitted to do so, in contravention of a
condition applicable to the permission;
(f) whether the person is currently subject to an unresolved
complaint, investigation, charge or order under any of
the following --
10 (i) this Act or a previous Act;
(ii) a corresponding law or corresponding foreign
law;
(g) whether the person --
(i) is the subject of current disciplinary action,
15 however expressed, in another profession or
occupation in Australia or a foreign country; or
(ii) has been the subject of disciplinary action,
however expressed, relating to another
profession or occupation that involved a finding
20 of guilt;
(h) whether the person's name has been removed from --
(i) the local roll, and has not since been restored to
or entered on a local roll; or
(ii) an interstate roll, and has not since been restored
25 to or entered on an interstate roll; or
(iii) a foreign roll;
(i) whether the person's right to engage in legal practice
has been suspended or cancelled in Australia or a
foreign country;
30 (j) whether the person has contravened, in Australia or a
foreign country, a law about trust money or trust
accounts;
page 22
Legal Profession Bill 2007
Interpretation Part 2
s. 9
(k) whether, under this Act, a previous Act, a law of the
Commonwealth or a corresponding law, a supervisor,
manager or receiver, however described, is or has been
appointed in relation to any legal practice engaged in by
5 the person;
(l) whether the person is or has been subject to an order
under this Act, a previous Act, a law of the
Commonwealth or a corresponding law, disqualifying
the applicant from being employed by, or a partner of,
10 an Australian legal practitioner or from managing a
corporation that is an incorporated legal practice;
(m) whether the person is currently unable to carry out the
inherent requirements of practice as an Australian legal
practitioner.
15 (2) A matter mentioned in subsection (1) is a suitability matter even
if it happened before the commencement of this section.
9. Information notices
For the purposes of this Act, an "information notice" is a
written notice to a person about a decision stating --
20 (a) the decision; and
(b) the reasons for the decision; and
(c) the rights of appeal or review available to the person in
respect of the decision and the period within which any
such appeal or review must be made or applied for.
25 10. References to conviction and quashing a conviction
(1) A reference in this Act to a conviction includes a finding of
guilt, or the acceptance of a guilty plea, whether or not a
conviction is recorded.
(2) Without limiting subsection (1), a reference in this Act to the
30 quashing of a conviction for an offence includes a reference to
the quashing of --
(a) a finding of guilt in relation to the offence; or
page 23
Legal Profession Bill 2007
Part 2 Interpretation
s. 10
(b) the acceptance of a guilty plea in relation to the offence.
(3) However, a reference in this Act to the quashing of a conviction
for an offence does not include a reference to the quashing of a
conviction where --
5 (a) a finding of guilt in relation to the offence; or
(b) the acceptance of a guilty plea in relation to the offence,
remains unaffected.
(4) A conviction includes a conviction before the commencement
of this section.
page 24
Legal Profession Bill 2007
Reservation of legal work and related matters Part 3
Preliminary Division 1
s. 11
Part 3 -- Reservation of legal work and
related matters
Division 1 -- Preliminary
11. Purposes
5 The purposes of this Part are as follows --
(a) to protect the public interest in the proper administration
of justice by ensuring that legal work is carried out only
by those who are properly qualified to do so;
(b) to protect consumers by ensuring that persons carrying
10 out legal work are entitled to do so.
Division 2 -- General prohibitions on unqualified practice
12. Prohibition on engaging in legal practice when not entitled
(1) In this section --
"legal work" means --
15 (a) any work in connection with the administration of
law; or
(b) drawing or preparing any deed, instrument or writing
relating to or in any manner dealing with or
affecting --
20 (i) real or personal estate or any interest in real or
personal estate; or
(ii) any proceedings at law, civil or criminal, or in
equity;
"public officer" has the meaning given in The Criminal Code.
25 (2) A person must not engage in legal practice in this jurisdiction
unless the person is an Australian legal practitioner.
Penalty: a fine of $20 000.
page 25
Legal Profession Bill 2007
Part 3 Reservation of legal work and related matters
Division 2 General prohibitions on unqualified practice
s. 12
(3) Subsection (2) does not apply to engaging in legal practice of
the following kinds --
(a) legal practice engaged in under the authority of a law of
this jurisdiction or of the Commonwealth;
5 (b) legal practice engaged in by an incorporated legal
practice in accordance with Part 7 Division 2;
(c) the practice of foreign law by an Australian-registered
foreign lawyer in accordance with Part 8;
(d) appearing or defending in person in a court;
10 (e) drawing or preparing a transfer under the Transfer of
Land Act 1893;
(f) a public officer doing legal work in the course of his or
her duties;
(g) a person doing legal work under the supervision of an
15 Australian legal practitioner, as a paid employee of a
law practice or in the course of approved legal training;
(h) legal practice of a kind prescribed by the regulations.
(4) It is a defence to a prosecution for an offence against
subsection (2) in relation to the doing of legal work to show that
20 the person who did the legal work has not directly or indirectly
been paid or remunerated or promised or expected pay or
remuneration for the work so done (the "unpaid work").
(5) Subsection (4) does not apply if the person directly or indirectly
receives, expects or is promised, pay or remuneration for or in
25 respect of other work or services relating to, connected with or
arising out of the same transaction or subject matter as that to
which the unpaid work relates.
(6) A person is not entitled to recover any amount in respect of
anything the person did in contravention of subsection (2).
30 (7) A person may recover from another person in a court of
competent jurisdiction, as a debt due to the person, any amount
the person paid to the other person in respect of anything the
other person did in contravention of subsection (2).
page 26
Legal Profession Bill 2007
Reservation of legal work and related matters Part 3
General prohibitions on unqualified practice Division 2
s. 13
(8) The regulations may make provision for or with respect to the
application (with or without specified modifications) of
provisions of this Act to persons engaged in legal practice of a
kind referred to in subsection (3) (other than subsection (3)(a)
5 and (b)).
13. Prohibition on representing or advertising entitlement to
engage in legal practice when not entitled
(1) A person must not represent or advertise that the person is
entitled to engage in legal practice unless the person is an
10 Australian legal practitioner.
Penalty: a fine of $20 000.
(2) A director, officer, employee or agent of a body corporate must
not represent or advertise that the body corporate is entitled to
engage in legal practice unless the body corporate is an
15 incorporated legal practice.
Penalty: a fine of $20 000.
(3) Subsections (1) and (2) do not apply to a representation or
advertisement about being entitled to engage in legal practice of
a kind referred to in section 12(3).
20 (4) A reference in this section to a person --
(a) representing or advertising that the person is entitled to
engage in legal practice; or
(b) representing or advertising that a body corporate is
entitled to engage in legal practice,
25 includes a reference to the person doing anything that states or
implies that the person or the body corporate is entitled to
engage in legal practice.
page 27
Legal Profession Bill 2007
Part 3 Reservation of legal work and related matters
Division 2 General prohibitions on unqualified practice
s. 14
14. Presumptions about taking or using name, title or
description specified in regulations
(1) This section applies to the following names, titles and
descriptions --
5 (a) lawyer;
(b) legal practitioner;
(c) barrister;
(d) solicitor;
(e) attorney;
10 (f) counsel;
(g) Queen's Counsel;
(h) King's Counsel;
(i) Her Majesty's Counsel;
(j) His Majesty's Counsel;
15 (k) Senior Counsel.
(2) The regulations may specify the kind of persons who are
entitled, and the circumstances in which they are entitled, to
take or use a name, title or description to which this section
applies.
20 (3) For the purposes of section 13(1), the taking or using of a name,
title or description to which this section applies by a person who
is not entitled to take or use that name, title or description gives
rise to a rebuttable presumption that the person represented that
the person is entitled to engage in legal practice.
25 (4) For the purposes of section 13(2), the taking or using of a name,
title or description to which this section applies by a person in
relation to a body corporate, of which the person is a director,
officer, employee or agent, gives rise to a rebuttable
presumption that the person represented that the body corporate
30 is entitled to engage in legal practice.
page 28
Legal Profession Bill 2007
Reservation of legal work and related matters Part 3
General prohibitions on unqualified practice Division 2
s. 15
15. Associates who are disqualified or convicted persons
(1) In this section --
"lay associate" of a law practice has the meaning given in
section 6(2)(b) and includes a consultant to the law practice
5 (however described) who --
(a) is not an Australian legal practitioner; and
(b) provides legal or related services to the law practice,
other than services of a kind prescribed by the
regulations.
10 (2) A law practice must not have a lay associate whom any
principal or other legal practitioner associate of the practice
knows to be --
(a) an Australian lawyer; or
(b) a disqualified person; or
15 (c) a person who has been convicted of a serious offence,
unless the lay associate is approved by the Board under
subsection (3).
(3) The Board may, on application by a law practice or the lay
associate, approve a lay associate for the purposes of this
20 section.
(4) An approval under this section may be subject to specified
conditions.
(5) If the Board decides to refuse an application for approval, or to
grant the approval subject to conditions, the applicant may
25 apply to the State Administrative Tribunal for a review of the
decision.
(6) A disqualified person, or a person convicted of a serious
offence, must not become or seek to become a lay associate of a
law practice unless the person first informs the law practice of
30 the disqualification or conviction.
Penalty: a fine of $10 000.
page 29
Legal Profession Bill 2007
Part 3 Reservation of legal work and related matters
Division 3 General
s. 16
(7) Proceedings for an offence under subsection (6) may only be
brought within 6 months after discovery of the offence by the
Board.
(8) This section does not apply in circumstances prescribed by the
5 regulations.
16. Sharing income with unqualified persons
Without limiting sections 116 and 143, an Australian legal
practitioner may share with any other person the receipts,
revenue or other income arising from the provision of legal
10 services by the practitioner, except to the extent (if any) that the
regulations or legal profession rules otherwise provide.
17. Permitting or assisting unqualified persons to practise
An Australian legal practitioner must not permit or assist a
person who is not an Australian legal practitioner to engage in
15 legal practice in this jurisdiction in contravention of this Act.
Penalty: a fine of $10 000.
Division 3 -- General
18. Prohibited person must not act as executor or trustee
(1) In this section --
20 "prohibited person" means either of the following persons,
whether the thing that has happened to the person happened
before or after the commencement of this section --
(a) a person whose name has (whether or not at his or her
own request) been removed from an Australian roll
25 and who has not subsequently been admitted or
re-admitted to the legal profession under this Act or a
corresponding law;
(b) a person whose Australian practising certificate has
been suspended or cancelled under this Act or a
30 corresponding law and who, because of the
page 30
Legal Profession Bill 2007
Reservation of legal work and related matters Part 3
General Division 3
s. 19
cancellation, is not an Australian legal practitioner or
in relation to whom that suspension has not finished.
(2) A prohibited person must not hold or obtain the office of
executor or trustee of any will or trust without the leave of the
5 Supreme Court.
(3) Nothing in subsection (2) --
(a) operates in respect of a person holding the office of
executor pursuant to probate granted by the Supreme
Court before the coming into operation of this section;
10 or
(b) affects or invalidates any act by a person purporting to
act as the holder of an office of executor or trustee when
prohibited from so acting under subsection (2).
19. Professional discipline
15 (1) A contravention of this Part by an Australian lawyer who is not
an Australian legal practitioner is capable of constituting
unsatisfactory professional conduct or professional misconduct.
(2) Nothing in this Part affects any liability that a person who is an
Australian lawyer (but not an Australian legal practitioner) may
20 have under Part 13, and the person may be punished for an
offence under this Part as well as being dealt with under Part 13
in relation to the same matter.
page 31
Legal Profession Bill 2007
Part 4 Admission of local lawyers
Division 1 Preliminary
s. 20
Part 4 -- Admission of local lawyers
Division 1 -- Preliminary
20. Purposes
The purposes of this Part are as follows --
5 (a) in the interests of the administration of justice and for
the protection of consumers of legal services, to provide
a system under which only applicants who have
appropriate academic qualifications and practical legal
training and who are otherwise fit and proper persons to
10 be admitted are qualified for admission to the legal
profession in this jurisdiction;
(b) to provide for the recognition of equivalent
qualifications and training that make applicants eligible
for admission to the legal profession in other
15 jurisdictions.
Division 2 -- Eligibility and suitability for admission
21. Eligibility for admission
(1) In this section --
"approved academic qualifications" means academic
20 qualifications that are approved, under the admission rules,
for admission to the legal profession in this jurisdiction;
"approved practical legal training requirements" means
legal training requirements that are approved, under the
admission rules, for admission to the legal profession in
25 this jurisdiction;
"corresponding academic qualifications" means academic
qualifications that would qualify the person for admission
to the legal profession in another jurisdiction if the Board is
satisfied that substantially the same minimum criteria apply
30 for the approval of academic qualifications for admission in
the other jurisdiction as apply in this jurisdiction;
page 32
Legal Profession Bill 2007
Admission of local lawyers Part 4
Eligibility and suitability for admission Division 2
s. 22
"corresponding practical legal training requirements"
means legal training requirements that would qualify the
person for admission to the legal profession in another
jurisdiction if the Board is satisfied that substantially the
5 same minimum criteria apply for the approval of legal
training requirements for admission in the other jurisdiction
as apply in this jurisdiction.
(2) A person is eligible for admission to the legal profession under
this Act only if the person --
10 (a) is an individual aged 18 years or more; and
(b) has attained approved academic qualifications or
corresponding academic qualifications; and
(c) has satisfactorily completed approved practical training
requirements or corresponding practical legal training
15 requirements.
22. Suitability for admission
(1) The Supreme Court or Board must, in deciding if a person is a
fit and proper person to be admitted to the legal profession,
consider --
20 (a) each of the suitability matters in relation to the person to
the extent that a suitability matter is appropriate; and
(b) any other matter it considers relevant.
(2) However, the Supreme Court or Board may consider a person to
be a fit and proper person to be admitted despite a suitability
25 matter because of the circumstances relating to that matter.
23. Early consideration of suitability
(1) In this section --
"applicant for admission" means an applicant for admission to
the legal profession under this Act;
30 "prospective applicant for admission" means a person who is
undertaking or is eligible to undertake or has completed a
page 33
Legal Profession Bill 2007
Part 4 Admission of local lawyers
Division 2 Eligibility and suitability for admission
s. 24
course of legal studies but who is not an applicant for
admission;
"relevant person" means --
(a) an applicant for admission; or
5 (b) a prospective applicant for admission; or
(c) another person who has a sufficient interest in
applying for a declaration under this section.
(2) A relevant person may apply to the Board for a declaration that
a matter disclosed (including, for example, a suitability matter)
10 either in --
(a) the application for the declaration; or
(b) an undecided application for admission to the legal
profession under this Act,
will not, without more, adversely affect an assessment by the
15 Board as to whether the person is a fit and proper person to be
admitted.
(3) The Board must consider each application under this section
and, subject to section 24, make the declaration sought or refuse
to do so.
20 (4) A declaration made under this section is binding on the Board
unless the applicant failed to make a full and fair disclosure of
all matters relevant to the declaration sought.
(5) Any costs of the Board under this section are to be borne by the
person who made the application for the declaration.
25 (6) If the Board refuses to make the declaration sought, the
applicant for the declaration may apply to the State
Administrative Tribunal for a review of the decision.
24. Referral of matters to State Administrative Tribunal
(1) The Board may refer to the State Administrative Tribunal any
30 application for a declaration under section 23 if, in the opinion
of the Board, it would be appropriate for the Tribunal to
page 34
Legal Profession Bill 2007
Admission of local lawyers Part 4
Admission to the legal profession Division 3
s. 25
consider the application having regard to the seriousness of
matters disclosed by or ascertained about the applicant for
admission or prospective applicant for admission.
(2) Without limiting the powers of the State Administrative
5 Tribunal under the State Administrative Tribunal Act 2004, the
Tribunal may exercise any of the powers of the Board when
dealing with an application referred to it under this section.
(3) A decision by the Tribunal is binding on the Board and the
Tribunal unless the applicant failed to make a full and fair
10 disclosure of all matters relevant to the decision.
(4) Any costs of the Board, and the costs of a proceeding in the
Tribunal, under this section are to be borne by the person who
made the application for the declaration under section 23.
Division 3 -- Admission to the legal profession
15 25. Application for admission
(1) A person may apply to the Supreme Court (full bench) to be
admitted to the legal profession.
(2) An application must be made in accordance with the admission
rules.
20 26. Admission by the Supreme Court
(1) The Supreme Court (full bench) may admit a person as a
lawyer if --
(a) the Supreme Court (full bench) is satisfied that the
person --
25 (i) is eligible for admission to the legal profession;
and
(ii) is a fit and proper person to be admitted to the
legal profession;
and
page 35
Legal Profession Bill 2007
Part 4 Admission of local lawyers
Division 3 Admission to the legal profession
s. 27
(b) the person takes an oath of office, or an affirmation of
office, in the form required by the Supreme Court.
(2) For the purposes of subsection (1)(a), the Supreme Court (full
bench) may rely on the advice of the Board.
5 (3) The advice of the Board may be contained in a compliance
certificate.
(4) The Supreme Court (full bench) may refuse --
(a) to consider an application for admission if it is not made
in accordance with the admission rules; or
10 (b) to admit the person if the person has not complied with
the admission rules.
27. Objection to admission
(1) Any person who has reasonable grounds to do so may object to
the admission of a person to the legal profession.
15 (2) A notice stating the grounds of the objection must be lodged in
the Supreme Court not less than 7 days before the day on which
the application for admission is to be heard.
(3) A person who lodges a notice of objection is entitled to appear
at any hearing held to determine the objection.
20 28. Roll of persons admitted to the legal profession
(1) The Supreme Court must maintain a roll of persons admitted to
the legal profession under this Act (the "local roll").
(2) When a person is admitted under this Act, the person's name
must be entered on the local roll.
25 (3) A person admitted to the legal profession under this Act must
sign the local roll.
(4) The admission of a person under this Act is effective from the
time the person signs the local roll.
page 36
Legal Profession Bill 2007
Admission of local lawyers Part 4
Functions of Legal Practice Board in relation to admissions Division 4
s. 29
(5) The Principal Registrar must forward to the Board the name,
date of birth and date of admission of each person admitted
under this Act as soon as practicable after the person has signed
the local roll.
5 29. Local lawyer is an officer of the Supreme Court
(1) A person becomes an officer of the Supreme Court on being
admitted to the legal profession under this Act.
(2) A person ceases to be an officer of the Supreme Court under
subsection (1) if the person's name is removed from the local
10 roll.
Division 4 -- Functions of Legal Practice Board in relation
to admissions
30. Board to advise on applications for admission
The Board must --
15 (a) consider applications by persons for admission to the
legal profession under this Act; and
(b) advise the Supreme Court as to whether it considers
that --
(i) the applicant is eligible for admission; and
20 (ii) the applicant is a fit and proper person to be
admitted; and
(iii) the application is in accordance with the
admission rules.
31. Compliance certificates
25 (1) If, after considering an application for admission to the legal
profession, the Board considers that --
(a) the applicant is --
(i) eligible for admission; and
(ii) a fit and proper person to be admitted;
page 37
Legal Profession Bill 2007
Part 4 Admission of local lawyers
Division 4 Functions of Legal Practice Board in relation to admissions
s. 32
and
(b) the application is in accordance with the admission
rules; and
(c) there are no grounds for refusing to give a certificate of
5 the matters mentioned in paragraphs (a) and (b) (a
"compliance certificate"),
the Board must, within the time specified in or determined in
accordance with the admission rules, advise the Supreme Court
to that effect by filing a compliance certificate.
10 (2) If the Board refuses to give a compliance certificate to an
applicant, the Board must, within the time specified in or
determined in accordance with the admission rules, give the
Supreme Court and the applicant an information notice about
the refusal.
15 (3) An applicant may apply to the State Administrative Tribunal for
a review of a decision of the Board to refuse to give the
applicant a compliance certificate.
(4) The Board is taken to have refused to give a compliance
certificate if a compliance certificate has neither been given to
20 the applicant nor refused within 6 months after --
(a) if the Board has given the applicant a notice under
section 32 -- the applicant has complied with the notice
to the Board's satisfaction; or
(b) if paragraph (a) does not apply -- the application for
25 admission was lodged.
32. Consideration of applicant's eligibility and suitability
(1) To help the Board consider the matters referred to in
section 31(1), the Board may, by notice to the applicant,
require --
30 (a) the applicant to give the Board specified documents or
information; or
page 38
Legal Profession Bill 2007
Admission of local lawyers Part 4
Miscellaneous Division 5
s. 33
(b) the applicant to cooperate with any inquiries by the
Board that it considers appropriate.
(2) An applicant's failure to comply with a notice under
subsection (1) by the date specified in the notice and in the way
5 required by the notice is a ground for refusing to give a
compliance certificate for the applicant.
(3) The Board may refer a matter to the State Administrative
Tribunal for directions.
Division 5 -- Miscellaneous
10 33. Board is respondent to application under this Part
The Board is taken to be a respondent to every application under
this Part not made by it.
page 39
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 1 Preliminary
s. 34
Part 5 -- Legal practice by Australian
legal practitioners
Division 1 -- Preliminary
34. Purposes
5 The purposes of this Part are as follows --
(a) to facilitate the national practice of law by ensuring that
Australian legal practitioners can engage in legal
practice in this jurisdiction;
(b) to provide a system for the granting and renewing of
10 local practising certificates.
Division 2 -- Legal practice in this jurisdiction by Australian
legal practitioners
35. Entitlement of Australian legal practitioner to practise in
this jurisdiction
15 An Australian legal practitioner is, subject to this Act, entitled
to engage in legal practice in this jurisdiction.
36. WA government lawyers taken to be local legal practitioners
(1) In this section --
"employing authority" of a WA government lawyer means --
20 (a) the employing authority of the lawyer under the
Public Sector Management Act 1994; or
(b) if the lawyer does not have an employing authority
under that Act, the employing authority of the lawyer
specified in the regulations for the purposes of this
25 definition;
"government agency" means --
(a) a body, whether corporate or unincorporate, or the
holder of an office, established under a law of this
page 40
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Legal practice in this jurisdiction by Australian legal Division 2
practitioners
s. 36
jurisdiction for a public purpose or to exercise
governmental functions; or
(b) a person or body (or a class of persons or bodies)
prescribed by the regulations as being within this
5 definition;
"WA government lawyer" means an Australian lawyer
employed in --
(a) the State Solicitor's Office; or
(b) the Parliamentary Counsel's Office; or
10 (c) the Office of the Director of Public Prosecutions; or
(d) a government agency prescribed by the regulations
for the purposes of this definition.
(2) A WA government lawyer is engaged in government work
when the lawyer is engaged in legal practice in the course of the
15 lawyer's duties in relation to the entity in which the lawyer is
employed.
(3) A WA government lawyer engaged in government work is
taken to be a local legal practitioner and an Australian legal
practitioner.
20 (4) The regulations may make provision for --
(a) arrangements to be made by employing authorities of
WA government lawyers for the continuing professional
development of those lawyers; and
(b) the submission of those arrangements for approval by
25 the Attorney General; and
(c) the information to be given to the Board by an
employing authority or former employing authority of a
WA government lawyer in relation to that lawyer; and
(d) the manner and form in which the information is to be
30 given.
page 41
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 3 Local practising certificates generally
s. 37
Division 3 -- Local practising certificates generally
37. Local practising certificates
(1) Practising certificates may be granted by the Board under
this Part.
5 (2) The Board may determine the categories of local practising
certificates.
(3) The holder of a local practising certificate must not hold another
local practising certificate, or an interstate practising certificate,
that is in force during the currency of the first-mentioned local
10 practising certificate.
(4) A person contravening subsection (3) is taken to contravene a
condition of the person's practising certificate.
38. Suitability to hold local practising certificate
(1) This section has effect for the purposes of section 45 or any
15 other provision of this Act where the question of whether or not
a person is a fit and proper person to hold a local practising
certificate is relevant.
(2) The Board may, in considering whether or not the person is a fit
and proper person to hold a local practising certificate, take into
20 account any suitability matter relating to the person, and any of
the following, whether happening before or after the
commencement of this section --
(a) whether the person obtained an Australian practising
certificate because of incorrect or misleading
25 information;
(b) whether the person has contravened a condition of an
Australian practising certificate held by the person;
(c) whether the person has contravened this Act, a previous
Act or a corresponding law or the regulations or legal
30 profession rules under this Act or a corresponding law;
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Local practising certificates generally Division 3
s. 38
(d) whether the person has contravened --
(i) an order of the Complaints Committee or the
State Administrative Tribunal or Supreme Court
(full bench) exercising jurisdiction under this Act
5 or a previous Act; or
(ii) an order of a corresponding disciplinary body or
of another court or tribunal of another
jurisdiction exercising jurisdiction or powers by
way of appeal or review of an order of a
10 corresponding disciplinary body;
(e) without limiting any other paragraph --
(i) whether the person has failed to pay a required
contribution or levy to the Guarantee Fund; or
(ii) whether the person has contravened a
15 requirement imposed under this Act about
professional indemnity insurance; or
(iii) whether the person has failed to pay other costs,
expenses or fines for which the person is liable
under this Act or a previous Act;
20 (f) any other matters relating to the person the Board
considers are appropriate.
(3) A person may be considered a fit and proper person to hold a
local practising certificate even though the person is within any
of the categories of the matters referred to in subsection (2), if
25 the Board consider that the circumstances warrant the
determination.
(4) If a matter was --
(a) disclosed in an application for admission to the legal
profession in this or another jurisdiction; and
30 (b) determined by the Supreme Court or by the Board or a
corresponding authority not to be sufficient for refusing
admission,
the matter cannot be taken into account as a ground for refusing
to grant or renew or for cancelling a local practising certificate,
page 43
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 3 Local practising certificates generally
s. 39
but the matter may be taken into account when considering
other matters in relation to the person concerned.
39. Duration of local practising certificate
(1) A local practising certificate granted under this Act is in force
5 from the date specified in it until the end of the financial year in
which it is granted, unless --
(a) the certificate is sooner suspended or cancelled; or
(b) an earlier date is specified in the local practising
certificate as the date on which it ceases to be in force.
10 (2) A local practising certificate renewed under this Act is in force
until the end of the financial year following its previous period
of currency, unless --
(a) the certificate is sooner suspended or cancelled; or
(b) an earlier date is specified in the local practising
15 certificate as the date on which it ceases to be in force.
(3) If an application accepted by the Board for the renewal of a
local practising certificate that ceases to be in force at the end of
a financial year has not been finally determined by the
following 1 July, the certificate --
20 (a) continues in force on and from that 1 July until the
application has been finally determined or the holder
withdraws the application for renewal, unless the
certificate is sooner cancelled or renewed; and
(b) if renewed, is to be taken to have been renewed on and
25 from that 1 July.
(4) For the purposes of subsection (3), an application is finally
determined --
(a) by the renewal of the certificate; or
(b) by the exhaustion of all rights of review in relation to a
30 decision to refuse to renew the certificate.
page 44
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Grant or renewal of local practising certificate Division 4
s. 40
40. Professional indemnity insurance
(1) The Board must not grant or renew a local practising certificate
unless the applicant produces evidence to the satisfaction of the
Board that the applicant is, or will be, covered by professional
5 indemnity insurance that complies with the requirements
imposed under this Act in relation to the applicant.
(2) This section does not apply in relation to a person, or person of
a class, exempted from the requirements of the regulations.
(3) The Board is entitled to accept as evidence that the applicant
10 has, or will, comply with the requirements of the regulations
under Part 11 evidence that the regulations provide is acceptable
evidence for the purposes of this section.
41. Local legal practitioner is officer of Supreme Court
A local legal practitioner is an officer of the Supreme Court.
15 Division 4 -- Grant or renewal of local practising certificate
42. Application for grant or renewal of local practising
certificate
(1) An Australian lawyer may apply to the Board for the grant or
renewal of a local practising certificate if eligible to do so under
20 this section.
(2) An Australian lawyer is eligible to apply for the grant or
renewal of a local practising certificate if the lawyer complies
with any regulations and legal profession rules relating to
eligibility for the practising certificate and if --
25 (a) in the case of a lawyer who is not an Australian legal
practitioner at the time of making the application --
(i) the lawyer reasonably expects to be engaged in
Australian legal practice solely or principally in
this jurisdiction during the currency of the
30 certificate or renewal applied for; or
page 45
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 4 Grant or renewal of local practising certificate
s. 42
(ii) if subparagraph (i) does not apply to the lawyer
or it is not reasonably practicable to determine
whether it applies to the lawyer -- the lawyer's
place of residence in Australia is this jurisdiction
5 or the lawyer does not have a place of residence
in Australia;
or
(b) in the case of a lawyer who is an Australian legal
practitioner at the time of making the application --
10 (i) the jurisdiction in which the lawyer engages in
legal practice solely or principally is this
jurisdiction; or
(ii) the lawyer holds a current local practising
certificate and engages in legal practice in
15 another jurisdiction under an arrangement that is
of a temporary nature; or
(iii) the lawyer reasonably expects to be engaged in
legal practice solely or principally in this
jurisdiction during the currency of the certificate
20 or renewal applied for; or
(iv) if subparagraph (i), (ii) or (iii) does not apply to
the lawyer or it is not reasonably practicable to
determine whether subparagraph (i), (ii) or (iii)
applies to the lawyer -- the lawyer's place of
25 residence in Australia is this jurisdiction or the
lawyer does not have a place of residence in
Australia.
(3) For the purposes of subsection (2)(b), the jurisdiction in which
an Australian lawyer engages in legal practice solely or
30 principally is to be decided by reference to the lawyer's legal
practice during the certificate period current at the time --
(a) the application is made; or
(b) in the case of a late application -- the application should
have been made.
page 46
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Grant or renewal of local practising certificate Division 4
s. 42
(4) An Australian lawyer is not eligible to apply for the grant or
renewal of a local practising certificate in respect of a financial
year if the lawyer would also be the holder of another Australian
practising certificate for that year, but this subsection does not
5 limit the factors determining ineligibility to apply for the grant
or renewal of a local practising certificate.
(5) An Australian lawyer must not apply for the grant or renewal of
a local practising certificate if the lawyer is not eligible to make
the application.
10 (6) An Australian lawyer who --
(a) engages in legal practice solely or principally in this
jurisdiction during a financial year; and
(b) reasonably expects to engage in legal practice solely or
principally in this jurisdiction in the following financial
15 year,
must apply for the grant or renewal of a local practising
certificate in respect of the following financial year.
(7) Subsection (6) does not apply to an interstate legal practitioner
who applied for the grant or renewal of an interstate practising
20 certificate on the basis that the practitioner reasonably expected
to engage in legal practice solely or principally in this
jurisdiction under an arrangement that is of a temporary nature.
(8) The exemption provided by subsection (7) ceases to operate at
the end of the period prescribed by the regulations for the
25 purposes of this subsection.
(9) A reference in this section to engaging in legal practice
principally in this or any other jurisdiction applies only to legal
practice in Australia and, accordingly, an Australian lawyer who
is engaged or expects to be engaged in legal practice principally
30 in a foreign country is nevertheless eligible to apply for the
grant or renewal of a local practising certificate if the lawyer
otherwise meets the requirements of this section.
page 47
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 4 Grant or renewal of local practising certificate
s. 43
(10) An Australian lawyer is also eligible to apply for the grant or
renewal of a local practising certificate if the lawyer is of a class
of description prescribed by the regulations. The regulations
may provide that the Board has a discretion as to whether or not
5 to grant or renew a local practising certificate to a person in his
or her capacity as an Australian lawyer of that class or
description.
43. Manner of application and fees
(1) An application for the grant or renewal of a local practising
10 certificate must be --
(a) made in an approved form; and
(b) accompanied by the fees prescribed by the legal
profession rules and the Guarantee Fund contribution, if
any, required under this Act.
15 (2) Different fees may be set for local practising certificates
according to different factors as prescribed by the legal
profession rules.
(3) The approved form may require the applicant to disclose matters
that may affect the applicant's eligibility for the grant or
20 renewal of a local practising certificate or the question whether
the applicant is a fit and proper person to hold a local practising
certificate.
(4) The approved form may indicate that particular kinds of matters
previously disclosed in a particular manner need not be
25 disclosed for the purposes of the current application.
44. Timing of application for renewal of local practising
certificate
(1) An application for the renewal of a local practising certificate
must be made within --
30 (a) the period prescribed by the legal profession rules as the
standard renewal period; or
page 48
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Grant or renewal of local practising certificate Division 4
s. 44
(b) the later period prescribed by the legal profession rules
as the late fee period.
(2) Those periods must be within the currency of the local
practising certificate being sought to be renewed.
5 (3) The Board may reject an application for renewal made during
the late fee period, and must reject an application for renewal
made outside those periods unless the Board accepts the
application under subsection (4).
(4) The Board may accept an application made within 6 months
10 after the late fee period (even after the expiry of the local
practising certificate being sought to be renewed) if satisfied the
delay was caused by reasons beyond the control of the applicant
or other special circumstances warranting acceptance of the
application.
15 (5) For an application accepted under subsection (4) after the expiry
of the local practising certificate on 30 June in the year
concerned, the certificate --
(a) is taken to have continued in force on and from the
1 July immediately following its expiry until the Board
20 renews or refuses to renew the certificate or the holder
withdraws the application for renewal, unless the
certificate is sooner suspended or cancelled; and
(b) if renewed, is taken to have been renewed on and from
that 1 July.
25 (6) Subsection (7) applies if an application for renewal of a local
practising certificate is made during or after the late fee period
prescribed by the legal profession rules.
(7) Payment of a late fee prescribed by or determined under the
legal profession rules may, if the Board thinks fit, be required as
30 a condition of acceptance of the application.
page 49
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 4 Grant or renewal of local practising certificate
s. 45
45. Grant or renewal of local practising certificate
(1) The Board must consider an application that has been made to it
for the grant or renewal of a local practising certificate and
may --
5 (a) grant or refuse to grant the certificate; or
(b) renew or refuse to renew the certificate.
(2) The Board may, when granting or renewing the certificate,
impose conditions as referred to in section 47.
(3) The Board may refuse --
10 (a) to consider an application if --
(i) it is not made in accordance with this Act; or
(ii) the required fees and costs have not been paid;
or
(b) to grant or renew a local practising certificate if the
15 applicant has not complied with this Act in relation to
the application.
(4) The Board must not grant a local practising certificate unless it
is satisfied that the applicant --
(a) was eligible to apply for the grant when the application
20 was made; and
(b) is a fit and proper person to hold the certificate.
(5) The Board must not renew a local practising certificate if it is
satisfied that the applicant --
(a) was not eligible to apply for the renewal when the
25 application was made; or
(b) is not a fit and proper person to continue to hold the
certificate.
(6) The Board must not grant or renew a local practising certificate
if it considers the applicant's circumstances have changed since
30 the application was made and the applicant would (having
page 50
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Conditions on local practising certificates Division 5
s. 46
regard to information that has come to the Board's attention) not
have been eligible to make the application when the application
is being considered.
(7) If the Board grants or renews a local practising certificate, the
5 Board must, as soon as practicable, give the applicant --
(a) for the grant of a certificate -- a local practising
certificate; or
(b) for the renewal of a certificate -- a new local practising
certificate.
10 (8) If the Board --
(a) refuses to grant or renew a local practising certificate; or
(b) imposes a condition on the certificate and the applicant
does not agree to the condition,
the Board must, as soon as practicable, give the applicant an
15 information notice.
(9) The Board is taken to have refused to grant a local practising
certificate if the certificate has neither been granted nor refused
within 6 months after --
(a) if the Board has given the applicant a notice under
20 section 75 -- the applicant has complied with the notice
to the Board's satisfaction; or
(b) if paragraph (a) does not apply -- the application was
lodged.
Division 5 -- Conditions on local practising certificates
25 46. Conditions generally
(1) A local practising certificate is subject to --
(a) any conditions imposed by the Board under this Act;
and
(b) any conditions imposed under section 48; and
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Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 5 Conditions on local practising certificates
s. 47
(c) any conditions imposed under the legal profession rules;
and
(d) any conditions imposed under Part 13 or under
provisions of a corresponding law that correspond to
5 Part 13; and
(e) any other conditions imposed under this or any other
Act.
(2) If a condition is imposed, varied or revoked under this Act
during the currency of the local practising certificate concerned,
10 the certificate must be amended by the Board, or a new
certificate must be issued by the Board, to reflect on its face the
imposition, variation or revocation.
47. Conditions imposed by Board
(1) The Board may impose conditions on a local practising
15 certificate --
(a) when it is granted or renewed; or
(b) during its currency.
(2) A condition imposed under this section must be reasonable and
relevant.
20 (3) A condition imposed under this section may be about any of the
following --
(a) requiring the holder of the practising certificate to
undertake and complete --
(i) continuing legal education; or
25 (ii) specific legal education or training; or
(iii) a period of supervised legal practice;
(b) restricting the areas of law practised;
(c) controlling, restricting or prohibiting the operation of a
trust account;
30 (d) controlling, restricting or prohibiting the receipt of trust
money;
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Conditions on local practising certificates Division 5
s. 47
(e) restricting the holder to particular conditions concerning
employment or supervision;
(f) requiring the holder of the practising certificate to
undergo counselling or medical treatment or to act in
5 accordance with medical advice given to the holder;
(g) requiring the holder of the practising certificate to use
the services of an accountant or other financial specialist
in connection with the holder's practice;
(h) requiring the holder of the practising certificate to
10 provide the Board with evidence as to any outstanding
tax obligations of the holder and as to provision made by
the holder to satisfy any such outstanding obligations;
(i) a matter agreed by the holder.
(4) Subsection (3) does not limit the matters about which a
15 condition may be imposed under this section.
(5) The Board must not impose a condition requiring the holder to
undertake and complete specific legal education or training
unless --
(a) the Board is satisfied, having regard to --
20 (i) the nature and currency of the holder's academic
studies, legal training or experience; or
(ii) the holder's conduct,
that it is reasonable to require the specific legal
education or training to be undertaken; or
25 (b) the condition is one that is imposed generally on holders
of local practising certificates or any class of holders of
local practising certificates.
(6) The Board may vary or revoke conditions imposed under this
section.
30 (7) If the Board imposes a condition on, or varies or revokes a
condition during the currency of the local practising certificate
concerned, the imposition, variation or revocation takes effect
page 53
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 5 Conditions on local practising certificates
s. 48
when the holder has been notified of it or at a later time
specified by the Board.
(8) This section has effect subject to section 56 in relation to the
imposition of a condition on a local practising certificate during
5 its currency.
48. Imposition or variation of conditions pending criminal
proceedings
(1) If a local legal practitioner has been charged with an offence but
the charge has not been determined, the Board may apply to the
10 State Administrative Tribunal for an order under this section.
(2) On application under subsection (1), the State Administrative
Tribunal may make either or both of the following orders --
(a) an order varying the conditions on the practitioner's
local practising certificate;
15 (b) an order imposing conditions or further conditions on
the practitioner's local practising certificate.
(3) The State Administrative Tribunal may make an order under
this section only if the Tribunal considers it appropriate to do
so, having regard to --
20 (a) the seriousness of the offence; and
(b) the public interest.
(4) An order under this section has effect until the sooner of --
(a) the end of the period specified by the State
Administrative Tribunal; or
25 (b) if the practitioner is convicted of the offence -- 28 days
after the day of the conviction; or
(c) if the charge is dismissed -- the day of the dismissal.
(5) The State Administrative Tribunal, on application by any party,
may vary or revoke an order under this section at any time.
page 54
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Conditions on local practising certificates Division 5
s. 49
49. Conditions imposed on interstate admission
(1) A local legal practitioner must not contravene a condition that
was imposed on the admission of a person to the legal
profession under a corresponding law (with any variations of the
5 condition made from time to time) and that is still in force.
(2) A person contravening a condition referred to in subsection (1)
is taken to contravene a condition of the person's local
practising certificate.
50. Restricted legal practice
10 (1) In this section -
"required experience" means --
(a) 18 months supervised legal practice, in the case of a
person who, to qualify for admission to the legal
profession, completed practical legal training --
15 (i) principally under the supervision of an
Australian legal practitioner, whether
involving articles of clerkship or otherwise; or
(ii) involving articles of clerkship principally
under the supervision of a person other than
20 an Australian legal practitioner in accordance
with the admission rules;
or
(b) 2 years supervised legal practice, in the case of a
person who, to qualify for admission to the legal
25 profession in this or another jurisdiction, completed
other practical legal training;
"restricted legal practice" means legal practice by a person
who is an Australian legal practitioner --
(a) as an employee of a law practice if --
30 (i) at least one partner, legal practitioner director
or other employee of the law practice is an
Australian legal practitioner who holds an
unrestricted practising certificate; and
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Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 5 Conditions on local practising certificates
s. 50
(ii) the person engages in legal practice under the
supervision of an Australian legal practitioner
referred to in subparagraph (i);
or
5 (b) as a partner in a law firm if --
(i) at least one other partner is an Australian legal
practitioner who holds an unrestricted
practising certificate; and
(ii) the person engages in legal practice under the
10 supervision of an Australian legal practitioner
referred to in subparagraph (i);
or
(c) as a WA government lawyer; or
(d) as an interstate government lawyer; or
15 (e) as an employee of a body that carries on a business
other than the practice of law if the person engages in
legal practice under the supervision of an Australian
legal practitioner who holds an unrestricted practising
certificate; or
20 (f) in a capacity approved for the purposes of this
paragraph under a legal profession rule.
(2) In determining whether a person has the required experience
regard can only be had to a period of supervised legal practice
that the regulations permit to be taken into account for the
25 purposes of this section.
(3) The required experience may be made up of separate periods of
supervised legal practice.
(4) A local legal practitioner who does not have the required
experience must engage in restricted legal practice only.
30 (5) A person contravening subsection (4) is taken to contravene a
condition of the person's local practising certificate.
page 56
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Conditions on local practising certificates Division 5
s. 51
(6) A condition of a local practising certificate may require the
holder to engage in supervised legal practice even though the
holder has the required experience.
(7) The Board may exempt a person or class of persons from the
5 requirement of subsection (4) or may reduce the required
experience for the person or class of persons, if satisfied that the
person or persons do not need to be supervised or need to be
supervised only for a shorter period, having regard to --
(a) the length and nature of any legal practice previously
10 engaged in by the person or persons; and
(b) the length and nature of any legal practice engaged in by
the supervisors (if any) who previously supervised the
legal practice engaged in by the person or persons.
(8) An exemption under subsection (7) may be given
15 unconditionally or subject to such conditions as the Board
thinks appropriate.
51. Notification of offence
(1) A local legal practitioner must give notice in an approved form
to the Board if the holder is --
20 (a) convicted of an offence that would have to be disclosed
under the admission rules in relation to an application to
admission; or
(b) charged with a serious offence.
(2) The notice must be given to the Board within 7 days after
25 conviction or charge.
(3) This section does not apply to an offence to which Division 7
applies.
(4) A person contravening subsection (1) is taken to contravene a
condition of the person's local practising certificate.
page 57
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 6 Amendment, suspension or cancellation of local practising
certificates
s. 52
52. Conditions imposed by legal profession rules
(1) The legal profession rules may --
(a) impose conditions on local practising certificates or any
class of local practising certificates; and
5 (b) authorise conditions to be imposed on local practising
certificates or any class of local practising certificates.
(2) Without limiting subsection (1), conditions on local practising
certificates or any class of local practising certificates may be
imposed under the legal profession rules about any matter
10 referred to in section 47(3)(a)(1), (c) or (d).
53. Compliance with conditions
The holder of a current local practising certificate must not
contravene (in this jurisdiction or elsewhere) a condition to
which the certificate is subject.
15 Division 6 -- Amendment, suspension or cancellation of local
practising certificates
54. Application of this Division
This Division does not apply in relation to matters referred to in
Division 7.
20 55. Grounds for amending, suspending or cancelling local
practising certificate
Each of the following is a ground for amending, suspending or
cancelling a local practising certificate --
(a) the holder is no longer a fit and proper person to hold
25 the certificate;
(b) the holder is not, or is no longer, covered by
professional indemnity insurance that complies with
requirements imposed under this Act;
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Legal practice by Australian legal practitioners Part 5
Amendment, suspension or cancellation of local practising Division 6
certificates
s. 56
(c) if a condition of the certificate is that the holder is
limited to legal practice specified in the certificate -- the
holder is or has been engaging in legal practice that the
holder is not entitled to engage in under this Act.
5 56. Amending, suspending or cancelling local practising
certificate
(1) In this section --
"amend", in relation to a certificate, means amend the
certificate under section 47 during its currency, otherwise
10 than at the request of the holder of the certificate.
(2) If the Board believes a ground exists to amend, suspend or
cancel a local practising certificate (the "proposed action"), the
Board must give the holder a notice that --
(a) states the proposed action and --
15 (i) if the proposed action is to amend the
certificate -- states the proposed amendment;
and
(ii) if the proposed action is to suspend the
certificate -- states the proposed suspension
20 period;
and
(b) states the grounds for proposing to take the proposed
action; and
(c) outlines the facts and circumstances that form the basis
25 for the Board's belief; and
(d) invites the holder to make written representations to the
Board within a specified time of not less than 7 days and
not more than 28 days, as to why the proposed action
should not be taken.
30 (3) If, after considering all written representations made within the
specified time and, in its discretion, written representations
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Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 6 Amendment, suspension or cancellation of local practising
certificates
s. 57
made after the specified time, the Board still believes a ground
exists to take the proposed action, the Board may --
(a) if the notice under subsection (2) stated the proposed
action was to amend the practising certificate -- amend
5 the certificate in the way stated or in a less onerous way
the Board considers appropriate because of the
representations; or
(b) if the notice stated the proposed action was to suspend
the practising certificate for a specified period --
10 (i) suspend the certificate for a period no longer
than the specified period; or
(ii) amend the certificate in a less onerous way the
Board considers appropriate because of the
representations;
15 or
(c) if the notice stated the proposed action was to cancel the
practising certificate --
(i) cancel the certificate; or
(ii) suspend the certificate for a period; or
20 (iii) amend the certificate in a less onerous way the
Board considers appropriate because of the
representations.
(4) If the Board decides to amend, suspend or cancel the practising
certificate, the Board must give the holder an information notice
25 about the decision.
57. Operation of amendment, suspension or cancellation of local
practising certificate
(1) This section applies if a decision is made to amend, suspend or
cancel a local practising certificate under section 56.
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Amendment, suspension or cancellation of local practising Division 6
certificates
s. 57
(2) Subject to subsections (3) and (4), the amendment, suspension
or cancellation of the practising certificate takes effect on the
later of the following --
(a) the day notice of the decision is given to the holder;
5 (b) the day specified in the information notice.
(3) If the practising certificate is amended, suspended or cancelled
because the holder has been convicted of an offence --
(a) the State Administrative Tribunal may, on the
application of the holder, order that the operation of the
10 amendment, suspension or cancellation of the practising
certificate be stayed until --
(i) the end of the time to appeal against the
conviction; and
(ii) if an appeal is made against the conviction -- the
15 appeal is finally decided, lapses or otherwise
ends;
and
(b) the amendment, suspension or cancellation does not
have effect during any period in respect of which the
20 stay is in force.
(4) If the practising certificate is amended, suspended or cancelled
because the holder has been convicted of an offence and the
conviction is quashed --
(a) the amendment or suspension ceases to have effect when
25 the conviction is quashed; or
(b) the cancellation ceases to have effect when the
conviction is quashed and the certificate is restored as if
it had merely been suspended.
page 61
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 6 Amendment, suspension or cancellation of local practising
certificates
s. 58
58. Immediate suspension of local practising certificate
(1) This section applies, despite section 56 and Division 7, if the
Board considers it necessary in the public interest to
immediately suspend a local practising certificate on --
5 (a) any of the grounds on which the certificate could be
suspended or cancelled under section 56; or
(b) the ground of the happening of a show cause event in
relation to the holder; or
(c) any other ground that the Board considers warrants
10 suspension of the certificate in the public interest,
whether or not any action has been taken or commenced under
section 56 or Division 7 in relation to the holder.
(2) The Board may, by written notice given to the holder,
immediately suspend the practising certificate until the earlier of
15 the following --
(a) the time at which the Board informs the holder of the
Board's decision by notice under section 56;
(b) the end of the period of 56 days after the notice is given
to the holder under this section.
20 (3) The notice under this section must --
(a) include an information notice about the suspension; and
(b) state that the holder may make written representations to
the Board about the suspension.
(4) The holder may make written representations to the Board about
25 the suspension, and the Board must consider the representations.
(5) The Board may revoke the suspension at any time, whether or
not in response to any written representations made to it by the
holder.
page 62
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Amendment, suspension or cancellation of local practising Division 6
certificates
s. 59
59. Other ways of amending, suspending or cancelling local
practising certificate
(1) The Board may --
(a) amend a local practising certificate if the holder requests
5 the Board to do so; or
(b) suspend a local practising certificate for a specified
period if the holder requests the Board to do so or agrees
to the Board doing so; or
(c) cancel a local practising certificate if the holder requests
10 the Board to do so or surrenders the certificate to the
Board.
(2) The Board may amend a local practising certificate --
(a) for a formal or clerical reason; or
(b) in another way that does not adversely affect the
15 holder's interests.
(3) A local practising certificate is automatically cancelled when
the holder's name is removed from the local roll or the holder
ceases to be an Australian lawyer.
(4) The amendment, suspension or cancellation of a local practising
20 certificate under subsection (1) or (2) is effected by written
notice given to the holder.
(5) Section 56 does not apply in the case of an amendment,
suspension or cancellation under this section.
(6) If the Board decides to refuse a request referred to in
25 subsection (1), the Board must give the holder an information
notice about the decision.
60. Relationship of this Division with Part 13
Nothing in this Division prevents a complaint from being made,
or an investigation being initiated, under Part 13 about a matter
30 to which this Division relates.
page 63
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 7 Special powers in relation to local practising certificates --
show cause events
s. 61
Division 7 -- Special powers in relation to local practising
certificates -- show cause events
61. Applicant for local practising certificate -- show cause event
(1) This section applies if --
5 (a) a person (the "applicant") is applying for the grant of a
local practising certificate; and
(b) a show cause event in relation to the person happened,
whether before or after the commencement of this
section, after the person was first admitted to the legal
10 profession in this or another jurisdiction, however the
admission was expressed at the time of the admission.
(2) As part of the application, the applicant must provide to the
Board a written statement --
(a) about the show cause event; and
15 (b) explaining why, despite the show cause event, the
applicant considers himself or herself to be a fit and
proper person to hold a local practising certificate.
(3) However, the applicant need not provide a statement under
subsection (2) if the applicant (as a previous applicant for a
20 local practising certificate or as the holder of a local practising
certificate previously in force) has previously provided to the
Board --
(a) a statement under this section; or
(b) a notice and statement under section 62,
25 explaining why, despite the show cause event, the applicant
considers himself or herself to be a fit and proper person to hold
a local practising certificate.
62. Holder of local practising certificate -- show cause event
(1) This section applies to a show cause event that happens in
30 relation to the holder of a local practising certificate.
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Special powers in relation to local practising certificates -- Division 7
show cause events
s. 63
(2) The holder must provide to the Board both of the following --
(a) within 7 days after the happening of the event -- notice,
in the approved form, that the event happened;
(b) within 28 days after the happening of the event -- a
5 written statement explaining why, despite the show
cause event, the person considers himself or herself to
be a fit and proper person to hold a local practising
certificate.
(3) If a written statement is provided after the 28 days mentioned in
10 subsection (2)(b), the Board may accept the statement and take
it into account.
63. Refusal, amendment, suspension or cancellation of local
practising certificate -- failure to show cause
(1) The Board may refuse to grant or renew, or may amend,
15 suspend or cancel, a local practising certificate if the applicant
or holder --
(a) is required by section 61 or 62 to provide a written
statement relating to a matter and has failed to provide a
written statement in accordance with that requirement;
20 or
(b) has provided a written statement in accordance with
section 61 or 62, but the Board does not consider that
the applicant or holder has shown in the statement that,
despite the show cause event concerned, the applicant or
25 holder is a fit and proper person to hold a local
practising certificate.
(2) For the purposes of this section only, a written statement
accepted by the Board under section 62(3) is taken to have been
provided in accordance with section 62.
30 (3) The Board must give the applicant or holder an information
notice about the decision to refuse to grant or renew, or to
amend, suspend or cancel, the certificate.
page 65
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 7 Special powers in relation to local practising certificates --
show cause events
s. 64
64. Restriction on making further applications
(1) This section applies if the Board decides under section 63 to
refuse to grant or renew a local practising certificate to a person
or to cancel a person's local practising certificate.
5 (2) The Board may also decide that the person is not entitled to
apply for the grant of a local practising certificate for a specified
period not exceeding 5 years.
(3) If the Board makes a decision under subsection (2), the Board
must include the decision in the information notice required
10 under section 63(3).
(4) A person in respect of whom a decision has been made under
this section, or under a provision of a corresponding law, is not
entitled to apply for the grant of a local practising certificate
during the period specified in the decision.
15 65. Power to renew practising certificate or defer action in
special circumstances
(1) Despite any other provision of this Division, the Board may
renew a holder's local practising certificate if the end of the
financial year for which the holder's current practising
20 certificate is in force is imminent and the Board has not made a
determination under section 63 in relation to the holder.
(2) The renewal of a practising certificate in the circumstances
referred to in subsection (1) does not prevent a determination
from subsequently being made and action taken under this
25 Division to cancel, suspend or amend the holder's local
practising certificate.
(3) Despite any other provision of this Act, where the Board is
required to determine a matter under section 63 in relation to a
holder, it may, for the purpose of enabling the proper
30 arrangement of the affairs of the holder --
(a) renew the holder's local practising certificate for such
period, specified in the local practising certificate, as the
Board considers necessary to achieve that purpose; or
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Legal practice by Australian legal practitioners Part 5
Further provisions relating to local practising certificates Division 8
s. 66
(b) defer cancelling or suspending the holder's local
practising certificate for such period as the Board
considers necessary to achieve that purpose.
66. Relationship of this Division with Part 13
5 Nothing in this Division prevents a complaint from being made,
or an investigation from being initiated, under Part 13 about a
matter to which this Division relates.
Division 8 -- Further provisions relating to local
practising certificates
10 67. Return of local practising certificate
(1) This section applies if a local practising certificate granted to an
Australian legal practitioner --
(a) is amended, cancelled or suspended by the Board or
because of an order under Part 13; or
15 (b) is replaced by another certificate.
(2) The Board may give the practitioner a notice requiring the
practitioner to return the certificate to the Board in the way
specified in the notice within a specified period of not less than
14 days.
20 (3) The practitioner must comply with a notice, unless the
practitioner has a reasonable excuse.
Penalty: a fine of $2 000.
(4) The Board must return the practising certificate to the
practitioner as soon as practicable --
25 (a) if the certificate is amended -- after amending it; or
(b) if the certificate is suspended and is still current at the
end of the suspension period -- at the end of the
suspension period.
page 67
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 9 Interstate legal practitioners
s. 68
Division 9 -- Interstate legal practitioners
68. Requirement for professional indemnity insurance
(1) An interstate legal practitioner must not engage in legal practice
in this jurisdiction, or represent or advertise that the practitioner
5 is entitled to engage in legal practice in this jurisdiction, unless
the practitioner --
(a) is covered by professional indemnity insurance that --
(i) covers legal practice in this jurisdiction; and
(ii) has been approved under or complies with the
10 requirements of the corresponding law of the
practitioner's home jurisdiction; and
(iii) is for at least $1.5 million (inclusive of defence
costs), unless (without affecting subparagraph (i)
or (ii)) the practitioner engages in legal practice
15 solely as or in the manner of a barrister;
or
(b) is employed by a corporation, other than an incorporated
legal practice, and the only legal services provided by
the practitioner in this jurisdiction are in-house legal
20 services.
Penalty: a fine of $10 000.
(2) Subsection (1) does not apply to an interstate legal practitioner
who --
(a) is an interstate government lawyer; and
25 (b) is engaged in legal practice in this jurisdiction only to
the extent that the practitioner is engaged in government
work.
69. Extent of entitlement of interstate legal practitioner to
practise in this jurisdiction
30 (1) This Part does not authorise an interstate legal practitioner to
engage in legal practice in this jurisdiction to a greater extent
page 68
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Interstate legal practitioners Division 9
s. 70
than a local legal practitioner could be authorised under a local
practising certificate.
(2) Also, an interstate legal practitioner's right to engage in legal
practice in this jurisdiction --
5 (a) is subject to --
(i) any conditions imposed by the Board under
section 70 in relation to the interstate legal
practitioner; and
(ii) any conditions imposed under the legal
10 profession rules as referred to in that section;
and
(b) is, to the greatest practicable extent and with all
necessary changes --
(i) the same as the practitioner's right to engage in
15 legal practice in the practitioner's home
jurisdiction; and
(ii) subject to any condition on the practitioner's
right to engage in legal practice in that
jurisdiction, including any conditions imposed on
20 the practitioner's admission to the legal
profession in this or another jurisdiction.
(3) If there is an inconsistency between conditions mentioned in
subsection (2)(a) and conditions mentioned in subsection (2)(b),
the conditions that are, in the opinion of the Board, more
25 onerous prevail to the extent of the inconsistency.
(4) An interstate legal practitioner must not engage in legal practice
in this jurisdiction in a way that is not authorised under this Act
or in contravention of any condition referred to in this section.
70. Additional conditions on practice of interstate legal
30 practitioners
(1) The Board may, by written notice to an interstate legal
practitioner engaged in legal practice in this jurisdiction, impose
page 69
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 9 Interstate legal practitioners
s. 71
any condition on the practitioner's practice that the Board may
impose under this Act on a local practising certificate.
(2) The legal profession rules may impose, or provide for the
imposition of, conditions on an interstate legal practitioner's
5 right to engage in legal practice.
(3) Conditions imposed under or referred to in this section must not
be more onerous than conditions applying to local legal
practitioners.
(4) A notice under this section must include an information notice
10 about the decision to impose a condition.
(5) An interstate legal practitioner must not contravene a condition
imposed under this section.
(6) An interstate legal practitioner may apply to the State
Administrative Tribunal for review of a decision of the Board to
15 impose a condition on the practitioner's practice under this
section.
71. Notification requirements for interstate legal practitioners
(1) An interstate legal practitioner who establishes an office in this
jurisdiction must give written notice to the Board in accordance
20 with this section within 28 days after establishing the office.
Penalty: a fine of $5 000.
(2) The notice must contain --
(a) the practitioner's name, date of birth and date of
admission to the legal profession; and
25 (b) the name of any law practice of which the practitioner is
a principal or employee, or any other person or body of
which the practitioner is an employee; and
(c) if the practitioner is a sole practitioner, any business
names under which the practitioner engages in legal
30 practice; and
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Interstate legal practitioners Division 9
s. 71
(d) any condition to which the practitioner is subject in
respect of his or her legal practice in his or her home
jurisdiction or elsewhere; and
(e) an address in this jurisdiction for service of notices and
5 other documents on the practitioner; and
(f) a statement as to whether the practitioner has
established, or intends to establish, an office in this
jurisdiction; and
(g) a statement as to whether the practitioner is entitled to
10 receive trust money, or to withdraw trust money from a
trust account; and
(h) the information prescribed by the regulations (if any).
(3) A notice under this section must be accompanied by --
(a) satisfactory evidence, in an approved form, that the
15 interstate legal practitioner has professional indemnity
insurance that complies with the requirements under this
Act; and
(b) the required contribution to the Guarantee Fund under
section 338, if any.
20 (4) If an interstate legal practitioner who has indicated that he or
she does not intend to establish an office in this jurisdiction
subsequently establishes an office in this jurisdiction, the
practitioner must give notice to the Board within 14 days.
(5) For the purposes of this section, an interstate legal practitioner
25 establishes an office in this jurisdiction when the practitioner
first offers or provides legal services to the public in this
jurisdiction from an office maintained by the practitioner, or by
a principal of a law practice of which the practitioner is an
associate, for that purpose in this jurisdiction.
page 71
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 9 Interstate legal practitioners
s. 72
72. Special provisions about interstate legal practitioner
engaging in unsupervised legal practice in this jurisdiction
(1) In this section --
"required experience" means --
5 (a) 18 months supervised legal practice, in the case of a
person who, to qualify for admission to the legal
profession, completed practical legal training --
(i) principally under the supervision of an
Australian legal practitioner, whether
10 involving articles of clerkship or otherwise; or
(ii) involving articles of clerkship principally
under the supervision of a person other than
an Australian legal practitioner in accordance
with the admission rules;
15 or
(b) 2 years supervised legal practice, in the case of a
person who, to qualify for admission to the legal
profession in this or another jurisdiction, completed
other practical legal training;
20 "restricted legal practice" means legal practice by a person
who is an Australian legal practitioner --
(a) as an employee of a law practice if --
(i) at least one partner, legal practitioner director
or other employee of the law practice is an
25 Australian legal practitioner who holds an
unrestricted practising certificate; and
(ii) the person engages in legal practice under the
supervision of an Australian legal practitioner
referred to in subparagraph (i);
30 or
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Interstate legal practitioners Division 9
s. 72
(b) as a partner in a law firm if --
(i) at least one other partner is an Australian legal
practitioner who holds an unrestricted
practising certificate; and
5 (ii) the person engages in legal practice under the
supervision of an Australian legal practitioner
referred to in subparagraph (i);
or
(c) as a WA government lawyer; or
10 (d) as an interstate government lawyer; or
(e) as an employee of a body that carries on a business
other than the practice of law if the person engages in
legal practice under the supervision of an Australian
legal practitioner who holds an unrestricted practising
15 certificate; or
(f) in a capacity approved for the purposes of this
paragraph under a legal profession rule.
(2) In determining whether a person has the required experience
regard can only be had to a period of supervised legal practice
20 that the regulations permit to be taken into account for the
purposes of this section.
(3) The required experience may be made up of separate periods of
supervised legal practice.
(4) An interstate legal practitioner who does not have the required
25 experience must engage in restricted legal practice only.
(5) Subsection (4) --
(a) does not apply if the interstate legal practitioner is
exempt from the requirement for required experience in
the practitioner's home jurisdiction; or
30 (b) applies only to the extent of a shorter period if the
required period of required experience has been reduced
for the interstate legal practitioner in the practitioner's
home jurisdiction.
page 73
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 10 Miscellaneous provisions relating to practice
s. 73
73. Interstate legal practitioner is officer of Supreme Court
An interstate legal practitioner engaged in legal practice in this
jurisdiction has all the duties and obligations of an officer of the
Supreme Court, and is subject to the jurisdiction of the Supreme
5 Court in respect of those duties and obligations.
Division 10 -- Miscellaneous provisions relating to practice
74. Jurisdiction protocols
(1) The Board may enter into arrangements ("jurisdiction
protocols") with regulatory authorities of other jurisdictions
10 about determining --
(a) the jurisdiction in which an Australian lawyer engages
in legal practice principally or can reasonably expect to
engage in legal practice principally; or
(b) the circumstances in which an arrangement under which
15 an Australian legal practitioner practises in a
jurisdiction --
(i) can be regarded as being of a temporary nature;
or
(ii) ceases to be of a temporary nature;
20 or
(c) the circumstances in which an Australian legal
practitioner can reasonably expect to engage in legal
practice principally in a jurisdiction during the currency
of an Australian practising certificate.
25 (2) For the purposes of this Act, and to the extent that the
jurisdiction protocols are relevant, a matter referred to in
subsection (1)(a), (b) or (c) is to be determined in accordance
with the protocols.
(3) The Board may enter into arrangements that amend, revoke or
30 replace a jurisdiction protocol.
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Miscellaneous provisions relating to practice Division 10
s. 75
(4) A jurisdiction protocol does not have effect in this jurisdiction
unless it is embodied or identified in the regulations.
75. Consideration and investigation of applicants or holders
(1) To help it consider whether or not to grant, renew, amend,
5 suspend or cancel a local practising certificate the Board may,
by notice to the applicant or holder, require the applicant or
holder --
(a) to give the Board specified documents or information; or
(b) to be medically examined by a registered medical
10 practitioner nominated by the Board and to provide to
the Board a report of that examination, at the applicant's
or holder's expense; or
(c) to obtain, at the applicant's or holder's expense, a
criminal record check for the applicant or holder and to
15 provide it to the Board; or
(d) to cooperate with any inquiries by the Board that the
Board considers appropriate.
(2) In subsection (1)(c) --
"criminal record check" means a document issued by the
20 Australian Federal Police, the Police Force of a State or
Territory, or another body or agency approved by the
Board regarding the criminal convictions of a person for
offences under the law of this or any other jurisdiction or
the Commonwealth.
25 (3) The Board may require the applicant or holder to verify
information or documents by statutory declaration or in another
manner specified by the Board.
(4) A failure to comply with a notice under subsection (1) by the
date specified in the notice and in the way required by the notice
30 is a ground for making an adverse decision in relation to the
action being considered by the Board.
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Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 10 Miscellaneous provisions relating to practice
s. 76
(5) Without limiting subsection (4), a failure to comply with a
requirement under subsection (1)(b) or (c) may be accepted by
the Board as evidence of the unfitness of the person to engage in
legal practice.
5 (6) A report of the medical examination of an applicant or holder is
not admissible in any proceeding, and a person cannot be
compelled to produce the report or to give evidence about the
report or its contents in any proceeding.
(7) Subsection (6) does not apply in relation to a proceeding for
10 review of a decision of the Board --
(a) refusing to grant or renew a local practising certificate;
or
(b) amending, suspending or cancelling a local practising
certificate.
15 (8) Subsection (6) does not apply if the report is admitted or
produced, or evidence about the report or its contents is given in
a proceeding with the consent of the applicant or holder to
whom the report relates.
76. Register of local practising certificates
20 (1) The Board must keep a register of the names of Australian
lawyers to whom it grants local practising certificates.
(2) The register must --
(a) state the conditions (if any) imposed on a local
practising certificate in relation to engaging in legal
25 practice; and
(b) include any other particulars prescribed by the
regulations.
(3) If a condition is imposed on a local practising certificate
because of the infirmity, injury or mental or physical illness of
30 the holder of the practising certificate, the Board may omit from
the register any part of the condition that includes the reason for
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Miscellaneous provisions relating to practice Division 10
s. 77
the imposition of the condition or other information in relation
to the infirmity, injury or mental or physical illness.
(4) The register may be kept in the way the Board decides.
(5) The register must be available for inspection, without charge, at
5 the Board's principal place of business during normal business
hours.
77. Orders about conditions
The Board may apply to the State Administrative Tribunal for
an order that an Australian lawyer not contravene a condition
10 imposed under this Part.
78. Review of decisions of Board
A person may apply to the State Administrative Tribunal for a
review of --
(a) a decision of the Board --
15 (i) to refuse to grant or renew a local practising
certificate; or
(ii) to amend, suspend or cancel a local practising
certificate;
or
20 (b) a decision of the Board refusing a request to amend a
local practising certificate under section 59(1); or
(c) a decision of the Board under section 64 that the person
is not entitled to apply for the grant of a local practising
certificate for a specified period.
25 79. Interstate government lawyers
(1) In this section --
"another jurisdiction" means --
(a) another State or Territory of the Commonwealth; or
(b) the Commonwealth;
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Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 10 Miscellaneous provisions relating to practice
s. 79
"government agency" of another jurisdiction means --
(a) a body or organisation that is established under the
law of that jurisdiction for a public purpose or to
exercise governmental functions; or
5 (b) a body or organisation (or a class of bodies or
organisations) prescribed by the regulations as being
within this definition;
"interstate government lawyer" means an Australian lawyer,
or a person eligible for admission to the legal profession,
10 employed by another jurisdiction or a government agency
of another jurisdiction.
(2) An interstate government lawyer is not subject to --
(a) any prohibition under this Act about --
(i) engaging in legal practice in this jurisdiction; or
15 (ii) making representations about engaging in legal
practice in this jurisdiction;
or
(b) conditions imposed on a local practising certificate,
in respect of the performance of the lawyer's official duties or
20 functions as an interstate government lawyer of the other
jurisdiction to the extent that the lawyer is exempt from matters
of the same kind under a law of the other jurisdiction.
(3) Contributions and levies are not payable to the Guarantee Fund
by or in respect of an interstate government lawyer in his or her
25 capacity as an interstate government lawyer.
(4) Without affecting the generality of subsection (2), that
subsection extends to prohibitions under section 68 relating to
professional indemnity insurance.
(5) Without affecting subsections (2), (3) and (4), nothing in this
30 section prevents an interstate government lawyer from being
granted or holding a local practising certificate.
page 78
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Miscellaneous provisions relating to practice Division 10
s. 80
80. Fees
(1) The Board may charge fees for the services that it provides.
(2) The fees set by the Board may be included in the legal
profession or admission rules.
page 79
Legal Profession Bill 2007
Part 6 Inter-jurisdictional provisions regarding admission and
practising certificates
Division 1 Preliminary
s. 81
Part 6 -- Inter-jurisdictional provisions regarding
admission and practising certificates
Division 1 -- Preliminary
81. Purpose
5 The purpose of this Part is to provide a nationally consistent
scheme for the notification of and response to action taken by
courts and other authorities in relation to the admission of
persons to the legal profession and their right to engage in legal
practice in Australia.
10 82. Other requirements not affected
This Division does not affect any functions under Part 13.
Division 2 -- Notifications to be given by local authorities to
interstate authorities
83. Official notification to other jurisdictions of applications for
15 admission and associated matters
(1) This section applies if an application for admission to the legal
profession is made under this Act.
(2) The Board may give the corresponding authority for another
jurisdiction written notice of any of the following (as
20 relevant) --
(a) the making of the application;
(b) the refusal to issue a compliance certificate in relation to
the application;
(c) the withdrawal of the application after an inquiry is
25 proposed or commenced in relation to the application;
(d) the refusal of the Supreme Court to admit the applicant
to the legal profession under this Act.
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practising certificates
Notifications to be given by local authorities to interstate Division 2
authorities
s. 84
(3) The notice must state the applicant's name and address as last
known to the Board and may contain other relevant information.
84. Official notification to other jurisdictions of removals from
local roll
5 (1) This section applies if a person's name is removed from the
local roll, except where the removal occurs under section 90.
(2) The Principal Registrar must, as soon as practicable, give
written notice of the removal to --
(a) the corresponding authority of every other jurisdiction;
10 and
(b) the registrar or other proper officer of the High Court.
(3) The notice must state --
(a) the person's name and address as last known to the
Principal Registrar; and
15 (b) the date the person's name was removed from the roll;
and
(c) the reason for removing the person's name.
(4) The notice may contain other relevant information.
85. Board to notify other jurisdictions of certain matters
20 (1) This section applies if --
(a) the Board takes any of the following actions --
(i) a refusal to grant an Australian lawyer a local
practising certificate;
(ii) a suspension or cancellation or, or refusal to
25 renew, an Australian lawyer's local practising
certificate;
or
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Division 3 Notifications to be given by lawyers to local authorities
s. 86
(b) the decision of the Board to take the action is varied or
set aside on review by the State Administrative
Tribunal.
(2) The Board must, as soon as practicable, give the corresponding
5 authorities of other jurisdictions written notice of the action
taken or the result of the review.
(3) The notice must state --
(a) the lawyer's name and address as last known to the
Board; and
10 (b) particulars of --
(i) the action taken and the reasons for it; or
(ii) the result of the review.
(4) The notice may contain other relevant information.
(5) The Board may give corresponding authorities written notice of
15 a condition imposed on an Australian lawyer's local practising
certificate.
Division 3 -- Notifications to be given by lawyers to
local authorities
86. Lawyer to give notice of removal of name from interstate
20 roll
(1) If the name of a local lawyer or a local legal practitioner has
been removed from an interstate roll, the lawyer or practitioner
must, as soon as practicable after becoming aware of the
removal, give the Principal Registrar and the Board a written
25 notice of the removal.
Penalty: a fine of $5 000.
(2) This section does not apply where the name has been removed
from an interstate roll under a provision that corresponds to
section 90.
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practising certificates
Notifications to be given by lawyers to local authorities Division 3
s. 87
87. Lawyer to give notice of interstate orders
(1) If an order is made under a corresponding law recommending
that the name of a local lawyer be removed from the local roll,
the lawyer must, as soon as practicable after becoming aware of
5 the order, give the Board written notice of the order.
Penalty: a fine of $5 000.
(2) If an order is made under a corresponding law in relation to a
local legal practitioner that --
(a) the practitioner's local practising certificate be
10 suspended or cancelled; or
(b) a local practising certificate not be granted to the
practitioner for a period; or
(c) conditions be imposed on the practitioner's local
practising certificate,
15 the practitioner must, as soon as practicable after becoming
aware of the order, give the Board written notice of the order.
Penalty: a fine of $5 000.
88. Lawyer to give notice of foreign regulatory action
If foreign regulatory action has been taken in relation to a local
20 lawyer or a local legal practitioner, the lawyer or practitioner
must, as soon as practicable, give the Board written notice of the
action taken.
Penalty: a fine of $5 000.
89. Provisions relating to requirement to notify
25 A notice to be given under this Division by a person must --
(a) state the person's name and address; and
(b) disclose full details of the action to which the notice
relates, including the date on which that action was
taken; and
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Division 4 Taking of action by local authorities in response to notifications
received
s. 90
(c) be accompanied by a copy of any official notification
provided to the person in connection with that action.
Division 4 -- Taking of action by local authorities in response
to notifications received
5 90. Peremptory removal of local lawyer's name from local roll
following removal in another jurisdiction
(1) This section applies if the Principal Registrar is satisfied that --
(a) a local lawyer's name has been removed from an
interstate roll; and
10 (b) no order referred to in section 94(1) is, at the time of
that removal, in force in relation to it.
(2) The Principal Registrar must remove the lawyer's name from
the local roll.
(3) The Principal Registrar may, but need not, give the lawyer
15 notice of the date on which the Principal Registrar proposes to
remove the name from the local roll.
(4) The Principal Registrar must, as soon as practicable, give the
former local lawyer notice of the removal of the name from the
local roll, unless notice of the date of the proposed removal was
20 previously given.
(5) The name of the former local lawyer is, on the application of the
lawyer to the Principal Registrar or on the Principal Registrar's
own initiative, to be restored to the local roll if the name is
restored to the interstate roll.
25 (6) Nothing in this section prevents the former local lawyer from
afterwards applying for admission under Part 4.
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practising certificates
Taking of action by local authorities in response to notifications Division 4
received
s. 91
91. Peremptory cancellation of local practising certificate
following removal of name from interstate roll
(1) This section applies if --
(a) a person's name is removed from an interstate roll but
5 the person remains an Australian lawyer; and
(b) the person is the holder of a local practising certificate;
and
(c) no order referred to in section 95(1) is, at the time of
that removal, in force in relation to it.
10 (2) The Board must cancel the local practising certificate as soon as
practicable after receiving official written notification of the
removal.
(3) The Board may, but need not, give the person notice of the date
on which the Board proposes to cancel the local practising
15 certificate.
(4) The Board must, as soon as practicable, give the person notice
of the cancellation, unless notice of the date of the proposed
cancellation was previously given.
(5) Nothing in this section prevents the former local lawyer from
20 afterwards applying for a local practising certificate.
92. Show cause procedure for removal of lawyer's name from
local roll following foreign regulatory action
(1) The section applies if the Board is satisfied that --
(a) foreign regulatory action has been taken in relation to a
25 local lawyer, whether before or after the commencement
of this section; and
(b) no order referred to in section 94(1) is in force in
relation to the action taken.
(2) The Board may serve on the lawyer a notice stating that the
30 Board will apply to the Supreme Court (full bench) for an order
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Part 6 Inter-jurisdictional provisions regarding admission and
practising certificates
Division 4 Taking of action by local authorities in response to notifications
received
s. 93
that the lawyer's name be removed from the local roll unless the
lawyer shows cause to the Board why the lawyer's name should
not be removed.
(3) If the lawyer does not satisfy the Board that the lawyer's name
5 should not be removed from the local roll, the Board may apply
to the Supreme Court (full bench) for an order that the lawyer's
name be removed from the local roll.
(4) Before applying for an order that the lawyer's name be
removed, the Board must afford the lawyer a reasonable
10 opportunity to show cause why the lawyer's name should not be
removed.
(5) The Supreme Court (full bench) may, on application made
under this section, order that the lawyer's name be removed
from the local roll, or may refuse to do so.
15 (6) The lawyer is entitled to appear before and be heard by the
Supreme Court at a hearing in respect of an application under
this section.
93. Show cause procedure for cancellation of local practising
certificate following foreign regulatory action
20 (1) The section applies if the Board is satisfied that --
(a) foreign regulatory action has been taken in relation to a
local legal practitioner, whether before or after the
commencement of this section; and
(b) no order referred to in section 95(1) is in force in
25 relation to the action taken.
(2) The Board may serve on the practitioner a notice stating that the
Board proposes to cancel the practitioner's local practising
certificate unless the practitioner shows cause to the Board why
the practising certificate should not be cancelled.
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practising certificates
Taking of action by local authorities in response to notifications Division 4
received
s. 94
(3) The Board must afford the practitioner a reasonable opportunity
to show cause why the practitioner's practising certificate
should not be cancelled.
(4) If the practitioner does not satisfy the Board that the practising
5 certificate should not be cancelled, the Board may cancel the
certificate.
(5) The Board must, as soon as practicable, give the practitioner an
information notice about its decision to cancel the practising
certificate.
10 (6) The practitioner may apply to the State Administrative Tribunal
for a review of the decision of the Board to cancel the practising
certificate.
94. Order for non-removal of name
(1) If an Australian lawyer reasonably expects that the lawyer's
15 name will be removed from an interstate roll or that foreign
regulatory action will be taken against the lawyer, the lawyer
may apply to the Supreme Court for an order that the lawyer's
name not be removed from the local roll under section 90 or 92.
(2) The Supreme Court may make the order applied for if satisfied
20 that --
(a) the lawyer's name is likely to be removed from the
interstate roll or the foreign regulatory action is likely to
be taken; and
(b) the reason for the removal of the name or the taking of
25 the foreign regulatory action will not involve
disciplinary action or the possibility of disciplinary
action,
or may refuse to make an order.
(3) An order under this section may be made subject to any
30 conditions the Supreme Court considers appropriate, and
remains in force for the period specified in it.
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Part 6 Inter-jurisdictional provisions regarding admission and
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Division 4 Taking of action by local authorities in response to notifications
received
s. 95
(4) The Supreme Court may revoke an order made under this
section, and sections 90 and 92 then apply as if the lawyer's
name were removed from the interstate roll or the foreign
regulatory action were taken when the revocation takes effect.
5 (5) Nothing in this section affects action being taken in relation to
the lawyer under other provisions of this Act.
95. Order for non-cancellation of local practising certificate
(1) If an Australian lawyer reasonably expects that the lawyer's
name will be removed from an interstate roll or that foreign
10 regulatory action will be taken against the lawyer, the lawyer
may apply to the State Administrative Tribunal for an order that
the lawyer's local practising certificate not be cancelled under
section 91 or 93.
(2) The State Administrative Tribunal may make the order applied
15 for if satisfied that --
(a) the lawyer's name is likely to be removed from the
interstate roll or the foreign regulatory action is likely to
be taken; and
(b) the reason for the removal of the name or the taking of
20 the foreign regulatory action will not involve
disciplinary action or the possibility of disciplinary
action,
or may refuse to make an order.
(3) An order under this section may be made subject to any
25 conditions the State Administrative Tribunal considers
appropriate, and remains in force for the period specified in it.
(4) The State Administrative Tribunal may revoke an order made
under this section, and sections 91 and 93 then apply as if the
lawyer's name were removed from the interstate roll or the
30 foreign regulatory action were taken when the revocation takes
effect.
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Inter-jurisdictional provisions regarding admission and Part 6
practising certificates
Taking of action by local authorities in response to notifications Division 4
received
s. 96
(5) Nothing in this section affects action being taken in relation to
the lawyer under other provisions of this Act.
96. Local authority may give information to other local
authorities
5 An authority of this jurisdiction that receives information from
an authority of another jurisdiction under provisions of a
corresponding law that correspond to this Part may give the
information to other authorities of this jurisdiction that have
functions under this Act.
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Part 7 Incorporated legal practices and multi-disciplinary partnerships
Division 1 Preliminary
s. 97
Part 7 -- Incorporated legal practices and
multi-disciplinary partnerships
Division 1 -- Preliminary
97. Purposes
5 The purposes of this Part are as follows: --
(a) to regulate the provision of legal services by
corporations in this jurisdiction; and
(b) to regulate the provision of legal services in this
jurisdiction in conjunction with the provision of other
10 services (whether by a corporation or persons acting in
partnership with each other).
98. Definitions
In this Part --
"legal practitioner director" means a director of an
15 incorporated legal practice who is an Australian legal
practitioner holding an unrestricted practising certificate;
"legal practitioner partner" means a partner of a
multi-disciplinary partnership who is an Australian legal
practitioner holding an unrestricted practising certificate;
20 "officer" means --
(a) in relation to a company within the meaning given in
the Corporations Act -- an officer within the
meaning given in section 9 of that Act; or
(b) in relation to any other body corporate, or body
25 corporate of a kind, prescribed by the regulations -- a
person specified or described in the regulations;
"professional obligations" of an Australian legal practitioner
include --
(a) duties to the Supreme Court; and
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Incorporated legal practices providing legal services Division 2
s. 99
(b) obligations in connection with conflicts of interest;
and
(c) duties to clients, including disclosure; and
(d) ethical rules required to be observed by the
5 practitioner;
"related body corporate" means --
(a) in relation to a company within the meaning given in
the Corporations Act -- a related body corporate
within the meaning given in section 50 of that Act; or
10 (b) in relation to any other body corporate, or body
corporate of a kind, prescribed by the regulations -- a
person specified or described in the regulations.
Division 2 -- Incorporated legal practices providing
legal services
15 99. Nature of incorporated legal practice
(1) An incorporated legal practice is a corporation that engages in
legal practice in this jurisdiction, whether or not it also provides
services that are not legal services.
(2) However, a corporation is not an incorporated legal practice
20 if --
(a) the corporation does not receive any form of, or have an
expectation of, a fee, gain or reward for the legal
services it provides; or
(b) the only legal services that the corporation provides are
25 any or all of the following services --
(i) in-house legal services, namely, legal services
provided to the corporation concerning a
proceeding or transaction to which the
corporation (or a related body corporate) is a
30 party;
(ii) services that are not legally required to be
provided by an Australian legal practitioner and
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Division 2 Incorporated legal practices providing legal services
s. 100
that are provided by an officer or an employee
who is not an Australian legal practitioner;
or
(c) this Part or the regulations so provide.
5 (3) The regulations may make provision for or with respect to the
application (with or without specified modifications) of
provisions of this Act to corporations that are not incorporated
legal practices because of the operation of subsection (2).
(4) Nothing in this Part affects or applies to the provision by an
10 incorporated legal practice of legal services in one or more other
jurisdictions.
100. Non-legal services and businesses of incorporated legal
practices
(1) An incorporated legal practice may provide any service and
15 conduct any business that the corporation may lawfully provide
or conduct, except as provided by this section.
(2) An incorporated legal practice or a related body corporate of an
incorporated legal practice must not conduct a managed
investment scheme.
20 (3) The regulations may prohibit an incorporated legal practice or a
related body corporate of the practice from providing a service
or conducting a business of a kind specified by the regulations.
101. Corporations eligible to be incorporated legal practice
(1) Any corporation is, subject to this Part, eligible to be an
25 incorporated legal practice.
(2) This section does not authorise a corporation to provide legal
services if the corporation is prohibited from doing so under any
Act or law (whether of this jurisdiction, the Commonwealth or
any other jurisdiction) under which it is incorporated or its
30 affairs are regulated.
(3) An incorporated legal practice is not itself required to hold an
Australian practising certificate.
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Incorporated legal practices providing legal services Division 2
s. 102
102. Notice of intention to start providing legal services
(1) Before a corporation starts to engage in legal practice in this
jurisdiction, the corporation must give the Board written notice,
in the approved form, of its intention to do so.
5 (2) A corporation must not engage in legal practice in this
jurisdiction if it is in default of this section.
Penalty: a fine of $25 000.
(3) A corporation that starts to engage in legal practice in this
jurisdiction without giving a notice under subsection (1) is in
10 default of this section until it gives the Board written notice, in
the approved form, of the failure to comply with that subsection
and the fact that it has started to engage in legal practice.
(4) The giving of a notice under subsection (3) does not affect a
corporation's liability under subsection (1) or (2).
15 (5) A corporation is not entitled to recover any amount for anything
the corporation did in contravention of subsection (2).
(6) A person may recover from a corporation or a legal practitioner
associate of the corporation, as a debt due to the person, any
amount the person paid to or at the direction of the corporation
20 for anything the corporation did in contravention of
subsection (2).
(7) This section does not apply to a corporation that is not an
incorporated legal practice because of section 99(2).
103. Prohibition on representations that corporation is
25 incorporated legal practice
(1) A corporation must not, without reasonable excuse, represent or
advertise that the corporation is an incorporated legal practice
unless a notice in relation to the corporation has been given
under section 102.
30 Penalty: a fine of $50 000.
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Division 2 Incorporated legal practices providing legal services
s. 104
(2) A director, officer, employee or agent of a corporation must not,
without reasonable excuse, represent or advertise that the
corporation is an incorporated legal practice unless a notice in
relation to the corporation has been given under section 102.
5 Penalty: a fine of $10 000.
(3) A reference in this section to a corporation representing or
advertising that the corporation is an incorporated legal practice
includes a reference to the corporation doing anything that states
or implies that the corporation is entitled to engage in legal
10 practice.
(4) A reference in this section to director, officer, employee or
agent of a corporation representing or advertising that the
corporation is an incorporated legal practice includes a
reference to the director, officer, employee or agent doing
15 anything that states or implies that the corporation is entitled to
engage in legal practice.
104. Notice of corporation ceasing to engage in legal practice
(1) A corporation must, within the period prescribed by the
regulations after it ceases to engage in legal practice in this
20 jurisdiction as an incorporated legal practice, give the Board a
written notice, in the approved form, of that fact.
Penalty: a fine of $5 000.
(2) The regulations may make provision for or with respect to
determining whether and when a corporation ceases to engage
25 in legal practice in this jurisdiction.
105. Incorporated legal practice must have legal practitioner
director
(1) An incorporated legal practice is required to have at least one
legal practitioner director.
30 (2) Each legal practitioner director of an incorporated legal practice
is, for the purposes only of this Act, responsible for the
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Incorporated legal practices providing legal services Division 2
s. 105
management of the legal services provided in this jurisdiction
by the incorporated legal practice.
(3) Each legal practitioner director of an incorporated legal practice
must ensure that appropriate management systems are
5 implemented and maintained to enable the provision of legal
services by the incorporated legal practice --
(a) in accordance with the professional obligations of
Australian legal practitioners and other obligations
imposed under this Act; and
10 (b) so that those obligations of Australian legal practitioners
who are officers or employees of the practice are not
affected by other officers or employees of the practice.
(4) If it ought reasonably to be apparent to a legal practitioner
director of an incorporated legal practice that the provision of
15 legal services by the practice will result in breaches of the
professional obligations of an Australian legal practitioner or
other obligations imposed under this Act, the director must take
all reasonable action available to the director to ensure that --
(a) the breaches do not occur; and
20 (b) appropriate remedial action is taken in relation to the
breaches that do occur.
(5) Nothing in this Part derogates from the obligations or liabilities
of a director of an incorporated legal practice under any other
law.
25 (6) The reference in subsection (1) to a legal practitioner director
does not include a reference to a person who is not validly
appointed as a director, but this subsection does not affect the
meaning of the expression "legal practitioner director" in
other provisions of this Act.
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Division 2 Incorporated legal practices providing legal services
s. 106
106. Obligations of legal practitioner director relating to
misconduct
(1) Each of the following is capable of constituting unsatisfactory
professional conduct or professional misconduct by a legal
5 practitioner director --
(a) unsatisfactory professional conduct or professional
misconduct of an Australian legal practitioner employed
by the incorporated legal practice;
(b) conduct of any other director (not being an Australian
10 legal practitioner) of the incorporated legal practice that
adversely affects the provision of legal services by the
practice;
(c) the unsuitability of any other director (not being an
Australian legal practitioner) of the incorporated legal
15 practice to be a director of a corporation that provides
legal services.
(2) A legal practitioner director is not guilty of unsatisfactory
professional conduct or professional misconduct under
subsection (1) if the director establishes that the director took all
20 reasonable steps to ensure that --
(a) Australian legal practitioners employed by the
incorporated legal practice did not engage in conduct or
misconduct referred to in subsection (1)(a); or
(b) directors (not being Australian legal practitioners) of the
25 incorporated legal practice did not engage in conduct
referred to in subsection (1)(b); or
(c) unsuitable directors (not being Australian legal
practitioners) of the incorporated legal practice were not
appointed or holding office as referred to in
30 subsection (1)(c),
as the case requires.
(3) A legal practitioner director of an incorporated legal practice
must ensure that all reasonable action available to the legal
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Incorporated legal practices providing legal services Division 2
s. 107
practitioner director is taken to deal with any unsatisfactory
professional conduct or professional misconduct of an
Australian legal practitioner employed by the practice.
107. Incorporated legal practice without legal practitioner
5 director
(1) An incorporated legal practice contravenes this subsection if it
does not have any legal practitioner directors for a period
exceeding 7 days.
Penalty: a fine of $50 000.
10 (2) If an incorporated legal practice ceases to have any legal
practitioner directors, the practice must notify the Board as soon
as possible.
Penalty: a fine of $50 000.
(3) An incorporated legal practice must not provide legal services in
15 this jurisdiction during any period it is in default of director
requirements under this section.
Penalty: a fine of $25 000.
(4) An incorporated legal practice that contravenes subsection (1) is
taken to be in default of director requirements under this section
20 for the period from the end of the period of 7 days until --
(a) it has at least one legal practitioner director; or
(b) a person is appointed under this section or a
corresponding law in relation to the practice.
(5) The Board may, if it thinks it appropriate, appoint an Australian
25 legal practitioner who is an employee of the incorporated legal
practice or another Australian legal practitioner nominated by
the Board, in the absence of a legal practitioner director, to
exercise the functions conferred or imposed on a legal
practitioner director under this Part.
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Division 2 Incorporated legal practices providing legal services
s. 108
(6) An Australian legal practitioner is not eligible to be appointed
under this section unless the practitioner holds an unrestricted
practising certificate.
(7) The appointment under this section of a person to exercise the
5 functions of a legal practitioner director does not, for any other
purpose, confer or impose on the person any of the other
functions or duties of a director of the incorporated legal
practice.
(8) An incorporated legal practice does not contravene
10 subsection (1) during any period during which a person holds an
appointment under this section in relation to the practice.
(9) A reference in this section to a legal practitioner director does
not include a reference to a person who is not validly appointed
as a director, but this subsection does not affect the meaning of
15 the expression "legal practitioner director" in other provisions
of this Act.
108. Obligations and privileges of practitioners who are officers
or employees
(1) An Australian legal practitioner who provides legal services for
20 an incorporated legal practice in the capacity of an officer or
employee of the incorporated legal practice --
(a) is not excused from compliance with the professional
obligations, or any obligations under any law, of an
Australian legal practitioner; and
25 (b) does not lose the professional privileges of an Australian
legal practitioner.
(2) For the purposes only of subsection (1), the professional
obligations and professional privileges of an Australian legal
practitioner apply as if --
30 (a) where there are 2 or more legal practitioner directors of
an incorporated legal practice -- the practice were a
partnership of the legal practitioner directors and the
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Incorporated legal practices providing legal services Division 2
s. 109
employees of the practice were employees of the legal
practitioner directors; or
(b) where there is only one legal practitioner director of an
incorporated legal practice -- the practice were a sole
5 practitioner and the employees of the practice were
employees of the legal practitioner director.
(3) The law relating to client legal privilege (or other legal
professional privilege) is not excluded or otherwise affected
because an Australian legal practitioner is acting in the capacity
10 of an officer or employee of an incorporated legal practice.
(4) The directors of an incorporated legal practice do not breach
their duties as directors merely because legal services are
provided pro bono by an Australian legal practitioner employed
by the practice.
15 109. Professional indemnity insurance
(1) An incorporated legal practice must comply with the obligations
of an incorporated legal practice under this Act relating to
professional indemnity insurance.
(2) Subsection (1) does not affect an obligation of an Australian
20 legal practitioner who is a legal practitioner director or an
officer or employee of an incorporated legal practice to comply
with the obligations of an Australian legal practitioner under
this Act relating to professional indemnity insurance, and the
Australian legal practitioner must comply with those
25 requirements accordingly.
(3) If subsection (1) or (2) is not complied with the Board may --
(a) for a legal practitioner director who holds a local
practising certificate -- suspend the director's practising
certificate while the failure continues; or
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Division 2 Incorporated legal practices providing legal services
s. 110
(b) for a legal practitioner director who is an interstate legal
practitioner --
(i) suspend the director's entitlement under Part 5 to
practise in this jurisdiction while the failure to
5 comply continues; and
(ii) ask the corresponding authority in the
practitioner's home jurisdiction to suspend the
director's interstate practising certificate until the
Board tells the corresponding authority that this
10 section has been complied with.
110. Conflicts of interest
(1) For the purposes of the application of any law (including the
common law) or legal profession rule relating to conflicts of
interest to the conduct of an Australian legal practitioner who
15 is --
(a) a legal practitioner director of an incorporated legal
practice; or
(b) an officer or employee of an incorporated legal practice,
the interests of the incorporated legal practice or any related
20 body corporate are also taken to be those of the practitioner (in
addition to any interests that the practitioner has apart from this
subsection).
(2) Legal profession rules may be made for or with respect to
additional duties and obligations in connection with conflicts of
25 interest arising out of the conduct of an incorporated legal
practice.
111. Disclosure obligations
(1) This section applies if a person engages an incorporated legal
practice to provide services that the person might reasonably
30 assume to be legal services, but does not apply if the practice
provides only legal services in this jurisdiction.
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(2) Each legal practitioner director of the incorporated legal
practice, and any employee who is an Australian legal
practitioner and who provides the services on behalf of the
practice, must ensure that a disclosure, complying with the
5 requirements of this section and the regulations made for the
purposes of this section, is made to the person in connection
with the provision of the services.
Penalty: a fine of $10 000.
(3) The disclosure must be made by giving the person a notice in
10 writing --
(a) setting out the services to be provided; and
(b) stating whether or not all the legal services to be
provided will be provided by an Australian legal
practitioner; and
15 (c) if some or all of the legal services will not be provided
by an Australian legal practitioner -- identifying those
services and indicating the status or qualifications of the
person or persons who will provide the services; and
(d) stating that this Act applies to the provision of legal
20 services but not to the provision of the non-legal
services.
(4) The regulations may make provision for or with respect to the
following matters --
(a) the manner in which disclosure is to be made;
25 (b) additional matters required to be disclosed in connection
with the provision of legal services or non-legal services
by an incorporated legal practice.
(5) Without limiting subsection (4), the additional matters may
include the kind of services provided by the incorporated legal
30 practice and whether those services are or are not covered by the
insurance or other provisions of this Act.
(6) A disclosure under this section to a person about the provision
of legal services may relate to the provision of legal services on
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Division 2 Incorporated legal practices providing legal services
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one occasion or on more than one occasion or on an ongoing
basis.
112. Effect of non-disclosure on provision of certain services
(1) This section applies if --
5 (a) section 111 applies in relation to a service that is
provided to a person who has engaged an incorporated
legal practice to provide the service and that the person
might reasonably assume to be a legal service; and
(b) a disclosure has not been made under that section about
10 that service.
(2) The standard of care owed by the practice in relation to the
service is the standard that would be applicable if the service
had been provided by an Australian legal practitioner.
113. Application of legal profession rules
15 Legal profession rules, so far as they apply to Australian legal
practitioners, also apply to Australian legal practitioners who
are officers or employees of an incorporated legal practice,
unless the rules otherwise provide.
114. Requirements relating to advertising
20 (1) Any restriction imposed under this Act or another Act in
connection with advertising by Australian legal practitioners
applies to advertising by an incorporated legal practice with
respect to the provision of legal services.
(2) If a restriction mentioned in subsection (1) is limited to a
25 particular branch of the legal profession or persons who practise
in a particular style of legal practice, the restriction applies only
to the extent that the incorporated legal practice carries on the
business of that branch of the legal profession or in that
particular style of legal practice.
30 (3) Any advertisement of the kind referred to in this section is, for
the purposes of disciplinary proceedings taken against an
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Incorporated legal practices providing legal services Division 2
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Australian legal practitioner, taken to have been authorised by
each legal practitioner director of the incorporated legal
practice.
(4) This section does not apply if the provision by which the
5 restriction is imposed expressly excludes its application to
incorporated legal practices.
115. Extension of vicarious liability relating to failure to account,
pay or deliver and dishonesty to incorporated legal practices
(1) This section applies to any of the following proceedings (being
10 proceedings based on the vicarious liability of an incorporated
legal practice) --
(a) civil proceedings relating to a failure to account for, pay
or deliver money or property received by, or entrusted
to, the practice (or to any officer or employee of the
15 practice) in the course of the provision of legal services
by the practice, being money or property under the
direct or indirect control of the practice;
(b) civil proceedings for any other debt owed, or damages
payable, to a client as a result of a dishonest act or
20 omission by an Australian legal practitioner who is an
employee of the practice in connection with the
provision of legal services to the client.
(2) If the incorporated legal practice would not (but for this section)
be vicariously liable for any acts or omissions of its officers and
25 employees in those proceedings, but would be liable for those
acts or omissions if the practice and those officers and
employees were carrying on business in partnership, the practice
is taken to be vicariously liable for those acts or omissions.
116. Sharing of receipts, revenue or other income
30 (1) Nothing under this Act prevents an Australian legal practitioner
from sharing with an incorporated legal practice receipts,
revenue or other income arising from the provision of legal
services by the practitioner.
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(2) This section does not extend to the sharing of receipts, revenue
or other income in contravention of section 117.
117. Disqualified persons
(1) An incorporated legal practice commits an offence if a
5 disqualified person --
(a) is an officer or employee of the incorporated legal
practice (whether or not the person provides legal
services) or is an officer or employee of a related body
corporate; or
10 (b) is a partner of the incorporated legal practice in a
business that includes the provision of legal services; or
(c) shares the receipts, revenue or other income arising from
the provision of legal services by the incorporated legal
practice; or
15 (d) is engaged or paid in connection with the provision of
legal services by the incorporated legal practice.
Penalty: a fine of $15 000.
(2) The failure of a legal practitioner director of an incorporated
legal practice to ensure that the practice complies with
20 subsection (1) is capable of constituting unsatisfactory
professional conduct or professional misconduct.
118. Audit of incorporated legal practice
(1) The Board or the Complaints Committee may conduct an audit
of --
25 (a) the compliance of an incorporated legal practice (and of
its officers and employees) with the requirements of --
(i) this Part; or
(ii) the regulations or the legal profession rules, so
far as they relate specifically to incorporated
30 legal practices;
and
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Incorporated legal practices providing legal services Division 2
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(b) the management of the provision of legal services by the
incorporated legal practice (including the supervision of
officers and employees providing the services).
(2) The Board or the Complaints Committee may, in writing,
5 appoint a suitably qualified person to conduct an audit under
this section.
(3) The appointment may be made generally, or in relation to a
particular incorporated legal practice, or in relation to a
particular audit.
10 (4) An audit may be conducted whether or not a complaint has been
made against an Australian lawyer with respect to the provision
of legal services by the incorporated legal practice.
(5) A report of an audit --
(a) must be provided to the incorporated legal practice
15 concerned; and
(b) may be provided by the Board to the Complaints
Committee or by the Complaints Committee to the
Board; and
(c) may be provided by the Board or the Complaints
20 Committee to a corresponding authority; and
(d) may be taken into account in connection with any
disciplinary proceedings taken against legal practitioner
directors or other persons or in connection with the
grant, amendment, suspension or cancellation of
25 Australian practising certificates.
(6) The Board must notify the Complaints Committee, and the
Complaints Committee must notify the Board, when it
commences an audit.
(7) Part 15 applies to an audit under this section.
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119. Banning of incorporated legal practices
(1) The State Administrative Tribunal may, on the application of
the Board or the Complaints Committee, make an order
disqualifying a corporation from providing legal services in this
5 jurisdiction for the period the Tribunal considers appropriate if
satisfied that --
(a) a ground for disqualifying the corporation under this
section has been established; and
(b) the disqualification is justified.
10 (2) An order under this section may, if the State Administrative
Tribunal thinks it appropriate, be made --
(a) subject to conditions as to the conduct of the
incorporated legal practice; or
(b) subject to conditions as to when or in what
15 circumstances the order is to take effect; or
(c) together with orders to safeguard the interests of clients
of the incorporated legal practice who have been or are
to be provided with legal services by the practice, and
the employees or officers of the incorporated legal
20 practice.
(3) Action may be taken against an incorporated legal practice on
any of the following grounds --
(a) that a legal practitioner director or an Australian legal
practitioner who is an officer or employee of the
25 corporation is found guilty of professional misconduct
under a law of this jurisdiction or another jurisdiction;
(b) that the Board or the Complaints Committee is satisfied,
after conducting an audit of the incorporated legal
practice, that the incorporated legal practice has failed to
30 implement satisfactory management and supervision of
its provision of legal services;
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(c) that the incorporated legal practice (or a related body
corporate) has contravened section 100 or a regulation
made under that section;
(d) that the incorporated legal practice has contravened
5 section 117;
(e) that a person who is an officer of the incorporated legal
practice and who is the subject of an order under --
(i) section 120 or under provisions of a
corresponding law that correspond to that
10 section; or
(ii) section 145 or under provisions of a
corresponding law that correspond to that
section,
is acting in the management of the incorporated legal
15 practice.
(4) If a corporation is disqualified under this section, the Board
must, as soon as practicable, notify the corresponding authority
of every other jurisdiction.
(5) If a corporation is disqualified from providing legal services in
20 another jurisdiction under a corresponding law, the Board may
determine that the corporation is taken to be disqualified from
providing legal services in this jurisdiction for the same period,
but nothing in this subsection prevents the Board from instead
applying for an order under this section.
25 (6) A corporation that provides legal services in contravention of a
disqualification under this section commits an offence.
Penalty: a fine of $50 000.
(7) A corporation that is disqualified under this section ceases to be
an incorporated legal practice.
30 (8) Conduct of an Australian legal practitioner who provides legal
services on behalf of a corporation in the capacity of an officer
or employee of the corporation is capable of constituting
unsatisfactory professional conduct or professional misconduct
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if the practitioner ought reasonably to have known that the
corporation is disqualified under this section.
(9) The regulations may make provision for or with respect to the
publication and notification of orders made under this section,
5 including notification of corresponding authorities of other
jurisdictions.
120. Disqualification from managing incorporated legal practice
(1) The State Administrative Tribunal may, on the application of
the Board, make an order disqualifying a person from managing
10 a corporation that is an incorporated legal practice for the period
the Tribunal considers appropriate if satisfied that --
(a) the person is a person who could be disqualified under
section 206C, 206D, 206E or 206F of the Corporations
Act from managing corporations; and
15 (b) the disqualification is justified.
(2) The State Administrative Tribunal may, on the application of a
person subject to a disqualification order under this section,
revoke the order.
(3) A disqualification order made under this section has effect for
20 the purposes only of this Act and does not affect the application
or operation of the Corporations Act.
(4) The regulations may make provision for or with respect to the
publication and notification of orders made under this section.
(5) A person who is disqualified from managing a corporation
25 under provisions of a corresponding law that correspond to this
section is taken to be disqualified from managing a corporation
under this section.
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Incorporated legal practices providing legal services Division 2
s. 121
121. Disclosure of information to Australian Securities and
Investments Commission
(1) In this section --
"authorised person" means --
5 (a) the Board; or
(b) the Complaints Committee; or
(c) the Law Complaints Officer; or
(d) the President of the State Administrative Tribunal or
a member of staff of the Tribunal.
10 (2) This section applies if an authorised person, in connection with
performing functions under this Act, acquired information
concerning a corporation that is or was an incorporated legal
practice.
(3) The authorised person may disclose to the Australian Securities
15 and Investments Commission information concerning the
corporation that is relevant to the Commission's functions.
(4) Information may be provided under subsection (3) despite any
law relating to secrecy or confidentiality, including any
provisions of this Act.
20 122. External administration proceedings under Corporations
Act
(1) This section applies to proceedings in any court under the
Corporations Act Chapter 5 --
(a) relating to a corporation that is an
25 externally-administered body corporate under that Act
and that is or was an incorporated legal practice; or
(b) relating to a corporation that is or was an incorporated
legal practice becoming an externally-administered body
corporate under that Act.
30 (2) The Board is entitled to intervene in the proceedings, unless the
court determines that the proceedings do not concern or affect
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Division 2 Incorporated legal practices providing legal services
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the provision of legal services by the incorporated legal
practice.
(3) The court may, when exercising its jurisdiction in the
proceedings, have regard to the interests of the clients of the
5 incorporated legal practice who have been or are to be provided
with legal services by the practice.
(4) Subsection (3) does not authorise the court to make any decision
that is contrary to a specific provision of the Corporations Act.
(5) The provisions of subsections (2) and (3) are declared to be
10 Corporations legislation displacement provisions for the
purposes of the Corporations Act section 5G in relation to the
provisions of Chapter 5 of that Act.
123. External administration proceedings under other legislation
(1) This section applies to proceedings for the external
15 administration (however expressed) of an incorporated legal
practice, but does not apply to proceedings to which section 122
applies.
(2) The Board is entitled to intervene in the proceedings, unless the
court determines that the proceedings do not concern or affect
20 the provision of legal services by the incorporated legal
practice.
(3) The court may, when exercising its jurisdiction in the
proceedings, have regard to the interests of the clients of the
incorporated legal practice who have been or are to be provided
25 with legal services by the practice.
(4) Subsection (3) does not authorise the court to make any decision
that is contrary to a specific provision of any legislation
applicable to the incorporated legal practice.
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Incorporated legal practices providing legal services Division 2
s. 124
124. Incorporated legal practice is subject to receivership under
this Act and external administration under
Corporations Act
(1) In this section --
5 "Corporations Act administrator" means --
(a) a receiver, receiver and manager, liquidator
(including a provisional liquidator), controller,
administrator or deed administrator appointed under
the Corporations Act; or
10 (b) a person who is appointed to exercise powers under
the Corporations Act and who is prescribed, or of a
class prescribed, by the regulations for the purposes
of this definition;
"LP receiver" means a receiver appointed under Part 14.
15 (2) This section applies if a corporation that is or was an
incorporated legal practice is the subject of both --
(a) the appointment of an LP receiver; and
(b) the appointment of a Corporations Act administrator.
(3) The LP receiver is under a duty to tell the Corporations Act
20 administrator of the appointment of the LP receiver, whether the
appointment precedes, follows or happens at the same time as
the appointment of the Corporations Act administrator.
(4) The LP receiver or the Corporations Act administrator (or both
of them jointly) may apply to the Supreme Court for the
25 resolution of issues arising from or in relation to the dual
appointments and their respective powers, except if proceedings
mentioned in section 122 have been started.
(5) The Supreme Court may make any orders it considers
appropriate, and no liability attaches to the LP receiver or the
30 Corporations Act administrator for any act or omission done by
the receiver or administrator in good faith for the purposes of
carrying out or acting in accordance with the orders.
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Division 2 Incorporated legal practices providing legal services
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(6) The Board is entitled to intervene in the proceeding, unless the
court decides that the proceeding does not concern or affect the
provision of legal services by the incorporated legal practice.
(7) The provisions of subsections (4) and (5) are declared to be
5 Corporations legislation displacement provisions for section 5G
of the Corporations Act in relation to the provisions of
Chapter 5 of that Act.
125. Incorporated legal practice that is subject to receivership
under this Act and external administration under other
10 legislation
(1) In this section --
"external administrator" means a person who is appointed to
exercise powers under other legislation (whether or not
legislation of this jurisdiction) and who is prescribed, or of
15 a class prescribed, by the regulations for the purposes of
this definition;
"LP receiver" means a receiver appointed under Part 14.
(2) This section applies if an incorporated legal practice is the
subject of both --
20 (a) the appointment of an LP receiver; and
(b) the appointment of an external administrator.
(3) The LP receiver is under a duty to tell the external administrator
of the appointment of the LP receiver, whether the appointment
precedes, follows or happens at the same time as the
25 appointment of the external administrator.
(4) The LP receiver or the external administrator (or both of them
jointly) may apply to the Supreme Court for the resolution of
issues arising from or in relation to the dual appointments and
their respective powers.
30 (5) The Supreme Court may make any orders it considers
appropriate, and no liability attaches to the LP receiver or the
external administrator for any act or omission done by the
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Incorporated legal practices providing legal services Division 2
s. 126
receiver or administrator in good faith for the purposes of
carrying out or acting in accordance with the orders.
(6) The Board is entitled to intervene in the proceeding, unless the
court decides that the proceeding does not concern or affect the
5 provision of legal services by the incorporated legal practice.
126. Cooperation between courts
Courts and tribunals of this jurisdiction may make arrangements
for communicating and cooperating with other courts and
tribunals in connection with the exercise of powers under
10 this Part.
127. Relationship of Act to constitution of incorporated legal
practice
The provisions of this Act that apply to an incorporated legal
practice prevail, to the extent of any inconsistency, over the
15 constitution or other constituent documents of the practice.
128. Relationship of Act to legislation establishing incorporated
legal practice
(1) This section applies to a corporation, established by or under a
law (whether or not of this jurisdiction), that is an incorporated
20 legal practice but is not a company under the Corporations Act.
(2) The provisions of this Act that apply to an incorporated legal
practice prevail, to the extent of any inconsistency, over
provisions of the legislation under which the corporation is
established or regulated that are specified or described in the
25 regulations.
129. Relationship of Act to Corporations legislation
(1) In this section --
"matter" includes act, omission, body, person or thing.
(2) The regulations may declare any provision of this Act that
30 relates to an incorporated legal practice to be a Corporations
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Division 3 Multi-disciplinary partnerships
s. 130
legislation displacement provision for the purposes of the
Corporations Act section 5G.
(3) The regulations may declare any matter relating to an
incorporated legal practice that is prohibited, required,
5 authorised or permitted under this Act to be an excluded matter
for the purposes of the Corporations Act section 5F in
relation to --
(a) the whole of the Corporations legislation; or
(b) a specified provision of the Corporations legislation; or
10 (c) the Corporations legislation other than a specified
provision; or
(d) the Corporations legislation other than to a specified
extent.
130. Undue influence
15 A person (whether or not an officer or employee of an
incorporated legal practice) must not cause or induce or attempt
to cause or induce --
(a) a legal practitioner director; or
(b) another Australian legal practitioner who provides legal
20 services on behalf of an incorporated legal practice,
to contravene this Act or his or her professional obligations as
an Australian legal practitioner.
Penalty: a fine of $25 000.
Division 3 -- Multi-disciplinary partnerships
25 131. Nature of multi-disciplinary partnership
(1) A multi-disciplinary partnership is a partnership between one or
more Australian legal practitioners and one or more other
persons who are not Australian legal practitioners, where the
business of the partnership includes the provision of legal
30 services in this jurisdiction as well as other services.
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s. 132
(2) However, a partnership consisting only of one or more
Australian legal practitioners and one or more
Australian-registered foreign lawyers is not a multi-disciplinary
partnership.
5 (3) Nothing in this Division affects or applies to the provision by a
multi-disciplinary partnership of legal services in one or more
other jurisdictions.
132. Conduct of multi-disciplinary partnership
(1) An Australian legal practitioner may be in partnership with a
10 person who is not an Australian legal practitioner, where the
business of the partnership includes the provision of legal
services.
(2) Subsection (1) does not prevent an Australian legal practitioner
from being in partnership with a person who is not an Australian
15 legal practitioner, where the business of the partnership does not
include the provision of legal services.
(3) The regulations may prohibit an Australian legal practitioner
from being in partnership with a person providing a service or
conducting a business of a kind specified by the regulations,
20 where the business of the partnership includes the provision of
legal services.
133. Notice of intention to start practice in multi-disciplinary
partnership
A legal practitioner partner must, before starting to provide
25 legal services in this jurisdiction as a member of a
multi-disciplinary partnership, give the Board written notice, in
the approved form, of the partner's intention to do so.
Penalty: a fine of $5 000.
134. General obligations of legal practitioner partners
30 (1) Each legal practitioner partner of a multi-disciplinary
partnership is, for the purposes only of this Act, responsible for
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Division 3 Multi-disciplinary partnerships
s. 135
the management of the legal services provided in this
jurisdiction by the partnership.
(2) Each legal practitioner partner must ensure that appropriate
management systems are implemented and maintained to enable
5 the provision of legal services by the multi-disciplinary
partnership --
(a) in accordance with the professional obligations of
Australian legal practitioners and other obligations
imposed by this Act; and
10 (b) so that the professional obligations of legal practitioner
partners and employees who are Australian legal
practitioners are not affected by other partners and
employees of the partnership.
135. Obligations of legal practitioner partner relating to
15 misconduct
(1) Each of the following is capable of constituting unsatisfactory
professional conduct or professional misconduct by a legal
practitioner partner --
(a) unsatisfactory professional conduct or professional
20 misconduct of an Australian legal practitioner employed
by the multi-disciplinary partnership;
(b) conduct of any other partner (not being an Australian
legal practitioner) of the multi-disciplinary partnership
that adversely affects the provision of legal services by
25 the partnership;
(c) the unsuitability of any other partner (not being an
Australian legal practitioner) of the multi-disciplinary
partnership to be a member of a partnership that
provides legal services.
30 (2) A legal practitioner partner of a multi-disciplinary partnership
must ensure that all reasonable action available to the legal
practitioner partner is taken to deal with any unsatisfactory
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Multi-disciplinary partnerships Division 3
s. 136
professional conduct or professional misconduct of an
Australian legal practitioner employed by the partnership.
136. Actions of partner who is not Australian legal practitioner
A partner of a multi-disciplinary partnership who is not an
5 Australian legal practitioner does not contravene a provision of
this Act merely because of any of the following --
(a) the partner is a member of a partnership and the
partnership business includes the provision of legal
services;
10 (b) the partner receives any fee, gain or reward for business
of the partnership that is the business of an Australian
legal practitioner;
(c) the partner holds out, advertises or represents himself or
herself as a member of a partnership where the business
15 of the partnership includes the provision of legal
services;
(d) the partner shares with any other partner the receipts,
revenue or other income of business of the partnership
that is the business of an Australian legal practitioner,
20 unless the provision expressly applies to a partner of a
multi-disciplinary partnership who is not an Australian legal
practitioner.
137. Obligations and privileges of practitioners who are partners
or employees
25 (1) An Australian legal practitioner who provides legal services in
the capacity of a partner or an employee of a multi-disciplinary
partnership --
(a) is not excused from compliance with the professional
obligations, or any obligations under any law, of an
30 Australian legal practitioner; and
(b) does not lose the professional privileges of an Australian
legal practitioner.
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Division 3 Multi-disciplinary partnerships
s. 138
(2) The law relating to client legal privilege (or other legal
professional privilege) is not excluded or otherwise affected
because an Australian legal practitioner is acting in the capacity
of a partner or an employee of a multi-disciplinary partnership.
5 138. Conflicts of interest
(1) For the purposes of the application of any law (including the
common law) or legal profession rule relating to conflicts of
interest to the conduct of an Australian legal practitioner who
is --
10 (a) a legal practitioner partner of a multi-disciplinary
partnership; or
(b) an employee of a multi-disciplinary partnership,
the interests of the partnership, or any partner of the
multi-disciplinary partnership, are also taken to be those of the
15 practitioner concerned (in addition to any interests that the
practitioner has apart from this subsection).
(2) Legal profession rules may be made for or with respect to
additional duties and obligations in connection with conflicts of
interest arising out of the conduct of a multi-disciplinary
20 partnership.
139. Disclosure obligations
(1) This section applies if a person engages a multi-disciplinary
partnership to provide services that the person might reasonably
assume to be legal services.
25 (2) Each legal practitioner partner of the multi-disciplinary
partnership, and any employee of the partnership who is an
Australian legal practitioner and who provides the services on
behalf of the practice, must ensure that a disclosure, complying
with the requirements of this section and the regulations made
30 for the purposes of this section, is made to the person in
connection with the provision of the services.
Penalty: a fine of $10 000.
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s. 140
(3) The disclosure must be made by giving the person a notice in
writing --
(a) setting out the services to be provided; and
(b) stating whether or not all the legal services to be
5 provided will be provided by an Australian legal
practitioner; and
(c) if some or all of the legal services will not be provided
by an Australian legal practitioner -- identifying those
services and indicating the status or qualifications of the
10 person or persons who will provide the services; and
(d) stating that this Act applies to the provision of legal
services but not to the provision of the non-legal
services.
(4) The regulations may make provision for or with respect to the
15 following matters --
(a) the manner in which disclosure is to be made;
(b) additional matters required to be disclosed in connection
with the provision of legal services or non-legal services
by a multi-disciplinary partnership.
20 (5) Without limiting subsection (4), the additional matters may
include the kind of services provided by the multi-disciplinary
partnership and whether those services are or are not covered by
the insurance or other provisions of this Act.
(6) A disclosure under this section to a person about the provision
25 of legal services may relate to the provision of legal services on
one occasion or on more than one occasion or on an on-going
basis.
140. Effect of non-disclosure on provision of certain services
(1) This section applies if --
30 (a) section 139 applies to a service that is provided to a
person who has engaged a multi-disciplinary partnership
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Division 3 Multi-disciplinary partnerships
s. 141
to provide the service and that the person might
reasonably assume to be a legal service; and
(b) a disclosure has not been made under that section about
that service.
5 (2) The standard of care owed by the multi-disciplinary partnership
in relation to the service is the standard that would be applicable
if the service had been provided by an Australian legal
practitioner.
141. Application of legal profession rules
10 Legal profession rules, so far as they apply to Australian legal
practitioners, also apply to Australian legal practitioners who
are legal practitioner partners or employees of a
multi-disciplinary partnership, unless the rules otherwise
provide.
15 142. Requirements relating to advertising
(1) Any restriction imposed under this Act or another Act in
connection with advertising by Australian legal practitioners
applies to advertising by a multi-disciplinary partnership with
respect to the provision of legal services.
20 (2) If a restriction referred to in subsection (1) is limited to a
particular branch of the legal profession or for persons who
practise in a particular style of legal practice, the restriction
applies only to the extent that the multi-disciplinary partnership
carries on the business of that branch of the legal profession or
25 in that particular style of legal practice.
(3) An advertisement of the kind referred to in this section is, for
the purposes of disciplinary proceedings taken against an
Australian legal practitioner, taken to have been authorised by
each legal practitioner partner of the multi-disciplinary
30 partnership.
page 120
Legal Profession Bill 2007
Incorporated legal practices and multi-disciplinary partnerships Part 7
Multi-disciplinary partnerships Division 3
s. 143
(4) This section does not apply if the provision by which the
restriction is imposed expressly excludes its application to
multi-disciplinary partnerships.
143. Sharing of receipts, revenue or other income
5 (1) Nothing under this Act prevents a legal practitioner partner, or
an Australian legal practitioner who is an employee of a
multi-disciplinary partnership, from sharing receipts, revenue or
other income arising from the provision of legal services by the
partner or practitioner with a partner who is not an Australian
10 legal practitioner.
(2) This section does not extend to the sharing of receipts in
contravention of section 144.
144. Disqualified persons
A legal practitioner partner of a multi-disciplinary partnership
15 must not knowingly --
(a) be a partner of a disqualified person in the
multi-disciplinary partnership; or
(b) share with a disqualified person the receipts, revenue or
other income arising from the provision of legal services
20 by the multi-disciplinary partnership; or
(c) employ or pay a disqualified person in connection with
the provision of legal services by the multi-disciplinary
partnership.
Penalty: a fine of $15 000.
25 145. Prohibition on partnerships with certain partners who are
not Australian legal practitioners
(1) This section applies to a person who --
(a) is not an Australian legal practitioner; and
(b) is or was the partner of an Australian legal practitioner.
page 121
Legal Profession Bill 2007
Part 7 Incorporated legal practices and multi-disciplinary partnerships
Division 3 Multi-disciplinary partnerships
s. 146
(2) On application by the Board, the State Administrative Tribunal
may make an order prohibiting any Australian legal practitioner
from being a partner, in a business that includes the provision of
legal services, of a specified person to whom this section applies
5 if --
(a) the Tribunal is satisfied that the person is not a fit and
proper person to be a partner; or
(b) the Tribunal is satisfied that the person has been guilty
of conduct that, if the person were an Australian legal
10 practitioner, would have constituted unsatisfactory
professional conduct or professional misconduct; or
(c) in the case of a corporation, if the Tribunal is satisfied
that the corporation has been disqualified from
providing legal services in this jurisdiction or there are
15 grounds for disqualifying the corporation from
providing legal services in this jurisdiction.
(3) An order made under this section may be revoked by the State
Administrative Tribunal on application by the Board or by the
person against whom the order was made.
20 (4) The death of an Australian legal practitioner does not prevent an
application being made for, or the making of, an order under
this section in relation to a person who was a partner of the
practitioner.
(5) The regulations may make provision for or with respect to the
25 publication and notification of orders made under this section.
146. Undue influence
A person (whether or not a partner or employee of a
multi-disciplinary partnership) must not cause or induce or
attempt to cause or induce --
30 (a) a legal practitioner partner; or
page 122
Legal Profession Bill 2007
Incorporated legal practices and multi-disciplinary partnerships Part 7
Miscellaneous Division 4
s. 147
(b) an employee of a multi-disciplinary partnership who
provides legal services and who is an Australian legal
practitioner,
to contravene this Act or his or her professional obligations as
5 an Australian legal practitioner.
Penalty: a fine of $25 000.
Division 4 -- Miscellaneous
147. Obligations of individual practitioners not affected
Except as provided by this Part, nothing in this Part affects any
10 obligation imposed on --
(a) a legal practitioner director or an Australian legal
practitioner who is an employee of an incorporated legal
practice; or
(b) a legal practitioner partner of, or an Australian legal
15 practitioner who is an employee of, a multi-disciplinary
partnership,
under this Act or another Act in his or her capacity as an
Australian legal practitioner.
148. Regulations
20 (1) The regulations may make provision for or with respect to the
following matters --
(a) the legal services provided by incorporated legal
practices or legal practitioner partners or employees of
multi-disciplinary partnerships;
25 (b) other services provided by incorporated legal practices
or legal practitioner partners or employees of
multi-disciplinary partnerships in circumstances in
which a conflict of interest relating to the provision of
legal services may arise.
page 123
Legal Profession Bill 2007
Part 7 Incorporated legal practices and multi-disciplinary partnerships
Division 4 Miscellaneous
s. 148
(2) A regulation prevails over any inconsistent provision of the
legal profession rules.
(3) A regulation may provide that a breach of the regulations is
capable of constituting unsatisfactory professional conduct or
5 professional misconduct --
(a) in the case of an incorporated legal practice -- by a legal
practitioner director, or by an Australian legal
practitioner responsible for the breach, or both; or
(b) in the case of a multi-disciplinary partnership -- by a
10 legal practitioner partner, or by an Australian legal
practitioner responsible for the breach, or both.
page 124
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Preliminary Division 1
s. 149
Part 8 -- Legal practice by foreign lawyers
Division 1 -- Preliminary
149. Purpose
The purpose of this Part is to encourage and facilitate the
5 internationalisation of legal services and the legal service sector
by providing a framework for the regulation of the practice of
foreign law in this jurisdiction by foreign lawyers as a
recognised aspect of legal practice in this jurisdiction.
150. Definitions
10 In this Part --
"Australia" includes the external territories;
"Australian law" means law of the Commonwealth or of a
jurisdiction;
"foreign law" means law of a foreign country;
15 "foreign law practice" means a partnership or corporate entity
that is entitled to engage in legal practice in a foreign
country;
"foreign registration authority" means an entity in a foreign
country having the function, conferred by the law of the
20 foreign country, of registering persons to engage in legal
practice in the foreign country;
"local registration certificate" means a registration certificate
given under this Part;
"overseas-registered foreign lawyer" means a natural person
25 who is properly registered to engage in legal practice in a
foreign country by the foreign registration authority for the
country;
"practise foreign law" means do work, or transact business, in
this jurisdiction concerning foreign law, being work or
30 business of a kind that, if it concerned the law of this
page 125
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 2 Practice of foreign law
s. 151
jurisdiction, would ordinarily be done or transacted by an
Australian legal practitioner;
"registered", when used in connection with a foreign country,
means having all necessary licences, approvals, admissions,
5 certificates or other forms of authorisation (including
practising certificates) required under legislation for
engaging in legal practice in that country.
151. This Part does not apply to Australian legal practitioners
(1) This Part does not apply to an Australian legal practitioner
10 (including an Australian legal practitioner who is also an
overseas-registered foreign lawyer).
(2) Accordingly, nothing in this Part requires or enables an
Australian legal practitioner (including an Australian legal
practitioner who is also an overseas-registered foreign lawyer)
15 to be registered as a foreign lawyer under this Act in order to
practise foreign law in this jurisdiction.
Division 2 -- Practice of foreign law
152. Requirement for registration
(1) A person must not practise foreign law in this jurisdiction unless
20 the person is --
(a) an Australian-registered foreign lawyer; or
(b) an Australian legal practitioner.
Penalty: a fine of $25 000.
(2) However, a person does not contravene subsection (1) if the
25 person is an overseas-registered foreign lawyer --
(a) who --
(i) practises foreign law in this jurisdiction for one
or more periods that do not in aggregate exceed
90 days in any period of 12 months; or
page 126
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Practice of foreign law Division 2
s. 153
(ii) is subject to a restriction imposed under the
Migration Act 1958 of the Commonwealth that
has the effect of limiting the period during which
work may be done, or business transacted, in
5 Australia by the person;
and
(b) who --
(i) does not maintain an office for the purpose of
practising foreign law in this jurisdiction; or
10 (ii) does not become a partner or director of a law
practice.
153. Entitlement of Australian-registered foreign lawyer to
practise in this jurisdiction
An Australian-registered foreign lawyer is, subject to this Act,
15 entitled to practise foreign law in this jurisdiction.
154. Scope of practice
(1) An Australian-registered foreign lawyer may provide only the
following legal services in this jurisdiction --
(a) doing work, or transacting business, concerning the law
20 of a foreign country where the lawyer is registered by
the foreign registration authority for the country;
(b) legal services (including appearances) in relation to
arbitration proceedings of a kind prescribed under the
regulations;
25 (c) legal services (including appearances) in relation to
proceedings before bodies other than courts, being
proceedings in which the bodies concerned are not
required to apply the rules of evidence and in which
knowledge of the foreign law of a country referred to in
30 paragraph (a) is essential;
page 127
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 2 Practice of foreign law
s. 155
(d) legal services for conciliation, mediation and other
forms of consensual dispute resolution of a kind
prescribed under the regulations.
(2) Nothing in this Act authorises an Australian-registered foreign
5 lawyer to appear in any court (except on the lawyer's own
behalf) or to practise Australian law in this jurisdiction.
(3) Despite subsection (2), an Australian-registered foreign lawyer
may advise on the effect of an Australian law if --
(a) the giving of advice on Australian law is necessarily
10 incidental to the practice of foreign law; and
(b) the advice is expressly based on advice given on the
Australian law by an Australian legal practitioner who is
not an employee of the foreign lawyer.
155. Form of practice
15 (1) An Australian-registered foreign lawyer may (subject to any
conditions attaching to the foreign lawyer's registration)
practise foreign law --
(a) on the foreign lawyer's own account; or
(b) in partnership with one or more Australian-registered
20 foreign lawyers or one or more Australian legal
practitioners, or both, in circumstances where, if the
Australian-registered foreign lawyer were an Australian
legal practitioner, the partnership would be permitted
under a law of this jurisdiction; or
25 (c) as a director or employee of an incorporated legal
practice or a partner or employee of a multi-disciplinary
partnership that is permitted by a law of this jurisdiction;
or
(d) as an employee of an Australian legal practitioner or law
30 firm in circumstances where, if the Australian-registered
foreign lawyer were an Australian legal practitioner, the
employment would be permitted under a law of this
jurisdiction; or
page 128
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Practice of foreign law Division 2
s. 156
(e) as an employee of an Australian-registered foreign
lawyer.
(2) An affiliation referred to in subsection (1)(b) to (e) does not
entitle the Australian-registered foreign lawyer to practise
5 Australian law in this jurisdiction.
156. Application of Australian professional ethical and practice
standards
(1) An Australian-registered foreign lawyer must not engage in any
conduct in practising foreign law that would, if the conduct
10 were engaged in by an Australian legal practitioner in practising
Australian law in this jurisdiction, be capable of constituting
professional misconduct or unsatisfactory professional conduct.
(2) Part 13 applies to a person who --
(a) is an Australian-registered foreign lawyer; or
15 (b) was an Australian-registered foreign lawyer when the
relevant conduct allegedly occurred, but is no longer an
Australian-registered foreign lawyer (in which case
Part 13 applies as if the person were an
Australian-registered foreign lawyer),
20 and so applies as if references in Part 13 to an Australian legal
practitioner were references to a person of that kind.
(3) The regulations may make provision with respect to the
application (with or without modification) of the provisions of
Part 13 for the purposes of this section.
25 (4) Without limiting the matters that may be taken into account in
deciding whether a person should be disciplined for a
contravention of subsection (1), the following matters may be
taken into account --
(a) whether the conduct of the person was consistent with
30 the standard of professional conduct of the legal
profession in any foreign country where the person is
registered;
page 129
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 2 Practice of foreign law
s. 157
(b) whether the person contravened the subsection wilfully
or without reasonable excuse.
(5) Without limiting any other provision of this section or the
orders that may be made under Part 13 as applied by this
5 section, the following orders may be made under that Part as
applied by this section --
(a) an order that a person's registration under this Act as a
foreign lawyer be cancelled;
(b) an order that a person's registration under a
10 corresponding law as a foreign lawyer be cancelled.
157. Designation
(1) An Australian-registered foreign lawyer may use only the
following designations --
(a) the lawyer's own name;
15 (b) a title or business name the lawyer is authorised by law
to use in a foreign country where the lawyer is registered
by a foreign registration authority;
(c) subject to this section, the name of a foreign law
practice with which the lawyer is affiliated or associated
20 (whether as a partner, director, employee or otherwise);
(d) if the lawyer is a principal of any law practice in
Australia whose principals include both one or more
Australian-registered foreign lawyers and one or more
Australian legal practitioners -- a description of the
25 practice that includes references to both Australian legal
practitioners and Australian-registered foreign lawyers
(for example: "Solicitors and locally registered foreign
lawyers" or "Australian solicitors and US attorneys").
page 130
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Practice of foreign law Division 2
s. 158
(2) An Australian-registered foreign lawyer who is a principal of a
foreign law practice may use the practice's name in or in
connection with practising foreign law in this jurisdiction only
if --
5 (a) the lawyer indicates, on the lawyer's letterhead or any
other document used in this jurisdiction to identify the
lawyer as an overseas-registered foreign lawyer, that the
foreign law practice practises only foreign law in this
jurisdiction; and
10 (b) the lawyer has provided the Board with acceptable
evidence that the lawyer is a principal of the foreign law
practice.
(3) An Australian-registered foreign lawyer who is a principal of a
foreign law practice may use the name of the practice as
15 mentioned in this section whether or not other principals of the
practice are Australian-registered foreign lawyers.
(4) This section does not authorise the use of a name or other
designation that contravenes any requirements of the law of this
jurisdiction concerning the use of business names or that is
20 likely to lead to any confusion with the name of any established
domestic law practice or foreign law practice in this jurisdiction.
158. Letterhead and other identifying documents
(1) In this section --
"public document" includes any business letter, statement of
25 account, invoice, business card, and promotional and
advertising material.
(2) An Australian-registered foreign lawyer must indicate, in each
public document distributed by the lawyer in connection with
the lawyer's practice of foreign law, the fact that the lawyer is
30 an Australian-registered foreign lawyer and is restricted to the
practice of foreign law.
page 131
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 2 Practice of foreign law
s. 159
(3) Subsection (2) is satisfied if the lawyer includes in the public
document the words --
(a) "registered foreign lawyer" or "registered foreign
practitioner"; and
5 (b) "entitled to practise foreign law only".
(4) An Australian-registered foreign lawyer may (but need not)
include any or all of the following on any public document --
(a) an indication of all foreign countries in which the lawyer
is registered to engage in legal practice;
10 (b) a description of himself or herself, and any law practice
with which the lawyer is affiliated or associated in any
of the ways designated in section 157.
159. Advertising
(1) An Australian-registered foreign lawyer is required to comply
15 with any advertising restrictions imposed by the Board or by
law on the legal practice engaged in by an Australian legal
practitioner that are relevant to the practice of law in this
jurisdiction.
(2) Without limiting subsection (1), an Australian-registered foreign
20 lawyer must not advertise (or use any description on the
lawyer's letterhead or any other document used in this
jurisdiction to identify the lawyer as a lawyer) in any way
that --
(a) might reasonably be regarded as --
25 (i) false, misleading or deceptive; or
(ii) suggesting that the Australian-registered foreign
lawyer is an Australian legal practitioner;
or
(b) contravenes any requirement of the regulations.
page 132
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Practice of foreign law Division 2
s. 160
160. Foreign lawyer employing Australian legal practitioner
(1) An Australian-registered foreign lawyer may employ one or
more Australian legal practitioners.
(2) Employment of an Australian legal practitioner does not entitle
5 an Australian-registered foreign lawyer to practise Australian
law in this jurisdiction.
(3) An Australian legal practitioner employed by an
Australian-registered foreign lawyer may practise foreign law.
(4) An Australian legal practitioner employed by an
10 Australian-registered foreign lawyer must not --
(a) provide advice on Australian law to, or for use by, the
Australian-registered foreign lawyer; or
(b) otherwise practise Australian law in this jurisdiction in
the course of that employment.
15 (5) Subsection (4) does not apply to an Australian legal practitioner
employed by a law firm a partner of which is an
Australian-registered foreign lawyer, if at least one other partner
is an Australian legal practitioner.
(6) Any period of employment of an Australian legal practitioner by
20 an Australian-registered foreign lawyer cannot be used to satisfy
a requirement imposed by a condition on a local practising
certificate to complete a period of supervised legal practice.
161. Trust money and trust accounts
(1) The provisions of Part 9, and any other provisions of this Act
25 relating to requirements for trust money and trust accounts
apply (subject to this section) to Australian-registered foreign
lawyers in the same way as they apply to law practices and
Australian legal practitioners.
(2) In this section, a reference to money is not limited to a reference
30 to money in this jurisdiction.
page 133
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 2 Practice of foreign law
s. 162
(3) The regulations may make provision with respect to the
application (with or without modification) of the provisions of
this Act relating to trust money and trust accounts for the
purposes of this section.
5 162. Professional indemnity insurance
(1) An Australian-registered foreign lawyer must, at all times while
practising foreign law in this jurisdiction, comply with one of
the following --
(a) the foreign lawyer must have professional indemnity
10 insurance that conforms with the requirements for
professional indemnity insurance applicable for
Australian legal practitioners in any jurisdiction;
(b) if the foreign lawyer does not have professional
indemnity insurance that complies with paragraph (a) --
15 the foreign lawyer --
(i) must have professional indemnity insurance that
covers the practice of foreign law in this
jurisdiction and that complies with the relevant
requirements of a foreign law or foreign
20 registration authority; and
(ii) if the insurance is for less than $1.5 million
(inclusive of defence costs) -- must provide a
disclosure statement to each client disclosing the
level of cover;
25 (c) if the foreign lawyer does not have professional
indemnity insurance that complies with paragraph (a)
or (b) -- the foreign lawyer must provide a disclosure
statement to each client stating that the lawyer does not
have complying professional indemnity insurance.
30 (2) A disclosure statement must be made in writing before, or as
soon as practicable after, the foreign lawyer is retained in the
matter.
page 134
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Local registration of foreign lawyers generally Division 3
s. 163
(3) A disclosure statement provided to a person before the foreign
lawyer is retained in a matter is taken to be provided to the
person as a client for the purposes of this section.
(4) A disclosure statement is not valid unless it is given in
5 accordance with, and otherwise complies with, any applicable
requirements of the regulations.
163. Fidelity cover
The regulations may provide that the provisions of Part 12 apply
to classes of Australian-registered foreign lawyers prescribed by
10 the regulations and so apply with any modifications specified in
the regulations.
Division 3 -- Local registration of foreign lawyers generally
164. Local registration of foreign lawyers
Overseas-registered foreign lawyers may be registered as
15 foreign lawyers under this Act.
165. Duration of registration
(1) Registration as a locally registered foreign lawyer granted under
this Act is in force from the day specified in the local
registration certificate until the end of the financial year in
20 which it is granted, unless the registration is sooner suspended
or cancelled.
(2) Registration as a foreign lawyer renewed under this Act is in
force until the end of the financial year following its previous
period of currency, unless the registration is sooner suspended
25 or cancelled.
(3) If an application for the renewal of registration as a foreign
lawyer has not been determined by the following 1 July, the
registration --
(a) continues in force on and from that 1 July until the
30 Board renews or refuses to renew the registration or the
page 135
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 4 Application for grant or renewal of local registration
s. 166
holder withdraws the application for renewal, unless the
registration is sooner suspended or cancelled; and
(b) if renewed, is taken to have been renewed on and from
that 1 July.
5 166. Locally registered foreign lawyer is not officer of Supreme
Court
A locally registered foreign lawyer is not an officer of the
Supreme Court.
Division 4 -- Application for grant or renewal of
10 local registration
167. Application for grant or renewal of registration
An overseas-registered foreign lawyer may apply to the Board
for the grant or renewal of registration as a foreign lawyer under
this Act.
15 168. Manner of application
(1) An application for the grant or renewal of registration as a
foreign lawyer must be --
(a) made in the approved form; and
(b) accompanied by the fees determined by the Board.
20 (2) Different fees may be set according to different factors
determined by the Board.
(3) The fees are not to be greater than the maximum fees for a local
practising certificate.
(4) The Board may also require the applicant to pay any reasonable
25 costs and expenses incurred by the Board in considering the
application, including (for example) costs and expenses of
making inquiries and obtaining information or documents about
whether the applicant meets the criteria for registration.
page 136
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Application for grant or renewal of local registration Division 4
s. 169
(5) The fees and costs must not include any component for
compulsory membership of any professional association.
(6) The approved form may require the applicant to disclose --
(a) matters that may affect the Board's consideration of the
5 application for the grant or renewal of registration; and
(b) particulars of any offences for which the applicant has
been convicted in Australia or a foreign country,
whether before or after the commencement of this
section.
10 (7) The approved form may indicate that convictions of a particular
kind need not be disclosed for the purposes of the current
application.
(8) The approved form may indicate that specified kinds of matters
or particulars previously disclosed in a particular manner need
15 not be disclosed for the purposes of the current application.
169. Requirements regarding applications for grant or renewal
of registration
(1) An application for the grant of registration must state the
applicant's educational and professional qualifications.
20 (2) An application for the grant or renewal of registration must --
(a) state that the applicant is registered to engage in legal
practice by one or more specified foreign registration
authorities in one or more foreign countries; and
(b) state that the applicant is not an Australian legal
25 practitioner; and
(c) state that the applicant is not the subject of disciplinary
proceedings in Australia or a foreign country (including
any preliminary investigations or action that might lead
to disciplinary proceedings) in the applicant's capacity
30 as --
(i) an overseas-registered foreign lawyer; or
page 137
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 4 Application for grant or renewal of local registration
s. 169
(ii) an Australian-registered foreign lawyer; or
(iii) an Australian lawyer;
and
(d) state whether the applicant has been convicted of an
5 offence in Australia or a foreign country, and if so --
(i) the nature of the offence; and
(ii) how long ago the offence was committed; and
(iii) the applicant's age when the offence was
committed;
10 and
(e) state that the applicant's registration is not cancelled or
currently suspended in any place as a result of any
disciplinary action in Australia or a foreign country; and
(f) state --
15 (i) that the applicant is not otherwise personally
prohibited from engaging in legal practice in any
place or bound by any undertaking not to engage
in legal practice in any place; and
(ii) whether or not the applicant is subject to any
20 special conditions in engaging in legal practice in
any place,
as a result of criminal, civil or disciplinary proceedings
in Australia or a foreign country; and
(g) specify any special conditions imposed in Australia or a
25 foreign country as a restriction on the legal practice
engaged in by the applicant or any undertaking given by
the applicant restricting the applicant's practice of law;
and
(h) give consent to the making of inquiries of, and the
30 exchange of information with, any foreign registration
authorities the Board considers appropriate regarding the
applicant's activities in engaging in legal practice in the
page 138
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Application for grant or renewal of local registration Division 4
s. 169
places concerned or otherwise regarding matters
relevant to the application; and
(i) specify which of the paragraphs of section 162(1) the
applicant proposes to rely on and be accompanied by
5 supporting proof of the relevant matters; and
(j) provide the information or be accompanied by other
information or documents (or both) that is specified in
the application form or in material accompanying the
application form as provided by the Board.
10 (3) The application must (if the Board so requires) be accompanied
by an original instrument, or a copy of an original instrument,
from each foreign registration authority specified in the
application that --
(a) verifies the applicant's educational and professional
15 qualifications; and
(b) verifies the applicant's registration by the authority to
engage in legal practice in the foreign country
concerned, and the date of registration; and
(c) describes anything done by the applicant in engaging in
20 legal practice in that foreign country of which the
authority is aware and that, in the opinion of the
authority, has had or is likely to have had an adverse
effect on the applicant's professional standing within the
legal profession of that place.
25 (4) The applicant must (if the Board so requires) certify in the
application that the accompanying instrument is the original or a
complete and accurate copy of the original.
(5) The Board may require the applicant to verify the statements in
the application by statutory declaration or by other proof
30 acceptable to the Board.
(6) If the accompanying instrument is not in English, it must be
accompanied by a translation in English that is authenticated or
certified to the satisfaction of the Board.
page 139
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 5 Grant or renewal of registration
s. 170
Division 5 -- Grant or renewal of registration
170. Grant or renewal of registration
(1) The Board must consider an application that has been made for
the grant or renewal of registration as a locally registered
5 foreign lawyer and may --
(a) grant or refuse to grant the registration; and
(b) renew or refuse to renew the registration.
(2) The Board may, when granting or renewing registration, impose
conditions as referred to in section 189.
10 (3) If the Board grants or renews the registration, the Board must
give the applicant a registration certificate or a notice of
renewal.
(4) If the Board --
(a) refuses to grant or renew registration; or
15 (b) imposes a condition on the registration and the applicant
does not agree to the condition,
the Board must, as soon as practicable, give the applicant an
information notice.
(5) A notice of renewal may be in the form of a new registration
20 certificate or another form the Board considers appropriate.
171. Requirement to grant or renew registration if criteria
satisfied
(1) The Board must grant an application for registration as a foreign
lawyer if the Board --
25 (a) is satisfied the applicant is registered to engage in legal
practice in one or more foreign countries and is not an
Australian legal practitioner; and
(b) considers an effective system exists for regulating
engaging in legal practice in one or more of the foreign
30 countries; and
page 140
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Grant or renewal of registration Division 5
s. 172
(c) considers the applicant is not, as a result of criminal,
civil or disciplinary proceedings in any of the foreign
countries, subject to --
(i) any special conditions in engaging in legal
5 practice in any of the foreign countries; or
(ii) any undertakings concerning engaging in legal
practice in any of the foreign countries,
that would make it inappropriate to register the person;
and
10 (d) is satisfied that the applicant demonstrates an intention
to commence practising foreign law in this jurisdiction
within a reasonable period if registration were to be
granted,
unless the Board refuses the application under this Part.
15 (2) The Board must grant an application for renewal of a person's
registration, unless the Board refuses the renewal under
this Part.
(3) Residence or domicile in this jurisdiction is not to be a
prerequisite for or a factor in entitlement to the grant or renewal
20 of registration.
172. Refusal to grant or renew registration
(1) The Board may refuse to consider an application for registration
as a foreign lawyer if it is not made in accordance with this Act.
(2) The Board may refuse to grant or renew registration if --
25 (a) the application is not accompanied by, or does not
contain, the information required under this Part or
prescribed by the regulations; or
(b) the applicant has contravened this Act or a
corresponding law; or
30 (c) the applicant has contravened an order of the
Complaints Committee, the State Administrative
page 141
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 5 Grant or renewal of registration
s. 172
Tribunal or the Supreme Court exercising jurisdiction
under this Act or a corresponding disciplinary body,
including but not limited to an order to pay any fine or
costs; or
5 (d) the applicant has contravened an order of a local
regulatory authority or interstate regulatory authority to
pay any fine or costs; or
(e) the applicant has failed to comply with a requirement
under this Act to pay a contribution or levy to the
10 Guarantee Fund; or
(f) the applicant has contravened a requirement under this
Act about professional indemnity insurance; or
(g) the applicant has failed to pay any expenses of
receivership payable under this Act; or
15 (h) the applicant's foreign legal practice is in receivership
(however described).
(3) The Board may refuse to grant or renew registration if an
authority of another jurisdiction has under a corresponding
law --
20 (a) refused to grant or renew registration for the applicant;
or
(b) suspended or cancelled the applicant's registration.
(4) The Board may refuse to grant registration if the Board is
satisfied that the applicant is not a fit and proper person to be
25 registered after considering --
(a) the nature of any offence of which the applicant has
been convicted in Australia or a foreign country,
whether before or after the commencement of this
section; and
30 (b) how long ago the offence was committed; and
(c) the person's age when the offence was committed.
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Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Amendment, suspension or cancellation of local registration Division 6
s. 173
(5) The Board may refuse to renew registration if the Board is
satisfied that the applicant is not a fit and proper person to
continue to be registered after considering --
(a) the nature of any offence of which the applicant has
5 been convicted in Australia or a foreign country,
whether before or after the commencement of this
section, other than an offence disclosed in a previous
application to the Board; and
(b) how long ago the offence was committed; and
10 (c) the person's age when the offence was committed.
(6) The Board may refuse to grant or renew registration on any
ground on which registration could be suspended or cancelled.
(7) If the Board refuses to grant or renew registration, the Board
must, as soon as practicable, give the applicant an information
15 notice.
(8) Nothing in this section affects the operation of Division 7.
Division 6 -- Amendment, suspension or cancellation of
local registration
173. Application of this Division
20 This Division does not apply in relation to matters referred to in
Division 7.
174. Grounds for amending, suspending or cancelling local
registration
(1) Each of the following is a ground for amending, suspending or
25 cancelling a person's registration as a foreign lawyer --
(a) the registration was obtained because of incorrect or
misleading information;
(b) the person contravenes a requirement of this Part;
(c) the person contravenes a condition imposed on the
30 person's registration;
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Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 6 Amendment, suspension or cancellation of local registration
s. 175
(d) the person becomes the subject of disciplinary
proceedings in Australia or a foreign country (including
any preliminary investigations or action that might lead
to disciplinary proceedings) in the person's capacity
5 as --
(i) an overseas-registered foreign lawyer; or
(ii) an Australian-registered foreign lawyer; or
(iii) an Australian lawyer;
(e) the person has been convicted of an offence in Australia
10 or a foreign country;
(f) the person's registration is cancelled or currently
suspended in any place as a result of any disciplinary
action in Australia or a foreign country;
(g) the person does not meet the requirements of
15 section 162;
(h) another ground the Board considers sufficient.
(2) Subsection (1) does not limit the grounds on which conditions
may be imposed on registration as a foreign lawyer under
section 189.
20 175. Amending, suspending or cancelling registration
(1) In this section --
"amend", in relation to registration, means amend the
registration under section 189 during its currency,
otherwise than at the request of the foreign lawyer
25 concerned.
(2) If the Board believes a ground exists to amend, suspend or
cancel a person's registration by it as a foreign lawyer (the
"action"), the Board must give the person a notice that --
(a) states the action proposed and --
30 (i) if the proposed action is to amend the registration
in any way -- states the proposed amendment;
and
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Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Amendment, suspension or cancellation of local registration Division 6
s. 175
(ii) if the proposed action is to suspend the
registration -- states the proposed suspension
period;
and
5 (b) states the grounds for proposing to take the action; and
(c) outlines the facts and circumstances that form the basis
for the Board's belief; and
(d) invites the person to make written representations to the
Board, within a specified time not less than 7 days and
10 not more than 28 days, as to why the action proposed
should not be taken.
(3) If, after considering all written submissions made within the
specified time, the Board still believes a ground exists to take
the action, the Board may --
15 (a) if the notice under subsection (2) stated the action
proposed was to amend the person's registration --
amend the registration in the way stated, or in another
way the Board considers appropriate because of the
representations; or
20 (b) if the notice stated the action proposed was to suspend
the registration for a specified period -- suspend the
registration for a period no longer than the specified
period; or
(c) if the notice stated the action proposed was to cancel the
25 registration --
(i) cancel the registration; or
(ii) suspend the registration for a period; or
(iii) amend the registration in a less onerous way the
Board considers appropriate because of the
30 representations.
(4) The Board may, in its discretion, consider representations made
after the specified time.
page 145
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 6 Amendment, suspension or cancellation of local registration
s. 176
(5) If the Board decides to amend, suspend or cancel the
registration, the Board must give the person an information
notice about the decision.
176. Operation of amendment, suspension or cancellation of
5 registration
(1) This section applies if a decision is made under section 175 to
amend, suspend or cancel a person's registration.
(2) Subject to subsections (3) and (4), the amendment, cancellation
or suspension of the person's registration takes effect on the
10 later of the following --
(a) the day notice of the decision is given to the person;
(b) the day specified in the notice.
(3) If the registration is amended, cancelled or suspended because
the person has been convicted of an offence --
15 (a) the State Administrative Tribunal may, on the
application of the person, order that the amendment,
cancellation or suspension be stayed until --
(i) the end of the time to appeal against the
conviction; or
20 (ii) if an appeal is made against the conviction -- the
appeal is finally decided, lapses or otherwise
ends;
and
(b) the amendment, cancellation or suspension does not
25 have effect during any period for which the stay is in
force.
(4) If the registration is amended, suspended or cancelled because
the person has been convicted of an offence and the conviction
is quashed --
30 (a) the amendment or suspension ceases to have effect when
the conviction is quashed; or
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Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Amendment, suspension or cancellation of local registration Division 6
s. 177
(b) the cancellation ceases to have effect when the
conviction is quashed and the registration is restored as
if it had merely been suspended.
177. Other ways of amending or cancelling registration
5 (1) The Board may --
(a) amend the registration of a locally registered foreign
lawyer if the lawyer requests the Board to do so; or
(b) suspend the registration of a locally registered foreign
lawyer for a specified period if the lawyer requests the
10 Board to do so or agrees to the Board doing so; or
(c) cancel the registration of a locally registered foreign
lawyer if the lawyer requests the Board to do so or
surrenders the lawyer's local registration certificate to
the Board.
15 (2) The Board may amend a locally registered foreign lawyer's
registration --
(a) for a formal or clerical reason; or
(b) in another way that does not adversely affect the
lawyer's interests.
20 (3) The amendment, suspension or cancellation of registration
under this section is effected by written notice given to the
lawyer.
(4) Section 175 does not apply in the case of an amendment,
suspension or cancellation under this section.
25 178. Relationship of this Division with Part 13
Nothing in this Division prevents a complaint from being made,
or an investigation from being initiated, under Part 13 about a
matter to which this Division relates.
page 147
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 7 Special powers in relation to local registration -- show cause
events
s. 179
Division 7 -- Special powers in relation to local registration --
show cause events
179. Applicant for local registration -- show cause event
(1) This section applies if --
5 (a) a person is applying for registration as a foreign lawyer
under this Act; and
(b) a show cause event in relation to the person happened,
whether before or after the commencement of this
section, after the person first became an
10 overseas-registered foreign lawyer.
(2) As part of the application, the person must provide to the Board
a written statement, in accordance with the regulations --
(a) about the show cause event; and
(b) explaining why, despite the show cause event, the
15 person considers himself or herself to be a fit and proper
person to be a locally registered foreign lawyer.
(3) However, a person need not provide a statement under
subsection (2) if the person has previously provided to the
Board a statement under this section, or a notice and statement
20 under section 180, explaining why, despite the show cause
event, the person considers himself or herself to be a fit and
proper person to be a locally registered foreign lawyer.
180. Locally registered foreign lawyer -- show cause event
(1) This section applies to a show cause event that happens in
25 relation to a locally registered foreign lawyer.
(2) The locally registered foreign lawyer must provide to the Board
both of the following --
(a) within 7 days after the happening of the event -- notice,
in the approved form, that the event happened;
30 (b) within 28 days after the happening of the event -- a
written statement explaining why, despite the show
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Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Special powers in relation to local registration -- show cause Division 7
events
s. 181
cause event, the person considers himself or herself to
be a fit and proper person to be a locally registered
foreign lawyer.
(3) If a written statement is provided after the 28 days mentioned in
5 subsection (2)(b), the Board may accept the statement and take
it into consideration.
181. Refusal, amendment, suspension or cancellation of local
registration -- failure to show cause
(1) The Board may refuse to grant or renew, or may amend,
10 suspend or cancel, local registration if the applicant for
registration or the locally registered foreign lawyer --
(a) is required under section 179 or 180 to provide a written
statement relating to a matter and has failed to provide a
written statement in accordance with that requirement;
15 or
(b) has provided a written statement in accordance with
section 179 or 180, but the Board does not consider that
the applicant or foreign lawyer has shown in the
statement that, despite the show cause event concerned,
20 he or she is a fit and proper person to be a locally
registered foreign lawyer.
(2) For the purposes of this section only, a written statement
accepted by the Board under section 180(3) is taken to have
been provided in accordance with section 180.
25 (3) The Board must give the applicant or foreign lawyer an
information notice about the decision to refuse to grant or
renew, or to suspend or cancel, the registration.
182. Restriction on making further applications
(1) If the Board determines under this Division to cancel a person's
30 registration, the Board may also determine that the person is not
entitled to apply for registration under this Part for a specified
period not exceeding 5 years.
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Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 8 Further provisions relating to local registration
s. 183
(2) A person in respect of whom a determination has been made
under this section, or under a provision of a corresponding law
that corresponds to this section, is not entitled to apply for
registration under this Part during the period specified in the
5 decision.
(3) If the Board makes a determination under this section, the Board
must give the person an information notice about the
determination.
183. Relationship of this Division with Part 13
10 Nothing in this Division prevents a complaint from being made,
or an investigation from being initiated, under Part 13 about a
matter to which this Division relates.
Division 8 -- Further provisions relating to local registration
184. Immediate suspension of registration
15 (1) This section applies, despite sections 175 and 176, if the Board
considers it necessary in the public interest to immediately
suspend a person's registration as a locally registered foreign
lawyer.
(2) The Board may, by written notice given to the person,
20 immediately suspend the registration until the earlier of the
following --
(a) the time at which the Board informs the person of the
Board's decision by notice under section 175;
(b) the end of the period of 56 days after the notice is given
25 to the person under this section.
(3) The notice under this section must state --
(a) the reasons for the suspension; and
(b) that the person may make written representations to the
Board about the suspension; and
30 (c) the review rights of the person under section 203.
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Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Further provisions relating to local registration Division 8
s. 185
(4) The person may make written representations to the Board
about the suspension, and the Board must consider the
representations.
(5) The Board may revoke the suspension at any time, whether or
5 not in response to any written representations made to it by the
person.
185. Automatic cancellation of registration on grant of practising
certificate
A person's registration as a foreign lawyer under this Part is
10 taken to be cancelled if the person becomes an Australian legal
practitioner.
186. Suspension or cancellation of registration not to affect
disciplinary processes
The suspension or cancellation of a person's registration as a
15 foreign lawyer under this Part does not affect any disciplinary
processes in respect of matters arising before the suspension or
cancellation.
187. Return of local registration certificate on amendment,
suspension or cancellation of registration
20 (1) This section applies if a person's registration under this Part as a
foreign lawyer is amended, suspended or cancelled.
(2) The Board may give the person a notice requiring the person to
return the registration certificate to the Board in the way
specified in the notice within a specified period of not less than
25 14 days.
(3) The person must comply with the notice, unless the person has a
reasonable excuse.
Penalty: a fine of $2 000.
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Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 9 Conditions on registration
s. 188
(4) The Board must return the registration certificate to the person
as soon as practicable --
(a) if the certificate is amended -- after amending it; or
(b) if the certificate is suspended and is still current at the
5 end of the suspension period -- at the end of the
suspension period.
Division 9 -- Conditions on registration
188. Conditions generally
Registration as a foreign lawyer under this Part is subject to --
10 (a) any conditions imposed by the Board; and
(b) any conditions imposed under the legal profession rules;
and
(c) any conditions imposed under Part 13 or under any
provisions of a corresponding law that correspond to
15 Part 13; and
(d) any other conditions imposed by this or any other Act.
189. Conditions imposed by Board
(1) The Board may impose conditions on registration as a foreign
lawyer --
20 (a) when the registration is granted or renewed; or
(b) during the currency of the registration.
(2) A condition imposed under this section must be reasonable and
relevant.
(3) A condition imposed under this section may be about any of the
25 following --
(a) any matter in respect of which a condition could be
imposed on a local practising certificate;
(b) a matter agreed to by the foreign lawyer.
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Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Conditions on registration Division 9
s. 190
(4) The Board must not impose a condition under subsection (3)(a)
that is more onerous than a condition that it would impose on a
local practising certificate of a local legal practitioner in the
same or similar circumstances.
5 (5) The Board may revoke or vary conditions imposed by it under
this section.
190. Imposition or variation of conditions pending criminal
proceedings
(1) If a person registered as a foreign lawyer under this Part has
10 been charged with an offence but the charge has not been
determined, the Board may apply to the State Administrative
Tribunal for an order under this section.
(2) On application under subsection (1), the State Administrative
Tribunal may make either or both of the following orders --
15 (a) an order varying the conditions on the foreign lawyer's
registration;
(b) an order imposing further conditions on the foreign
lawyer's registration.
(3) The State Administrative Tribunal may make an order under
20 this section only if the Tribunal considers it appropriate to do
so, having regard to --
(a) the seriousness of the offence; and
(b) the public interest.
(4) An order under this section has effect until the sooner of --
25 (a) the end of the period specified by the State
Administrative Tribunal;
(b) if the practitioner is convicted of the offence -- 28 days
after the day of the conviction;
(c) if the charge is dismissed -- the day of the dismissal.
30 (5) The State Administrative Tribunal, on application by any party,
may vary or revoke an order under this section at any time.
page 153
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 9 Conditions on registration
s. 191
191. Condition regarding notification of offence
(1) It is a condition of registration as a foreign lawyer that the
lawyer --
(a) must notify the Board that the lawyer has been --
5 (i) convicted of an offence that would have to be
disclosed in relation to an application for
registration as a foreign lawyer under this Act; or
(ii) charged with a serious offence;
and
10 (b) must do so within 7 days after the event and by a written
notice.
(2) The legal profession rules may specify the form of the notice to
be used and the person to whom or the address to which it is to
be given.
15 (3) This section does not apply to an offence to which Division 7
applies.
192. Conditions imposed by legal profession rules
The legal profession rules may --
(a) impose conditions on the registration of foreign lawyers
20 or any class of foreign lawyers; or
(b) authorise conditions to be imposed on the registration of
foreign lawyers or on the registration of any class of
foreign lawyers.
193. Compliance with conditions
25 A locally registered foreign lawyer must not contravene a
condition to which the registration is subject.
Penalty: a fine of $10 000.
page 154
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Interstate-registered foreign lawyers Division 10
s. 194
Division 10 -- Interstate-registered foreign lawyers
194. Extent of entitlement of interstate-registered foreign lawyer
to practise in this jurisdiction
(1) This Part does not authorise an interstate-registered foreign
5 lawyer to practise foreign law in this jurisdiction to a greater
extent than a locally registered foreign lawyer could be
authorised under a local registration certificate.
(2) Also, an interstate-registered foreign lawyer's right to practise
foreign law in this jurisdiction --
10 (a) is subject to --
(i) any conditions imposed by the Board under
section 195 in relation to the lawyer; and
(ii) any conditions imposed under the legal
profession rules as referred to in that section;
15 and
(b) is, to the greatest practicable extent and with all
necessary changes --
(i) the same as the interstate-registered foreign
lawyer's right to practise foreign law in the
20 lawyer's home jurisdiction; and
(ii) subject to any condition on the
interstate-registered foreign lawyer's right to
practise foreign law in that jurisdiction.
(3) If there is an inconsistency between conditions mentioned in
25 subsection (2)(a) and conditions mentioned in subsection (2)(b),
the conditions that are, in the opinion of the Board, more
onerous prevail to the extent of the inconsistency.
(4) An interstate-registered foreign lawyer must not practise foreign
law in this jurisdiction in a manner not authorised by this Act or
30 in contravention of any condition referred to in this section.
page 155
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 10 Interstate-registered foreign lawyers
s. 195
195. Additional conditions on practice of interstate-registered
foreign lawyers
(1) The Board may, by written notice to an interstate-registered
foreign lawyer practising foreign law in this jurisdiction, impose
5 any condition on the interstate-registered foreign lawyer's
practice that it may impose under this Act in relation to a locally
registered foreign lawyer.
(2) The legal profession rules may impose, or provide for the
imposition of, conditions on the registration of an
10 interstate-registered foreign lawyer.
(3) Conditions imposed under or referred to in this section must not
be more onerous than conditions applying to locally registered
foreign lawyers in the same or similar circumstances.
(4) A notice under this section must include an information notice
15 about the decision to impose a condition.
(5) An interstate-registered foreign lawyer may apply to the State
Administrative Tribunal for review of a decision of the Board to
impose a condition on the lawyer's registration under this
section or the legal profession rules.
20 196. Notification requirements for interstate-registered foreign
lawyers
(1) An interstate-registered foreign lawyer who establishes an office
in this jurisdiction must give written notice to the Board in
accordance with this section within 28 days after establishing
25 the office.
Penalty: a fine of $5 000.
(2) The notice must contain --
(a) the lawyer's name, date of birth and date of registration
to engage in legal practice in one or more foreign
30 countries; and
(b) the name of any law practice of which the lawyer is a
principal or employee, or any other person or body of
which the lawyer is an employee; and
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Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Interstate-registered foreign lawyers Division 10
s. 196
(c) if the lawyer practises on his or her own account, any
business names under which the lawyer practises foreign
law; and
(d) any condition to which the lawyer is subject in respect
5 of his or her practice of foreign law in the lawyer's
home jurisdiction or elsewhere; and
(e) an address in this jurisdiction for service of notices and
other documents on the lawyer; and
(f) a statement as to whether the lawyer has established, or
10 intends to establish, an office in this jurisdiction; and
(g) a statement as to whether the lawyer is entitled to
receive trust money, or to withdraw trust money from a
trust account; and
(h) the information prescribed by the regulations (if any).
15 (3) A notice under this section must be accompanied by --
(a) satisfactory evidence, in an approved form, that the
interstate-registered foreign lawyer has professional
indemnity insurance as required under this Act; and
(b) the required contribution to the Guarantee Fund under
20 this Act, if any.
(4) If an interstate-registered foreign lawyer who has indicated that
he or she does not intend to establish an office in this
jurisdiction subsequently establishes an office in this
jurisdiction, the lawyer must give notice to the Board within
25 14 days.
(5) For the purposes of this section, an interstate-registered foreign
lawyer establishes an office in this jurisdiction when the lawyer
first offers or provides legal services to the public in this
jurisdiction from an office maintained by the lawyer, or by a
30 principal of a law practice of which the practitioner is an
associate, for that purpose in this jurisdiction.
page 157
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 11 Miscellaneous
s. 197
Division 11 -- Miscellaneous
197. Consideration and investigation of applicants and locally
registered foreign lawyers
(1) To help it consider whether or not to grant, renew, amend,
5 suspend or cancel registration under this Part, the Board may,
by notice to the applicant or locally registered foreign lawyer
require the applicant or lawyer --
(a) to give the Board specified documents or information; or
(b) to cooperate with any inquiries that the Board considers
10 appropriate.
(2) The Board may require the applicant or locally registered
foreign lawyer to verify documents or information by statutory
declaration or in another manner specified by the Board.
(3) A failure to comply with a notice under subsection (1) by the
15 date specified in the notice and in the way required by the notice
is a ground for making an adverse decision in relation to the
action being considered by the Board.
198. Register of locally registered foreign lawyers
(1) The Board must keep a register of the names of locally
20 registered foreign lawyers.
(2) The register must --
(a) state the conditions (if any) imposed on a foreign
lawyer's registration; and
(b) include other particulars prescribed by the regulations.
25 (3) The register may be kept in the way the Board decides.
(4) The register must be available for inspection, without charge, at
the Board's principal place of business during normal business
hours.
page 158
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Miscellaneous Division 11
s. 199
199. Publication of information about locally registered foreign
lawyers
The Board may publish, in circumstances that it considers
appropriate, the names of persons registered by it as foreign
5 lawyers under this Part and any relevant particulars concerning
those persons.
200. State Administrative Tribunal orders about conditions
The Board may apply to the State Administrative Tribunal for
an order that an Australian-registered foreign lawyer not
10 contravene a condition imposed under this Part.
201. Exemption by Board
(1) The Board may exempt an Australian-registered foreign lawyer
or class of Australian-registered foreign lawyers from
compliance with a specified provision of this Act or the
15 regulations, or from compliance with a specified rule or part of
a rule, that would otherwise apply to the foreign lawyer or class
of foreign lawyers.
(2) An exemption may be granted unconditionally or subject to
conditions specified in writing.
20 (3) The Board may revoke or vary any conditions imposed under
this section or impose new conditions.
202. Membership of professional association
An Australian-registered foreign lawyer is not required to join
(but may, if eligible, join) any professional association.
25 203. Review by State Administrative Tribunal
A foreign lawyer may apply to the State Administrative
Tribunal for review of a decision by the Board --
(a) to refuse to grant or renew registration under
section 170, 172 or 181; or
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Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 11 Miscellaneous
s. 203
(b) to impose a condition on registration under section 189;
or
(c) to amend, suspend or cancel registration under
section 175 or 181; or
5 (d) to suspend registration under section 184; or
(e) to impose a period under section 182 during which the
lawyer is not entitled to apply for registration.
page 160
Legal Profession Bill 2007
Trust money and trust accounts Part 9
Preliminary Division 1
s. 204
Part 9 -- Trust money and trust accounts
Division 1 -- Preliminary
204. Purposes
The purposes of this Part are as follows --
5 (a) to ensure trust money is held by law practices in a way
that protects the interests of person for or on whose
behalf money is held, both inside and outside this
jurisdiction;
(b) to minimise compliance requirement for law practices
10 that provide legal services within and outside this
jurisdiction;
(c) to ensure the Board can work effectively with
corresponding authorities in other jurisdictions in
relation to the regulation of trust money and trust
15 accounts.
205. Definitions
(1) In this Part --
"controlled money" means money received or held by a law
practice in respect of which the practice has a written
20 direction to deposit the money in an account (other than a
general trust account) over which the practice has or will
have exclusive control;
"controlled money account" means an account maintained by
a law practice with an ADI for the holding of controlled
25 money received by the practice;
"general trust account" means an account maintained in this
jurisdiction by a law practice with an ADI for the holding
of trust money received by the practice, other than
controlled money or transit money;
30 "investigation" means an investigation under Division 3 of the
affairs of a law practice;
page 161
Legal Profession Bill 2007
Part 9 Trust money and trust accounts
Division 1 Preliminary
s. 205
"investigator" means a person holding an appointment as an
investigator under Division 3;
"transit money" means money received by a law practice
subject to instructions to pay or deliver it to a third party,
5 other than an associate of the practice;
"trust account" means an account maintained by a law practice
with an ADI to hold trust money;
"trust money" means money entrusted to the law practice in
the course of or in connection with the provision of legal
10 services by the practice, and includes --
(a) money received by the practice on account of legal
costs in advance of providing the services; and
(b) controlled money received by the practice; and
(c) transit money received by the practice; and
15 (d) money received by the practice that is the subject of a
power, exercisable by the practice or an associate of
the practice, to deal with the money for or on behalf
of another person;
"trust records" includes the following --
20 (a) receipts;
(b) cheque butts or cheque requisitions;
(c) records of authorities to withdraw by electronic funds
transfer;
(d) deposit records (including deposit slips and duplicate
25 deposit slips);
(e) trust account ADI statements;
(f) trust account receipts and payments cash books;
(g) trust ledger accounts;
(h) records of monthly trial balances;
30 (i) records of monthly reconciliations;
(j) trust transfer journals;
page 162
Legal Profession Bill 2007
Trust money and trust accounts Part 9
Preliminary Division 1
s. 205
(k) statements of account as required to be furnished
under the regulations;
(l) registers required to be kept under the regulations;
(m) monthly statements required to be kept under the
5 regulations;
(n) files relating to trust transactions or bills of costs or
both;
(o) written directions, authorities or other documents
required to be kept under this Act;
10 (p) supporting information required to be kept under the
regulations in relation to powers to deal with trust
money.
(2) A reference in this Part to a law practice's trust account or trust
records includes a reference to an associate's trust account or
15 trust records.
(3) A reference in this Part to a power given to a law practice or an
associate of the practice to deal with money for or on behalf of
another person is a reference to a power given to the practice or
associate that is exercisable by --
20 (a) the practice alone; or
(b) an associate of the practice alone (otherwise than in a
private or personal capacity); or
(c) the practice or an associate of the practice jointly or
severally, or jointly and severally, with either or both of
25 the following --
(i) one or more associates of the practice;
(ii) the person or one or more nominees of the
person, for whom or on whose behalf the money
may or is to be dealt with under the power.
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Division 1 Preliminary
s. 206
206. Money involved in financial services or investments
(1) Money that is entrusted to or held by a law practice for or in
connection with --
(a) a financial service provided by the practice or an
5 associate of the practice in circumstances where the
practice or associate is required to hold an Australian
financial services licence covering the provision of the
service (whether or not such a licence is held at any
relevant time); or
10 (b) a financial service provided by the practice or an
associate of the practice in circumstances where the
practice or associate provides the service as a
representative of another person who carries on a
financial services business (whether or not the practice
15 or associate is an authorised representative at any
relevant time),
is not trust money for the purposes of this Act.
(2) Without limiting subsection (1), money that is entrusted to or
held by a law practice for or in connection with a managed
20 investment scheme, or mortgage financing, undertaken by the
practice is not trust money for the purposes of this Act.
(3) Without limiting subsections (1) and (2), money that is
entrusted to or held by a law practice for investment purposes,
whether on its own account or as agent, is not trust money for
25 the purposes of this Act, unless --
(a) the money was entrusted to or held by the practice --
(i) in the ordinary course of legal practice; and
(ii) primarily in connection with the provision of
legal services to or at the direction of the client;
30 and
(b) the investment is or is to be made --
(i) in the ordinary course of legal practice; and
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Trust money and trust accounts Part 9
Preliminary Division 1
s. 207
(ii) for the ancillary purpose of maintaining or
enhancing the value of the money pending
completion of the matter or further stages of the
matter or pending payment or delivery of the
5 money to or at the direction of the client.
(4) In this section --
"Australian financial services licence", "authorised
representative", "financial service" and "financial
services business" have the meanings given in the
10 Corporations Act Chapter 7.
207. Determinations about status of money
(1) This section applies to money received by a law practice if the
Board considers that there is doubt or a dispute as to whether
the money is trust money.
15 (2) The Board may determine that money is or is not trust money.
(3) The Board may revoke or modify a determination under this
section.
(4) While a determination under this section is in force that money
is trust money, the money is taken to be trust money for the
20 purposes of this Act.
(5) While a determination under this section is in force that money
is not trust money, the money is taken not to be trust money for
the purposes of this Act.
(6) This section has effect subject to a decision of a court or the
25 State Administrative Tribunal made in relation to the money
concerned.
208. Application of Part to law practices and trust money
(1) This Part applies to the following law practices in respect of
trust money received by them in this jurisdiction --
30 (a) a law practice that has an office in this jurisdiction,
whether or not the practice has an office in another
jurisdiction;
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Part 9 Trust money and trust accounts
Division 1 Preliminary
s. 209
(b) a law practice that does not have an office in any
jurisdiction at all.
(2) This Part applies to the following law practices in respect of
trust money received by them in another jurisdiction --
5 (a) a law practice that has an office in this jurisdiction and
in no other jurisdiction;
(b) a law practice that has an office in this jurisdiction and
in one or more other jurisdictions but not in the
jurisdiction in which the trust money was received,
10 unless the money is dealt with in accordance with the
corresponding law of another jurisdiction.
(3) However, this Part does not apply to --
(a) prescribed law practices or classes of law practices; or
(b) prescribed law practices or classes of law practices in
15 prescribed circumstances; or
(c) prescribed kinds of trust money; or
(d) prescribed kinds of trust money in prescribed
circumstances.
(4) A reference in this section to having an office in a jurisdiction is
20 a reference to having, or engaging in legal practice from, an
office or business address in the jurisdiction.
209. Trust money protocols
(1) The Board may enter into arrangements ("trust money
protocols") with corresponding authorities about any or all of
25 the following --
(a) determining the jurisdiction where a law practice
receives trust money;
(b) sharing information about whether, and (if so) how, trust
money is being dealt with under this Act or a
30 corresponding law.
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Trust money and trust accounts Part 9
Preliminary Division 1
s. 210
(2) For the purposes of this Act, to the extent that a trust money
protocol is relevant, the jurisdiction where a law practice
receives trust money is to be determined in accordance with the
protocols.
5 (3) The Board may enter into arrangements that amend, revoke or
replace a trust money protocol.
(4) A trust money protocol does not have effect in this jurisdiction
unless it is embodied or identified in the regulations.
210. When money is received
10 (1) For the purposes of this Act, a law practice receives money
when --
(a) the practice obtains possession or control of it directly;
or
(b) the practice obtains possession or control of it indirectly
15 as a result of its delivery to an associate of the practice;
or
(c) the practice, or an associate of the practice (otherwise
than in a private and personal capacity), is given a
power to deal with the money for or on behalf of another
20 person.
(2) For the purposes of this Act, a law practice or associate is taken
to have received money if the money is available to the practice
or associate by means of an instrument or other way of
authorising an ADI to credit or debit an amount to an account
25 with the ADI, including, for example, an electronic funds
transfer, credit card transaction or telegraphic transfer.
211. Discharge by legal practitioner associate of obligations of
law practice
(1) The following actions, if taken by a legal practitioner associate
30 of a law practice on behalf of the practice in relation to trust
money received by the practice, discharge the corresponding
obligations of the practice in relation to the money --
(a) the establishment of a trust account;
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Part 9 Trust money and trust accounts
Division 1 Preliminary
s. 212
(b) the maintenance of a trust account;
(c) the payment of trust money into and out of a trust
account and other dealings with trust money;
(d) the maintenance of trust records;
5 (e) engaging an external examiner to examine trust records;
(f) an action of a kind prescribed by the regulations.
(2) If the legal practitioner associate maintains a trust account in
relation to trust money received by the law practice, the
provisions of this Part and the regulations made for the purposes
10 of this Part apply to the associate in the same way as they apply
to a law practice.
(3) Subsection (1) does not apply to the extent that the associate is
prevented by the regulations from taking any action referred to
in that subsection.
15 212. Liability of principals of law practices
(1) A provision of this Part or the regulations made for the purposes
of this Part expressed as imposing an obligation on a law
practice imposes the same obligation on the principals of the
law practice jointly and severally, but discharge of the practice's
20 obligation also discharges the corresponding obligation imposed
on the principals.
(2) References in this Part and the regulations made for the
purposes of this Part to a law practice include references to the
principals of the law practice.
25 213. Former practices, principals and associates
This Part applies in relation to former law practices and former
principals and associates of law practices in relation to conduct
occurring while they were respectively law practices, principals
and associates in the same way as it applies to law practices,
30 principals and associates, and so applies with any necessary
modifications.
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Trust money and trust accounts Part 9
Trust accounts and trust money Division 2
s. 214
Division 2 -- Trust accounts and trust money
214. Maintenance of general trust account
(1) A law practice that receives trust money to which this Part
applies must maintain a general trust account in this jurisdiction.
5 Penalty: a fine of $10 000.
(2) A law practice that is required to maintain a general trust
account in this jurisdiction must establish and maintain the
account in accordance with the regulations.
Penalty: a fine of $10 000.
10 (3) Subsection (1) does not apply to a law practice in respect of any
period during which the practice receives or holds only either or
both of the following --
(a) controlled money;
(b) transit money received in a form other than cash.
15 (4) Subject to the requirements of the regulations, a requirement of
this section for a law practice to maintain, or establish and
maintain, a general trust account in this jurisdiction does not
prevent the practice from maintaining, or establishing and
maintaining, more than one general trust account in this
20 jurisdiction, whether during the same period or during different
periods.
(5) Without limiting the other provisions of this section, the
regulations may provide that a law practice must not close a
general trust account except as permitted by the regulations,
25 either generally or in any prescribed circumstances.
215. Certain trust money to be deposited in general trust account
(1) In this section --
"appropriate person", in relation to trust money, means a
person legally entitled to give the law practice concerned
30 directions in respect of dealings with the trust money.
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Part 9 Trust money and trust accounts
Division 2 Trust accounts and trust money
s. 216
(2) Subject to section 222, as soon as practicable after receiving
trust money, a law practice must deposit the money in a general
trust account of the practice unless --
(a) the practice has a written direction by an appropriate
5 person to deal with it otherwise than by depositing it in
the account; or
(b) the money is controlled money; or
(c) the money is transit money; or
(d) the money is the subject of a power given to the practice
10 or an associate of the practice to deal with the money for
or on behalf of another person.
Penalty: a fine of $10 000.
(3) Subject to section 222, a law practice that has received money
that is the subject of a written direction mentioned in
15 subsection (2)(a) must deal with the money in accordance with
the direction --
(a) within the period (if any) specified in the direction; or
(b) subject to paragraph (a), as soon as practicable after it is
received.
20 Penalty: a fine of $10 000.
(4) The law practice must keep a written direction mentioned in
subsection (2)(a) for the period prescribed by the regulations.
Penalty: a fine of $5 000.
216. Holding, disbursing and accounting for trust money
25 (1) A law practice must --
(a) hold trust money deposited in a general trust account of
the practice exclusively for the person on whose behalf
it is received; and
(b) disburse the trust money only in accordance with a
30 direction given by the person.
Penalty: a fine of $5 000.
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Trust money and trust accounts Part 9
Trust accounts and trust money Division 2
s. 217
(2) Subsection (1) applies subject to an order of a court of
competent jurisdiction or as authorised by law.
(3) The law practice must account for the trust money as required
by the regulations.
5 Penalty: a fine of $5 000.
217. Manner of withdrawal of trust money from general trust
account
(1) A law practice must not withdraw trust money from a general
trust account otherwise than by cheque or electronic funds
10 transfer.
Penalty: a fine of $10 000.
(2) Without limiting subsection (1), the following are specifically
prohibited --
(a) cash withdrawals;
15 (b) ATM withdrawals or transfers;
(c) telephone banking withdrawals or transfers.
(3) The regulations may make provision for or with respect to
withdrawals by cheque or electronic funds transfer.
(4) This section has effect despite anything to the contrary in any
20 directions given to the law practice concerned, even if the
directions are given by a person who is otherwise legally
entitled to give the law practice directions in respect of dealings
with trust money.
218. Controlled money
25 (1) As soon as practicable after receiving controlled money, a law
practice must deposit the money in the account specified in the
written direction relating to the money.
Penalty: a fine of $10 000.
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Part 9 Trust money and trust accounts
Division 2 Trust accounts and trust money
s. 219
(2) The law practice must hold controlled money deposited in a
controlled money account in accordance with subsection (1)
exclusively for the person on whose behalf it was received.
Penalty: a fine of $10 000.
5 (3) The law practice that holds controlled money deposited in a
controlled money account in accordance with subsection (1)
must not disburse the money except in accordance with --
(a) the written direction mentioned in that subsection; or
(b) a later written direction given by or on behalf of the
10 person on whose behalf the money was received.
Penalty: a fine of $10 000.
(4) The law practice must maintain the controlled money account,
and account for the controlled money, as required by the
regulations.
15 Penalty: a fine of $5 000.
(5) The law practice must keep a written direction mentioned in this
section for the period prescribed by the regulations.
Penalty: a fine of $5 000.
(6) The law practice must ensure that the controlled money account
20 is used for the deposit of controlled money received on behalf of
the person referred to in subsection (2), and not for the deposit
of controlled money received on behalf of any other person,
except to the extent that the regulations otherwise permit.
Penalty: a fine of $10 000.
25 (7) Subsection (3) applies subject to an order of a court of
competent jurisdiction or as authorised by law.
219. Manner of withdrawal of controlled money from controlled
money account
(1) A law practice must not withdraw controlled money from a
30 controlled money account otherwise than by cheque or
electronic funds transfer.
Penalty: a fine of $10 000.
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Trust money and trust accounts Part 9
Trust accounts and trust money Division 2
s. 220
(2) Without limiting subsection (1), the following are specifically
prohibited --
(a) cash withdrawals;
(b) ATM withdrawals or transfers;
5 (c) telephone banking withdrawals or transfers.
(3) The regulations may make provision for or with respect to
withdrawals by cheque or electronic funds transfer.
(4) This section has effect despite anything to the contrary in any
directions given to the law practice concerned, even if the
10 directions are given by a person who is otherwise legally
entitled to give the law practice directions in respect of dealings
with the controlled money.
220. Transit money
(1) Subject to section 222, a law practice that has received transit
15 money must pay or deliver the money as required by the
instructions relating to the money --
(a) within the period (if any) specified in the instructions; or
(b) subject to paragraph (a), as soon as practicable after it is
received.
20 Penalty: a fine of $10 000.
(2) The law practice must account for the money as required by the
regulations.
Penalty: a fine of $5 000.
221. Trust money subject to specific powers
25 (1) Subject to section 222, a law practice must ensure that trust
money that is the subject of a power given to the practice or an
associate of the practice is dealt with by the practice or associate
only in accordance with the power relating to the money.
Penalty: a fine of $10 000.
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Part 9 Trust money and trust accounts
Division 2 Trust accounts and trust money
s. 222
(2) The law practice must account for the money in the way
prescribed by the regulations.
Penalty: a fine of $5 000.
222. Trust money received in the form of cash
5 (1) In this section --
"appropriate person", in relation to trust money, means a
person who is legally entitled to give the law practice
concerned directions in respect of dealings with the trust
money;
10 "general trust money" means trust money, other than --
(a) controlled money; and
(b) transit money; and
(c) money that is the subject of a power.
(2) A law practice must deposit general trust money received in the
15 form of cash in a general trust account of the practice.
Penalty: a fine of $10 000.
(3) If the law practice has a written direction by an appropriate
person to deal with general trust money received in the form of
cash otherwise than by first depositing it in a general trust
20 account of the practice --
(a) the money must nevertheless be deposited in a general
trust account of the practice in accordance with
subsection (2); and
(b) the money is thereafter to be dealt with in accordance
25 with any applicable terms of the direction so far as those
terms are not inconsistent with paragraph (a).
(4) Controlled money received in the form of cash must be
deposited in a controlled money account in accordance with
section 218.
30 (5) A law practice must deposit transit money received in the form
of cash in a general trust account of the practice before the
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Trust money and trust accounts Part 9
Trust accounts and trust money Division 2
s. 223
money is otherwise dealt with in accordance with the
instructions relating to the money.
Penalty: a fine of $10 000.
(6) A law practice must deposit trust money that is received in the
5 form of cash and is the subject of a power in a general trust
account (or a controlled money account in the case of controlled
money) of the practice before the money is otherwise dealt with
in accordance with the power.
Penalty: a fine of $10 000.
10 (7) This section has effect despite anything to the contrary in any
relevant direction, instruction or power.
223. Protection of trust money
(1) Money standing to the credit of a trust account maintained by a
law practice is not available for the payment of debts of the
15 practice or any of its associates.
(2) Money standing to the credit of a trust account maintained by a
law practice is not liable to be attached or taken in execution for
satisfying a judgment against the practice or any of its
associates.
20 (3) This section does not apply to money to which a law practice or
associate is entitled.
224. Intermixing money
(1) A law practice must not, otherwise than as permitted by
subsection (2), mix trust money with other money.
25 Penalty: a fine of $10 000.
(2) A law practice is permitted to mix trust money with other
money to the extent only that is authorised by the Board and in
accordance with any conditions imposed by the Board in
relation to the authorisation.
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Part 9 Trust money and trust accounts
Division 2 Trust accounts and trust money
s. 225
225. Dealing with trust money: legal costs and unclaimed money
(1) A law practice may do any of the following, in relation to trust
money held in a general trust account or controlled money
account of the practice for a person --
5 (a) exercise a lien, including a general retaining lien, for the
amount of legal costs reasonably due and owing by the
person to the practice;
(b) withdraw money for payment to the practice's account
for legal costs owing to the practice if the relevant
10 procedures or requirements prescribed under this Act are
complied with;
(c) after deducting any legal costs properly owing to the
practice, deal with the balance as unclaimed money
under the Unclaimed Money Act 1990.
15 (2) Subsection (1) applies despite any other provision of this Part
(other than subsection (3)) but has effect subject to Part 10.
(3) Subsection (1) does not apply in relation to trust money that is
held by the person under another trust when it is paid into the
general trust account or controlled money account.
20 226. Deficiency in trust account
(1) An Australian legal practitioner commits an offence if the
practitioner, without reasonable excuse, causes --
(a) a deficiency in any trust account or trust ledger account;
or
25 (b) a failure to pay or deliver any trust money.
Penalty: a fine of $25 000.
(2) A reference in subsection (1) to an account includes a reference
to an account of the practitioner or of the practice of which the
practitioner is an associate.
30 (3) In subsection (1) --
"cause" includes to be responsible for;
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Trust money and trust accounts Part 9
Trust accounts and trust money Division 2
s. 227
"deficiency" in a trust account or trust ledger account includes
the non-inclusion or exclusion of the whole or any part of
an amount that is required to be included in the account.
227. Reporting certain irregularities and suspected irregularities
5 (1) As soon as practicable after a legal practitioner associate of a
law practice becomes aware that there is an irregularity in any
of the practice's trust accounts or trust ledger accounts, the
associate must give written notice of the irregularity to --
(a) the Board; and
10 (b) if a corresponding authority is responsible for the
regulation of the accounts concerned -- the
corresponding authority.
Penalty: a fine of $5 000.
(2) If an Australian legal practitioner believes on reasonable
15 grounds that there is an irregularity in connection with the
receipt, recording or disbursement of any trust money received
by a law practice of which the practitioner is not a legal
practitioner associate, the practitioner must, as soon as
practicable after forming the belief, give written notice of it
20 to --
(a) the Board; and
(b) if a corresponding authority is responsible for the
regulation of the accounts relating to the trust money
concerned -- the corresponding authority.
25 Penalty: a fine of $5 000.
(3) The validity of a requirement imposed on an Australian legal
practitioner under subsection (1) or (2) is not affected, and the
practitioner is not excused from complying with subsection (1)
or (2), on the ground that giving the notice may tend to
30 incriminate the practitioner.
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Part 9 Trust money and trust accounts
Division 2 Trust accounts and trust money
s. 228
(4) An Australian legal practitioner is not liable for any loss or
damage suffered by another person as a result of the
practitioner's compliance with subsection (1) or (2).
228. Keeping trust records
5 (1) A law practice must keep, in the form of a permanent record,
trust records in relation to trust money received by the practice.
Penalty: a fine of $5 000.
(2) In subsection (1) --
"permanent record", in relation to a trust record, means
10 printed or, on request, capable of being printed, in English
on paper or other material.
(3) The law practice must keep the trust records --
(a) in accordance with the regulations; and
(b) in a way that at all times discloses the true position in
15 relation to trust money received for or on behalf of any
person; and
(c) in a way that enables the trust records to be conveniently
and properly investigated or externally examined; and
(d) for a period determined in accordance with the
20 regulations.
Penalty: a fine of $5 000.
229. False names
(1) A law practice must not knowingly receive money or record
receipt of money in the practice's trust records under a false
25 name.
Penalty: a fine of $10 000.
(2) If a person on whose behalf trust money is received by a law
practice is commonly known by more than one name, the
practice must ensure that the practice's trust records record all
30 names by which the person is known.
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Trust money and trust accounts Part 9
Investigations Division 3
s. 230
Penalty: a fine of $10 000.
Division 3 -- Investigations
230. Appointment of investigators
(1) The Board, on its own initiative or at the request of the Trust, or
5 the Complaints Committee may, in writing, appoint a suitably
qualified person to investigate the affairs or specified affairs of
a law practice.
(2) The appointment may be made generally or for the law practice
specified in the instrument of appointment.
10 (3) The Board must notify the Complaints Committee, and the
Complaints Committee must notify the Board, when an
investigator it has appointed is investigating the affairs of a law
practice.
231. Investigations
15 (1) The instrument of appointment may authorise the investigator to
conduct either or both of the following --
(a) routine investigations on a regular or other basis;
(b) investigations in relation to particular allegations or
suspicions regarding trust money, trust property, trust
20 accounts or any other aspect of the affairs of the law
practice.
(2) The principal purposes of an investigation are to ascertain
whether the law practice has complied with or is complying
with the requirements of this Part and to detect and prevent
25 fraud and defaults (as defined in section 334), but this
subsection does not limit the scope of the investigation or the
powers of the investigator.
232. Application of Part 15
Part 15 applies to an investigation under this Division.
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Part 9 Trust money and trust accounts
Division 3 Investigations
s. 233
233. Investigator's report and confidentiality
(1) As soon as practicable after completing the investigation, the
investigator must give a written report of the investigation to the
Board or the Complaints Committee, whichever appointed the
5 investigator.
(2) The investigator must not disclose information included in the
report or acquired in carrying out the investigation except --
(a) to the practice that or person who is the subject of the
investigation or report; or
10 (b) as is necessary for properly conducting the investigation
and making the report of the investigation; or
(c) as provided in section 533.
Penalty: a fine of $10 000.
234. When costs of investigation are debt
15 (1) If --
(a) an investigator states in his or her report of an
investigation that there is evidence that a breach of this
Act has been committed or evidence that a default (as
defined in section 334) has occurred in relation to the
20 law practice whose affairs are under investigation; and
(b) the Board is satisfied that the breach or default is wilful
or of a substantial nature,
the Board may decide that the whole or part of the costs of
carrying out the investigation is payable to the Board and may
25 specify the amount payable.
(2) The amount specified by the Board is a debt owing to the Board
by the law practice whose affairs are under investigation.
(3) If an investigator is appointed under this Part at the request of
the Trust, the Board may require the Trust to pay part or all of
30 the costs of carrying out the investigation and the Trust must
comply with that requirement.
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Legal Profession Bill 2007
Trust money and trust accounts Part 9
External examinations Division 4
s. 235
Division 4 -- External examinations
235. Designation of external examiners
(1) The Board may, in writing, designate an accountant (a
"designated accountant") as being eligible to be appointed as
5 an external examiner.
(2) Only an accountant who is --
(a) a registered company auditor; or
(b) an employee or agent of the Board,
may be designated under subsection (1).
10 (3) Only designated accountants may be appointed as external
examiners.
(4) The Board may revoke an accountant's designation under this
section.
236. Designation and appointment of associates as external
15 examiners
(1) The Board may designate an associate of a law practice under
section 235 only if the Board is satisfied that it is appropriate to
do so.
(2) However, an associate of a law practice cannot be appointed as
20 an external examiner under this Division to examine the
practice's trust records.
237. Trust records to be externally examined
(1) A law practice must at least once in each financial year have its
trust records externally examined by an external examiner
25 appointed in accordance with the regulations.
Penalty: a fine of $10 000.
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Part 9 Trust money and trust accounts
Division 4 External examinations
s. 238
(2) The Board may appoint an external examiner to examine a law
practice's trust records if the Board is not satisfied --
(a) that the practice has had its trust records externally
examined as required by this section; or
5 (b) that an external examination of the practice's trust
records has been carried out in accordance with the
regulations.
(3) Without affecting the generality of section 250, this section has
effect subject to any exemptions provided by or given under the
10 regulations from the requirement to have trust records examined
as otherwise required by this section.
238. Examination of affairs in connection with examination of
trust records
(1) An external examiner appointed to examine a law practice's
15 trust records may examine the affairs of the practice for the
purposes of and in connection with an examination of the trust
records.
(2) If the law practice is an incorporated legal practice or
multi-disciplinary partnership, the reference in subsection (1) to
20 the affairs of the law practice extends to the affairs of the
incorporated legal practice or multi-disciplinary partnership or
of an associate, so far as they are relevant to trust money, trust
records and associated matters.
(3) A reference in this Division to "trust records" includes a
25 reference to the affairs of a law practice that may be examined
under this section for the purposes of and in connection with an
examination of the practice's trust records.
239. Final examination of trust records
(1) This section applies if a law practice --
30 (a) ceases to be authorised to receive trust money; or
(b) ceases to engage in legal practice in this jurisdiction.
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Trust money and trust accounts Part 9
External examinations Division 4
s. 240
(2) The law practice must appoint an external examiner to examine
the practice's trust records --
(a) in respect of the period since an external examination
was last conducted; and
5 (b) in respect of each period thereafter, comprising a
completed period of 12 months or any remaining partly
completed period, during which the practice continued
to hold trust money.
Penalty: a fine of $10 000.
10 (3) The law practice must lodge with the Board --
(a) a report of each examination under subsection (2) within
60 days after the end of the period to which the
examination relates; and
(b) a statutory declaration in the prescribed form within
15 60 days of ceasing to hold trust money.
Penalty: a fine of $10 000.
(4) If any Australian legal practitioner dies, the practitioner's legal
personal representative must comply with this section as if the
representative were the practitioner.
20 (5) Nothing in this section affects any other requirements under
this Part.
240. Carrying out examination
(1) Part 15 applies to an external examination.
(2) Subject to Part 15, an external examination of trust records must
25 be carried out in accordance with the regulations.
(3) Without limiting subsection (2), the regulations may provide for
the following --
(a) the standards to be adopted and the procedures to be
followed by external examiners;
30 (b) the form and content of an external examiner's report on
an external examination.
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s. 241
241. External examiner's report and confidentiality
(1) As soon as practicable after completing an external
examination, an external examiner must give a written report of
the examination to the Board.
5 (2) The examiner must not disclose information included in the
report or acquired in carrying out the examination except --
(a) to the law practice concerned or an associate of the law
practice; or
(b) as is necessary for properly conducting the examination
10 and making the report of the examination; or
(c) as provided in section 533.
Penalty: a fine of $10 000.
242. Law practice liable for costs of examination
(1) A law practice whose trust accounts have been externally
15 examined must pay the costs of the examination.
(2) If the Board appointed the external examiner to carry out the
examination, the Board may specify the amount payable as the
costs of the examination, and the specified amount is a debt
payable to it by the law practice.
20 Division 5 -- Provisions relating to ADIs
243. ADI not subject to certain obligations and liabilities
(1) An ADI at which a trust account is maintained by a law
practice --
(a) is not under any obligation to control or supervise
25 transactions in relation to the account or to see to the
application of money disbursed from the account; and
(b) does not have, in relation to any liability of the law
practice to the ADI, any recourse or right (whether by
way of set-off counterclaim, charge or otherwise)
30 against money in the account.
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s. 244
(2) Subsection (1) does not relieve an ADI from any liability to
which it is subject apart from this Act.
244. Reports, records and information
(1) An ADI at which a trust account is maintained must report any
5 deficiency in the account to the Board as soon as practicable
after becoming aware of the deficiency.
Penalty: a fine of $5 000.
(2) An ADI at which a trust account is maintained must report a
suspected offence in relation to the trust account to the Board as
10 soon as practicable after forming the suspicion.
Penalty: a fine of $5 000.
(3) An ADI must furnish to the Board reports about trust accounts
in accordance with the regulations.
Penalty: a fine of $5 000.
15 (4) An ADI at which a trust account is maintained must without
charge --
(a) produce for inspection or copying by an investigator or
external examiner any records relating to the trust
account or trust money deposited in the trust account;
20 and
(b) provide the investigator or external examiner with full
details of any transactions relating to the trust account or
trust money,
on demand by the investigator or external examiner and on
25 production to the ADI of evidence of the appointment of the
investigator or the external examiner in relation to the law
practice concerned.
Penalty: a fine of $5 000.
(5) Subsections (1) to (4) apply despite any legislation or duty of
30 confidence to the contrary.
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Division 6 Miscellaneous
s. 245
(6) An ADI or an officer or employee of an ADI is not liable to any
action for any loss or damage suffered by another person as a
result of --
(a) reporting a deficiency in accordance with subsection (1);
5 or
(b) making or furnishing a report in accordance with
subsection (2) or (3); or
(c) producing records or providing details in accordance
with subsection (4).
10 Division 6 -- Miscellaneous
245. Restrictions on receipt of trust money
(1) A law practice (other than an incorporated legal practice) must
not receive trust money unless a principal holds an Australian
practising certificate authorising the receipt of trust money.
15 Penalty: a fine of $25 000.
(2) An incorporated legal practice must not receive trust money
unless --
(a) at least one legal practitioner director of the practice
holds an Australian practising certificate authorising the
20 receipt of trust money; or
(b) a person is holding an appointment under section 107 in
relation to the practice and the person holds an
Australian practising certificate authorising the receipt
of trust money; or
25 (c) the money is received during any period during which
the practice --
(i) does not have any legal practitioner directors;
and
(ii) is not in default of director requirements under
30 section 107,
so long as there was, immediately before the start of that
period, at least one legal practitioner director of the
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Miscellaneous Division 6
s. 246
practice who held an Australian practising certificate
authorising the receipt of trust money.
Penalty: a fine of $25 000.
246. Restrictions on receipt of trust money by interstate legal
5 practitioners
An interstate legal practitioner must not receive trust money in
this jurisdiction unless the practitioner --
(a) is authorised to receive trust money in the practitioner's
home jurisdiction; and
10 (b) has paid the required contributions (if any) to the
Guarantee Fund under this Act.
247. Application of Part to incorporated legal practices and
multi-disciplinary partnerships
(1) The obligations imposed on law practices by this Part, and any
15 other provisions of this Act relating to trust money and trust
accounts, apply to an incorporated legal practice or
multi-disciplinary partnership only in connection with legal
services provided by the practice or partnership.
(2) The regulations may provide that specified provisions of this
20 Part, and any other provisions of this Act relating to trust money
and trust accounts, do not apply to incorporated legal practices
or multi-disciplinary partnerships or both or apply to them with
specified modifications.
248. Disclosure to clients -- money not received or held as trust
25 money
(1) In this section --
"non-trust money" means money that is not trust money for
the purposes of this Act because of section 206 or because
of a determination under section 207.
30 (2) When money entrusted to a law practice is or becomes non-trust
money, the practice must, in accordance with this section and
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Division 6 Miscellaneous
s. 249
the regulations, notify the person who entrusted the money to
the practice that --
(a) the money is not treated as trust money for the purposes
of this Act and is not subject to any supervision,
5 investigation or audit requirements of this Act; and
(b) a claim against the Guarantee Fund cannot be made in
respect of the money.
Penalty: a fine of $5 000.
(3) The notification must be given, in writing, to the person at the
10 time --
(a) if the money was non-trust money when it was entrusted
to the law practice -- when the money is entrusted to
the practice; or
(b) if the money was trust money when it was entrusted to
15 the practice but becomes non-trust money because of a
determination under section 207 -- as soon as
practicable after the determination is made.
(4) The regulations may make provision for or with respect to the
form and manner in which notification required by this section
20 is to be given and the contents of the notification.
249. Disclosure of accounts used to hold money entrusted to law
practice or legal practitioner associate
(1) A law practice must in accordance with the regulations notify
the Board of the details required by the regulations of each
25 account maintained at any ADI in which the practice or any
legal practitioner associate of the practice holds money
entrusted to the practice or legal practitioner associate.
Penalty: a fine of $5 000.
(2) Subsection (1) applies whether or not the money is trust money
30 and whether or not section 206 or 207 applies to the money.
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Miscellaneous Division 6
s. 250
250. Regulations
(1) The regulations may make provision for or with respect to any
matter to which this Part relates, including for or with respect
to --
5 (a) the establishment, maintenance and closure of general
trust accounts and controlled money accounts; and
(b) the manner of receiving, depositing, withdrawing,
making records about and otherwise dealing with and
accounting for trust money; and
10 (c) without limiting paragraph (a) or (b) --
(i) the keeping and reconciliation of trust records;
and
(ii) the establishment and keeping of trust ledger
accounts; and
15 (iii) the establishment and keeping of records about
controlled money and transit money; and
(iv) the establishment and keeping of registers of
powers and estates where trust money is
involved; and
20 (v) the recording of information about the
investment of trust money; and
(vi) the furnishing of statements regarding trust
money;
and
25 (d) the notification to the Board of information relating
directly or indirectly to matters to which this Part
relates, including information about --
(i) trust accounts, trust money and trust records; and
(ii) the proposed or actual termination of a law
30 practice that holds trust money; and
(iii) the proposed or actual termination of engaging in
legal practice in this jurisdiction by a law
practice that holds trust money; and
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Division 6 Miscellaneous
s. 250
(iv) the proposed or actual restructuring of the
business of a law practice so that it no longer
holds or no longer will hold trust money;
and
5 (e) the creation and exercise of liens over trust money; and
(f) providing exemptions, or providing for the giving of
exemptions, from all or any specified requirements of
this Part.
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Costs disclosure and assessment Part 10
Preliminary Division 1
s. 251
Part 10 -- Costs disclosure and assessment
Division 1 -- Preliminary
251. Purposes
The purposes of this Part are as follows --
5 (a) to provide for law practices to make disclosures to
clients regarding legal costs;
(b) to regulate the making of costs agreements in respect of
legal services, including conditional costs agreements;
(c) to regulate the billing of costs for legal services;
10 (d) to provide a mechanism for the assessment of legal costs
and the setting aside of certain costs agreements.
252. Definitions
In this Part --
"bill" means a bill of costs for providing legal services;
15 "business day" means a day other than a Saturday, a Sunday or
a public holiday;
"conditional costs agreement" means a costs agreement that
provides that the payment of some or all of the legal costs
is conditional on the successful outcome of the matter to
20 which those costs relate, as referred to in section 283, but
does not include a costs agreement to the extent to which
section 285(1) applies;
"costs agreement" means an agreement about the payment of
legal costs;
25 "costs assessment" means an assessment of legal costs under
Division 8;
"costs determination" means a legal costs determination made
under section 275;
"disbursements" includes outlays;
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Division 1 Preliminary
s. 253
"itemised bill" means a bill that specifies in detail how the
legal costs are made up in a way that would allow them to
be assessed under Division 8;
"Legal Costs Committee" means the Legal Costs Committee
5 established under section 310;
"litigious matter" means a matter that involves, or is likely to
involve, the issue of proceedings in a court or tribunal;
"lump sum bill" means a bill that describes the legal services to
which it relates and specifies the total amount of the legal
10 costs;
"sophisticated client" means a client to whom because of
section 263(2)(c) or (d), disclosure under section 260
or 261(1) is or was not required;
"third party payer" has the meaning given in section 253;
15 "uplift fee" means additional legal costs (excluding
disbursements) payable under a costs agreement on the
successful outcome of the matter to which the agreement
relates.
253. Terms relating to third party payers
20 (1) For the purposes of this Part --
(a) a person is a "third party payer", in relation to a client
of a law practice, if the person is not the client and --
(i) is under a legal obligation to pay all or any part
of the legal costs for legal services provided to
25 the client; or
(ii) being under that obligation, has already paid all
or a part of those legal costs;
and
(b) a third party payer is an "associated third party payer"
30 if the legal obligation referred to in paragraph (a) is
owed to the law practice, whether or not it is also owed
to the client or another person; and
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Application of this Part Division 2
s. 254
(c) a third party payer is a "non-associated third party
payer" if the legal obligation referred to in
paragraph (a) is owed to the client or another person but
not to the law practice.
5 (2) The legal obligation referred to in subsection (1) can arise by or
under contract or legislation or otherwise.
(3) A law practice that retains another law practice on behalf of a
client is not on that account a third party payer in relation to that
client.
10 Division 2 -- Application of this Part
254. Application of Part -- first instructions rule
This Part applies to a matter if the client first instructs the law
practice in relation to the matter in this jurisdiction.
255. Part also applies by agreement or at client's election
15 (1) This Part applies to a matter if --
(a) either --
(i) this Part does not currently apply to the matter;
or
(ii) it is not possible to determine the jurisdiction in
20 which the client first instructs the law practice in
relation to the matter;
and
(b) either --
(i) the legal services are or will be provided wholly
25 or primarily in this jurisdiction; or
(ii) the matter has a substantial connection with this
jurisdiction,
or both; and
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Division 2 Application of this Part
s. 256
(c) either --
(i) the client accepts, in writing or by other conduct,
a written offer to enter into an agreement under
subsection (2)(a) in respect of the matter; or
5 (ii) the client gives a notification under
subsection (2)(b) in respect of the matter.
(2) For the purposes of subsection (1)(c), the client may --
(a) accept, in writing or by other conduct, a written offer
that complies with subsection (3) to enter into an
10 agreement with the law practice that this Part is to apply
to the matter; or
(b) notify the law practice in writing that the client requires
this Part to apply to the matter.
(3) An offer referred to in subsection (2)(a) must clearly state --
15 (a) that it is an offer to enter into an agreement that this Part
is to apply to the matter; and
(b) that the client may accept it in writing or by other
conduct; and
(c) the type of conduct that will constitute acceptance.
20 (4) A notification has no effect for the purposes of subsection (2)(b)
if it is given after the period of 28 days after the law practice
discloses to the client (under a corresponding law) information
about the client's right to make a notification of that kind, but
nothing in this subsection prevents an agreement referred to in
25 subsection (2)(a) from coming into effect at any time.
256. Displacement of Part
(1) This section applies if this Part applies to a matter by the
operation of section 254 or 255.
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Application of this Part Division 2
s. 257
(2) This Part ceases to apply to a matter if --
(a) either --
(i) the legal services are or will be provided wholly
or primarily in another jurisdiction; or
5 (ii) the matter has a substantial connection with
another jurisdiction,
or both; and
(b) either --
(i) the client enters under the corresponding law of
10 the other jurisdiction into an agreement with the
law practice that the corresponding provisions of
the corresponding law apply to the matter; or
(ii) the client notifies under the corresponding law of
the other jurisdiction (and within the time
15 allowed by the corresponding law) the law
practice in writing that the client requires the
corresponding provisions of the corresponding
law to apply to the matter.
(3) Nothing in this section prevents the application of this Part to
20 the matter by means of a later agreement or notification under
section 255.
257. How and where a client first instructs a law practice
A client first instructs a law practice in relation to a matter in a
particular jurisdiction if the law practice first receives
25 instructions from or on behalf of the client in relation to the
matter in that jurisdiction, whether in person or by post,
telephone, fax, email or other form of communication.
258. When a matter has a substantial connection with this
jurisdiction
30 The regulations may prescribe the circumstances in which, or
the rules to be used to determine whether, a matter has or does
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Division 2 Application of this Part
s. 259
not have a substantial connection with this jurisdiction for the
purposes of this Part.
259. What happens when different laws apply to a matter
(1) This section applies if this Part applies to a matter for a period
5 and a corresponding law applies for another period.
(2) If this Part applied to a matter for a period and a corresponding
law applies to the matter afterwards, this Part continues to apply
in respect of legal costs (if any) incurred while this Part applied
to the matter.
10 (3) If a corresponding law applied to a matter for a period and this
Part applies to the matter afterwards, this Part does not apply in
respect of legal costs (if any) incurred while the corresponding
law applied to the matter, so long as the corresponding law
continues to apply in respect of those costs.
15 (4) However --
(a) the client may enter into a written agreement with the
law practice that the cost assessment provisions of this
Part are to apply in respect of all legal costs incurred in
relation to the matter, and Division 8 accordingly
20 applies in respect of those legal costs; or
(b) if the client enters into a written agreement with the law
practice that the cost assessment provisions of a
corresponding law are to apply in respect of all legal
costs incurred in relation to the matter, Division 8
25 accordingly does not apply in respect of those legal
costs.
(5) A written agreement referred to in subsection (4) need not be
signed by the client but in that case the client's acceptance must
be communicated to the law practice by facsimile transmission,
30 email or some other written form.
(6) If a corresponding law applied to a matter for a period and this
Part applies to the matter afterwards, this Part does not require
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Costs disclosure Division 3
s. 260
disclosure of any matters to the extent that they have already
been disclosed under a corresponding law.
(7) This section has effect despite any other provision of this Part.
Division 3 -- Costs disclosure
5 260. Disclosure of costs to clients
(1) A law practice must disclose to a client in accordance with this
Division --
(a) the basis on which legal costs will be calculated,
including whether a costs determination applies to any
10 of the legal costs; and
(b) the client's right to --
(i) negotiate a costs agreement with the law
practice; and
(ii) receive a bill from the law practice; and
15 (iii) request an itemised bill after receipt of a lump
sum bill; and
(iv) be notified under section 267 of any substantial
change to the matters disclosed under this
section;
20 and
(c) an estimate of the total legal costs if reasonably
practicable or, if that is not reasonably practicable --
(i) a range of estimates of the total legal costs; and
(ii) an explanation of the major variables that will
25 affect the calculation of those costs;
and
(d) details of the intervals (if any) at which the client will be
billed; and
(e) the rate of interest (if any) that the law practice charges
30 on overdue legal costs, whether that rate is a specific
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Division 3 Costs disclosure
s. 260
rate of interest or is a benchmark rate of interest (as
referred to in subsection (2)); and
(f) if the matter is a litigious matter, an estimate of --
(i) the range of costs that may be recovered if the
5 client is successful in the litigation; and
(ii) the range of costs the client may be ordered to
pay if the client is unsuccessful;
and
(g) the client's right to progress reports in accordance with
10 section 269; and
(h) details of the person whom the client may contact to
discuss the legal costs; and
(i) the following avenues that are open to the client in the
event of a dispute in relation to legal costs --
15 (i) costs assessment under Division 8;
(ii) the setting aside of a costs agreement under
section 288;
(iii) making a complaint under Part 13;
and
20 (j) any time limits that apply to the taking of any action
referred to in paragraph (i); and
(k) that the law of this jurisdiction applies to legal costs in
relation to the matter; and
(l) information about the client's right --
25 (i) to accept under a corresponding law a written
offer to enter into an agreement with the law
practice that the corresponding provisions of the
corresponding law apply to the matter; and
(ii) to notify under a corresponding law (and within
30 the time allowed by the corresponding law) the
law practice in writing that the client requires the
corresponding provisions of the corresponding
law to apply to the matter.
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(2) For the purposes of subsection (1)(e), a "benchmark rate of
interest" is a rate of interest for the time being equal to or
calculated by reference to a rate of interest that is specified or
determined from time to time by an ADI or another body or
5 organisation, or by or under other legislation, and that is
publicly available.
(3) The regulations may make provision for or with respect to the
use of benchmark rates of interest, and in particular for or with
respect to permitting, regulating or preventing the use of
10 particular benchmark rates or particular kinds of benchmark
rates.
(4) For the purposes of subsection (1)(f), the disclosure must
include --
(a) a statement that an order by a court for the payment of
15 costs in favour of the client will not necessarily cover
the whole of the client's legal costs; and
(b) if applicable, a statement that disbursements may be
payable by the client even if the client enters into a
conditional costs agreement.
20 (5) A law practice is taken to have complied with the requirement
to disclose the details referred to in subsection (1)(b)(i), (ii)
and (iii), (g), (i), (j) and (l) if it provides a written statement in
or to the effect of a form prescribed by the regulations for the
purposes of this subsection at the same time as the other details
25 are disclosed as required by this section.
(6) A form prescribed for the purposes of subsection (5) may,
instead of itself containing details of the kind referred to in that
subsection, refer to publicly accessible sources of information
(such as an internet website) from which those details can be
30 obtained.
(7) The regulations may require the Board to develop a statement of
the relevant details and to revise it as necessary to keep it up to
date.
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Division 3 Costs disclosure
s. 261
261. Disclosure if another law practice is to be retained
(1) If a law practice intends to retain another law practice on behalf
of a client, the first law practice must disclose to the client the
details specified in section 260(1)(a), (c) and (d) in relation to
5 the other law practice, in addition to any information required to
be disclosed to the client under section 260.
(2) A law practice retained or to be retained on behalf of a client by
another law practice is not required to make disclosure to the
client under section 260, but must disclose to the other law
10 practice the information necessary for the other law practice to
comply with subsection (1).
(3) This section does not apply if the first law practice ceases to act
for the client in the matter when the other law practice is
retained.
15 262. How and when disclosure must be made
(1) Disclosure under section 260 must be made in writing before, or
as soon as practicable after, the law practice is retained in the
matter.
(2) Disclosure under section 261(1) must be made in writing before,
20 or as soon as practicable after, the other law practice is retained.
(3) Disclosure made to a person before the law practice is retained
in a matter is taken to be disclosure to the person as a client for
the purposes of sections 260 and 261.
263. Exceptions to requirement for disclosure
25 (1) In this section --
"GST" has the meaning given in the A New Tax System (Goods
and Services Tax) Act 1999 of the Commonwealth;
"public authority" means an authority or body (whether a body
corporate or not) established or incorporated for a public
30 purpose by a law of a jurisdiction or of the Commonwealth,
and includes a body corporate incorporated under a law of
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s. 263
a jurisdiction or of the Commonwealth in which a
jurisdiction or the Commonwealth has a controlling
interest.
(2) Disclosure under section 260 or 261(1) is not required to be
5 made in any of the following circumstances --
(a) if the total legal costs in the matter, excluding
disbursements, are not likely to exceed $1 500
(exclusive of GST) or the prescribed amount (whichever
is higher);
10 (b) if --
(i) the client has received one or more disclosures
under section 260 or 261(1) from the law
practice in the previous 12 months; and
(ii) the client has agreed in writing to waive the right
15 to disclosure; and
(iii) a principal of the law practice decides on
reasonable grounds that, having regard to the
nature of the previous disclosures and the
relevant circumstances, the further disclosure is
20 not warranted;
(c) if the client is --
(i) a law practice or an Australian legal practitioner;
or
(ii) a public company, a subsidiary of a public
25 company, a large proprietary company, a foreign
company, a subsidiary of a foreign company or a
registered Australian body (within the meaning
given to those terms in the Corporations Act); or
(iii) a financial services licensee (within the meaning
30 given in the Corporations Act); or
(iv) a liquidator, administrator or receiver (within the
meaning given to those terms in the Corporations
Act); or
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s. 263
(v) a partnership that carries on the business of
providing professional services if the partnership
consists of more than 20 members or if the
partnership would be a large proprietary
5 company (within the meaning given in the
Corporations Act) if it were a company; or
(vi) a proprietary company (within the meaning given
in the Corporations Act) formed for the purpose
of carrying out a joint venture, if any shareholder
10 of the company is a person to whom disclosure
of costs is not required; or
(vii) an unincorporated group of participants in a joint
venture, if one or more members of the group are
persons to whom disclosure of costs is not
15 required and one or more members of the group
are not such persons and if all of the members of
the group who are not such persons have
indicated that they waive their right to
disclosure; or
20 (viii) a Minister of the Crown in right of a jurisdiction
or the Commonwealth acting in the Minister's
capacity as such, or a government department or
public authority of a jurisdiction or the
Commonwealth;
25 (d) if the legal costs or the basis on which they will be
calculated have or has been agreed as a result of a tender
process;
(e) if the client will not be required to pay the legal costs or
they will not otherwise be recovered by the law practice;
30 (f) in any other circumstances prescribed by the regulations.
(3) Despite subsection (2)(a), if a law practice becomes aware that
the total legal costs are likely to exceed $1 500 (exclusive of
GST) or the amount prescribed by the regulations (whichever is
higher), the law practice must disclose the matters in
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Costs disclosure Division 3
s. 264
section 260 or 261 (as the case requires) to the client as soon as
practicable.
(4) A law practice must ensure that a written record of a principal's
decision that further disclosure is not warranted as mentioned in
5 subsection (2)(b) is made and kept with the files relating to the
matter concerned.
(5) The reaching of a decision referred to in subsection (4)
otherwise than on reasonable grounds is capable of constituting
unsatisfactory professional conduct or professional misconduct
10 on the part of the principal.
(6) Nothing in this section affects or takes away from any client's
right --
(a) to progress reports in accordance with section 269; or
(b) to obtain reasonable information from the law practice
15 in relation to any of the matters specified in section 260;
or
(c) to negotiate a costs agreement with a law practice and to
obtain a bill from the law practice.
264. Additional disclosure -- settlement of litigious matters
20 (1) If a law practice negotiates the settlement of a litigious matter
on behalf of a client, the law practice must disclose to the client,
before the settlement is executed --
(a) a reasonable estimate of the amount of legal costs
payable by the client if the matter is settled (including
25 any legal costs of another party that the client is to pay);
and
(b) a reasonable estimate of any contributions towards those
costs likely to be received from another party.
(2) A law practice retained on behalf of a client by another law
30 practice is not required to make a disclosure to the client under
subsection (1) if the other law practice makes the disclosure to
the client before the settlement is executed.
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265. Additional disclosure -- uplift fees
(1) If a costs agreement involves an uplift fee, the law practice
must, before entering into the agreement, disclose to the client
in writing --
5 (a) the law practice's legal costs; and
(b) the uplift fee (or the basis for the calculation of the uplift
fee); and
(c) the reasons why the uplift fee is warranted.
(2) A law practice is not required to make a disclosure under
10 subsection (1) to a sophisticated client.
266. Form of disclosure
(1) Written disclosure to a client under this Division --
(a) must be expressed in clear plain language; and
(b) may be in a language other than English if the client is
15 more familiar with that language.
(2) If the law practice is aware that the client is unable to read, the
law practice must arrange for the information required to be
given to a client under this Division to be conveyed orally to the
client in addition to providing the written disclosure.
20 267. Ongoing obligation to disclose
A law practice must, in writing, disclose to a client any
substantial change to anything included in a disclosure already
made under this Division as soon as is reasonably practicable
after the law practice becomes aware of that change.
25 268. Effect of failure to disclose
(1) If a law practice does not disclose to a client or an associated
third party payer anything required by this Division to be
disclosed, the client or associated third party payer (as the case
may be) need not pay the legal costs unless they have been
30 assessed under Division 8.
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(2) A law practice that does not disclose to a client or an associated
third party payer anything required by this Division to be
disclosed may not maintain proceedings against the client or
associated third party payer (as the case may be) for the
5 recovery of legal costs unless the costs have been assessed
under Division 8.
(3) If a law practice does not disclose to a client or an associated
third party payer anything required by this Division to be
disclosed and the client or associated third party payer has
10 entered a costs agreement with the law practice, the client or
associated third party payer may also apply under section 288
for the costs agreement to be set aside.
(4) If a law practice does not disclose to a client or an associated
third party payer anything required by this Division to be
15 disclosed then, on an assessment of the relevant legal costs, the
amount of the costs may be reduced by an amount considered
by the taxing officer to be proportionate to the seriousness of the
failure to disclose.
(5) If a law practice retains another law practice on behalf of a
20 client and the first law practice fails to disclose something to a
client solely because the retained practice failed to disclose the
relevant information as required by section 261(2), then
subsections (1) to (4) --
(a) do not apply to the legal costs owing to the first law
25 practice on account of legal services provided by it, to
the extent that the non-disclosure by the first law
practice was caused by the failure of the retained law
practice to disclose the relevant information; and
(b) do apply to the legal costs owing to the retained law
30 practice.
(6) In a matter involving both a client and an associated third party
payer where disclosure has been made to one of them but not
the other --
(a) subsection (1) does not affect the liability of the one to
35 whom disclosure was made to pay the legal costs; and
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(b) subsection (2) does not prevent proceedings from being
maintained against the one to whom the disclosure was
made for the recovery of those legal costs.
(7) Failure by a law practice to comply with this Division is capable
5 of constituting unsatisfactory professional conduct or
professional misconduct on the part of any Australian legal
practitioner or Australian-registered foreign lawyer involved in
the failure.
269. Progress reports
10 (1) A law practice must give a client, on reasonable request --
(a) a written report of the progress of the matter in which
the law practice is retained by the client; and
(b) a written report of the legal costs incurred by the client
to date, or since the last bill (if any), in the matter.
15 (2) A law practice may charge a client a reasonable amount for a
report under subsection (1)(a) but must not charge a client for a
report under subsection (1)(b).
(3) A law practice retained on behalf of a client by another law
practice is not required to give a report to the client under
20 subsection (1), but must disclose to the other law practice any
information necessary for the other law practice to comply with
that subsection.
(4) Subsection (3) does not apply if the other law practice ceases to
act for the client in the matter when the law practice is retained.
25 270. Disclosure to associated third party payers
(1) If a law practice is required to make a disclosure to a client of
the practice under this Division, the practice must, in
accordance with subsections (2) and (3), also make the same
disclosure to any associated third party payer for the client, but
30 only to the extent that the details or matters disclosed are
relevant to the associated third party payer and relate to costs
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that are payable by the associated third party payer in respect of
legal services provided to the client.
(2) A disclosure under subsection (1) must be made in writing --
(a) at the time the disclosure to the client is required under
5 this Division; or
(b) if the law practice only afterwards becomes aware of the
legal obligation of the associated third party payer to
pay legal costs of the client -- as soon as practicable
after the practice becomes aware of the obligation.
10 (3) Section 266 applies to a disclosure to an associated third party
payer under subsection (1) in the same way as it applies to a
client.
(4) An associated third party payer for a client of a law practice has
the same right as the client to obtain reports under
15 section 269(1)(b) of legal costs incurred by the client, but only
to the extent that the costs are payable by the associated third
party payer in respect of legal services provided to the client,
and the law practice must comply with that section accordingly.
Division 4 -- Legal costs generally
20 271. Basis on which legal costs are recoverable
Subject to Division 2, legal costs are recoverable --
(a) under a costs agreement made in accordance with
Division 6 or the corresponding provision of a
corresponding law; or
25 (b) if paragraph (a) does not apply, in accordance with an
applicable costs determination; or
(c) if neither paragraph (a) nor paragraph (b) applies,
according to the fair and reasonable value of the legal
services provided.
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272. Security for legal costs
A law practice may take reasonable security from a client for
legal costs (including security for the payment of interest on
unpaid legal costs) and may refuse or cease to act for a client
5 who does not provide reasonable security.
273. Interest on unpaid legal costs
(1) A law practice may charge interest on unpaid legal costs if the
costs are unpaid 30 days or more after the practice has given a
bill for the costs in accordance with Division 7.
10 (2) A law practice may also charge interest on unpaid legal costs in
accordance with a costs agreement.
(3) A law practice must not charge interest under subsection (1)
or (2) on unpaid legal costs unless the bill for those costs
contains a statement that interest is payable and of the rate of
15 interest.
(4) A law practice may not charge interest under this section or
under a costs agreement at a rate that exceeds the rate prescribed
by the regulations.
Division 5 -- Legal costs determinations
20 274. Terms used in this Division
In this Division --
"contentious business" means legal services by an Australian
legal practitioner in or for the purposes of any action, suit
or proceedings before a court, but does not include the
25 administration of estates and trusts;
"court" includes an arbitrator, tribunal, or person, having power
to require the production of documents or the answering of
questions.
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275. Legal costs determinations
(1) The Legal Costs Committee may make legal costs
determinations regulating the costs that may be charged by law
practices in respect of --
5 (a) non-contentious business; and
(b) contentious business before --
(i) the Supreme Court; or
(ii) the District Court; or
(iii) the Magistrates Court; or
10 (iv) a court of summary jurisdiction; or
(v) the State Administrative Tribunal; or
(vi) the Family Court of Western Australia; or
(vii) any other court declared by the Attorney General
under subsection (7) to be a court to which this
15 section applies.
(2) A costs determination may provide that law practices may
charge --
(a) according to a scale of rates of commission or
percentages; or
20 (b) a specified amount; or
(c) a maximum amount; or
(d) in any other way or combination of ways.
(3) A costs determination --
(a) may differ according to different classes of legal
25 services; and
(b) may confer a discretionary authority or impose a duty on
a specified person or class of persons.
(4) A declaration must not be made under subsection (7) in respect
of a dispute resolution authority as defined in the Workers'
30 Compensation and Injury Management Act 1981.
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(5) If --
(a) another written law refers to a determination under this
section or a costs determination as defined in
section 252; and
5 (b) the determination is for purposes of the written law that
are, or include, purposes other than the purposes of
subsection (1) (the "other purposes"),
the Legal Costs Committee may make a determination for the
other purposes.
10 (6) A costs determination may be amended or revoked by a
subsequent determination.
(7) For the purposes of subsection (1)(b)(vii), the Attorney General
may, by order published in the Gazette, declare any court to be a
court in respect of which the Legal Costs Committee may make
15 a costs determination and may, by subsequent order so
published, vary or revoke that order.
276. Review of costs determinations
(1) The Legal Costs Committee must review each costs
determination in force at least once in the period of 2 years after
20 it was made and in each period of 2 years after that period.
(2) The Attorney General may at any time direct the Legal Costs
Committee to review a costs determination in force and the
Legal Costs Committee must carry out that review as soon as
practicable after being so directed.
25 277. Inquiries by Legal Costs Committee
(1) Before making or reviewing a costs determination the Legal
Costs Committee must --
(a) give public notice under section 278 of its intention to
make or review the determination; and
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(b) if the determination is to be made or reviewed in respect
of proceedings before a court, consult with that court;
and
(c) make such other inquiries as it considers necessary to
5 facilitate the making or review of the determination.
(2) Subject to subsection (1) the Legal Costs Committee --
(a) may inform itself as it thinks fit; and
(b) must take into consideration submissions received by it
in relation to legal costs, whether or not those
10 submissions were received in response to a notice under
section 278; and
(c) is not required to conduct proceedings in a formal
manner; and
(d) is not bound by the rules of evidence.
15 278. Notice and submissions in respect of determination
(1) The Legal Costs Committee must --
(a) give written notice of its intention to make or review a
costs determination to the Law Society; and
(b) publish notice of its intention in 2 issues of a daily
20 newspaper circulating throughout this State.
(2) A notice under subsection (1) must --
(a) state that submissions on the intended costs
determination or review may be made to the Legal Costs
Committee; and
25 (b) specify the manner in which the submissions may be
made; and
(c) specify the period within which the submissions may be
made (being a period of not less than 30 days after the
day on which the notice is last published under
30 subsection (1)(b)).
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279. Report and publication of costs determinations
(1) As soon as practicable after making a costs determination the
Legal Costs Committee must report to the Attorney General --
(a) the determination; and
5 (b) the reasons for its decisions in respect of the
determination.
(2) The report must be published in the Gazette as soon as
practicable after it is received by the Attorney General.
(3) A costs determination comes into force on --
10 (a) the day on which the report of the determination is
published under subsection (2); or
(b) if a later day is specified in the report, that day.
(4) Judicial notice must be taken of --
(a) a costs determination; and
15 (b) the day of publication of the report of the determination.
280. Effect of costs determination
(1) Subject to any costs agreement made in accordance with
Division 6 or the corresponding provision of a corresponding
law, section 306 and the Legal Aid Commission Act 1976
20 section 14 --
(a) the taxation of bills of law practices; and
(b) any other aspect of the costs charged by law practices,
is regulated by an applicable costs determination.
(2) Despite subsection (1), if a court or judicial officer is of the
25 opinion that the amount of costs allowable in respect of a matter
under a costs determination is inadequate because of the unusual
difficulty, complexity or importance of the matter, the court or
officer may do all or any of the following --
(a) order the payment of costs above those fixed by the
30 determination;
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(b) fix higher limits of costs than those fixed in the
determination;
(c) remove limits on costs fixed in the determination;
(d) make any order or give any direction for the purposes of
5 enabling costs above those in the determination to be
ordered or assessed.
(3) Nothing in subsection (1) is to be construed as limiting the
power of a court, a judicial officer or a taxing officer of a court
to determine in any particular case before that court or judicial
10 officer the amount of costs allowed.
(4) If a costs determination is in force in respect of any business
referred to in section 275(1), any other subsidiary legislation
fixing or purporting to regulate the remuneration of law
practices in respect of that kind of business is of no force or
15 effect.
281. Reports
The Legal Costs Committee may investigate and report and
make recommendations to the Attorney General on any matter
relating to --
20 (a) bills generally and, in particular, the desirability of the
use of scales in the calculation and fixing of bills; and
(b) the basis on which costs are or should be calculated and
fixed; and
(c) any other aspect of the remuneration of law practices.
25 Division 6 -- Costs agreements
282. Making costs agreements
(1) A costs agreement may be made --
(a) between a client and a law practice retained by the
client; or
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(b) between a client and a law practice retained on behalf of
the client by another law practice; or
(c) between a law practice and another law practice that
retained that law practice on behalf of a client; or
5 (d) between a law practice and an associated third party
payer.
(2) A costs agreement must be written or evidenced in writing.
(3) A costs agreement may consist of a written offer in accordance
with subsection (4) that is accepted in writing or by other
10 conduct.
(4) The offer must clearly state --
(a) that it is an offer to enter into a costs agreement; and
(b) that the offer can be accepted in writing or by other
conduct; and
15 (c) the type of conduct that will constitute acceptance.
(5) Except as provided in section 309, a costs agreement cannot
provide that the legal costs to which it relates are not subject to
costs assessment under Division 8.
(6) A reference in section 288 and in any prescribed provision of
20 this Part to a client is, in relation to a costs agreement that is
entered into between a law practice and an associated third party
payer as referred to in subsection (1)(d) and to which a client of
the law practice is not a party, a reference to the associated third
party payer.
25 283. Conditional costs agreements
(1) A costs agreement may provide that the payment of some or all
of the legal costs is conditional on the successful outcome of the
matter to which those costs relate.
(2) A conditional costs agreement may relate to any matter, except
30 a matter that involves --
(a) criminal proceedings; or
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(b) proceedings that relate to or involve child protection,
custody, guardianship or adoption; or
(c) proceedings under either of the following Acts --
(i) the Family Court Act 1997;
5 (ii) the Children and Community Services Act 2004;
or
(d) proceedings under any of the following Acts of the
Commonwealth --
(i) the Family Law Act 1975;
10 (ii) the Migration Act 1958;
(iii) the Child Support (Assessment) Act 1989;
or
(e) proceedings prescribed by the regulations.
(3) A conditional costs agreement --
15 (a) must set out the circumstances that constitute the
successful outcome of the matter to which it relates; and
(b) may provide for disbursements to be paid irrespective of
the outcome of the matter; and
(c) must be --
20 (i) in writing; and
(ii) in clear plain language; and
(iii) signed by the client;
and
(d) must contain a statement that the client has been
25 informed of the client's right to seek independent legal
advice before entering into the agreement; and
(e) must contain a cooling-off period of not less than 5 clear
business days during which the client, by written notice,
may terminate the agreement.
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(4) Subsection (3)(c)(iii), (d) and (e) does not apply to --
(a) a conditional costs agreement made under
section 282(1)(c); or
(b) a conditional costs agreement made with a sophisticated
5 client.
(5) If a client terminates an agreement within the period referred to
in subsection (3)(e), the law practice --
(a) may recover only those legal costs in respect of legal
services performed for the client before that termination
10 that were performed on the instructions of the client and
with the client's knowledge that the legal services would
be performed during that period; and
(b) without affecting the generality of paragraph (a), may
not recover the uplift fee (if any).
15 284. Conditional costs agreements involving uplift fees
(1) A conditional costs agreement may provide for the payment of
an uplift fee.
(2) The basis of calculation of the uplift fee must be separately
identified in the agreement.
20 (3) The agreement must contain an estimate of the uplift fee or, if
that is not reasonably practicable --
(a) a range of estimates of the uplift fee; and
(b) an explanation of the major variables that will affect the
calculation of the uplift fee.
25 (4) If a conditional costs agreement relates to a litigious matter --
(a) the agreement must not provide for the payment of an
uplift fee unless the law practice has a reasonable belief
that a successful outcome of the matter is reasonably
likely; and
30 (b) the uplift fee must not exceed 25% of the legal costs
(excluding disbursements) otherwise payable.
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(5) A law practice must not enter into a costs agreement in
contravention of this section.
Penalty: a fine of $10 000.
285. Contingency fees are prohibited
5 (1) A law practice must not enter into a costs agreement under
which the amount payable to the law practice, or any part of that
amount, is calculated by reference to the amount of any award
or settlement or the value of any property that may be recovered
in any proceedings to which the agreement relates.
10 Penalty: a fine of $10 000.
(2) Subsection (1) does not apply to the extent that the costs
agreement adopts an applicable costs determination.
286. Effect of costs agreement
Subject to this Division and Division 8, a costs agreement may
15 be enforced in the same way as any other contract.
287. Certain costs agreements void
(1) A costs agreement that contravenes, or is entered into in
contravention of, any provision of this Division, is void.
(2) Subject to this section and Division 8, legal costs under a void
20 costs agreement are recoverable as set out in section 271(b)
or (c).
(3) However, a law practice is not entitled to recover any amount in
excess of the amount that the law practice would have been
entitled to recover if the costs agreement had not been void and
25 must repay any excess amount received.
(4) A law practice that has entered into a costs agreement in
contravention of section 284 is not entitled to recover the whole
or any part of the uplift fee and must repay the amount received
in respect of the uplift fee to the person from whom it was
30 received.
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(5) A law practice that has entered into a costs agreement in
contravention of section 285 is not entitled to recover any
amount in respect of the provision of legal services in the matter
to which the costs agreement related and must repay any
5 amount received in respect of those services to the person from
whom it was received.
(6) If a law practice does not repay an amount required by
subsection (3), (4) or (5) to be repaid, the person entitled to be
repaid may recover the amount from the law practice as a debt
10 in a court of competent jurisdiction.
288. Setting aside costs agreements
(1) In this section --
"client" means a person to whom or for whom legal services
are or have been provided.
15 (2) On application by a client, the Supreme Court may order that a
costs agreement be set aside if satisfied that the agreement is not
fair or reasonable.
(3) In determining whether or not a costs agreement is fair or
reasonable, and without limiting the matters to which the
20 Supreme Court can have regard, the Supreme Court may have
regard to any or all of the following matters --
(a) whether the client was induced to enter into the
agreement by the fraud or misrepresentation of the law
practice or of any representative of the law practice;
25 (b) whether any Australian legal practitioner or
Australian-registered foreign lawyer acting on behalf of
the law practice has been found guilty of unsatisfactory
professional conduct or professional misconduct in
relation to the provision of legal services to which the
30 agreement relates;
(c) whether the law practice has failed to make any of the
disclosures required under Division 3;
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(d) the circumstances and the conduct of the parties before
and when the agreement was made;
(e) the circumstances and the conduct of the parties in the
matters after the agreement was made;
5 (f) whether and how the agreement addresses the effect on
costs of matters and changed circumstances that might
foreseeably arise and affect the extent and nature of
legal services provided under the agreement;
(g) whether and how billing under the agreement addresses
10 changed circumstances affecting the extent and nature of
legal services provided under the agreement.
(4) The Supreme Court may adjourn the hearing of an application
under this section pending the completion of any investigation
or determination of any charge in relation to the conduct of any
15 Australian legal practitioner or Australian-registered foreign
lawyer.
(5) If the Supreme Court determines that a costs agreement be set
aside, the Court may make an order in relation to the payment of
legal costs the subject of the agreement.
20 (6) In making an order under subsection (5) --
(a) the Supreme Court must apply the applicable costs
determination (if any); or
(b) if there is no applicable costs determination -- the Court
must determine the fair and reasonable legal costs in
25 relation to the work to which the agreement related,
taking into account --
(i) the seriousness of the conduct of the law practice
or any Australian legal practitioner or
Australian-registered foreign lawyer acting on its
30 behalf; and
(ii) whether or not it was reasonable to carry out the
work; and
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(iii) whether or not the work was carried out in a
reasonable manner.
(7) In making an order under subsection (5), the Supreme Court
may not order the payment of an amount in excess of the
5 amount that the law practice would have been entitled to
recover if the costs agreement had not been set aside.
(8) For the purposes of subsection (6)(b), the Supreme Court may
have regard to any or all of the following matters --
(a) whether the law practice and any Australian legal
10 practitioner or Australian-registered foreign lawyer
acting on its behalf complied with this Act;
(b) any disclosures made by the law practice under
Division 3, or the failure to make any disclosures
required under that Division;
15 (c) any relevant advertisement as to --
(i) the law practice's costs; or
(ii) the skills of the law practice or of any Australian
legal practitioner or Australian-registered foreign
lawyer acting on its behalf;
20 (d) the skill, labour and responsibility displayed on the part
of the Australian legal practitioner or
Australian-registered foreign lawyer responsible for the
matter;
(e) the retainer and whether the work done was within the
25 scope of the retainer;
(f) the complexity, novelty or difficulty of the matter;
(g) the quality of the work done;
(h) the place where, and circumstances in which, the work
was done;
30 (i) the time within which the work was required to be done;
(j) any other relevant matter.
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(9) The Supreme Court may determine whether or not a costs
agreement exists.
(10) The Supreme Court may order the payment of the costs of and
incidental to a hearing under this section.
5 Division 7 -- Billing
289. Legal costs cannot be recovered unless bill has been given
(1) A law practice must not commence legal proceedings to recover
legal costs from a person until at least 30 days after the law
practice has given a bill to the person in accordance with
10 sections 290 and 291.
(2) A court of competent jurisdiction may make an order
authorising a law practice to commence legal proceedings
against a person sooner if satisfied that --
(a) the law practice has given a bill to the person in
15 accordance with sections 290 and 291; and
(b) the person is about to leave this jurisdiction.
(3) A court or tribunal before which any proceedings are brought in
contravention of subsection (1) must stay those proceedings on
the application of a party, or on its own initiative.
20 (4) This section applies whether or not the legal costs are the
subject of a costs agreement.
290. Bills
(1) In this section --
"agent" of a person means an agent, law practice or Australian
25 legal practitioner who has authority to accept service of
legal process on behalf of the person.
(2) A bill may be in the form of a lump sum bill or an itemised bill.
(3) A bill must be signed on behalf of the law practice by an
Australian legal practitioner or an employee of the law practice.
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(4) It is sufficient compliance with subsection (3) if a letter signed
on behalf of a law practice by an Australian legal practitioner or
an employee of the law practice is attached to, or enclosed with,
the bill.
5 (5) A bill or letter is taken to have been signed by a law practice
that is an incorporated legal practice if it has the practice's seal
affixed to it or is signed by a legal practitioner director of the
practice or an officer or employee of the practice who is an
Australian legal practitioner.
10 (6) A bill is to be given to a person --
(a) by delivering it personally to the person or to an agent of
the person; or
(b) by sending it by post to the person or an agent of the
person at --
15 (i) the usual or last known business or residential
address of the person or agent; or
(ii) an address nominated for the purpose by the
person or agent;
or
20 (c) by leaving it for the person or agent at --
(i) the usual or last known business or residential
address of the person or agent; or
(ii) an address nominated for the purpose by the
person or agent,
25 with a person on the premises who is apparently at least
16 years old and apparently employed or residing there;
or
(d) subject to the Electronic Transactions Act 2003
section 9, by transmitting it electronically to a facsimile
30 number or email address provided by the person or
agent; or
(e) by sending or delivering it to the person or agent in a
manner prescribed by regulation.
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(7) A reference in subsection (6) to any method of giving a bill to a
person includes a reference to arranging for the bill to be given
to that person by that method (for example, by delivery by
courier).
5 291. Notification of client's rights
(1) A bill must include or be accompanied by a written statement
setting out --
(a) the following avenues that are open to the client in the
event of a dispute in relation to legal costs --
10 (i) costs assessment under Division 8;
(ii) the setting aside of a costs agreement under
section 288;
(iii) making a complaint under Part 13;
and
15 (b) any time limits that apply to the taking of any action
referred to in paragraph (a).
(2) Subsection (1) does not apply in relation to a sophisticated
client.
(3) A law practice is taken to have complied with the requirement
20 to disclose the details referred to in subsection (1) if it provides
a written statement in or to the effect of a form prescribed by the
regulations for the purposes of this subsection.
(4) A form prescribed for the purposes of subsection (3) may,
instead of itself containing details of the kind referred to in that
25 subsection, refer to publicly accessible sources of information
(such as an internet website) from which those details can be
obtained.
(5) The regulations may require the Board to develop a statement of
the relevant details and to revise it as necessary to keep it up to
30 date.
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292. Request for itemised bill
(1) If a bill is given by a law practice in the form of a lump sum
bill, any person who is entitled to apply for an assessment of the
legal costs to which the bill relates may request the law practice
5 to give the person an itemised bill.
(2) The law practice must comply with the request within 21 days
after the date on which the request is made.
(3) If the person making the request is liable to pay only a part of
the legal costs to which the bill relates, the request for an
10 itemised bill may only be made in relation to those costs that the
person is liable to pay.
(4) Subject to subsection (5), a law practice must not commence
legal proceedings to recover legal costs from a person who has
been given a lump sum bill until at least 30 days after the date
15 on which the person is given the bill in accordance with this
Division.
(5) If the person makes a request for an itemised bill in accordance
with this section, the law practice must not commence legal
proceedings to recover the legal costs from the person until at
20 least 30 days after complying with the request.
(6) A law practice is not entitled to charge a person for the
preparation of an itemised bill requested under this section.
(7) Section 290(3) and (6) apply to the giving of an itemised bill
under this section.
25 293. Interim bills
(1) A law practice may give a person an interim bill covering part
only of the legal services the law practice was retained to
provide.
(2) Legal costs that are the subject of an interim bill may be
30 assessed under Division 8, either at the time of the interim bill
or at the time of the final bill, whether or not the interim bill has
been paid.
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Division 8 -- Costs assessment
294. Meaning of "client"
In this Division --
"client" means a person to whom or for whom legal services
5 are or have been provided.
295. Application by clients or third party payers for costs
assessment
(1) In this section --
"client" includes the following --
10 (a) an executor or administrator of a client;
(b) a trustee of the estate of a client;
"third party payer" includes the following --
(a) an executor or administrator of a third party payer;
(b) a trustee of the estate of a third party payer.
15 (2) A client may apply to a taxing officer for an assessment of the
whole or any part of a bill for legal costs.
(3) A third party payer may apply to a taxing officer for an
assessment of the whole or any part of a bill for legal costs
payable by the third party payer.
20 (4) An application for a costs assessment may be made even if the
legal costs have been wholly or partly paid.
(5) If any legal costs have been paid without a bill, the client or
third party payer may nevertheless apply for a costs assessment.
(6) An application by a client or third party payer under this section
25 must be made within 12 months after --
(a) the bill was given in accordance with Division 7 or the
request for payment was made to the client or third party
payer; or
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Division 8 Costs assessment
s. 295
(b) the costs were paid if neither a bill was given nor a
request was made.
(7) However, an application that is made out of time, otherwise
than by --
5 (a) a sophisticated client; or
(b) a third party payer who would be a sophisticated client if
the third party payer were a client of the law practice
concerned,
may be dealt with by the taxing officer if the Supreme Court, on
10 application by the taxing officer or the client or third party payer
who made the application for assessment, determines, after
having regard to the delay and the reasons for the delay, that it
is just and fair for the application for assessment to be dealt with
after the 12 month period.
15 (8) If the third party payer is a non-associated third party payer, the
law practice must provide the third party payer, on the written
request of the third party payer, with sufficient information to
allow the third party payer to consider making, and if thought fit
to make, an application for a costs assessment under this
20 section.
(9) If there is an associated third party payer for a client of a law
practice --
(a) nothing in this section prevents --
(i) the client from making one or more applications
25 for assessment under this section in relation to
costs for which the client is solely liable; and
(ii) the associated third party payer from making one
or more applications for assessment under this
section in relation to costs for which the
30 associated third party payer is solely liable,
and those applications may be made by them at the same
time or at different times and may be dealt with jointly
or separately; and
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(b) the client or the associated third party payer --
(i) may participate in the costs assessment process
where the other of them makes an application for
assessment under this section in relation to costs
5 for which they are both liable; and
(ii) is taken to be a party to the assessment and is
bound by the assessment;
and
(c) the law practice --
10 (i) must participate in the costs assessment process
where an application is made under this section
by the associated third party payer in the same
way as the practice must participate in the
process where an application is made under this
15 section by a client; and
(ii) is taken to be a party to the assessment and is
bound by the assessment.
(10) If there is a non-associated third party payer for a client of a law
practice --
20 (a) nothing in this section prevents --
(i) the client from making one or more applications
under this section in relation to costs for which
the client is liable; and
(ii) the non-associated third party payer from making
25 one or more applications under this section in
relation to costs for which the non-associated
third party payer is liable,
and those applications may be made by them at the same
time or at different times but must be dealt with
30 separately; and
(b) the client --
(i) may participate in the costs assessment process
where the non-associated third party payer makes
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Division 8 Costs assessment
s. 296
an application under this section in relation to
costs for which the non-associated third party
payer is liable; and
(ii) is taken to be a party to the assessment and is
5 bound by the assessment;
and
(c) the law practice --
(i) must participate in the costs assessment process;
and
10 (ii) is taken to be a party to the assessment;
and
(d) despite any other provision of this Division, the
assessment of the costs payable by the non-associated
third party payer does not affect the amount of legal
15 costs payable by the client to the law practice.
296. Application for costs assessment by law practice retaining
another law practice
(1) A law practice that retains another law practice to act on behalf
of a client may apply to a taxing officer for an assessment of the
20 whole or any part of the legal costs.
(2) If any legal costs have been paid without a bill, the law practice
may nevertheless apply for a costs assessment.
(3) An application for a costs assessment may be made even if the
legal costs have been wholly or partly paid.
25 (4) An application under this section must be made within 60 days
after --
(a) the bill was given or the request for payment was made;
or
(b) the costs were paid if neither a bill was given nor a
30 request was made.
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(5) An application cannot be made under this section if there is a
costs agreement between the client and the other law practice.
297. Application for costs assessment by law practice giving bill
(1) A law practice that has given a bill in accordance with
5 Division 7 may apply to a taxing officer for an assessment of
the whole or any part of the legal costs to which the bill relates.
(2) If any legal costs have been paid without a bill, the law practice
may nevertheless apply for a costs assessment.
(3) An application for a costs assessment may be made even if the
10 legal costs have been wholly or partly paid.
(4) An application may not be made under this section unless at
least 30 days have passed since --
(a) the bill was given or the request for payment was made;
or
15 (b) the costs were paid if neither a bill was given nor a
request was made; or
(c) an application has been made under this Division by
another person in respect of the legal costs.
298. Consequences of application
20 If an application for a costs assessment is made under this
Division --
(a) the costs assessment must take place without any money
being paid into court on account of the legal costs the
subject of the application; and
25 (b) the law practice must not commence any proceedings to
recover the legal costs until the costs assessment has
been completed.
299. Persons to be notified of application
(1) An applicant for a costs assessment must cause a copy of the
30 application to be given to any law practice or client concerned
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s. 300
or any other person whom the taxing officer thinks it is
appropriate to notify.
(2) A person who is notified by the applicant under
subsection (1) --
5 (a) is entitled to participate in the costs assessment
procedure; and
(b) is to be taken to be a party to the costs assessment; and
(c) if the taxing officer so determines, is bound by the costs
assessment.
10 300. Procedure on assessment
If, after proper notice that a costs assessment will take place, a
party to the assessment does not attend, the taxing officer may
proceed with the assessment in the absence of that party.
301. Criteria for assessment
15 (1) In conducting an assessment of legal costs, a taxing officer must
consider --
(a) whether or not it was reasonable to carry out the work to
which the legal costs relate; and
(b) whether or not the work was carried out in a reasonable
20 manner; and
(c) the fairness and reasonableness of the amount of legal
costs in relation to the work, except to the extent that
section 302 or 303 applies to any disputed costs.
(2) In considering what is a fair and reasonable amount of legal
25 costs, the taxing officer may have regard to any or all of the
following matters --
(a) whether the law practice and any Australian legal
practitioner or Australian-registered foreign lawyer
acting on its behalf complied with this Act;
30 (b) any disclosure made by the law practice under
Division 3;
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s. 302
(c) any relevant advertisement as to --
(i) the law practice's costs; or
(ii) the skills of the law practice or of any Australian
legal practitioner or Australian-registered foreign
5 lawyer acting on its behalf;
(d) the skill, labour and responsibility displayed on the part
of the Australian legal practitioner or
Australian-registered foreign lawyer responsible for the
matter;
10 (e) the retainer and whether the work was done was within
the scope of the retainer;
(f) the complexity, novelty or difficulty of the matter;
(g) the quality of the work done;
(h) the place where, and circumstances in which, the legal
15 services were provided;
(i) the time within which the work was required to be done;
(j) any other relevant matter.
(3) In conducting an assessment of legal costs payable by a
non-associated third party payer, the taxing officer must also
20 consider whether it is fair and reasonable in the circumstances
for the non-associated third party payer to be charged the
amount claimed.
302. Assessment of costs by reference to costs agreement
(1) A taxing officer must assess the amount of any disputed costs
25 that are subject to a costs agreement by reference to the
provisions of the costs agreement if --
(a) a relevant provision of the costs agreement specifies the
amount, or a rate or other means for calculating the
amount, of the costs; and
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(b) the agreement has not been set aside under section 288,
unless the taxing officer is satisfied that --
(c) the agreement does not comply in a material respect
with any applicable disclosure requirements of
5 Division 3; or
(d) Division 6 precludes the law practice concerned from
recovering the amount of the costs; or
(e) the parties otherwise agree.
(2) The taxing officer is not required to initiate an examination of
10 the matters referred to in subsection (1)(c) and (d).
303. Assessment of costs by reference to costs determination
A taxing officer must assess the amount of any disputed costs
that are subject to a costs determination by reference to the
determination.
15 304. Costs of assessment
(1) A taxing officer must determine the costs of a costs assessment.
(2) Unless the taxing officer otherwise orders and subject to
subsection (4) the law practice to which the costs are payable or
were paid must pay the costs of the assessment if --
20 (a) on the assessment the legal costs are reduced by 15% or
more; or
(b) the taxing officer is satisfied that the law practice failed
to comply with Division 3.
(3) Unless the taxing officer otherwise orders and subject to
25 subsection (4), if the law practice is not, under subsection (2),
liable to pay the costs of the assessment, the costs of the
assessment must be paid by the party ordered by the taxing
officer to pay those costs.
(4) A taxing officer may refer to the Supreme Court any special
30 circumstances relating to a costs assessment and the Court may
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s. 305
make any order it thinks fit concerning the costs of the costs
assessment.
305. Certification and interest
(1) The taxing officer must certify in writing --
5 (a) the amount of disputed costs allowed; and
(b) the costs of the costs assessment.
(2) Subject to sections 299(2)(c) and 308, a certificate under
subsection (1) is binding on the parties to the costs assessment.
(3) A certificate under subsection (1) bears interest, and may be
10 enforced against any person liable to pay, as if it were a
judgment of the Supreme Court for the payment of the amount
mentioned in the certificate.
306. Assessment of Legal Aid Commission bill
If a taxing officer taxes a bill of costs with which the Legal Aid
15 Commission is charged for services by way of legal assistance
under the Legal Aid Commission Act 1976 Part V Division 3 --
(a) the taxing officer must give effect to section 14(1) of
that Act, other than the requirement of
section 14(1)(a)(ii) that fees be approved, in determining
20 the amount as which the bill is allowed; and
(b) the amount certified by the taxing officer, or an order
made in respect of that amount under section 308, is
conclusive and binding on the Legal Aid Commission
and the law practice despite the provisions of the Legal
25 Aid Commission Act 1976.
307. Referral for disciplinary action
(1) If, on a costs assessment, the taxing officer considers that the
legal costs charged by a law practice are grossly excessive, the
taxing officer must refer the matter to the Complaints
30 Committee to consider whether disciplinary action should be
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Division 9 Legal Costs Committee
s. 308
taken against any Australian legal practitioner or
Australian-registered foreign lawyer involved.
(2) If the taxing officer considers that a costs assessment raises any
other matter that may amount to unsatisfactory professional
5 conduct or professional misconduct on the part of an Australian
legal practitioner or Australian-registered foreign lawyer, the
taxing officer may refer the matter to the Complaints Committee
to consider whether disciplinary action should be taken against
the Australian legal practitioner or Australian-registered foreign
10 lawyer.
308. Review of assessment
(1) A costs assessment may be reviewed by the Supreme Court in
accordance with the Rules of the Supreme Court.
(2) An order made upon review may be enforced in the same way
15 as the certificate of a taxing officer under section 305.
309. Contracting out of Division by sophisticated clients
A sophisticated client of a law practice, or an associated third
party payer who would be a sophisticated client if the third party
payer were a client of the law practice concerned, may contract
20 out of this Division.
Division 9 -- Legal Costs Committee
Subdivision 1 -- Establishment
310. Legal Costs Committee
(1) A committee called the Legal Costs Committee is established.
25 (2) The Legal Costs Committee consists of the following members
appointed by the Governor --
(a) a chairperson who is to be --
(i) a Judge of the Supreme Court or the District
Court; or
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s. 311
(ii) an Australian legal practitioner of no less than
8 years' standing;
(b) 2 local legal practitioners in private practice nominated
under section 311;
5 (c) 3 persons who are not Australian lawyers, at least one of
whom must be an accountant.
311. Nominations
(1) If a nomination for appointment under section 310(2)(b) or 314
is required to be made, the Attorney General must, by written
10 notice --
(a) request the Law Society to submit to the Attorney
General a list containing the names of not fewer than
twice the number of Australian legal practitioners in
private practice to be appointed; and
15 (b) specify a time (being not less that 28 days after receipt
of the notice) within which a list must be submitted.
(2) If the Law Society has been requested by notice under
subsection (1) to submit a list, the Attorney General --
(a) must, if the list is submitted within the time specified in
20 the notice, nominate for appointment one or more, as the
case requires, of the practitioners whose names appear
on the list; and
(b) may, if the list is not submitted within the time specified
in the notice, nominate for appointment a practitioner or
25 practitioners as the Attorney General thinks fit.
312. Term of office
(1) Subject to section 315, a Legal Costs Committee member --
(a) holds office for a term of not more than 3 years
specified in the instrument of appointment; and
30 (b) is eligible for reappointment.
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Division 9 Legal Costs Committee
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(2) Subject to section 315, a person appointed under section 313
or 314 --
(a) holds office for a term specified in the instrument of
appointment; and
5 (b) is eligible for reappointment.
313. Deputy chairperson
(1) The Governor may appoint as deputy chairperson of the Legal
Costs Committee a person qualified for appointment as
chairperson under section 310(2)(a).
10 (2) The deputy chairperson is to act in the place of the chairperson
of the Legal Costs Committee --
(a) if the chairperson is unable to act because of illness,
absence or other cause; or
(b) if there is no chairperson.
15 (3) An act or omission of the deputy chairperson acting in the
chairperson's place cannot be questioned on the ground that the
occasion to act in the chairperson's place had not arisen or had
ceased.
314. Deputy members
20 (1) The Governor may appoint a person having a like qualification
or being nominated in the same manner as the member for
whom the person is a deputy to act in the place of a Legal Costs
Committee member.
(2) A deputy of a member is, if the member is unable to act because
25 of illness, absence or other cause, entitled to act in the place of
that member and while so acting is taken to be a Legal Costs
Committee member.
(3) An act or omission of a deputy member acting in the place of a
Legal Costs Committee member cannot be questioned on the
30 ground that the occasion to act in the member's place had not
arisen or had ceased.
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Legal Costs Committee Division 9
s. 315
315. Removal and resignation
(1) In this section --
"member" includes a deputy member.
(2) The Governor may remove a Legal Costs Committee member
5 from office --
(a) if the member is an insolvent under administration; or
(b) on the grounds of --
(i) mental or physical incapacity to carry out the
member's duties in a satisfactory manner; or
10 (ii) neglect of duty; or
(iii) misconduct.
(3) A Legal Costs Committee member may resign office by notice
in writing delivered to the Governor.
316. Leave of absence
15 The Attorney General may grant leave of absence to a Legal
Costs Committee member on such terms and conditions as the
Attorney General thinks fit.
317. Remuneration and allowances
A Legal Costs Committee member or deputy member is to be
20 paid such remuneration and allowances as the Attorney General
from time to time, after consultation with the Minister for Public
Sector Management, may determine.
Subdivision 2 -- Procedure
318. Meetings
25 (1) Meetings of the Legal Costs Committee are to be held at times
and places determined by the Legal Costs Committee.
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Division 9 Legal Costs Committee
s. 319
(2) The chairperson of the Legal Costs Committee presides at all
meetings of the Legal Costs Committee at which the
chairperson is present.
(3) If neither the chairperson, nor the deputy chairperson acting as
5 chairperson, is presiding at a meeting of the Legal Costs
Committee the members present at the meeting are to appoint
one of their number to preside.
(4) The Committee must ensure that minutes of its meetings are
kept.
10 319. Voting
At a meeting of the Legal Costs Committee --
(a) each member has a deliberative vote; and
(b) if the votes cast on a question are equally divided, the
chairperson of the Legal Costs Committee has a casting
15 vote; and
(c) if the votes cast on a question at a meeting from which
the chairperson and deputy chairperson are absent are
equally divided, the question remains unresolved until
the next meeting at which either the chairperson or
20 deputy chairperson is present.
320. Quorum
At a meeting of the Legal Costs Committee 4 members, of
whom 2 are Australian legal practitioners and 2 are members
appointed under section 310(2)(c), constitute a quorum.
25 321. Legal Costs Committee to determine procedures
The Legal Costs Committee is to determine its own procedures
to the extent that they are not fixed by this Act.
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Legal Costs Committee Division 9
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Subdivision 3 -- Support and financial provisions
322. Use of staff and facilities of departments
(1) The Legal Costs Committee may by arrangement with the
relevant employer make use of the services of any officer or
5 employee --
(a) in the department of the Public Service principally
assisting the Attorney General in the administration of
this Act; or
(b) in an agency or instrumentality established or
10 constituted under a written law administered by the
Attorney General.
(2) The Legal Costs Committee may by arrangement with --
(a) the department referred to in subsection (1); or
(b) an agency or instrumentality referred to in that
15 subsection,
make use of any facilities of the department, agency or
instrumentality.
(3) The Legal Costs Committee must not enter into an arrangement
under subsection (1) or (2) without the prior approval of the
20 Attorney General.
(4) An arrangement under subsection (1) or (2) must be made on
such terms as are agreed to by the parties.
323. Funds
(1) The funds available for the purpose of enabling the Legal Costs
25 Committee to perform its functions consist of --
(a) money from time to time appropriated by Parliament;
and
(b) other money lawfully made available to the Legal Costs
Committee.
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Division 10 Miscellaneous
s. 324
(2) An account called the Legal Costs Committee Account is to be
established --
(a) as an agency special purpose account under the
Financial Management Act 2006 section 16; or
5 (b) with the approval of the Treasurer, at a bank as defined
in section 3 of that Act,
to which the funds referred to in subsection (1) are to be
credited.
(3) The Account is to be charged with --
10 (a) the remuneration and allowances payable under
section 317; and
(b) all other expenditure lawfully incurred by the Legal
Costs Committee in the performance of its functions.
324. Application of Financial Management Act 2006 and Auditor
15 General Act 2006
The provisions of the Financial Management Act 2006 and the
Auditor General Act 2006 regulating the financial
administration, audit and reporting of statutory authorities apply
to and in respect of the Legal Costs Committee and its
20 operations.
Division 10 -- Miscellaneous
325. Application of Part to incorporated legal practices and
multi-disciplinary partnerships
The regulations may provide that specified provisions of this
25 Part do not apply to incorporated legal practices or
multi-disciplinary partnerships or both or apply to them with
specified modifications.
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Miscellaneous Division 10
s. 326
326. Imputed acts, omissions or knowledge
For the purposes of this Part --
(a) anything done or omitted by, to or in relation to --
(i) an Australian legal practitioner; or
5 (ii) an Australian-registered foreign lawyer (except
for the purposes of section 284(4) or for the
purposes of any provision of this Part prescribed
by the regulations for the purposes of this
section),
10 in the course of acting on behalf of a law practice is
taken to have been done or omitted by, to or in relation
to the law practice; and
(b) without limiting paragraph (a), the law practice is taken
to become or be aware of, or to have a belief as to, any
15 matter if --
(i) an Australian legal practitioner; or
(ii) an Australian-registered foreign lawyer (except
for the purposes of section 284(4) or for the
purposes of any provision of this Part prescribed
20 by the regulations for the purposes of this
section),
becomes or is aware of, or has a belief as to, the matter
in the course of acting on behalf of the law practice.
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Part 11 Professional indemnity insurance
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Part 11 -- Professional indemnity insurance
327. Terms used in this Part
(1) In this Part --
"Law Mutual Fund" means the fund continued under
5 section 329(1);
"PII management committee" means the management
committee referred to in section 331;
"professional indemnity insurance" means professional
indemnity insurance for local legal practitioners and law
10 practices against loss arising from claims in respect of any
description of civil liability incurred in connection with
legal practice.
(2) A reference in this Part or section 591 to the Law Society
includes, where appropriate, a reference to the Law Society in
15 its capacity as trustee of the Law Mutual Fund.
328. Regulations as to professional indemnity insurance
(1) The Governor may make regulations concerning professional
indemnity insurance.
(2) Without limiting subsection (1), the regulations may --
20 (a) authorise or require the Law Society to do either or both
of the following --
(i) make arrangements with one or more insurers for
the provision to local legal practitioners and law
practices of professional indemnity insurance;
25 (ii) approve a scheme providing professional
indemnity insurance;
and
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Professional indemnity insurance Part 11
s. 328
(b) confer discretionary powers on the Law Society --
(i) to do such acts and things as may be necessary or
expedient for giving effect to the arrangements
or scheme; and
5 (ii) in relation to the administration of the
arrangements or the scheme; and
(iii) in relation to the administration of the Law
Mutual Fund, including the management and
application of any surplus funds;
10 and
(c) require local legal practitioners and law practices,
subject to any exemption referred to in paragraph (i), to
take out and maintain professional indemnity insurance
in accordance with the requirements of the regulations
15 and either in accordance with the arrangements made
under the regulations or in accordance with the scheme
approved under the regulations; and
(d) specify the terms and conditions on and subject to which
professional indemnity insurance is to be provided,
20 including the extent of the insurance cover to be taken
out and maintained and the period during which such
cover is to be maintained; and
(e) specify classes or categories of local legal practitioners
and law practices to which different provisions or
25 obligations under the regulations may apply; and
(f) impose on local legal practitioners and law practices
obligations to pay premiums, levies, fees or other
charges (which may vary according to factors stipulated
in the arrangements or scheme); and
30 (g) impose on local legal practitioners and law practices
obligations to provide information to the Law Society
that is relevant to an arrangement or scheme in respect
of professional indemnity insurance; and
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(h) provide for and regulate the approval of insurers and the
issue of certificates of insurance to local legal
practitioners and law practices covered by professional
indemnity insurance and prescribe the form of the
5 certificates; and
(i) specify circumstances in which local legal practitioners
or law practices are exempt from the regulations, or
empower the Board to exempt any local legal
practitioner or class of legal practitioners or any law
10 practice or class of law practice, in whole or in part from
any provision of the regulations either for a specified or
indefinite period or subject to any condition which may
be imposed by the Board; and
(j) provide for the Board to be given information by the
15 Law Society as to the local legal practitioners and law
practices to whom or which exemptions referred to in
paragraph (i) apply, and authorise the Board to use that
information in performing its functions; and
(k) empower the Board to vary or revoke any exemption
20 granted by the Board under the regulations; and
(l) empower the Board or the Law Society to take such
steps as it considers necessary or expedient to ascertain
whether or not the regulations are being complied with;
and
25 (m) contain incidental, procedural and supplementary
provisions.
329. Law Mutual (WA)
The entity called Law Mutual (WA) is continued under this Act.
330. Law Mutual Fund
30 (1) The Law Mutual Fund is continued under this Act.
(2) The Law Mutual Fund is held on trust by the Law Society as
trustee.
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Professional indemnity insurance Part 11
s. 331
331. PII management committee
(1) The Law Society may establish a PII management committee
consisting of 7 members.
(2) The members of the PII management committee --
5 (a) are to be appointed by the Law Society; and
(b) may include persons who are not members of the Law
Society; and
(c) are to include --
(i) a chairperson who has knowledge and experience
10 in the insurance industry; and
(ii) at least 2 persons who have knowledge and
experience in the insurance industry or
accounting or financial expertise; and
(iii) not less than 4 members of the Law Society
15 Council.
(3) Subject to this Part and any directions of the Law Society
Council, the PII management committee may determine its own
procedures.
332. Delegation
20 (1) The Law Society may delegate any power or duty of the Law
Society under another provision of this Part or regulations made
under this Part to the PII management committee.
(2) The delegation must be made by resolution of the Law Society
Council.
25 (3) The PII management committee cannot delegate a power or
duty delegated to it under this section.
(4) The PII management committee exercising or performing a
power or duty that has been delegated to it under this section is
to be taken to do so in accordance with the terms of the
30 delegation unless the contrary is shown.
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(5) Nothing in this section limits the ability of the Law Society to
perform a function through an officer or agent in the normal
course of its activities.
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Part 12 -- Fidelity cover
Division 1 -- Preliminary
333. Purpose
The purposes of this Part are as follows --
5 (a) to establish and maintain the Guarantee Fund to provide
a source of compensation for defaults by law practices
arising from or constituted by acts or omissions of
associates; and
(b) to establish the Trust; and
10 (c) to provide for the application to public purposes of
money resulting to the Trust.
334. Definitions
In this Part --
"Australian trust account" means a local trust account or an
15 interstate trust account;
"capping and sufficiency provisions" of --
(a) this jurisdiction -- means sections 371 and 372; or
(b) another jurisdiction -- means the provisions of the
corresponding law of that jurisdiction that correspond
20 to those sections;
"claim" means a claim under this Part;
"claimant" means a person who makes a claim under this Part;
"concerted interstate default" means a default of a law
practice arising from or constituted by an act or
25 omission --
(a) that was committed jointly by 2 or more associates of
the practice; or
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(b) parts of which were committed by different
associates of the practice or different combinations of
associates of the practice,
where this jurisdiction is the relevant jurisdiction for at
5 least one of the associates and another jurisdiction is the
relevant jurisdiction for at least one of the associates;
"default", in relation to a law practice, means --
(a) a failure of the practice to pay or deliver trust money
or trust property that was received by the practice in
10 the course of legal practice by the practice, where the
failure arises from an act or omission of an associate
that involves dishonesty; or
(b) a fraudulent dealing with trust property that was
received by the practice in the course of legal practice
15 by the practice, where the fraudulent dealing arises
from or is constituted by an act or omission of an
associate that involves dishonesty;
"dishonesty" includes fraud;
"interstate trust account" means a trust account maintained
20 under a corresponding law;
"local trust account" means a trust account maintained under
this Act;
"pecuniary loss", in relation to a default, means --
(a) the amount of trust money, or the value of trust
25 property, that is not paid or delivered; or
(b) the amount of money that a person loses or is
deprived of, or the loss of value of trust property, as a
result of a fraudulent dealing;
"relevant jurisdiction" has the meaning given in section 348.
30 335. Time of default
(1) This section applies for the purpose of determining which
jurisdiction's law applies to a default.
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(2) The default is taken to have occurred when the act or omission
giving rise to or constituting the default occurred.
(3) An omission is taken to have occurred on the day on or by
which the act not performed ought reasonably to have been
5 performed or on such other day as is determined in accordance
with the regulations.
Division 2 -- Solicitors' Guarantee Fund
336. Establishment of Guarantee Fund
(1) The Solicitors' Guarantee Fund is established.
10 (2) The following money must be paid into the Guarantee Fund --
(a) money paid out of the Trust Interest Account to the
Guarantee Fund under section 388;
(b) money resulting from the investment of the Guarantee
Fund under section 342;
15 (c) money paid to, or recovered by or on behalf of, the Trust
in respect of fees, costs and expenses, whether under the
right of action conferred on the Trust by this Part or
otherwise;
(d) the money, other than interest mentioned in section 387,
20 paid to the Trust under this Act;
(e) such other money as may lawfully be paid to the
Guarantee Fund.
(3) The Trust may pay out of the Guarantee Fund --
(a) the amount of any claim, including costs, expenses and
25 interest allowed or established against the Trust, or
allowed by the Trust, in respect of the Guarantee Fund;
and
(b) the legal and other expenses incurred in investigating or
defending claims against the Trust in respect of, or
30 otherwise incurred in relation to, the Guarantee Fund or
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in the exercise by the Trust of functions conferred upon
it by this or any other Act; and
(c) costs payable by the Trust under section 234(3); and
(d) the premiums, other than those mentioned in
5 section 388, in respect of any contract of indemnity or
insurance entered into by the Trust under the provisions
of this Part; and
(e) the costs and expenses of the administration of the
Guarantee Fund; and
10 (f) any other money that is payable out of the Guarantee
Fund under this Part.
(4) Pending their investment under section 342, money in the
Guarantee Fund must be deposited in an ADI account or
ADI accounts in the State.
15 337. Payment of contributions by local legal practitioners
(1) Subject to subsection (4), each local legal practitioner who, on
30 June in any year has held a practising certificate for 2 years
or longer must, if and when paying the fee for any succeeding
practising certificate, pay to the Board, for application to the
20 Guarantee Fund, such amount, if any, as may be prescribed by
the legal profession rules.
(2) The Board must not issue a practising certificate to a local legal
practitioner obliged to make a payment under subsection (1)
until the payment is made.
25 (3) The Board must pay to the Trust all money received by it under
subsection (1).
(4) A local legal practitioner who has made 5 payments, or has paid
an amount equal to 5 payments as then prescribed, under
subsection (1), is exempt from the requirement of making any
30 further payment under that subsection.
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338. Payment of contributions by interstate legal practitioners
(1) A notice under section 71 must be accompanied by an amount
for application to the Guarantee Fund that is the same as the
amount that would have to be paid under section 337 if the
5 interstate legal practitioner were a local legal practitioner
required to make a payment under that section.
(2) An interstate legal practitioner practising in this State must pay
for each of the 4 years following the year in which payment is
made under subsection (1) an amount for application to the
10 Guarantee Fund that is the same as the amount that would have
to be paid under section 337 if the interstate legal practitioner
were a local legal practitioner required to make a payment under
that section.
339. Levy to supplement Guarantee Fund
15 (1) In this section --
"local legal practitioner" does not include a WA government
lawyer.
(2) If the Trust is at any time of the opinion that the Guarantee Fund
is likely to be insufficient to meet the ascertained or contingent
20 liabilities to which it is subject, the Trust may make a written
determination imposing on each local legal practitioner of a
class specified by the Trust in the determination a levy for
payment into the Guarantee Fund.
(3) A levy is to be of such amount as the Trust determines and may
25 differ according to the class of the local legal practitioner.
(4) As soon as practicable after making a determination under
subsection (2), the Trust must --
(a) cause notice of the determination to be published in the
Gazette; and
30 (b) give written notice of the determination to the Board and
the Law Society.
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(5) The levy is payable to the Trust, at the time and in the manner
fixed by the Trust in the determination, by each local legal
practitioner who is of a class specified in the determination.
(6) However, the Trust may in a special case extend the time for
5 payment of a levy or part of a levy by a local legal practitioner.
340. Failure to pay levy
(1) If a local legal practitioner fails to pay the amount of a levy in
accordance with this Division the Trust must, as soon as
practicable, give written notice to the Board of the practitioner's
10 failure.
(2) If a local legal practitioner fails to pay a levy in accordance with
this Division, the Board may suspend the local legal
practitioner's practising certificate while the failure continues.
(3) The amount of a levy that is not paid by a person in accordance
15 with this Division is recoverable in a court of competent
jurisdiction by the Trust from that person as a debt.
341. Insurance
(1) The Trust may arrange with an insurer for the insurance of the
Guarantee Fund.
20 (2) Without limiting subsection (1), the Trust may arrange for the
insurance of the Guarantee Fund against particular claims or
particular classes of claims.
(3) The proceeds paid under a policy of insurance against particular
claims or particular classes of claims are to be paid into the
25 Guarantee Fund, and a claimant is not entitled to have direct
recourse to the proceeds or any part of them.
(4) No liability (including liability in defamation) is incurred by a
protected person in respect of anything done or omitted to be
done in good faith in relation to the insurance of the Guarantee
30 Fund, including publication of the fact that the Guarantee Fund
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has been insured against particular claims or particular classes
of claims.
(5) In subsection (4) --
"protected person" means --
5 (a) the Trust or a trustee of the Trust; or
(b) a person acting at the direction of the Trust or a
trustee of the Trust.
342. Investment of Guarantee Fund
(1) The Trust may, with the approval of the Minister, invest that
10 portion of the Guarantee Fund that is not immediately required
for the purposes of Division 3 --
(a) on deposit with an ADI in the State, bearing interest at a
rate agreed between the ADI and the Trust; or
(b) on loan to the Treasurer at a rate of interest that is
15 agreed with the Treasurer; or
(c) as trust funds may be invested under the Trustees
Act 1962 Part III.
(2) The Trust must apply the money resulting from investment
under subsection (1) in the manner provided by section 388.
20 343. Borrowing
The Trust cannot borrow money for the purposes of the
Guarantee Fund.
Division 3 -- Fidelity cover
Subdivision 1 -- Application provisions
25 344. Application to Australian-registered foreign lawyers
(1) The regulations may provide that specified provisions of this
Part or any legal profession rule relating to the Guarantee Fund
apply to prescribed classes of Australian-registered foreign
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lawyers and so apply with any modifications specified in the
regulations.
(2) The regulations may make provision for or with respect to
payments by locally registered foreign lawyers of contributions
5 to the Guarantee Fund.
345. Application to incorporated legal practices
(1) The regulations may provide that specified provisions of this
Part, and any other provisions of this Act or any legal profession
rule relating to the Guarantee Fund do not apply to incorporated
10 legal practices or apply to them with any modifications
specified in the regulations.
(2) For the purposes of the application of the provisions of this Part,
and any other provisions of this Act or any legal profession rule
relating to the Guarantee Fund, to an incorporated legal practice,
15 a reference in those provisions to a default of a law practice
extends to a default of an incorporated legal practice, but only if
it occurs in connection with the provision of legal services.
(3) Nothing in this section affects any obligations of an Australian
legal practitioner who is an officer or employee of an
20 incorporated legal practice to comply with the provisions of this
Act or any legal profession rule relating to the Guarantee Fund.
346. Application to multi-disciplinary partnerships
(1) The regulations may provide that specified provisions of this
Part, and any other provisions of this Act or any legal profession
25 rule relating to the Guarantee Fund do not apply to
multi-disciplinary partnerships or apply to them with any
modifications specified in the regulations.
(2) For the purposes of the application of the provisions of this Part,
and any other provisions of this Act or any legal profession rule
30 relating to the Guarantee Fund, to a multi-disciplinary
partnership, a reference in those provisions to a default of a law
practice extends to a default of a multi-disciplinary partnership
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or a partner or employee of a multi-disciplinary partnership,
whether or not any person involved is an Australian legal
practitioner, but only if it occurs in connection with the
provision of legal services.
5 (3) Nothing in this section affects any obligations of an Australian
legal practitioner who is a partner or employee of a
multi-disciplinary partnership to comply with the provisions of
this Act or any legal profession rule relating to the Guarantee
Fund.
10 347. Application to sole practitioners whose practising
certificates lapse
(1) This section applies if an Australian lawyer is not an Australian
legal practitioner because the lawyer's Australian practising
certificate has lapsed and the lawyer was a sole practitioner
15 immediately before the certificate lapsed, but does not apply
where --
(a) the certificate has been suspended or cancelled under
this Act or a corresponding law; or
(b) the lawyer's application for the grant or renewal of an
20 Australian practising certificate has been refused under
this Act or a corresponding law and the lawyer would be
an Australian legal practitioner had it been granted or
renewed.
(2) For the purposes of other provisions of this Part, the practising
25 certificate is taken not to have lapsed, and accordingly the
lawyer is taken to continue to be an Australian legal
practitioner.
(3) Subsection (2) ceases to apply when the first of the following
occurs --
30 (a) a manager or receiver is appointed under this Act for the
law practice;
(b) the period of 6 months after the practising certificate
actually lapsed expires;
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(c) the lawyer's application for the grant or renewal of an
Australian practising certificate is refused under this Act
or a corresponding law.
Subdivision 2 -- Defaults to which this Division applies
5 348. Meaning of "relevant jurisdiction"
(1) The relevant jurisdiction for an associate of a law practice
whose act or omission (whether alone or with one or more other
associates of the practice) gives rise to or constitutes a default of
the practice is to be determined under this section.
10 (2) In the case of a default involving trust money received in
Australia (whether or not it was paid into an Australian trust
account), the relevant jurisdiction for the associate is --
(a) if the trust money was paid into an Australian trust
account and if the associate (whether alone or with a
15 co-signatory) was authorised to withdraw any or all of
the trust money from the only or last Australian trust
account in which the trust money was held before the
default -- the jurisdiction under whose law that trust
account was maintained; or
20 (b) in any other case -- the associate's home jurisdiction.
(3) In the case of a default involving trust money received outside
Australia and paid into an Australian trust account, the relevant
jurisdiction for the associate is --
(a) if the associate (whether alone or with a co-signatory)
25 was authorised to withdraw any or all of the trust money
from the only or last Australian trust account in which
the trust money was held before the default -- the
jurisdiction under whose law that trust account was
maintained; or
30 (b) in any other case -- the associate's home jurisdiction.
(4) In the case of a default involving trust property received in
Australia, or received outside Australia and brought to
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Australia, the relevant jurisdiction for the associate is the
associate's home jurisdiction.
349. Defaults to which this Division applies
(1) This Division applies to a default of a law practice arising from
5 or constituted by an act or omission of one or more associates of
the practice, where this jurisdiction is the relevant jurisdiction
for the only associate or one or more of the associates involved.
(2) It is immaterial where the default occurs.
(3) It is immaterial that the act or omission giving rise to or
10 constituting a default does not constitute a crime or other
offence under the law of this or any other jurisdiction or of the
Commonwealth or that proceedings have not been commenced
or concluded in relation to a crime or other offence of that kind.
350. Defaults relating to financial services or investments
15 (1) In this section --
"Australian financial services licence", "authorised
representative", "financial service" and "financial
services business" have the meanings given in the
Corporations Act Chapter 7.
20 (2) This Division does not apply to a default of a law practice to the
extent that the default occurs in relation to money or property
that is entrusted to or held by the practice for or in connection
with --
(a) a financial service provided by the practice or an
25 associate of the practice in circumstances where the
practice or associate is required to hold an Australian
financial services licence covering the provision of the
service (whether or not such a licence is held at any
relevant time); or
30 (b) a financial service provided by the practice or an
associate of the practice in circumstances where the
practice or associate provides the service as a
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representative of another person who carries on a
financial services business (whether or not the practice
or associate is an authorised representative at any
relevant time).
5 (3) Without limiting subsection (2), this Division does not apply to
a default of a law practice to the extent that the default occurs in
relation to money or property that is entrusted to or held by the
practice for or in connection with --
(a) a managed investment scheme; or
10 (b) mortgage financing,
undertaken by the practice.
(4) Without limiting subsections (2) and (3), this Division does not
apply to a default of a law practice to the extent that the default
occurs in relation to money or property that is entrusted to or
15 held by the practice for investment purposes, whether on its own
account or as agent, unless --
(a) the money or property was entrusted to or held by the
practice --
(i) in the ordinary course of legal practice; and
20 (ii) primarily in connection with the provision of
legal services to or at the direction of the client;
and
(b) the investment is or is to be made --
(i) in the ordinary course of legal practice; and
25 (ii) for the ancillary purpose of maintaining or
enhancing the value of the money or property
pending completion of the matter or further
stages of the matter or pending payment or
delivery of the money or property to or at the
30 direction of the client.
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Subdivision 3 -- Claims about defaults
351. Claims about defaults
(1) A person who suffers pecuniary loss because of a default to
which this Division applies may make a claim against the
5 Guarantee Fund to the Trust about the default.
(2) A claim must be made in writing in a form approved by the
Trust.
(3) The Trust may require the person who makes a claim to do any
or all of the following --
10 (a) to give further information about the claim or any
dispute to which the claim relates;
(b) to verify the claim, or any further information, by
statutory declaration;
(c) to produce to the Trust any documents relating to the
15 claim in the custody or under the control of the person.
352. Time limit for making claims
(1) Subject to section 354, a claim does not lie against the
Guarantee Fund unless the prospective claimant notifies the
Trust of the default concerned --
20 (a) within the period of 6 months after the prospective
claimant becomes aware of the default; or
(b) within a further period allowed by the Trust; or
(c) if, on an application for review of the Trust's decision,
the State Administrative Tribunal allows a further time
25 after the Trust refuses to do so -- within a period
allowed by the Tribunal.
(2) The State Administrative Tribunal or the Trust may allow a
further period referred to in subsection (1) if satisfied that --
(a) it would be reasonable to do so after taking into account
30 all ascertained and contingent liabilities of the
Guarantee Fund; and
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(b) it would be appropriate to do so in a particular case
having regard to matters the Tribunal or the Trust thinks
appropriate.
353. Advertisements
5 (1) If the Trust considers that there has been, or may have been, a
default by a law practice, it may publish either or both of the
following --
(a) a notice that seeks information about the default;
(b) a notice that invites claims about the default and fixes a
10 final date after which claims relating to the default
cannot be made.
(2) The final date fixed by a notice must be a date that is --
(a) at least 3 months later than the date of the first or only
publication of the notice; and
15 (b) not more than 12 months after the date of that first or
only publication.
(3) A notice must be published --
(a) in a newspaper circulating generally throughout
Australia; and
20 (b) in a newspaper circulating generally in each jurisdiction
where the law practice --
(i) has an office; or
(ii) at any relevant time had an office,
if known to the Trust; and
25 (c) on the internet site (if any) of the Trust.
(4) The Trust may provide information to persons making inquiries
in response to a notice published under this section.
(5) Apart from extending the period during which claims can be
made under this Division (where relevant), publication of a
30 notice under this section does not confer any entitlements in
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relation to any claim or the default to which it relates or provide
any grounds affecting the determination of any claim.
(6) Neither the publication in good faith of a notice under this
section, nor the provision of information in good faith under this
5 section, subjects a protected person to any liability (including
liability in defamation).
(7) In subsection (6) --
"protected person" means --
(a) the Trust or a trustee of the Trust; or
10 (b) the proprietor, editor or publisher of the newspaper;
or
(c) an internet service provider or internet content host;
or
(d) a person acting at the direction of any person or entity
15 referred to in this definition.
354. Time limit for making claims following advertisement
(1) This section applies if the Trust publishes a notice under
section 353 fixing a final date after which claims relating to a
default cannot be made.
20 (2) A claim may be made --
(a) up to and including the final date fixed under the notice;
or
(b) within a further period allowed by the Trust; or
(c) if, on an application for review of the Trust's decision,
25 the State Administrative Tribunal allows further time
after the Trust refuses to do so -- within a period
allowed by the Tribunal,
even though it would have been barred under section 352 had
the notice not been published.
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355. Claims not affected by certain matters
(1) A claim may be made about a law practice's default despite a
change in the status of the practice or the associate concerned
after the occurrence of the act or omission giving rise to or
5 constituting the default.
(2) A claim that has been made is not affected by a later change in
the status of the practice or associate.
(3) For the purposes of this section, a change in status includes --
(a) a change in the membership or staffing or the
10 dissolution of the practice (in the case of a partnership);
and
(b) a change in the directorship or staffing or the
winding-up or dissolution of the practice (in the case of
an incorporated legal practice); and
15 (c) the fact that the associate has ceased to practise or to
hold an Australian practising certificate (in the case of
an associate who was an Australian legal practitioner);
and
(d) the death of the associate (in the case of a natural
20 person).
356. Investigation of claims
The Trust may investigate a claim made to it, including the
default to which it relates, in any manner it considers
appropriate.
25 357. Advance payments
(1) The Trust may, at its absolute discretion, make payments to a
claimant in advance of the determination of the claim if satisfied
that --
(a) the claim is likely to be allowed; and
30 (b) payment is warranted to alleviate hardship.
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(2) Any payments made in advance are to be taken into account
when the claim is determined.
(3) Payments under this section are to be made from the Guarantee
Fund.
5 (4) If the claim is disallowed, the amounts paid under this section
are recoverable by the Trust as a debt due to the Guarantee
Fund.
(5) If the claim is allowed but the amount payable is less than the
amount paid under this section, the excess paid under this
10 section is recoverable by the Trust as a debt due to the
Guarantee Fund.
(6) Nothing in this section affects the right of the Trust to recover
surplus payments under section 364.
Subdivision 4 -- Determination of claims
15 358. Determination of claims
(1) The Trust may determine a claim by wholly or partly allowing
or disallowing it.
(2) The Trust may disallow a claim to the extent that the claim does
not relate to a default for which the Guarantee Fund is liable.
20 (3) The Trust may wholly or partly disallow a claim, or reduce a
claim, to the extent that --
(a) the claimant knowingly assisted in or contributed
towards, or was a party or accessory to, the act or
omission giving rise to the claim; or
25 (b) the negligence of the claimant contributed to the loss; or
(c) the conduct of the transaction with the law practice in
relation to which the claim is made was illegal, and the
claimant knew or ought reasonably to have known of the
illegality; or
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(d) proper and usual records were not brought into existence
during the conduct of the transaction, or were destroyed,
and the claimant knew or ought reasonably to have
known that records of that kind would not be kept or
5 would be destroyed; or
(e) the claimant has unreasonably refused to disclose
information or documents to or cooperate with --
(i) the Trust; or
(ii) any other authority (including, for example, an
10 investigative or prosecuting authority),
in the investigation of the claim.
(4) Subsections (2) and (3) do not limit the Trust's power to
disallow a claim on any other ground.
(5) Without limiting subsection (2) or (3), the Trust may reduce the
15 amount otherwise payable on a claim to the extent the Trust
considers appropriate if satisfied that the claimant --
(a) assisted in or contributed towards, or was a party or
accessory to, the act or omission giving rise to the claim;
or
20 (b) unreasonably failed to mitigate losses arising from the
act or omission giving rise to the claim; or
(c) has unreasonably hindered the investigation of the
claim.
(6) The Trust must, in allowing a claim, specify the amount
25 payable.
359. Maximum amount allowable
(1) The amount payable in respect of a default must not exceed the
pecuniary loss resulting from the default.
(2) This section does not apply to costs payable under section 360
30 or to interest payable under section 361.
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360. Costs
(1) If the Trust wholly or partly allows a claim, the Trust must order
payment of the claimant's reasonable legal costs involved in
making and proving the claim, unless the Trust considers that
5 special circumstances exist warranting a reduction in the
amount of costs or warranting a determination that no amount
should be paid for costs.
(2) If the Trust wholly disallows a claim, the Trust may order
payment of the whole or part of the claimant's reasonable legal
10 costs involved in making and attempting to prove the claim,
where the Trust considers it is appropriate to make the order.
(3) The costs are payable from the Guarantee Fund.
361. Interest
(1) In determining the amount of pecuniary loss resulting from a
15 default, the Trust is to add interest on the amount payable
(excluding interest), unless the Trust considers that special
circumstances exist warranting a reduction in the amount of
interest or warranting a determination that no amount should be
paid by way of interest.
20 (2) The interest is to be calculated from the date on which the claim
was made, to the date the Trust notifies the claimant that the
claim has been allowed, at the rate specified or determined
under the regulations.
(3) To the extent that regulations are not in force for the purposes of
25 subsection (2), interest is to be calculated at the rate of 5% per
annum.
(4) The interest is payable from the Guarantee Fund.
362. Reduction of claim because of other benefits
(1) A person is not entitled to recover from the Guarantee Fund any
30 amount equal to amounts, or to the value of other benefits, from
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other sources in respect of the pecuniary loss to which a claim
relates --
(a) that have already been paid to or received by the person;
or
5 (b) that have already been determined and are payable to or
receivable by the person; or
(c) that (in the opinion of the Trust) are likely to be paid to
or received by the person; or
(d) that (in the opinion of the Trust) might, but for neglect
10 or failure on the person's part, have been paid or
payable to or received or receivable by the person.
(2) The Trust may, at its absolute discretion, pay to a person the
whole or part of an amount referred to in subsection (1)(c) if
satisfied that payment is warranted to alleviate hardship, but
15 nothing in this subsection affects section 364.
363. Subrogation
(1) On payment of a claim from the Guarantee Fund, the Trust is
subrogated to the rights and remedies of the claimant against
any person in relation to the default to which the claim relates.
20 (2) Without limiting subsection (1), that subsection extends to a
right or remedy against --
(a) the associate in respect of whom the claim is made; or
(b) the person authorised to administer the estate of the
associate in respect of whom the claim is made and who
25 is deceased or an insolvent under administration.
(3) Subsection (1) does not apply to a right or remedy against an
associate if, had the associate been a claimant in respect of the
default, the claim would not be disallowed on any of the
grounds set out in section 358(3).
30 (4) The Trust may exercise its rights and remedies under this
section in its own name or in the name of the claimant.
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(5) If the Trust brings proceedings under this section in the name of
the claimant, it must indemnify the claimant against any costs
awarded against the claimant in the proceedings.
(6) The Trust may exercise its rights and remedies under this
5 section even though any limitation periods under this Division
have expired.
(7) The Trust must pay into the Guarantee Fund any money
recovered in exercising its rights and remedies under this
section.
10 364. Repayment of certain amounts
(1) If --
(a) a claimant receives a payment from the Guarantee Fund
in respect of a claim; and
(b) the claimant receives or recovers from another source or
15 sources a payment on account of the pecuniary loss; and
(c) there is a surplus after deducting the amount of the
pecuniary loss from the total amount received or
recovered by the claimant from both or all sources,
the amount of the surplus is a debt payable by the claimant to
20 the Guarantee Fund.
(2) However, the amount payable by the claimant cannot exceed the
amount the claimant received from the Guarantee Fund in
respect of the claim.
365. Notification of delay in making decision
25 (1) If the Trust considers that a claim is not likely to be determined
within 12 months after the claim was made, the Trust must
notify the claimant in writing that the claim is not likely to be
determined within that period.
(2) The notification must contain a brief statement of reasons for
30 the delay.
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366. Notification of decision
(1) The Trust must, as soon as practicable, notify the claimant in
writing about any decision it makes about the claim.
(2) A notice about --
5 (a) a decision of the Trust to wholly or partly disallow a
claim; or
(b) a decision of the Trust to reduce the amount allowed in
respect of a claim,
must include --
10 (c) the decision; and
(d) the reasons for the decision; and
(e) that the person in respect of whom the decision is made
may bring a proceeding against the Trust in the Supreme
Court.
15 367. Proceedings against Trust restrained
(1) Subject to subsection (2), a claimant may not, without leave of
the Trust, bring any proceedings against the Trust in respect of
the Guarantee Fund, until --
(a) the Trust has disallowed the claimant's claim, in whole
20 or in part; and
(b) the claimant has exhausted every other remedy that may
be available to the claimant, against the law practice in
respect of which the claim arose or against such other
persons as may be liable in respect of the loss suffered
25 by the claimant, for the recovery (including any rights
that the claimant may have to follow assets and any
money or property into which it may have been
converted) of the money or property in respect of which
the claim is made.
30 (2) A person who has been refused leave by the Trust to bring a
proceeding against it may apply to the Supreme Court, by way
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of originating summons, for an order enabling the person to
bring such a proceeding.
(3) The Supreme Court may, as it thinks fit --
(a) grant the application, conditionally or unconditionally;
5 or
(b) dismiss the application.
368. Proceedings to establish claim
(1) Where, in any proceedings brought to establish a claim against
the Trust, in respect of the Guarantee Fund, the Supreme Court
10 is satisfied that the default to which the claim relates is a default
which in fact occurred and to which this Division applies and
that the claimant has a valid claim, it must, by order --
(a) declare the occurrence, and the date of the occurrence,
of the default and the amount of the pecuniary loss
15 sustained by the claimant; and
(b) direct the Trust to deal with the claim in accordance
with the provisions of this Division; and
(c) award such costs and direct the payment of interest on
the claim in accordance with sections 360 and 361, as it
20 thinks fit.
(2) An order made under subsection (1) does not affect the
functions of the Trust under Subdivision 5.
369. Court proceedings
In any proceeding brought in a court under section 363
25 or 368 --
(a) evidence of any admission or confession by, or other
evidence that would be admissible against, an Australian
legal practitioner or other person with respect to an act
or omission giving rise to a claim is admissible to prove
30 the act or omission despite the fact that the practitioner
or other person is not a defendant in, or a party to, the
proceedings; and
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(b) any defence that would have been available to the
practitioner or other person is available to the Trust.
Subdivision 5 -- Payments from Guarantee Fund for defaults
370. Application of Guarantee Fund
5 (1) The Guarantee Fund must be applied by the Trust for the
purposes of compensating claimants in respect of claims
allowed under this Division in respect of defaults to which this
Division applies.
(2) An amount payable from the Guarantee Fund in respect of a
10 claim is payable to the claimant or to another person at the
claimant's direction.
371. Caps on payments
(1) The Trust may, with the approval of the Minister, fix either or
both of the following --
15 (a) the maximum amounts, or the method of calculating
maximum amounts, that may be paid from the
Guarantee Fund in respect of individual claims or
classes of individual claims;
(b) the maximum aggregate amount, or the method of
20 calculating the maximum aggregate amount, that may be
paid from the Guarantee Fund in respect of all claims
made in relation to individual law practices or classes of
law practices.
(2) Amounts must not be paid from the Guarantee Fund that exceed
25 the amounts fixed, or calculated by a method fixed, under
subsection (1).
(3) Payments from the Guarantee Fund in accordance with the
requirements of subsection (2) are made in full and final
settlement of the claims concerned.
30 (4) Despite subsection (2), the Trust may authorise payment of a
larger amount if satisfied that it would be reasonable to do so
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after taking into account the position of the Guarantee Fund and
the circumstances of the particular case.
(5) No proceeding can be brought, by way of appeal or otherwise,
to require the payment of a larger amount or to require the Trust
5 to consider payment of a larger amount.
372. Sufficiency of Guarantee Fund
(1) The Guarantee Fund is the only property of the Trust to be
applied in satisfaction of a claim allowed or directed to be dealt
with under this Division.
10 (2) If the Trust is of the opinion that the Guarantee Fund is likely to
be insufficient to meet the ascertained and contingent liabilities
to which it is subject, the Trust may do any or all of the
following --
(a) postpone all payments relating to all or any class of
15 claims out of the Guarantee Fund;
(b) impose a levy under section 339;
(c) make partial payments of the amounts of one or more
allowed claims out of the Guarantee Fund with payment
of the balance being a charge on the Guarantee Fund;
20 (d) make partial payments of the amounts of 2 or more
allowed claims out of the Guarantee Fund on a pro rata
basis, with payment of the balance ceasing to be a
liability of the Guarantee Fund.
(3) In deciding whether to do any or all of the things mentioned in
25 subsection (2) the Trust --
(a) must have regard to hardship where relevant information
is known to the Trust; and
(b) must endeavour to treat outstanding claims equally and
equitably, but may make special adjustments in cases of
30 hardship.
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(4) If the Trust declares that a decision is made under
subsection (2)(d) --
(a) the balance specified in the declaration ceases to be a
liability of the Guarantee Fund; and
5 (b) the Trust may (but need not) at any time revoke the
declaration in relation to either the whole or a specified
part of the balance, and the balance or that part of the
balance again becomes a liability of the Guarantee Fund.
(5) A decision of the Trust made under this section is final and not
10 subject to appeal or review.
Subdivision 6 -- Claims by law practices or associates
373. Claims by law practices or associates about defaults
(1) This section applies to a default of a law practice arising from or
constituted by an act or omission of an associate of the practice.
15 (2) A claim may be made under section 351 by another associate of
the law practice, if the associate suffers pecuniary loss because
of the default.
(3) A claim may be made under section 351 by the law practice, if
the practice is an incorporated legal practice and it suffers
20 pecuniary loss because of the default.
374. Claims by law practices or associates about notional defaults
(1) This section applies if a default of a law practice arising from or
constituted by an act or omission of an associate of the practice
was avoided, remedied or reduced by a financial contribution
25 made by the practice or by one or more other associates.
(2) The default, to the extent that it was avoided, remedied or
reduced is referred to in this section as a "notional default".
(3) This Division applies to a notional default in the same way as it
applies to other defaults of law practices, but only the law
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practice or the other associate or associates concerned are
eligible to make claims about the notional default.
Subdivision 7 -- Defaults involving interstate elements
375. Concerted interstate defaults
5 (1) The Trust may treat a concerted interstate default as if the
default consisted of 2 or more separate defaults --
(a) one of which is a default to which this Division applies,
where this jurisdiction is the relevant jurisdiction for one
or more of the associates involved; and
10 (b) the other or others of which are defaults to which this
Division does not apply, where another jurisdiction or
jurisdictions are the relevant jurisdictions for one or
more of the associates involved.
(2) The Trust may treat a claim about a concerted interstate default
15 as if the claim consisted of --
(a) one or more claims made under this Division; and
(b) one or more claims made under a corresponding law or
laws.
(3) A claim about a concerted interstate default is to be assessed on
20 the basis that the fidelity funds of the relevant jurisdictions
involved are to contribute --
(a) in equal shares in respect of the default, regardless of the
number of associates involved in each of those
jurisdictions, and disregarding the capping and
25 sufficiency provisions of those jurisdictions; or
(b) in other shares as agreed by the Trust and the
corresponding authority or authorities involved.
(4) Subsection (3) does not affect the application of the capping and
sufficiency requirements of this jurisdiction in respect of the
30 amount payable from the Guarantee Fund after the claim has
been assessed.
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376. Defaults involving interstate elements where committed by
one associate only
(1) This section applies to a default of a law practice arising from or
constituted by an act or omission that was committed by only
5 one associate of the practice, where the default involves more
than one of the cases referred to in section 348(2), (3) or (4).
(2) The Trust may treat the default to which this section applies as
if the default consisted of 2 or more separate defaults --
(a) one of which is a default to which this Division applies,
10 where this jurisdiction is the relevant jurisdiction; and
(b) the other or others of which are defaults to which this
Division does not apply, where another jurisdiction or
jurisdictions are the relevant jurisdictions.
(3) The Trust may treat a claim about the default to which this
15 section applies as if the claim consisted of --
(a) one or more claims made under this Division; and
(b) one or more claims made under a corresponding law or
laws.
(4) A claim about a default to which this section applies is to be
20 assessed on the basis that the fidelity funds of the relevant
jurisdictions involved are to contribute --
(a) in equal shares in respect of the default, and
disregarding the capping and sufficiency provisions of
those jurisdictions; or
25 (b) in other shares as agreed by the Trust and the
corresponding authority or authorities involved.
(5) Subsection (4) does not affect the application of the capping and
sufficiency requirements of this jurisdiction in respect of the
amount payable from the Guarantee Fund after the claim has
30 been assessed.
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Subdivision 8 -- Inter-jurisdictional provisions
377. Fidelity protocols
(1) The regulations may authorise the Trust to enter into
arrangements ("fidelity protocols") with corresponding
5 authorities for or with respect to matters to which this Division
relates.
(2) Without limiting subsection (1), the regulations may authorise
the making of a fidelity protocol that provides that the Trust is
taken to have --
10 (a) requested a corresponding authority to act as agent of
the Trust in specified classes of cases; or
(b) agreed to act as agent of a corresponding authority in
specified classes of cases.
(3) The regulations may --
15 (a) provide for the amendment, revocation or replacement
of fidelity protocols; and
(b) provide that fidelity protocols or specified classes of
fidelity protocols do not have effect in this jurisdiction
unless approved under the regulations.
20 378. Forwarding of claims
(1) If a claim is made to the Trust about a default that appears to be
a default to which a corresponding law applies, the Trust must
forward the claim or a copy of it to a corresponding authority of
the jurisdiction concerned.
25 (2) If a claim is made to a corresponding authority about a default
that appears to be a default to which this Division applies and
the claim or a copy of it is forwarded under a corresponding law
to the Trust by the corresponding authority, the claim is
taken --
30 (a) to have been made under this Division; and
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(b) to have been so made when the claim was received by
the corresponding authority.
379. Investigation of defaults to which this Division applies
(1) This section applies if a default appears to be a default to which
5 this Division applies and to have --
(a) occurred solely in another jurisdiction; or
(b) occurred in more than one jurisdiction; or
(c) occurred in circumstances in which it cannot be
determined precisely in which jurisdiction the default
10 occurred.
(2) The Trust may request a corresponding authority or
corresponding authorities to act as agent or agents for the Trust,
for the purpose of processing or investigating a claim about the
default or aspects of the claim.
15 380. Investigation of defaults to which a corresponding law
applies
(1) This section applies if a default appears to be a default to which
a corresponding law applies and to have --
(a) occurred solely in this jurisdiction; or
20 (b) occurred in more than one jurisdiction; or
(c) occurred in circumstances in which it cannot be
determined precisely in which jurisdiction the default
occurred.
(2) The Trust may act as agent of a corresponding authority, if
25 requested to do so by the corresponding authority, for the
purpose of processing or investigating a claim about the default
or aspects of the claim.
(3) If the Trust agrees to act as agent of a corresponding authority
under subsection (2), the Trust may exercise any of its functions
30 in relation to processing or investigating the claim or aspects of
the claim as if the claim had been made under this Division.
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381. Investigation of concerted interstate defaults and other
defaults involving interstate elements
(1) This section applies if --
(a) a concerted interstate default; or
5 (b) a default to which section 376 applies,
appears to have occurred.
(2) The Trust may request a corresponding authority or
corresponding authorities to act as agent or agents for the Trust,
for the purpose of processing or investigating a claim about the
10 default or aspects of the claim.
(3) The Trust may act as agent of a corresponding authority, if
requested to do so by the corresponding authority, for the
purpose of processing or investigating a claim about the default
or aspects of the claim.
15 (4) If the Trust agrees to act as agent of a corresponding authority
under subsection (3), the Trust may exercise any of its powers
or functions in relation to processing and investigating the claim
or aspects of the claim as if the claim had been made entirely
under this Division.
20 382. Recommendations by Trust to corresponding authorities
If the Trust is acting as agent of a corresponding authority in
relation to a claim made under a corresponding law, the Trust
may make recommendations about the decision the
corresponding authority might make about the claim.
25 383. Recommendations to and decisions by Trust after receiving
recommendations from corresponding authorities
(1) If a corresponding authority makes recommendations about the
decision the Trust might make about a claim in relation to which
the corresponding authority was acting as agent of the Trust, the
30 Trust may --
(a) make its decision about the claim in conformity with the
recommendations, whether with or without further
consideration, investigation or inquiry; or
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(b) disregard the recommendations.
(2) A corresponding authority cannot, as agent of the Trust, make a
decision about the claim under Subdivision 4.
384. Request to another jurisdiction to investigate aspects of
5 claim
(1) The Trust may request a corresponding authority to arrange for
the investigation of any aspect of a claim being dealt with by the
Trust and to provide a report on the result of the investigation.
(2) A report on the result of an investigation received from --
10 (a) the corresponding authority; or
(b) a person or entity authorised by the corresponding
authority to conduct an investigation,
may be used and taken into consideration by the Trust in the
course of dealing with the claim under this Division.
15 385. Request from another jurisdiction to investigate aspects of
claim
(1) If a request, made under a corresponding law, is received by the
Trust from a corresponding authority to arrange for the
investigation of any aspect of a claim being dealt with under a
20 corresponding law, the Trust may conduct the investigation.
(2) The provisions of this Division relating to the investigation of a
claim apply, with any necessary adaptations, in relation to the
investigation of the relevant aspect of the claim that is the
subject of the request.
25 (3) The Trust must provide a report on the result of the
investigation to the corresponding authority.
386. Cooperation with other authorities
(1) When dealing with a claim under this Division involving a law
practice or an Australian legal practitioner, the Trust may
30 consult and cooperate with another person or body who or
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which has powers under the corresponding law of another
jurisdiction in relation to the practice or practitioner.
(2) For the purposes of subsection (1), the Trust and the other
person or body may exchange information concerning the claim.
5 Division 4 -- Interest on trust accounts
387. ADI to pay interest on trust accounts to Trust
(1) In this section --
"relevant period" means --
(a) the 6 months ending on 31 December; and
10 (b) the 6 months ending on 30 June,
in each financial year, or such other period as is prescribed.
(2) Each ADI with which a trust account is maintained must pay to
the Trust in accordance with this section the prescribed
percentage of the interest earned on the money in the trust
15 account during the relevant period.
Penalty: a fine of $5 000.
(3) The interest must be paid to the Trust by the ADI at such times
as are prescribed by the regulations.
(4) The rate of interest payable on money in the trust account is --
20 (a) the rate prescribed by, or determined in accordance with,
the regulations; or
(b) if no regulations are made as to such a rate, the rate
agreed between the ADI and the Trust.
(5) This section does not apply in respect of a trust account if,
25 during the relevant period, the lowest balance of the trust
account, or where more than one trust account is maintained by
the same law practice, the lowest sum of the balance of the trust
account is less than $500.
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(6) An action does not lie against an Australian legal practitioner or
an ADI by reason of anything done by the ADI in compliance
with this section.
388. Application of interest
5 (1) In this section --
"community legal centre" means a not-for-profit body, one of
the main functions of which is the delivery of free or
substantially subsidised legal services to a disadvantaged
section of the community or community legal education;
10 "Legal Aid Commission" means the Legal Aid Commission of
Western Australia established under the Legal Aid
Commission Act 1976 section 6;
"Legal Aid Fund" means the Legal Aid Fund of Western
Australia referred to in the Legal Aid Commission Act 1976
15 section 52;
"peak organisation" means an incorporated body that provides
representation, coordination or support services to advance
the purposes of community legal centres.
(2) The Trust must pay all money received under section 387 to the
20 credit of an account called the "Trust Interest Account".
(3) Money in the Trust Interest Account must, subject to
subsection (5) --
(a) be applied, firstly, in payment of the costs and expenses,
other than those mentioned in section 336(3), of
25 administering the Trust; and
(b) be paid, secondly, to the Guarantee Fund, until the
Guarantee Fund is in credit in such amount of not less
than $100 000 as the Minister and the Law Society may,
from time to time, by agreement determine.
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(4) Once the Guarantee Fund has been in credit in the amount
provided by subsection (3)(b), the money in the Trust Interest
Account must, subject to subsection (5) be paid --
(a) in maintaining the Guarantee Fund in credit to that
5 amount; and
(b) as to 50% of the balance, to the Legal Aid Commission
to be applied to the Legal Aid Fund; and
(c) as to the remainder --
(i) to the Legal Aid Commission, to be applied to
10 the Legal Aid Fund; or
(ii) to the Law Society, to be applied in the
furtherance of law reform, legal research and
legal education, or any of those things; or
(iii) to a body, whether corporate or not, for the
15 purposes of which money has been appropriated
by Parliament and which is charged with the
functions of law reform; or
(iv) to any prescribed community legal centre, to be
substantially applied to funding the provision by
20 that centre of legal services or community legal
education; or
(v) to any prescribed peak organisation, to be
substantially applied to funding the provision by
that organisation of representation, coordination
25 or support services to advance the purposes of
community legal centres,
in such amounts or in such proportions as the Minister
may, after consultation with the Law Society, from time
to time, approve or determine.
30 (5) Despite subsections (3) and (4), if the Trust effects a policy or
policies of insurance indemnifying the Guarantee Fund in the
amount of $100 000 or such lesser amount as may, taking into
account the amount in which the Guarantee Fund is in credit, be
required to indemnify the Guarantee Fund in the balance of the
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amount of $100 000, the money in the Trust Interest Account
must --
(a) be applied, firstly, as provided by subsection (3)(a); and
(b) be applied, secondly, in payment of the premiums
5 payable under the policy or policies of insurance; and
(c) be paid, thirdly, to the credit of the Guarantee Fund in
such amounts as the Minister and the Law Society may,
from time to time, by agreement, determine; and
(d) be paid, finally, and applied as provided in
10 subsection (4)(b) and (c).
(6) The costs and expenses of administering the Trust include such
fees and allowances to the trustees, or any of them, as may be
prescribed.
389. Audit of expenditure
15 (1) A body to whom money is paid under section 388(4)(b) or (c)
must --
(a) maintain accounts of the money received and of its
expenditure; and
(b) at the end of each financial year cause those accounts to
20 be audited by a registered company auditor as defined in
the Corporations Act; and
(c) deliver a copy of the audit report to the Minister, the
Trust and the Board.
Penalty: a fine of $5 000.
25 (2) The Minister must within 14 days after the day on which a copy
of an audit report is received by the Minister cause a copy of the
report to be laid before each House of Parliament or dealt with
under section 595.
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390. Application of Financial Management Act 2006 and Auditor
General Act 2006
(1) The provisions of the Financial Management Act 2006 and the
Auditor General Act 2006 regulating the financial
5 administration, audit and reporting of statutory authorities apply
to and in respect of the Trust and its operations.
(2) Despite the Financial Management Act 2006, references in that
Act to "financial year" and "annual report" are to be construed
in relation to the Trust (but not in relation to the Guarantee
10 Fund) so that every period from 1 January to 30 June and from
1 July to 31 December are to be taken to be a financial year and
"annual report" is to be construed accordingly, except that the
obligation to prepare a report on the operations of the Trust
imposed under the Financial Management Act 2006 Part 5 is
15 satisfied by preparing a report for the 12 month period ending
on 30 June in each year and submitting that report at the same
time as the financial statements for the 6 month period ending
on 30 June are submitted.
(3) Any requirement imposed on the Trust under the Financial
20 Management Act 2006 Part 5 to submit an annual report to the
Minister is to be taken to impose also a similar requirement to
submit within the same period a copy of each such report to the
Board and the Law Society.
Division 5 -- Legal Contribution Trust
25 391. Establishment of Trust
(1) A body called the Legal Contribution Trust is established.
(2) The Trust is a body corporate with perpetual succession.
(3) Proceedings may be taken by or against the Trust in its
corporate name.
30 392. Relationship to Crown
The Trust does not represent, and is not an agent of, the Crown.
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393. Constitution of Trust
(1) The Trust consists of 3 trustees appointed by the Governor of
whom --
(a) one is to be an Australian lawyer nominated in writing
5 by the Law Society; and
(b) one is to be an Australian lawyer nominated in writing
by the Board; and
(c) one is to be a person, not being an Australian lawyer,
nominated in writing by the Minister.
10 (2) A trustee holds office during the pleasure of the person by
whom or the body by which the trustee was nominated.
(3) The Minister must, as the occasion requires, by notice in writing
to the Law Society or the Board, require the nomination of an
Australian lawyer for the purposes of this section.
15 (4) A nomination must be made within the period specified in the
notice under subsection (3) (being a period of not less than one
month) or within such further period as the Minister may allow.
(5) If, within the period specified in the notice under subsection (3)
or any extension of that period allowed by the Minister, the
20 Minister has not received the required nomination, the Minister
must nominate such person as, having regard to the body the
nominee is to represent, the Minister thinks fit.
(6) Subsection (2) and section 396(3) apply to a trustee nominated
by the Minister under subsection (5), as if that trustee had been
25 appointed by the body that the trustee is appointed to represent
on the Trust.
394. Chairperson
(1) The trustee nominated by the Law Society is to be chairperson
of the Trust.
30 (2) If there is no trustee nominated by the Law Society, the Minister
must appoint a trustee to act as chairperson.
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395. Deputies
(1) The Governor may appoint a person to be a deputy of a trustee
and may terminate such an appointment at any time.
(2) The provisions of this Subdivision that apply to and in relation
5 to the appointment of a trustee apply, with any necessary
modification, to and in relation to the appointment of the deputy
of that trustee.
(3) A deputy of a trustee may perform the functions of the trustee
when the trustee is unable to do so by reason of illness, absence
10 or other cause, and while so acting is taken to be a trustee.
(4) No act or omission of a person acting in place of another under
this section is to be questioned on the ground that the occasion
for so acting had not arisen or had ceased.
396. Vacation of office
15 (1) A trustee may resign from office by notice given in writing
given to the nominator of the trustee.
(2) A trustee who resigns under subsection (1) must give a copy of
the notice of resignation to the Trust.
(3) The Governor may, at the request of the nominator of a trustee,
20 remove that trustee from office and appoint a duly nominated
person to hold that office instead.
(4) The office of a trustee becomes vacant if the trustee dies,
resigns or is removed from office under subsection (3).
397. Meetings
25 (1) The chairperson of the Trust must --
(a) convene such meetings of the Trust as the chairperson
considers necessary for the efficient conduct of its
business; and
(b) on the written request of a trustee, convene a meeting of
30 the Trust.
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Part 12 Fidelity cover
Division 5 Legal Contribution Trust
s. 398
(2) A meeting of the Trust is duly constituted by the attendance of
3 trustees but, in the event of a vacancy in the office of trustee, a
meeting is duly constituted by the attendance of 2 trustees.
(3) The chairperson is to preside at all meetings of the Trust at
5 which the chairperson is present.
(4) If the chairperson is absent from a meeting of the Trust, the
deputy of the chairperson is to preside.
(5) Subject to this Division, the Trust may determine its own
procedures.
10 398. Voting
(1) A decision of the majority of trustees at a meeting of the Trust is
a decision of the Trust.
(2) If the votes of the trustees present at a meeting and voting on a
question are equally divided, the question is resolved in the
15 negative.
399. Functions of the Trust
(1) The functions of the Trust are --
(a) to receive and invest money paid to it under this or any
other Act; and
20 (b) to apply money resulting from investments in the
manner and for the purposes provided by this Part; and
(c) to administer and control the Guarantee Fund; and
(d) to exercise and discharge the functions conferred or
imposed on it by this or any other Act.
25 (2) The Trust may engage or employ persons to provide such
professional, technical or other assistance as the Trust considers
necessary to enable it to perform its functions.
400. Execution of documents by the Trust
(1) The Trust is to have a common seal.
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Legal Contribution Trust Division 5
s. 400
(2) A document is duly executed by the Trust if --
(a) the common seal of the Trust is affixed to it in
accordance with subsections (3) and (4); or
(b) it is signed on behalf of the Trust by a person or persons
5 authorised to do so under subsection (5).
(3) The common seal of the Trust must not be affixed to any
document except as authorised by the Trust.
(4) The common seal of the Trust must be affixed to a document in
the presence of 2 trustees, each of whom must sign the
10 document to attest that the common seal was so affixed.
(5) The Trust may, by writing under its seal, authorise a trustee or
trustees or a staff member or staff members to sign documents
on behalf of the Trust, either generally or subject to such
conditions or restrictions specified in the authorisation.
15 (6) A document purporting to be executed in accordance with this
section is to be presumed to be duly executed unless the
contrary is shown.
(7) When a document is produced bearing a seal purporting to be
the common seal of the Trust, it is to be presumed that the seal
20 is the common seal of the Trust unless the contrary is shown.
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Part 13 Complaints and discipline
Division 1 Preliminary
s. 401
Part 13 -- Complaints and discipline
Division 1 -- Preliminary
401. Purposes
The purposes of this Part are as follows --
5 (a) to provide for the discipline of the legal profession in
this jurisdiction, in the interests of the administration of
justice and for the protection of consumers of the
services of the legal profession and the public generally;
(b) to promote and enforce the professional standards,
10 competence and honesty of the legal profession;
(c) to provide a means of redress for complaints about
lawyers.
Division 2 -- Key concepts
402. Unsatisfactory professional conduct
15 For the purposes of this Act --
"unsatisfactory professional conduct" includes conduct of an
Australian legal practitioner occurring in connection with
the practice of law that falls short of the standard of
competence and diligence that a member of the public is
20 entitled to expect of a reasonably competent Australian
legal practitioner.
403. Professional misconduct
(1) For the purposes of this Act --
"professional misconduct" includes --
25 (a) unsatisfactory professional conduct of an Australian
legal practitioner, where the conduct involves a
substantial or consistent failure to reach or maintain a
reasonable standard of competence and diligence; and
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Complaints and discipline Part 13
Key concepts Division 2
s. 404
(b) conduct of an Australian legal 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
5 finding that the practitioner is not a fit and proper
person to engage in legal practice.
(2) For the purpose of finding that an Australian legal practitioner is
not a fit and proper person to engage in legal practice as
mentioned in subsection (1), regard may be had to the suitability
10 matters that would be considered if the practitioner were an
applicant for admission or for the grant or renewal of a local
practising certificate.
404. Conduct capable of constituting unsatisfactory professional
conduct or professional misconduct
15 Without limiting section 402 or 403, the following conduct is
capable of constituting unsatisfactory professional conduct or
professional misconduct --
(a) conduct consisting of a contravention of this Act or a
previous Act;
20 (b) charging of excessive legal costs in connection with the
practice of law;
(c) conduct in respect of which there is a conviction for --
(i) a serious offence; or
(ii) a tax offence; or
25 (iii) an offence involving dishonesty;
(d) conduct of an Australian legal practitioner as or in
becoming an insolvent under administration;
(e) conduct of an Australian legal practitioner in becoming
disqualified from managing or being involved in the
30 management of any corporation under the Corporations
Act;
(f) conduct of an Australian legal practitioner consisting of
a failure to comply with an order of the Complaints
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Part 13 Complaints and discipline
Division 3 Application
s. 405
Committee, or the State Administrative Tribunal or
Supreme Court exercising jurisdiction under this Act or
an order of a corresponding disciplinary body made
under a corresponding law (including but not limited to
5 a failure to pay wholly or partly a fine imposed under
this Act, a previous Act or a corresponding law);
(g) conduct of an Australian legal practitioner in failing to
comply with a compensation order made under this Act
or a corresponding law.
10 Division 3 -- Application
405. Practitioners to whom this Part applies
This Part applies to an Australian legal practitioner in respect of
conduct to which this Part applies, and so applies --
(a) whether or not the practitioner is a local lawyer; and
15 (b) whether or not the practitioner holds a local practising
certificate; and
(c) whether or not the practitioner holds an interstate
practising certificate; and
(d) whether or not the practitioner resides or has an office in
20 this jurisdiction; and
(e) whether or not the person making a complaint about the
conduct resides, works or has an office in this
jurisdiction.
406. Application of Part to lawyers, former lawyers and former
25 practitioners
(1) This Part applies to Australian lawyers and former Australian
lawyers in relation to conduct occurring while they were
Australian lawyers, but not Australian legal practitioners, in the
same way as it applies to Australian legal practitioners and
30 former Australian legal practitioners, and so applies with any
necessary modifications.
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Complaints and discipline Part 13
Application Division 3
s. 407
(2) This Part applies to former Australian legal practitioners in
relation to conduct occurring while they were Australian legal
practitioners in the same way as it applies to persons who are
Australian legal practitioners, and so applies with any necessary
5 modifications.
407. Conduct to which this Part applies -- generally
(1) Subject to subsection (3), this Part applies to conduct of an
Australian legal practitioner occurring in this jurisdiction.
(2) This Part also applies to an Australian legal practitioner's
10 conduct occurring outside this jurisdiction but only --
(a) if it is part of a course of conduct that has occurred
partly in this jurisdiction and partly in another
jurisdiction, and either --
(i) the corresponding authority of each other
15 jurisdiction 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
20 (b) if it occurs in Australia but wholly outside this
jurisdiction and the practitioner concerned is a local
lawyer or a local legal practitioner, and either --
(i) the corresponding authority of each jurisdiction
in which the conduct has occurred consents to its
25 being dealt with under this Act; or
(ii) the complainant and the practitioner concerned
consent to its being dealt with under this Act;
or
(c) if --
30 (i) it occurs wholly or partly outside Australia; and
(ii) the practitioner concerned is a local lawyer or a
local legal practitioner.
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Part 13 Complaints and discipline
Division 3 Application
s. 408
(3) This Part does not apply to conduct occurring in this jurisdiction
if --
(a) the Complaints Committee consents to its being dealt
with under a corresponding law; or
5 (b) the complainant and the Australian legal practitioner
consent to its being dealt with under a corresponding
law.
(4) Subsection (3) does not apply if the conduct is not capable of
being dealt with under the corresponding law.
10 (5) The Complaints Committee may give consent for the purposes
of subsection (3)(a), and may do so conditionally or
unconditionally.
408. Conduct to which this Part applies -- insolvency, serious
offences and tax offences
15 (1) This Part applies to the following conduct of a local legal
practitioner whether occurring in Australia or elsewhere --
(a) conduct of the practitioner in respect of which there is a
conviction for --
(i) a serious offence; or
20 (ii) a tax offence; or
(iii) an offence involving dishonesty;
(b) conduct of the practitioner as or in becoming an
insolvent under administration;
(c) conduct of the practitioner in becoming disqualified
25 from managing or being involved in the management of
any corporation under the Corporations Act.
(2) This section has effect despite anything in section 407.
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Complaints and discipline Part 13
Complaints about Australian legal practitioners Division 4
s. 409
Division 4 -- Complaints about Australian legal practitioners
409. Complaints
(1) A complaint may be made under this Part about an Australian
legal practitioner's conduct to which this Part applies.
5 (2) A complaint may be made under this Part about the conduct of
an Australian legal practitioner occurring outside this
jurisdiction, but the complaint must not be dealt with under this
Part unless this Part is or becomes applicable to it.
(3) A complaint that is duly made is to be dealt with in accordance
10 with this Part.
410. Making of complaints
(1) A complaint about an Australian legal practitioner may be made
by --
(a) the Attorney General; or
15 (b) the Board; or
(c) the Executive Director of the Law Society in respect of
matters where the making of the complaint has been
authorised by a resolution of the Council of the Law
Society; or
20 (d) any legal practitioner; or
(e) any other person who has or had a direct personal
interest in the matters alleged in the complaint.
(2) A complaint may be made direct to the Complaints Committee
or through the Law Complaints Officer.
25 (3) A complaint should normally be in writing, but the Complaints
Committee or the Law Complaints Officer may formulate in
writing any oral complaint received.
(4) A complaint must --
(a) identify the complainant; and
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Part 13 Complaints and discipline
Division 4 Complaints about Australian legal practitioners
s. 411
(b) if possible, identify the Australian legal practitioner
about whom the complaint is made; and
(c) describe the alleged conduct the subject of the
complaint.
5 (5) A complaint may be made --
(a) by the complainant personally; or
(b) by an Australian legal practitioner with the authority of
the complainant; or
(c) where a person who might have been a complainant has
10 died or is otherwise unable to act, by or on behalf of that
person by a personal representative or any relative or
other representative of that person.
(6) A complaint may be made and dealt with even though the
Australian legal practitioner concerned is the subject of
15 proposed or current criminal or civil proceedings relating to the
subject matter of the complaint.
411. Time of complaint
(1) A complaint may be made about conduct of an Australian legal
practitioner irrespective of when the conduct is alleged to have
20 occurred.
(2) However, a complaint cannot be dealt with (otherwise than to
dismiss it or refer it to mediation) if the complaint is made more
than 6 years after the conduct is alleged to have occurred unless
the Complaints Committee determines that --
25 (a) it is just and fair to deal with the complaint having
regard to the delay and the reasons for the delay; or
(b) the complaint involves an allegation of professional
misconduct and it is in the public interest to deal with
the complaint.
30 (3) A determination under subsection (2) is final and cannot be
challenged in any proceedings by the complainant or the
Australian legal practitioner concerned.
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Complaints and discipline Part 13
Complaints about Australian legal practitioners Division 4
s. 412
412. Further information and verification
The Complaints Committee may require a complainant to do
either or both of the following --
(a) give further details about the complaint;
5 (b) verify any details about the complaint by statutory
declaration.
413. Practitioner to be notified of complaint
(1) The Complaints Commission must ensure that, as soon as
practicable after a complaint is made, written notice of the
10 making of the complaint, the nature of the complaint and the
identity of the complainant is given to the Australian legal
practitioner about whom the complaint is made.
(2) Subsection (1) does not apply if the Complaints Committee is of
the opinion that the giving of the notice will or is likely to --
15 (a) prejudice the investigation of the complaint; or
(b) prejudice an investigation by the police or other
investigatory or law enforcement body of any matter
with which the complaint is concerned; or
(c) place the complainant or another person at risk of
20 intimidation or harassment; or
(d) prejudice pending court proceedings.
(3) In a case in which subsection (2) applies, the Complaints
Committee --
(a) may postpone giving the practitioner a copy of the
25 complaint and notice about making submissions until of
the opinion that it is appropriate to do so; or
(b) may in its discretion --
(i) notify the practitioner of the general nature of the
complaint; and
30 (ii) inform the practitioner of the practitioner's right
to make submissions specifying the period within
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Part 13 Complaints and discipline
Division 4 Complaints about Australian legal practitioners
s. 414
which submissions may be made, if of the
opinion that the practitioner has sufficient
information to make submissions.
(4) The notice must also inform the practitioner of any action
5 already taken by the Complaints Committee in relation to the
complaint.
(5) The notice must also inform the practitioner of the practitioner's
right to make submissions to the Complaints Committee, unless
the Complaints Committee advises the practitioner that the
10 Complaints Committee has dismissed or intends to dismiss the
complaint.
(6) Nothing in this section requires the Complaints Committee to
give written notice under this section to the practitioner until the
Complaints Committee has had time to consider the complaint,
15 seek further information about the complaint from the
complainant or otherwise undertake preliminary inquiries into
the complaint, and properly prepare the notice.
414. Submissions by practitioner
(1) The Australian legal practitioner about whom a complaint is
20 made may, within a period specified by the Complaints
Committee, make submissions to the Complaints Committee
about the complaint or its subject matter or both.
(2) The Complaints Committee may at its discretion extend the
period in which submissions may be made.
25 (3) The Complaints Committee must consider the submissions
made within the permitted period before deciding what action is
to be taken in relation to the complaint.
415. Summary dismissal of complaints
(1) The Complaints Committee may dismiss a complaint if --
30 (a) further details are not given, or the details of the
complaint are not verified, as required by the
Complaints Committee under section 412; or
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Complaints and discipline Part 13
Complaints about Australian legal practitioners Division 4
s. 416
(b) the complaint is vexatious, misconceived, frivolous or
lacking in substance; or
(c) the conduct complained about is the subject of another
complaint; or
5 (d) it is not in the public interest to deal with the complaint
having regard to the fact that the name of the Australian
legal practitioner to whom the complaint relates has
already been removed from any Australian roll on which
the practitioner was enrolled.
10 (2) The Complaints Committee 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 411 in
relation to the complaint; or
15 (b) the conduct complained about has been the subject of a
previous complaint that has been dismissed; or
(c) the complaint is not one that the Complaints Committee
has power to deal with.
(3) The Complaints Committee may dismiss a complaint under this
20 section without completing an investigation if, having
considered the complaint, the Complaints Committee forms the
view that the complaint requires no further investigation.
416. Withdrawal of complaint
(1) A complaint may, subject to this section, be withdrawn by the
25 complainant.
(2) Withdrawal of a complaint may be effected by oral or written
communication to the Complaints Committee or the Law
Complaints Officer.
(3) If a complaint is withdrawn orally and the withdrawal is not
30 confirmed in writing, the Complaints Committee must --
(a) make a written record of the withdrawal; and
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Part 13 Complaints and discipline
Division 4 Complaints about Australian legal practitioners
s. 416
(b) give the complainant a copy of the record, or send a
copy of it addressed to the complainant at the
complainant's address last known to the Complaints
Committee.
5 (4) A complaint may be withdrawn even though the Complaints
Committee has commenced or completed an investigation of the
complaint, but cannot be withdrawn if the complaint has been
referred to the State Administrative Tribunal.
(5) If a complaint is made by a person other than the Attorney
10 General, the Board or the Executive Director of the Law
Society, a further complaint about the matter that is the subject
of the withdrawn complaint cannot be made unless the
Complaints Committee is satisfied that it is appropriate to do so
in the circumstances.
15 (6) If the complaint is duly withdrawn, no further action is to be
taken under this Part with respect to the complaint unless the
Complaints Committee is satisfied that investigation or further
investigation of the complaint is justified in the particular
circumstances.
20 (7) Withdrawal of a complaint does not prevent --
(a) the Attorney General, the Board or the Executive
Director of the Law Society making a complaint or
further complaint about the matter the subject of the
withdrawn complaint (whether or not after investigation
25 or further investigation referred to in subsection (6)); or
(b) action being taken on any other complaint made with
respect to that matter.
(8) This section extends to the withdrawal of a complaint so far as it
relates to some only or part only of the matters that form the
30 subject of the complaint.
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Complaints and discipline Part 13
Mediation Division 5
s. 417
Division 5 -- Mediation
417. Mediation of complaints
(1) If the Complaints Committee considers that a complaint is
capable of resolution by mediation, the Complaints Committee
5 may suggest to the complainant and the Australian legal
practitioner to whom the complaint relates that they enter into a
process of mediation.
(2) Subsection (1) does not apply to a complaint if the Complaints
Committee considers that the practitioner would be likely to be
10 found guilty of professional misconduct if proceedings were
instituted in the State Administrative Tribunal with respect to
the complaint.
(3) This section extends to a complaint so far as it relates to some
only or part only of the matters that form the subject of the
15 complaint.
418. Facilitation of mediation
If the complainant and the Australian legal practitioner agree to
enter into a process of mediation under this Division in
connection with a complaint the Complaints Committee may
20 facilitate the mediation to the extent it considers appropriate.
419. Admissibility of evidence and documents
(1) The following are not admissible in any proceedings in a court
or before a person or body authorised to hear and receive
evidence --
25 (a) evidence of anything said or admitted during a
mediation or attempted mediation under this Division of
the whole or a part of the matter that is subject of a
complaint;
(b) a document prepared for the purposes of the mediation
30 or attempted mediation.
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Part 13 Complaints and discipline
Division 6 Investigation by Complaints Committee
s. 420
(2) Subsection (1) does not apply to an agreement reached during
mediation.
420. Order following mediation
(1) If, following mediation, the parties reach agreement with
5 respect to the subject matter of the complaint, the Complaints
Committee may, with the consent of each of the parties to the
agreement, by order give effect to the agreement.
(2) An order referred to in subsection (1) --
(a) is final and binding on the parties; and
10 (b) may include any provision that might have been ordered
under this Part by the State Administrative Tribunal; and
(c) may be enforced as if it were an order of the State
Administrative Tribunal.
Division 6 -- Investigation by Complaints Committee
15 421. Investigations
(1) The Complaints Committee may, on its own initiative,
investigate the conduct of an Australian legal practitioner if the
Complaints Committee has reasonable cause to suspect the
practitioner has been guilty of unsatisfactory professional
20 conduct or professional misconduct.
(2) The Complaints Committee must investigate each complaint.
(3) Subsection (2) does not apply to --
(a) a complaint that is referred to the State Administrative
Tribunal; or
25 (b) a complaint that is dismissed or withdrawn under this
Part; or
(c) a complaint to the extent that it is the subject of
mediation under this Part.
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Complaints and discipline Part 13
Decision of Complaints Committee Division 7
s. 422
422. Application of Part 15
Part 15 applies to an investigation under section 421.
423. Referral of matters for costs assessment
(1) For the purpose of an investigation under section 421, the
5 Complaints Committee may refer a matter to a taxing officer for
assessment of costs charged or claimed by an Australian legal
practitioner.
(2) Any such referral may be made outside the 12 month period
referred to in section 295.
10 (3) Subject to this section, Part 10 Division 8 applies to an
assessment referred under subsection (1) as if the Complaints
Committee were a client of the practitioner.
Division 7 -- Decision of Complaints Committee
424. Decision of Complaints Committee after investigation
15 (1) After an investigation under section 421 is completed, the
Complaints Committee must --
(a) in the case of the investigation of a complaint, dismiss
the complaint under section 425 or, in the case of an
investigation on the initiative of the Complaints
20 Committee, decide to take no further action; or
(b) take action under section 426; or
(c) refer the matter to the State Administrative Tribunal
under section 428.
(2) Nothing in this section affects section 416.
25 425. Dismissal of complaint
After an investigation of a complaint against an Australian legal
practitioner is completed, the Complaints Committee may
dismiss the complaint if satisfied that --
(a) there is no reasonable likelihood that the practitioner
30 would be found guilty by the State Administrative
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Part 13 Complaints and discipline
Division 7 Decision of Complaints Committee
s. 426
Tribunal of either unsatisfactory professional conduct or
professional misconduct; or
(b) it is in the public interest to do so.
426. Summary conclusion of complaint procedure
5 (1) This section applies if --
(a) the Complaints Committee --
(i) completes an investigation into the conduct of an
Australian legal practitioner; and
(ii) is satisfied that there is a reasonable likelihood
10 that the practitioner would be found guilty by the
State Administrative Tribunal of unsatisfactory
professional conduct (but not professional
misconduct); and
(iii) is satisfied that the practitioner is generally
15 competent and diligent; and
(iv) is satisfied that the taking of action under this
section is justified having regard to all the
circumstances of the case (including the
seriousness of the conduct concerned) and to
20 whether any other substantiated complaints have
been made against the practitioner;
and
(b) the Australian legal practitioner concerned consents to
the exercise of power by the Complaints Committee
25 under this section.
(2) If this section applies, the Complaints Committee may do any
one or more of the following --
(a) publicly reprimand the practitioner or, if there are
special circumstances, privately reprimand the
30 practitioner;
(b) order the practitioner to pay to the Board a fine of a
specified amount not exceeding $2 500;
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Complaints and discipline Part 13
Decision of Complaints Committee Division 7
s. 427
(c) make a compensation order;
(d) order that the practitioner seek and implement, within a
period specified in the order, advice from the Board, or
from a person specified in the order, in relation to the
5 management and conduct of the practitioner's practice,
or the specific part or aspect of the practice specified in
the order.
(3) If action is taken under subsection (2) in relation to a matter, no
further action is to be taken under this Part with respect to the
10 matter.
(4) An order made by the Complaints Committee may be enforced
as if it were an order of the State Administrative Tribunal.
427. Record of decision
The Complaints Committee must cause a record of each
15 decision under section 424, together with reasons for the
decision, to be kept in respect of each investigation under
section 421.
428. Referrals to State Administrative Tribunal
(1) If the Complaints Committee determines that a matter should be
20 heard by the State Administrative Tribunal the Committee may
refer the matter to the Tribunal.
(2) The Complaints Committee is not limited under subsection (1)
by the terms of any complaint it has received or by the subject
matter of any investigation it has conducted and is not required
25 to conduct an investigation before referring a matter to the State
Administrative Tribunal.
429. Costs
(1) The Complaints Committee may make an order requiring an
Australian legal practitioner to pay all or any specified part of
30 the costs of either or both the complainant and the Complaints
Committee in relation to an investigation under this Part.
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Part 13 Complaints and discipline
Division 8 General procedural matters
s. 430
(2) An order may be made under subsection (1) even where no
finding is made against the Australian legal practitioner, if the
Complaints Committee is of the opinion that the conduct of the
Australian legal practitioner gave reasonable cause for the
5 investigation.
Division 8 -- General procedural matters
430. Procedure
(1) The rules of procedural fairness, to the extent that they are not
inconsistent with the provisions of this Act, apply in relation to
10 the Complaints Committee's procedures under section 426.
(2) The Complaints Committee is not bound by the rules of
evidence but may inform itself on any matter in any manner it
sees fit.
431. Duty to deal with complaints efficiently and expeditiously
15 It is the duty of the Complaints Committee to deal with
complaints as efficiently and expeditiously as is practicable.
432. Complainant and practitioner to be informed of action
taken
(1) If a complaint has been made about an Australian legal
20 practitioner or the Complaints Committee has decided to initiate
an investigation under section 421, the Complaints Committee
must notify the complainant and the Australian legal
practitioner of --
(a) a decision under section 424(1)(a) in relation to the
25 matter; or
(b) a decision under section 426 in relation to the matter; or
(c) a decision to refer the matter to the State Administrative
Tribunal.
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Complaints and discipline Part 13
General procedural matters Division 8
s. 433
(2) In the case of a decision under section 424(1)(a) or 426 the
notice must include --
(a) a statement of reasons from the Complaints Committee
in relation to the decision; and
5 (b) notification of the right of the complainant, if any, to
apply to the State Administrative Tribunal for a review
of the decision.
433. Parties
(1) The parties to proceedings before the Complaints Committee
10 are --
(a) the Australian legal practitioner against whom the
complaint has been made or in respect of whom the
Complaints Committee has initiated an investigation;
and
15 (b) the complainant.
(2) The Complaints Committee may grant leave to a party and any
other person to appear before it if satisfied that it is appropriate
for that person to so appear.
(3) A person who is granted leave to so appear may appear
20 personally or be represented by an Australian legal practitioner
or, with the leave of the Complaints Committee, by any other
person.
434. Proceedings generally not to be public
(1) Subject to subsection (2), proceedings before the Complaints
25 Committee must not be held in public.
(2) The Complaints Committee in a particular case may
determine --
(a) that the whole or part of the proceeding is to be
conducted in public; or
30 (b) who, other than the parties and their representatives,
may be present before it at any stage of the proceeding.
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Part 13 Complaints and discipline
Division 9 Immediate suspension of local practising certificate
s. 435
435. Review of Complaints Committee decision
(1) Subject to subsection (2), a person aggrieved by --
(a) a decision of the Complaints Committee to dismiss a
complaint; or
5 (b) a decision made by the Complaints Committee under
section 426,
may apply to the State Administrative Tribunal for a review of
the decision.
(2) If the Complaints Committee, in its reasons for its decision,
10 specifically finds the complaint --
(a) to be trivial, unreasonable, vexatious or frivolous; or
(b) in the case of a complaint purporting to be made under
section 410(1)(e), to be a matter in which the
complainant does not have, or did not have, a direct
15 personal interest,
the person aggrieved cannot apply to the State Administrative
Tribunal for a review of the decision without the leave of the
Tribunal.
Division 9 -- Immediate suspension of local
20 practising certificate
436. Interim restrictions on practice
(1) The Complaints Committee may apply to the State
Administrative Tribunal for --
(a) an order that an Australian legal practitioner's local
25 practising certificate be suspended for a specified
period; or
(b) an order that specified conditions be imposed on an
Australian legal practitioner's practising certificate
restricting the entitlement of an Australian legal
30 practitioner to practise for a specified period,
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s. 437
pending --
(c) investigation, and determination or referral of a
complaint or matter, by the Complaints Committee; or
(d) the hearing of a referral by the State Administrative
5 Tribunal; or
(e) an appeal against a decision of the State Administrative
Tribunal.
(2) On an application under subsection (1), the State Administrative
Tribunal may, in addition to or instead of any other order it may
10 make under subsection (1), make an order under Part 14 as if the
application were an application by the Board.
Division 10 -- Proceedings in State Administrative Tribunal
437. Constitution of State Administrative Tribunal under
this Act
15 (1) Subject to subsection (2), for the purpose of exercising
jurisdiction conferred under this Act, the State Administrative
Tribunal is to be constituted by 3 members, as follows --
(a) by --
(i) the President of the Tribunal; and
20 (ii) a Deputy President of the Tribunal or a senior
member who is a legally qualified member as
defined in the State Administrative Tribunal
Act 2004 section 3(1); and
(iii) a person who is not a legal practitioner but has
25 knowledge and understanding of the interests of
a person dealing with a legal practitioner;
or
(b) by --
(i) a Deputy President of the Tribunal; and
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s. 438
(ii) a senior member who is a legally qualified
member as defined in the State Administrative
Tribunal Act 2004 section 3(1); and
(iii) a person who is not a legal practitioner but has
5 knowledge and understanding of the interests of
a person dealing with a legal practitioner.
(2) In a hearing for the purposes of section 443 or a directions
hearing or other procedural hearing, the State Administrative
Tribunal is to be constituted by, or so as to include, the
10 President or a Deputy President of the Tribunal.
438. Jurisdiction of State Administrative Tribunal
(1) The State Administrative Tribunal has jurisdiction to make a
finding that an Australian legal practitioner has engaged in
unsatisfactory professional conduct or professional misconduct.
15 (2) If, after it has completed a hearing in relation to a referral under
this Part in respect of an Australian legal practitioner, the State
Administrative Tribunal is satisfied that the practitioner is guilty
of unsatisfactory professional conduct or professional
misconduct, the Tribunal may --
20 (a) make and transmit a report on the finding to the
Supreme Court (full bench); or
(b) make any one or more of the orders specified in
section 439, 440 and 441.
(3) If the State Administrative Tribunal transmits a report in respect
25 of a legal practitioner to the Supreme Court (full bench) under
subsection (2)(a), the Tribunal may, pending the determination
of the Supreme Court (full bench), make the following orders --
(a) an order that the Australian legal practitioner's local
practising certificate be suspended for a specified
30 period;
(b) an order that specified conditions be imposed on an
Australian legal practitioner's local practising certificate
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s. 439
restricting the entitlement of an Australian legal
practitioner to practise for a specified period.
(4) Where appropriate, a report forwarded under subsection (2)(a)
may include either or both of the following --
5 (a) a record of the evidence taken at the hearing;
(b) a recommendation that the name of the practitioner be
removed from the local roll.
439. Orders requiring official implementation in this jurisdiction
The State Administrative Tribunal may, under
10 section 438(2)(b), make any one or more of the following
orders --
(a) an order that the practitioner's local practising certificate
be suspended for a specified period or cancelled;
(b) an order that a local practising certificate not be granted
15 to the practitioner before the end of a specified period;
(c) an order that --
(i) specified conditions be imposed on the
practitioner's practising certificate granted or to
be granted under this Act; and
20 (ii) the conditions be imposed for a specified time;
and
(iii) specifies the time (if any) after which the
practitioner may apply to the Tribunal for the
conditions to be amended or removed;
25 (d) an order publicly reprimanding the practitioner or, if
there are special circumstances, privately reprimanding
the practitioner.
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Division 10 Proceedings in State Administrative Tribunal
s. 440
440. Orders requiring official implementation in another
jurisdiction
The State Administrative Tribunal may, under
section 438(2)(b), make any one or more of the following
5 orders --
(a) an order recommending that the name of the practitioner
be removed from an interstate roll;
(b) an order recommending that the practitioner's interstate
practising certificate be suspended for a specified period
10 or cancelled;
(c) an order recommending that an interstate practising
certificate not be granted to the practitioner before the
end of a specified period;
(d) an order recommending that --
15 (i) specified conditions be imposed on the
practitioner's interstate practising certificate, or
existing conditions be amended; and
(ii) the conditions be imposed or amended for a
specified time; and
20 (iii) the conditions specify the time (if any) after
which the practitioner may apply to the Tribunal
for the conditions to be amended or removed.
441. Orders requiring compliance by practitioner
The State Administrative Tribunal may, under
25 section 438(2)(b), make any one or more of the following
orders --
(a) an order that the practitioner pay a fine to the Board of a
specified amount not exceeding $25 000;
(b) an order that the practitioner undertake and complete a
30 specified course of further legal education;
(c) a compensation order;
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s. 442
(d) an order that the complainant pay the amount of legal
costs in dispute or that the amount of legal costs be
reduced by a specified amount (not exceeding the
amount in dispute);
5 (e) an order that the practitioner provide specified legal
services to the complainant either free of charge or at a
specified cost;
(f) an order that the practitioner undertake a specified
period of practice under specified supervision;
10 (g) an order that the practitioner do or refrain from doing
something in connection with the practice of law;
(h) an order that the practitioner's practice, or the financial
affairs of the practitioner or of the practitioner's
practice, be conducted for a specified period in a
15 specified way or subject to specified conditions;
(i) an order that the practitioner's practice be subject to
periodic inspection for a specified period;
(j) an order that the practitioner undergo counselling or
medical treatment or act in accordance with medical
20 advice given to the practitioner;
(k) an order that the practitioner use the services of an
accountant or other financial specialist in connection
with the practitioner's practice;
(l) an order that the practitioner seek advice in relation to
25 the management of the practitioner's practice from a
specified person;
(m) an order that the practitioner not apply for a local
practising certificate before the end of a specified
period.
30 442. Alternative finding
The State Administrative Tribunal may find a person guilty of
unsatisfactory professional conduct even though the referral
alleged professional misconduct.
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Division 10 Proceedings in State Administrative Tribunal
s. 443
443. Interlocutory and interim orders
(1) The State Administrative Tribunal may make interlocutory or
interim orders as it thinks fit before making its final decision
about a complaint against an Australian legal practitioner.
5 (2) Without limiting subsection (1), orders of the kind referred to in
sections 439, 440 and 441 may be made as interlocutory or
interim orders.
444. Court may punish
(1) If the State Administrative Tribunal under section 438(2)(a)
10 makes and transmits a report in respect of an Australian legal
practitioner to the Supreme Court (full bench), the report is to
be taken to be conclusive as to all facts and findings mentioned
or contained in the report.
(2) The Supreme Court (full bench) may, upon motion and upon
15 reading the report, and without any further evidence do either or
both of the following --
(a) make any order that the State Administrative Tribunal
may make under sections 439, 440 and 441;
(b) order the removal from the roll of the name of an
20 Australian legal practitioner who is a local lawyer.
(3) The Supreme Court (full bench) may make such order as to the
payment of costs by the legal practitioner as the Court thinks fit.
445. Official notification to Board and Complaints Committee of
removals from local roll
25 (1) This section applies if a person's name is removed from the
local roll.
(2) The Principal Registrar must, as soon as practicable, give
written notice of the removal to the Board and the Complaints
Committee.
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Proceedings in State Administrative Tribunal Division 10
s. 446
(3) The notice must state --
(a) the person's name and address as last known to the
Principal Registrar; and
(b) the date the person's name was removed from the roll;
5 and
(c) the reason for removing the person's name.
(4) The notice may contain other relevant information.
446. Compliance with orders
(1) Persons and bodies having relevant powers or functions under
10 this Act must --
(a) give effect to the following orders --
(i) any order of the State Administrative Tribunal
under section 439, or the Supreme Court (full
bench) under section 444 so far as it is an order
15 of the kind referred to in section 439 or
otherwise needs to be, or is capable of being,
given effect to in this jurisdiction;
(ii) any interlocutory or interim order of the State
Administrative Tribunal made under section 443
20 so far as it is an order of the kind referred to in
section 439 or otherwise needs to be, or is
capable of being, given effect to in this
jurisdiction;
and
25 (b) enforce the following orders (to the extent that they
relate to the practitioner's practice of law in this
jurisdiction) --
(i) any order of the State Administrative Tribunal
made under section 441, or the Supreme Court
30 (full bench) under section 444 so far as it is an
order of the kind referred to in section 441 or
otherwise needs to be, or is capable of being,
given effect to in this jurisdiction;
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Division 10 Proceedings in State Administrative Tribunal
s. 446
(ii) any interlocutory or interim order of the State
Administrative Tribunal made under section 443
so far as it is an order of the kind referred to in
section 441 or otherwise needs to be, or is
5 capable of being, given effect to in this
jurisdiction.
(2) The Complaints Committee must ensure that persons and bodies
having relevant powers or functions under a corresponding law
of another jurisdiction are notified of the making and contents
10 of --
(a) the following orders --
(i) any order of the State Administrative Tribunal
under section 440 in relation to that
corresponding law;
15 (ii) any interlocutory or interim order of the State
Administrative Tribunal made under section 443
so far as it is an order of the kind referred to in
section 440 or otherwise needs to be, or is
capable of being, given effect to in the other
20 jurisdiction;
and
(b) the following orders (to the extent that they relate to the
practitioner's practice of law in the other jurisdiction) --
(i) any order of the State Administrative Tribunal
25 made under section 441;
(ii) any interlocutory or interim order of the State
Administrative Tribunal made under section 443
so far as it is an order of the kind referred to in
section 441 or otherwise needs to be, or is
30 capable of being, given effect to in the other
jurisdiction.
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Complaints and discipline Part 13
Compensation Division 11
s. 447
447. Other remedies not affected
This Division does not affect any other remedy available to a
complainant.
Division 11 -- Compensation
5 448. Compensation orders
(1) A compensation order is an order made to compensate a person
(the "aggrieved person") for loss suffered because of conduct
of an Australian legal practitioner that is the subject of a
complaint by that person or is investigated by the Complaints
10 Committee of its own initiative.
(2) A compensation order consists of one or more of the
following --
(a) an order that the practitioner cannot recover or must
repay the whole or a specified part of the amount
15 charged to the aggrieved person by the practitioner in
respect of specified legal services;
(b) an order discharging a lien possessed by the practitioner
in respect of a specified document or class of
documents;
20 (c) an order that the practitioner pay to the aggrieved
person, by way of monetary compensation for the loss, a
specified amount.
(3) A compensation order under subsection (2)(a) preventing
recovery of an amount is effective even if proceedings to
25 recover the amount (or any part of it) have been commenced by
or on behalf of the practitioner.
(4) A compensation order under subsection (2)(a) requiring
repayment of an amount is effective even if a court has ordered
payment of the amount (or an amount of which it is part) in
30 proceedings brought by or on behalf of the practitioner.
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Division 11 Compensation
s. 449
(5) A compensation order under subsection (2)(c) requiring
payment of an amount exceeding --
(a) $25 000, except where paragraph (b) applies; or
(b) $10 000, where the order is made by the Complaints
5 Committee,
is not to be made unless the aggrieved person and the
practitioner both consent to the order.
449. Prerequisites to making of compensation orders
(1) Unless the aggrieved person and the Australian legal
10 practitioner concerned agree, a compensation order is not to be
made unless the Complaints Committee or State Administrative
Tribunal is satisfied --
(a) that the aggrieved person has suffered loss because of
the conduct concerned; and
15 (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 aggrieved person has received or is entitled to
receive --
(a) compensation received or receivable under an order that
20 has been made by a court; or
(b) compensation paid or payable from the Guarantee Fund
or from a fidelity fund of any jurisdiction, where a
relevant claim for payment from the fund has been made
or determined.
25 450. Effect on other remedies
The recovery of compensation awarded under this Part does not
affect any other remedy available to an aggrieved person, but
any compensation so awarded is to be taken into account in any
other proceedings by or on behalf of the aggrieved person in
30 respect of the same loss.
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Complaints and discipline Part 13
Publicising disciplinary action Division 12
s. 451
Division 12 -- Publicising disciplinary action
451. Definitions
In this Division --
"disciplinary action" means --
5 (a) the making of an order by a court or tribunal for or
following a finding of unsatisfactory professional
conduct or professional misconduct by an Australian
legal practitioner under this Act or a corresponding
law; or
10 (b) any one of the following actions taken under this Act
or under a corresponding law, following a finding by
a court or tribunal of professional misconduct by an
Australian legal practitioner --
(i) removal of the name of the practitioner from
15 an Australian roll;
(ii) the suspension or cancellation of the
Australian practising certificate of the
practitioner;
(iii) the refusal to grant or renew an Australian
20 practising certificate to the practitioner;
(iv) the appointment of a receiver of all or any of
the practitioner's property or the appointment
of a manager of the practitioner's practice;
"Register" means the Register of Disciplinary Action referred
25 to in section 452.
452. Register of Disciplinary Action
(1) The Board is to keep a register (in this Act referred to as the
"Register of Disciplinary Action") of --
(a) disciplinary action taken under this Act against
30 Australian legal practitioners; and
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Division 12 Publicising disciplinary action
s. 452
(b) disciplinary action taken under a corresponding law
against Australian legal practitioners who are or were
enrolled or practising in this jurisdiction when the
conduct that is the subject of the disciplinary action
5 occurred.
(2) The Register is to include --
(a) the full name of the person against whom the
disciplinary action was taken; and
(b) the person's business address or former business
10 address; and
(c) the person's home jurisdiction or most recent home
jurisdiction; and
(d) particulars of the disciplinary action taken; and
(e) other particulars prescribed by the regulations.
15 (3) The Register may be kept in a form determined or identified by
the Board and form part of other registers.
(4) The Register is to be made available for public inspection on --
(a) the internet site of the Board; or
(b) an internet site identified on the internet site of the
20 Board.
(5) Information recorded on the Register may be provided to
members of the public in any other manner approved by the
Board.
(6) The Board may cause any error in or omission from the Register
25 to be corrected.
(7) The requirement to keep the Register applies only in relation to
disciplinary action taken after the commencement of this
section, but details relating to earlier disciplinary action may be
included in the Register.
30 (8) The Complaints Committee, the State Administrative Tribunal
and the Principal Registrar must provide to the Board sufficient
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Publicising disciplinary action Division 12
s. 453
information to enable the Board to exercise the Board's
functions in respect of the Register.
453. Other means of publicising disciplinary action
(1) The Board may publicise disciplinary action taken against an
5 Australian legal practitioner in any manner the Board thinks fit.
(2) Nothing in this section affects the provisions of this Division
relating to the Register.
454. Quashing of disciplinary action
(1) If disciplinary action is quashed on appeal or review, any
10 reference to that disciplinary action must be removed from the
Register.
(2) If disciplinary action is quashed on appeal or review after the
action was publicised by the Board under section 453, the result
of the appeal or review must be publicised with equal
15 prominence by the Board.
455. Liability for publicising disciplinary action
(1) In this section --
"protected person" means --
(a) the State; or
20 (b) the Board; or
(c) a person responsible for keeping the whole or any
part of the Register; or
(d) an internet service provider or internet content host;
or
25 (e) a member of staff of, or a person acting at the
direction of, an authority of the State or any person or
body referred to in this definition.
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Division 12 Publicising disciplinary action
s. 456
(2) No liability is incurred by a protected person in respect of
anything done or omitted to be done in good faith for the
purpose of --
(a) publicising disciplinary action against an Australian
5 legal practitioner; or
(b) exercising powers or functions of the Board under this
Division; or
(c) keeping, publishing or enabling access to the Register.
(3) Without limiting subsection (2), no liability (including liability
10 in defamation) is incurred by a protected person publishing in
good faith --
(a) information about disciplinary action --
(i) recorded in the Register; or
(ii) otherwise publicised by the Board under this
15 Part,
or matter purporting to contain information of that kind
where the matter is incorrect in any respect; or
(b) a fair report or summary of that information.
456. Disciplinary action taken because of infirmity, injury or
20 illness
(1) Disciplinary action taken because of infirmity, injury or mental
or physical illness is not to be recorded in the Register or
otherwise publicised under this Division.
(2) Subsection (1) does not apply where the disciplinary action
25 involves --
(a) the suspension or cancellation of the person's Australian
practising certificate; or
(b) a refusal to grant or renew an Australian practising
certificate applied for by the person; or
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Inter-jurisdictional provisions Division 13
s. 457
(c) a restriction or prohibition on the person's right to
engage in legal practice,
but in that case the reason for the disciplinary action, and any
other information relating to the infirmity, injury or mental or
5 physical illness, is not to be recorded in the Register or
otherwise publicised under this Division without the person's
consent.
457. Effect of secrecy provisions and non-disclosure orders
(1) The provisions of this Division are subject to any order made
10 by --
(a) the State Administrative Tribunal in relation to
disciplinary action taken under this Part; or
(b) a corresponding disciplinary body in relation to
disciplinary action taken under provisions of a
15 corresponding law that correspond to this Part; or
(c) a court or tribunal of this or another jurisdiction,
so far as the order prohibits or restricts the disclosure of
information.
(2) Despite subsection (1), the name and other identifying
20 particulars of the person against whom the disciplinary action
was taken, and the kind of disciplinary action taken, must be
recorded in the Register in accordance with the requirements of
this Part and may be otherwise publicised under this Part.
Division 13 -- Inter-jurisdictional provisions
25 458. Conduct protocols
(1) The Complaints Committee may enter into arrangements
("conduct protocols") with corresponding authorities for or
with respect to investigating and dealing with conduct that
appears to have occurred in more than one jurisdiction.
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Division 13 Inter-jurisdictional provisions
s. 459
(2) In particular, the conduct protocols may make provision for or
with respect to --
(a) providing principles to assist in determining where
conduct occurs, either generally or in specified classes
5 of cases; and
(b) giving and receiving consent for conduct occurring in a
jurisdiction to be dealt with under a law of another
jurisdiction; and
(c) the procedures to be adopted for requesting and
10 conducting the investigation of any aspect of complaints
under this Division.
459. Request to another jurisdiction to investigate complaint or
conduct
(1) The Complaints Committee may request a corresponding
15 authority to arrange for the investigation of any aspect of a
complaint being dealt with by the Complaints Committee, or
any aspect of the conduct of an Australian legal practitioner
being investigated by the Complaints Committee in the absence
of a complaint, and to provide a report on the result of the
20 investigation.
(2) A report on the result of the investigation received from --
(a) the corresponding authority; or
(b) a person or body authorised by the corresponding
authority to conduct the investigation,
25 may be used and taken into consideration by the Complaints
Committee and the State Administrative Tribunal in the course
of dealing with the complaint or conduct under this Part.
460. Request from another jurisdiction to investigate complaint
or conduct
30 (1) This section applies in relation to a request received by the
Complaints Committee from a corresponding authority to
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Inter-jurisdictional provisions Division 13
s. 461
arrange for the investigation of any aspect of a complaint being
dealt with under a corresponding law.
(2) The Complaints Committee may conduct the investigation or
authorise another local regulatory authority to conduct it.
5 (3) The provisions of this Part relating to the investigation of a
complaint apply, with any necessary adaptations, in relation to
the investigation of the relevant aspect of the complaint that is
the subject of the request.
(4) The Complaints Committee must provide a report on the result
10 of the investigation to the corresponding authority.
461. Sharing of information with corresponding authorities
The Complaints Committee may enter into arrangements with a
corresponding authority for providing information to the
corresponding authority about --
15 (a) complaints and investigations under this Part; and
(b) any action taken with respect to any complaints made or
investigations conducted under this Part, including
determinations of the Complaints Committee, the State
Administrative Tribunal or the Supreme Court under
20 this Part.
462. Cooperation with other authorities
(1) When dealing with a complaint or conducting an investigation,
the Complaints Committee may consult and cooperate with
another person or body (whether in or of Australia or a foreign
25 country) who or which has or may have relevant information or
powers in relation to the person against whom the complaint
was made or the person under investigation.
(2) For the purposes of subsection (1), the Complaints Committee
may exchange information concerning the complaint or
30 investigation.
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Division 13 Inter-jurisdictional provisions
s. 463
463. Compliance with recommendations or orders made under
corresponding laws
(1) Persons and bodies having relevant functions under this Act
must --
5 (a) give effect to or enforce any recommendation or order of
a corresponding disciplinary body or other
corresponding authority made under a corresponding
law in relation to powers exercisable under this Act; and
(b) give effect to or enforce any recommendation or order of
10 a corresponding disciplinary body or other
corresponding authority made under a corresponding
law so far as the recommendation or order relates to the
practice of law by the Australian legal practitioner
concerned in this jurisdiction.
15 (2) If a corresponding disciplinary body makes a recommendation
or order recommending that a person's name be removed from
the roll of lawyers under this Act, the Supreme Court (full
bench) may order the removal of the name from the roll.
(3) If a corresponding disciplinary body makes an order that an
20 Australian legal practitioner pay an amount (whether as a fine or
otherwise), a copy of the order may be filed in the appropriate
court and the order may be enforced as if it were an order of that
court.
(4) In subsection (3) --
25 "appropriate court" means a court having jurisdiction to
enforce a debt of the same amount as the amount ordered to
be paid.
464. Other powers or functions not affected
Nothing in this Division affects any functions or powers that a
30 person or body has apart from this Division.
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Complaints and discipline Part 13
Miscellaneous Division 14
s. 465
Division 14 -- Miscellaneous
465. Jurisdiction of Supreme Court
The inherent jurisdiction and powers of the Supreme Court with
respect to the control and discipline of local lawyers are not
5 affected by anything in this Part and extend to --
(a) local legal practitioners; and
(b) interstate legal practitioners engaged in legal practice in
this jurisdiction.
466. Failure to comply with orders
10 A person who contravenes an order of --
(a) the Complaints Committee; or
(b) the State Administrative Tribunal exercising jurisdiction
under this Act; or
(c) the Supreme Court exercising jurisdiction under this
15 Act; or
(d) a corresponding disciplinary body under a
corresponding law,
is not entitled to apply for the grant or renewal of a local
practising certificate while the contravention continues.
20 467. Confidentiality of client communications
An Australian legal practitioner must comply with a
requirement under this Part to answer a question or to produce
information or a document, despite any duty of confidentiality
in respect of a communication between the practitioner and a
25 client.
468. Claims of privilege
If, in any investigation or proceedings under this Part, a person
properly claims privilege in respect of any information --
(a) the Complaints Committee or the State Administrative
30 Tribunal may require that person to disclose that
information; and
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Part 13 Complaints and discipline
Division 14 Miscellaneous
s. 469
(b) if any information adverse to the interests of that person
is then disclosed, no question or answer relating to that
information may be used in or in connection with any
procedures or proceedings other than --
5 (i) those relating to the complaint or investigation
concerned; or
(ii) those resulting from a report or disclosure under
section 589.
469. Waiver of privilege or duty of confidentiality
10 (1) If a client of an Australian legal practitioner makes a complaint
about the practitioner, the complainant is taken to have waived
legal professional privilege, or the benefit of any duty of
confidentiality, to enable the practitioner to disclose to the
Complaints Committee or the State Administrative Tribunal any
15 information necessary for dealing with or investigating the
complaint.
(2) Without limiting subsection (1), any information so disclosed
may be used in or in connection with any procedures or
proceedings relating to the complaint.
page 326
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External intervention Part 14
Preliminary Division 1
s. 470
Part 14 -- External intervention
Division 1 -- Preliminary
470. Purposes
(1) The purpose of this Part is to ensure that an appropriate range of
5 options is available for intervention in the business and
professional affairs of law practices and Australian-registered
foreign lawyers for the purpose of protecting the interests of --
(a) the general public; and
(b) clients; and
10 (c) lawyers, including the owners and employees of law
practices, so far as their interests are not inconsistent
with those of the general public and clients.
(2) It is intended that interventions occur consistently with --
(a) similar interventions in other jurisdictions, especially
15 where a law practice operates in this jurisdiction and one
or more other jurisdictions; and
(b) other provisions of this Act.
471. Definitions
In this Part --
20 "external intervener" means a supervisor, manager or receiver
under this Part;
"external intervention" means the appointment of, and the
exercise of the functions of, a supervisor, manager or
receiver under this Part;
25 "regulated property", in relation to a law practice, means the
following --
(a) trust money or trust property received, receivable or
held by the practice;
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Part 14 External intervention
Division 1 Preliminary
s. 472
(b) interest, dividends or other income or anything else
derived from or acquired with money or property
referred to in paragraph (a);
(c) documents or records of any description relating to
5 anything referred to in paragraph (a) or (b);
(d) any computer hardware or software, or other device,
in the custody or control of the practice or an
associate of the practice by which any records
referred to in paragraph (c) may be produced or
10 reproduced in visible form.
472. Application of Part to Australian-registered foreign lawyers
This Part applies, with any necessary adaptations, to
Australian-registered foreign lawyers and former
Australian-registered foreign lawyers in the same way as it
15 applies to law practices.
473. Application of Part to other persons
This Part applies, with any necessary adaptations, to --
(a) a former law practice or former Australian legal
practitioner; and
20 (b) the executor (original or by representation) or
administrator for the time being of an Australian legal
practitioner or of the practitioner's estate; and
(c) the administrator, or receiver, or receiver and manager,
of the property of an incorporated legal practice; and
25 (d) the liquidator of an incorporated legal practice that is
being or has been wound-up,
in the same way as it applies to law practices.
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Legal Profession Bill 2007
External intervention Part 14
Initiation of external intervention Division 2
s. 474
Division 2 -- Initiation of external intervention
474. Circumstances warranting external intervention
External intervention may take place in relation to a law
practice in any of the following circumstances --
5 (a) where a legal practitioner associate involved in the
practice --
(i) has died; or
(ii) ceases to be an Australian legal practitioner; or
(iii) has become an insolvent under administration; or
10 (iv) is in prison;
(b) in the case of a firm -- where the partnership has been
wound-up or dissolved;
(c) in the case of an incorporated legal practice -- where
the corporation concerned --
15 (i) ceases to be an incorporated legal practice; or
(ii) is being or has been wound-up; or
(iii) has been deregistered or dissolved;
(d) in any case -- where the Board forms a belief on
reasonable grounds that the practice or an associate of
20 the practice --
(i) is not dealing adequately with trust money or
trust property or is not properly attending to the
affairs of the practice; or
(ii) has committed a serious irregularity, or a serious
25 irregularity has occurred, in relation to trust
money or trust property or the affairs of the
practice; or
(iii) has failed properly to account in a timely manner
to any person for trust money or trust property
30 received by the practice for or on behalf of that
person; or
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Part 14 External intervention
Division 2 Initiation of external intervention
s. 475
(iv) has failed properly to make a payment of trust
money or a transfer of trust property when
required to do so by a person entitled to that
money or property or entitled to give a direction
5 for payment or transfer; or
(v) is in breach of the regulations or legal profession
rules with the result that the record keeping for
the practice's trust account is inadequate; or
(vi) has been or is likely to be convicted of an
10 offence relating to trust money or trust property;
or
(vii) is the subject of a complaint relating to trust
money or trust property received by the practice;
or
15 (viii) has failed to comply with any requirement of an
investigator appointed under Part 9 or external
examiner appointed under this Part; or
(ix) has ceased to be engaged in legal practice
without making provision for properly dealing
20 with trust money or trust property received by
the practice or for properly winding-up the
affairs of the practice;
(e) where any other proper cause exists in relation to the
practice.
25 475. Determination regarding external intervention
(1) This section applies when the Board becomes aware that one or
more of the circumstances referred to in section 474 exist in
relation to a law practice and decides that, having regard to the
interests of the clients of the practice and to other matters that it
30 considers appropriate, external intervention is warranted.
page 330
Legal Profession Bill 2007
External intervention Part 14
Initiation of external intervention Division 2
s. 475
(2) The Board may determine --
(a) to appoint a supervisor of trust money of the law
practice, if the Board is of the opinion --
(i) that external intervention is required because of
5 issues relating to the practice's trust accounts;
and
(ii) that it is not appropriate that the provision of
legal services by the practice be wound-up and
terminated because of those issues;
10 or
(b) to appoint a manager for the law practice, if the Board is
of the opinion --
(i) that external intervention is required because of
issues relating to the practice's trust records; or
15 (ii) that the appointment is necessary to protect the
interests of clients in relation to trust money or
trust property; or
(iii) that there is a need for an independent person to
be appointed to take over professional and
20 operational responsibility for the practice;
or
(c) to apply to the State Administrative Tribunal for the
appointment of a receiver for the law practice, if the
Board is of the opinion --
25 (i) that the appointment is necessary to protect the
interests of clients in relation to trust money or
trust property; or
(ii) that it may be appropriate that the provision of
legal services by the practice be wound-up and
30 terminated.
(3) The Board may, from time to time, make further determinations
in relation to the law practice and for that purpose may revoke a
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Legal Profession Bill 2007
Part 14 External intervention
Division 3 Supervisors of trust money
s. 476
previous determination with effect from a date or event
specified by the Board.
(4) A further determination may be made under subsection (3)
whether or not there has been any change in the circumstances
5 in consequence of which the original determination was made
and whether or not any further circumstances have come into
existence in relation to the law practice after the original
determination was made.
(5) An appointment of an external intervener for a law practice may
10 be made in respect of the practice generally or may be limited in
any way the Board, or in the case of a receiver, the State
Administrative Tribunal, considers appropriate, including for
example to matters connected with a particular legal practitioner
associate or to matters connected with a particular office or
15 particular subject matter.
Division 3 -- Supervisors of trust money
476. Appointment of supervisor of trust money
(1) This section applies if the Board determines to appoint a
supervisor of trust money of a law practice.
20 (2) The Board may, by instrument in writing, appoint a person as a
supervisor of trust money.
(3) The appointee must be either --
(a) an Australian legal practitioner who holds an
unrestricted practising certificate; or
25 (b) a person holding accounting qualifications with
experience in law practices' trust accounts,
and may (but need not) be an employee of the Board.
(4) The instrument of appointment must --
(a) identify the practice and the supervisor of trust money;
30 and
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External intervention Part 14
Supervisors of trust money Division 3
s. 477
(b) indicate that the external intervention is by way of
appointment of a supervisor of trust money; and
(c) specify the term of appointment; and
(d) specify any conditions imposed by the Board when the
5 appointment is made; and
(e) specify any fees payable by way of remuneration to the
supervisor specifically for carrying out the supervisor's
duties in relation to the external intervention; and
(f) provide for the legal costs and the expenses that may be
10 incurred by the supervisor in relation to the external
intervention.
(5) The instrument of appointment may specify any reporting
requirements to be observed by the supervisor.
477. Notice of appointment
15 (1) As soon as possible after an appointment of a supervisor of trust
money of a law practice is made, the Board must serve a notice
of the appointment on --
(a) the practice; and
(b) any other person authorised to operate any trust account
20 of the practice; and
(c) any external examiner appointed to examine the
practice's trust records; and
(d) the ADI with which any trust account of the practice is
maintained; and
25 (e) any other person whom the Board reasonably believes
should be served with the notice.
(2) The notice must --
(a) identify the law practice and the supervisor of trust
money; and
30 (b) indicate that the external intervention is by way of
appointment of a supervisor of trust money; and
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Part 14 External intervention
Division 3 Supervisors of trust money
s. 478
(c) specify the term of the appointment; and
(d) specify any reporting requirements to be observed by the
supervisor of trust money; and
(e) specify any conditions imposed by the Board when the
5 appointment is made; and
(f) include a statement that the law practice may apply for a
review of the decision to appoint the supervisor under
section 508; and
(g) contain or be accompanied by other information or
10 material prescribed by the regulations.
478. Effect of service of notice of appointment
(1) After service on an ADI of a notice of the appointment of a
supervisor of trust money of a law practice and until the
appointment is terminated, the ADI must ensure that no funds
15 are withdrawn or transferred from a trust account of the practice
unless --
(a) the withdrawal or transfer is made by cheque or other
instrument drawn on that account signed by the
supervisor or a nominee of the supervisor; or
20 (b) the withdrawal or transfer is made by the supervisor or
the supervisor's nominee by means of electronic or
internet banking facilities; or
(c) the withdrawal or transfer is made in accordance with an
authority to withdraw or transfer funds from the account
25 signed by the supervisor or a nominee of the supervisor.
(2) After service on a person (other than the supervisor or an ADI)
of a notice of the appointment of a supervisor of trust money of
a law practice and until the appointment is terminated, the
person must not --
30 (a) deal with any of the practice's trust money; or
(b) sign any cheque or other instrument drawn on a trust
account of the practice; or
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External intervention Part 14
Supervisors of trust money Division 3
s. 479
(c) authorise the withdrawal or transfer of funds from a trust
account of the practice.
Penalty: a fine of $10 000.
(3) A supervisor of trust money may, for the purposes of
5 subsection (1)(b), enter into arrangements with an ADI for
withdrawing money from a trust account of the law practice
concerned by means of electronic or internet banking facilities.
(4) Any money that is withdrawn or transferred in contravention of
subsection (1) may be recovered from the ADI concerned by the
10 supervisor as a debt in any court of competent jurisdiction, and
any amount recovered is to be paid into a trust account of the
law practice.
479. Role of supervisor of trust money
(1) A supervisor of trust money of a law practice has the powers
15 and duties of the practice in relation to the trust money
including powers --
(a) to receive trust money entrusted to the practice; and
(b) to open and close trust accounts.
(2) For the purpose of exercising or performing the supervisor's
20 powers or duties under subsection (1), the supervisor may
exercise any or all of the following powers --
(a) to enter and remain on premises used by the law practice
for or in connection with its engaging in legal practice;
(b) to require the practice or an associate or former associate
25 of the practice or any other person who has or had
control of documents relating to trust money received by
the practice to give the supervisor either or both of the
following --
(i) access to the files and documents the supervisor
30 reasonably requires;
(ii) information relating to the trust money the
supervisor reasonably requires;
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Part 14 External intervention
Division 3 Supervisors of trust money
s. 479
(c) to operate equipment or facilities on the premises, or to
require any person on the premises to operate equipment
or facilities on the premises, for a purpose relevant to
the supervisor's appointment;
5 (d) to take possession of any relevant material and retain it
for as long as may be necessary;
(e) to secure any relevant material found on the premises
against interference, if the material cannot be
conveniently removed;
10 (f) to take possession of any computer equipment or
computer program reasonably required for a purpose
relevant to the supervisor's appointment.
(3) If the supervisor takes anything from the premises, the
supervisor must issue a receipt in the approved form and --
15 (a) if the occupier or a person apparently responsible to the
occupier is present at or near the premises, give it to him
or her; or
(b) otherwise, leave it at the premises in an envelope
addressed to the occupier.
20 (4) If the supervisor is refused access to the premises or the
premises are unoccupied, the supervisor may use whatever
appropriate force is necessary to enter the premises and may be
accompanied by a member of the Police Force to assist entry.
(5) This section applies to trust money held by the practice before
25 the supervisor is appointed, as well as to trust money received
afterwards.
(6) The supervisor does not have a role in the management of the
affairs of the law practice except in so far as the affairs relate to
a trust account of the practice.
page 336
Legal Profession Bill 2007
External intervention Part 14
Supervisors of trust money Division 3
s. 480
480. Records of and dealing with trust money of law practice
under supervision
(1) A supervisor of trust money received by a law practice must
maintain the records of the supervisor's dealings with the trust
5 money --
(a) separately from records relating to dealings with trust
money before his or her appointment as supervisor; and
(b) separately from the affairs of any other law practice for
which he or she is supervisor; and
10 (c) in the manner prescribed by the regulations.
(2) Subject to subsection (1), a supervisor of trust money of a law
practice must deal with the trust money in the same way as a
law practice must deal with trust money.
481. Termination of supervisor's appointment
15 (1) The appointment of a supervisor of trust money of a law
practice terminates in the following circumstances --
(a) the term of appointment comes to an end;
(b) the appointment is set aside under section 508;
(c) the appointment of a manager for the practice takes
20 effect;
(d) the appointment of a receiver for the practice takes
effect;
(e) the supervisor has distributed all trust money received
by the practice and wound-up all trust accounts;
25 (f) a determination of the Board that the appointment be
terminated takes effect.
(2) The Board may determine in writing that the appointment be
terminated immediately or with effect from a specified date.
(3) The Board must serve a written notice of the termination on all
30 persons originally served with notice of the appointment.
page 337
Legal Profession Bill 2007
Part 14 External intervention
Division 4 Managers
s. 482
Division 4 -- Managers
482. Appointment of manager
(1) This section applies if the Board determines to appoint a
manager for a law practice.
5 (2) The Board, may, by instrument in writing, appoint a person as a
manager.
(3) The appointee must be an Australian legal practitioner who
holds an unrestricted practising certificate, and may (but need
not be) an employee of the Board.
10 (4) The instrument of appointment must --
(a) identify the law practice and the manager; and
(b) indicate that the external intervention is by way of
appointment of a manager; and
(c) specify the term of the appointment; and
15 (d) specify any conditions imposed by the Board when the
appointment is made; and
(e) specify any fees payable by way of remuneration to the
manager specifically for carrying out the manager's
duties in relation to the external intervention; and
20 (f) provide for the legal costs and the expenses that may be
incurred by the manager in relation to the external
intervention.
(5) The instrument of appointment may specify any reporting
requirements to be observed by the manager.
25 483. Notice of appointment
(1) As soon as possible after an appointment of a manager for a law
practice is made, the Board must serve a notice of the
appointment on --
(a) the practice; and
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External intervention Part 14
Managers Division 4
s. 484
(b) any other person authorised to operate any trust account
of the practice; and
(c) any external examiner appointed to examine the
practice's trust records; and
5 (d) the ADI with which any trust account of the practice is
maintained; and
(e) any other person whom the Board reasonably believes
should be served with the notice.
(2) The notice must --
10 (a) identify the law practice and the manager; and
(b) indicate that the external intervention is by way of
appointment of a manager; and
(c) specify the term of the appointment; and
(d) specify any reporting requirements to be observed by the
15 manager; and
(e) specify any conditions imposed by the Board when the
appointment is made; and
(f) include a statement that the law practice may apply for a
review of the decision to appoint the manager under
20 section 508; and
(g) contain or be accompanied by other information or
material prescribed by the regulations.
484. Effect of service of notice of appointment
(1) After service on a law practice of a notice of the appointment of
25 a manager for the practice and until the appointment is
terminated, a legal practitioner associate of the practice who is
specified or referred to in the notice must not participate in the
affairs of the practice except under the direct supervision of the
manager.
30 Penalty: a fine of $10 000.
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Legal Profession Bill 2007
Part 14 External intervention
Division 4 Managers
s. 484
(2) After service on an ADI of a notice of the appointment of a
manager for a law practice and until the appointment is
terminated, the ADI must ensure that no funds are withdrawn or
transferred from a trust account of the practice unless --
5 (a) the withdrawal or transfer is made by cheque or other
instrument drawn on that account signed by --
(i) the manager; or
(ii) a receiver appointed for the practice; or
(iii) a nominee of the manager or receiver;
10 or
(b) the withdrawal or transfer is made by means of
electronic or internet banking facilities by --
(i) the manager; or
(ii) a receiver appointed for the practice; or
15 (iii) a nominee of the manager or receiver;
or
(c) the withdrawal or transfer is made in accordance with an
authority to withdraw or transfer funds from the account
signed by --
20 (i) the manager; or
(ii) a receiver appointed for the practice; or
(iii) a nominee of the manager or receiver.
(3) After service on a person of a notice of the appointment of a
manager for a law practice and until the appointment is
25 terminated, the person must not --
(a) deal with any of the practice's trust money; or
(b) sign any cheque or other instrument drawn on a trust
account of the practice; or
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External intervention Part 14
Managers Division 4
s. 485
(c) authorise the withdrawal or transfer of funds from a trust
account of the practice,
but this subsection does not apply to a legal practitioner
associate referred to in subsection (1), an ADI or the manager or
5 receiver for the practice.
Penalty: a fine of $10 000.
(4) A manager may, for the purposes of subsection (2)(b), enter into
arrangements with an ADI for withdrawing money from a trust
account of the law practice concerned by means of electronic or
10 internet banking facilities.
(5) Any money that is withdrawn or transferred in contravention of
subsection (2) may be recovered from the ADI concerned by the
manager, or a receiver for the law practice, as a debt in a court
of competent jurisdiction, and any amount recovered is to be
15 paid into a trust account of the practice or another trust account
nominated by the manager or receiver.
485. Role of manager
(1) A manager for a law practice may carry on the practice and may
do all things that the practice or a legal practitioner associate of
20 the practice might lawfully have done, including but not limited
to the following --
(a) transacting any urgent business of the practice;
(b) transacting, with the approval of any or all of the
existing clients of the practice, any business on their
25 behalf, including either or both of the following --
(i) commencing, continuing, defending or settling
any proceedings;
(ii) receiving, retaining and disposing of property;
(c) accepting instructions from new clients and transacting
30 any business on their behalf, including --
(i) commencing, continuing, defending or settling
any proceedings; and
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Legal Profession Bill 2007
Part 14 External intervention
Division 4 Managers
s. 485
(ii) receiving, retaining and disposing of regulated
property;
(d) charging and recovering legal costs, including legal
costs for work in progress at the time of the appointment
5 of the manager;
(e) entering into, executing or performing any agreement;
(f) dealing with trust money in accordance with this Act;
(g) winding-up the affairs of the practice.
(2) For the purpose of exercising the manager's powers under
10 subsection (1), the manager may exercise any or all of the
following powers --
(a) to enter and remain on premises used by the law practice
for or in connection with its engaging in legal practice;
(b) to require the practice, an associate or former associate
15 of the practice or any other person who has or had
control of client files and associated documents
(including documents relating to trust money received
by the practice) to give the manager either or both of the
following --
20 (i) access to the files and documents the manager
reasonably requires;
(ii) information relating to client matters the
manager reasonably requires;
(c) to operate equipment or facilities on the premises, or to
25 require any person on the premises to operate equipment
or facilities on the premises, for a purpose relevant to
the manager's appointment;
(d) to take possession of any relevant material and retain it
for as long as may be necessary;
30 (e) to secure any relevant material found on the premises
against interference, if the material cannot be
conveniently removed;
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Legal Profession Bill 2007
External intervention Part 14
Managers Division 4
s. 486
(f) to take possession of any computer equipment or
computer program reasonably required for a purpose
relevant to the manager's appointment.
(3) If the manager takes anything from the premises, the manager
5 must issue a receipt in the approved form and --
(a) if the occupier or a person apparently responsible to the
occupier is present at or near the premises, give it to him
or her; or
(b) otherwise, leave it at the premises in an envelope
10 addressed to the occupier.
(4) If the manager is refused access to the premises or the premises
are unoccupied, the manager may use whatever appropriate
force is necessary to enter the premises and may be
accompanied by a member of the Police Force to assist entry.
15 486. Records and accounts of law practice under management
and dealings with trust money
(1) The manager for a law practice must maintain the records and
accounts of the practice that he or she manages --
(a) separately from the management of the records and
20 accounts of the practice before his or her appointment as
manager; and
(b) separately from the records and accounts of any other
law practice for which he or she is manager; and
(c) in the manner prescribed by the regulations.
25 (2) Subject to subsection (1), the manager for a law practice must
deal with trust money of the practice in the same way as a law
practice must deal with trust money.
487. Deceased estates
(1) It is the duty of the manager for a law practice to cooperate with
30 the legal personal representative of a deceased legal practitioner
associate of the practice for the orderly winding-up of the estate.
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Legal Profession Bill 2007
Part 14 External intervention
Division 4 Managers
s. 488
(2) The manager is not, in the performance of functions or the
exercise of powers as manager, a legal personal representative
of the deceased legal practitioner associate, but nothing in this
subsection prevents the manager from performing functions or
5 exercising powers as a legal personal representative if otherwise
appointed as representative.
(3) Subject to subsections (1) and (2) and to the terms of the
manager's appointment, if the manager was appointed before
the death of the legal practitioner associate, the manager's
10 appointment and functions are not affected by the death.
488. Termination of manager's appointment
(1) The appointment of a manager for a law practice terminates in
the following circumstances --
(a) the term of the appointment comes to an end;
15 (b) the appointment is set aside under section 508;
(c) the appointment of a receiver for the practice takes
effect, where the terms of appointment indicate that the
receiver is authorised to exercise the functions of a
manager;
20 (d) the manager has wound-up the affairs of the practice;
(e) a determination of the Board that the appointment be
terminated takes effect.
(2) The Board may determine in writing that the appointment be
terminated immediately or with effect from a specified date.
25 (3) If the appointment terminates in the circumstances referred to in
subsection (1)(a), (c) or (e), the former manager must, as soon
as practicable after the termination, transfer and deliver the
regulated property and client files of the law practice to --
(a) another external intervener appointed for the practice; or
30 (b) the practice, if another external intervener is not
appointed for the practice.
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Legal Profession Bill 2007
External intervention Part 14
Receivers Division 5
s. 489
(4) The former manager need not transfer regulated property and
files to the law practice in compliance with subsection (3)
unless the manager's expenses have been paid to the Board.
(5) The Board must serve a written notice of the termination on all
5 persons originally served with notice of the appointment.
Division 5 -- Receivers
489. Appointment of receiver
(1) This section applies if the Board determines to apply to the State
Administrative Tribunal for the appointment of a receiver for a
10 law practice.
(2) The State Administrative Tribunal may, on the application of
the Board, appoint a person as receiver for the law practice.
(3) The State Administrative Tribunal may make the appointment
whether or not the law practice or a principal of the practice
15 concerned has been notified of the application and whether or
not the practice or principal is a party to the proceedings.
(4) The appointee must be --
(a) an Australian legal practitioner who holds an
unrestricted practising certificate; or
20 (b) a person holding accounting qualifications with
experience in law practices' trust accounts,
and may (but need not) be an employee of the Board.
(5) The instrument of appointment must --
(a) identify the law practice and the receiver; and
25 (b) indicate that the external intervention is by way of
appointment of a receiver; and
(c) specify any conditions imposed by the State
Administrative Tribunal when the appointment is made;
and
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Part 14 External intervention
Division 5 Receivers
s. 490
(d) specify any fees payable by way of remuneration to the
receiver specifically for carrying out the receiver's
duties in relation to the external intervention; and
(e) provide for the legal costs and the expenses that may be
5 incurred by the receiver in relation to the external
intervention.
(6) The instrument of appointment may --
(a) specify the term (if any) of the appointment; and
(b) specify any reporting requirements to be observed by the
10 receiver.
490. Notice of appointment
(1) As soon as possible after an appointment of a receiver for a law
practice is made, the Board must serve a notice of the
appointment on --
15 (a) the practice; and
(b) any person authorised to operate a trust account of the
practice; and
(c) any external examiner appointed to examine the
practice's trust records; and
20 (d) the ADI with which any trust account of the practice is
maintained; and
(e) any person who the State Administrative Tribunal
directs should be served with the notice; and
(f) any person whom the Board reasonably believes should
25 be served with the notice.
(2) The notice must --
(a) identify the law practice and the receiver; and
(b) indicate that the external intervention is by way of
appointment of a receiver; and
30 (c) specify the term (if any) of the appointment; and
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External intervention Part 14
Receivers Division 5
s. 491
(d) indicate the extent to which the receiver has the powers
of a manager for the practice; and
(e) specify any reporting requirements to be observed by the
receiver; and
5 (f) specify any conditions imposed by the State
Administrative Tribunal when the appointment was
made; and
(g) contain or be accompanied by other information or
material prescribed by the regulations.
10 491. Effect of service of notice of appointment
(1) After service on a law practice of a notice of the appointment of
a receiver for the practice and until the appointment is
terminated, a legal practitioner associate of the practice who is
specified or referred to in the notice must not participate in the
15 affairs of the practice.
Penalty: a fine of $10 000.
(2) After service on an ADI of a notice of the appointment of a
receiver for a law practice and until the appointment is
terminated, the ADI must ensure that no funds are withdrawn or
20 transferred from a trust account of the practice unless --
(a) the withdrawal or transfer is made by cheque or other
instrument drawn on that account signed by --
(i) the receiver; or
(ii) a manager appointed for the practice; or
25 (iii) a nominee of the receiver or manager;
or
(b) the withdrawal or transfer is made by means of
electronic or internet banking facilities, by --
(i) the receiver; or
30 (ii) a manager appointed for the practice; or
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Part 14 External intervention
Division 5 Receivers
s. 491
(iii) a nominee of the receiver or manager;
or
(c) the withdrawal or transfer is made in accordance with an
authority to withdraw or transfer funds from the account
5 signed by --
(i) the receiver; or
(ii) a manager appointed for the practice; or
(iii) a nominee of the receiver or manager.
(3) After service on a person of a notice of the appointment of a
10 receiver for a law practice and until the appointment is
terminated, the person must not --
(a) deal with any of the practice's trust money; or
(b) sign any cheque or other instrument drawn on a trust
account of the practice; or
15 (c) authorise the withdrawal or transfer of funds from a trust
account of the practice,
but this subsection does not apply to an ADI or the receiver or
manager for the practice.
Penalty: a fine of $10 000.
20 (4) A receiver may, for the purposes of subsection (2)(b), enter into
arrangements with an ADI for withdrawing money from a trust
account of the law practice concerned by means of electronic or
internet banking facilities.
(5) Any money that is withdrawn or transferred in contravention of
25 subsection (2) may be recovered from the ADI concerned by the
receiver or a manager for the practice, as a debt in any court of
competent jurisdiction, and any amount recovered is to be paid
into a trust account of the law practice or another trust account
nominated by the receiver or manager.
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External intervention Part 14
Receivers Division 5
s. 492
492. Role of receiver
(1) The role of a receiver for a law practice is --
(a) to be the receiver of regulated property of the practice;
and
5 (b) to wind-up and terminate the affairs of the practice.
(2) For the purpose of winding-up the affairs of the law practice and
in the interests of the practice's clients, the State Administrative
Tribunal may, by order, authorise --
(a) the receiver to carry on the legal practice engaged in by
10 the law practice, if the receiver is an Australian legal
practitioner who holds an unrestricted practising
certificate; or
(b) an Australian legal practitioner who holds an
unrestricted practising certificate, or a law practice
15 whose principals are or include one or more Australian
legal practitioners who hold unrestricted practising
certificates, specified in the instrument to carry on the
legal practice on behalf of the receiver.
(3) Subject to any directions given by the State Administrative
20 Tribunal, the person authorised to carry on the legal practice
engaged in by a law practice has all the powers of a manager
under this Part and is taken to have been appointed as manager
for the law practice.
(4) The State Administrative Tribunal may, by order, terminate an
25 authorisation to carry on a legal practice granted under this
section.
(5) For the purposes of exercising the receiver's powers under this
section, the receiver may exercise any or all of the following
powers --
30 (a) to enter and remain on premises used by the law practice
for or in connection with its engaging in legal practice;
(b) to require the practice, an associate or former associate
of the practice or any other person who has or had
page 349
Legal Profession Bill 2007
Part 14 External intervention
Division 5 Receivers
s. 492
control of client files and associated documents
(including documents relating to trust money received
by the practice) to give the receiver --
(i) access to the files and documents the receiver
5 reasonably requires; and
(ii) information relating to client matters the receiver
reasonably requires;
(c) to operate equipment or facilities on the premises, or to
require any person on the premises to operate equipment
10 or facilities on the premises, for a purpose relevant to
the receiver's appointment;
(d) to take possession of any relevant material and retain it
for as long as may be necessary;
(e) to secure any relevant material found on the premises
15 against interference, if the material cannot conveniently
be removed;
(f) to take possession of any computer equipment or
computer program reasonably required for a purpose
relevant to the receiver's appointment.
20 (6) If the receiver takes anything from the premises, the receiver
must issue a receipt in the approved form and --
(a) if the occupier or a person apparently responsible to the
occupier is present at or near the premises, give it to him
or her; or
25 (b) otherwise, leave it at the premises in an envelope
addressed to the occupier.
(7) If the receiver is refused access to the premises or the premises
are unoccupied, the receiver may use whatever appropriate force
is necessary to enter the premises and may be accompanied by a
30 member of the Police Force to assist entry.
page 350
Legal Profession Bill 2007
External intervention Part 14
Receivers Division 5
s. 493
493. Records and accounts of, and dealing with trust money of,
law practice under receivership
(1) The receiver for a law practice must maintain the records and
accounts of the practice that he or she manages --
5 (a) separately from the management of the records and
accounts of the practice before his or her appointment as
receiver; and
(b) separately from the records and accounts of any other
law practice that the receiver is managing; and
10 (c) in the manner prescribed by the regulations.
(2) Subject to subsection (1), the receiver for a law practice must
deal with trust money of the practice in the same way as a law
practice must deal with trust money.
494. Power of receiver to take possession of regulated property
15 (1) The receiver for a law practice may take possession of regulated
property of the law practice.
(2) A person in possession or having control of regulated property
of the law practice must permit the receiver to take possession
of the regulated property if required by the receiver to do so.
20 (3) If a person contravenes subsection (2), the State Administrative
Tribunal may, on application by the receiver, order the person to
deliver the regulated property to the receiver.
(4) If, on application made by the receiver, the State Administrative
Tribunal is satisfied that an order made under subsection (3) has
25 not been complied with, the Tribunal may order the seizure of
any regulated property of the law practice that is located on the
premises specified in the order and may make any further orders
it thinks fit.
(5) An order under subsection (4) operates to authorise --
30 (a) any member of the Police Force; or
page 351
Legal Profession Bill 2007
Part 14 External intervention
Division 5 Receivers
s. 495
(b) the receiver or a person authorised by the receiver,
together with any member of the Police Force,
to enter the premises specified in the order and search for, seize
and remove anything that appears to be regulated property of
5 the law practice.
(6) The receiver must, as soon as possible, return anything seized
under this section if it transpires that it is not regulated property
of the law practice.
495. Power of receiver to take delivery of regulated property
10 (1) If a receiver for a law practice believes on reasonable grounds
that another person is under an obligation, or will later be under
an obligation, to deliver regulated property to the practice, the
receiver may, by notice in writing, require that other person to
deliver the property to the receiver.
15 (2) If a person has notice that a receiver has been appointed for a
law practice and the person is under an obligation to deliver
regulated property to the practice, the person must deliver the
property to the receiver.
Penalty: a fine of $5 000.
20 (3) A document signed by a receiver acknowledging the receipt of
regulated property delivered to the receiver is as valid and
effectual as if it had been given by the law practice.
496. Power of receiver to deal with regulated property
(1) This section applies if a receiver for a law practice acquires or
25 takes possession of regulated property of the practice.
(2) The receiver may deal with the regulated property in any
manner in which the law practice might lawfully have dealt with
the property.
page 352
Legal Profession Bill 2007
External intervention Part 14
Receivers Division 5
s. 497
497. Power of receiver to require documents or information
(1) A receiver for a law practice may require --
(a) a person who is an associate or former associate of the
practice; or
5 (b) a person who has or has had control of documents
relating to the affairs of the practice; or
(c) a person who has information relating to regulated
property of the practice or property that the receiver
believes on reasonable grounds to be regulated property
10 of the practice,
to give the receiver either or both of the following --
(d) access to the documents relating to the affairs of the
practice the receiver reasonably requires;
(e) information relating to the affairs of the practice the
15 receiver reasonably requires (verified by statutory
declaration if the requirement so states).
(2) A person who is subject to a requirement under subsection (1)
must comply with the requirement.
Penalty: a fine of $10 000.
20 (3) The validity of the requirement is not affected, and a person is
not excused from complying with the requirement, on the
ground that compliance with the requirement may tend to
incriminate the person.
(4) If, before complying with the requirement, the person objects to
25 the receiver on the ground that compliance may tend to
incriminate the person, the information given or the information
in the documents to which access is given is inadmissible in
evidence against the person in any proceedings for an offence,
other than --
30 (a) an offence against this Act; or
(b) any other offence relating to the keeping of trust
accounts or the receipt of trust money; or
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Legal Profession Bill 2007
Part 14 External intervention
Division 5 Receivers
s. 498
(c) an offence relating to the falsity of the answer; or
(d) proceedings taken by the receiver for the recovery of
regulated property.
498. Examinations
5 (1) On application of the receiver for a law practice, the State
Administrative Tribunal may make an order directing that an
associate or former associate of the practice or any other person
appear before the Tribunal for examination on oath or
affirmation in relation to the regulated property of the law
10 practice.
(2) On an examination of a person under this section, the person
must answer all questions that the Tribunal allows to be put to
the person.
Penalty: a fine of $10 000.
15 (3) The person is not excused from answering a question on the
ground that the answer might tend to incriminate the person.
(4) If, before answering the question, the person objects on the
ground that it may tend to incriminate the person, the answer is
not admissible in evidence against the person in any
20 proceedings for an offence, other than --
(a) an offence against this Act; or
(b) an offence relating to the falsity of the answer.
499. Lien for costs on regulated property
(1) This section applies if --
25 (a) a receiver has been appointed for a law practice; and
(b) the practice or a legal practitioner associate of the
practice claims a lien for legal costs on regulated
property of the practice.
(2) The receiver may serve on the law practice or legal practitioner
30 associate a written notice requiring the practice or associate to
page 354
Legal Profession Bill 2007
External intervention Part 14
Receivers Division 5
s. 500
give the receiver within a specified period of not less than one
month --
(a) particulars sufficient to identify the regulated property;
and
5 (b) a detailed bill of costs.
(3) If the law practice or legal practitioner associate requests the
receiver in writing to give access to the regulated property that
is reasonably necessary to enable the practice or associate to
prepare a bill of costs in compliance with subsection (2), the
10 time allowed does not begin to run until the access is provided.
(4) If a requirement of a notice under this section is not complied
with, the receiver may, in dealing with the regulated property
claimed to be subject to the lien, disregard the claim.
500. Regulated property not to be attached
15 Regulated property of a law practice for which a receiver has
been appointed (including regulated property held by the
receiver) is not liable to be taken, levied on or attached under
any judgment, order or process of any court or any other
process.
20 501. Recovery of regulated property where there has been a
breach of trust
(1) This subsection applies if regulated property of or under the
control of a law practice has, before or after the appointment of
a receiver for the practice, been taken by, paid or transferred to
25 a person (the "transferee") in breach of trust, improperly or
unlawfully and the transferee --
(a) knew or believed at the time of the taking, payment or
transfer that it was done in breach of trust, improperly or
unlawfully; or
30 (b) did not provide to the practice or any other person any
or any adequate consideration for the taking, payment or
transfer; or
page 355
Legal Profession Bill 2007
Part 14 External intervention
Division 5 Receivers
s. 501
(c) because of the taking, payment or transfer, became
indebted or otherwise liable to the practice or to a client
of the practice in the amount of the taking, payment or
transfer or in another amount.
5 (2) The receiver is entitled to recover from the transferee --
(a) if subsection (1)(a) applies -- the amount of the
payment or the value of the regulated property taken or
transferred; or
(b) if subsection (1)(b) applies -- the amount of the
10 inadequacy of the consideration or, if there was no
consideration, the amount of the payment or the value of
the regulated property taken or transferred; or
(c) if subsection (1)(c) applies -- the amount of the debt or
liability.
15 (3) If the receiver recovers an amount mentioned in subsection (2)
from the transferee, the transferee ceases to be liable for the
amount to any other person.
(4) If any money of or under the control of a law practice has,
before or after the appointment of a receiver for the practice,
20 been paid in breach of trust, improperly or unlawfully to a
person (the "prospective plaintiff ") in relation to a cause of
action that the prospective plaintiff had, or claimed to have,
against a third party --
(a) the receiver may prosecute the cause of action against
25 the third party in the name of the prospective plaintiff;
or
(b) if the prospective plaintiff did not have, at the time the
payment was made, a cause of action against the third
party, the receiver may recover the amount of that
30 money from the prospective plaintiff.
(5) If any regulated property of or under the control of a law
practice has, before or after the appointment of a receiver for the
practice, been used in breach of trust, improperly or unlawfully
page 356
Legal Profession Bill 2007
External intervention Part 14
Receivers Division 5
s. 502
so as to discharge a debt or liability of a person (the "debtor"),
the receiver may recover from the debtor the amount of the debt
or liability so discharged less any consideration provided by the
debtor for the discharge.
5 (6) A person authorised by the Board to do so may give a certificate
in relation to all or any of the following facts --
(a) the receipt of regulated property by the law practice
concerned from any person, the nature and value of the
property, the date of receipt and the identity of the
10 person from whom it was received;
(b) the taking, payment of transfer of regulated property, the
nature and value of the property, the date of the taking,
payment or transfer and the identity of the person by
whom it was taken or to whom it was paid or
15 transferred;
(c) the entries made in the trust account and in other
ledgers, books of account, vouchers or records of the
practice and the truth or falsity of those entries;
(d) the money and securities held by the practice at the
20 specified time.
(7) If the receiver brings a proceeding under subsection (2), (4)
or (5), a certificate given under subsection (6) is evidence and,
in the absence of evidence to the contrary, is proof of the facts
specified in it.
25 502. Improperly destroying property
A person must not, with intent to defeat the operation of this
Part, and whether before or after appointment of a receiver,
destroy, conceal, remove from one place to another or deliver
into the possession, or place under the control, of another person
30 any regulated property of a law practice for which a receiver has
been or is likely to be appointed.
Penalty: a fine of $24 000 and imprisonment for 2 years.
page 357
Legal Profession Bill 2007
Part 14 External intervention
Division 5 Receivers
s. 503
503. Deceased estates
(1) It is the duty of a receiver for a law practice to cooperate with
the legal personal representative of a deceased legal practitioner
associate of the practice for the orderly winding-up of the estate.
5 (2) The receiver is not, in the exercise or performance of powers
and duties as receiver, a legal personal representative of the
deceased legal practitioner associate, but nothing in this
subsection prevents the receiver from exercising or performing
powers or duties as a legal personal representative if otherwise
10 appointed as representative.
(3) Subject to subsections (1) and (2) and to the terms of the
receiver's appointment, if the receiver was appointed before the
death of the legal practitioner associate, the receiver's
appointment, powers and duties are not affected by the death.
15 504. Termination of receiver's appointment
(1) The appointment by the State Administrative Tribunal of a
receiver for a law practice terminates in the following
circumstances --
(a) the term (if any) of the appointment comes to an end;
20 (b) the appointment is set aside on review under
section 508;
(c) a determination of the State Administrative Tribunal that
the appointment be terminated takes effect.
(2) The State Administrative Tribunal may, on application by the
25 Board or the receiver made at any time, determine that the
appointment be terminated immediately or with effect from a
specified date.
(3) A receiver for a law practice must apply to the State
Administrative Tribunal for termination of the appointment
30 when the affairs of the practice have been wound-up and
terminated, unless the term (if any) of the appointment has
already come to an end.
page 358
Legal Profession Bill 2007
External intervention Part 14
General Division 6
s. 505
(4) The appointment of a receiver is not stayed by the making of an
application for termination of the receiver's appointment, and
the receiver may accordingly continue to exercise his or her
functions as receiver pending the State Administrative
5 Tribunal's decision on the application except to the extent (if
any) that the Tribunal otherwise directs.
(5) The former receiver must, as soon as practicable, transfer and
deliver the regulated property of the law practice to --
(a) another external intervener appointed for the practice
10 within the period of 14 days beginning with the day after
the date of the termination; or
(b) the practice, if another external intervener is not
appointed for the practice within that period and if
paragraph (c) does not apply; or
15 (c) another person in accordance with arrangements
approved by the State Administrative Tribunal, if it is
not practicable to transfer and deliver the regulated
property to the practice.
(6) The former receiver need not transfer and deliver regulated
20 property to the law practice in compliance with subsection (5)
unless the expenses of receivership have been paid.
(7) The Board must serve a written notice of the termination on all
persons originally served with notice of the appointment.
Division 6 -- General
25 505. Conditions on appointment of external intervener
(1) In this section --
"appropriate authority" means --
(a) in the case of a supervisor or manager -- the Board;
or
30 (b) in the case of a receiver -- the State Administrative
Tribunal.
page 359
Legal Profession Bill 2007
Part 14 External intervention
Division 6 General
s. 506
(2) An appointment of an external intervener is subject to --
(a) any conditions imposed by the appropriate authority;
and
(b) any conditions imposed under the regulations.
5 (3) The appropriate authority may impose conditions --
(a) when the appointment is made; or
(b) during the term of the appointment.
(4) The appropriate authority may revoke or vary conditions
imposed under subsection (3).
10 506. Status of acts of external intervener
(1) An act done or omitted to be done by an external intervener for
a law practice is, for the purposes of --
(a) any proceedings; or
(b) any transaction that relies on that act or omission,
15 taken to have been done or omitted to be done by the practice.
(2) Nothing in this section subjects the law practice or an associate
of the law practice to any personal liability.
507. Eligibility for reappointment or authorisation
A person who has been appointed as an external intervener for a
20 law practice is eligible for reappointment as an external
intervener for the practice, whether the later appointment is
made in respect of the same type of external intervention or is of
a different type.
508. Review of appointment
25 The following persons may apply to the State Administrative
Tribunal for the review of a decision to appoint an external
intervener for a law practice --
(a) the practice;
page 360
Legal Profession Bill 2007
External intervention Part 14
General Division 6
s. 509
(b) an associate of the practice;
(c) any person authorised to operate a trust account of the
practice;
(d) any other person whose interests may be adversely
5 affected by the appointment.
509. Directions of State Administrative Tribunal
On application by --
(a) an external intervener for a law practice; or
(b) a principal of a law practice; or
10 (c) any other person affected by an external intervention,
the State Administrative Tribunal may give directions about the
functions of the external intervener or a matter affecting the
external intervention.
510. Manager and receiver appointed for law practice
15 If a manager and a receiver are appointed for a law practice, any
decision of the receiver prevails over any decision of the
manager in the exercise of their respective powers, to the extent
of any inconsistency.
511. ADI disclosure requirements
20 (1) An ADI must, at the request of an external intervener for a law
practice, disclose to the intervener without charge --
(a) whether or not the practice, or an associate of the
practice specified by the intervener, maintains or has
maintained an account at the ADI during a period
25 specified by the intervener; and
(b) details identifying every account so maintained.
Penalty: a fine of $5 000.
page 361
Legal Profession Bill 2007
Part 14 External intervention
Division 6 General
s. 511
(2) An ADI at which an account of a law practice or associate of a
law practice is or has been maintained must, at the request of an
external intervener for the law practice, and without charge --
(a) produce for inspection or copying by the intervener, or a
5 nominee of the intervener, any records relating to any
such account or money deposited in any such account;
and
(b) provide the intervener with full details of any
transactions relating to any such account or money.
10 Penalty: a fine of $5 000.
(3) If an external intervener believes, on reasonable grounds, that
trust money has, without the authorisation of the person who
entrusted the trust money to the law practice, been deposited
into the account of a third party who is not an associate of the
15 law practice, the ADI at which the account is maintained must
disclose to the intervener without charge --
(a) whether or not a person specified by the intervener
maintains or has maintained an account at the ADI
during a period specified by the intervener; and
20 (b) the details of any such account.
Penalty: a fine of $5 000.
(4) An obligation imposed by this section on an ADI does not apply
unless the external intervener produces to the ADI evidence of
the appointment of the intervener in relation to the law practice
25 concerned.
(5) A request under this section may be general or limited to a
particular kind of account.
(6) This section applies despite any legislation or duty of
confidence to the contrary.
30 (7) An ADI or an officer or employee of an ADI is not liable to any
action for any loss or damage suffered by another person as a
result of producing records or providing details in accordance
with this section.
page 362
Legal Profession Bill 2007
External intervention Part 14
General Division 6
s. 512
512. Fees, legal costs and expenses
(1) An external intervener is entitled to be paid, in accordance with
the instrument of appointment --
(a) fees by way of remuneration; and
5 (b) the legal costs and the expenses incurred in relation to
the external intervention.
(2) An account of the external intervener for fees, costs and
expenses may, on the application of the Board, be taxed or
assessed.
10 (3) The fees, costs and expenses are payable by and recoverable by
the Board from the law practice.
(4) Fees, costs and expenses not paid to the external intervener by
the law practice are recoverable from the Guarantee Fund.
(5) The Trust may recover any unpaid fees, costs and expenses
15 from the law practice that are paid from the Guarantee Fund.
(6) Fees, costs and expenses paid by or recovered from the law
practice after they have been paid from the Guarantee Fund are
to be paid to the Guarantee Fund.
513. Reports by external intervener
20 (1) In this section --
"instrument of appointment", in relation to a receiver, means
the order of the State Administrative Tribunal appointing
the receiver.
(2) An external intervener must provide written reports in
25 accordance with any reporting requirements to be observed by
the intervener as specified in the instrument of appointment.
(3) If the instrument of appointment does not specify any reporting
requirements, an external intervener must provide --
(a) written reports as required from time to time by the
30 Board; and
page 363
Legal Profession Bill 2007
Part 14 External intervention
Division 6 General
s. 514
(b) a written report to the Board at the termination of the
appointment.
(4) An external intervener must also keep the Board informed of the
progress of the external intervention, including reports to the
5 Board about any significant events occurring or state of affairs
existing in connection with the intervention or with any of the
matters to which the intervention relates.
(5) Nothing in this section affects any other reporting obligations
that may exist in respect of the law practice concerned.
10 514. Confidentiality
(1) An external intervener must not disclose information obtained
as a result of his or her appointment except --
(a) as far as is necessary for performing the external
intervener's functions; or
15 (b) as provided in subsection (2).
(2) An external intervener may disclose information to any of the
following --
(a) a court, tribunal or other person acting judicially;
(b) a regulatory authority of any jurisdiction;
20 (c) any officer of, or Australian legal practitioner instructed
by --
(i) a regulatory authority of any jurisdiction; or
(ii) the Commonwealth or a State or Territory of the
Commonwealth; or
25 (iii) an authority of the Commonwealth or a State or
Territory of the Commonwealth,
in relation to any proceedings, inquiry or other matter
pending or contemplated arising out of an investigation
or examination for the purposes of this Part;
30 (d) a member of the Police Force of any jurisdiction if the
Board or external intervener believes on reasonable
page 364
Legal Profession Bill 2007
External intervention Part 14
General Division 6
s. 515
grounds that the information relates to an offence that
may have been committed by the law practice concerned
or by an associate of the law practice;
(e) the law practice concerned or a principal of the law
5 practice or, if the practice is an incorporated legal
practice, a shareholder in the practice;
(f) a client or former client of the law practice concerned if
the information relates to the client or former client;
(g) another external intervener appointed in relation to the
10 law practice or any Australian legal practitioner or
accountant employed by that other external intervener;
(h) any external examiner carrying out an external
examination of the trust records of the law practice
concerned.
15 515. Provisions relating to requirements under this Part
(1) This section applies to a requirement imposed on a person under
this Part to give an external intervener access to documents or
information.
(2) The validity of the requirement is not affected, and the person is
20 not excused from compliance with the requirement, on the
ground that a law practice or Australian legal practitioner has a
lien over a particular document or class of documents.
(3) The external intervener imposing the requirement may --
(a) inspect any document provided pursuant to the
25 requirement; and
(b) make copies of the document or any part of the
document; and
(c) retain the document for a period the intervener thinks
necessary for the purpose of the external intervention in
30 relation to which it was produced.
(4) The person is not subject to any liability, claim or demand
merely because of compliance with the requirement.
page 365
Legal Profession Bill 2007
Part 14 External intervention
Division 6 General
s. 516
(5) A failure of an Australian lawyer to comply with the
requirement is capable of constituting unsatisfactory
professional conduct or professional misconduct.
(6) The Board may suspend a local legal practitioner's practising
5 certificate while a failure by the practitioner to comply with the
requirement continues.
516. Obstruction of external intervener
(1) In this section --
"obstruct" includes hinder, delay, resist and attempt to
10 obstruct.
(2) A person must not, without reasonable excuse, obstruct an
external intervener exercising a power under this Act.
Penalty: a fine of $10 000.
page 366
Legal Profession Bill 2007
Provisions relating to investigations Part 15
Preliminary Division 1
s. 517
Part 15 -- Provisions relating to investigations
Division 1 -- Preliminary
517. Definitions
(1) In this Part --
5 "complaint investigation" means an investigation initiated by
the Complaints Committee under Part 13 or the
investigation of a complaint under that Part;
"ILP compliance audit" means an audit conducted under
section 118 in relation to an incorporated legal practice;
10 "investigator" means --
(a) a Complaints Committee member; or
(b) the Law Complaints Officer or a person nominated
by the Law Complaints Officer; or
(c) in relation to an ILP compliance audit -- the person
15 appointed by the Board or Complaints Committee
under section 118 to conduct the audit; or
(d) an investigator under Part 9 Division 3; or
(e) an external examiner under Part 9 Division 4;
"trust account examination" means the external examination
20 of the trust records of a law practice under Part 9
Division 4;
"trust account investigation" means the investigation of the
affairs of law practices under Part 9 Division 3.
(2) A reference in this Part to "trust records" includes a reference
25 to the affairs of a law practice that may be examined under
section 238 for the purposes of and in connection with an
examination of the practice's trust records.
page 367
Legal Profession Bill 2007
Part 15 Provisions relating to investigations
Division 2 Requirements relating to documents, information and other
assistance
s. 518
Division 2 -- Requirements relating to documents, information
and other assistance
518. Application of Division
This Division applies to the following activities --
5 (a) trust account investigations;
(b) trust account examinations;
(c) complaint investigations;
(d) ILP compliance audits.
519. Requirement to provide access to documents and
10 information relating to affairs of law practice
(1) For the purpose of carrying out a trust account investigation,
trust account examination or ILP compliance audit in relation to
a law practice, an investigator may, on production of evidence
of his or her appointment, require the practice or an associate or
15 former associate of the practice, or any other person (including,
for example, an ADI, auditor or liquidator), to give the
investigator either or both of the following --
(a) access to the documents relating to the affairs of the
practice the investigator reasonably requires;
20 (b) information relating to the affairs of the practice the
investigator reasonably requires (verified by statutory
declaration if the requirement so states).
(2) A person who is subject to a requirement under subsection (1)
must comply with the requirement.
25 Penalty: a fine of $5 000.
page 368
Legal Profession Bill 2007
Provisions relating to investigations Part 15
Requirements relating to documents, information and other Division 2
assistance
s. 520
520. Requirements in relation to complaint investigations
(1) For the purpose of carrying out a complaint investigation in
relation to an Australian lawyer, an investigator may, by notice
or summons served on the lawyer, require the lawyer to do any
5 one or more of the following --
(a) to produce, at or before a specified time and at a
specified place, any specified document (or a copy of
the document);
(b) to produce, at a specified time and at a specified place,
10 any specified document (or a copy of the document);
(c) to provide written information on or before a specified
date;
(d) to otherwise assist in, or cooperate with, the
investigation of the complaint in a specified manner.
15 (2) For the purpose of carrying out a complaint investigation in
relation to an Australian lawyer, an investigator may, by notice
or summons served on the person, require an associate or former
associate of a law practice of which the lawyer is or was an
associate or any other person (including, for example, an ADI,
20 auditor or liquidator but not including the lawyer) to give the
investigator either or both of the following --
(a) access to the documents relating to the affairs of the
lawyer the investigator reasonably requires;
(b) information relating to the affairs of the lawyer the
25 investigator reasonably requires.
(3) An investigator may require that information required to be
given under subsection (1) or (2) be verified on oath or
affirmation or by statutory declaration.
(4) An investigator may administer an oath or affirmation for the
30 purposes of subsection (3).
page 369
Legal Profession Bill 2007
Part 15 Provisions relating to investigations
Division 2 Requirements relating to documents, information and other
assistance
s. 521
(5) A person who is subject to a requirement under
subsection (1), (2) or (3) must comply with the requirement.
Penalty: a fine of $5 000.
(6) A requirement imposed on a person under subsection (1), (2)
5 or (3) must be notified in writing to the person and must specify
a reasonable time for compliance.
(7) A summons issued under this section has the same effect as a
subpoena ad test or duces tecum, as the case may be, issued by
the Supreme Court for the attendance of a witness for
10 examination or production of documents in a civil action.
(8) Obedience to, or non-observance of, a summons issued under
this section may be enforced and punished by a Judge in
Chambers in the same manner as in the case of obedience to, or
non-observance of, a subpoena issued by the Supreme Court.
15 521. Provisions relating to requirements under this Division
(1) This section applies to a requirement imposed on a person under
this Division.
(2) The validity of the requirement is not affected, and the person is
not excused from compliance with the requirement, on --
20 (a) the ground that the giving of the information or access to
information may tend to incriminate the person; or
(b) the ground that a law practice or Australian lawyer has a
lien over a particular document or class of documents.
(3) If, before complying with the requirement, the person objects to
25 the investigator on the ground that giving the information may
tend to incriminate the person, the information is inadmissible
in evidence in any proceeding against the person for an offence,
other than --
(a) an offence against this Act; or
30 (b) any other offence relating to the keeping of trust
accounts or the receipt of trust money; or
page 370
Legal Profession Bill 2007
Provisions relating to investigations Part 15
Entry and search of premises Division 3
s. 522
(c) an offence relating to the falsity of the answer.
(4) The investigator imposing the requirement may --
(a) inspect any document provided pursuant to the
requirement; and
5 (b) make copies of the document or any part of the
document; and
(c) retain the document for a period the investigator thinks
necessary for the purposes of the investigation in
relation to which it was produced.
10 (5) The person is not subject to any liability, claim or demand
merely because of compliance with the requirement.
(6) The Board may suspend a local legal practitioner's practising
certificate while a failure by the practitioner to comply with the
requirement continues.
15 Division 3 -- Entry and search of premises
522. Application of Division
This Division applies to the following investigations --
(a) trust account investigations;
(b) complaint investigations,
20 but does not apply to --
(c) trust account examinations; or
(d) ILP compliance audits.
523. Investigator's power to enter premises
(1) For the purpose of carrying out an investigation to which this
25 Division applies, an investigator may enter and remain on
premises to exercise the powers referred to in section 525.
page 371
Legal Profession Bill 2007
Part 15 Provisions relating to investigations
Division 3 Entry and search of premises
s. 524
(2) In the case of a trust account investigation, the investigator may
enter premises --
(a) at any time with the consent of the occupier; or
(b) under the authority of a search warrant issued under this
5 Division; or
(c) at any time without the consent of the occupier and
without a warrant, but only if the investigator believes,
on reasonable grounds, that it is urgently necessary to do
so in order to prevent the destruction of or interference
10 with any relevant material.
(3) In the case of a complaint investigation, the investigator may
enter any premises --
(a) at any time with the consent of the occupier; or
(b) under the authority of a search warrant issued under this
15 Division.
(4) The investigator must not exercise the power referred to in
subsection (2)(c) unless the Board or the Complaints
Committee, as the case requires, has authorised the investigator
to do so.
20 (5) The investigator must, at the reasonable request of a person
apparently in charge of the premises or any other person on the
premises, produce evidence of his or her appointment.
Penalty: a fine of $2 000.
524. Search warrant
25 (1) An investigator may apply to a justice for the issue of a search
warrant in respect of any premises if the investigator believes on
reasonable grounds that any relevant material is located at the
premises.
(2) The application must be in writing and must be made by the
30 investigator in person.
page 372
Legal Profession Bill 2007
Provisions relating to investigations Part 15
Entry and search of premises Division 3
s. 525
(3) A justice to whom an application for a search warrant is made
may, if satisfied that there are reasonable grounds for doing so,
issue a search warrant authorising an investigator --
(a) to enter and inspect the premises specified in the
5 warrant; and
(b) to exercise the powers referred to in section 525,
at the times and during the period stated in the search warrant.
(4) A search warrant may be executed by the investigator to whom
it is issued or by any other investigator.
10 (5) An investigator executing a warrant must, at the reasonable
request of a person apparently in charge of the premises or any
other person on the premises, produce the warrant.
Penalty: a fine of $2 000.
525. Powers of investigator while on premises
15 (1) An investigator who enters premises under this Part may
exercise any or all of the following powers --
(a) search the premises and examine anything on the
premises;
(b) search for any information, document or other material
20 relating to the matter to which the investigation relates;
(c) operate equipment or facilities on the premises for a
purpose relevant to the investigation;
(d) take possession of any relevant material and retain it for
as long as may be necessary to examine it to determine
25 its evidentiary value;
(e) make copies of any relevant material or any part of any
relevant material;
(f) seize and take away any relevant material or any part of
any relevant material;
page 373
Legal Profession Bill 2007
Part 15 Provisions relating to investigations
Division 3 Entry and search of premises
s. 525
(g) use (free of charge) photocopying equipment on the
premises for the purpose of copying any relevant
material;
(h) with respect to any computer or other equipment that the
5 investigator suspects on reasonable grounds may contain
any relevant material --
(i) inspect and gain access to the computer or
equipment; and
(ii) download or otherwise obtain any documents or
10 information; and
(iii) make copies of any documents or information
held in it; and
(iv) seize and take away any computer or equipment
or any part of it;
15 (i) if any relevant material found on the premises cannot be
conveniently removed, secure it against interference;
(j) request any person who is on the premises to do any of
the following --
(i) state the person's full name, date of birth and
20 address;
(ii) answer (orally or in writing) questions asked by
the investigator relevant to the investigation;
(iii) produce relevant material;
(iv) operate equipment or facilities on the premises
25 for a purpose relevant to the investigation;
(v) provide access (free of charge) to photocopying
equipment on the premises the investigator
reasonably requires to enable the copying of any
relevant material;
30 (vi) give other assistance the investigator reasonably
requires to carry out the investigation;
page 374
Legal Profession Bill 2007
Provisions relating to investigations Part 15
Additional powers in relation to incorporated legal practices Division 4
s. 526
(k) do anything else reasonably necessary to obtain
information or evidence for the purposes of this
investigation.
(2) A person requested to do anything under subsection (1) must
5 not, without reasonable excuse, fail to comply with the request.
Penalty: a fine of $10 000.
(3) Any documents, information or anything else obtained by the
investigator may be used for the purpose of the investigation.
(4) If an investigator takes anything away from the premises, the
10 investigator must issue a receipt in the approved form and --
(a) if the occupier or a person apparently responsible to the
occupier is present, give it to him or her; or
(b) otherwise, leave it on the premises in an envelope
addressed to the occupier.
15 (5) An investigator may be accompanied by any assistants the
investigator requires, including persons with accounting
expertise and persons to assist in finding and gaining access to
electronically stored information.
Division 4 -- Additional powers in relation to incorporated
20 legal practices
526. Application of Division
This Division applies to --
(a) trust account investigations; or
(b) complaint investigations; or
25 (c) ILP compliance audits,
conducted in relation to an incorporated legal practice.
page 375
Legal Profession Bill 2007
Part 15 Provisions relating to investigations
Division 4 Additional powers in relation to incorporated legal practices
s. 527
527. Powers relating to investigations and audits to which this
Division applies
An investigator conducting an investigation or audit to which
the Division applies may exercise the powers set out in this
5 Division.
528. Examination of persons
(1) The investigator, by force of this section, has and may exercise
the same powers as those conferred on the Australian Securities
and Investments Commission by Part 3 Division 2 of the
10 Australian Securities and Investments Commission Act 2001 of
the Commonwealth.
(2) Part 3 Division 2 of the Australian Securities and Investments
Commission Act 2001 of the Commonwealth applies to the
exercise of those powers with the following modifications (and
15 any other necessary modifications) --
(a) a reference to the Australian Securities and Investments
Commission (however expressed) is taken to be a
reference to the Board, the Complaints Committee or the
investigator;
20 (b) a reference to a matter that is being or is to be
investigated under Part 3 Division 1 of that Act is taken
to be a reference to a matter that is being or is to be
investigated, examined or audited by the investigator;
(c) a reference in section 19 of that Act to a person is taken
25 to be a reference to an Australian legal practitioner or an
incorporated legal practice;
(d) a reference to a prescribed form is taken to be a
reference to an approved form;
(e) any modifications prescribed by the regulations.
30 (3) Sections 22(2) and (3), 25(2) and (2A), 26 and 27 of the
Australian Securities and Investments Commission Act 2001 of
the Commonwealth do not apply in respect of the exercise of the
powers conferred by this section.
page 376
Legal Profession Bill 2007
Provisions relating to investigations Part 15
Additional powers in relation to incorporated legal practices Division 4
s. 529
529. Inspection of books
(1) The investigator, by force of this section, has and may exercise
the same powers as those conferred on the Australian Securities
and Investments Commission by sections 30(1), 34 and 37 to 39
5 of the Australian Securities and Investments Commission
Act 2001 of the Commonwealth.
(2) Those provisions apply to the exercise of those powers with the
following modifications (and any other necessary
modifications) --
10 (a) a reference to the Australian Securities and Investments
Commission (however expressed) is taken to be a
reference to the Board, the Complaints Committee or the
investigator;
(b) a reference to a body corporate (including a body
15 corporate that is not an exempt public authority) is taken
to be a reference to an incorporated legal practice;
(c) a reference to an eligible person in relation to an
incorporated legal practice is taken to be a reference to
an officer or employee of the incorporated legal
20 practice;
(d) a reference to a member or staff member is taken to be a
reference to the Board, the Complaints Committee, the
Law Complaints Officer or a person appointed by the
Board who is an officer or employee of the Board;
25 (e) a reference in section 37 of that Act to a proceeding is
taken to be a reference to an investigation, examination
or audit to which this Part applies;
(f) any modifications prescribed by the regulations.
530. Power to hold hearings
30 (1) The investigator may hold hearings for the purposes of an
investigation or audit to which this Division applies.
page 377
Legal Profession Bill 2007
Part 15 Provisions relating to investigations
Division 5 Miscellaneous
s. 531
(2) Sections 52, 56(1), 58, 59(1), (2), (5), (6) and (8) and 60
(paragraph (b) excepted) of the Australian Securities and
Investments Commission Act 2001 of the Commonwealth apply
to a hearing with the following modifications (and any other
5 necessary modifications) --
(a) a reference to the Australian Securities and Investments
Commission (however expressed) is taken to be a
reference to the Board, the Complaints Committee or the
investigator;
10 (b) a reference to a member or staff member is taken to be a
reference to the Board, the Complaints Committee, the
Law Complaints Officer or a person appointed by the
Board who is an officer or employee of the Board;
(c) a reference to a prescribed form is taken to be a
15 reference to an approved form;
(d) any modifications prescribed by the regulations.
Division 5 -- Miscellaneous
531. Obstruction or misleading of investigator
(1) In this section --
20 "obstruct" includes hinder, delay, resist or attempt to obstruct.
(2) A person must not, without reasonable excuse, obstruct or
mislead an investigator exercising a power under this Act.
Penalty: a fine of $10 000.
532. Obligations of Australian lawyers
25 (1) The duties imposed on an Australian lawyer by this section are
additional to obligations imposed under other provisions of this
Part, whether or not the lawyer is the subject of the
investigation, examination or audit concerned.
page 378
Legal Profession Bill 2007
Provisions relating to investigations Part 15
Miscellaneous Division 5
s. 533
(2) An Australian lawyer must not mislead an investigator, the
Board or the Complaints Committee in the exercise of --
(a) any function under this Part; or
(b) any function under a provision of a corresponding law
5 that corresponds to this Part.
(3) An Australian lawyer who is subject to --
(a) a requirement under section 520; or
(b) a requirement under provisions of a corresponding law
that correspond to that section,
10 must not, without reasonable excuse, fail to comply with the
requirement.
533. Permitted disclosure of confidential information
(1) The Board, the Complaints Committee or an investigator may
disclose information obtained in the course of a trust account
15 investigation, trust account examination, complaint
investigation or ILP compliance audit to any of the following --
(a) any court, tribunal or other person acting judicially;
(b) the Attorney General;
(c) any body regulating legal practitioners in any
20 jurisdiction;
(d) any officer of or Australian legal practitioner instructed
by --
(i) any body regulating legal practitioners in any
jurisdiction; or
25 (ii) the Commonwealth or a State or Territory of the
Commonwealth; or
(iii) an authority of the Commonwealth or of a State
or Territory of the Commonwealth,
in relation to any proceedings, inquiry or other matter
30 pending or contemplated arising out of the investigation,
examination or audit;
page 379
Legal Profession Bill 2007
Part 15 Provisions relating to investigations
Division 5 Miscellaneous
s. 533
(e) an investigative or prosecuting authority established by
or under legislation (for example, the Australian
Securities and Investments Commission);
(f) a police officer -- if the Board, the Complaints
5 Committee or the investigator suspects on reasonable
grounds that the information relates to an offence that
may have been committed by --
(i) if a law practice is the subject of the
investigation, examination or audit -- the law
10 practice or an associate or former associate of the
law practice; or
(ii) if an Australian lawyer is the subject of the
investigation, examination or audit -- the lawyer
or an associate or former associate of the law
15 practice of which the lawyer is or was an
associate;
(g) if the subject of the investigation, examination or audit
is or was --
(i) a law practice -- a principal of the law practice;
20 or
(ii) an incorporated legal practice -- a director or
shareholder in the practice; or
(iii) an Australian lawyer -- the lawyer or a principal
of the law practice of which the lawyer is or was
25 an associate;
(h) if the subject of the investigation, examination or audit
is or was --
(i) a law practice -- a client or former client of the
law practice; or
30 (ii) an Australian lawyer -- a client or former client
of the law practice of which the lawyer is or was
an associate,
but only if the information relates to the client or former
client;
page 380
Legal Profession Bill 2007
Provisions relating to investigations Part 15
Miscellaneous Division 5
s. 533
(i) if the subject of the investigation, examination or audit
is or was --
(i) a law practice -- a supervisor, manager or
receiver appointed in relation to the law practice;
5 or
(ii) an Australian lawyer -- a supervisor, manager or
receiver appointed in relation to the law practice
of which the lawyer is or was an associate,
or an Australian legal practitioner or accountant
10 employed by the supervisor, manager or receiver;
(j) an investigator carrying out another investigation,
examination or audit in relation to the law practice or
Australian lawyer who is or was the subject of the
investigation, examination or audit;
15 (k) any other person to the extent that it is necessary for the
purposes of properly conducting the investigation,
examination or audit and making a report on the matter.
(2) A reference in subsection (1) to information obtained in
connection with any such investigation, examination or audit
20 includes a reference to any finding, opinion or recommendation
of the investigator in relation to the investigation, examination
or audit.
(3) No liability (including liability in defamation) is incurred by a
protected person in respect of anything done or omitted to be
25 done in good faith for the purpose of disclosing information
under this section.
(4) In subsection (3) --
"protected person" means any of the following --
(a) the Board or a Board member;
30 (b) the Complaints Committee or a Complaints
Committee member;
(c) an investigator;
(d) a member of staff or a person acting at the direction
of any person or entity referred to in this definition.
page 381
Legal Profession Bill 2007
Part 16 Regulatory authorities
Division 1 Legal Practice Board
s. 534
Part 16 -- Regulatory authorities
Division 1 -- Legal Practice Board
Subdivision 1 -- Establishment
534. Board established
5 (1) A body called the Legal Practice Board is established.
(2) The Board is a body corporate with perpetual succession.
(3) Proceedings may be taken by or against the Board in its
corporate name.
535. Relationship to the Crown
10 The Board does not represent, and is not an agent of, the Crown.
536. Board members
(1) The Board consists of --
(a) the Attorney General; and
(b) the Solicitor General or, if there is no Solicitor General,
15 the State Solicitor; and
(c) subject to section 538, each Queen's Counsel, and each
Senior Counsel --
(i) whose principal place of practice is in this State;
and
20 (ii) who is not a full-time judicial officer; and
(iii) who has, in writing, nominated himself or herself
as a member;
and
(d) 12 local legal practitioners of at least 3 years' standing
25 and practice who are elected as members.
(2) Subject to section 538 and the legal profession rules, an elected
Board member holds office for a term of 2 years from the date
of becoming a member and is eligible for re-election.
page 382
Legal Profession Bill 2007
Regulatory authorities Part 16
Legal Practice Board Division 1
s. 537
537. Who may vote in election
Any local legal practitioner is eligible to vote in an election for
a member under section 536(1)(d).
538. Vacation of office by member
5 (1) A Board member may resign from office by notice in writing
delivered to the Board.
(2) The Attorney General may remove a Board member from office
if the member is absent without leave of the Board from 3
consecutive meetings of the Board of which the member has
10 had notice.
(3) The Board may grant leave of absence to a Board member on
such terms and conditions as it thinks fit.
539. Functions
The Board has the functions conferred on it by this or any other
15 Act.
540. Powers
(1) The Board has all the powers it needs to perform its functions.
(2) Without limiting subsection (1), the Board may for the purpose
of performing its functions --
20 (a) acquire, hold, manage, improve, develop and dispose of
any real or personal property; and
(b) enter into leases, contracts and arrangements; and
(c) provide, take and arrange security; and
(d) employ and engage staff; and
25 (e) do anything incidental to any of its powers.
541. Chairperson and deputy chairperson
(1) The Board members are to elect a chairperson of the Board and
a deputy chairperson of the Board from amongst their number.
page 383
Legal Profession Bill 2007
Part 16 Regulatory authorities
Division 1 Legal Practice Board
s. 542
(2) The chairperson and deputy chairperson each holds office for
one year except where he or she sooner resigns or ceases to be a
member.
(3) A Board member --
5 (a) may not hold office as chairperson for more than
5 consecutive annual terms; and
(b) may not hold office as deputy chairperson for more than
5 consecutive annual terms.
(4) Subject to the direction of the chairperson, or in the absence of
10 the chairperson, the deputy chairperson has and may exercise all
of the functions of the chairperson.
(5) An act or omission of the deputy chairperson acting in the
chairperson's place cannot be questioned on the ground that the
occasion to act in the chairperson's place had not arisen or had
15 ceased.
(6) The chairperson of the Board is to be paid such remuneration
and allowances (if any) as the Board determines from time to
time.
542. Casual vacancies
20 If a casual vacancy occurs in the office of an elected Board
member, the Board may appoint a local legal practitioner to act
as a Board member for the balance of the term of that elected
member.
Subdivision 2 -- Performance
25 543. Presiding at meetings
(1) The chairperson of the Board, if present, is to preside at a
meeting of the Board.
(2) If neither the chairperson nor the deputy chairperson acting as
the chairperson, is presiding under subsection (1), the members
30 present at the meeting are to appoint one of their number to
preside.
page 384
Legal Profession Bill 2007
Regulatory authorities Part 16
Legal Practice Board Division 1
s. 544
544. Quorum
Any 4 Board members form a quorum.
545. Voting
(1) Each Board member has one vote.
5 (2) In the case of an equality of votes, the person presiding has a
casting vote in addition to a deliberative vote.
(3) All questions at a meeting of the Board are to be decided by a
majority of the votes of the members present.
546. Procedures
10 Subject to this Act, the Board may determine its own
procedures.
547. Delegation
(1) The Board may delegate any power or duty of the Board under
another provision of this Act to --
15 (a) a Board member; or
(b) a committee established under section 552; or
(c) an officer or employee of the Board.
(2) The delegation must be in writing executed by the Board.
(3) A committee or person to whom a power or duty is delegated
20 under this section cannot delegate that power or duty.
(4) A committee or person exercising or performing a power or
duty that has been delegated to that committee or person under
this section is to be taken to do so in accordance with the terms
of the delegation unless the contrary is shown.
25 (5) Nothing in this section limits the ability of the Board to perform
a function through an officer or agent in the normal course of
business.
page 385
Legal Profession Bill 2007
Part 16 Regulatory authorities
Division 1 Legal Practice Board
s. 548
(6) This section does not apply to the execution of documents but
authority to execute documents on behalf of the Board can be
given under section 554.
Subdivision 3 -- Financial and reporting provisions
5 548. Application of funds
(1) The money received by the Board under this Act must be
applied by the Board for the purposes of this Act, which
include --
(a) providing services and facilities for the purposes of
10 section 557(5);
(b) the administration and enforcement of the regulations,
the admission rules and the legal profession rules; and
(c) the provision and maintenance of the Law Library at the
Supreme Court.
15 (2) The books, furniture, pictures and all other things in or used in,
or acquired after the commencement of this section for the
purposes of, the Law Library at the Supreme Court are vested in
and are the property of the Board.
549. Accounts and records
20 (1) The Board must --
(a) cause to be kept proper accounts of the financial
transactions of the Board; and
(b) cause to be kept proper records of the business of the
Board; and
25 (c) prepare financial statements in accordance with
Australian Accounting Standards.
(2) Unless the Board determines otherwise, the financial statements
must be prepared on an accrual basis.
page 386
Legal Profession Bill 2007
Regulatory authorities Part 16
Legal Practice Board Division 1
s. 550
550. Audit
The accounts and financial statements of the Board must be
audited at least once a year, at the expense of the Board, by an
auditor appointed by the Board with the prior approval of the
5 Attorney General.
551. Annual and other reports
(1) On or before 31 December in each year the Board must make
and submit to the Attorney General an annual report of its
proceedings for the preceding year ending on 30 June together
10 with a copy of the financial statements and the auditor's report.
(2) The annual report must include details of --
(a) the number, nature, and outcome of --
(i) inquiries undertaken by the Board; and
(ii) matters that have been brought before the State
15 Administrative Tribunal by the Board under this
Act;
and
(b) the number and nature of matters referred to in
paragraph (a) that are outstanding; and
20 (c) any trends or special problems that may have emerged;
and
(d) a forecast of the workload of the Board in the year after
the year to which the report relates; and
(e) any proposals for improving the operation of the Board.
25 (3) The executive officer of the State Administrative Tribunal must
provide the Board with information it may request for the
purpose of making its annual report.
(4) The Attorney General must within 14 days after the day on
which a copy of an annual report, financial statement or
30 auditor's report is received by the Attorney General cause a
copy of the report or statement to be laid before each House of
Parliament or dealt with under section 595.
page 387
Legal Profession Bill 2007
Part 16 Regulatory authorities
Division 1 Legal Practice Board
s. 552
(5) The Board may from time to time report to the Attorney General
its views as to the jurisdiction conferred and the carrying out of
the functions required by Part 13, or any matter connected with
that jurisdiction or that Part.
5 Subdivision 4 -- Miscellaneous
552. Committees
(1) The Board may --
(a) appoint committees of Board members; and
(b) discharge, alter or reconstitute any committee.
10 (2) A committee must comply with any direction or requirement of
the Board.
(3) A committee may, with the approval of the Board, invite any
person, including a member of staff, to participate in a meeting
of the committee but such a person cannot vote on any
15 resolution before the committee.
(4) Subject to subsection (2), a committee may determine its own
procedures.
(5) This section does not apply in relation to the Complaints
Committee.
20 553. Secretary of the Board
(1) The Board may engage or employ a person to be the secretary to
the Board.
(2) The secretary has the functions that the Board directs the
secretary to perform.
25 554. Execution of documents by the Board
(1) The Board is to have a common seal.
page 388
Legal Profession Bill 2007
Regulatory authorities Part 16
Legal Profession Complaints Committee Division 2
s. 555
(2) A document is duly executed by the Board if --
(a) the common seal of the Board is affixed to it in
accordance with subsections (3) and (4); or
(b) it is signed on behalf of the Board by a person or
5 persons authorised to do so under subsection (5).
(3) The common seal of the Board must not be affixed to any
document except as authorised by the Board.
(4) The common seal of the Board must be affixed to a document in
the presence of 2 Board members, each of whom must sign the
10 document to attest that the common seal was so affixed.
(5) The Board may, by writing under its seal, authorise one or more
of its members or staff members to sign documents on behalf of
the Board, either generally or subject to the conditions that are
specified in the authorisation.
15 (6) A document purporting to be executed in accordance with this
section is to be presumed to be duly executed unless the
contrary is shown.
(7) When a document is produced bearing a seal purporting to be
the common seal of the Board, it is to be presumed that the seal
20 is the common seal of the Board unless the contrary is shown.
Division 2 -- Legal Profession Complaints Committee
Subdivision 1 -- Establishment
555. Legal Profession Complaints Committee established
(1) A Legal Profession Complaints Committee is established.
25 (2) The Complaints Committee is a committee of the Board.
page 389
Legal Profession Bill 2007
Part 16 Regulatory authorities
Division 2 Legal Profession Complaints Committee
s. 556
556. Complaints Committee members
(1) The Complaints Committee consists of the following
members --
(a) a chairperson, and not less than 6 other legal
5 practitioners, appointed by the Board from amongst its
members from time to time;
(b) not less than 2 representatives of the community, none
of whom is to be a person who is or has been an
Australian lawyer.
10 (2) The Attorney General is to appoint the members as
representatives of the community after consultation with the
Minister responsible for consumer affairs.
(3) The number of persons to be appointed to the Complaints
Committee as representatives of the community must not
15 exceed one quarter of the total membership of the Complaints
Committee at the time of appointment.
557. Functions of the Complaints Committee
(1) The Complaints Committee has the functions conferred on it by
this or any other Act.
20 (2) Without limiting subsection (1), it is a function of the
Complaints Committee --
(a) to supervise the conduct of legal practitioners; and
(b) to inquire into complaints received under Part 13
Division 4 and, where the Complaints Committee so
25 determines whether for cause or not and whether the
Complaints Committee has received a complaint or not,
any --
(i) conduct on the part of a legal practitioner; or
(ii) matters relating to legal practice,
30 for the purpose of determining whether it may constitute
unsatisfactory professional conduct or professional
misconduct; and
page 390
Legal Profession Bill 2007
Regulatory authorities Part 16
Legal Profession Complaints Committee Division 2
s. 558
(c) if the Complaints Committee considers it appropriate to
do so, to institute professional disciplinary proceedings
against a legal practitioner in the State Administrative
Tribunal; and
5 (d) to supervise and direct the Law Complaints Officer in
the performance of the functions of that officer; and
(e) to comment upon, and make recommendations in
respect of, this Act, the regulations and the legal
profession rules insofar as they may affect the functions
10 of the Complaints Committee.
(3) In addition to the functions set out in this section, a member
appointed by the Attorney General may report independently, as
an individual, to the Attorney General on any aspect of --
(a) an alleged complaint; or
15 (b) an inquiry as to disciplinary matters under Part 13; or
(c) the legal profession rules as they relate to disciplinary
matters or the conduct of legal practice; or
(d) the activities of the Law Complaints Officer or the
Complaints Committee.
20 (4) The Board must not direct or impose any requirement on the
Complaints Committee as to the performance of its functions.
(5) The Board must ensure that the Complaints Committee is
provided with such services and facilities as are reasonably
necessary to enable the Complaints Committee to perform its
25 functions.
558. Term of appointment -- representative of the community
Subject to this Act, a Complaints Committee member appointed
by the Attorney General --
(a) holds office for a term of not more than 3 years
30 specified in the instrument of appointment; and
(b) is eligible for reappointment,
but is not eligible to hold office for more than 6 years in total.
page 391
Legal Profession Bill 2007
Part 16 Regulatory authorities
Division 2 Legal Profession Complaints Committee
s. 559
559. Deputy chairperson
(1) The Board may from time to time appoint a Board member as
deputy chairperson of the Complaints Committee.
(2) The deputy chairperson may act as chairperson --
5 (a) in the absence of the chairperson of the Complaints
Committee; or
(b) if so requested by the chairperson of the Complaints
Committee; or
(c) during a vacancy in the office of chairperson of the
10 Complaints Committee.
(3) While acting as chairperson of the Complaints Committee the
deputy chairperson has, and may perform, the functions of
chairperson.
560. Deputies of representatives of the community
15 (1) One or more persons may be appointed as deputies of the
representatives of the community on the Complaints
Committee.
(2) A person appointed as a deputy representative of the community
is to be appointed on terms applicable to, and is to be selected
20 from persons eligible to be, a representative of the community.
(3) A person appointed as a deputy representative of the community
may, with the concurrence of the chairperson of the Complaints
Committee, act in the place of a representative of the
community at a meeting of the Complaints Committee.
25 (4) While acting as a deputy representative of the community, the
deputy has and may perform the functions of a representative of
the community on the Complaints Committee.
page 392
Legal Profession Bill 2007
Regulatory authorities Part 16
Legal Profession Complaints Committee Division 2
s. 561
561. Removal or resignation
(1) The Attorney General may remove a Complaints Committee
member appointed by the Attorney General from office --
(a) if the member is an insolvent under administration; or
5 (b) on the grounds of --
(i) mental or physical incapacity to carry out the
member's duties in a satisfactory manner; or
(ii) neglect of duty; or
(iii) misconduct;
10 or
(c) if the member is absent without leave of the Complaints
Committee from 3 consecutive meetings of which the
member has had notice.
(2) The Board may remove a Complaints Committee member
15 appointed by the Board from office if the member is absent
without leave of the Complaints Committee from 3 consecutive
meetings of which the member has had notice.
(3) The Complaints Committee may grant leave of absence to a
Complaints Committee member on such terms and conditions as
20 the Board thinks fit.
(4) A Complaints Committee member appointed by the Attorney
General may resign office by notice in writing delivered to the
Attorney General.
(5) A Complaints Committee member appointed by the Board may
25 resign office by notice in writing delivered to the Board.
(6) A reference in this section (other than in subsection (1)(c)) to a
member includes a reference to a deputy member.
page 393
Legal Profession Bill 2007
Part 16 Regulatory authorities
Division 2 Legal Profession Complaints Committee
s. 562
562. Leave of absence
The Attorney General may grant leave of absence to a
Complaints Committee member on such terms and conditions as
the Attorney General thinks fit.
5 563. Termination of office may be deferred
Despite the term of office of a Complaints Committee member
having expired by effluxion of time, the member continues in
office --
(a) until the member is reappointed, or a successor is
10 appointed; and
(b) in any event for the purpose of completing any
part-heard proceedings,
unless the Attorney General otherwise directs.
564. Remuneration and allowances
15 A person appointed to the Complaints Committee as a
representative of the community is to be paid such remuneration
and allowances as the Attorney General from time to time, after
consultation with the Minister for Public Sector Management,
may determine.
20 565. Saving
No act or omission of a person acting in the place of another
under section 559 or 560 is to be questioned on the ground that
the occasion for acting had not arisen or had ceased.
Subdivision 2 -- Performance
25 566. Quorum
(1) At any meeting of the Complaints Committee a quorum is
constituted by 3 members, of whom --
(a) 2 are persons appointed under section 556(1)(a); and
page 394
Legal Profession Bill 2007
Regulatory authorities Part 16
Legal Profession Complaints Committee Division 2
s. 567
(b) one is a representative of the community.
(2) If an investigation by the Complaints Committee under Part 13
Division 6 is commenced and --
(a) a member present at that commencement fails to
5 continue to participate in the proceedings; or
(b) upon the failure of a representative of the community to
continue to participate in the proceedings, no quorum
can be convened,
the determination of the matter may be completed by the
10 remaining members.
567. Meetings
(1) Meetings of the Complaints Committee may be convened --
(a) by the chairperson of the Complaints Committee; or
(b) by the Law Complaints Officer; or
15 (c) at such times and places as the Complaints Committee
determines.
(2) The chairperson presides at all meetings of the Complaints
Committee at which the chairperson is present.
(3) If the chairperson and deputy chairperson are absent from a
20 meeting of the Complaints Committee the members present may
appoint one of their number to act as chairperson.
(4) A person appointed under subsection (3) has, and may perform,
the functions of chairperson.
568. Divisions
25 (1) The Complaints Committee may sit and exercise jurisdiction as
one or more Divisions where a quorum is present.
(2) A reference in this Act, unless the context otherwise requires, to
a meeting of the Complaints Committee includes a reference to
page 395
Legal Profession Bill 2007
Part 16 Regulatory authorities
Division 2 Legal Profession Complaints Committee
s. 569
a meeting when the Complaints Committee is constituted by a
Division.
(3) A determination made by the Complaints Committee when
sitting as a Division is taken to be a determination of the
5 Complaints Committee as a whole.
569. Voting
(1) At a meeting of the Complaints Committee, subject to
subsection (2), each member present is entitled to a deliberative
vote.
10 (2) Any question must be determined by a majority of the votes
lawfully cast but when the deliberative votes cast on a question
are equally divided the chairperson of the Complaints
Committee has a casting vote in addition to a deliberative vote.
570. Complaints Committee may determine its own procedures
15 Subject to this Act, the Complaints Committee may determine
its own procedures and is not required to conduct any
proceedings in a formal manner.
571. Reports
(1) The chairperson of the Complaints Committee must on or
20 before 31 December in each year cause an annual report in
relation to the activities of the Complaints Committee in the
year ending on the preceding 30 June to be made and submitted
to the Attorney General.
(2) The annual report must include details of --
25 (a) the number, nature, and outcome of --
(i) inquiries undertaken by the Complaints
Committee; and
(ii) matters that have been brought before the State
Administrative Tribunal by the Complaints
30 Committee under this Act;
page 396
Legal Profession Bill 2007
Regulatory authorities Part 16
Legal Profession Complaints Committee Division 2
s. 571
and
(b) the number and nature of matters referred to in
paragraph (a) that are outstanding; and
(c) any trends or special problems that may have emerged;
5 and
(d) a forecast of the workload of the Complaints Committee
in the year after the year to which the report relates; and
(e) any proposals for improving the operation of the
Complaints Committee.
10 (3) The Law Complaints Officer is to provide the Complaints
Committee with information it may request for the purpose of
making its annual report.
(4) The Attorney General must within 14 days after the day on
which a copy of an annual report is received by the Attorney
15 General cause a copy of the report or statement to be laid before
each House of Parliament or dealt with under section 595.
(5) In addition to the annual report under subsection (1), the
Complaints Committee must report --
(a) at such other times and in such manner as may be
20 requested, to the Attorney General; and
(b) at such other times and in such manner as may be
requested, to the Board,
on matters relating to its functions and the operation of the
provisions of this Act regulating the conduct and discipline of
25 legal practitioners.
(6) The Complaints Committee may make a report under
subsection (5) of its own volition.
(7) Where a report is to be made under subsection (5) any
Complaints Committee member may request that the report
30 include such matters as that member considers appropriate, and
effect must be given to the request.
page 397
Legal Profession Bill 2007
Part 16 Regulatory authorities
Division 3 Law Complaints Officer and staff
s. 572
Division 3 -- Law Complaints Officer and staff
572. Law Complaints Officer
(1) An office of Law Complaints Officer is established.
(2) The Board must appoint to the office of Law Complaints
5 Officer an Australian legal practitioner with experience in the
conduct of a legal practice.
(3) The Law Complaints Officer may appear at any investigation,
inquiry or hearing under Part 5 either in person or represented
by an Australian legal practitioner.
10 573. Delegation to Law Complaints Officer
(1) The Complaints Committee may, subject to this section,
delegate any power or duty of the Complaints Committee under
another provision of this Act to the Law Complaints Officer.
(2) The Complaints Committee must not delegate its powers under
15 section 426.
(3) The delegation must be in writing executed by the Complaints
Committee.
(4) The delegation may expressly authorise the Law Complaints
Officer to further delegate in writing the power or duty to a
20 member of staff referred to in section 574.
(5) A person to whom a power or duty is delegated as authorised
under subsection (4) cannot delegate that power or duty.
(6) A person exercising or performing a power or duty that has been
delegated to the person under or as authorised under this section
25 is to be taken to do so in accordance with the terms of the
delegation unless the contrary is shown.
page 398
Legal Profession Bill 2007
Regulatory authorities Part 16
Law Complaints Officer and staff Division 3
s. 574
(7) A person exercising or performing a power or duty that has been
delegated to the person under or as authorised under this section
must do so in accordance with --
(a) in the case of a delegation to the Law Complaints
5 Officer -- any directions given to the Law Complaints
Officer by the Complaints Committee; or
(b) in the case of a delegation to a member of staff -- any
directions given to the member by the Law Complaints
Officer.
10 (8) Nothing in this section limits the ability of the Complaints
Committee to perform a function through an officer or agent.
574. Staff
The Board may employ or engage staff for the purpose of
assisting the Complaints Committee and the Law Complaints
15 Officer in their functions.
page 399
Legal Profession Bill 2007
Part 17 Rules
Division 1 Admission rules
s. 575
Part 17 -- Rules
Division 1 -- Admission rules
575. Admission rules
(1) The Board may make rules for the admission of persons to the
5 legal profession under this Act.
(2) Without limiting subsection (1), rules may be made about any of
the following --
(a) the procedure for admission, including --
(i) how an application is to be made;
10 (ii) giving notice of the application to an entity or
public notice of the application;
(iii) the affidavits or certificates the applicant must
provide with or for the application;
(b) admission requirements regarding, and the approval of,
15 academic qualifications and practical legal training;
(c) the examination of applicants for admission and the
assessment of their qualifications;
(d) the disclosure of matters that may affect consideration of
the eligibility of an applicant for admission, or affect
20 consideration of the question of whether the applicant is
a fit and proper person to be admitted, including
convictions that must be disclosed and those that need
not be disclosed;
(e) applications for admission under the trans-Tasman
25 mutual recognition legislative scheme;
(f) the assessment of the qualifications and practical legal
training of overseas qualified or trained applicants;
(g) the conferral of a right of objection to an applicant's
admission;
30 (h) the procedure in the conduct of inquiries under Part 4;
page 400
Legal Profession Bill 2007
Rules Part 17
Legal profession rules Division 2
s. 576
(i) fees and costs payable under the admission rules and the
refund or remission of fees.
(3) Without limiting subsection (1), the rules may provide for
abridging, in specified circumstances, any period of practical
5 legal training required by the rules.
Division 2 -- Legal profession rules
576. Subject-matter of legal profession rules
(1) Legal profession rules may make provision for or with respect
to any aspect of legal practice, including standards of conduct
10 expected of Australian legal practitioners or
Australian-registered foreign lawyers to whom the rules apply.
(2) The power to make rules is not limited to matters for which this
Act specifically authorises the making of legal profession rules.
577. Rules for Australian legal practitioners
15 The Board may make rules about legal practice in this
jurisdiction engaged in by Australian legal practitioners.
578. Rules for Australian-registered foreign lawyers
The Board may make rules about engaging in legal practice in
this jurisdiction as an Australian-registered foreign lawyer.
20 579. Rules for incorporated legal practices and multi-disciplinary
partnerships
(1) The Board may make rules for or with respect to the following
matters --
(a) the provision of legal services by or in connection with
25 incorporated legal practices or multi-disciplinary
partnerships, and in particular the provision of legal
services by --
(i) officers or employees of incorporated legal
practices; or
page 401
Legal Profession Bill 2007
Part 17 Rules
Division 2 Legal profession rules
s. 579
(ii) partners or employees of multi-disciplinary
partnerships;
(b) the provision of services that are not legal services by or
in connection with incorporated legal practices or
5 multi-disciplinary partnerships, but only if the provision
of those services by --
(i) officers or employees of incorporated legal
practices; or
(ii) partners or employees of multi-disciplinary
10 partnerships,
may give rise to a conflict of interest relating to the
provision of legal services.
(2) Without limiting subsection (1), rules may be made for or with
respect to professional obligations relating to legal services
15 provided by or in connection with incorporated legal practices
or multi-disciplinary partnerships.
(3) However, the rules made under this section cannot --
(a) regulate any services that an incorporated legal practice
may provide or conduct (other than the provision of
20 legal services or other services that may give rise to a
conflict of interest relating to the provision of legal
services); or
(b) regulate or prohibit the conduct of officers or employees
of an incorporated legal practice (other than in
25 connection with the provision of legal services or other
services that may give rise to a conflict of interest
relating to the provision of legal services); or
(c) regulate any services that a multi-disciplinary
partnership or partners or employees of a
30 multi-disciplinary partnership may provide or conduct
(other than the provision of legal services or other
services that may give rise to a conflict of interest
relating to the provision of legal services); or
page 402
Legal Profession Bill 2007
Rules Part 17
General provisions Division 3
s. 580
(d) regulate or prohibit the conduct of partners or employees
of a multi-disciplinary partnership (other than in
connection with the provision of legal services or
services that may give rise to a conflict of interest
5 relating to the provision of legal services).
(4) The regulations may make provision for or with respect to the
making of legal profession rules under this section.
580. Rules for Board, Law Library and Complaints Committee
(1) The Board may make rules for or with respect to the following
10 matters --
(a) the election of Board members;
(b) the annual election of the chairperson and deputy
chairperson of the Board;
(c) the meetings and proceedings of the Board;
15 (d) the control and use of the Law Library at the Supreme
Court, the persons permitted to use the Library, and the
removal of books from the Library;
(e) matters relevant to the functions of the Complaints
Committee.
20 (2) The Board may prescribe a scale of fees to be charged for or in
respect of proceedings under this Act other than proceedings
before the State Administrative Tribunal.
Division 3 -- General provisions
581. Binding nature of legal profession rules
25 Legal profession rules are binding on Australian legal
practitioners and locally registered foreign lawyers to whom
they apply.
page 403
Legal Profession Bill 2007
Part 17 Rules
Division 3 General provisions
s. 582
582. Rules inconsistent with regulations
Rules made under this Act do not have effect to the extent that
they are inconsistent with regulations made under this Act.
583. Rules are subsidiary legislation
5 Rules made under this Act are subsidiary legislation as defined
in the Interpretation Act 1984.
page 404
Legal Profession Bill 2007
General provisions Part 18
s. 584
Part 18 -- General provisions
584. Liability of principals
(1) If a law practice contravenes any provision of this Act imposing
an obligation on the practice, each principal of the practice is
5 taken to have contravened the same provision, unless the
principal establishes that --
(a) the practice contravened the provision without the
knowledge actual, imputed or constructive of the
principal; or
10 (b) the principal was not in a position to influence the
conduct of the law practice in relation to its
contravention of the provision; or
(c) the principal, if in that position, used all due diligence to
prevent the contravention by the practice.
15 (2) Subsection (1) does not affect the liability of the law practice for
the contravention.
(3) A contravention of a requirement imposed on a law practice by
this Act is capable of constituting unsatisfactory professional
conduct or professional misconduct by a principal of the
20 practice.
585. Injunctions
(1) The Board may apply to the Supreme Court for an injunction
under this section if a person has engaged, is engaging or is
proposing to engage in conduct that constituted, constitutes or
25 would constitute --
(a) a contravention of this Act; or
(b) attempting to contravene this Act; or
(c) aiding, abetting, counselling or procuring a person to
contravene this Act; or
page 405
Legal Profession Bill 2007
Part 18 General provisions
s. 585
(d) inducing or attempting to induce, whether by threats,
promises or otherwise, a person to contravene this Act;
or
(e) being in any way, directly or indirectly, knowingly
5 concerned in, or party to, the contravention by a person
of this Act; or
(f) conspiring with others to contravene this Act.
(2) On an application under subsection (1), the Supreme Court may
grant an injunction, on any terms the Court thinks appropriate,
10 restraining the person from engaging in the conduct and, if in
the opinion of the Court it is desirable to do so, requiring the
person to do any act or thing.
(3) If an application has been made under subsection (1), the
Supreme Court may, if the Court determines it to be
15 appropriate, grant an injunction by consent of all the parties to
the proceeding, whether or not the Court is satisfied that
subsection (1) applies.
(4) If in the opinion of the Supreme Court it is desirable to do so,
the Court may grant an interim injunction pending
20 determination of an application under subsection (1).
(5) The Supreme Court may vary or discharge an injunction granted
under subsection (1) or (4).
(6) The power of the Supreme Court to grant an injunction
restraining a person from engaging in conduct may be
25 exercised --
(a) whether or not it appears to the Court that the person
intends to engage again, or to continue to engage, in
conduct of that kind; and
(b) whether or not the person has previously refused or
30 failed to do that act or thing; and
(c) whether or not there is an imminent danger of
substantial damage to any person if the first-mentioned
person refuses or fails to do that act or thing.
page 406
Legal Profession Bill 2007
General provisions Part 18
s. 586
(7) The Supreme Court must not require the Board or any other
person, as a condition of granting an interim injunction, to give
an undertaking as to damages.
586. Disclosure of information by local regulatory authorities
5 (1) A local regulatory authority may disclose information to another
local regulatory authority about any matter relating to or arising
under this Act or a corresponding law.
(2) A local regulatory authority may disclose information to an
interstate regulatory authority about any matter relating to or
10 arising under this Act or a corresponding law.
(3) The regulations may authorise a local regulatory authority to
disclose information to a person or body prescribed, or of a
class prescribed, by the regulations relating to or arising under
this Act or a corresponding law, subject to any conditions
15 specified in the regulations.
587. Confidentiality of personal information
(1) In this section --
"personal information" means information or an opinion
(including information or an opinion forming part of a
20 database), that is recorded in any form and whether true or
not, about a natural person whose identity is apparent, or
can be reasonably ascertained, from the information or
opinion, but does not include information or an opinion of a
kind prescribed by the regulations;
25 "relevant person" means --
(a) a local regulatory authority; or
(b) a member or former member of a local regulatory
authority; or
(c) a person currently or previously employed by or
30 acting at the direction of a local regulatory authority.
page 407
Legal Profession Bill 2007
Part 18 General provisions
s. 588
(2) A relevant person must not disclose to any other person,
whether directly or indirectly, any personal information
obtained by reason of being a relevant person.
Penalty: a fine of $5 000.
5 (3) Subsection (2) does not apply to the disclosure of
information --
(a) to the extent the disclosure is reasonably required to
perform functions under this Act or under any other Act;
or
10 (b) to the extent that the relevant person is expressly
authorised, permitted or required to disclose the
information under this Act or any other Act; or
(c) with the prior consent in writing of the person to whom
the information relates; or
15 (d) to a court or tribunal in the course of legal proceedings;
or
(e) pursuant to an order of a court or tribunal under any Act
or law; or
(f) to the extent that the disclosure is reasonably required to
20 enable the enforcement or investigation of the criminal
law or a disciplinary matter.
(4) Subsection (2) extends to the disclosure of information that was
disclosed under a corresponding law to a local regulatory
authority or a relevant person.
25 588. Professional privilege or duty of confidence does not affect
validity or compliance with certain requirements
(1) This section applies to a requirement under --
(a) section 227 to give written notice of an irregularity in
connection with a trust account, a trust ledger account or
30 trust money; or
(b) section 497 to give access to documents or information;
or
page 408
Legal Profession Bill 2007
General provisions Part 18
s. 589
(c) section 519 to produce documents, provide information
or otherwise assist in, or cooperate with, an
investigation.
(2) The validity of the requirement is not affected, and a person is
5 not excused from complying with the requirement, on the
ground of legal professional privilege or any other duty of
confidence.
589. Duty to report suspected offences
(1) This section applies if the Board or the Complaints Committee
10 suspects on reasonable grounds, after investigation or otherwise,
that a person has committed an offence against any Act or law.
(2) The Board or Complaints Committee must --
(a) report the suspected offence to the appropriate
prosecuting authority; and
15 (b) make available to the authority the information and
documents relevant to the suspected offence in its
possession or under its control.
(3) The obligation under subsection (2)(b) to make available the
information and documents continues while the Board or
20 Complaints Committee holds the relevant suspicion.
(4) This section does not apply to --
(a) offences against this Act or the Legal Practice Act 2003;
or
(b) offences specified, or of a class or description specified,
25 by the regulations for the purposes of this section.
590. Contempt of the Supreme Court
The imposition of a penalty for a contravention of a provision of
this Act does not affect the power of the Supreme Court to
punish a contempt of the Court.
page 409
Legal Profession Bill 2007
Part 18 General provisions
s. 591
591. Protection from liability
(1) In this section --
"protected person" means --
(a) the Minister; or
5 (b) the Board; or
(c) a Board member; or
(d) an employee of the Board; or
(e) the Complaints Committee; or
(f) a Complaints Committee member; or
10 (g) the Law Complaints Officer; or
(h) a person conducting a mediation under Part 13
Division 5; or
(i) an investigator under Part 15 or an investigator's
assistant under that Part; or
15 (j) an external intervener (as defined in section 471); or
(k) the Legal Costs Committee established under
section 310; or
(l) a member of the Legal Costs Committee established
under section 310; or
20 (m) the Trust; or
(n) a trustee of the Trust; or
(o) an employee of the Trust; or
(p) the Law Society; or
(q) an employee of the Law Society; or
25 (r) the PII management committee referred to in
section 331 or any member of that committee; or
(s) any committee, or member of a committee, of the
Board, the Trust or the Law Society.
(2) An action in tort does not lie against a protected person for
30 anything that the protected person has done, in good faith, in the
page 410
Legal Profession Bill 2007
General provisions Part 18
s. 592
performance or purported performance of a function under this
Act.
(3) The protection given by subsection (2) applies even though the
thing done as described in that subsection may have been
5 capable of being done whether or not this Act had been enacted.
(4) In this section a reference to the doing of anything includes a
reference to the omission to do anything.
(5) A person who --
(a) performs any function in relation to an inquiry before
10 the Board under this Act; or
(b) is otherwise concerned in an inquiry before the Board
under this Act,
has, in respect of any such function or concern, the same
protection and immunity as a member or an officer of the
15 Supreme Court, or a witness or a party before the Supreme
Court, would have in respect of a function or concern of a like
nature related to the jurisdiction of the Supreme Court.
592. Legal proceedings
(1) Any proceedings for an offence against this Act may be taken in
20 the name of the Board by a person authorised in that behalf by
the Board.
(2) All proceedings for offences against this Act are to be heard by
a court of summary jurisdiction constituted by a magistrate.
593. Evidentiary certificates
25 (1) A certificate issued by the Board, specifying that, on a date or
during a period specified in the certificate --
(a) a person held or did not hold a local practising
certificate; or
page 411
Legal Profession Bill 2007
Part 18 General provisions
s. 593
(b) the local practising certificate of a person was subject to
a specified condition,
is, in the absence of proof to the contrary, proof of the matters
stated in it.
5 (2) A certificate issued by an interstate regulatory authority
specifying that, on a date or during a period specified in the
certificate --
(a) a person held or did not hold an interstate practising
certificate; or
10 (b) the interstate practising certificate of a person was
subject to a specified condition,
is, in the absence of proof to the contrary, proof of the matters
stated in it.
(3) A certificate issued by the Board, specifying that, on a date or
15 during a period specified in the certificate --
(a) a person was or was not registered as a locally registered
foreign lawyer; or
(b) a specified locally registered foreign lawyer was subject
to a specified condition,
20 is, in the absence of proof to the contrary, proof of the matters
stated in it.
(4) A certificate issued by a foreign registration authority, as
defined in section 150, specifying that, on a date specified in the
certificate, specified foreign regulatory action was taken in
25 relation to a person is, in the absence of proof to the contrary,
proof of the matters stated in it.
(5) A certificate issued by the Board, specifying that a matter
specified in the certificate is, or was at any time specified in the
certificate on the register is, in the absence of proof to the
30 contrary, proof that the matter is, or was at the specified time,
on that register.
page 412
Legal Profession Bill 2007
General provisions Part 18
s. 594
(6) A certificate issued by the Board, specifying that, on a date or
during a period specified in the certificate a person specified in
the certificate was the holder of an office as --
(a) a Board member; or
5 (b) a Complaints Committee member; or
(c) the secretary to the Board; or
(d) the Law Complaints Officer,
is, in the absence of proof to the contrary, proof of the matters
stated in it.
10 (7) A document signed by --
(a) the Law Complaints Officer; or
(b) the chairperson of, or any 2 members present at, a
meeting of, the Complaints Committee,
and purporting to be a record or copy of a finding, order or
15 report of the Complaints Committee, or to set out the nature of
the power exercised and the manner in which it was exercised,
is, in the absence of proof to the contrary, proof of the matters
stated in it.
(8) A document purporting to be a copy of the admission rules or
20 legal profession rules and certified as such by the Board is, in
the absence of proof to the contrary, proof of the due making,
existence and content of the rules.
594. Approved forms
An authority having a power or function under this Act may
25 approve application forms for use in connection with that power
or function.
595. Laying documents before House of Parliament that is not
sitting
(1) If section 389(2), 551(4) or 571(4) requires the Attorney
30 General to cause the text of a document to be laid before each
page 413
Legal Profession Bill 2007
Part 18 General provisions
s. 596
House of Parliament, or dealt with under this section, within a
period and --
(a) at the commencement of the period, a House of
Parliament is not sitting; and
5 (b) the Attorney General is of the opinion that the House
will not sit during that period,
the Attorney General must transmit a copy of the document to
the Clerk of that House.
(2) A copy of the document transmitted to the Clerk of a House
10 under subsection (1) is taken to have been laid before the
House.
(3) The laying of a copy of the report before a House that is taken
to have occurred under subsection (2) is to be reported to the
House by the Clerk, and recorded in the Votes and Proceedings
15 or Minutes of Proceedings, on the first sitting day of the House
after the Clerk received the copy.
596. Regulations
(1) The Governor may make regulations for or with respect to any
matter or thing that is required or permitted by this Act to be
20 prescribed or necessary to be prescribed to give effect to this
Act.
(2) Without limiting the generality of subsection (1), the Governor
may make regulations --
(a) providing for fees; and
25 (b) imposing a penalty for a contravention of a regulation,
not exceeding a fine of $5 000.
(3) Without limiting the generality of subsection (1), the Governor
may make regulations for or with respect to matters for or with
respect to which admission rules or legal profession rules have
30 been or may be made.
page 414
Legal Profession Bill 2007
General provisions Part 18
s. 597
(4) A regulation may provide that an application may be made to
the State Administrative Tribunal for a review of a specified
decision or class of decisions made by a specified person or
body in the exercise of functions conferred or imposed under
5 the regulations.
597. Review of Act
(1) The Attorney General must review this Act to determine
whether the policy objectives of the Act remain valid and
whether the terms of the Act remain appropriate for securing
10 those objectives.
(2) The review must be undertaken as soon as possible after the
period of 5 years from the date of assent to this Act.
(3) A report on the outcome of the review must be tabled in each
House of Parliament within 12 months after the end of the
15 period of 5 years from the date of assent to this Act.
page 415
Legal Profession Bill 2007
Part 19 Repeal, savings, transitional and other provisions
Division 1 Repeals
s. 598
Part 19 -- Repeal, savings, transitional and
other provisions
Division 1 -- Repeals
598. Legal Practice Act 2003 repealed
5 The Legal Practice Act 2003 is repealed.
599. Legal Contribution Trust Act 1967 repealed
The Legal Contribution Trust Act 1967 is repealed.
600. Interpretation Act 1984 not affected
Except where the contrary intention appears, this Part does not
10 prejudice or affect the application of the Interpretation Act 1984
to and in relation to a repeal effected by section 598 or 599.
Division 2 -- Savings and transitional provisions relating to
repeal of Legal Practice Act 2003
601. Definitions
15 In this Division --
"commencement day" means the day on which section 598
comes into operation;
"1893 Act" means the Legal Practitioners Act 1893;
"2003 Act" means the Legal Practice Act 2003.
20 602. Articles and other practical legal training
The admission rules may include transitional provisions in
relation to practical legal training being undertaken on the
commencement day.
page 416
Legal Profession Bill 2007
Repeal, savings, transitional and other provisions Part 19
Savings and transitional provisions relating to repeal of Legal Division 2
Practice Act 2003
s. 603
603. Admission
(1) On the commencement day, a person admitted to legal practice
in this jurisdiction becomes a local lawyer as if the person had
been admitted to the legal profession under this Act.
5 (2) Despite anything to the contrary in subsection (1), the day of
admission of a person referred to in that subsection is the day
the person was admitted to legal practice in this jurisdiction.
604. Existing applications for admission
(1) This section applies to an application for admission as a legal
10 practitioner made by an applicant before the commencement
day that has not been heard by the Supreme Court before the
commencement day (an "existing application").
(2) The applicant may be admitted as a lawyer under this Act if the
applicant could have been admitted as a legal practitioner under
15 the 2003 Act if this Act had not been enacted, and the admission
requirements of this Act are taken to have been satisfied in
relation to the applicant.
(3) Without limiting subsection (2), a certificate referred to in
section 28(1)(c) of the 2003 Act and issued by the Board before
20 the commencement day is taken to be a compliance certificate
for the purposes of this Act.
605. The Roll
The Roll of Practitioners kept under section 31 of the 2003 Act
immediately before the commencement day continues as the
25 local roll under this Act.
606. Practising certificates
(1) A practice certificate in force under the 2003 Act immediately
before the commencement day is taken, on and after that day, to
be a local practising certificate issued under this Act and may be
30 renewed, suspended, cancelled or amended accordingly.
page 417
Legal Profession Bill 2007
Part 19 Repeal, savings, transitional and other provisions
Division 2 Savings and transitional provisions relating to repeal of Legal
Practice Act 2003
s. 606
(2) If a person has applied under the 2003 Act for the grant or
renewal of a practice certificate and the application has not been
determined before the commencement day --
(a) the application is to be determined as if it were an
5 application under this Act for the grant or renewal of a
local practising certificate; and
(b) the practice certificate already held by the applicant
remains in force as if it were a local practising certificate
issued under this Act until a new certificate is issued or
10 the application is refused.
(3) Any conditions or restrictions attaching to a practice certificate
issued under the 2003 Act continue to attach to the certificate on
and after the commencement day.
(4) Within 28 days after the commencement day, a person referred
15 to in subsection (2) must give the Board a written statement --
(a) about any show cause event in relation to the person that
happened after the person was first admitted as a legal
practitioner, barrister, barrister and solicitor, or solicitor,
under an Act of this or another jurisdiction; and
20 (b) explaining why, despite the event, the applicant is a
suitable person to hold, or continue to hold, a local
practising certificate.
(5) Subsection (4) applies whether or not the person has been
granted a practising certificate, the person's practising
25 certificate has been renewed, or the Board is continuing to deal
with the person's application.
(6) A contravention of subsection (4) is capable of constituting
unsatisfactory professional conduct or professional misconduct.
(7) Section 37(3) does not apply in relation to an interstate
30 practising certificate granted or renewed before the
commencement day.
page 418
Legal Profession Bill 2007
Repeal, savings, transitional and other provisions Part 19
Savings and transitional provisions relating to repeal of Legal Division 2
Practice Act 2003
s. 607
(8) Subsection (7) has effect only in relation to the period
commencing on the commencement day and ending 6 months
after that day.
607. Actions before the commencement day that continue to
5 have effect
(1) This section applies to an action taken, however described,
by --
(a) the Board, in relation to a person or the person's practice
certificate before the commencement day, other than an
10 action dealt with in another section of this Part; or
(b) the Complaints Committee or the Law Complaints
Officer in relation to a person whether the action is
taken before or after the commencement day.
(2) The action, and any rights or entitlements the person has in
15 relation to that action, continue to have effect under this Act
subject to --
(a) any conditions stated in a document by which the action
was taken in relation to the person, or in a notice given
to the person about the action; and
20 (b) this Act.
(3) To the extent of any inconsistency among provisions applying
to the action, this Act prevails.
(4) In subsections (2) and (3) --
(a) if the action, right or entitlement involves an appeal to
25 the Supreme Court or a proceeding before the Court
started before the commencement day -- without
limiting the power of the Supreme Court, the Court may
direct how that action, right, entitlement or proceeding
should be continued; or
30 (b) if the action, right or entitlement involves an application
for review to the State Administrative Tribunal or a
proceeding before the Tribunal started before the
page 419
Legal Profession Bill 2007
Part 19 Repeal, savings, transitional and other provisions
Division 2 Savings and transitional provisions relating to repeal of Legal
Practice Act 2003
s. 608
commencement day -- without limiting the power of the
State Administrative Tribunal, the Tribunal may direct
how that action, right, entitlement or proceeding should
be continued; or
5 (c) otherwise -- a regulation made under section 637 may
provide for the way the action, right or entitlement is to
continue under this Act.
608. Restricted legal practice
(1) A legal practitioner who immediately before the commencement
10 day was entitled to practise on his or her own account under the
2003 Act is taken to have the required experience for the
purposes of section 50.
(2) A legal practitioner who --
(a) before the commencement day commenced a term as an
15 employed legal practitioner in accordance with
section 33(1) or (2) of the 2003 Act; and
(b) completes the term specified in section 33(1) of the
2003 Act, or the term specified by the Board under
section 33(2) of the 2003 Act, on or after the
20 commencement day,
is taken to have the required experience for the purposes of
section 50.
(3) A legal practitioner who has not commenced a term as an
employed legal practitioner in accordance with section 33(1) or
25 (2) of the 2003 Act before the commencement day must comply
with section 50, irrespective of whether or not the legal
practitioner was granted a practising certificate before the
commencement day.
609. Foreign lawyers
30 (1) Registration as a foreign lawyer under the 2003 Act and in force
immediately before the commencement day, or expressed to
page 420
Legal Profession Bill 2007
Repeal, savings, transitional and other provisions Part 19
Savings and transitional provisions relating to repeal of Legal Division 2
Practice Act 2003
s. 610
take effect on or after the commencement day, is taken to be
registration as a locally registered foreign lawyer under this Act.
(2) Notice seeking registration as a foreign lawyer under the 2003
Act that was pending immediately before the commencement
5 day is taken to be an application for registration as a locally
registered foreign lawyer under this Act.
610. Incorporated legal practices
(1) An incorporated legal practice that was, immediately before the
commencement day, an incorporated legal practice under the
10 2003 Act is taken to have complied with section 102.
(2) An order made under section 69 of the 2003 Act in force
immediately before the commencement day continues in force
on and after that day according to its terms as if it were an order
under section 119.
15 (3) An order made under section 70 of the 2003 Act in force
immediately before the commencement day continues in force
on and after that day according to its terms as if it were an order
under section 120.
611. Orders in relation to multi-disciplinary partnerships
20 An order made under section 87 of the 2003 Act in force
immediately before the commencement day continues in force
on and after that day according to its terms as if it were an order
under section 145.
612. Approvals under section 133 of 2003 Act
25 An approval given under section 133 of the 2003 Act in force
immediately before the commencement day continues in force
on and after that day as if it were an approval given under
section 15(3).
page 421
Legal Profession Bill 2007
Part 19 Repeal, savings, transitional and other provisions
Division 2 Savings and transitional provisions relating to repeal of Legal
Practice Act 2003
s. 613
613. Authority to receive trust money
Subject to any conditions or restrictions attaching to the local
practising certificate, a local practising certificate referred to in
section 606(1) is taken, on and after the commencement day, to
5 authorise the holder to receive trust money.
614. Deficiencies in trust accounts
Sections 226 and 227 apply to a deficiency in a trust account or
a failure to pay or deliver trust money whether the deficiency or
failure to pay or deliver relates to money received before, on or
10 after the commencement day.
615. Investigations
An investigation may be undertaken under Part 9 Division 3 in
relation to a trust account or trust money received by a law
practice whether that account was established, or that money
15 was received, before, on or after the commencement day.
616. Client information and legal costs
(1) Subject to subsection (2), Part 10 applies to a matter if the client
first instructs the law practice on or after the commencement
day and Part 13 of the 2003 Act continues to apply to a matter if
20 the client first instructed the law practice in the matter before
the commencement day.
(2) Part 10 does not apply in respect of a law practice that is
retained by another law practice on behalf of a client on or after
the commencement day in relation to a matter in which the other
25 law practice was retained by the client before the
commencement day and in that case Part 13 of the 2003 Act
continues to apply.
(3) If --
(a) a bill of costs was lodged for taxation with a taxing
30 officer under Part 13 Division 3 of the 2003 Act before
the commencement day; and
page 422
Legal Profession Bill 2007
Repeal, savings, transitional and other provisions Part 19
Savings and transitional provisions relating to repeal of Legal Division 2
Practice Act 2003
s. 617
(b) the taxation was not commenced or completed before
that day,
the application may be dealt with under that Part as if that Part
had not been repealed.
5 617. Legal costs determinations and Legal Costs Committee
(1) A legal costs determination made under the 2003 Act that was
in force immediately before the commencement day --
(a) continues in force on and after that day as if it were a
legal costs determination made under this Act; and
10 (b) is to be reviewed under section 276 in the period of
2 years after it was last reviewed under the 2003 Act.
(2) A person who was a Legal Costs Committee member under the
2003 Act immediately before the commencement day continues
on and after that day to be a Legal Costs Committee member
15 under this Act.
618. Legal Practice Board continued
The Legal Practice Board established under this Act is the same
legal entity as, and a continuation of, the Legal Practice Board
established under the 2003 Act, and the rights and liabilities of
20 or in relation to the Board established under the 2003 Act
continue as rights and liabilities of the Board established under
this Act.
619. Membership of Board
(1) Subject to subsection (2), a person who was a Legal Practice
25 Board member under the 2003 Act immediately before the
commencement day continues on and after that day to be a
Legal Practice Board member under this Act.
(2) A Queen's Counsel or Senior Counsel who has not nominated
himself or herself under section 536(1)(c) as a Board member
30 within the period of 6 months after commencement day ceases
to be a Board member at the end of that period.
page 423
Legal Profession Bill 2007
Part 19 Repeal, savings, transitional and other provisions
Division 2 Savings and transitional provisions relating to repeal of Legal
Practice Act 2003
s. 620
620. Complaints Committee continued
(1) The Legal Profession Complaints Committee established under
this Act is the same entity as, and a continuation of, the Legal
Practitioners Complaints Committee established under the 2003
5 Act.
(2) A person who was a Legal Practitioners Complaints Committee
member under the 2003 Act immediately before the
commencement day continues on and after that day to be a
Legal Profession Complaints Committee member under this
10 Act.
621. Complaints and investigations under Act of prior conduct
(1) A complaint made to the Complaints Committee under Part IV
of the 1893 Act or Part 13 of the 2003 Act or an inquiry
commenced under either of those Parts before the
15 commencement day that has not been finally dealt with before
that day may be dealt with under this Act.
(2) Subject to a regulation under section 637, the Complaints
Committee or the State Administrative Tribunal, as the case
requires, may change the way the complaint or inquiry is dealt
20 with under this Act in order to prevent duplication or
unreasonable delay.
(3) A complaint may be made under Part 13 on or after the
commencement day in relation to conduct of a law practice or
an Australian legal practitioner occurring before that day, so
25 long as a complaint has not been made under Part IV of the
1893 Act or Part 12 of the 2003 Act in relation to the same
conduct.
(4) An investigation may be commenced under Part 13 on or after
the commencement day in relation to conduct of an Australian
30 legal practitioner occurring before that day, so long as the same
conduct had not been the subject of an inquiry before that day
under Part IV of the 1893 Act or Part 12 of the 2003 Act.
page 424
Legal Profession Bill 2007
Repeal, savings, transitional and other provisions Part 19
Savings and transitional provisions relating to repeal of Legal Division 2
Practice Act 2003
s. 622
622. Discipline
(1) Part 13 applies in relation to conduct of Australian lawyers,
former Australian lawyers, Australian legal practitioners and
former Australian legal practitioners whether the conduct
5 occurred before or after the commencement day.
(2) Part 13 applies to conduct consisting of a contravention of the
1893 Act or the 2003 Act or the rules in force under those Acts
before the commencement of this section as if the conduct
consisted of a contravention of this Act or the legal profession
10 rules.
623. Examiners
If a person was appointed as an examiner under section 142 of
the 2003 Act, and the appointment had not ended before the
commencement day, that person may continue to act as an
15 examiner under that appointment and, for that purpose,
sections 142 to 145 of the 2003 Act continue to apply to and in
relation to the examiner.
624. Orders under section 149 of 2003 Act
(1) An order made under section 149 of the 2003 Act in force
20 immediately before the commencement day --
(a) continues in force on and after that day according to its
terms; and
(b) may be varied or revoked by the State Administrative
Tribunal.
25 (2) Section 149(4) of the 2003 Act continues to apply in relation to
an order made under that section.
625. Orders under section 150 of 2003 Act
(1) An order made under section 150 of the 2003 Act in force
immediately before the commencement day --
30 (a) continues in force on and after that day according to its
terms; and
page 425
Legal Profession Bill 2007
Part 19 Repeal, savings, transitional and other provisions
Division 2 Savings and transitional provisions relating to repeal of Legal
Practice Act 2003
s. 626
(b) may be varied or revoked by the State Administrative
Tribunal.
(2) Section 150(2) of the 2003 Act continues to apply in relation to
an order made under that section.
5 626. Appointments and authorisations under section 151 of the
2003 Act
If a person was appointed as a supervising solicitor of a practice
under section 151 of the 2003 Act, and the appointment had not
ended before the commencement day --
10 (a) the person is taken to have been appointed as a manager
for the law practice; and
(b) any authorisation given by the Board under that section
continues to apply until revoked or varied by the Board.
627. Appointments under section 154 of the 2003 Act
15 A person appointed to conduct an inquiry under section 154 of
the 2003 Act who has not yet reported to the Board on that
inquiry may continue the inquiry and report to the Board under
that section.
628. Appointments and orders under section 156 of the 2003 Act
20 If a person was appointed as a supervising solicitor of a practice
under an authorisation under section 156 of the 2003 Act, and
the appointment had not ended before the commencement
day --
(a) the person is taken to have been appointed under this
25 Act as a manager for the law practice; and
(b) any order given by the State Administrative Tribunal
under section 156 of the 2003 Act continues to apply
until revoked or varied by the State Administrative
Tribunal.
page 426
Legal Profession Bill 2007
Repeal, savings, transitional and other provisions Part 19
Savings and transitional provisions relating to repeal of Legal Division 2
Practice Act 2003
s. 629
629. Board may give directions
(1) For the purposes of sections 623 to 628, the Board may give
written directions to a person about how the person may
proceed under this Act.
5 (2) Subsection (1) does not prevent a person from making an
application under section 509, including in relation to a
direction given under subsection (1).
630. References to 1893 and 2003 Acts and related matters
(1) In an Act or document, a reference to the Legal Practice
10 Act 2003 or the Legal Practitioners Act 1893 may, if the context
permits, be taken to be a reference to this Act.
(2) A reference in an Act to any of the following may, if the context
permits, be read as a reference to an Australian lawyer --
(a) legal practitioner;
15 (b) solicitor;
(c) solicitor and barrister;
(d) barrister;
(e) counsel;
(f) lawyer.
20 (3) However, if, under that reference, a person is entitled to engage
in legal practice in this jurisdiction, the reference is to be read
subject to sections 12 and 13 of this Act.
(4) Subsection (3) does not affect the appointment of a person
before the commencement of this subsection if the appointment
25 was valid when made.
page 427
Legal Profession Bill 2007
Part 19 Repeal, savings, transitional and other provisions
Division 3 Savings and transitional provisions relating to repeal of Legal
Contribution Trust Act 1967
s. 631
Division 3 -- Savings and transitional provisions relating to
repeal of Legal Contribution Trust Act 1967
631. Terms used in this Division
In this Division --
5 "commencement day" means the day on which section 599
comes into operation.
"LCT Act" means the Legal Contribution Trust Act 1967.
632. Legal Contribution Trust continued
The Legal Contribution Trust established under this Act is the
10 same legal entity as, and a continuation of, the Legal
Contribution Trust established under the LCT Act, and the
rights and liabilities of or in relation to the Trust established
under the LCT Act continue as rights and liabilities of the Trust
established under this Act.
15 633. Solicitors' Guarantee Fund
The Solicitors' Guarantee Fund established under this Act is a
continuation of the Solicitors' Guarantee Fund established under
the LCT Act.
634. Contributions
20 In calculating the contributions paid to the Guarantee Fund by a
local legal practitioner or an interstate legal practitioner under
this Act, account must be taken of any contribution paid by the
practitioner under section 93 or 146 of the Legal Practice
Act 2003 or under any previous enactment corresponding to
25 either of those sections.
635. Claims for acts happening before the commencement day
(1) If a person made a claim against the Guarantee Fund as it
existed before the commencement day in relation to an act
before the commencement day, the claim is to be dealt with
30 under the LCT Act as in force immediately before the
page 428
Legal Profession Bill 2007
Repeal, savings, transitional and other provisions Part 19
Transitional regulations Division 4
s. 636
commencement day and the law governing the liability of the
Guarantee Fund, and the amount of the reimbursement, is the
law as in force immediately before the commencement day.
(2) If a person did not make a claim against the Guarantee Fund as
5 it existed before the commencement day in relation to an act
before the commencement day, the claim may be made under
Part 12 Division 3 but the liability of the Guarantee Fund, and
the amount of the reimbursement, is governed by the LCT Act
as in force immediately before the commencement day.
10 636. References to Legal Contribution Trust Act 1967
In an Act or document, a reference to the Legal Contribution
Trust Act 1967 may, if the context permits, be taken to be a
reference to this Act.
Division 4 -- Transitional regulations
15 637. Transitional regulations
(1) If this Act does not provide sufficiently for a matter or issue of a
transitional nature that arises as a result of --
(a) the repeal of the Legal Practice Act 2003 or the Legal
Contribution Trust Act 1967 and the enactment of this
20 Act; or
(b) the amendments effected by this Act,
the Governor may make regulations ("transitional
regulations") prescribing all matters that are required,
necessary or convenient to be prescribed in relation to that
25 matter.
(2) If the transitional regulations provide that a state of affairs
specified or described in the regulations is to be taken to have
existed, or not to have existed, on and from a day that is earlier
than the day on which the regulations are published in the
30 Gazette but not earlier than the commencement day, the
regulations have effect according to their terms.
page 429
Legal Profession Bill 2007
Part 19 Repeal, savings, transitional and other provisions
Division 4 Transitional regulations
s. 637
(3) If the regulations contain a provision referred to in
subsection (2), the provision does not operate so as --
(a) to affect in a manner prejudicial to any person (other
than the State or an authority of the State), the rights of
5 that person existing before the day of publication of
those regulations; and
(b) to impose liabilities on any person (other than the State
or an authority of the State) in respect of anything done
or omitted to be done before the day of publication of
10 those regulations.
page 430
Legal Profession Bill 2007
Consequential amendments Part 20
s. 638
Part 20 -- Consequential amendments
638. Adoption Act 1994 amended
(1) The amendments in this section are to the Adoption Act 1994.
(2) Section 4(1) is amended as follows:
5 (a) by deleting the definition of "lawyer" and inserting
instead --
"
"lawyer" means an Australian lawyer within the
meaning of that term in the Legal Profession
10 Act 2007 section 3;
";
(b) by inserting in the appropriate alphabetical position --
"
"legal practitioner" means an Australian legal
15 practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
".
(3) Section 133(1) and section 134(2), (3) and (5) are amended by
deleting "lawyer" in each place where it occurs and inserting
20 instead --
" legal practitioner ".
639. Agricultural Practices (Disputes) Act 1995 amended
(1) The amendments in this section are to the Agricultural Practices
(Disputes) Act 1995.
25 (2) Section 3 is amended by inserting in the appropriate
alphabetical position --
"
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
30 Legal Profession Act 2007 section 3;
".
page 431
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 640
(3) Section 25(2)(e) is amended by deleting "legal costs
determination (as defined in the Legal Practice Act 2003)" and
inserting instead --
"
5 costs determination (as defined in the Legal
Profession Act 2007 section 252)
".
(4) Schedule 1 clause 8(2) is amended by deleting "a certificated
legal practitioner (within the meaning of the Legal Practice
10 Act 2003)" and inserting instead --
" a legal practitioner ".
640. Australian Crime Commission (Western Australia) Act 2004
amended
(1) The amendment in this section is to the Australian Crime
15 Commission (Western Australia) Act 2004.
(2) Section 3(1) is amended by inserting in the appropriate
alphabetical position --
"
"legal practitioner" means an Australian legal
20 practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
".
641. Builders' Registration Act 1939 amended
(1) The amendments in this section are to the Builders' Registration
25 Act 1939.
page 432
Legal Profession Bill 2007
Consequential amendments Part 20
s. 642
(2) Section 2 is amended as follows:
(a) by deleting the definition of "legal practitioner" and
inserting instead --
"
5 "lawyer" means an Australian lawyer within the
meaning of that term in the Legal Profession
Act 2007 section 3;
";
(b) by inserting in the appropriate alphabetical position --
10 "
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
".
15 (3) Sections 5A(2), 5B(3), 5C(1a)(a) and 27(2) are amended by
deleting "legal practitioner" in each place where it occurs and
inserting instead --
" lawyer ".
(4) Section 45A is amended as follows:
20 (a) in subsection (4)(a) by deleting "a certificated
practitioner (within the meaning of the Legal Practice
Act 2003);" and inserting instead --
" a legal practitioner; ";
(b) in subsection (5) by deleting "legal practitioner, an
25 articled clerk (as defined in the Legal Practice
Act 2003)," and inserting instead --
" lawyer ".
642. Children and Community Services Act 2004 amended
(1) The amendments in this section are to the Children and
30 Community Services Act 2004.
page 433
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 643
(2) Section 148(1) is repealed and the following subsection is
inserted instead --
"
(1) In this section --
5 "legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3.
".
(3) Section 148(2) and (4) are amended by deleting "lawyer" in
10 each place where it occurs and inserting instead --
" legal practitioner ".
643. Children's Court of Western Australia Act 1988 amended
(1) The amendments in this section are to the Children's Court of
Western Australia Act 1988.
15 (2) Section 3(1) is amended by inserting in the appropriate
alphabetical position --
"
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
20 Legal Profession Act 2007 section 3;
".
(3) Section 3(2)(a) and (b) are deleted and the following is inserted
instead --
"
25 (a) standing and practice as a legal practitioner; or
".
(4) Section 3(2)(d) is amended by deleting "2 or more" and
inserting instead --
" both ".
page 434
Legal Profession Bill 2007
Consequential amendments Part 20
s. 644
(5) Section 7(2) is repealed and the following subsection is inserted
instead --
"
(2) A person is not eligible for appointment as a judge
5 unless that person is an Australian lawyer, within the
meaning of that term in the Legal Profession Act 2007
section 3, and has had not less than 8 years' legal
experience.
".
10 644. Chiropractors Act 2005 amended
(1) The amendments in this section are to the Chiropractors
Act 2005.
(2) Section 3 is amended by deleting the definition of "legal
practitioner".
15 (3) Section 6(1)(c) is amended by deleting "a legal practitioner."
and inserting instead --
"
an Australian lawyer (within the meaning of
that term in the Legal Profession Act 2007
20 section 3).
".
645. Civil Judgments Enforcement Act 2004 amended
(1) The amendments in this section are to the Civil Judgments
Enforcement Act 2004.
25 (2) Section 30(1) is repealed and the following section is inserted
instead --
"
(1) In this section --
"legal practitioner" means an Australian legal
30 practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3.
".
page 435
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 646
(3) Section 30(6) is amended as follows:
(a) by deleting "lawyer" in both places where it occurs and
inserting instead --
" legal practitioner ";
5 (b) by deleting "Legal Practice Act 2003 section 123." and
inserting instead --
" Legal Profession Act 2007 section 12. ".
646. Civil Liability Act 2002 amended
(1) The amendments in this section are to the Civil Liability
10 Act 2002.
(2) Section 16 is amended as follows:
(a) by deleting the definition of "legal practitioner" and
inserting instead --
"
15 "legal practitioner" means an Australian lawyer
within the meaning of that term in the Legal
Profession Act 2007 section 3;
";
(b) by inserting in the appropriate alphabetical position --
20 "
"law practice" has the meaning given in the Legal
Profession Act 2007;
".
(3) Section 17(1)(b) is amended by deleting "named firm of legal
25 practitioners" and inserting instead --
" named law practice ".
page 436
Legal Profession Bill 2007
Consequential amendments Part 20
s. 646
(4) Section 17(2)(a)(i) is amended by deleting "within the meaning
of the Legal Practice Act 2003;" and inserting instead --
"
as defined in the Legal Profession Act 2007
5 section 252;
".
(5) Section 18(1) is amended as follows:
(a) by deleting "a firm of legal practitioners" and inserting
instead --
10 " a law practice ";
(b) by deleting "legal practitioner or firm" in both places
where it occurs and inserting instead --
" legal practitioner or law practice ".
(6) Section 19(4) is amended as follows:
15 (a) in paragraph (a) by deleting "firm of legal practitioners"
and inserting instead --
" law practice ";
(b) in paragraph (b) by deleting "firm." and inserting
instead --
20 " law practice. ".
(7) Section 19(5) is amended as follows:
(a) in paragraph (a) by deleting "firms" and inserting
instead --
" law practices ";
25 (b) in paragraph (b) by deleting "firm of legal
practitioners." and inserting instead --
" law practice. ".
(8) Section 19(6) is amended as follows:
(a) by deleting "firms" and inserting instead --
30 " law practices ";
page 437
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 647
(b) by deleting "firm" and inserting instead --
" law practice ".
647. Coal Industry Tribunal of Western Australia Act 1992
amended
5 (1) The amendments in this section are to the Coal Industry
Tribunal of Western Australia Act 1992.
(2) Section 14(6) is amended by deleting "a legal practitioner (as
defined in the Legal Practice Act 2003)" and inserting
instead --
10 "
an Australian legal practitioner (within the meaning of
that term in the Legal Profession Act 2007 section 3)
".
648. Commercial Arbitration Act 1985 amended
15 (1) The amendments in this section are to the Commercial
Arbitration Act 1985.
(2) Section 20(5) is amended by deleting "Legal Practice Act 2003"
and inserting instead --
" Legal Profession Act 2007 ".
20 (3) Section 20(6) is amended as follows:
(a) by deleting the definition of "legal practitioner" and
inserting instead --
"
"legal practitioner" means an Australian legal
25 practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
";
page 438
Legal Profession Bill 2007
Consequential amendments Part 20
s. 649
(b) by deleting paragraph (a) of the definition of "legally
qualified person" and "or" after it and inserting
instead --
"
5 (a) an Australian lawyer within the meaning of
that term in the Legal Profession Act 2007
section 3; or
".
(4) Section 61(1)(a) is amended by deleting "by legal costs
10 determination (as defined in the Legal Practice Act 2003);" and
inserting instead --
"
by a costs determination (as defined in the Legal
Profession Act 2007 section 252);
15 ".
649. Companies (Co-operative) Act 1943 amended
(1) The amendments in this section are to the Companies
(Co-operative) Act 1943.
(2) Section 397(3) is repealed and the following subsection is
20 inserted instead --
"
(3) In this section --
"solicitor" means an Australian legal practitioner
within the meaning of that term in the Legal
25 Profession Act 2007 section 3.
".
650. Constitution Acts Amendment Act 1899 amended
(1) The amendments in this section are to the Constitution Acts
Amendment Act 1899.
page 439
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 651
(2) Schedule V Part 3 is amended in the item relating to the Legal
Contribution Trust by deleting "Legal Contribution Trust
Act 1967." and inserting instead --
" Legal Profession Act 2007. ".
5 651. Consumer Affairs Act 1971 amended
(1) The amendments in this section are to the Consumer Affairs
Act 1971.
(2) Section 4(2b) is repealed and the following subsection is
inserted instead --
10 "
(2b) The definition of "services" shall be taken not to
include legal services as defined in the Legal
Profession Act 2007.
".
15 652. Coroners Act 1996 amended
(1) The amendments in this section are to the Coroners Act 1996.
(2) Section 6(6) is amended by deleting "a legal practitioner (as
defined in the Legal Practice Act 2003)" and inserting
instead --
20 "
an Australian legal practitioner (within the meaning of
that term in the Legal Profession Act 2007 section 3)
".
(3) Section 7(4) is amended by deleting "a legal practitioner (as
25 defined in the Legal Practice Act 2003)" and inserting
instead --
"
an Australian legal practitioner (within the meaning of
that term in the Legal Profession Act 2007 section 3)
30 ".
page 440
Legal Profession Bill 2007
Consequential amendments Part 20
s. 653
(4) Section 44(1) is amended by deleting "a barrister or solicitor"
and inserting instead --
"
an Australian legal practitioner (within the meaning of
5 that term in the Legal Profession Act 2007 section 3)
".
653. Corporations (Western Australia) Act 1990 amended
(1) The amendments in this section are to the Corporations
(Western Australia) Act 1990.
10 (2) Section 48 is amended by deleting "a barrister or a solicitor, or
as both a barrister and a solicitor" and inserting instead --
"
an Australian legal practitioner (within the meaning of
that term in the Legal Profession Act 2007 section 3)
15 ".
654. Corruption and Crime Commission Act 2003 amended
(1) The amendments in this section are to the Corruption and
Crime Commission Act 2003.
(2) Section 3 is amended as follows:
20 (a) by deleting the definition of "legal practitioner" and
inserting instead --
"
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
25 Legal Profession Act 2007 section 3;
";
(b) by inserting in the appropriate alphabetical position --
"
"lawyer" means an Australian lawyer within the
30 meaning of that term in the Legal Profession
Act 2007 section 3;
".
page 441
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 655
(3) Section 142(6) is amended by deleting "legal practitioner" and
inserting instead --
" lawyer ".
(4) Section 143(1) is amended by deleting "legal practitioner" and
5 inserting instead --
" lawyer ".
(5) Section 147(2) is amended by deleting "legal practitioner" in the
3 places where it occurs and inserting instead --
" lawyer ".
10 (6) Section 190(1) is amended in the definition of "legal
experience" as follows:
(a) by deleting paragraphs (a) and (b) and inserting
instead --
"
15 (a) standing and practice as a legal practitioner;
or
";
(b) in paragraph (d) by deleting "2 or more" and inserting
instead --
20 " both ".
(7) Section 190(2) is repealed and the following subsection is
inserted instead --
"
(2) A person is eligible for appointment as Parliamentary
25 Inspector if the person is a lawyer and has had not less
than 8 years' legal experience.
".
655. Criminal Injuries Compensation Act 2003 amended
(1) The amendments in this section are to the Criminal Injuries
30 Compensation Act 2003.
page 442
Legal Profession Bill 2007
Consequential amendments Part 20
s. 655
(2) Section 3 is amended as follows:
(a) by deleting the definition of "lawyer";
(b) by inserting in the appropriate alphabetical position --
"
5 "legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
".
(3) Sections 25(2)(b), 51(3)(c) and 65(2) are amended by deleting
10 "lawyer" in each place where it occurs and inserting instead --
" legal practitioner ".
(4) Schedule 1 clause 1 is repealed and the following clause is
inserted instead --
"
15 1. Qualifications for appointment
(1) A person is qualified to be appointed under clause 2 as the
Chief Assessor or as an Assessor if the person is an
Australian lawyer and has had at least 8 years' legal
experience.
20 (2) In subclause (1) --
"Australian lawyer" has the meaning given in the Legal
Profession Act 2007 section 3;
"legal experience" means --
(a) standing and practice as a legal practitioner; or
25 (b) judicial service (including service as a judge of a
court, a magistrate or other judicial officer) in the
State or elsewhere in a common law jurisdiction;
or
(c) a combination of both kinds of legal experience
30 mentioned in paragraphs (a) and (b).
".
page 443
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 656
656. Criminal Investigation Act 2006 amended
(1) The amendments in this section are to the Criminal
Investigation Act 2006.
(2) Section 3(1) is amended as follows:
5 (a) by deleting the definition of "lawyer";
(b) by inserting in the appropriate alphabetical position the
following definition --
"
"legal practitioner" means an Australian legal
10 practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
".
(3) Section 117(1) is amended by deleting "lawyer" and inserting
instead --
15 " legal practitioner ".
(4) Section 120(1) is amended in paragraph (d) of the definition of
"authorised person" by deleting "lawyer" and inserting
instead --
" legal practitioner ".
20 (5) Section 120(2)(b) is amended by deleting "lawyer" and
inserting instead --
" legal practitioner ".
(6) Section 120(5)(b) is amended by deleting "lawyer" and
inserting instead --
25 " legal practitioner ".
(7) Section 124(1) is amended in paragraph (c) of the definition of
"prescribed person" by deleting "lawyer" in both places where it
occurs and inserting instead --
" legal practitioner ".
page 444
Legal Profession Bill 2007
Consequential amendments Part 20
s. 657
(8) Section 138(2)(c) is amended by deleting "lawyer" and inserting
instead --
" legal practitioner ".
657. Criminal Procedure Act 2004 amended
5 (1) The amendments in this section are to the Criminal Procedure
Act 2004.
(2) Section 3(1) is amended as follows:
(a) by deleting the definition of "lawyer";
(b) by inserting in the appropriate alphabetical position --
10 "
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
".
15 (3) Section 18 is amended in paragraph (a) of the definition of
"written plea" by deleting "lawyer;" and inserting instead --
" legal practitioner; ".
(4) Section 26(1) is amended by deleting "lawyer" and inserting
instead --
20 " legal practitioner ".
(5) Section 35(11) is amended by deleting "lawyer." and inserting
instead --
" legal practitioner. ".
(6) Section 51(2) is amended by deleting "lawyer" and inserting
25 instead --
" legal practitioner ".
page 445
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 658
(7) Section 67(3) is repealed and the following subsection is
inserted instead --
"
(3) The amount of costs ordered under subsection (2) may
5 be determined in accordance with the relevant
determination made under the Legal Profession
Act 2007 section 275 for the purposes of the Official
Prosecutions (Accused's Costs) Act 1973 and with the
Legal Profession Act 2007 section 280.
10 ".
(8) Section 129(2)(a) is amended by deleting "lawyer" and inserting
instead --
" legal practitioner ".
(9) Section 152(1) is amended by deleting "lawyer" and inserting
15 instead --
" legal practitioner ".
(10) Section 172(3) is amended as follows:
(a) in paragraph (a) by deleting "Legal Practice Act 2003;"
and inserting instead --
20 " Legal Profession Act 2007; ";
(b) in paragraph (b) by deleting "lawyer" in both places
where it occurs and inserting instead --
" legal practitioner ".
(11) Section 175(4) is amended by deleting "lawyer." and inserting
25 instead --
" legal practitioner. ".
658. Debt Collectors Licensing Act 1964 amended
(1) The amendments in this section are to the Debt Collectors
Licensing Act 1964.
page 446
Legal Profession Bill 2007
Consequential amendments Part 20
s. 659
(2) Section 4(a) is deleted and the following paragraph is inserted
instead --
"
(a) an Australian legal practitioner within the
5 meaning of that term in the Legal Profession
Act 2007 section 3;
".
659. Director of Public Prosecutions Act 1991 amended
(1) The amendments in this section are to the Director of Public
10 Prosecutions Act 1991.
(2) Section 3 is amended as follows:
(a) by inserting in the appropriate alphabetical position --
"
"Australian lawyer" has the meaning given in the
15 Legal Profession Act 2007 section 3;
";
(b) by deleting the definition of "legal practitioner" and
inserting instead --
"
20 "legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
".
(3) Section 5(2) is repealed and the following subsections are
25 inserted instead --
"
(2) A person is eligible for appointment to the office of
Director if that person is an Australian lawyer and has
had not less than 8 years' legal experience.
30 (3) A person is eligible for appointment to the office of
Deputy Director if that person is an Australian lawyer
and has had not less than 5 years' legal experience.
page 447
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 660
(4) In subsections (2) and (3) --
"legal experience" means --
(a) standing and practice as a legal practitioner;
or
5 (b) judicial service (including service as a judge
of a court, a magistrate or other judicial
officer) in the State or elsewhere in a
common law jurisdiction; or
(c) a combination of both kinds of legal
10 experience mentioned in paragraphs (a)
and (b).
".
(4) Section 8(1) is amended by deleting "a legal practitioner" and
inserting instead --
15 " a person ".
(5) Section 8(4) is amended by deleting "a legal practitioner" and
inserting instead --
" a person ".
660. District Court of Western Australia Act 1969 amended
20 (1) The amendments in this section are to the District Court of
Western Australia Act 1969.
(2) Section 6(1) is amended as follows:
(a) by deleting the definition of "legal practitioner" and
inserting instead --
25 "
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
";
page 448
Legal Profession Bill 2007
Consequential amendments Part 20
s. 660
(b) by inserting in the appropriate alphabetical position --
"
"Australian lawyer" has the meaning given in the
Legal Profession Act 2007;
5 ".
(3) Section 6(2) is amended as follows:
(a) by deleting paragraphs (a) and (b) and inserting
instead --
"
10 (a) standing and practice as a legal practitioner; or
";
(b) in paragraph (d) by deleting "2 or more" and inserting
instead --
" both ".
15 (4) Section 10(2) is repealed and the following subsection is
inserted instead --
"
(2) A person is eligible for appointment as a District Court
judge if that person is an Australian lawyer and has had
20 not less than 8 years' legal experience.
".
(5) Section 39(1) is amended by deleting "certificated practitioner
(within the meaning of the Legal Practice Act 2003)" and
inserting instead --
25 " legal practitioner ".
(6) Section 64(1) is amended by deleting "legal costs determination
(as defined in the Legal Practice Act 2003)" and inserting
instead --
"
30 costs determination (as defined in the Legal Profession
Act 2007 section 252)
".
page 449
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 661
(7) Section 66 is amended by deleting "legal costs determination (as
defined in the Legal Practice Act 2003)" and inserting
instead --
"
5 costs determination (as defined in the Legal Profession
Act 2007 section 252)
".
(8) Section 88(2)(b) is amended by deleting "legal costs
determination (as defined in the Legal Practice Act 2003)" and
10 inserting instead --
"
costs determination (as defined in the Legal
Profession Act 2007 section 252)
".
15 661. Equal Opportunity Act 1984 amended
(1) The amendment in this section is to the Equal Opportunity
Act 1984.
(2) Section 4(1) is amended by deleting the definition of "legal
practitioner".
20 662. Evidence Act 1906 amended
(1) The amendments in this section are to the Evidence Act 1906.
(2) Section 122 is amended by deleting "Despite section 123 of the
Legal Practice Act 2003 a person who is entitled to practise as a
legal practitioner in a participating jurisdiction is entitled to
25 practise as a barrister, solicitor or both -- " and inserting
instead --
"
A person who is entitled to practise as an Australian
legal practitioner (within the meaning of that term in
30 the Legal Profession Act 2007 section 3) in a
page 450
Legal Profession Bill 2007
Consequential amendments Part 20
s. 663
participating jurisdiction is entitled to practise as an
Australian legal practitioner --
".
663. Family Court Act 1997 amended
5 (1) The amendments in this section are to the Family Court
Act 1997.
(2) Section 5(1) is amended as follows:
(a) in the definition of "independent children's lawyer" by
deleting "a certificated practitioner (within the meaning
10 of the Legal Practice Act 2003)" and inserting
instead --
" an Australian legal practitioner ";
(b) by inserting in the appropriate alphabetical position --
"
15 "Australian legal practitioner" has the meaning
given in the Legal Profession Act 2007 section 3;
".
(3) Section 11(3) is repealed and the following subsections are
inserted instead --
20 "
(3) A person is not eligible for appointment as a Family
Court judge unless the person --
(a) is an Australian lawyer and has had not less
than 8 years' legal experience; and
25 (b) by reason of training, experience, and
personality, is a suitable person to deal with
matters of family law.
(3a) In subsection (3)(a) --
"Australian lawyer" has the meaning given in the
30 Legal Profession Act 2007 section 3;
page 451
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 664
"legal experience" means --
(a) standing and practice as an Australian legal
practitioner; or
(b) judicial service (including service as a judge
5 of a court, a magistrate or other judicial
officer) in the State or elsewhere in a
common law jurisdiction; or
(c) a combination of both kinds of legal
experience mentioned in paragraphs (a)
10 and (b).
".
664. Finance Brokers Control Act 1975 amended
(1) The amendments in this section are to the Finance Brokers
Control Act 1975.
15 (2) Section 5(1)(f) is deleted and the following paragraph is inserted
instead --
"
(f) Australian legal practitioners (within the
meaning of that term in the Legal Profession
20 Act 2007 section 3) when acting incidentally to
the practice of their profession as such;
".
665. Gas Pipelines Access (Western Australia) Act 1998 amended
(1) The amendments in this section are to the Gas Pipelines Access
25 (Western Australia) Act 1998.
(2) Section 49 is amended by deleting the definition of "legal
practitioner" and inserting instead --
"
"legal practitioner" means an Australian legal
30 practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3.
".
page 452
Legal Profession Bill 2007
Consequential amendments Part 20
s. 666
666. Gender Reassignment Act 2000 amended
(1) The amendments in this section are to the Gender Reassignment
Act 2000.
(2) Section 6(2)(a) is amended by deleting "a legal practitioner (as
5 defined in the Legal Practice Act 2003)" and inserting
instead --
"
an Australian legal practitioner (within the
meaning of that term in the Legal Profession
10 Act 2007 section 3)
".
667. Guardianship and Administration Act 1990 amended
(1) The amendments in this section are to the Guardianship and
Administration Act 1990.
15 (2) Section 3(1) is amended by deleting the definition of "legal
practitioner" and inserting instead --
"
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
20 Legal Profession Act 2007 section 3;
".
(3) Section 51(3) is amended by deleting "Legal Practice
Act 2003." and inserting instead --
" Legal Profession Act 2007. ".
25 (4) Section 70(3) is amended by deleting "Legal Practice
Act 2003." and inserting instead --
" Legal Profession Act 2007. ".
page 453
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 668
668. Industrial Relations Act 1979 amended
(1) The amendments in this section are to the Industrial Relations
Act 1979.
(2) Section 7(1) is amended by deleting the definition of "legal
5 practitioner" and inserting instead --
"
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
10 ".
(3) Section 9(1) is repealed and the following subsections are
inserted instead --
"
(1) A person is not eligible for appointment as the
15 President unless the person is a lawyer and has had not
less than 5 years' legal experience.
(1aa) In subsection (1) --
"lawyer" means an Australian lawyer within the
meaning of that term in the Legal Profession
20 Act 2007 section 3;
"legal experience" means --
(a) standing and practice as a legal practitioner;
or
(b) judicial service (including service as a judge
25 of a court, a magistrate or other judicial
officer) in the State or elsewhere in a
common law jurisdiction; or
(c) a combination of both kinds of legal
experience mentioned in paragraphs (a)
30 and (b).
".
(4) Section 31(6) is repealed.
page 454
Legal Profession Bill 2007
Consequential amendments Part 20
s. 669
(5) Sections 42B(7), 51Q(4), 97UJ(5) and 112A(3) are amended by
deleting "section 123(3)(c) of the Legal Practice Act 2003" in
each place where it occurs and inserting instead --
"
5 section 12 of the Legal Profession Act 2007
".
(6) Section 91(3) is repealed.
669. Juries Act 1957 amended
(1) The amendments in this section are to the Juries Act 1957.
10 (2) Section 56A(1) is amended in paragraph (b) of the definition of
"prosecuting officer" by deleting "a legal practitioner (as
defined in the Legal Practice Act 2003);" and inserting
instead --
"
15 an Australian legal practitioner within the meaning of
that term in the Legal Profession Act 2007 section 3;
".
(3) Section 56B(2)(h) is amended by deleting "a legal practitioner
(as defined in the Legal Practice Act 2003)" and inserting
20 instead --
"
an Australian legal practitioner (within the
meaning of that term in the Legal Profession
Act 2007 section 3)
25 ".
(4) Section 56C(2)(g) is amended by deleting "a legal practitioner
(as defined in the Legal Practice Act 2003)" and inserting
instead --
"
30 an Australian legal practitioner (within the
meaning of that term in the Legal Profession
Act 2007 section 3)
".
page 455
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 670
(5) The Second Schedule Part I item 1(f) is deleted and the
following paragraph is inserted instead --
"
(f) an Australian lawyer (within the meaning of that
5 term in the Legal Profession Act 2007 section 3).
".
670. Jurisdiction of Courts (Cross-vesting) Act 1987 amended
(1) The amendments in this section are to the Jurisdiction of Courts
(Cross-vesting) Act 1987.
10 (2) Section 5(9) is amended by deleting "a barrister or a solicitor, or
as both a barrister and a solicitor" and inserting instead --
"
an Australian legal practitioner (within the meaning of
that term in the Legal Profession Act 2007 section 3)
15 ".
671. Land Valuers Licensing Act 1978 amended
(1) The amendments in this section are to the Land Valuers
Licensing Act 1978.
(2) Section 4 is amended as follows:
20 (a) by inserting in the appropriate alphabetical position --
"
"lawyer" means an Australian lawyer within the
meaning of that term in the Legal Profession
Act 2007 section 3;
25 ";
(b) by deleting the definition of "legal practitioner" and
inserting instead --
"
"legal practitioner" means an Australian legal
30 practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
".
page 456
Legal Profession Bill 2007
Consequential amendments Part 20
s. 672
(3) Section 6(1)(a) is amended by deleting "a legal practitioner or a
barrister or solicitor of the Supreme Court of another State or a
Territory of not less than 7 years' standing" and inserting
instead --
5 "
a lawyer who has had not less than 7 years' legal
experience
".
(4) After section 6(1) the following subsection is inserted --
10 "
(1a) In subsection (1)(a) --
"legal experience" means --
(a) standing and practice as a legal practitioner;
or
15 (b) judicial service (including service as a judge
of a court, a magistrate or other judicial
officer) in the State or elsewhere in a
common law jurisdiction; or
(c) a combination of both kinds of legal
20 experience mentioned in paragraphs (a)
and (b).
".
(5) Section 6(4)(a) is amended by deleting "legal practitioner or
barrister or solicitor of the Supreme Court of another State or a
25 Territory" and inserting instead --
" lawyer ".
672. Law Reform Commission Act 1972 amended
(1) The amendments in this section are to the Law Reform
Commission Act 1972.
page 457
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 673
(2) Section 6(1) is amended as follows:
(a) by deleting paragraph (a) and inserting instead --
"
(a) one shall be an Australian legal practitioner of
5 at least 8 years' standing and experience;
";
(b) by deleting paragraph (c) and inserting instead --
"
(c) one shall be an Australian legal practitioner
10 who is an officer of the State Solicitor's Office
of at least 8 years' standing and experience.
".
(3) Section 6(2)(a) is amended by deleting "a barrister or solicitor
of the High Court of Australia or of the Supreme Court of a
15 State or Territory of the Commonwealth" and inserting
instead --
" an Australian legal practitioner ".
(4) After section 6(2) the following subsection is inserted --
"
20 (3) In this section --
"Australian legal practitioner" has the meaning
given in the Legal Profession Act 2007 section 3.
".
673. Law Society Public Purposes Trust Act 1985 amended
25 (1) The amendments in this section are to the Law Society Public
Purposes Trust Act 1985.
page 458
Legal Profession Bill 2007
Consequential amendments Part 20
s. 674
(2) Section 2(1) is amended by inserting before the definition of
"Law Society" --
"
"bank" means an authorised deposit-taking institution
5 as defined in the Banking Act 1959 of the
Commonwealth;
".
(3) Section 2(2) is amended by deleting "Legal Practice Act 2003"
and inserting instead --
10 " Legal Profession Act 2007 ".
(4) Section 3(1) is amended by deleting "Legal Practice Act 2003"
and inserting instead --
" Legal Profession Act 2007 ".
674. Legal Aid Commission Act 1976 amended
15 (1) The amendments in this section are to the Legal Aid
Commission Act 1976.
(2) Section 4(1) is amended as follows:
(a) by deleting the definitions of "certificated practitioner",
"practitioner" and "The Legal Practice Board";
20 (b) by inserting in the appropriate alphabetical positions --
"
"Australian lawyer" has the meaning given in the
Legal Profession Act 2007 section 3;
"law practice" has the meaning given in the Legal
25 Profession Act 2007 section 3;
"legal experience" means --
(a) standing and practice as a legal practitioner;
or
(b) judicial service (including service as a judge
30 of a court, a magistrate or other judicial
page 459
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 674
officer) in the State or elsewhere in a
common law jurisdiction; or
(c) a combination of both kinds of legal
experience mentioned in paragraphs (a)
5 and (b);
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
";
10 (c) in the definition of "legal advice" by deleting "a
practitioner" and inserting instead --
" a law practice or an Australian lawyer ";
(d) in the definition of "legal aid" by deleting "a practitioner
or practitioners" and inserting instead --
15 " a legal practitioner ";
(e) in the definition of "Legal Practice Board" by deleting
"section 6 of the Legal Practice Act 2003;" and inserting
instead --
" the Legal Profession Act 2007 section 534; ";
20 (f) by deleting the definition of "private practitioner" and
inserting instead --
"
"private practitioner" means a legal practitioner who
is not employed by the Commission, a statutory
25 authority or the Crown;
".
(3) Section 7(1)(b)(ii) is amended by deleting "a practitioner" and
inserting instead --
" an Australian lawyer ".
page 460
Legal Profession Bill 2007
Consequential amendments Part 20
s. 674
(4) Section 7(2) is repealed and the following subsection is inserted
instead --
"
(2) The person appointed as Chairman of the Commission
5 shall be an Australian lawyer who has had not less than
7 years' legal experience.
".
(5) Section 7(3)(a) is amended by deleting "a practitioner" and
inserting instead --
10 " an Australian lawyer ".
(6) Section 14(1) is amended by deleting "Part 13 Division 3 of the
Legal Practice Act 2003" and inserting instead --
" Part 10 Division 8 of the Legal Profession Act 2007 ".
(7) Section 15(1)(g)(ii) is amended by deleting "practitioner" and
15 inserting instead --
" legal practitioner ".
(8) Section 17(3) is amended by deleting "Part III of the Legal
Contribution Trust Act 1967" and inserting instead --
" Part 12 Division 4 of the Legal Profession Act 2007 ".
20 (9) Section 17(4) is amended by deleting "Part III of the Legal
Contribution Trust Act 1967" and inserting instead --
" Part 12 Division 4 of the Legal Profession Act 2007 ".
(10) Section 18(2) is repealed and the following subsection is
inserted instead --
25 "
(2) A person is not eligible for appointment as Director
unless the person is an Australian lawyer, or is
qualified for admission to the legal profession, and has
had not less than 5 years' legal experience.
30 ".
page 461
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 674
(11) Section 19(1)(b) is amended by deleting "practitioners" and
inserting instead --
" legal practitioners ".
(12) Section 19(3) is amended by deleting "Legal Practice Act 2003"
5 and inserting instead --
" Legal Profession Act 2007 ".
(13) Section 20(2) is amended by deleting "practitioners" and
inserting instead --
" Australian lawyers ".
10 (14) Section 25(6) is amended by deleting "a practitioner" and
inserting instead --
" an Australian lawyer ".
(15) Section 25(8) is amended by deleting "a practitioner" and
inserting instead --
15 " an Australian lawyer ".
(16) Section 32 is amended by deleting "practitioners" and inserting
instead --
" legal practitioners ".
(17) Section 33(a) is amended by deleting "a practitioner" and
20 inserting instead --
" a legal practitioner ".
(18) Section 35 is amended by deleting "a practitioner" and inserting
instead --
" a legal practitioner ".
25 (19) Section 38(1)(b) is amended by deleting "a practitioner" and
inserting instead --
" a legal practitioner ".
page 462
Legal Profession Bill 2007
Consequential amendments Part 20
s. 674
(20) Section 39(1a) is amended by deleting "section 227(1) of the
Legal Practice Act 2003." and inserting instead --
" Part 10 Division 6 of the Legal Profession Act 2007. ".
(21) Section 40(4) is amended as follows:
5 (a) in paragraph (b) --
(i) by deleting "member of a firm or director of an
incorporated legal practice" and inserting
instead --
" partner or director of a law practice ";
10 (ii) by deleting "the firm or incorporated legal
practice" and inserting instead --
" the law practice ";
(b) in paragraph (c) --
(i) by deleting "employee of a private practitioner or
15 firm of private practitioners or an officer or
employee of an incorporated legal practice" and
inserting instead --
" employee of a law practice ";
(ii) by deleting "that private practitioner, firm or
20 incorporated legal practice." and inserting
instead --
" that law practice. ".
(22) Section 40(6a) is amended by deleting "Part IV of the Legal
Practitioners Act 1893 by The Legal Practice Board or by the
25 Court of Appeal." and inserting instead --
"
Part 13 of the Legal Profession Act 2007 by the
Complaints Committee, the State Administrative
Tribunal or the Supreme Court (full bench).
30 ".
page 463
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 674
(23) Section 50(2)(b) is amended by deleting "a practitioner" and
inserting instead --
" an Australian lawyer ".
(24) Section 50(2)(c) is amended by deleting "a practitioner." and
5 inserting instead --
" an Australian lawyer. ".
(25) Section 51(2) is amended by deleting "practitioner" in both
places where it occurs and inserting instead --
" legal practitioner ".
10 (26) Section 52(2)(a) is amended by deleting "Legal Contribution
Trust Act 1967" and inserting instead --
" Legal Profession Act 2007 ".
(27) Section 56(2)(e) is amended by deleting "section 5 of the Legal
Contribution Trust Act 1967" and inserting instead --
15 " section 391 of the Legal Profession Act 2007 ".
(28) Section 61(1) is amended as follows:
(a) by deleting "Legal Practice Act 2003 and the rules
thereunder (including the requirements as to the holding
of practice certificates)" and inserting instead --
20 "
Legal Profession Act 2007 and the legal profession
rules made under that Act (including the requirements
as to the holding of practising certificates)
";
25 (b) by deleting "a practitioner" in the 4 places where it
occurs and inserting instead --
" a legal practitioner ".
page 464
Legal Profession Bill 2007
Consequential amendments Part 20
s. 674
(29) Section 61(2) is amended as follows:
(a) by deleting "a practitioner" in the first place where it
occurs and inserting instead --
" a legal practitioner ";
5 (b) in paragraph (a) by deleting "a practitioner practising on
his own account;" and inserting instead --
"
a legal practitioner who is a sole practitioner or
a partner or director of a law practice;
10 ";
(c) in paragraph (b) by deleting "in practice on his own
account and he was employed by him;" and inserting
instead --
"
15 a law practice and the member of staff was
employed by the law practice;
".
(30) Section 61(3) is amended by deleting "a practitioner" in both
places where it occurs and inserting instead --
20 " a legal practitioner ".
(31) Section 61(4) is repealed and the following subsection is
inserted instead --
"
(4) Part 9 of the Legal Profession Act 2007 does not apply
25 to or in relation to the Director or a legal practitioner
who is a member of staff.
".
(32) Section 62(1) is amended by deleting "a practitioner" in both
places where it occurs and inserting instead --
30 " a legal practitioner ".
page 465
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 675
(33) Section 62(2) is amended by deleting "a practitioner" and
inserting instead --
" a legal practitioner ".
(34) Section 64(2b) is amended in paragraph (g) of the definition of
5 "administrative information" by deleting "practitioner" and
inserting instead --
" legal practitioner ".
(35) Section 64(2c) is amended by deleting "The Legal Practice
Board for the purposes of the Legal Practitioners Act 1893" and
10 inserting instead --
"
the Legal Practice Board for the purposes of the Legal
Profession Act 2007
".
15 (36) Section 64(4)(c) is deleted and the following paragraph is
inserted instead --
"
(c) in an investigation by the Legal Practice Board,
or in proceedings before the State
20 Administrative Tribunal or the Supreme Court
(full bench), under the Legal Profession
Act 2007.
".
675. Liquor Control Act 1988 amended
25 (1) The amendments in this section are to the Liquor Control
Act 1988.
(2) Section 3(1) is amended as follows:
(a) by deleting the definition of "legal practitioner";
page 466
Legal Profession Bill 2007
Consequential amendments Part 20
s. 676
(b) by inserting in the appropriate alphabetical position --
"
"lawyer" means an Australian lawyer within the
meaning of that term in the Legal Profession
5 Act 2007 section 3;
".
(3) Sections 9B(4), 9M(2), 25(2d), 28(4a)(a) and 95(7a) are
amended by deleting "legal practitioner" in each place where it
occurs and inserting instead --
10 " lawyer ".
676. Long Service Leave Act 1958 amended
(1) The amendments in this section are to the Long Service Leave
Act 1958.
(2) Section 37 is amended by deleting "a certificated practitioner
15 (within the meaning of the Legal Practice Act 2003)" and
inserting instead --
"
an Australian legal practitioner (within the meaning of
that term in the Legal Profession Act 2007 section 3)
20 ".
677. Magistrates Court Act 2004 amended
(1) The amendments in this section are to the Magistrates Court
Act 2004.
(2) Schedule 1 clause 1 is amended by deleting the definition of
25 "legal practitioner" and inserting instead --
"
"legal practitioner" means an Australian legal practitioner
within the meaning of that term in the Legal Profession
Act 2007 section 3.
30 ".
page 467
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 678
(3) Schedule 1 clause 2(1) is amended in the definition of "legal
experience" as follows:
(a) by deleting "any or any combination" and inserting
instead --
5 " either or both ";
(b) by deleting paragraphs (a) and (b) and inserting
instead --
"
(a) standing and practice as a legal practitioner;
10 ".
678. Magistrates Court (Civil Proceedings) Act 2004 amended
(1) The amendments in this section are to the Magistrates Court
(Civil Proceedings) Act 2004.
(2) Section 3(1) is amended as follows:
15 (a) in the definition of "applicable costs determination" by
deleting "Legal Practice Act 2003 section 210" and
inserting instead --
" Legal Profession Act 2007 section 275 ";
(b) by deleting the definition of "lawyer";
20 (c) by inserting in the appropriate alphabetical position --
"
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
25 ".
(3) Section 25(8) is amended by deleting "lawyer" and inserting
instead --
" legal practitioner ".
page 468
Legal Profession Bill 2007
Consequential amendments Part 20
s. 678
(4) Section 25(10) is amended as follows:
(a) by deleting "lawyer" in the 6 places where it occurs and
inserting instead --
" legal practitioner ";
5 (b) by deleting "lawyer's" in the 3 places where it occurs
and inserting instead --
" legal practitioner's ".
(5) Section 25(11) is amended by deleting "lawyer" in both places
where it occurs and inserting instead --
10 " legal practitioner ".
(6) Section 25(12) is amended by deleting "lawyer" and inserting
instead --
" legal practitioner ".
(7) Section 30(1) is amended in the definition of "agent" by
15 deleting "lawyer" and inserting instead --
" legal practitioner ".
(8) Section 30(3) is amended by deleting "lawyer" and inserting
instead --
" legal practitioner ".
20 (9) Section 30(4) is amended by deleting "lawyer" in both places
where it occurs and inserting instead --
" legal practitioner ".
(10) Section 30(5) is amended by deleting "lawyer" and inserting
instead --
25 " legal practitioner ".
(11) Section 30(10) is amended by deleting "lawyer" and inserting
instead --
" legal practitioner ".
page 469
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 679
(12) Section 44(2) is amended by deleting "lawyer" in both places
where it occurs and inserting instead --
" legal practitioner ".
(13) Section 44(4) is amended by deleting "lawyer" and inserting
5 instead --
" legal practitioner ".
679. Medical Radiation Technologists Act 2006 amended
(1) The amendments in this section are to the Medical Radiation
Technologists Act 2006.
10 (2) Section 3 is amended by deleting the definition of "legal
practitioner".
(3) Section 5(1)(e) is amended by deleting "a legal practitioner."
and inserting instead --
"
15 an Australian lawyer (within the meaning of
that term in the Legal Profession Act 2007
section 3).
".
680. Mental Health Act 1996 amended
20 (1) The amendments in this section are to the Mental Health
Act 1996.
(2) Section 3 is amended as follows:
(a) by deleting the definition of "legal practitioner" and
inserting instead --
25 "
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
";
page 470
Legal Profession Bill 2007
Consequential amendments Part 20
s. 680
(b) by inserting in the appropriate alphabetical position --
"
"lawyer" means an Australian lawyer within the
meaning of that term in the Legal Profession
5 Act 2007 section 3;
".
(3) Section 126(2) is amended as follows:
(a) in paragraph (b) by deleting "legal practitioner" and
inserting instead --
10 " lawyer ";
(b) in paragraph (c) by deleting "legal practitioner." and
inserting instead --
" lawyer. ".
(4) Section 129(5) is amended as follows:
15 (a) in paragraph (a) by deleting "legal practitioner;" and
inserting instead --
" lawyer; ";
(b) in paragraph (c) by deleting "legal practitioner" and
inserting instead --
20 " lawyer ".
(5) Section 130(4)(b) is amended as follows:
(a) in subparagraph (i) by deleting "legal practitioner;" and
inserting instead --
" lawyer; ";
25 (b) in subparagraph (iii) by deleting "legal practitioner" and
inserting instead --
" lawyer ".
page 471
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 681
(6) Section 132(1) is amended as follows:
(a) in paragraph (b) by deleting "legal practitioner" and
inserting instead --
" lawyer ";
5 (b) in paragraph (c) by deleting "legal practitioner" in both
places where it occurs and inserting instead --
" lawyer ".
(7) Schedule 2 clause 3(3) is amended by deleting "certificated
practitioner (within the meaning of the Legal Practice
10 Act 2003)" and inserting instead --
" legal practitioner ".
681. Mining Act 1978 amended
(1) The amendments in this section are to the Mining Act 1978.
(2) Section 162(2)(r) is amended by deleting "by legal costs
15 determination (as defined in the Legal Practice Act 2003)" and
inserting instead --
"
by a costs determination (as defined in the Legal
Profession Act 2007 section 252)
20 ".
682. Motor Vehicle (Third Party Insurance) Act 1943 amended
(1) The amendments in this section are to the Motor Vehicle (Third
Party Insurance) Act 1943.
(2) Section 27A(2) is amended by deleting "legal costs
25 determination (as defined in the Legal Practice Act 2003)" and
inserting instead --
"
costs determination (as defined in the Legal Profession
Act 2007 section 252)
30 ".
page 472
Legal Profession Bill 2007
Consequential amendments Part 20
s. 683
683. Nurses and Midwives Act 2006 amended
(1) The amendments in this section are to the Nurses and Midwives
Act 2006.
(2) Section 3 is amended by deleting the definition of "legal
5 practitioner".
(3) Section 6(1)(g) is amended by deleting "a legal practitioner."
and inserting instead --
"
an Australian lawyer (within the meaning of
10 that term in the Legal Profession Act 2007
section 3).
".
684. Oaths, Affidavits and Statutory Declarations Act 2005
amended
15 (1) The amendments in this section are to the Oaths, Affidavits and
Statutory Declarations Act 2005.
(2) Section 8 is repealed and the following section is inserted
instead --
"
20 8. Meaning of "experienced legal practitioner"
In this Part --
"experienced legal practitioner" means a person who
is, and has been for at least 2 years, an Australian
legal practitioner (within the meaning of that term
25 in the Legal Profession Act 2007 section 3).
".
(3) Section 9(6)(b) is amended by deleting "lawyer" and inserting
instead --
" legal practitioner ".
page 473
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 685
(4) Section 9(7) is amended by deleting "lawyer" and inserting
instead --
" legal practitioner ".
(5) Schedule 2 item 20 is amended by deleting "A legal practitioner
5 within the meaning of the Legal Practice Act 2003." and
inserting instead --
"
An Australian lawyer within the meaning of
that term in the Legal Profession Act 2007
section 3.
".
685. Occupational Therapists Act 2005 amended
10 (1) The amendments in this section are to the Occupational
Therapists Act 2005.
(2) Section 3 is amended by deleting the definition of "legal
practitioner".
(3) Section 6(1)(d) is amended by deleting "a legal practitioner."
15 and inserting instead --
"
an Australian lawyer (within the meaning of
that term in the Legal Profession Act 2007
section 3).
20 ".
686. Official Prosecutions (Accused's Costs) Act 1973 amended
(1) The amendments in this section are to the Official Prosecutions
(Accused's Costs) Act 1973.
page 474
Legal Profession Bill 2007
Consequential amendments Part 20
s. 687
(2) Section 5(5) is amended by deleting "legal costs determination
(as defined in the Legal Practice Act 2003)." and inserting
instead --
"
5 costs determination (as defined in the Legal Profession
Act 2007 section 252).
".
687. Optometrists Act 2005 amended
(1) The amendments in this section are to the Optometrists
10 Act 2005.
(2) Section 3 is amended by deleting the definition of "legal
practitioner".
(3) Section 6(1)(c) is amended by deleting "a legal practitioner."
and inserting instead --
15 "
an Australian lawyer (within the meaning of
that term in the Legal Profession Act 2007
section 3).
".
20 688. Osteopaths Act 2005 amended
(1) The amendments in this section are to the Osteopaths Act 2005.
(2) Section 3 is amended by deleting the definition of "legal
practitioner".
(3) Section 6(1)(c) is amended by deleting "a legal practitioner."
25 and inserting instead --
"
an Australian lawyer (within the meaning of
that term in the Legal Profession Act 2007
section 3).
30 ".
page 475
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 689
689. Physiotherapists Act 2005 amended
(1) The amendments in this section are to the Physiotherapists
Act 2005.
(2) Section 3 is amended by deleting the definition of "legal
5 practitioner".
(3) Section 6(1)(c) is amended by deleting "a legal practitioner."
and inserting instead --
"
an Australian lawyer (within the meaning of
10 that term in the Legal Profession Act 2007
section 3).
".
690. Planning and Development Act 2005 amended
(1) The amendments in this section are to the Planning and
15 Development Act 2005.
(2) Section 4(1) is amended by deleting the definition of "legal
practitioner" and inserting instead --
"
"legal practitioner" means an Australian legal
20 practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
".
691. Podiatrists Act 2005 amended
(1) The amendments in this section are to the Podiatrists Act 2005.
25 (2) Section 3 is amended by deleting the definition of "legal
practitioner".
page 476
Legal Profession Bill 2007
Consequential amendments Part 20
s. 692
(3) Section 6(1)(c) is amended by deleting "a legal practitioner."
and inserting instead --
"
an Australian lawyer (within the meaning of
5 that term in the Legal Profession Act 2007
section 3).
".
692. Police Act 1892 amended
(1) The amendment in this section is to the Police Act 1892.
10 (2) Section 33K is amended by deleting the definition of "legal
practitioner".
693. Psychologists Act 2005 amended
(1) The amendments in this section are to the Psychologists
Act 2005.
15 (2) Section 3 is amended by deleting the definition of "legal
practitioner".
(3) Section 5(1)(c) is amended by deleting "a legal practitioner."
and inserting instead --
"
20 an Australian lawyer (within the meaning of
that term in the Legal Profession Act 2007
section 3).
".
694. Public Notaries Act 1979 amended
25 (1) The amendments in this section are to the Public Notaries
Act 1979.
page 477
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 695
(2) Section 3 is amended by inserting after the definition of
"applicant" --
"
"Australian lawyer" has the meaning given in the
5 Legal Profession Act 2007 section 3;
".
(3) Section 7(2)(a) is amended by deleting "on the Roll of
Practitioners under the Legal Practice Act 2003 and is not
pursuant to that Act under suspension from practice;" and
10 inserting instead --
"
an Australian lawyer and is not under
suspension from legal practice;
".
15 (4) Section 15A is amended by deleting "legal costs determination
(as defined in the Legal Practice Act 2003)." and inserting
instead --
"
costs determination (as defined in the Legal Profession
20 Act 2007 section 252).
".
(5) Section 16(2) is amended by deleting "Legal Practice Act 2003"
and inserting instead --
" Legal Profession Act 2007 ".
25 695. Racing Penalties (Appeals) Act 1990 amended
(1) The amendments in this section are to the Racing Penalties
(Appeals) Act 1990.
page 478
Legal Profession Bill 2007
Consequential amendments Part 20
s. 696
(2) Section 5(1) is amended by deleting "a legal practitioner (as
defined in the Legal Practice Act 2003) or a barrister or solicitor
of the Supreme Court of another State or a Territory" and
inserting instead --
5 "
an Australian lawyer (within the meaning of that term
in the Legal Profession Act 2007 section 3)
".
(3) Section 16(7) is amended by deleting "a certificated practitioner
10 (within the meaning of the Legal Practice Act 2003)" and
inserting instead --
"
an Australian legal practitioner (within the meaning of
that term in the Legal Profession Act 2007 section 3)
15 ".
(4) Section 25(2)(g) is amended by deleting "legal costs
determination (as defined in the Legal Practice Act 2003)" and
inserting instead --
"
20 costs determination (as defined in the Legal
Profession Act 2007 section 252)
".
696. Real Estate and Business Agents Act 1978 amended
(1) The amendments in this section are to the Real Estate and
25 Business Agents Act 1978.
(2) Section 4(1) is amended by deleting the definition of "legal
practitioner" and inserting instead --
"
"legal practitioner" means an Australian legal
30 practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
".
page 479
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 697
697. Registration of Deeds Act 1856 amended
(1) The amendments in this section are to the Registration of Deeds
Act 1856.
(2) Section 6 is amended by deleting "a legal practitioner (as
5 defined in the Legal Practice Act 2003)" and inserting
instead --
"
an Australian lawyer (within the meaning of that term
in the Legal Profession Act 2007 section 3)
10 ".
698. Residential Tenancies Act 1987 amended
(1) The amendments in this section are to the Residential Tenancies
Act 1987.
(2) Section 22(6) is amended as follows:
15 (a) by deleting the definition of "legal practitioner" and
inserting instead --
"
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
20 Legal Profession Act 2007 section 3;
";
(b) by deleting the definition of "legally qualified person"
and inserting instead --
"
25 "legally qualified person" means an Australian
lawyer within the meaning of that term in the
Legal Profession Act 2007 section 3 or a person
who holds or has held legal qualifications under
the laws of this State or any other place.
30 ".
page 480
Legal Profession Bill 2007
Consequential amendments Part 20
s. 699
699. Restraining Orders Act 1997 amended
(1) The amendments in this section are to the Restraining Orders
Act 1997.
(2) Section 62(2) is amended by deleting the definition of "legal
5 practitioner" and inserting instead --
"
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3.
10 ".
700. Royal Commission (Police) Act 2002 amended
(1) The amendments in this section are to the Royal Commission
(Police) Act 2002.
(2) Section 3(1) is amended by deleting the definition of "legal
15 practitioner" and inserting instead --
"
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
20 ".
701. Sale of Goods (Vienna Convention) Act 1986 amended
(1) The amendments in this section are to the Sale of Goods
(Vienna Convention) Act 1986.
(2) Section 7(2) is amended by deleting the definition of "legal
25 practitioner" and inserting instead --
"
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3.
30 ".
page 481
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 702
702. Sale of Land Act 1970 amended
(1) The amendments in this section are to the Sale of Land
Act 1970.
(2) Section 14(2)(b)(ii) is amended by deleting "a certificated
5 practitioner (within the meaning of the Legal Practice
Act 2003)" and inserting instead --
"
an Australian legal practitioner (within
the meaning of that term in the Legal
10 Profession Act 2007 section 3)
".
703. Security and Related Activities (Control) Act 1996 amended
(1) The amendments in this section are to the Security and Related
Activities (Control) Act 1996.
15 (2) Section 28(2)(a) is amended by deleting "certificated
practitioner (within the meaning of the Legal Practice
Act 2003)" and inserting instead --
"
Australian legal practitioner (within the
20 meaning of that term in the Legal Profession
Act 2007 section 3)
".
704. Settlement Agents Act 1981 amended
(1) The amendments in this section are to the Settlement Agents
25 Act 1981.
(2) Section 3(1) is amended by deleting the definition of "legal
practitioner" and inserting instead --
"
"legal practitioner" means an Australian legal
30 practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
".
page 482
Legal Profession Bill 2007
Consequential amendments Part 20
s. 705
(3) Section 46(5) is amended by deleting "Legal Practice Act 2003"
and inserting instead --
" Legal Profession Act 2007 ".
705. Solicitor-General Act 1969 amended
5 (1) The amendments in this section are to the Solicitor-General
Act 1969.
(2) Section 3(2) is repealed and the following subsections are
inserted instead --
"
10 (2) A person is eligible for appointment as
Solicitor-General if that person is an Australian lawyer
and has had not less than 8 years' legal experience.
(3) In subsection (2) --
"Australian lawyer" has the meaning given in the
15 Legal Profession Act 2007 section 3;
"legal experience" means --
(a) standing and practice as an Australian legal
practitioner within the meaning of that term
in the Legal Profession Act 2007 section 3;
20 or
(b) judicial service (including service as a judge
of a court, a magistrate or other judicial
officer) in the State or elsewhere in a
common law jurisdiction; or
25 (c) a combination of both kinds of legal
experience mentioned in paragraphs (a)
and (b).
".
page 483
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 706
706. State Administrative Tribunal Act 2004 amended
(1) The amendments in this section are to the State Administrative
Tribunal Act 2004.
(2) Section 3(1) is amended as follows:
5 (a) by deleting the definition of "legal experience" and
inserting instead --
"
"legal experience" means --
(a) standing and practice as a legal practitioner;
10 or
(b) judicial service (including service as a judge
of a court, a magistrate or other judicial
officer) in the State or elsewhere in a
common law jurisdiction; or
15 (c) a combination of both kinds of legal
experience mentioned in paragraphs (a)
and (b);
";
(b) by deleting the definition of "legal practitioner" and
20 inserting instead --
"
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
25 ";
(c) by deleting the definition of "qualified person" and
inserting instead --
"
"qualified person" means an Australian lawyer within
30 the meaning of that term in the Legal Profession
Act 2007 section 3;
".
page 484
Legal Profession Bill 2007
Consequential amendments Part 20
s. 707
(3) Section 93(1) is amended in the definition of "legally qualified
person" by deleting paragraph (a) and "or" after it and inserting
instead --
"
5 (a) an Australian lawyer (within the meaning of
that term in the Legal Profession Act 2007
section 3) or a person entitled to engage in
legal practice in any other place; or
".
10 (4) Schedule 1 is amended by deleting "Legal Practice Act 2003"
and inserting instead --
" Legal Profession Act 2007 ".
707. Strata Titles Act 1985 amended
(1) The amendments in this section are to the Strata Titles
15 Act 1985.
(2) Section 129B(1) is amended by deleting "a legal practitioner (as
defined in the Legal Practice Act 2003) or a barrister or solicitor
of the Supreme Court of another State or a Territory." and
inserting instead --
20 "
an Australian lawyer (within the meaning of that term
in the Legal Profession Act 2007 section 3).
".
708. Suitors' Fund Act 1964 amended
25 (1) The amendments in this section are to the Suitors' Fund
Act 1964.
page 485
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 709
(2) Section 8(2)(c) is amended by deleting "The Legal Practice
Board established by the Legal Practice Act 2003" and inserting
instead --
"
5 the Legal Practice Board established by the
Legal Profession Act 2007
".
709. Supreme Court Act 1935 amended
(1) The amendments in this section are to the Supreme Court
10 Act 1935.
(2) Section 4(1) is amended as follows:
(a) by inserting in the appropriate alphabetical position --
"
"lawyer" means an Australian lawyer within the
15 meaning of that term in the Legal Profession
Act 2007 section 3;
";
(b) by deleting the definition of "legal practitioner" and
inserting instead --
20 "
"legal practitioner" means an Australian legal
practitioner within the meaning of that term in the
Legal Profession Act 2007 section 3;
".
25 (3) Section 4(2) is amended as follows:
(a) in paragraph (a) by deleting "in the State";
(b) by deleting paragraph (b);
(c) in paragraph (d) by deleting "2 or more" and inserting
instead --
30 " both ".
page 486
Legal Profession Bill 2007
Consequential amendments Part 20
s. 709
(4) Section 8(1) is repealed and the following subsection is inserted
instead --
"
(1) A person is eligible for appointment as a judge of the
5 Court if that person is a lawyer and has had not less
than 8 years' legal experience.
".
(5) Section 11A(2) is amended by deleting "legal practitioner" in
both places where it occurs and inserting instead --
10 " lawyer ".
(6) Section 11A(2a)(a) is amended by deleting "in the State".
(7) Section 11B(1)(c) is amended by deleting "the practice of a
barrister or solicitor" and inserting instead --
" legal practice ".
15 (8) Section 154(1) is amended by deleting "legal practitioner" and
inserting instead --
" lawyer ".
(9) Section 167(1)(d) is amended by deleting "legal costs
determination (as defined in the Legal Practice Act 2003)." and
20 inserting instead --
"
costs determination (as defined in the Legal
Profession Act 2007 section 252).
".
25 (10) Section 167(1)(da) is amended by deleting "legal costs
determination (as defined in the Legal Practice Act 2003)." and
inserting instead --
"
costs determination (as defined in the Legal
30 Profession Act 2007 section 252).
".
page 487
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 710
710. Terrorism (Preventative Detention) Act 2006 amended
(1) The amendments in this section are to the Terrorism
(Preventative Detention) Act 2006.
(2) Section 4(1) is amended by deleting the definition of "lawyer"
5 and inserting instead --
"
"lawyer" means an Australian lawyer within the
meaning of that term in the Legal Profession
Act 2007 section 3;
10 ".
711. Transfer of Land Act 1893 amended
(1) The amendments in this section are to the Transfer of Land
Act 1893.
(2) Section 4(1) is amended by inserting in the appropriate
15 alphabetical position --
"
"Australian lawyer" has the meaning given to that
term in the Legal Profession Act 2007 section 3;
".
20 (3) Section 5(2)(b) is deleted and the following paragraph is
inserted instead --
"
(b) the person is an Australian lawyer of not less
than 7 years' standing and practice.
25 ".
(4) Section 6(2)(b) is deleted and the following paragraph is
inserted instead --
"
(b) the person is an Australian lawyer of not less
30 than 5 years' standing.
".
page 488
Legal Profession Bill 2007
Consequential amendments Part 20
s. 712
(5) Section 8(4) is repealed and the following subsection is inserted
instead --
"
(4) A person cannot be an Examiner of Titles unless the
5 person is an Australian lawyer.
".
(6) Section 12 is amended by deleting "practise as a barrister or an
attorney or solicitor or participate in the fees of any other person
so practising." and inserting instead --
10 "
engage in legal practice or share in the profits of a
person so engaged.
".
(7) Section 15(1)(c) is deleted and the following paragraph is
15 inserted instead --
"
(c) any other member of the Authority's staff who
is an Australian lawyer.
".
20 712. Western Australian College of Teaching Act 2004 amended
(1) The amendments in this section are to the Western Australian
College of Teaching Act 2004.
(2) Section 71(2) is amended by deleting "a certificated practitioner
(within the meaning of the Legal Practice Act 2003)" and
25 inserting instead --
"
an Australian legal practitioner (within the meaning of
that term in the Legal Profession Act 2007 section 3)
".
page 489
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 713
713. Workers' Compensation and Injury Management Act 1981
amended
(1) The amendments in this section are to the Workers'
Compensation and Injury Management Act 1981.
5 (2) Section 87(2) is amended by deleting "legal costs determination
(as defined in the Legal Practice Act 2003)." and inserting
instead --
"
costs determination (as defined in the Legal Profession
10 Act 2007 section 252).
".
(3) Section 263 is amended by deleting "Legal Practice Act 2003,
and in particular Part 13" and inserting instead --
" Legal Profession Act 2007, and in particular Part 10 ".
15 (4) Section 264(3) is amended by deleting "Part 13 Division 3 of
the Legal Practice Act 2003" and inserting instead --
" the Legal Profession Act 2007 Part 10 Division 8 ".
(5) Section 268(2) is amended as follows:
(a) in paragraph (a) by deleting "Part 13 Division 3 of the
20 Legal Practice Act 2003;" and inserting instead --
"
the Legal Profession Act 2007 Part 10
Division 8;
";
25 (b) in paragraph (b) by deleting "Part 13 Division 3 of the
Legal Practice Act 2003" and inserting instead --
"
the Legal Profession Act 2007 Part 10
Division 8
30 ".
page 490
Legal Profession Bill 2007
Consequential amendments Part 20
s. 714
(6) Section 268(3) is amended by deleting "Legal Practice
Act 2003." and inserting instead --
" Legal Profession Act 2007. ".
(7) Section 269(1) is amended in the definition of "Legal Costs
5 Committee" by deleting "Legal Practice Act 2003." and
inserting instead --
" Legal Profession Act 2007. ".
(8) Section 271(2)(b) is amended by deleting "legal costs
determination under the Legal Practice Act 2003." and inserting
10 instead --
"
costs determination (as defined in the Legal
Profession Act 2007 section 252).
".
15 714. Young Offenders Act 1994 amended
(1) The amendments in this section are to the Young Offenders
Act 1994.
(2) Section 37A(1) is repealed and the following subsection is
inserted instead --
20 "
(1) In this section --
"lawyer" means an Australian lawyer within the
meaning of that term in the Legal Profession
Act 2007 section 3.
25 ".
(3) Section 37A(2) is amended by deleting "legal practitioner" and
inserting instead --
" lawyer ".
page 491
Legal Profession Bill 2007
Part 20 Consequential amendments
s. 714
(4) Section 152(5)(b) is amended by deleting "a legal practitioner
(as defined in the Legal Practice Act 2003)." and inserting
instead --
"
5 an Australian lawyer (within the meaning of
that term in the Legal Profession Act 2007
section 3).
".
page 492
Legal Profession Bill 2007
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
1893 Act...................................................................................................... 601
2003 Act...................................................................................................... 601
accountant........................................................................................................ 3
action....................................................................................................... 175(2)
ADI ................................................................................................................. 3
admission rules ................................................................................................ 3
admission to the legal profession ...................................................................... 3
admitted to the legal profession ........................................................................ 3
affairs .............................................................................................................. 3
agent........................................................................................................ 290(1)
aggrieved person...................................................................................... 448(1)
amend........................................................................................ 3, 56(1), 175(1)
another jurisdiction .................................................................................... 79(1)
applicant .................................................................................................... 61(1)
applicant for admission .............................................................................. 23(1)
appropriate authority................................................................................ 505(1)
appropriate court...................................................................................... 463(4)
appropriate person........................................................................ 215(1), 222(1)
approved academic qualifications............................................................... 21(1)
approved form.................................................................................................. 3
approved practical legal training requirements ............................................ 21(1)
associate .................................................................................................. 3, 6(1)
associated third party payer ...................................................................... 253(1)
Australia ...................................................................................................... 150
Australian financial services licence ............................................. 206(4), 350(1)
Australian law.............................................................................................. 150
Australian lawyer ......................................................................................... 3, 4
Australian legal practitioner ......................................................................... 3, 5
Australian practising certificate ........................................................................ 3
Australian roll.................................................................................................. 3
Australian trust account................................................................................ 334
Australian-registered foreign lawyer................................................................. 3
authorised person ..................................................................................... 121(1)
authorised representative .............................................................. 206(4), 350(1)
barrister ........................................................................................................... 3
benchmark rate of interest ........................................................................ 260(2)
bill............................................................................................................... 252
Board............................................................................................................... 3
business day................................................................................................. 252
page 493
Legal Profession Bill 2007
Defined Terms
capping and sufficiency provisions ............................................................... 334
cause ....................................................................................................... 226(3)
claim ........................................................................................................... 334
claimant....................................................................................................... 334
client ................................................................................3, 288(1), 294, 295(1)
commencement day...............................................................................601, 631
community legal centre ............................................................................ 388(1)
compensation order.......................................................................................... 3
complaint......................................................................................................... 3
complaint investigation ............................................................................ 517(1)
Complaints Committee..................................................................................... 3
compliance certificate ............................................................................ 3, 31(1)
concerted interstate default........................................................................... 334
condition.......................................................................................................... 3
conditional costs agreement.......................................................................... 252
conduct ............................................................................................................ 3
conduct protocols..................................................................................... 458(1)
contentious business..................................................................................... 274
controlled money ..................................................................................... 205(1)
controlled money account......................................................................... 205(1)
conviction ........................................................................................................ 3
corporation ...................................................................................................... 3
Corporations Act.............................................................................................. 3
Corporations Act administrator................................................................. 124(1)
corresponding academic qualifications ....................................................... 21(1)
corresponding authority.................................................................................... 3
corresponding disciplinary body....................................................................... 3
corresponding foreign law................................................................................ 3
corresponding law............................................................................................ 3
corresponding practical legal training requirements..................................... 21(1)
costs agreement............................................................................................ 252
costs assessment........................................................................................... 252
costs determination ...................................................................................... 252
court ............................................................................................................ 274
criminal record check................................................................................. 75(2)
debtor ...................................................................................................... 501(5)
default ......................................................................................................... 334
deficiency ................................................................................................ 226(3)
designated accountant .............................................................................. 235(1)
director ............................................................................................................ 3
disbursements .............................................................................................. 252
disciplinary action........................................................................................ 451
dishonesty.................................................................................................... 334
disqualified person ........................................................................................... 3
document ......................................................................................................... 3
page 494
Legal Profession Bill 2007
Defined Terms
employing authority ................................................................................... 36(1)
engage in legal practice .................................................................................... 3
existing application .................................................................................. 604(1)
external administrator............................................................................... 125(1)
external examination ........................................................................................ 3
external examiner............................................................................................. 3
external intervener ....................................................................................... 471
external intervention .................................................................................... 471
external territory .............................................................................................. 3
fidelity protocols ...................................................................................... 377(1)
financial service ........................................................................... 206(4), 350(1)
financial services business............................................................ 206(4), 350(1)
foreign country ................................................................................................ 3
foreign law................................................................................................... 150
foreign law practice...................................................................................... 150
foreign registration authority ........................................................................ 150
foreign regulatory action .................................................................................. 3
foreign roll....................................................................................................... 3
general trust account ................................................................................ 205(1)
general trust money.................................................................................. 222(1)
government agency ..........................................................................36(1), 79(1)
grant ................................................................................................................ 3
GST......................................................................................................... 263(1)
Guarantee Fund................................................................................................ 3
home jurisdiction .....................................................................3, 7(2), 7(3), 7(4)
ILP compliance audit ............................................................................... 517(1)
incorporated legal practice................................................................................ 3
information notice........................................................................................ 3, 9
insolvent under administration.......................................................................... 3
instrument of appointment........................................................................ 513(1)
interstate government lawyer.................................................................. 3, 79(1)
interstate lawyer........................................................................................... 3, 4
interstate legal practitioner ........................................................................... 3, 5
interstate practising certificate .......................................................................... 3
interstate regulatory authority........................................................................... 3
interstate roll.................................................................................................... 3
interstate trust account.................................................................................. 334
interstate-registered foreign lawyer................................................................... 3
investigation ............................................................................................ 205(1)
investigator .................................................................................. 205(1), 517(1)
itemised bill ................................................................................................. 252
jurisdiction....................................................................................................... 3
jurisdiction protocols.................................................................................. 74(1)
aw Complaints Officer ................................................................................... 3
law firm ........................................................................................................... 3
page 495
Legal Profession Bill 2007
Defined Terms
Law Mutual Fund..................................................................................... 327(1)
law practice...................................................................................................... 3
Law Society..................................................................................................... 3
lay associate................................................................................... 3, 6(2), 15(1)
LCT Act ...................................................................................................... 631
Legal Aid Commission............................................................................. 388(1)
Legal Aid Fund........................................................................................ 388(1)
legal costs ........................................................................................................ 3
Legal Costs Committee ................................................................................ 252
legal practitioner associate........................................................................ 3, 6(2)
legal practitioner director ................................................................3, 98, 105(6)
legal practitioner partner .............................................................................3, 98
legal profession rules........................................................................................ 3
legal services ................................................................................................... 3
legal work.................................................................................................. 12(1)
litigious matter............................................................................................. 252
local authority.................................................................................................. 3
local lawyer ................................................................................................. 3, 4
local legal practitioner...................................................................... 3, 5, 339(1)
local practising certificate................................................................................. 3
local registration certificate .......................................................................... 150
local regulatory authority ................................................................................. 3
local roll ................................................................................................ 3, 28(1)
local trust account ........................................................................................ 334
locally registered foreign lawyer....................................................................... 3
LP receiver .................................................................................. 124(1), 125(1)
lump sum bill............................................................................................... 252
managed investment scheme ............................................................................ 3
matter ...................................................................................................... 129(1)
member.................................................................................................... 315(1)
modifications ................................................................................................... 3
mortgage.......................................................................................................... 3
mortgage financing .......................................................................................... 3
multi-disciplinary partnership........................................................................... 3
non-associated third party payer ............................................................... 253(1)
non-trust money....................................................................................... 248(1)
notional default ........................................................................................ 374(2)
obstruct........................................................................................ 516(1), 531(1)
officer............................................................................................................ 98
other purposes.......................................................................................... 275(5)
overseas-registered foreign lawyer................................................................ 150
peak organisation ..................................................................................... 388(1)
pecuniary loss .............................................................................................. 334
permanent record ..................................................................................... 228(2)
personal information ................................................................................ 587(1)
page 496
Legal Profession Bill 2007
Defined Terms
PII management committee ...................................................................... 327(1)
practical legal training...................................................................................... 3
practise foreign law...................................................................................... 150
previous Act .................................................................................................... 3
principal .................................................................................................. 3, 6(3)
Principal Registrar ........................................................................................... 3
professional indemnity insurance.............................................................. 327(1)
professional misconduct ....................................................................... 3, 403(1)
professional obligations.................................................................................. 98
prohibited person ....................................................................................... 18(1)
proposed action.......................................................................................... 56(2)
prospective applicant for admission ............................................................ 23(1)
prospective plaintiff ................................................................................. 501(4)
protected person....................................... 341(5), 353(7), 455(1), 533(4), 591(1)
public authority........................................................................................ 263(1)
public document....................................................................................... 158(1)
public officer ............................................................................................. 12(1)
Register ....................................................................................................... 451
Register of Disciplinary Action ................................................................ 452(1)
registered..................................................................................................... 150
regulated property........................................................................................ 471
related body corporate.................................................................................... 98
relevant jurisdiction...................................................................................... 334
relevant period ......................................................................................... 387(1)
relevant person............................................................................... 23(1), 587(1)
required experience..........................................................................50(1), 72(1)
restricted legal practice.....................................................................50(1), 72(1)
serious offence................................................................................................. 3
show cause event ............................................................................................. 3
sole practitioner ............................................................................................... 3
sophisticated client....................................................................................... 252
suitability matter ...................................................................................... 3, 8(1)
supervised legal practice .................................................................................. 3
Supreme Court (full bench) .............................................................................. 3
tax offence ....................................................................................................... 3
taxing officer ................................................................................................... 3
third party payer................................................................... 252, 253(1), 295(1)
this jurisdiction ................................................................................................ 3
transferee ................................................................................................. 501(1)
transit money ........................................................................................... 205(1)
transitional regulations ............................................................................. 637(1)
Trust................................................................................................................ 3
trust account ........................................................................................ 3, 205(1)
trust account examination......................................................................... 517(1)
trust account investigation........................................................................ 517(1)
page 497
Legal Profession Bill 2007
Defined Terms
trust money.......................................................................................... 3, 205(1)
trust money protocols............................................................................... 209(1)
trust property ................................................................................................... 3
trust records ................................................................. 3, 205(1), 238(3), 517(2)
unpaid work............................................................................................... 12(4)
unrestricted practising certificate ...................................................................... 3
unsatisfactory professional conduct ...........................................................3, 402
uplift fee ...................................................................................................... 252
WA government lawyer ......................................................................... 3, 36(1)
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