LEGAL PROFESSION BILL 2004

New South Wales Bills

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This is a Bill, not an Act. For current law, see the Acts databases.

LEGAL PROFESSION BILL 2004

New South Wales Legal Profession Bill 2004 Contents Page Chapter 1 Introduction Part 1.1 Preliminary 1 Name of Act 2 2 Com mencem ent 2 3 Purposes 2 Part 1.2 Interpretation 4 Definitions 2 5 Terms relating to lawyers 15 6 Terms relating to legal practitioners 15 7 Terms relating to associates and principals of law practices 15 8 Home jurisdiction 17 9 Suitability matters 17 10 Information notices 19 11 References to convictions for offences 19

Legal Profession Bill 2004 Contents Page Chapter 2 General requirements for engaging in legal practice Part 2.1 Preliminary 12 Simplified outline of Chapter 21 Part 2.2 Reservation of legal work and legal titles Division 1 Preliminary 13 Purposes 22 Division 2 General prohibitions on unqualified practice 14 Prohibition on engaging in legal practice when not entitled 22 15 Prohibition on representing or advertising entitlement to engage in legal practice when not entitled 23 16 Presumptions about taking or using certain names, titles or descriptions specified in regulations 24 Division 3 Prohibitions regarding associates, clerks and non-legal partners 17 Associates who are disqualified or convicted persons 25 18 Prohibition on employment of certain non-legal clerks 26 19 Prohibition on partnerships with certain non-legal partners 26 20 Proceedings on prohibition orders 27 Division 4 General 21 Professional discipline 28 Part 2.3 Admission of local lawyers Division 1 Preliminary 22 Purpose 28 23 Definitions 29 Contents page 2

Legal Profession Bill 2004 Contents Page Division 2 Eligibility and suitability for admission 24 Eligibility for admission 29 25 Suitability for admission 30 26 Early consideration of suitability 31 27 Referral of matters to Supreme Court 31 28 Appeals 31 29 Binding effect of declaration or order 32 30 Entitlement to be represented, heard and make representations 32 Division 3 Admission to the legal profession 31 Admission 33 32 Roll of local lawyers 33 33 Local lawyer is officer of Supreme Court 34 34 Miscellaneous provisions respecting admission 34 Division 4 Legal Profession Admission Board 35 Determination of applications for admission 34 36 Com pliance certificates 35 37 Consideration of applicant's eligibility and suitability 35 Division 5 Admission rules 38 Admission rules 36 Part 2.4 Legal practice by Australian legal practitioners Division 1 Preliminary 39 Purposes 37 Division 2 Legal practice in this jurisdiction by Australian legal practitioners 40 Entitlement of holder of Australian practising certificate to practise in this jurisdiction 38 Division 3 Local practising certificates generally 41 Local practising certificates 38 42 Suitability to hold local practising certificate 38 Contents page 3

Legal Profession Bill 2004 Contents Page 43 Duration of local practising certificate 40 44 Local legal practitioner is officer of Supreme Court 40 Division 4 Grant or renewal of local practising certificates 45 Application for grant or renewal of local practising certificate 40 46 Manner of application 42 47 Timing of application for renewal of local practising certificate 43 48 Grant or renewal of local practising certificate 43 Division 5 Conditions on local practising certificates 49 Conditions generally 45 50 Conditions imposed by Council 46 51 Imposition or variation of conditions pending criminal proceedings 48 52 Statutory condition regarding conditions imposed on interstate admission 48 53 Statutory condition regarding practice as solicitor 48 54 Statutory condition regarding practice as a barrister 49 55 Statutory condition regarding notification of offence 49 56 Additional conditions on practising certificates of barristers 50 57 Conditions imposed by legal profession rules 50 58 Com pliance with conditions 51 Division 6 Amendment, suspension or cancellation of local practising certificates 59 Application of this Division 51 60 Grounds for amending, suspending or cancelling local practising certificate 51 61 Amending, suspending or cancelling local practising certificate 52 62 Operation of am endment, suspension or cancellation of local practising certificate 53 63 Other ways of amending or cancelling local practising certificate 54 64 Relationship of this Division with Chapter 4 54 Division 7 Special powers in relation to local practising certificates--show cause events 65 Definition of "show cause event" 54 Contents page 4

Legal Profession Bill 2004 Contents Page 66 Applicant for local practising certificate--show cause event 55 67 Holder of local practising certificate--show cause event 56 68 Investigation and consideration of show cause event 57 69 Power to renew practising certificate or defer action in special circumstances 59 70 No decision in required period--suspension of practising certificate and referral to Com missioner 60 71 Com missioner taking over determination of matter 61 72 Council to implement decisions under this Division 61 73 Failure to comply with conditions imposed under this Division 63 74 Restriction on making further applications 63 75 Review of decisions by Tribunal 64 76 Parties to Tribunal proceedings 65 77 Relationship of this Division with Chapters 4 and 6 65 Division 8 Further provisions relating to local practising certificates 78 Immediate suspension of local practising certificate 66 79 Surrender and cancellation of local practising certificate 67 80 Return of local practising certificate 67 Division 9 Practice as a barrister or solicitor 81 Practice as a barrister 68 82 Practice as a solicitor 68 83 Client access 68 84 Advertising 68 85 Regulation of advertising and other marketing of services 69 86 Specialisation 71 87 Advocates 71 88 Joint advocates 71 89 Attendance 71 90 Prohibition of official schemes for recognition of seniority or status 72 Division 10 Fees for practising certificates 91 Fee for practising certificate 73 92 Late fee 74 93 Refund of fees 74 94 Submission of budget to Attorney General 74 95 Audit of Council activities 75 Contents page 5

Legal Profession Bill 2004 Contents Page Division 11 Interstate legal practitioners 96 W hen does an interstate legal practitioner establish an office? 75 97 Notification of establishment of office required 75 98 Professional indemnity insurance if office established 76 99 Professional indemnity insurance if office not established 76 100 Extent of entitlement of interstate legal practitioner to practise in this jurisdiction 77 101 Additional conditions on practice of interstate legal practitioners 78 102 Special provisions about interstate legal practitioner engaging in unsupervised legal practice in this jurisdiction 78 103 Interstate legal practitioner is officer of Supreme Court 78 Division 12 Miscellaneous 104 Protocols 79 105 Consideration and investigation of applicants or holders 79 106 Register of local practising certificates 80 107 Orders or injunctions 81 108 Appeal against certain decisions of Councils 81 109 Attorney General 81 110 Crown Solicitor 82 111 Government and other lawyers--exem ption from certain conditions 83 112 Government lawyers--exemption from certain provisions 83 113 Government lawyers--imposition of additional conditions 84 114 Government lawyers of other jurisdictions 84 115 Non-com pellability of certain witnesses 85 Part 2.5 Inter-jurisdictional provisions regarding admission and practising certificates Division 1 Preliminary 116 Purpose 86 117 Definition 86 118 Other requirem ents not affected 86 Contents page 6

Legal Profession Bill 2004 Contents Page Division 2 Notifications to be given by local authorities to interstate authorities 119 Official notification to other jurisdictions of applications for admission and associated matters 86 120 Official notification to other jurisdictions of removals from local roll 87 121 Council to notify other jurisdictions of certain matters 87 Division 3 Notifications to be given by lawyers to local authorities 122 Lawyer to give notice of removal of name from interstate roll 88 123 Lawyer to give notice of interstate orders 88 124 Lawyer to give notice of foreign regulatory action 89 125 Provisions relating to requirement to notify 89 Division 4 Taking of action by local authorities in response to notifications received 126 Perem ptory removal of local lawyer's name from local roll following removal in another jurisdiction 90 127 Perem ptory cancellation of local practising certificate following removal of name from interstate roll 90 128 Show cause procedure for removal of lawyer's name from local roll following foreign regulatory action 91 129 Show cause procedure for cancellation of local practising certificate following foreign regulatory action 92 130 Order for non-removal of name or non-cancellation of local practising certificate 93 131 Local authority may give information to other local authorities 94 Part 2.6 Incorporated legal practices and multi-disciplinary partnerships Division 1 Preliminary 132 Purposes 94 133 Definitions 94 Contents page 7

Legal Profession Bill 2004 Contents Page Division 2 Incorporated legal practices 134 Nature of incorporated legal practice 96 135 Non-legal services and businesses of incorporated legal practices 96 136 Corporations eligible to be incorporated legal practice 97 137 Notice of intention to start providing legal services 97 138 Prohibition on representations that corporation is incorporated legal practice 98 139 Notice of termination of provision of legal services 98 140 Incorporated legal practice must have legal practitioner director 98 141 Obligations of legal practitioner director relating to misconduct 99 142 Incorporated legal practice without legal practitioner director 100 143 Obligations and privileges of practitioners who are officers or employees 101 144 Professional indemnity Insurance 102 145 Conflicts of interest 103 146 Disclosure obligations 103 147 Effect of non-disclosure of provision of certain services 104 148 Application of legal profession rules 105 149 Requirements relating to advertising 105 150 Extension of vicarious liability relating to failure to account, pay or deliver and dishonesty to incorporated legal practices 105 151 Sharing of receipts, revenue or other income 106 152 Disqualified persons 106 153 Banning of incorporated legal practices 107 154 Disqualification from managing incorporated legal practice 109 155 Disclosure of information to Australian Securities and Investm ents Com mission 109 156 External administration proceedings under Corporations Act 2001 (Cth) 110 157 External administration proceedings under other legislation 110 158 Incorporated legal practice that is subject to receivership under this Act and external administration under Corporations Act 2001 (Cth) 111 159 Incorporated legal practice that is subject to receivership under this Act and external administration under other legislation 112 160 Co-operation between courts 113 161 Relationship of Act to constitution of incorporated legal practice 113 Contents page 8

Legal Profession Bill 2004 Contents Page 162 Relationship of Act to legislation establishing incorporated legal practice 113 163 Relationship of Act to Corporations legislation 113 164 Undue influence 114 Division 3 Multi-disciplinary partnerships 165 Nature of multi-disciplinary partnership 114 166 Conduct of multi-disciplinary partnerships 115 167 Notice of intention to start practice in multi-disciplinary partnership 115 168 General obligations of legal practitioner partners 115 169 Obligations of legal practitioner partner relating to misconduct 116 170 Actions of partner who is not an Australian legal practitioner 116 171 Obligations and privileges of practitioners who are partners or employees 117 172 Conflicts of interest 117 173 Disclosure obligations 118 174 Effect of non-disclosure of provision of certain services 119 175 Application of legal profession rules 119 176 Requirements relating to advertising 119 177 Sharing of receipts, revenue or other income 120 178 Disqualified persons 120 179 Prohibition on partnerships with certain partners who are not Australian legal practitioners 120 180 Undue influence 121 Division 4 Miscellaneous 181 Obligations of individual practitioners not affected 122 182 Regulations 122 Part 2.7 Legal practice by foreign lawyers Division 1 Preliminary 183 Purpose 123 184 Definitions 123 185 This Part does not apply to Australian legal practitioners 124 Division 2 Practice of foreign law 186 Requirement for registration 124 Contents page 9

Legal Profession Bill 2004 Contents Page 187 Entitlement of Australian-registered foreign lawyer to practise in this jurisdiction 125 188 Scope of practice 125 189 Form of practice 126 190 Application of Australian professional ethical and practice standards 127 191 Designation 128 192 Letterhead and other identifying docum ents 129 193 Advertising 129 194 Foreign lawyer employing Australian legal practitioner 130 195 Trust money and trust accounts 130 196 Professional Indemnity insurance 131 197 Fidelity cover 131 Division 3 Local registration of foreign lawyers generally 198 Local registration of foreign lawyers 131 199 Duration of registration 131 200 Locally registered foreign lawyer is not officer of Supreme Court 132 Division 4 Applications for grant or renewal of local registration 201 Application for grant or renewal of registration 132 202 Manner of application 132 203 Requirements regarding applications for grant or renewal of registration 133 Division 5 Grant or renewal of registration 204 Grant or renewal of registration 135 205 Requirement to grant or renew registration if criteria satisfied 135 206 Refusal to grant or renew registration 136 Division 6 Amendment, suspension or cancellation of local registration 207 Application of this Division 138 208 Grounds for amending, suspending or cancelling registration 138 209 Amending, suspending or cancelling registration 139 210 Operation of am endment, suspension or cancellation of registration 140 Contents page 10

Legal Profession Bill 2004 Contents Page 211 Other ways of amending or cancelling registration 141 212 Relationship of this Division with Chapter 4 141 Division 7 Special powers in relation to local registration--show cause events 213 Applicant for local registration--show cause event 141 214 Locally registered foreign lawyer--show cause event 142 215 Refusal, am endment, suspension or cancellation of local registration-- failure to show cause 143 216 Restriction on making further applications 143 217 Relationship of this Division with Chapters 4 and 6 143 Division 8 Further provisions relating to local registration 218 Immediate suspension of registration 144 219 Surrender of local registration certificate and cancellation of registration 145 220 Autom atic suspension or cancellation of registration on grant of practising certificate or other disciplinary action 145 221 Suspension or cancellation of registration not to affect disciplinary processes 145 222 Return of local registration certificate on am endment, suspension or cancellation of registration 145 Division 9 Conditions on registration 223 Conditions generally 146 224 Conditions imposed by domestic registration authority 146 225 Imposition or variation of conditions pending criminal proceedings 147 226 Statutory condition regarding notification of offence 148 227 Conditions imposed by legal profession rules 148 228 Com pliance with conditions 149 Division 10 Interstate-registered foreign lawyers 229 Extent of entitlement of interstate-registered foreign lawyer to practise in this jurisdiction 149 230 Additional conditions on practice of interstate-registered foreign lawyers 150 Contents page 11

Legal Profession Bill 2004 Contents Page Division 11 Miscellaneous 231 Consideration and investigation of applicants and locally registered foreign lawyers 150 232 Register of locally registered foreign lawyers 151 233 Publication of information about locally registered foreign lawyers 151 234 Supreme Court orders about conditions 151 235 Exemption by domestic registration authority 151 236 Mem bership of professional association 152 237 Refund of fees 152 238 Appeals or reviews 152 239 Joint rules 152 Part 2.8 Community legal centres 240 Community legal centres 153 241 Application of legal profession rules 154 Chapter 3 Conduct of legal practice Part 3.1 Trust money and trust accounts Division 1 Preliminary 242 Purposes 155 243 Definitions 155 244 Money involved in financial services or investments 157 245 Determinations about status of money 158 246 Application of Part to law practices and trust money 159 247 Protocols for determining where trust money is received 160 248 W hen money is received 160 249 Discharge by legal practitioner associate of obligations of law practice 161 250 Liability of principals of law practice 162 251 Former practices, principals and associates 162 252 Barristers receiving money on behalf of other persons 162 Contents page 12

Legal Profession Bill 2004 Contents Page Division 2 Trust accounts and trust money 253 Maintenance of general trust account 162 254 Certain trust money to be deposited in general trust account 163 255 Holding, disbursing and accounting for trust money 164 256 Controlled money 164 257 Transit money 165 258 Trust money subject to specific powers 165 259 Protection of trust money 166 260 Intermixing money 166 261 Dealing with trust money: legal costs and unclaimed money 166 262 Deficiency in trust account 166 263 Reporting certain irregularities and suspected irregularities 167 264 Keeping trust records 168 265 False names 168 266 Unclaimed money 168 Division 3 Investigations 267 Appointment of investigators 169 268 Investigations 169 269 Application of Chapter 6 170 270 Investigator's report 170 271 W hen costs of investigation are debt 170 Division 4 External examinations 272 Designation of external exam iners 170 273 Designation and appointment of associates as external exam iners 171 274 Law practice must have trust records externally examined 171 275 Final examination of trust records 171 276 Examination of affairs in connection with examination of trust records 172 277 Carrying out exam ination 173 278 External exam iner's report 173 279 Law practice liable for costs of examination 174 Division 5 Provisions relating to ADIs 280 Approval of ADIs 174 281 ADI not subject to certain obligations and liabilities 174 282 Reports, records and information 175 Contents page 13

Legal Profession Bill 2004 Contents Page Division 6 Statutory deposits 283 Statutory deposits 176 284 Status and repayment of deposited money 176 Division 7 Public Purpose Fund 285 Public Purpose Fund 177 286 Trustees of Public Purpose Fund 177 287 Managem ent and control of Fund 177 288 Agreem ents relating to payment of interest on general trust accounts 178 289 Payments from Fund 178 290 Payment of certain costs and expenses from Fund 179 291 Submission of budgets to Director-General 180 292 Discretionary paym ents from Fund for other purposes 181 293 Performance audits 182 294 Information about Fund to be included in Law Society Council report 183 Division 8 Miscellaneous provisions 295 Restrictions on receipt of trust money 183 296 Application of Part to incorporated legal practices and multi- disciplinary partnerships 184 297 Application of Part to com munity legal centres 185 298 Disclosure to clients--money not received as trust money 185 299 Disclosure of accounts used to hold money entrusted to legal practitioners 186 300 Regulations 186 Part 3.2 Costs disclosure and assessment Division 1 Preliminary 301 Purposes 187 302 Definitions 187 Division 2 Application of this Part 303 Application of Part--first instructions rule 189 304 Part also applies by agreement or at client's election 189 305 Displacement of Part 190 306 How and where does a client first instruct a law practice? 190 Contents page 14

Legal Profession Bill 2004 Contents Page 307 W hen does a matter have a substantial connection with this jurisdiction? 190 308 W hat happens when different laws apply to a matter? 191 Division 3 Costs disclosure 309 Disclosure of costs to clients 191 310 Disclosure if another law practice is to be retained 193 311 How and when must disclosure be made? 194 312 Exceptions to requirement for disclosure 194 313 Additional disclosure--settlement of litigious matters 195 314 Additional disclosure--uplift fees 196 315 Form of disclosure 196 316 Ongoing obligation to disclose 196 317 Effect of failure to disclose 196 318 Progress reports 197 Division 4 Legal costs generally 319 On what basis are legal costs recoverable? 197 320 Security for legal costs 198 321 Interest on unpaid legal costs 198 Division 5 Costs agreem ents 322 Making costs agreem ents 198 323 Conditional costs agreem ents 199 324 Conditional costs agreem ents involving uplift fees 200 325 Contingency fees are prohibited 200 326 Effect of costs agreement 201 327 Certain costs agreem ents are void 201 328 Setting aside costs agreem ents 201 Division 6 Costs fixed by regulations 329 Regulations to provide for fixed costs 204 330 Provisions relating to regulations generally 204 Division 7 Billing 331 Legal costs cannot be recovered unless bill has been served 205 332 Bills 205 333 Notification of client's rights 206 334 Interim bills 207 Contents page 15

Legal Profession Bill 2004 Contents Page Division 8 Mediation of costs disputes 335 Meaning of "client" and "costs dispute" 207 336 Referral for mediation 207 Division 9 Maximum costs in personal injury damages matters 337 Interpretation and application 208 338 Maximum costs fixed for claims up to $100,000 208 339 Maximum costs do not affect solicitor-client costs under costs agreem ents 210 340 Costs can be awarded on indemnity basis for costs incurred after failure to accept offer of comprom ise 210 341 Court may order certain legal services to be excluded from maximum costs limitation 211 342 Apportionment of maximum costs between law practices 211 343 Meaning of "amount recovered" on a claim 211 Division 10 Costs in civil claims where no reasonable prospects of success 344 Application of Division 212 345 Law practice not to act unless there are reasonable prospects of success 212 346 Preliminary legal work not affected 213 347 Restrictions on comm encing proceedings without reasonable prospects of success 213 348 Costs order against law practice acting without reasonable prospects of success 214 349 Onus of showing facts provided reasonable prospects of success 214 Division 11 Costs assessment Subdivision 1 Applications 350 Application by clients for costs assessment 215 351 Application for costs assessment by law practice retaining another law practice 216 352 Application for costs assessment by law practice giving bill 217 353 Application for assessment of party/party costs 217 354 How to make an application for costs assessment 217 Contents page 16

Legal Profession Bill 2004 Contents Page 355 Consequences of application 218 356 Persons to be notified of application 218 Subdivision 2 Assessment 357 Referral of matters to costs assessors 218 358 Costs assessor may require docum ents or further particulars 219 359 Consideration of applications by costs assessors 220 360 Non-attendance of party 220 361 Assessment of complying costs agreem ents 221 362 Costs fixed by regulations or other legislation 221 363 Criteria for assessment 222 Subdivision 3 Party/party costs 364 Assessment of costs-- costs ordered by court or tribunal 223 365 Effect of costs agreem ents in assessments of party/party costs 224 366 Court or tribunal may determine matters 224 Subdivision 4 Determinations 367 Determinations of costs assessments 224 368 Certificate as to determination 224 369 Recovery of costs of costs assessment 225 370 Reasons for determination 226 371 Correction of error in determination 227 372 Determination to be final 227 Subdivision 5 Review of determination by panel 373 Application for review of determination 227 374 Referral of application to panel 228 375 General functions of panel in relation to review application 228 376 Relevant docum ents to be produced to panel 229 377 Effect of review on costs assessor's determination 230 378 Certificate as to determination of panel 230 379 Recovery of costs of review 231 380 Reasons for determination 232 381 Correction of error in determination 233 382 Appeal against determination of panel 233 383 Regulations 233 Contents page 17

Legal Profession Bill 2004 Contents Page Subdivision 6 Appeals 384 Appeal against decision of costs assessor as to matter of law 233 385 Appeal against decision of costs assessor by leave 234 386 Effect of appeal on application 234 387 Assessor can be a party to appeal 235 388 Notices of appeal 235 389 Court may refer unreviewed determination to review panel 235 Subdivision 7 General 390 Costs assessors 235 391 Protection from liability 236 392 Confidentiality 236 393 Referral for disciplinary action 236 394 Rules of procedure for applications 237 395 Division not to apply to interest on judgment debt 237 Division 12 Miscellaneous 396 Application of Part to cross-vested matters 238 397 Application of Part to incorporated legal practices and multi- disciplinary partnerships 238 398 Application of Part to Australian-registered foreign lawyers 238 399 Imputed acts, omissions or knowledge 238 400 Costs of administering Part 239 Part 3.3 Professional indemnity insurance Division 1 Preliminary 401 Purpose 239 402 Definitions 240 Division 2 Barristers 403 Professional indemnity insurance for barristers 240 Division 3 Solicitors 404 Definitions 241 405 Solicitors Mutual Indemnity Fund 242 406 Solicitor to be insured and to make contributions 242 407 Separate account 243 Contents page 18

Legal Profession Bill 2004 Contents Page 408 Investment of Indemnity Fund 243 409 Payments from Indemnity Fund 244 410 Payments relating to defaulting insurers 245 411 Contributions 246 412 Levies 246 413 Failure to pay contribution or levy 247 414 Investigation of Indemnity Fund 247 415 Powers of investigators 248 416 Application of Division to other persons 248 417 Provisions relating to HIH insurance 249 Part 3.4 Fidelity cover Division 1 Preliminary 418 Purpose 249 419 Definitions 249 420 Time of default 250 421 Application of this Part 250 Division 2 Fidelity Fund 422 Establishment of Legal Practitioners Fidelity Fund 251 423 Establishment of separate Legal Practitioners Fidelity Fund Account 251 424 Investment of Fidelity Fund 251 425 Payments from Fidelity Fund 252 426 Managem ent Com mittee 252 427 Audit 253 428 Insurance 253 429 Borrowing 254 Division 3 Contributions and levies 430 Contributions 254 431 Levies 255 432 Failure to pay contribution or levy 256 Division 4 Defaults to which this Part applies 433 Meaning of "relevant jurisdiction" 256 434 Defaults to which this Part applies 257 435 Defaults relating to financial services or investments 257 Contents page 19

Legal Profession Bill 2004 Contents Page Division 5 Claims about defaults 436 Claim s about defaults 259 437 Time limit for making claims 259 438 Advertisements 260 439 Time limit for making claims following advertisement 261 440 Claim s not affected by certain matters 261 441 Advance paym ents 262 Division 6 Determination of claims 442 Determination of claims 262 443 Claimant required to pursue claims etc 263 444 Maximum amount allowable 264 445 Costs 264 446 Interest 264 447 Reduction of claim because of other benefits 265 448 Subrogation 265 449 Repayment of certain am ounts 266 450 Notification of delay in making decision 266 451 Notification of decision 266 452 Appeal against decision on claim 267 453 Appeal against failure to determine claim 268 454 Court proceedings 269 Division 7 Payments from Fidelity Fund for defaults 455 Payments for defaults 269 456 Caps on paym ents 269 457 Sufficiency of Fidelity Fund 270 Division 8 Claims by law practices or associates 458 Claim s by law practices or associates about defaults 271 459 Claim s by law practices or associates about notional defaults 271 Division 9 Defaults involving interstate elements 460 Concerted interstate defaults 272 461 Defaults involving interstate elem ents where comm itted by one associate only 273 Contents page 20

Legal Profession Bill 2004 Contents Page Division 10 Inter-jurisdictional provisions 462 Protocols 273 463 Forwarding of claims 274 464 Investigation of defaults to which this Part applies 274 465 Investigation of defaults to which a corresponding law applies 275 466 Investigation of concerted interstate defaults and other defaults involving interstate elem ents 275 467 Recommendations by Law Society Council to corresponding authorities 276 468 Recommendations to and decisions by Law Society Council after receiving recomm endations from corresponding authorities 276 469 Request to another jurisdiction to investigate aspects of claim 276 470 Request from another jurisdiction to investigate aspects of claim 277 471 Co-operation with other authorities 277 Division 11 Miscellaneous 472 Interstate legal practitioner becoming authorised to withdraw from local trust account 277 473 Application of Part to incorporated legal practices 278 474 Application of Part to multi-disciplinary partnerships 278 475 Application of Part to Australian lawyers whose practising certificates have lapsed 279 476 Availability of property of Law Society 279 Part 3.5 Mortgage practices and managed investment schemes Division 1 Preliminary 477 Definitions 280 478 State regulated mortgage--m eaning 282 Division 2 Mortgage practices 479 Conduct of mortgage practices 283 480 Nom ination of practice as State regulated mortgage practice 284 481 Requirement to notify Law Society of State regulated mortgages 284 Contents page 21

Legal Profession Bill 2004 Contents Page 482 Solicitor to have fidelity cover in respect of regulated mortgages 285 483 Bar on claims against Fidelity Fund relating to regulated mortgages 285 484 Notification of insurance arrangements for regulated mortgage 286 485 Failure to obtain fidelity insurance for regulated mortgage 286 Division 3 Managed investment schemes 486 Involvement of solicitors in managed investment schemes 287 487 Claim s against Fidelity Fund relating to managed investment schemes connected with solicitors 289 488 Transfer of mortgages to responsible entity 289 489 Regulations and rules relating to managed investment schemes 289 Division 4 Transitional arrangements--pre-existing mortgages 490 Part extends to pre-existing mortgages 290 Division 5 Miscellaneous 491 Law Society may require information about mortgage practices 290 492 Indemnity insurance 291 493 Regulations and rules relating to Part 291 Chapter 4 Complaints and discipline Part 4.1 Preliminary and application Division 1 Preliminary 494 Purposes and objects 292 495 Definitions 294 496 Unsatisfactory professional conduct 294 497 Professional misconduct 295 498 Conduct capable of being unsatisfactory professional conduct or professional misconduct 295 Contents page 22

Legal Profession Bill 2004 Contents Page Division 2 Application 499 Practitioners to whom this Chapter applies 296 500 Application of Chapter to lawyers, former lawyers and former practitioners 297 501 Conduct to which this Chapter applies-- generally 297 502 Conduct to which this Chapter applies-- insolvency, serious offences and tax offences 298 Part 4.2 Complaints about Australian legal practitioners 503 Complaints 299 504 Making of com plaints 299 505 To whom complaint made 300 506 Complaints made over 3 years after conduct concerned 300 507 Further information and verification 301 508 Practitioner to be notified of complaint 301 509 Submissions by practitioner 302 510 Preliminary assessment 302 511 Sum mary dismissal of com plaints 303 512 W ithdrawal of complaints 304 513 Referral of com plaints to Council 304 Part 4.3 Mediation 514 Definition 305 515 Mediation of complaint involving consumer dispute solely 305 516 Mediation of hybrid complaint 306 517 Com pulsory mediation of consumer dispute 306 518 Facilitation of mediation 307 519 Nature of mediation 307 520 Mediators 307 521 Certificate of failure of mediation 308 522 Confidentiality of mediation process 308 523 Recommendation for investigation 308 524 Protection from liability 308 Part 4.4 Investigation of complaints 525 Complaints to be investigated 309 526 Investigation of com plaints by Com missioner 309 527 Investigation of com plaints by Council 310 528 Consultation and cooperation on com plaints 310 529 Monitoring by Com missioner of conduct of investigation 310 530 Directions by Com missioner about conduct of investigation 311 Contents page 23

Legal Profession Bill 2004 Contents Page 531 Appointment of investigator 311 532 Independent investigation of certain com plaints 311 533 Referral of matters to costs assessors 312 534 Conduct that may be investigated 312 535 Modified com plaints 313 536 Application of Part 15 314 Part 4.5 Decision of Commissioner or Council 537 Decision of Com missioner or Council after investigation 314 538 Decision of Com missioner or Council without investigation 315 539 Dismissal of complaint 315 540 Sum mary conclusion of complaint procedure by caution, reprimand or compensation order 315 541 Record of decision 316 542 Reasons to be provided to complainant and practitioner 316 Part 4.6 Review of Councils' decisions 543 Application for review 317 544 Reviews 318 545 Decision of Com missioner on review 318 546 Notification about review of Council decisions 319 547 Assistance by Council 320 Part 4.7 Immediate suspension of local practising certificate 548 Immediate suspension of local practising certificate 320 549 Appeal 321 550 Other powers to suspend not affected 321 Part 4.8 Proceedings in Tribunal 551 Com mencem ent of proceedings 321 552 Time for comm encing proceedings 322 553 Hearings 323 554 Joinder 323 555 Variation of disciplinary application 323 556 Nature of allegations 323 557 Substitution of applicant 324 558 Rules of evidence 324 559 Parties 324 560 Hearings to be conducted in public 325 561 Procedural lapses and defects in appointm ents 326 562 Determinations of Tribunal 326 563 Interlocutory and interim orders 329 564 Consent orders 330 Contents page 24

Legal Profession Bill 2004 Contents Page 565 Com pliance with determinations and orders 330 566 Costs 331 567 Notification of progress and result of proceedings before Tribunal 333 568 Early termination of proceedings before Tribunal 333 569 Other remedies not affected 333 Part 4.9 Compensation 570 Request by complainant for compensation order 333 571 Com pensation orders 334 572 Prerequisites to making of compensation orders 335 573 Making of compensation orders 335 574 Enforcement of compensation orders 336 575 Other remedies not affected 336 Part 4.10 Publicising disciplinary action 576 Definitions 336 577 Register of Disciplinary Action 337 578 Other means of publicising disciplinary action 338 579 Quashing of disciplinary action 339 580 Liability for publicising disciplinary action 339 581 Disciplinary action taken where infirm ity, injury or illness is involved 340 582 Effect of secrecy provisions and non-disclosure orders 340 Part 4.11 Inter-jurisdictional provisions 583 Protocols 341 584 Request to another jurisdiction to investigate complaint 341 585 Request from another jurisdiction to investigate complaint 341 586 Sharing of information with corresponding authorities 342 587 Co-operation with other authorities 342 588 Com pliance with orders made under corresponding laws 342 589 Other powers or functions not affected 343 Part 4.12 Miscellaneous 590 Jurisdiction of Supreme Court 343 591 Rules of procedural fairness 343 592 Duty to deal with com plaints efficiently and expeditiously 344 593 Information about com plaints procedure 344 594 Co-operation and information sharing between Com missioner and Councils 344 595 Pre-complaint powers where client is denied access to docum ents 344 Contents page 25

Legal Profession Bill 2004 Contents Page 596 Failure to comply with orders 346 597 Performance criteria 346 598 Reports to Attorney General 347 599 Duty to report suspected offences 347 600 Effect of other proceedings 347 601 Protection from liability 348 602 Non-com pellability of certain witnesses 348 603 Confidentiality of client comm unications 349 604 W aiver of privilege or duty of confidentiality 349 605 Undertakings by Com missioner or Council regarding privileged or confidential information 349 606 Appeals against orders and decisions of Tribunal 350 607 Costs of administering Chapter 350 608 Undertakings by practitioner 350 609 Investigations not related to com plaints under this Chapter 351 Chapter 5 External intervention Part 5.1 Preliminary 610 Purpose 352 611 Definitions 352 612 Application of Chapter to barristers 353 613 Application of Chapter to Australian-registered foreign lawyers 353 614 Application of Chapter to other persons 353 Part 5.2 Initiation of external intervention 615 Circumstances warranting external intervention 354 616 Determination regarding external intervention 355 Part 5.3 Supervisors 617 Appointment of supervisor 356 618 Notice of appointment 357 619 Effect of service of notice of appointment 358 620 Role of supervisor 359 621 Records of and dealing with trust money of law practice under supervision 360 622 Termination of supervisor's appointment 360 Contents page 26

Legal Profession Bill 2004 Contents Page Part 5.4 Managers 623 Appointment of manager 361 624 Notice of appointment 362 625 Effect of service of notice of appointment 362 626 Role of manager 364 627 Records and accounts of law practice under managem ent and dealings with trust money 365 628 Deceased estates 365 629 Termination of manager's appointment 366 Part 5.5 Receivers 630 Appointment of receiver 367 631 Notice of appointment 368 632 Effect of service of notice of appointment 369 633 Role of receiver 370 634 Records and accounts of law practice under receivership and dealings with trust money 371 635 Power of receiver to take possession of regulated property 371 636 Power of receiver to take delivery of regulated property 372 637 Power of receiver to deal with regulated property 372 638 Power of receiver to require docum ents or information 372 639 Examinations 373 640 Lien for costs on regulated property 373 641 Regulated property not to be attached 374 642 Recovery of regulated property where there has been a breach of trust etc 374 643 Improperly destroying property etc 375 644 Deceased estates 376 645 Termination of receiver's appointment 376 Part 5.6 General 646 Conditions on appointment of external intervener 377 647 Status of acts of external intervener 377 648 Eligibility for reappointment or authorisation 378 649 Appeal against appointment 378 650 Directions of Supreme Court 378 651 Requirement for ADI to disclose and perm it access to accounts 379 652 Fees, legal costs and expenses 379 653 Reports by external intervener 379 654 Report to Com missioner of disciplinary matters 380 655 Confidentiality 380 656 Protection from liability 381 Contents page 27

Legal Profession Bill 2004 Contents Page Chapter 6 Provisions relating to investigations Part 6.1 Preliminary 657 Primary purpose of Chapter 382 658 Definitions 382 Part 6.2 Requirements relating to documents, information and other assistance 659 Requirement to provide access to docum ents and information relating to affairs of law practice 383 660 Requirements in relation to complaint investigations 383 Part 6.3 Entry and search of premises 661 Application of Part and interpretation 384 662 Investigator's power to enter premises 385 663 Search warrant 385 664 Powers of investigator while on premises 386 Part 6.4 Additional powers in relation to incorporated legal practices 665 Application of Part 387 666 Powers relating to investigations and audits to which this Part applies 388 667 Examination of persons 388 668 Inspection of books 389 669 Power to hold hearings 389 Part 6.5 Miscellaneous 670 Com pliance audit of law practice 390 671 Failure to comply with investigatory powers etc 391 672 General provisions relating to requirem ents imposed under this Chapter 392 673 Report to Com missioner of disciplinary matters 393 674 Obstruction of investigator 393 675 Destruction of evidence 393 676 Obligation of Australian lawyers 393 Contents page 28

Legal Profession Bill 2004 Contents Page 677 Permitted disclosure of confidential information obtained in course of investigation, examination or audit 394 678 Secrecy of appointment of investigators 396 Chapter 7 Regulatory authorities Part 7.1 Legal Profession Admission Board 679 Constitution of Adm ission Board 397 680 Mem bership of Adm ission Board 397 681 Functions of Admission Board 397 Part 7.2 Legal Profession Advisory Council 682 Establishment of Advisory Council 398 683 Mem bership of Advisory Council 398 684 Functions of Advisory Council 398 685 Payment of costs of Advisory Council 399 Part 7.3 Legal Services Commissioner 686 Appointment of Com missioner 399 687 Acting Com missioner 400 688 Functions of Com missioner 400 689 Com missioner may require Councils to provide information 402 690 Protocols relating to monitoring of regulatory functions 402 691 Annual report of Com missioner 402 692 Staff of Com missioner 404 693 Delegation of functions 405 Part 7.4 Professional bodies Division 1 Bar Association 694 Report on comm ittees 405 695 Lay representation on comm ittees 405 696 Functions of Bar Council 406 Division 2 Law Society 697 Report on comm ittees 407 Contents page 29

Legal Profession Bill 2004 Contents Page 698 Lay representation on comm ittees 407 699 Functions of Law Society Council 408 Division 3 Annual reports 700 Council to subm it annual report 409 Part 7.5 Legal profession rules Division 1 Preliminary 701 Purpose 411 Division 2 Rules 702 Rules for barristers 411 703 Rules for solicitors 411 704 Joint rules for Australian legal practitioners 411 705 Rules for incorporated legal practices and multi-disciplinary partnerships 412 706 Subject-matter of legal profession rules 413 Division 3 Procedure for making rules 707 Com missioner and Advisory Council to be notified of proposed rules 413 708 Public notice of proposed rules 414 709 Publication of rules 415 710 Com mencem ent of rules 415 Division 4 General provisions 711 Binding nature of legal profession rules 415 712 Legal profession rules inconsistent with Act or regulations 415 713 Availability of rules 415 714 Review of rules requested by Com missioner 415 715 Review of rules by Advisory Council 416 716 Rules may be declared inoperative 416 717 Other provisions as to rules 417 Contents page 30

Legal Profession Bill 2004 Contents Page Chapter 8 General provisions 718 Delegation 418 719 Liability of principals 418 720 Injunctions 418 721 Disclosure of information by local regulatory authorities 420 722 Confidentiality of personal information 420 723 Unlawful disclosure of information 421 724 Professional privilege or duty of confidence does not affect validity of or compliance with certain requirem ents 422 725 Secrecy provisions do not apply after 30 years 423 726 Privilege of lawyers as officers of Supreme Court 423 727 Service of notices on practitioners 423 728 Supreme Court may order delivery up of docum ents etc 423 729 Contempt of the Supreme Court 424 730 Protection from liability 424 731 Offences 425 732 Proof of certain matters not required 425 733 Evidentiary certificates 426 734 Approved forms 427 735 Repeals 427 736 Am endments 427 737 Savings, transitional and other provisions 427 738 Regulations 427 739 Review of Act 428 Schedules 1 Repeals 429 2 Legal Profession Admission Board 430 3 Legal Profession Advisory Council 433 4 Trustees of Public Purpose Fund 437 5 Costs assessors 443 6 Am endments 445 7 Professional indemnity insurance--provisions relating to HIH insurance 447 8 Mortgage practices and managed investment schemes-- provisions relating to old mortgages 450 9 Savings, transitional and other provisions 454 Contents page 31

I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW SOUTH WALES. Clerk of the Legislative Assembly. Legislative Assembly, Sydney, , 2004 New South Wales Legal Profession Bill 2004 Act No , 2004 An Act to provide for the regulation of legal practice in New South Wales and to facilitate the regulation of legal practice on a national basis, to repeal the Legal Profession Act 1987; and for other purposes. I have examined this Bill, and find it to correspond in all respects with the Bill as finally passed by both Houses. Chairman of Committees of the Legislative Assembly.

Clause 1 Legal Profession Bill 2004 Chapter 1 Introduction Part 1.1 Preliminary The Legislature of New South Wales enacts: Chapter 1 Introduction Part 1.1 Preliminary 1 Name of Act This Act is the Legal Profession Act 2004. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Purposes The purposes of this Act are as follows: (a) to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of clients of law practices and the public generally, (b) to facilitate the regulation of legal practice on a national basis across State and Territory borders. Part 1.2 Interpretation 4 Definitions (1) In this Act: accountant means an accountant who is a registered company auditor within the meaning of the Corporations Act 2001 of the Commonwealth. ADI means an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth. Admission Board means the Legal Profession Admission Board constituted under Part 7.1. Page 2

Legal Profession Bill 2004 Clause 4 Introduction Chapter 1 Interpretation Part 1.2 admission rules means rules relating to the admission of local lawyers and associated matters made under Part 2.3 (Admission of local lawyers). admission to the legal profession means admission by the Supreme Court under this Act as a lawyer or by a Supreme Court under a corresponding law as: (a) a lawyer, or (b) a legal practitioner, or (c) a barrister, or (d) a solicitor, or (e) a barrister and solicitor, or (f) a solicitor and barrister, but does not include the grant or issue of a practising certificate under this Act or a corresponding law; and admitted to the legal profession has a corresponding meaning. Advisory Council means the Legal Profession Advisory Council constituted under this Act. affairs of a law practice includes the following: (a) all accounts and records required under this Act or the regulations to be maintained by the practice or an associate or former associate of the practice, (b) other records of the practice or an associate or former associate of the practice, (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 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) amend or revoke a condition already imposed on the certificate, and (b) in relation to registration as a foreign lawyer: (i) amend the lawyer's registration certificate, and (ii) impose a condition on the registration, and Page 3

Clause 4 Legal Profession Bill 2004 Chapter 1 Introduction Part 1.2 Interpretation (iii) amend or revoke a condition already imposed on the registration. appropriate Council means: (a) in relation to matters relating to barristers or former barristers (including an application for a practising certificate to practise as a barrister)--the Bar Council, or (b) in relation to matters relating to solicitors or former solicitors (including an application for a practising certificate to practise as a solicitor)--the Law Society Council. approved form--see section 734 (Approved forms). associate--see section 7 (Terms relating to associates and principals of law practices). Australian lawyer--see section 5 (Terms relating to lawyers). Australian legal practitioner--see section 6 (Terms relating to legal practitioners). Australian practising certificate means a local practising certificate or an interstate practising certificate. 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. Australian trust account means a local trust account or an interstate trust account. Bar Association means the New South Wales Bar Association. Bar Council means the Council of the Bar Association. barrister means: (a) a local legal practitioner who holds a current local practising certificate to practise as a barrister, or (b) an interstate legal practitioner who holds a current interstate practising certificate that entitles the practitioner to engage in legal practice only as or in the manner of a barrister. barristers rules means: (a) the legal profession rules made by the Bar Council, and (b) the joint rules so far as they apply to barristers. Page 4

Legal Profession Bill 2004 Clause 4 Introduction Chapter 1 Interpretation Part 1.2 client means a person to or for whom legal services are provided, and includes a person who is legally liable to pay for the services even if the services are not provided to or for that person. Commissioner means the Legal Services Commissioner appointed under Part 7.3. community legal centre--see definition of complying community legal centre. compliance certificate--see section 36 (Compliance certificates). complying community legal centre--see section 240 (Community legal centres). conditions means conditions, limitations or restrictions. contravene includes fail to comply with. conviction--see section 11 (References to convictions for offences). corresponding authority means: (a) a person or body having powers or functions under a corresponding law, or (b) when used in the context of a person or body having powers or functions under this Act (the local authority): (i) a person or body having corresponding powers or functions under a corresponding law, and (ii) without limiting subparagraph (i), if the powers or functions of the local authority relate to local lawyers or local legal practitioners generally or are limited to any particular class of local lawyers or local legal practitioners--a person or body having corresponding powers or functions under a corresponding law regardless of whether they relate to interstate lawyers or interstate legal practitioners generally or are limited to any particular class of interstate lawyers or interstate legal practitioners. corresponding disciplinary body means: (a) a court or tribunal having powers or functions under a corresponding law that correspond to any of the powers and functions of the Tribunal, or (b) the Supreme Court of another jurisdiction exercising: (i) its inherent jurisdiction or powers in relation to the control and discipline of any Australian lawyers, or Page 5

Clause 4 Legal Profession Bill 2004 Chapter 1 Introduction Part 1.2 Interpretation (ii) its jurisdiction or powers to make orders under a corresponding law of the other jurisdiction in relation to any Australian lawyers. corresponding foreign law means the following: (a) a law of a foreign country that corresponds to the relevant provisions of this Act or, if a regulation is made declaring a law of the foreign country to be a law that corresponds to this Act, the law declared under that regulation for the foreign country, (b) if the term is used in relation to a matter that happened before the commencement of the law of a 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 the following: (a) a law of another jurisdiction that corresponds to the relevant provisions of this Act or, if a regulation is made declaring a law of the other jurisdiction to be a law that corresponds to this Act, the law declared under that regulation for the other jurisdiction, (b) if the term is used in relation to a matter that 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. costs--see definition of legal costs. Council means the Bar Council or the Law Society Council. Director-General means the Director-General of the Attorney General's Department. 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: (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, (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 Page 6

Legal Profession Bill 2004 Clause 4 Introduction Chapter 1 Interpretation Part 1.2 practitioner or in relation to whom that suspension has not finished, or (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 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, or (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, or (f) a person who is the subject of an order under section 154 (Disqualification from managing incorporated legal practice) or section 179 (Prohibition on partnerships with certain partners who are not Australian legal practitioners) or under provisions of a corresponding law that correspond to section 154 or 179. document means any record of information, and includes: (a) anything on which there is writing, and (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, and (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, and (d) a map, plan, drawing or photograph, and a reference in this Act to a document (as so defined) includes a reference to: (e) any part of the document, and (f) any copy, reproduction or duplicate of the document or of any part of the document, and (g) any part of such a copy, reproduction or duplicate. engage in legal practice includes practise law. exercise of a function includes, where the function is a duty, the performance of the duty. Page 7

Clause 4 Legal Profession Bill 2004 Chapter 1 Introduction Part 1.2 Interpretation fee, gain or reward includes any form of, and any expectation of, a fee, gain or reward. Fidelity Fund means the fund established under Part 3.4 (Fidelity cover). financial year means a year ending on 30 June. foreign country means: (a) a country other than Australia, or (b) a state, province or other part of a country other than Australia. foreign lawyer--see definition of Australian-registered foreign lawyer. foreign roll means an official roll of lawyers (whether admitted, practising or otherwise) kept in a foreign country, but does not include a prescribed roll or a prescribed kind of roll. function includes a power, authority or duty. home jurisdiction--see section 8 (Home jurisdiction). incorporated legal practice has the same meaning as in Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships). Indemnity Fund has the same meaning as in Part 3.3 (Professional Indemnity Insurance). information notice--see section 10 (Information notices). insolvent under administration means: (a) a person who is an undischarged bankrupt within the meaning of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory), or (b) a person who has executed a deed of arrangement 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 (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 that composition, or Page 8

Legal Profession Bill 2004 Clause 4 Introduction Chapter 1 Interpretation Part 1.2 (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 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 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 lawyer--see section 5 (Terms relating to lawyers). interstate legal practitioner--see section 6 (Terms relating to legal practitioners). interstate practising certificate means a practising 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 roll means a roll of lawyers maintained under a corresponding law. interstate trust account means a trust account maintained under a corresponding law. investigator--see section 658 (Definitions). joint rules means the legal profession rules made jointly by the Bar Association and the Law Society Council. jurisdiction means a State or Territory of the Commonwealth. law firm means a partnership consisting only of: (a) Australian legal practitioners, or (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 practitioner, or (b) a law firm, or (c) a multi-disciplinary partnership, or (d) an incorporated legal practice, or Page 9

Clause 4 Legal Profession Bill 2004 Chapter 1 Introduction Part 1.2 Interpretation (e) a complying community legal centre. Law Society means the Law Society of New South Wales. Law Society Council means the Council of the Law Society. lay associate--see section 7 (Terms relating to associates and principals of law practices). lay person means a person who is not an Australian lawyer. legal costs means amounts that a person has been or may be charged by, or is or may become liable to pay, a law practice for the provision of legal services including disbursements but not including interest. legal practitioner associate--see section 7 (Terms relating to associates and principals of law practices). legal practitioner director, in relation to an incorporated legal practice, has the meaning given in Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships). legal practitioner partner, in relation to a multi-disciplinary partnership, has the meaning given in Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships). legal profession rules means rules made under Part 7.5 (Legal profession rules). legal services means work done, or business transacted, in the ordinary course of legal practice. Legal Services Division of the Tribunal means the Legal Services Division of the Tribunal established by the Administrative Decisions Tribunal Act 1997. local lawyer--see section 5 (Terms relating to lawyers). local legal practitioner--see section 6 (Terms relating to legal practitioners). local practising certificate means a practising certificate granted under this Act. local roll means the roll of persons admitted as lawyers under this Act. local trust account means a trust account maintained under this Act. locally registered foreign lawyer means a person who is registered as a foreign lawyer under this Act. managed investment scheme has the same meaning as in Chapter 5C of the Corporations Act 2001 of the Commonwealth. Page 10

Legal Profession Bill 2004 Clause 4 Introduction Chapter 1 Interpretation Part 1.2 Manager, Costs Assessment means the person holding office as Manager, Costs Assessment in the Attorney General's Department, and includes a delegate of that person. modifications includes modifications by way of alteration, omission, addition or substitution. 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 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 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 instrument for the loan. multi-disciplinary partnership has the meaning given in Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships). practical legal training means: (a) legal training by participation in course work, or (b) legal training under the supervision of an Australian lawyer, whether involving articles of clerkship or otherwise, or a combination of both. pre-admission event, in relation to an applicant for or holder of a local practising certificate, means a show cause event (as defined in Division 7 of Part 2.4) in relation to the applicant or holder before the applicant or holder was first admitted to the legal profession in this or another jurisdiction. principal--see section 7 (Terms relating to associates and principals of law practices). professional misconduct--see section 497 (Professional misconduct). Page 11

Clause 4 Legal Profession Bill 2004 Chapter 1 Introduction Part 1.2 Interpretation Prothonotary means: (a) the officer of the Supreme Court with that title, except where paragraph (b) applies, or (b) a registrar or other officer of the Supreme Court prescribed by rules of the Supreme Court in relation to specified provisions of this Act. Public Purpose Fund means the Public Purpose Fund established under Division 7 of Part 3.1. Register means the Register of Disciplinary Action referred to in section 577 (Register of Disciplinary Action). regulatory authority means: (a) in relation to this jurisdiction: (i) an authority having functions under this Act, or (ii) a person or body prescribed by the regulations as a regulatory authority of this jurisdiction, or (b) in relation to another jurisdiction, means: (i) an authority having functions under a corresponding law of that jurisdiction, or (ii) a person or body prescribed by the regulations as a regulatory authority of that jurisdiction. related entity, in relation to a person, means: (a) if the person is a company within the meaning of the Corporations Act 2001 of the Commonwealth--a related body corporate within the meaning of section 50 of that Act, or (b) if the person is not a company with the meaning of that Act--a person specified or described in the regulations. rules--see definition of admission rules and legal profession rules. serious offence means an offence whether committed in or 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 a law of another jurisdiction that 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 Page 12

Legal Profession Bill 2004 Clause 4 Introduction Chapter 1 Interpretation Part 1.2 (c) an offence against a law of a foreign country that 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). sole practitioner means an Australian legal practitioner who engages in legal practice on his or her own account. solicitor means: (a) a local legal practitioner who holds a current local practising certificate to practise as a solicitor and barrister, or (b) an interstate legal practitioner who holds a current interstate practising certificate that does not restrict the practitioner to engage in legal practice only as or in the manner of a barrister. solicitors rules means: (a) the legal profession rules made by the Law Society Council, and (b) the joint rules so far as they apply to solicitors. suitability matter--see section 9 (Suitability matters). supervised legal practice means legal practice by a person who is an Australian legal practitioner: (a) as an employee of, or other person working under supervision in, a law practice, where: (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 supervision of an Australian legal practitioner referred to in subparagraph (i), or (b) as a partner in a law firm, where: (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 supervision of an Australian legal practitioner referred to in subparagraph (i), or (c) in a capacity approved under a legal profession rule. Page 13

Clause 4 Legal Profession Bill 2004 Chapter 1 Introduction Part 1.2 Interpretation tax offence means any offence under the Taxation Administration Act 1953 of the Commonwealth, whether committed in or outside this jurisdiction. this jurisdiction means this State. Tribunal means the Administrative Decisions Tribunal established by the Administrative Decisions Tribunal Act 1997. trust money has the meaning given in Part 3.1 (Trust money and trust accounts). trust property means property received in the course of or in connection with the provision of legal services by a law practice for or on behalf of another person, but does not include trust money. unrestricted practising certificate means an Australian practising certificate that: (a) is not subject to a condition under section 53 (Statutory condition regarding practice as solicitor) or a similar condition under a corresponding law, and (b) is not subject to a condition that restricts the holder of the certificate to practise as or in the manner of a barrister, and (c) is not subject to any other condition, except any of the following conditions: (i) a condition requiring the holder of the certificate to undertake and complete one or more courses of continuing legal education, (ii) a condition under section 55 (Statutory condition regarding notification of offence), (iii) a condition of a kind prescribed by the regulations, and (d) in the case of an interstate practising certificate--is not subject to a condition similar to a condition under section 53 and whose holder would not be subject to a condition under that section if the holder were to apply for and be granted a local practising certificate. unsatisfactory professional conduct--see section 496 (Unsatisfactory professional conduct). (2) Notes included in this Act do not form part of this Act. Page 14

Legal Profession Bill 2004 Clause 5 Introduction Chapter 1 Interpretation Part 1.2 5 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 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 the legal profession under a corresponding law, but not under this Act. 6 Terms relating to legal practitioners For the purposes of this Act: (a) an Australian legal practitioner is an Australian 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 lawyer who holds a current interstate practising certificate, but not a local practising certificate. Note. The application of Chapter 4 (Complaints and discipline) to conduct of Australian legal practitioners is broadened by Division 2 of Part 4.1 of that Chapter. 7 Terms relating to associates and principals of law practices (1) For the purposes of this Act, an associate of a law practice is: (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 (iii) a legal practitioner director in the law practice (in the case of an incorporated legal practice), or (iv) a legal practitioner partner in the law practice (in the case of a multi-disciplinary partnership), or (v) an Australian legal practitioner whose services are made use of by the law practice to provide legal services (in the case of a complying community legal centre), or (vi) an employee of the law practice, or Page 15

Clause 7 Legal Profession Bill 2004 Chapter 1 Introduction Part 1.2 Interpretation (b) an agent of the law practice who is not an Australian legal practitioner, or (c) an employee of, or person paid in connection with, the law practice who is not an Australian legal practitioner, or (d) an Australian-registered foreign lawyer who is a partner in the law practice, or (e) an Australian-registered foreign lawyer who has a relationship with the law practice, being a relationship that is of a class prescribed by the regulations, or (f) a person (not being an Australian legal practitioner) who is a partner in a business that includes the law practice, or (g) 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 associate of the practice who is an Australian legal practitioner, and (b) a lay associate of a law practice means 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 an Australian legal practitioner who is: (a) a sole practitioner (in the case of a law practice constituted by the practitioner), or (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 (d) a legal practitioner partner in the law practice (in the case of a multi-disciplinary partnership), or (e) the person who is generally responsible for the provision of legal services by the law practice (in the case of a complying community legal centre). (4) For the purposes of this Act, an associate of an Australian lawyer is: (a) a person who is a partner, agent or employee of the Australian lawyer, or Page 16

Legal Profession Bill 2004 Clause 7 Introduction Chapter 1 Interpretation Part 1.2 (b) a person who is an associate of a law practice of which the Australian lawyer is also an associate. 8 Home jurisdiction (1) This section has effect for the purposes of this Act. (2) The home jurisdiction for an Australian legal practitioner is 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. (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 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 practitioners: (i) the jurisdiction in which the office is situated at which the associate performs most of his or her duties for the law practice, or (ii) if a jurisdiction cannot be determined under subparagraph (i)--the jurisdiction in which the associate is enrolled under a law of the jurisdiction to vote at elections for the jurisdiction, or (iii) if a jurisdiction can be determined under neither subparagraph (i) nor subparagraph (ii)--the jurisdiction determined in accordance with criteria specified or referred to in the regulations. 9 Suitability matters (1) Each of the following is a suitability matter in relation to a natural person: (a) whether the person is currently of good fame and character, (b) whether the person is or has been an insolvent under administration, Page 17

Clause 9 Legal Profession Bill 2004 Chapter 1 Introduction Part 1.2 Interpretation (c) whether the person has been convicted of an 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 person's age when the offence was committed, Note. The rules may make provision for the convictions that must be disclosed by an applicant and those that need not be disclosed. Section 11 (References to convictions for offences) provides that reference to a conviction includes a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction is recorded. (d) whether the person engaged in legal practice in Australia: (i) when not admitted, or not holding a practising certificate, as required under this Act or a previous law of this jurisdiction that corresponds to this Act or under a corresponding law, or (ii) if admitted, in contravention of a condition on which admission was granted, or (iii) if holding an Australian practising certificate, in contravention of a condition of the certificate or while the certificate was suspended, (e) whether the person has practised law in a foreign country: (i) when not permitted by or under a law of that country to do so, or (ii) if permitted to do so, in contravention of a condition of the permission, (f) whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following: (i) this Act or a previous law of this jurisdiction that corresponds to this Act, or (ii) a corresponding law or corresponding foreign law, (g) whether the person: (i) is the subject of current disciplinary action, 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 of guilt, (h) whether the person's name has been removed from: (i) a local roll, and whether the person's name has since been restored to or entered on a local roll, or Page 18

Legal Profession Bill 2004 Clause 9 Introduction Chapter 1 Interpretation Part 1.2 (ii) an interstate roll, and whether the person's name has since been restored to or entered on an interstate roll, or (iii) a foreign roll, (i) whether the person's right to engage in legal practice has at any time been suspended or cancelled in Australia or a foreign country, (j) whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts, (k) whether, under this 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 the person, (l) whether the person is or has been subject to an order, under this Act, a law of the Commonwealth or a corresponding law, disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice, (m) whether the person currently is unable to carry out the inherent requirements of practice as an Australian legal practitioner and that inability arises from infirmity, injury or mental or physical illness, impairment or disability. (2) A matter is a suitability matter even if it happened before the commencement of this section. 10 Information notices For the purposes of this Act, an information notice is a written notice to a person about a decision stating: (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. 11 References to convictions for offences (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. Page 19

Clause 11 Legal Profession Bill 2004 Chapter 1 Introduction Part 1.2 Interpretation (2) Without limiting subsection (1), a reference in this Act to the quashing of conviction for an offence includes a reference to the quashing of: (a) a finding of guilt in relation to the offence, or (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: (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. Page 20

Legal Profession Bill 2004 Clause 12 General requirements for engaging in legal practice Chapter 2 Preliminary Part 2.1 Chapter 2 General requirements for engaging in legal practice Part 2.1 Preliminary 12 Simplified outline of Chapter (1) This Chapter sets out general requirements for engaging in legal practice in this jurisdiction. (2) The following is a general outline of the contents of this Chapter: � Part 2.2 provides for the reservation of legal work and legal titles to properly qualified persons and bodies, � Part 2.3 sets out the qualifications and procedure for admission to legal practice in this jurisdiction, � Part 2.4 provides for the grant, renewal, amendment, suspension and cancellation of practising certificates in this jurisdiction and sets out the entitlements of holders of interstate practising certificates to engage in legal practice in this jurisdiction, � Part 2.5 provides a scheme for notification of and response to action taken by courts and other authorities in this and other jurisdictions regarding admission to the legal profession and the right to engage in legal practice, � Part 2.6 regulates the provision of legal services in this jurisdiction by corporations (which are called "incorporated legal practices") and by partnerships that provide legal services and non-le gal services (called "multi-disciplinary partnerships"), � Part 2.7 regulates the practice of the law of a foreign country in this jurisdiction, � Part 2.8 regulates community legal centres. (3) Subsection (2) is intended only as a guide to readers as to the general scheme of this Chapter. Page 21

Clause 13 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.2 Reservation of legal work and legal titles Part 2.2 Reservation of legal work and legal titles Division 1 Preliminary 13 Purposes 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 clients of law practices by ensuring that persons carrying out legal work are entitled to do so. Division 2 General prohibitions on unqualified practice 14 Prohibition on engaging in legal practice when not entitled (1) A person must not engage in legal practice in this jurisdiction for fee, gain or reward unless the person is an Australian legal practitioner. Maximum penalty: 200 penalty units. (2) Subsection (1) 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, (b) legal practice engaged in by an incorporated legal practice in accordance with Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships), (c) the practice of foreign law by an Australian-registered foreign lawyer in accordance with Part 2.7 (Legal practice by foreign lawyers), (d) legal practice engaged in by a complying community legal centre, (e) conveyancing work carried out in accordance with a licence in force under the Conveyancers Licencing Act 2003, Page 22

Legal Profession Bill 2004 Clause 14 General requirements for engaging in legal practice Chapter 2 Reservation of legal work and legal titles Part 2.2 (f) work performed by a land agent in respect of instruments he or she is entitled to draw, fill up or prepare, and to charge for, under the Land Agents Act 1927, (g) the drawing of instruments by an officer or employee in the service of the Crown (including the Public Service) in the course of his or her duty, (h) legal practice of a kind prescribed by the regulations. (3) Subsection (1) does not apply to: (a) a person who as an employee provides legal services to his or her employer or a related entity if he or she: (i) so acts in the ordinary course of his or her employment, and (ii) receives no fee, gain or reward for so acting other than his or her ordinary remuneration as an employee, or (b) a person or class of persons declared by the regulations to be exempt from the operation of subsection (1). (4) A person is not entitled to recover any amount in respect of anything the person did in contravention of subsection (1) and must repay any amount so received to the person from whom it was received. (5) A person may recover from another person, 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 (1). (6) 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 (2) (other than subsection (2) (b)�(f)) or persons referred to in subsection (3). 15 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 Australian legal practitioner. Maximum penalty: 100 penalty units. (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 Page 23

Clause 15 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.2 Reservation of legal work and legal titles legal practice unless the body corporate is an incorporated legal practice or a complying community legal centre. Maximum penalty: 100 penalty units. (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 14 (2) (Prohibition on engaging in legal practice when not entitled) by a person so entitled. (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, 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. 16 Presumptions about taking or using certain names, titles or descriptions specified in regulations (1) This section applies to the following names, titles and descriptions: lawyer, legal practitioner, barrister, solicitor, attorney, counsel, Queen's Counsel, King's Counsel, Her Majesty's Counsel, His Majesty's Counsel, 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. (3) For the purposes of section 15 (1) (Prohibition on representing or advertising entitlement to engage in legal practice when not entitled), 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 they are entitled to engage in legal practice. (4) For the purposes of section 15 (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 is entitled to engage in legal practice. Page 24

Legal Profession Bill 2004 Clause 17 General requirements for engaging in legal practice Chapter 2 Reservation of legal work and legal titles Part 2.2 Division 3 Prohibitions regarding associates, clerks and non-legal partners 17 Associates who are disqualified or convicted persons (1) A law practice must not have a lay associate whom any principal or legal practitioner associate of the law practice knows to be: (a) a disqualified person, or (b) a person who has been convicted of a serious offence, unless the associate is approved by the relevant authority under subsection (3). (2) A contravention by a law practice of subsection (1) is capable of being unsatisfactory professional conduct or professional misconduct on the part of a principal or legal practitioner associate of the law practice involved in the contravention. (3) The relevant authority to approve a person for the purposes of subsection (1) is: (a) in the case of a disqualified person who is an associate of a barrister--the Bar Council, or (b) in the case of a disqualified person who is an associate of a solicitor--the Law Society Council, (c) in the case of a person who has been convicted of a serious offence--the Tribunal. (4) If a Council decides to refuse an application by a person for approval under subsection (3) (a) or (b) or to grant the approval subject to conditions, the person may apply to the Tribunal for a review of the decision. If the Tribunal decides to refuse an application by a person for approval under subsection (3) (c) or to grant the approval subject to conditions, the person may appeal under Chapter 7 of the Administrative Decisions Tribunal Act 1997 against the decision to an Appeal Panel of the Tribunal. (5) An approval under this section may be subject to specified conditions. (6) A disqualified person, or a person convicted of a serious offence, must not seek to become a lay associate of a law practice unless the person first informs the law practice of the disqualification or conviction. Maximum penalty: 100 penalty units. Page 25

Clause 17 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.2 Reservation of legal work and legal titles (7) Proceedings for an offence under subsection (6) may only be brought within 6 months after discovery of the offence by the law practice. (8) This section does not apply in circumstances prescribed by the regulations. 18 Prohibition on employment of certain non-legal clerks (1) This section applies to a person who is not an Australian legal practitioner and who: (a) is or was a clerk to a local legal practitioner or a law practice engaging in legal practice principally in this jurisdiction, or (b) is or was a clerk to an Australian legal practitioner or law practice employed by the practitioner or law practice to work principally in this jurisdiction. (2) On application by a Council, the Tribunal may make an order prohibiting (without approval under section 17 (Associates who are disqualified or convicted persons)) any Australian legal practitioner or law practice from employing or paying in connection with his or her practice a specified person to whom this section applies if: (a) the Tribunal is satisfied that the person is not a fit and proper person to be employed or paid in connection with an Australian legal practitioner's practice, or (b) the Tribunal is satisfied that the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct. (3) An order made under this section may be revoked by the Tribunal on application by a Council or by the person against whom the order was made. (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 clerk to the practitioner. 19 Prohibition on partnerships with certain non-legal partners (1) This section applies to a person who is not an Australian legal practitioner and who: (a) is or was a partner of a local legal practitioner, or Page 26

Legal Profession Bill 2004 Clause 19 General requirements for engaging in legal practice Chapter 2 Reservation of legal work and legal titles Part 2.2 (b) is or was a partner of an Australian legal practitioner and engaged in a business conducted by the partnership principally in this jurisdiction. (2) On application by a Council, the Tribunal may make an order prohibiting (without approval under section 17 (Associates who are disqualified or convicted persons)) any Australian legal practitioner from being a partner, in a business that includes the practitioner's practice, of a specified person to whom this section applies if: (a) the Tribunal is satisfied that the person is not a fit and proper person to be such a partner, or (b) the Tribunal is satisfied that the person has been guilty of conduct which, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct. (3) An order made under this section may be revoked by the Tribunal on application by a Council or by the person against whom the order was made. (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. 20 Proceedings on prohibition orders (1) The parties to an application to the Tribunal under this Division may be represented by an Australian legal practitioner at the hearing of the application. (2) On making an order under this Division, or on determining an application for approval under section 17 (Associates who are disqualified or convicted persons), the Tribunal may make orders for costs. (3) An order for costs: (a) may be for a specified amount or an unspecified amount, and (b) if for an unspecified amount, may specify the basis on which the amount is to be determined, and (c) may specify the terms on which costs must be paid. Page 27

Clause 20 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.2 Reservation of legal work and legal titles (4) A Council must: (a) retain in its office a register of orders made under section 18 or 19 on its application or approvals given by it under section 17, and (b) permit the register to be inspected during office hours and without charge, but only if the inspection is made by an Australian legal practitioner. (5) In any proceedings under this Act, a document that purports: (a) to be an order under section 18 or 19, and (b) to be signed by the member constituting, or presiding at the sitting of, the Tribunal when the order was made, is, without further proof, evidence of the order it purports to be. Division 4 General 21 Professional discipline (1) A contravention of this Part by an Australian lawyer who is not an Australian legal practitioner is capable of being 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 have under Chapter 4 (Complaints and discipline), and the person may be punished for an offence under this Part as well as being dealt with under Chapter 4 in relation to the same matter. Part 2.3 Admission of local lawyers Division 1 Preliminary 22 Purpose (1) The purpose of this Part is, in the interests of the administration of justice and for the protection of clients of law practices, to provide a system under which only applicants who have appropriate academic qualifications and practical legal training and who are otherwise fit and Page 28

Legal Profession Bill 2004 Clause 22 General requirements for engaging in legal practice Chapter 2 Admission of local lawyers Part 2.3 proper persons become qualified for admission and are admitted to the legal profession in this jurisdiction. (2) A person is admitted to the legal profession in this jurisdiction by being admitted as a local lawyer. 23 Definitions In this Part: admission means admission as a lawyer under this Act. applicant or applicant for admission means an applicant for admission as a lawyer under this Act. Division 2 Eligibility and suitability for admission 24 Eligibility for admission (1) A person is eligible for admission only if the person is a natural person aged 18 years or over and: (a) the person has attained: (i) approved academic qualifications, or (ii) corresponding academic qualifications, and (b) the person has satisfactorily completed: (i) approved practical legal training requirements, or (ii) corresponding practical legal training requirements. (2) In this section: approved academic qualifications means academic 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 this jurisdiction. corresponding academic qualifications means academic qualifications that would qualify the person for admission to the legal profession in another jurisdiction if the Admission Board is satisfied that substantially the same minimum criteria apply for the approval of academic qualifications for admission in the other jurisdiction as apply in this jurisdiction. Page 29

Clause 24 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.3 Admission of local lawyers 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 Admission Board is satisfied that substantially the same minimum criteria apply for the approval of legal training requirements for admission in the other jurisdiction as apply in this jurisdiction. (3) The admission rules must not require a person to satisfactorily complete before admission a period of supervised training that exceeds in length a period or periods equivalent to one full-time year (as determined in accordance with the admission rules). (4) The admission rules may authorise the Admission Board to exempt a person from the requirements of: (a) subsection (1) (a)--to the extent that the person has engaged in relevant studies in a foreign country to the satisfaction of the Board, or (b) subsection (1) (b)--to the extent that the person has completed a period of relevant service with a government department or other government agency (including, for example, service in courts administration) to the satisfaction of the Board. (5) For the purposes of subsection (2), the Admission Board may satisfy itself regarding the minimum criteria for the approval of academic qualifications, or legal training requirements, for admission in another jurisdiction by considering appropriate advice from an authority of the other jurisdiction that those criteria were established consistently with relevant agreed standards, and accordingly the Admission Board need not examine (in detail or at all) the content of courses of legal study or legal training requirements prescribed in the other jurisdiction. The regulations may identify or provide a means of identifying those agreed standards. 25 Suitability for admission (1) In deciding if an applicant is a fit and proper person to be admitted, the Admission Board: (a) must consider each of the suitability matters in relation to the applicant to the extent a suitability matter is appropriate, and (b) may consider any other matter it considers relevant. Page 30

Legal Profession Bill 2004 Clause 25 General requirements for engaging in legal practice Chapter 2 Admission of local lawyers Part 2.3 (2) However, the Admission Board may consider a person to be a fit and proper person to be admitted despite a suitability matter because of the circumstances relating to the matter. 26 Early consideration of suitability (1) A person may apply to the Admission Board for a declaration that matters disclosed by the person will not, without more, adversely affect an assessment by the Board as to whether the person is a fit and proper person to be admitted. (2) The Admission Board is to consider each application under this section and, subject to section 27 (Referral of matters to Supreme Court), make the declaration sought or refuse to do so. 27 Referral of matters to Supreme Court (1) The Admission Board may refer the issue of whether or not an applicant is a fit and proper person to be admitted to the Supreme Court for determination if, in the opinion of the Board, it would be appropriate for the Court to consider that issue. (2) The Admission Board may refer to the Supreme Court any application for a declaration under section 26 (Early consideration of suitability) if, in the opinion of the Board, it would be appropriate for the Court to consider the application. (3) The Supreme Court has the same powers as the Admission Board to deal with an application referred to it under this section and its decision on the application is taken to be a decision of the Board. (4) On a referral under this section, the Supreme Court may make an order or declaration as it thinks fit. (5) The Admission Board is to bear the costs of a referral under this section. 28 Appeals (1) An applicant for admission may appeal to the Supreme Court against the refusal of the Admission Board to give a compliance certificate in respect of the applicant. (2) An applicant for a declaration sought under section 26 (Early consideration of suitability) may appeal to the Supreme Court against the refusal of the Admission Board to make the declaration. Page 31

Clause 28 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.3 Admission of local lawyers (3) A Council may appeal to the Supreme Court against the giving of a compliance certificate. (4) A Council may appeal to the Supreme Court against the making of a declaration under section 26 (Early consideration of suitability). (5) An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the Admission Board may be given on the appeal, and the decision of the Supreme Court is taken to be a decision of the Admission Board. (6) On an appeal under this section, the Supreme Court may make an order or declaration as it thinks fit. 29 Binding effect of declaration or order A declaration made under section 26, or an order or declaration under section 27 or 28, is binding on the Admission Board unless the applicant failed, on the application or appeal, to make a full and fair disclosure of all matters relevant to the declaration sought. 30 Entitlement to be represented, heard and make representations (1) A Council and the applicant concerned are entitled: (a) to make representations in writing to the Admission Board in relation to any matter under consideration by the Board under this Division, and (b) to be represented and heard at any inquiry or appeal under this Division. (2) The Admission Board must notify each Council in accordance with the admission rules of: (a) any application for a declaration under section 26 (Early consideration of suitability), and (b) any declaration made under that section. (3) The Admission Board may notify a Council of any application for admission. Page 32

Legal Profession Bill 2004 Clause 31 General requirements for engaging in legal practice Chapter 2 Admission of local lawyers Part 2.3 Division 3 Admission to the legal profession 31 Admission (1) The Supreme Court may admit persons as lawyers in accordance with this Part. (2) The Supreme Court may admit an applicant as a lawyer if the Admission Board advises the Court that the Board considers that the applicant: (a) is eligible for admission, and (b) is a fit and proper person to be admitted. (3) The advice of the Admission Board is to be given by means of a compliance certificate in the form prescribed by the admission rules. 32 Roll of local lawyers (1) The Supreme Court is to maintain a roll of persons admitted as lawyers under this Act (referred to in this Act as the local roll). (2) When a person is admitted under this Act, the Supreme Court is to cause the person's name to be entered on the local roll. (3) A person admitted as a lawyer under this Act must sign the local roll. (4) The admission of a person as a lawyer under this Act is effective from the time the person signs the local roll. (5) The local roll must be available for inspection, without charge, during normal business hours. (6) The Supreme Court may publish the name of persons admitted as lawyers under this Act and any relevant particulars concerning those persons. (7) The Supreme Court's functions under this section may be exercised by a person or body designated by the Court for the purpose. (8) The regulations may make provision for or with respect to: (a) the information that may or must be included in the local roll, (b) publication of information contained in the local roll. Page 33

Clause 33 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.3 Admission of local lawyers 33 Local lawyer is officer of Supreme Court A person becomes an officer of the Supreme Court on being admitted as a lawyer under this Act. 34 Miscellaneous provisions respecting admission (1) The Supreme Court can only admit or enrol persons as lawyers, and cannot admit or enrol persons as barristers, solicitors or legal practitioners. (2) Any inherent power or jurisdiction of the Supreme Court to admit or enrol persons as barristers, solicitors or legal practitioners is and remains revoked. (3) The Supreme Court Charter is and remains revoked in New South Wales in so far as it relates to the admission of barristers, advocates, proctors, solicitors and attorneys. (4) In this section: Supreme Court Charter means the Charter dated 13 October 1823 under the Imperial Act 4 Geo IV c 96 establishing Courts of Justice in New South Wales. Division 4 Legal Profession Admission Board Note. Provisions for the constitution of the Admission Board are located in Part 7.1 and Schedule 2. 35 Determination of applications for admission (1) The Admission Board is to advise the Supreme Court whether or not the Board considers: (a) an applicant for admission is: (i) eligible for admission (under section 24), and (ii) a fit and proper person to be admitted (in accordance with section 25), and (b) the application is made in accordance with the admission rules and the applicant has complied with the admission rules. (2) The Admission Board may refuse: (a) to consider the application if it is not made in accordance with the admission rules, or Page 34

Legal Profession Bill 2004 Clause 35 General requirements for engaging in legal practice Chapter 2 Admission of local lawyers Part 2.3 (b) to advise that the applicant is eligible for admission if the person has not complied with the admission rules. 36 Compliance certificates (1) If, after considering an application for admission, the Admission Board considers: (a) the applicant is: (i) eligible for admission, and (ii) a fit and proper person to be admitted, and (b) the application conforms with the requirements of the admission rules and there are no grounds for refusing to give a certificate for the applicant, 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 with the Prothonotary a certificate in the approved form (a compliance certificate). (2) If the Admission Board refuses to give a compliance certificate for the applicant, the Board must, within the time specified in or determined in accordance with the admission rules, give the Prothonotary and the applicant an information notice about the refusal. 37 Consideration of applicant's eligibility and suitability (1) To help it consider whether or not an applicant is eligible for admission or is a fit and proper person to be admitted, the Admission Board may, by notice to the applicant, require: (a) the applicant to give it specified documents or information, or (b) the applicant to co-operate 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 required by the notice is a ground for refusing to approve the applicant as a suitable candidate for admission. (3) The Admission Board may refer a matter to the Supreme Court for directions. Page 35

Clause 38 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.3 Admission of local lawyers Division 5 Admission rules 38 Admission rules (1) The Admission Board may make rules for the admission of persons as lawyers 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, and (ii) giving notice of the application to an entity or public notice of the application, and (iii) the affidavits or certificates the applicant must provide with or for the application, (b) admission requirements regarding, and the approval of, 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 consideration of the question 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 mutual recognition legislative scheme, (f) the assessment of the qualifications and practical legal training of overseas qualified or trained applicants against the academic requirements and practical legal training requirements that apply to local applicants, (g) the conferral of a right of objection to an applicant's admission on persons of appropriate standing, (h) the procedure to be adopted in the conduct of inquiries under this Part, (i) registration as a student-at-law and the qualifications for registration, (j) examinations in academic subjects of candidates for registration as students-at-law or of applicants for admission, Page 36

Legal Profession Bill 2004 Clause 38 General requirements for engaging in legal practice Chapter 2 Admission of local lawyers Part 2.3 (k) the establishment and conduct of boards or other bodies with functions concerning: (i) the examination of applicants for admission, and (ii) the assessment of applicants as to whether they are eligible for admission and as to whether they are fit and proper persons to be admitted, (l) authorising the Board to exempt a person from the requirements of section 24 (1) (a) or (b) as provided by section 24 (4), (m) accreditation of legal education and practical legal training courses, (n) prescribing the fees and costs to be payable under the rules and providing for the refund or remission of fees, (o) any other matters relating to the functions of the Board. (3) Without limiting subsection (1), the rules may provide for abridging, in specified circumstances, any period of practical legal training required by the rules. (4) Part 6 of the Interpretation Act 1987 applies to a rule made under this section in the same way as it applies in relation to a statutory rule within the meaning of that Act. Note. Part 6 of the Interpretation Act 1987 contains provisions relating to the publication and parliamentary disallowance of statutory rules and other standard provisions relating to the making, amendment and repeal of statutory rules. Part 2.4 Legal practice by Australian legal practitioners Division 1 Preliminary 39 Purposes 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 and to provide for the certification of Australian lawyers whether or not admitted in this jurisdiction, (b) to provide a system for the granting and renewing of local practising certificates. Page 37

Clause 40 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners Division 2 Legal practice in this jurisdiction by Australian legal practitioners 40 Entitlement of holder of Australian practising certificate to practise in this jurisdiction An Australian legal practitioner is, subject to this Act, entitled to engage in legal practice in this jurisdiction. Division 3 Local practising certificates generally 41 Local practising certificates (1) Practising certificates may be granted under this Part. (2) The Bar Council may, on application, grant a practising certificate to an Australian lawyer authorising the lawyer to practise as a barrister. (3) The Law Society Council may, on application, grant a practising certificate to an Australian lawyer authorising the lawyer to practise as a solicitor and barrister. (4) An Australian lawyer may not at the same time hold current local practising certificates as a barrister and as a solicitor and barrister. (5) A practising certificate granted to a person must be granted on the condition that it does not have effect while another current local or interstate practising certificate is in force in relation to the person. 42 Suitability to hold local practising certificate (1) This section has effect for the purposes of section 48 (Grant or renewal of local practising certificate) or any 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) A Council may, in considering whether or not the person is a fit and proper person to hold a local practising certificate, take into 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 information, Page 38

Legal Profession Bill 2004 Clause 42 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (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 or a corresponding law or the regulations or legal profession rules under this Act or a corresponding law, (d) whether the person has contravened: (i) an order of the Tribunal, 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 corresponding disciplinary body, (e) without limiting any other paragraph: (i) whether the person has failed to pay a required contribution or levy to the Fidelity Fund, or (ii) whether the person has contravened a requirement of, or imposed under, this Act or the regulations, about professional indemnity insurance, or (iii) whether the person has contravened a requirement of this Act or the regulations about trust money, or (iv) whether the person has failed to pay other costs, expenses or fines for which the person is liable under this Act or the regulations, (f) other matters the Council thinks 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 the Council considers 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 (b) determined by a Supreme Court or by the Admission 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 suspending or cancelling a local practising certificate unless the matter was a pre-admission event (whether it happened before or after the commencement of this section), but the Page 39

Clause 42 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners matter may be taken into account when considering other matters in relation to the person concerned. (5) A Council may decide to take no action or no further action in connection with a pre-admission event, if satisfied that it is appropriate to do so given the passage of time and other circumstances the Council considers relevant. 43 Duration of local practising certificate (1) A local practising certificate granted under this Act is in force from the date specified in it until the end of the financial year in which it is granted, unless the certificate is sooner suspended or cancelled. (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 the certificate is sooner suspended or cancelled. (3) If an application for the renewal of a local practising certificate as a solicitor has been properly made as required by this Act but has not been determined by the Law Society Council by the following 1 July, the certificate: (a) continues in force on and from that 1 July until the Law Society Council renews or refuses to renew the certificate or the holder withdraws the application for renewal, unless the certificate is sooner cancelled or suspended, and (b) if renewed, is taken to have been renewed on and from that 1 July. 44 Local legal practitioner is officer of Supreme Court A person who is not already an officer of the Supreme Court becomes an officer of the Supreme Court on being granted a local practising certificate. Division 4 Grant or renewal of local practising certificates 45 Application for grant or renewal of local practising certificate (1) An Australian lawyer may apply to the appropriate Council for the grant or renewal of a local practising certificate if eligible to do so. (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 Page 40

Legal Profession Bill 2004 Clause 45 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 and legal profession rules relating to eligibility for the practising certificate and if: (a) where the lawyer is not an Australian legal practitioner at the time of making the application: (i) the lawyer reasonably expects to be engaged in legal practice principally from this jurisdiction during the currency of the certificate applied for, or (ii) if it is not reasonably practicable to determine whether subparagraph (i) applies to the lawyer--the lawyer's place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia, or (b) where the lawyer is an Australian legal practitioner at the time of making the application: (i) the jurisdiction in which the lawyer engages in legal practice principally is this jurisdiction, or (ii) the lawyer holds a current local practising certificate and engages in legal practice in another jurisdiction under an arrangement that is of a temporary nature, or (iii) the lawyer reasonably expects to be engaged in legal practice principally in this jurisdiction during the currency of the certificate applied for, or (iv) if it is not reasonably practicable to determine whether subparagraph (i), (ii) or (iii) applies to the lawyer--the lawyer's place of 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 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. (4) 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. (5) An Australian legal practitioner who engages in legal practice principally in this jurisdiction during a financial year and intends to Page 41

Clause 45 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners engage in legal practice principally in this jurisdiction in the following year must apply for the grant or renewal of a local practising certificate in respect of the following financial year. (6) Subsection (5) does not apply to an interstate legal practitioner who applied for the grant or renewal of an interstate practising certificate on the basis that: (a) the practitioner reasonably expected to engage in legal practice principally in this jurisdiction under an arrangement that is of a temporary nature, or (b) the practitioner reasonably expected to engage in legal practice principally in another jurisdiction during the currency of the interstate practising certificate. (7) Subsection (5) does not apply to a local legal practitioner who applied for the grant of an interstate practising certificate on the basis that the practitioner reasonably expected to engage in legal practice principally in the other jurisdiction during the currency of the interstate practising certificate. (8) The exemption provided by subsection (6) (a) ceases to operate at the end of the period prescribed by the regulations for the purposes of this subsection. (9) Contravention of this section by an Australian lawyer is capable of being unsatisfactory professional conduct or professional misconduct. 46 Manner of application (1) An application for the grant or renewal of a local practising certificate must be: (a) made in accordance with the regulations and must provide or be accompanied by such information as may be required by the regulations, and (b) accompanied by the appropriate fees. (2) The regulations may require the applicant to disclose matters that may affect the applicant's eligibility for the grant or renewal of a local practising certificate or the question whether the applicant is a fit and proper person to hold a local practising certificate. (3) The regulations may indicate that particular kinds of matters previously disclosed in a particular manner need not be disclosed for the purposes of the current application. Page 42

Legal Profession Bill 2004 Clause 46 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (4) Without limiting subsection (2), the regulations may require the applicant to disclose details of, or details of the nature of, pre-admission events. 47 Timing of application for renewal of local practising certificate (1) An application for the renewal of a local practising certificate must be made within the period prescribed by the regulations. (2) That period must be within the currency of the local practising certificate being sought to be renewed. (3) The appropriate Council must reject and not further consider an application made after that period. Note. If an application made after that period is rejected, the applicant will have to apply for the grant of a new practising certificate. 48 Grant or renewal of local practising certificate (1) The appropriate Council must consider an application that has been made for the grant or renewal of a local practising certificate and may: (a) grant or refuse to grant the certificate, or (b) renew or refuse to renew the certificate, and in granting or renewing the certificate may impose conditions as referred to in section 50 (Conditions imposed by Council). (2) The Council may refuse: (a) to consider an application if: (i) it is not made in accordance with this Act, the regulations or the legal profession rules, or (ii) the required fees and costs have not been paid, or (b) to grant or renew a local practising certificate if the applicant has not complied with the regulations or the legal profession rules in relation to the application. (3) The Council 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 was made, and (b) is a fit and proper person to hold the certificate. Note. Section 42 (Suitability to hold local practising certificate) deals with the question of whether or not a person is a fit and proper person to hold a practising certificate. Page 43

Clause 48 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners (4) The Council 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 application was made, or (b) is not a fit and proper person to continue to hold the certificate. (5) The Council must not grant or renew a local practising certificate if the Council considers the applicant's circumstances have changed since the application was made and the applicant would (having regard to information that has come to the Council's attention) not have been eligible to make the application when the application is being considered. (6) Without limiting any other provision of this section, the Council may refuse to grant or renew a local practising certificate if a finding of unsatisfactory professional conduct or professional misconduct has been made in respect of the applicant and: (a) a fine imposed because of the finding has not been paid, or (b) costs awarded against the applicant because of the finding have been assessed but have not been paid or, if an arrangement for their payment has been made, the applicant is in default under the arrangement. (7) Without limiting any other provision of this section, the Council may refuse to grant or renew a local practising certificate if: (a) any costs of an investigation or examination payable under Part 3.1 by or in respect of the applicant have not been paid, or (b) any fees, costs or expenses of external intervention payable under Chapter 5 by or in respect of the applicant have not been paid, or (c) the applicant is required by this Act to contribute to the Indemnity Fund and the application is not accompanied by the contribution payable under that section, or (d) the applicant is required by this Act to contribute to the Fidelity Fund and the application is not accompanied by the contribution payable under that section, or (e) any levy payable by the applicant under Part 3.3 or 3.4 or Schedule 7 is unpaid. Page 44

Legal Profession Bill 2004 Clause 48 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (8) Without limiting any other provision of this section, the Council may refuse to grant or renew a local practising certificate on any ground on which the local practising certificate could be suspended or cancelled. (9) Without limiting any other provision of this section, the Bar Council may refuse to grant a local practising certificate for a barrister if the applicant has not successfully completed any examination required by the Bar Council to be passed as a prerequisite to undertaking a reading program. (10) This section does not affect any other provision of this Act that provides for the refusal to grant a local practising certificate. Note. Sections 403 and 406 provide for the refusal to grant a local practising certificate if any required professional indemnity insurance has not been obtained. Section 485 provides for the refusal to grant a local practising certificate if any required fidelity cover in respect of regulated mortgages has not been obtained. (11) If the Council grants or renews a local practising certificate, the Council 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. (12) If the Council refuses to grant or renew a local practising certificate, the Council must, as soon as practicable, give the applicant an information notice. (13) If an application for the grant of a local practising certificate is not determined within 3 months after the application is made, the application is deemed to have been refused. Division 5 Conditions on local practising certificates 49 Conditions generally (1) A local practising certificate is subject to: (a) any conditions imposed by the appropriate Council, and (b) any statutory conditions imposed by this or any other Act, and (c) any conditions imposed by or under the legal profession rules or the regulations, and Page 45

Clause 49 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners (d) any conditions imposed or varied by the Tribunal under section 51 (Imposition or variation of conditions pending criminal proceedings), and (e) any conditions imposed under Chapter 4 (Complaints and discipline) or under provisions of a corresponding law that correspond to Chapter 4. (2) If a condition is imposed, varied or revoked under this Act (other than a statutory condition) during the currency of the local practising certificate concerned, the certificate is to be amended by the appropriate Council, or a new certificate is to be issued by the Council, to reflect on its face the imposition, variation or revocation. 50 Conditions imposed by Council (1) The appropriate Council may impose conditions on a local practising certificate: (a) when it is granted or renewed, or (b) during its currency (in accordance with section 61 (Amending, suspending or cancelling local practising certificate)). (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 following: (a) requiring the holder of the practising certificate to undertake and complete: (i) continuing legal education, or (ii) an academic or training course, 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, (d) restricting the holder to particular conditions concerning employment or supervision, (e) requiring the holder of the practising certificate to undergo counselling or medical treatment or to act in accordance with medical advice given to the holder, Page 46

Legal Profession Bill 2004 Clause 50 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (f) requiring the holder of the practising certificate to use the services of an accountant or other financial specialist in connection with his or her practice, (g) requiring the holder of the practising certificate to provide the appropriate Council 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, (h) a matter agreed to by the holder. (4) Subsection (3) does not limit the matters about which a condition may be imposed under this section. (5) The appropriate Council must not impose a condition requiring the holder to undertake and complete an academic or training course unless: (a) the Council is satisfied, having regard to the holder's previous academic studies, legal training, experience or conduct, that the holder falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, or (b) the condition is one that is imposed generally on holders of local practising certificates or any class of holders of local practising certificates. Note. A class of holders might comprise newly qualified lawyers, or lawyers returning to legal practice after suspension or an extended break. (6) The appropriate Council may vary or revoke conditions imposed under this section. (7) If the appropriate Council imposes, varies or revokes a condition during the currency of the local practising certificate concerned, the imposition, variation or revocation takes effect when the holder has been notified of it or a later time specified by the Council. (8) If the appropriate Council imposes a condition on the certificate when it is granted or renewed and the holder of the certificate within one month after the grant or renewal notifies the Council in writing that he or she does not agree to the condition, the Council must, as soon as practicable, give the holder an information notice. (9) This section has effect subject to section 61 (Amending, suspending or cancelling local practising certificate) in relation to the imposition of a condition on a local practising certificate during its currency. Page 47

Clause 51 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners 51 Imposition or variation of conditions pending criminal proceedings (1) If a local legal practitioner has been charged with a relevant offence but the charge has not been determined, the appropriate Council may apply to the Tribunal for an order under this section. (2) On an application under subsection (1), the Tribunal, if it considers it appropriate to do so having regard to the seriousness of the offence and to the public interest, may make either or both of the following orders: (a) an order varying the conditions on the practitioner's local practising certificate, or (b) an order imposing further conditions on the practitioner's local practising certificate. (3) An order under this section has effect until the sooner of: (a) the end of the period specified by the Tribunal, or (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. (4) The Tribunal, on application by any party, may vary or revoke an order under this section at any time. (5) In this section: relevant offence means a serious offence or an offence that would have to be disclosed under the admission rules in relation to an application for admission to the legal profession under this Act. 52 Statutory condition regarding conditions imposed on interstate admission It is a statutory condition of a local practising certificate that the holder must not contravene a condition that was imposed on the admission of the person to the legal profession under a corresponding law (with any variations of the condition made from time to time) and that is still in force. Note. Contravention of a condition imposed on admission locally is dealt with in section 58 (Compliance with conditions). 53 Statutory condition regarding practice as solicitor (1) It is a statutory condition of a local practising certificate for a solicitor that the holder must engage in supervised legal practice only, until the holder has completed: Page 48

Legal Profession Bill 2004 Clause 53 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (a) if the holder completed practical legal training principally under the supervision of an Australian legal practitioner, whether involving articles of clerkship or otherwise, to qualify for admission to the legal profession in this or another jurisdiction--a period or periods equivalent to 18 months' supervised legal practice, worked out under relevant regulations, after the day the holder's first practising certificate was granted, or (b) if the holder completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction--a period or periods equivalent to 2 years' supervised legal practice, worked out under relevant regulations, after the day the holder's first practising certificate was granted. (2) Subsection (1) has effect subject to any other conditions that relate to engaging in supervised legal practice as a solicitor after a period or periods referred to in that subsection. (3) Without limiting any other regulation-making power, the regulations may authorise a Council to exempt a person from all or any of the requirements of subsection (1). 54 Statutory condition regarding practice as a barrister It is a statutory condition of a local practising certificate for a barrister (but not a solicitor and barrister) that the barrister must not: (a) engage in legal practice otherwise than as a sole practitioner, or (b) engage in legal practice in partnership with any person, or (c) engage in legal practice as the employee of any person, or (d) hold office as a legal practitioner director of an incorporated legal practice. 55 Statutory condition regarding notification of offence (1) It is a statutory condition of a local practising certificate that the holder of the certificate: (a) must notify the appropriate Council that the holder has been: (i) convicted of an offence that would have to be disclosed under the admission rules in relation to an application for admission to the legal profession under this Act, or (ii) charged with a serious offence, and Page 49

Clause 55 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners (b) must do so within 7 days of the event and by a written notice. (2) The regulations, or the legal profession rules if the regulations do not do so, may specify the form of the notice to be used and the person to whom or the address to which it is to be sent or delivered. (3) The giving of notice in accordance with Division 7 (Special powers in relation to local practising certificates--show cause events) of a conviction for a serious offence satisfies the requirements of subsection (1) (a) (i) in relation to the conviction. 56 Additional conditions on practising certificates of barristers (1) Without limiting section 50 (Conditions imposed by Council), the Bar Council may under that section impose conditions of the following kinds on the practising certificate of a barrister: (a) a condition requiring the holder to undertake and complete to the satisfaction of the Bar Council a full-time component or other component of a reading program applicable to the holder and determined or approved by the Bar Council, (b) a condition requiring the holder to read with a barrister of a specified class or description chosen by the holder (including a barrister chosen from a list of at least 10 barristers kept by the Bar Council for the purpose) for a specified period and to comply with such requirements as will enable the barrister, at the end of the specified period, to certify to the Bar Council that the holder is fit to practise as a barrister without restriction. (2) A condition of a kind referred to in subsection (1) that is imposed on the practising certificate of a barrister may limit the practising rights of the barrister until the condition is complied with. (3) The Bar Council may cancel or suspend a local practising certificate if the holder fails to comply with a condition of the kind referred to in subsection (1). 57 Conditions imposed by legal profession rules The legal profession rules may: (a) impose conditions on local practising certificates or any class of local practising certificates, or (b) authorise conditions to be imposed on local practising certificates or any class of local practising certificates. Page 50

Legal Profession Bill 2004 Clause 58 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 58 Compliance with conditions (1) The holder of a current local practising certificate must not contravene (in this jurisdiction or elsewhere) a condition to which the certificate is subject. Maximum penalty: 100 penalty units. (2) A contravention of subsection (1) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the holder is convicted of an offence in relation to the contravention. Division 6 Amendment, suspension or cancellation of local practising certificates 59 Application of this Division This Division does not apply in relation to matters referred to in Division 7 (Special powers in relation to local practising certificates--show cause events). 60 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 the certificate, Note. Section 42 (Suitability to hold local practising certificate) deals with the question of whether or not a person is a fit and proper person to hold a practising certificate. (b) if the holder is an insurable barrister or insurable solicitor within the meaning of Part 3.3 (Professional indemnity insurance)--the holder does not have, or no longer has, professional indemnity insurance that complies with this Act in relation to the certificate, (c) if the holder is an insurable solicitor within the meaning of Part 3.3 (Professional indemnity insurance)--the holder fails to pay a contribution, instalment of a contribution, or levy in accordance with section 411 (Contributions) or 412 (Levies) or Schedule 7 (Professional indemnity insurance--provisions relating to HIH insurance), Page 51

Clause 60 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners (d) if a condition of the certificate is that the holder is limited to legal practice specified in the certificate--the holder is engaging in legal practice that the holder is not entitled to engage in under this Act. 61 Amending, suspending or cancelling local practising certificate (1) If the appropriate Council believes a ground exists to amend, suspend or cancel a local practising certificate (the proposed action), the authority must give the holder a notice (the show cause notice) that: (a) states the proposed action and: (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 period, and (b) states the grounds for proposing to take the proposed action, and (c) outlines the facts and circumstances that form the basis for the Council's belief, and (d) invites the holder to make written representations to the Council 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. (2) If, after considering all written representations made within the specified time and, in its discretion, written representations made after the specified time, the Council still believes a ground exists to take the proposed action, the Council may: (a) if the show cause notice stated the proposed action was to amend the practising certificate--amend the certificate in the way stated or in a less onerous way the Council considers appropriate because of the representations, or (b) if the show cause notice stated the proposed action was to suspend the practising certificate for a specified period: (i) suspend the certificate for a period no longer than the specified period, or (ii) amend the certificate in a less onerous way the Council considers appropriate because of the representations, or (c) if the show cause notice stated the proposed action was to cancel the practising certificate: Page 52

Legal Profession Bill 2004 Clause 61 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (i) cancel the certificate, or (ii) suspend the certificate for a period. (3) The Council may, at its discretion, consider representations made after the specified time. (4) The Council must give the person notice of the authority's decision. (5) If the Council decides to amend, suspend or cancel the practising certificate, the Council must give the holder an information notice about the decision. 62 Operation of amendment, suspension or cancellation of local practising certificate (1) Application of section This section applies if a decision is made to amend, suspend or cancel a local practising certificate under section 61 (Amending, suspending or cancelling local practising certificate). (2) Action to take effect on giving of notice or specified date 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, (b) the day specified in the notice. (3) Grant of stay If the practising certificate is amended, suspended or cancelled because the holder has been convicted of an offence: (a) the Supreme Court may, on the application of the holder, order that the operation of the 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 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 stay is in force. (4) Quashing of conviction If the practising certificate is amended, suspended or cancelled because the holder has been convicted of an offence and the conviction is quashed: Page 53

Clause 62 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners (a) the amendment or suspension ceases to have effect when 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. 63 Other ways of amending or cancelling local practising certificate (1) The appropriate Council may amend or cancel a local practising certificate if the holder requests the appropriate Council to do so. (2) The appropriate Council may amend a local practising certificate: (a) for a formal or clerical reason, or (b) in another way that does not adversely affect the holder's interests. (3) The appropriate Council must cancel a local practising certificate if the holder's name has been removed from the local roll or the holder ceases to be an Australian lawyer. (4) The amendment or cancellation of a local practising certificate under this section is effected by written notice given to the holder. (5) Section 61 (Amending, suspending or cancelling local practising certificate) does not apply in a case to which this section applies. 64 Relationship of this Division with Chapter 4 Nothing in this Division prevents a Council from making a complaint under Chapter 4 (Complaints and discipline) about a matter to which this Division relates. Division 7 Special powers in relation to local practising certificates--show cause events 65 Definition of "show cause event" In this Division: show cause event, in relation to a person, means: (a) his or her becoming bankrupt or the subject of a creditor's petition presented to the Court under section 43 of the Bankruptcy Act 1966 of the Commonwealth, or Page 54

Legal Profession Bill 2004 Clause 65 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (b) his or her presentation (as a debtor) of a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 of the Commonwealth of his or her intention to present a debtor's petition or his or her presentation (as a debtor) of such a petition under section 55 of that Act, or (c) his or her applying to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounded with his or her creditors or made an assignment of his or her remuneration for their benefit, or (d) his or her conviction for a serious offence or a tax offence, whether or not: (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 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. 66 Applicant for local practising certificate--show cause event (1) This section applies if: (a) a person (referred to in this Division as 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 and whether before or after the person was first admitted to the legal profession in this or another jurisdiction. (2) As part of the application, the applicant must provide to the appropriate Council a written statement: (a) about the show cause event, and (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) A contravention of subsection (2) is capable of being unsatisfactory professional conduct or professional misconduct. Page 55

Clause 66 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners (4) However, the applicant need not provide a statement under subsection (2) if the applicant has previously provided to the appropriate Council a statement under this section, or a notice and statement under section 67 (Holder of local practising certificate--show cause event), 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. (5) If the show cause event is a pre-admission event, the appropriate Council may decide to take no action under this Division in connection with the event, if satisfied that it is appropriate to do so given the passage of time and other circumstances the Council considers relevant (in which case the Council is not required to investigate and determine the matter under section 69). (6) A Council must, within 7 days after receiving a written statement from a local legal practitioner under this section about a show cause event, provide a copy of the statement to the Commissioner. (7) A Council may refuse to issue a local practising certificate if the applicant: (a) is required by this section to provide a written statement about a show cause event and has failed to provide the statement in accordance with this section, or (b) has provided a written statement in accordance with this section but, in the opinion of the Council to which the statement was provided, the statement is not a genuine or reasonable attempt to show that the applicant is a fit and proper person to hold a practising certificate, or (c) has failed without reasonable excuse to comply with a requirement under Chapter 6 (Provisions relating to investigations) made in connection with an investigation of the show cause event concerned or has committed an offence under that Chapter in connection with any such investigation. 67 Holder of local practising certificate--show cause event (1) This section applies to a show cause event that happens in relation to a person (referred to in this Division as the holder) who is the holder of a local practising certificate. Page 56

Legal Profession Bill 2004 Clause 67 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (2) The holder must provide to the appropriate Council both of the following: (a) within 7 days after the happening of the event--notice that the event happened, (b) within 28 days after the happening of the event--a 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) A contravention of subsection (2) is capable of being unsatisfactory professional conduct or professional misconduct. (4) If a written statement is provided after the 28 days mentioned in subsection (2) (b), the appropriate Council may accept the statement and take it into consideration. (5) A Council must, within 7 days after receiving a notice or statement from a local practitioner under this section, provide a copy of the notice or statement to the Commissioner. (6) A Council may cancel or suspend a local practising certificate if the holder: (a) is required by this section to provide notice or a written statement about a show cause event and has failed to provide the notice or statement in accordance with this section, or (b) has provided a written statement in accordance with this section but, in the opinion of the Council to which the statement was provided, the statement is not a genuine or reasonable attempt to show that the applicant is a fit and proper person to hold a practising certificate, or (c) has failed without reasonable excuse to comply with a requirement under Chapter 6 (Provisions relating to investigations) made in connection with an investigation of the show cause event concerned or has committed an offence under that Chapter in connection with any such investigation. 68 Investigation and consideration of show cause event (1) On becoming aware of the happening of a show cause event in relation to an applicant or holder, the appropriate Council must investigate and determine within the required period whether the applicant or holder is a fit and proper person to hold a local practising certificate. Page 57

Clause 68 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners (2) The appropriate Council must within 14 days of becoming aware of the happening of the show cause event give notice in writing to the applicant or holder: (a) if the Council has not received a statement or notice under section 66 or 67 in relation to the show cause event, requiring the applicant or holder to provide the required statement, and (b) informing the applicant or holder that a determination in relation to the matter is required to be made under this Division, and (c) informing the applicant or holder of the required period under this section in relation to the determination of the matter and that the applicant or holder will be notified of any extension of that period, and (d) informing the applicant or holder of the effect of the automatic suspension provisions in section 70 in the event of the matter not being determined by the Council or the Commissioner within the required period. (3) The appropriate Council must determine the matter by: (a) deciding that the applicant or holder is a fit and proper person to hold a local practising certificate, or (b) deciding that the applicant or holder is not a fit and proper person to hold a local practising certificate, or (c) deciding that the applicant or holder is a fit and proper person to hold a local practising certificate but that it is appropriate to impose conditions on the applicant's or holder's local practising certificate for a specified period. (4) In investigating and determining a matter under this section the appropriate Council: (a) is not limited to investigating and making its determination on the basis of just the show cause event concerned, and (b) must have regard to the facts and circumstances that surround, arise in connection with, relate to or give rise to the show cause event concerned. (5) For the purposes of this section, the required period within which the matter must be determined is the period of 3 months (or 4 months if the Commissioner decides in a particular case to extend the period) commencing on: Page 58

Legal Profession Bill 2004 Clause 68 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (a) the date on which the appropriate Council receives a statement or notice under section 66 or 67 in relation to the show cause event, or (b) if the appropriate Council has not received a statement or notice as referred to in paragraph (a) when it gives a notice under subsection (2) to the applicant or holder, the date specified in the notice as the date of issue of the notice. (6) If the Commissioner extends a period under subsection (5), the Commissioner must give notice in writing to the applicant or holder concerned of the extension of the period. (7) The appropriate Council is not required to deal with a matter under this section if the matter has previously been the subject of investigation and determination under this section. (8) The appropriate Council must give the applicant or holder an information notice about a decision under subsection (3) (b) or (c). The Commissioner must give that notice if the Commissioner makes the decision in the exercise of the functions of the Council under section 71 (Commissioner taking over determination of matter). 69 Power to renew practising certificate or defer action in special circumstances (1) Despite any other provision of this Division, a Council may renew a holder's local practising certificate if the end of the financial year for which the holder's current practising certificate is in force is imminent and the Council has not made a determination under section 68 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 Division to cancel or suspend the holder's local practising certificate. (3) Despite any other provision of this Act, a Council required to determine a matter under section 68 in relation to a holder may, for the purpose of enabling the proper 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 Council considers necessary to achieve that purpose, or Page 59

Clause 69 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners (b) defer cancelling or suspending the holder's local practising certificate for such period as the Council considers necessary to achieve that purpose. 70 No decision in required period--suspension of practising certificate and referral to Commissioner (1) If the appropriate Council has not determined a matter under section 68 (Investigation and consideration of show cause event) within the required period under that section: (a) the Commissioner must take over the determination of the matter under that section from the Council, and (b) if the matter concerns the holder of a local practising certificate, the local practising certificate of the holder concerned is suspended. Note. Subsection (1) extends to an applicant for a local practising certificate but the rest of this section applies only to the holder of a local practising certificate that is suspended under subsection (1). (2) A suspension imposed by this section remains in force (unless the Tribunal orders its removal sooner) until: (a) the Commissioner decides that the holder is a fit and proper person to hold a local practising certificate, or (b) the appropriate Council has given effect to any other decision of the Commissioner as required by section 72 (Council to implement decisions under this Division). (3) The holder whose local practising certificate is suspended by this section may make an application to the Tribunal to remove the suspension. (4) When dealing with such an application, the Tribunal may make any one or more of the following orders: (a) an order removing the suspension on the grounds that the holder is a fit and proper person to hold a local practising certificate, (b) an order continuing the suspension for a specified period, (c) an order that specified conditions be imposed on the holder's local practising certificate for a specified period, Page 60

Legal Profession Bill 2004 Clause 70 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (d) an order that the appropriate Council cancel the holder's local practising certificate on the ground that the holder is not a fit and proper person to hold a local practising certificate, (e) an order that the Commissioner suspend any investigation or determination of the matter pending the Tribunal's decision on the application. (5) The Commissioner may investigate and determine a matter under this Division and exercise powers under this Division in relation to the matter despite a suspension under this section of the local practising certificate concerned unless the Tribunal otherwise orders under this section. (6) The Commissioner and a Council are to give effect to any order of the Tribunal under this section. 71 Commissioner taking over determination of matter When the Commissioner takes over the determination of a matter under section 68 (Investigation and consideration of show cause event) from a Council: (a) the Council is not required to determine the matter and is to cease to deal with the matter, and (b) the Commissioner has and may exercise the functions of the Council to investigate and determine the matter under section 68 (Investigation and consideration of show cause event), and (c) the Council is to provide any assistance required by the Commissioner to investigate the matter (including copies of or access to all documents held by the Council that relate to the matter or are required for the purpose of investigating the matter). 72 Council to implement decisions under this Division (1) If the appropriate Council or the Commissioner decides under this Division that the applicant or holder is not a fit and proper person to hold a local practising certificate: (a) the Council must give effect to that decision by refusing the grant of a local practising certificate to the applicant or by immediately cancelling or suspending the holder's local practising certificate, and Page 61

Clause 72 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners (b) the Council may make a complaint in relation to the matter under Part 4.2, or institute proceedings in relation to the matter in the Tribunal under Part 4.8 (as if the matter had been the subject of complaint and investigation under Chapter 4). (2) If a Council institutes proceedings in the Tribunal as referred to in subsection (1) (b), the Council must notify the Commissioner that those proceedings have been instituted. (3) If the appropriate Council decides under this Division that it is appropriate to impose conditions on an applicant's or holder's local practising certificate, the Council must give effect to that decision by imposing those conditions. (4) If the Commissioner decides under this Division that it is appropriate to impose conditions on an applicant's or holder's local practising certificate, the Council must give effect to that decision by imposing such of those conditions as it considers to be appropriate after consultation with the Commissioner. (5) If the appropriate Council or the Commissioner decides under this Division that the applicant or holder is a fit and proper person to hold a local practising certificate, the Council must, subject to this Act, grant a local practising certificate to the applicant or lift any suspension of the holder's local practising certificate. (6) Conditions imposed as referred to in this section must continue to be imposed for such period as the appropriate Council has decided is the period for which they should be imposed or (in the case of conditions that the Commissioner has decided it is appropriate to impose) for such period as the appropriate Council has decided is the period for which they should be imposed after consultation with the Commissioner. (7) The appropriate Council must not grant a local practising certificate to an applicant during any period that the Commissioner has directed under this Division that the person is not to be granted a local practising certificate. (8) A cancellation or suspension of or imposition of conditions on a local practising certificate takes effect when the appropriate Council gives notice in writing of it to the holder. (9) Despite section 60 of the Administrative Decisions Tribunal Act 1997, an application to the Tribunal for a review of a decision referred to in this section does not affect the operation of the decision under review Page 62

Legal Profession Bill 2004 Clause 72 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 or prevent the taking of action under this section to implement that decision. 73 Failure to comply with conditions imposed under this Division (1) If the holder of a local practising certificate contravenes without reasonable excuse a condition of the practising certificate imposed under this Division: (a) the contravention is professional misconduct, and (b) the appropriate Council may, by written notice given to the holder, cancel or suspend the local practising certificate. (2) The notice under this section must: (a) include an information notice about the cancellation or suspension, and (b) state that the holder may apply for a review of the decision of the Council under section 75. (3) The Council may revoke a suspension under this section at any time. 74 Restriction on making further applications (1) If the appropriate Council refuses to grant a local practising certificate to an applicant or cancels a holder's local practising certificate under this Division, the Council may also decide that the applicant or holder is not entitled to apply for the grant of a local practising certificate for a specified period not exceeding 5 years. (2) The Commissioner may, in making a decision that an applicant or holder is not a fit and proper person to hold a local practising certificate, also decide that the applicant or holder is not entitled to apply for the grant of a local practising certificate for a specified period not exceeding 5 years. (3) If the Council or Commissioner makes such a decision, the decision must be included in the information notice required under section 68 (8). (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. Page 63

Clause 75 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners 75 Review of decisions by Tribunal (1) An applicant or holder who is dissatisfied with a decision of a Council or the Commissioner under this Division with respect to the applicant or holder may apply to the Tribunal for a review of the decision. (2) A Council must notify the Commissioner of the lodging of any application for review of a decision of the Council. The Commissioner must notify the appropriate Council of the lodging of any application for review of a decision of the Commissioner. (3) In proceedings on a review by the Tribunal of a decision under this Division in which the question of whether a person is a fit and proper person to hold a local practising certificate is at issue: (a) the onus of establishing that a person is a fit and proper person to hold a local practising certificate is on the person asserting that fact, and (b) it is to be presumed in the absence of evidence to the contrary that any statement of facts in the reasons of a Council or Commissioner for the decision concerned is a correct statement of the facts in the matter, and (c) a certificate of conviction of an offence (being a certificate referred to in section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995) is admissible in the proceedings and is evidence of the commission of the offence by the person to whom it relates, and (d) a document that appears to be a document issued for the purposes of or in connection with any application, proceedings or other matter arising under the Bankruptcy Act 1966 of the Commonwealth is admissible in the proceedings and is evidence of the matters stated in the document. (4) The Tribunal may make any order it considers appropriate on a review under this section, including any of the following orders: (a) an order directing the appropriate Council to grant, or to refuse to grant, an application for a local practising certificate, (b) an order directing the appropriate Council to cancel or suspend for a specified period a local practising certificate, or to reinstate a local practising certificate that has been cancelled or suspended, Page 64

Legal Profession Bill 2004 Clause 75 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (c) an order that an applicant or holder is not entitled to apply for the grant of a local practising certificate for a specified period not exceeding 5 years, (d) an order directing the appropriate Council to impose conditions on a local practising certificate for a specified period, or to vary or revoke conditions imposed by the appropriate Council or to vary the period for which they are required to be imposed. (5) The Tribunal may not order the imposition of conditions on a local practising certificate without first taking submissions from the appropriate Council as to the appropriateness of the proposed conditions. (6) The appropriate Council is to give effect to any order of the Tribunal under this section. 76 Parties to Tribunal proceedings (1) The following persons are entitled to appear at a hearing conducted by the Tribunal on a review under section 75 (Review of decisions by Tribunal): (a) the applicant or holder who applied for the review, (b) the relevant Council, (c) the Commissioner, (d) the Attorney General. (2) The Tribunal may grant leave to any other person to appear at the hearing if satisfied that it is appropriate for that person to appear at the hearing. (3) Despite section 71 of the Administrative Decisions Tribunal Act 1997, a person who is entitled to appear at the hearing or who is granted leave to appear at the hearing may appear personally or be represented by an Australian legal practitioner or (with the leave of the Tribunal) by any other person. (4) Any person who appears at a hearing (otherwise than as a witness) is taken to be a party to the proceedings concerned. 77 Relationship of this Division with Chapters 4 and 6 (1) The provisions of Part 4.4 (Investigation of complaints), and the provisions of Chapter 6 (Provisions relating to investigations) that are relevant to Part 4.4, apply, with any necessary adaptations, in relation Page 65

Clause 77 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners to a matter under this Division, as if the matter were the subject of a complaint under Chapter 4. (2) Nothing in this Division prevents a Council from making a complaint under Chapter 4 about a matter to which this Division relates. Division 8 Further provisions relating to local practising certificates 78 Immediate suspension of local practising certificate (1) This section applies, despite Divisions 6 and 7, if the appropriate Council considers it necessary in the public interest to immediately suspend a local practising certificate on: (a) any of the grounds on which the certificate could be suspended or cancelled under Division 6, or (b) the ground of the happening of a show cause event (within the meaning of Division 7) in relation to the holder, or (c) any other ground that the Council considers warrants suspension of the local practising certificate in the public interest, whether or not any action has been taken or commenced under Division 6 or 7 in relation to the holder. (2) The Council may, by written notice given to the holder, immediately suspend the practising certificate until the earlier of the following: (a) the time at which the Council informs the holder of the Council's decision by notice under section 61 (Amending, suspending or cancelling local practising certificate), (b) the end of the period of 56 days after the notice is given to the holder under this section. (3) The notice under this section must: (a) include an information notice about the suspension, and (b) state that the practitioner may make written representations to the Council about the suspension, and (c) state that the person may appeal against the suspension under section 108 (Appeal against certain decisions of Councils). Page 66

Legal Profession Bill 2004 Clause 78 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (4) The holder may make written representations to the Council about the suspension, and the Council must consider the representations. (5) The Council may revoke the suspension at any time, whether or not in response to any written representations made to it by the holder. (6) Nothing in this section prevents a Council from making a complaint under Chapter 4 about a matter to which this section relates. The suspension of a local practising certificate under this section does not affect any disciplinary processes in respect of matters arising before the suspension. 79 Surrender and cancellation of local practising certificate (1) The holder of a local practising certificate may surrender the certificate to the appropriate Council. (2) The Council may cancel the surrendered certificate. 80 Return of local practising certificate (1) This section applies if a local practising certificate granted to an Australian legal practitioner: (a) is amended, suspended or cancelled by the appropriate Council, or (b) is replaced by another certificate. (2) The appropriate Council may give the practitioner a notice requiring the practitioner to return the certificate to the Council in the way specified in the notice within a specified period of not less than 14 days. (3) The practitioner must comply with the notice, unless the practitioner has a reasonable excuse. Maximum penalty: 20 penalty units. (4) The Council must return the practising certificate to the practitioner 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 end of the suspension period--at the end of the suspension period. Page 67

Clause 81 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners Division 9 Practice as a barrister or solicitor 81 Practice as a barrister (1) Practice as a barrister is subject to the barristers rules. (2) Practice as a barrister is not subject to any other rules, practice guidelines or rulings of the Bar Association or Bar Council. 82 Practice as a solicitor (1) Practice as a solicitor is subject to the solicitors rules. (2) Practice as a solicitor is not subject to any other rules, practice guidelines or rulings of the Law Society or Law Society Council. 83 Client access (1) Barristers Barristers may accept any clients, subject to the barristers rules and the conditions of any relevant practising certificate. (2) Solicitors Solicitors may accept any clients, subject to the solicitors rules and the conditions of any relevant practising certificate. (3) Contracts A barrister or solicitor may enter into a contract for the provision of services with a client or with another legal practitioner. The barrister or solicitor may accordingly sue and be sued in relation to the contract. (4) Barristers contracts A barrister may enter into a contract with a client even though the barrister has accepted a brief from a solicitor in the matter. (5) Immunity Nothing in this section affects any law relating to immunity to suit in relation to advocacy. 84 Advertising (1) A barrister or solicitor may advertise in any way the barrister or solicitor thinks fit, subject to any regulations under section 85. (2) However, an advertisement must not be of a kind that is or that might reasonably be regarded as: (a) false, misleading or deceptive, or Page 68

Legal Profession Bill 2004 Clause 84 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 in contravention of the Trade Practices Act 1974 of the (b) Commonwealth, the Fair Trading Act 1987 or any similar legislation. (3) A contravention by a barrister or solicitor of subsection (2) is capable of being professional misconduct or unsatisfactory professional conduct, whether or not the barrister or solicitor is convicted of an offence in relation to the contravention. 85 Regulation of advertising and other marketing of services (1) The regulations may make provision for or with respect to regulating or prohibiting conduct by any person that relates to the marketing of legal services, including (without limitation) regulating or prohibiting any of the following: (a) advertising by a barrister or solicitor, (b) advertising by any person for or on behalf of a barrister or solicitor, (c) advertising by any person in connection with the provision of legal services, (d) advertising by any person of services connected with personal injury. (2) The regulations under this section may create an offence punishable by a penalty not exceeding 100 penalty units. (3) The Attorney General may direct a person in writing not to engage in conduct described in the direction if the Attorney General is satisfied that: (a) the conduct contravenes the regulations under this section, and (b) the person has been engaging in conduct of that or a similar kind. (4) The Tribunal may, on application made under subsection (5), direct a barrister or solicitor not to engage in conduct if the Tribunal is satisfied that: (a) the conduct contravenes the regulations under section 142 of the Workplace Injury Management and Workers Compensation Act 1998, and (b) the barrister or solicitor has been engaging in conduct of that or a similar kind. Page 69

Clause 85 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners (5) An application made to the Tribunal may be made under this section by the appropriate Council or the Commissioner. (6) The Tribunal cannot deal with an application for a direction with respect to conduct that is the subject of a direction by the Attorney General under this section or by the appropriate Minister under section 142 of the Workplace Injury Management and Workers Compensation Act 1998. Any such ministerial direction may be given with respect to any conduct even if proceedings are pending before, or have been dealt with by, the Tribunal with respect to the conduct. (7) The following applies in connection with proceedings before the Tribunal under this section: (a) the parties to the proceedings are the applicant and the person to whom the direction is proposed to be given, (b) the matter is to be allocated to the Legal Services Division of the Tribunal, (c) the Tribunal is to conduct an initial ex parte hearing for the purpose of determining whether to issue a direction pending the final determination of the matter. (8) A person who contravenes a direction under this section is guilty of an offence. Maximum penalty: 100 penalty units. (9) A contravention by a barrister or solicitor: (a) of a direction under this section or under section 142 of the Workplace Injury Management and Workers Compensation Act 1998 is professional misconduct, or (b) of a regulation under this section (or under section 142 of that Act) is professional misconduct, but only if the regulation declares that the contravention is professional misconduct. (10) The Attorney General is not required, before giving a direction under this section, to notify the person to whom the direction is given or any other person who may be affected by the direction. (11) A direction under this section may be amended or revoked. (12) Payments are to be made from the Public Purpose Fund for the purposes of meeting the costs and expenses of a Council or the Commissioner in exercising functions under this section (including the prosecution of offences under this section). Page 70

Legal Profession Bill 2004 Clause 85 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (13) In this section: personal injury includes pre-natal injury, impairment of a person's physical or mental condition or a disease. 86 Specialisation (1) A barrister or solicitor must not advertise or hold himself or herself out as being a specialist or as offering specialist services, unless the barrister or solicitor: (a) has appropriate expertise and experience, or (b) is appropriately accredited under an accreditation scheme conducted or approved by the Bar Council or Law Society Council. (2) The Bar Council or Law Society Council is required to approve an accreditation scheme if directed to do so by the Attorney General. 87 Advocates (1) Barristers and solicitors may act as advocates. (2) Barristers and solicitors may appear, and have a right of audience, in any court as advocates. (3) Joint rules may be made about ethical rules to be observed by barristers and solicitors in the practice of advocacy. 88 Joint advocates (1) In any proceedings, one or more barristers and one or more solicitors may appear together as advocates. (2) The appearance together as advocates of a barrister and solicitor may be regulated by joint rules, but not by legal profession rules made by one Council only. 89 Attendance (1) There is no rule or practice that prevents a barrister from attending on another barrister or solicitor or a solicitor from attending on another solicitor or barrister. (2) Nothing in this section prevents arrangements being made between individual Australian legal practitioners with regard to attendance on each other. Page 71

Clause 90 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners 90 Prohibition of official schemes for recognition of seniority or status (1) Any prerogative right or power of the Crown to appoint persons as Queen's Counsel or to grant letters patent of precedence to counsel remains abrogated. (2) Nothing in this section affects the appointment of a person who was appointed as Queen's Counsel before the commencement of this section. (3) Nothing in this section abrogates any prerogative right or power of the Crown to revoke such an appointment. (4) No law or practice prevents a person who was Queen's Counsel immediately before the commencement of this section from continuing to be Queen's Counsel while a barrister or solicitor. (5) Executive or judicial officers of the State have no authority to conduct a scheme for the recognition or assignment of seniority or status among legal practitioners. (6) Nothing in subsection (5) prevents the publication of a list of legal practitioners in the order of the dates of their admission, or a list of barristers or solicitors in the order of the dates of their becoming barristers or solicitors, or a list of Queen's Counsel in their order of seniority. (7) In this section: executive or judicial officers includes the Governor, Ministers of the Crown, Parliamentary Secretaries, statutory office holders, persons employed in the Public Service or by the State, an authority of the State or another public employer, and also includes judicial office holders or persons acting under the direction of the Chief Justice of New South Wales or other judicial office holder. Queen's Counsel means one of Her Majesty's Counsel learned in the law for the State of New South Wales and extends to King's Counsel where appropriate. Page 72

Legal Profession Bill 2004 Clause 91 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 Division 10 Fees for practising certificates 91 Fee for practising certificate (1) A fee is payable for the grant or renewal of a local practising certificate of such amount as is determined by the appropriate Council and approved by the Attorney General. (2) A Council may determine different practising certificate fees according to such different factors as are specified in the determination and approved by the Attorney General. (3) A Council may waive payment of the practising certificate fee or any part of the fee. (4) Subject to the regulations (if any), a Council is to determine the practising certificate fee on a cost recovery basis, with the fee being such amount as is required from time to time for the purpose of recovering the costs of or associated with the regulatory functions of the Council or of the Bar Association or Law Society, as the case requires. (5) The regulatory functions of a Council, the Bar Association or the Law Society are its functions under this Act, and any other functions it exercises that are associated with the regulation of legal practice or maintaining professional standards of legal practice. (6) The practising certificate fee is not to include any charge for membership of the Bar Association or Law Society and is not to include any amount that is required for the purpose of recovering any costs of or associated with providing services or benefits to which local legal practitioners become entitled as members of the Bar Association or Law Society. (7) In addition, in determining the practising certificate fee, a Council must exclude costs that are otherwise recoverable under this Act (for example, costs payable from the Public Purpose Fund under this Act). (8) The regulations may make provision for or with respect to the determination of practising certificate fees, including by specifying the costs that may or may not be recovered by the charging of practising certificate fees. (9) In this section: costs includes expenses. Page 73

Clause 92 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners 92 Late fee If an application for a practising certificate is accepted by a Council after the end of the period prescribed by the regulations for the purposes of section 47 (Timing of application for renewal of local practising certificate) during which the application is authorised to be made, payment of a late fee prescribed by the regulations may, if the Council thinks fit, be required as a condition of acceptance of the application. 93 Refund of fees (1) The regulations may provide for the refund of a portion of a fee paid in respect of a local practising certificate if it is suspended or cancelled during its currency. (2) Without limiting subsection (1), the regulations may specify: (a) the circumstances in which a refund is to be made, and (b) the amount of the refund or the manner in which the amount of the refund is to be determined. 94 Submission of budget to Attorney General (1) The Attorney General may from time to time require a Council to prepare and submit a budget to the Attorney General, in respect of such period as the Attorney General directs, relating to any costs (or projected costs) that are recoverable (or are proposed to be recovered) by the charging of a practising certificate fee. (2) The budget is to include such information as the Attorney General directs. In particular, the Attorney General may require the provision of information about the administration of the Council (including the Bar Association and the Law Society). (3) The Attorney General may refuse to approve the amount of a practising certificate fee under section 91 (Fee for practising certificate) if the Council has failed to submit a budget as required under this section. (4) In this section: costs includes expenses. Page 74

Legal Profession Bill 2004 Clause 95 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 95 Audit of Council activities (1) The Attorney General may appoint an appropriately qualified person to conduct an audit of all or any particular activities of a Council for the purpose of determining the following: (a) whether any activities the costs of which are recoverable, or are proposed to be recovered, by the charging of a practising certificate fee are being carried out economically and efficiently and in accordance with the relevant laws, (b) whether practising certificate fees are being expended for the purpose of defraying the costs in respect of which the fees are charged. (2) A Council is to provide all reasonable assistance to the person appointed to conduct the audit. (3) The person appointed to conduct the audit is to report to the Attorney General on the result of the audit. (4) An audit may be conducted under this section whenever the Attorney General considers it appropriate. (5) In this section: audit includes an examination and inspection. costs includes expenses. Council includes the Bar Association and the Law Society. Division 11 Interstate legal practitioners 96 When does an interstate legal practitioner establish an office? For the purposes of this Division, an interstate legal practitioner establishes an office in this jurisdiction when the practitioner offers and provides legal services to the public in this jurisdiction from an office maintained by the practitioner, or by the employer or a partner in legal practice of the practitioner, for that purpose in this jurisdiction. 97 Notification of establishment of office required (1) An interstate legal practitioner who establishes an office in this jurisdiction must, within the period after establishing the office prescribed by the regulations, give written notice: Page 75

Clause 97 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners (a) if he or she proposes to practise as a barrister--to the Bar Council, or (b) if he or she proposes to practise as a solicitor--to the Law Society Council. Maximum penalty: 20 penalty units. (2) A notice under this section is to contain the particulars prescribed by the regulations. 98 Professional indemnity insurance if office established (1) This section applies to an interstate legal practitioner: (a) who establishes an office in this jurisdiction, and (b) who, if he or she were a local legal practitioner, would be an insurable barrister or insurable solicitor (within the meaning of section 403 or 406 respectively). (2) The interstate legal practitioner must not practise as a barrister or as a solicitor in this jurisdiction unless he or she has appropriate indemnity insurance in respect of his or her practice in this jurisdiction. Maximum penalty: 100 penalty units. (3) The interstate legal practitioner has appropriate indemnity insurance in this jurisdiction as a barrister or solicitor if there is in force in respect of the practitioner a policy of indemnity insurance that provides the same (or a higher) minimum level of indemnity in respect of his or her practice in this jurisdiction as, and has terms that are broadly equivalent to, that approved by the Attorney General in respect of insurable barristers or solicitors (as appropriate) under section 403 (Professional indemnity insurance for barristers) or 406 (Solicitor to be insured and to make contributions). 99 Professional indemnity insurance if office not established (1) If the indemnity under a policy of indemnity insurance in force in respect of an interstate legal practitioner who has not established an office in this jurisdiction is less than that required to be maintained by an interstate legal practitioner to whom section 98 (Professional indemnity insurance if office established) applies, the interstate legal practitioner must disclose the difference to a client or prospective client before being retained by the client or prospective client. Page 76

Legal Profession Bill 2004 Clause 99 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (2) A failure to comply with this section is capable of being unsatisfactory professional conduct or professional misconduct. 100 Extent of entitlement of interstate legal practitioner to practise in this jurisdiction (1) This Division does not authorise an interstate legal practitioner to engage in legal practice in this jurisdiction to a greater extent 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: (a) is subject to: (i) any conditions imposed by the appropriate Council under section 101 (Additional conditions on practice of interstate legal practitioners), and (ii) any conditions imposed by or under the legal 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 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 his or her 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 appropriate Council, more onerous prevail to the extent of the inconsistency. (4) An interstate lawyer must not engage in legal practice in this jurisdiction in a manner not authorised by this Act or in contravention of any condition referred to in this section. (5) A contravention of this section is capable of being unsatisfactory professional conduct or professional misconduct. Page 77

Clause 101 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners 101 Additional conditions on practice of interstate legal practitioners (1) The appropriate Council may, by written notice to an interstate legal practitioner engaged in legal practice in this jurisdiction, impose any condition on the practitioner's practice that it may impose under this Act on a local practising certificate. (2) Also, an interstate legal practitioner's right to engage in legal practice in this jurisdiction is subject to any condition imposed by or under an applicable legal profession rule. (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 about the decision to impose a condition. 102 Special provisions about interstate legal practitioner engaging in unsupervised legal practice in this jurisdiction An interstate legal practitioner must not engage in unsupervised legal practice in this jurisdiction unless: (a) if the practitioner completed practical legal training principally under the supervision of an Australian lawyer, whether involving articles of clerkship or otherwise, to qualify for admission to the legal profession in this or another jurisdiction--the practitioner has undertaken a period or periods equivalent to 18 months' supervised legal practice, worked out under relevant regulations, after the day the practitioner's first practising certificate was granted, or (b) if the practitioner completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction--the practitioner has undertaken a period or periods equivalent to 2 years' supervised legal practice, worked out under relevant regulations, after the day the practitioner's first practising certificate was granted. 103 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 and powers of the Supreme Court in respect of those duties and obligations. Page 78

Legal Profession Bill 2004 Clause 104 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 Division 12 Miscellaneous 104 Protocols (1) The Councils separately or jointly may enter into arrangements (referred to in this Division as protocols) with regulatory authorities of other jurisdictions about determining: (a) the jurisdiction from 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 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, 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. (2) For the purposes of this Act, and to the extent that the 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 Councils may enter into arrangements that amend, revoke or replace a protocol. (4) A protocol does not have effect in this jurisdiction unless it is embodied or identified in the regulations. 105 Consideration and investigation of applicants or holders (1) To help it consider whether or not to grant, renew, suspend or cancel a local practising certificate, or impose conditions on a local practising certificate, a Council may, by notice to the applicant or holder, require the applicant or holder: (a) to give it specified documents or information, or (b) to be medically examined by a medical practitioner nominated by the Council, or (c) to co-operate with any inquiries by the authority that it considers appropriate. Page 79

Clause 105 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners (2) 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 is a ground for making an adverse decision in relation to the action being considered by the Council. (3) Without limiting subsection (2), a failure to comply with a requirement for medical examination may be accepted by the Council as evidence of the unfitness of the person to engage in legal practice. 106 Register of local practising certificates (1) A Council must keep a register of the names of Australian lawyers to whom it grants local practising certificates. (2) The regulations may make provision for or with respect to the following: (a) the information that may be included in the register, (b) the information that must be included in the register, (c) the notification by local legal practitioners to the appropriate Council of changes of particulars, (d) the notification by the Council to other authorities of particulars contained in the register. (3) The register must state the conditions (if any) imposed on a local practising certificate in relation to engaging in legal practice. (4) A condition imposed on a local practising certificate relating to infirmity, injury or mental or physical illness is not to be stated on the register unless: (a) the condition restricts the holder's right to engage in legal practice, or (b) the holder consents to the condition being stated on the register. (5) The register may be kept in the way the Council decides. (6) The Council may publish, in circumstances that it considers appropriate, the names of persons kept on the register and any other information included in the register concerning those persons. (7) The register must be available for inspection, without charge, at the Council's office during normal business hours. Page 80

Legal Profession Bill 2004 Clause 107 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 107 Orders or injunctions (1) The Commissioner or a Council may apply to the Supreme Court for an order or injunction that a local legal practitioner not contravene a condition imposed under this Part. (2) The Commissioner or a Council may apply to the Supreme Court for an order or injunction that an interstate legal practitioner not contravene a requirement of section 100 (4) (Extent of entitlement of interstate legal practitioner to practise in this jurisdiction). (3) No undertaking as to damages or costs is required. (4) The Supreme Court may grant an order or injunction on such terms as it considers appropriate, and make any order it considers appropriate, on the application. (5) This section does not affect the generality of section 720 (Injunctions). 108 Appeal against certain decisions of Councils (1) A person who is dissatisfied with any of the following decisions of a Council may appeal to the Supreme Court against the decision: (a) a decision to refuse to grant or renew a local practising certificate, or (b) a decision to amend, suspend or cancel a local practising certificate. (2) The Supreme Court may make such order in the matter as it thinks fit. (3) Except to the extent (if any) that may be ordered by the Supreme Court, the lodging of an appeal does not stay the effect of the refusal, cancellation, amendment or suspension appealed against. (4) This section does not apply to a decision under Division 7. 109 Attorney General The Attorney General, while admitted to the legal profession in this or any other jurisdiction, is entitled to an unconditional practising certificate. The Attorney General may elect to hold a practising certificate as a barrister or as a solicitor. Page 81

Clause 110 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners 110 Crown Solicitor (1) The Crown Solicitor may, in his or her official capacity, act as solicitor for: (a) the State of New South Wales, or (b) a person suing or being sued on behalf of the State of New South Wales, or (c) a Minister of the Crown in his or her official capacity as such a Minister, or (d) a body established by an Act or other law of New South Wales, or (e) an officer or employee of the Public Service or any other service of the State of New South Wales or of a body established by an Act or other law of New South Wales, or (f) a person holding office under an Act or other law of New South Wales or because of the person's appointment to that office by the Governor or a Minister of the Crown, or (g) any other person or body, or any other class of persons or bodies, approved by the Attorney General. (2) The Crown Solicitor may act under subsection (1): (a) with or without charge, or (b) for a party in a matter that is not the subject of litigation, even if also acting under that subsection for another party in the matter. (3) The Crown Solicitor may, in his or her official capacity, act as agent for: (a) another State or a Territory, or (b) at the request of another State or a Territory--an instrumentality of, or a person in the service of, that State or Territory. (4) If, under subsection (1) (g), the Crown Solicitor is given approval to act as solicitor for a Minister of the Crown (otherwise than in his or her official capacity as such a Minister), the following must be included in the annual report under the Annual Reports (Departments) Act 1985 of the Crown Solicitor's activities: (a) the name of the Minister, Page 82

Legal Profession Bill 2004 Clause 110 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (b) the matter in which the Crown Solicitor acted (but without disclosure of any confidential client information), (c) the costs incurred by the Crown Solicitor in acting for the Minister and the amount charged to the Minister for so acting. (5) In this section, a reference to a State or a Territory includes a reference to the Crown in right of the State or Territory and to the Government of the State or Territory. 111 Government and other lawyers--exemption from certain conditions (1) This section applies to each of the following persons: (a) a local legal practitioner who is the holder of a statutory position under the Crown (whether in the right of this jurisdiction or in another right), (b) a local legal practitioner who acts as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in the right of this jurisdiction or in another right), (c) a local legal practitioner who is, or is a member of a class or description of local legal practitioners, specified by the appropriate Council for the purposes of this subsection, (d) a local legal practitioner who is, or is a member of a class or description of local legal practitioners, specified by the regulations for the purposes of this subsection, while the person is a local legal practitioner to whom at least one of the paragraphs of this subsection applies. (2) The local practising certificate of a person to whom this section applies is not subject to conditions of the kind referred to in section 50 (3) (a), (b) and (d) (Conditions imposed by Council) or 56 (1) (Additional conditions on practising certificates of barristers), other than a condition relating to continuing legal education. 112 Government lawyers--exemption from certain provisions (1) Nothing in Division 9 (Practice as a barrister or solicitor) affects: (a) practice as a barrister as the holder of a statutory office under the Crown (whether in right of New South Wales or in another right), or Page 83

Clause 112 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.4 Legal practice by Australian legal practitioners (b) practice as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right). (2) This section does not limit the operation of section 114 (Government lawyers of other jurisdictions). 113 Government lawyers--imposition of additional conditions Without limiting section 50 (Conditions imposed by Council), the Bar Council may under that section impose conditions of the following kinds on the local practising certificate of a barrister: (a) a condition limiting the holder to practising as a barrister as the holder of a statutory office under the Crown (whether in right of New South Wales or in another right), (b) a condition limiting the holder to practising as a barrister in any other office under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right), (c) a condition limiting the holder to practising as parliamentary counsel under a contract of service, or contract for services, with the Crown (whether in right of New South Wales or in another right). 114 Government lawyers of other jurisdictions (1) A government employee of another jurisdiction is not subject to: (a) any prohibition under this Act about: (i) engaging in legal practice in this jurisdiction, or (ii) making representations about engaging in legal practice in this jurisdiction, or (b) conditions imposed on a local practising certificate, or (c) requirements of legal profession rules, or (d) professional discipline, in respect of the performance of his or her official duties or functions as a government employee of the other jurisdiction to the extent that he or she is exempt from matters of the same kind under a law of the other jurisdiction. Page 84

Legal Profession Bill 2004 Clause 114 General requirements for engaging in legal practice Chapter 2 Legal practice by Australian legal practitioners Part 2.4 (2) Contributions and levies are not payable to the Fidelity Fund by or in respect of a government employee of another jurisdiction in his or her capacity as a government employee. (3) Without affecting subsections (1) and (2), nothing in this section prevents a government employee of another jurisdiction from being granted or holding a local practising certificate. (4) In this section: another jurisdiction means: (a) another State or Territory of the Commonwealth, or (b) the Commonwealth. government agency of another jurisdiction means: (a) a government department of that jurisdiction, or (b) a body or organisation that is established by or under the law of that jurisdiction for a public purpose or to exercise governmental functions, and includes a body or organisation (or a class of bodies or organisations) prescribed by the regulations as being within this definition. government employee means an employee of a government agency of another jurisdiction. 115 Non-compellability of certain witnesses (1) A person referred to in section 601 (Protection from liability) is not compellable in any legal proceedings to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Part. (2) This section does not apply to: proceedings under Part 3 of the Royal Commissions Act 1923, (a) or (b) proceedings before the Independent Commission Against Corruption, or a hearing under the Special Commissions of Inquiry Act 1983, (c) or an inquiry under the Ombudsman Act 1974. (d) Page 85

Clause 115 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.5 Inter-jurisdictional provisions regarding admission and practising certificates Part 2.5 Inter-jurisdictional provisions regarding admission and practising certificates Division 1 Preliminary 116 Purpose 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. 117 Definition In this Part: foreign regulatory action taken in relation to a person means: (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. 118 Other requirements not affected Powers and duties under this Part are additional to those under Chapter 4 (Complaints and discipline) or any other Chapter of this Act. Division 2 Notifications to be given by local authorities to interstate authorities 119 Official notification to other jurisdictions of applications for admission and associated matters (1) This section applies if an application for admission to the legal profession is made under this Act. (2) The Admission Board may give the corresponding authority for another jurisdiction written notice of any of the following (as relevant): (a) the making of the application, Page 86

Legal Profession Bill 2004 Clause 119 General requirements for engaging in legal practice Chapter 2 Part 2.5 Inter-jurisdictional provisions regarding admission and practising certificates (b) the withdrawal of the application, (c) the refusal to issue a compliance certificate in relation to the application. (3) The notice must state the applicant's name and address as last known to the Admission Board and may contain other relevant information. 120 Official notification to other jurisdictions of removals from local roll (1) This section applies if a local lawyer's name is removed from the local roll, except where the removal occurs under section 126 (Peremptory removal of local lawyer's name from local roll following removal in another jurisdiction). (2) The Prothonotary must, as soon as practicable, give written notice of the removal to: (a) the corresponding authority of every other jurisdiction, and (b) the registrar or other proper officer of the High Court. (3) The notice must state: (a) the lawyer's name and address as last known to the Prothonotary, and (b) the date the lawyer's name was removed from the roll, and (c) the reason for removing the lawyer's name, and may contain other relevant information. 121 Council to notify other jurisdictions of certain matters (1) If: (a) the appropriate Council takes any of the following actions: (i) refuses to grant an Australian lawyer a local practising certificate, (ii) suspends, cancels or refuses to renew an Australian lawyer's local practising certificate, or (b) the lawyer successfully appeals against the action taken, the Council must, as soon as practicable, give the corresponding authorities of other jurisdictions written notice of the action taken or the result of the appeal. (2) The notice must state: Page 87

Clause 121 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.5 Inter-jurisdictional provisions regarding admission and practising certificates (a) the lawyer's name and address as last known to the Council, and (b) particulars of: (i) the action taken and the reasons for it, or (ii) the result of the appeal, and may contain other relevant information. (3) The appropriate Council may give corresponding authorities written notice of a condition imposed on an Australian lawyer's local practising certificate. Division 3 Notifications to be given by lawyers to local authorities 122 Lawyer to give notice of removal of name from interstate roll (1) If a local lawyer's name has been removed from an interstate roll, the lawyer must, as soon as practicable, give the Prothonotary a written notice of the removal. Maximum penalty: 50 penalty units. (2) If a local legal practitioner's name has been removed from an interstate roll, the practitioner must, as soon as practicable, give the appropriate Council a written notice of the removal. Maximum penalty: 50 penalty units. (3) This section does not apply where the name has been removed from an interstate roll under a provision that corresponds to section 126 (Peremptory removal of local lawyer's name from local roll following removal in another jurisdiction). 123 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, give the Prothonotary written notice of the order. Maximum penalty: 50 penalty units. Note. Chapter 4 requires the Supreme Court to order removal of the local lawyer's name from the local roll in these circumstances. Page 88

Legal Profession Bill 2004 Clause 123 General requirements for engaging in legal practice Chapter 2 Part 2.5 Inter-jurisdictional provisions regarding admission and practising certificates (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 suspended or cancelled, or (b) a local practising certificate not be granted to the practitioner for a period, or (c) an order that conditions be imposed on the practitioner's local practising certificate, the person must, as soon as practicable, give the appropriate Council written notice of the order. Maximum penalty: 50 penalty units. Note. Chapter 4 requires the appropriate Council to give effect to orders made under corresponding laws. 124 Lawyer to give notice of foreign regulatory action (1) If foreign regulatory action has been taken in relation to a local lawyer, the lawyer must, as soon as practicable, give the Prothonotary a written notice of the action taken. Maximum penalty: 50 penalty units. (2) If foreign regulatory action has been taken in relation to a local legal practitioner, the practitioner must, as soon as practicable, give the appropriate Council a written notice of the action taken. Maximum penalty: 50 penalty units. 125 Provisions relating to requirement to notify (1) A notice to be given under this Division by a local lawyer or local legal practitioner must: (a) state his or her name and address, and (b) identify the interstate roll from which his or her name has been removed, or describe the order made (as referred to in section 123) or the foreign regulatory action taken, and (c) state the date of the removal or the date the order was made or the action was taken, and (d) be accompanied by a copy of any official notification provided to him or her in connection with the removal or the order made or action taken. Page 89

Clause 125 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.5 Inter-jurisdictional provisions regarding admission and practising certificates (2) A failure of a local lawyer or local legal practitioner to comply with this Division is capable of being unsatisfactory professional conduct or professional misconduct. Division 4 Taking of action by local authorities in response to notifications received 126 Peremptory removal of local lawyer's name from local roll following removal in another jurisdiction (1) This section applies if the Prothonotary is satisfied that: (a) a local lawyer's name has been removed from an interstate roll, and (b) no order referred to in section 130 (1) (a) (Order for non-removal of name or non-cancellation of local practising certificate) is, at the time of that removal, in force in relation to it. (2) The Prothonotary must remove the lawyer's name from the local roll. (3) The Prothonotary may, but need not, give the lawyer notice of the date on which the Prothonotary proposes to remove the name from the local roll. (4) The Prothonotary 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 previously given. (5) The name of the former local lawyer is, on his or her application to the Prothonotary or on the Prothonotary's own initiative, to be restored to the local roll if the name is restored to the interstate roll. (6) Nothing in this section prevents the former local lawyer from afterwards applying for admission under Part 2.3 (Admission of local lawyers). 127 Peremptory cancellation of local practising certificate following removal of name from interstate roll (1) This section applies if: (a) a local legal practitioners's name is removed from an interstate roll, and Page 90

Legal Profession Bill 2004 Clause 127 General requirements for engaging in legal practice Chapter 2 Part 2.5 Inter-jurisdictional provisions regarding admission and practising certificates (b) no order referred to in section 130 (1) (b) (Order for non-removal of name or non-cancellation of local practising certificate) is, at the time of that removal, in force in relation to it. (2) The appropriate Council must cancel the local practising certificate as soon as practicable after receiving official written notification of the removal and may cancel the practising certificate before that time. (3) The Council may, but need not, give the person notice of the date on which the Council proposes to cancel the local practising certificate. (4) The Council 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 legal practitioner from afterwards applying for a local practising certificate. 128 Show cause procedure for removal of lawyer's name from local roll following foreign regulatory action (1) This section applies if the appropriate authority is satisfied that: (a) foreign regulatory action has been taken in relation a local lawyer, and (b) no order referred to in section 130 (1) (a) (Order for non-removal of name or non-cancellation of local practising certificate) is, at the time of that removal, in force in relation to it. (2) The authority may serve on the lawyer a notice stating that the authority will apply to the Supreme Court for an order that the lawyer's name be removed from the local roll unless the lawyer shows cause to the authority why his or her name should not be removed. (3) If the lawyer does not satisfy the authority that his or her name should not be removed from the local roll, the authority may apply to the Supreme Court for an order that his or her name be removed from the local roll. (4) Before applying for an order that the lawyer's name be removed, the authority must afford the lawyer a reasonable opportunity to show cause why his or her name should not be removed. Page 91

Clause 128 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.5 Inter-jurisdictional provisions regarding admission and practising certificates (5) The Supreme Court 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. (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. (7) In this section: appropriate authority means: (a) if the local lawyer holds a local practising certificate--the appropriate Council, or (b) if the local lawyer does not hold a local practising certificate but holds an interstate practising certificate--either Council, or (c) if the local lawyer holds neither a local practising certificate nor an interstate practising certificate--the Law Society Council. 129 Show cause procedure for cancellation of local practising certificate following foreign regulatory action (1) This section applies if the appropriate Council is satisfied that: (a) foreign regulatory action has been taken in relation to a local legal practitioner, and (b) no order referred to in section 130 (1) (b) (Order for non-removal of name or non-cancellation of local practising certificate) is, at the time the action was taken, in force in relation to it. (2) The Council may serve on the practitioner a notice stating that the Council proposes to cancel his or her local practising certificate unless the practitioner shows cause to the Council why his or her name should not be removed. (3) The Council must afford the lawyer a reasonable opportunity to show cause why his or her practising certificate should not be cancelled. (4) If the practitioner does not satisfy the Council that the practising certificate should not be cancelled, the Council may cancel the certificate. (5) The practitioner may appeal to the Supreme Court against a decision of the Council to cancel the practising certificate. Page 92

Legal Profession Bill 2004 Clause 129 General requirements for engaging in legal practice Chapter 2 Part 2.5 Inter-jurisdictional provisions regarding admission and practising certificates (6) The Supreme Court may make any order it considers appropriate on the appeal. 130 Order for non-removal of name or non-cancellation of local practising certificate (1) If an Australian lawyer reasonably expects that his or her 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: (a) an order that his or her name not be removed from the local roll under section 126 (Peremptory removal of local lawyer's name from local roll following removal in another jurisdiction) or section 128 (Show cause procedure for removal of lawyer's name from local roll following foreign regulatory action), or (b) an order that his or her local practising certificate not be cancelled under section 127 (Peremptory cancellation of local practising certificate following removal of name from interstate roll) or section 129 (Show cause procedure for cancellation of local practising certificate following foreign regulatory action), or both. (2) The Supreme Court may make the order or orders applied 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 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 conditions the Supreme Court considers appropriate and remains in force for the period specified in it. (4) The Supreme Court may revoke an order made under this section, and sections 126�129 (as relevant) 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. Page 93

Clause 130 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.5 Inter-jurisdictional provisions regarding admission and practising certificates (5) Nothing in this section affects action being taken in relation to the lawyer under other provisions of this Act. 131 Local authority may give information to other local authorities A regulatory authority of this jurisdiction that receives information from a regulatory authority of another jurisdiction under provisions of a corresponding law that correspond to this Part may furnish the information to other regulatory authorities of this jurisdiction that have powers or duties under this Act. Part 2.6 Incorporated legal practices and multi-disciplinary partnerships Division 1 Preliminary 132 Purposes The purposes of this Part are: (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 services (whether by a corporation or persons acting in partnership with each other). 133 Definitions In this Part: corporation means: a company within the meaning of the Corporations Act 2001 of (a) the Commonwealth, or (b) any other body corporate, or body corporate of a kind, prescribed by the regulations. director, in relation to: a company within the meaning of the Corporations Act 2001 of (a) the Commonwealth--means a director as defined in section 9 of that Act, or Page 94

Legal Profession Bill 2004 Clause 133 General requirements for engaging in legal practice Chapter 2 Incorporated legal practices and multi-disciplinary partnerships Part 2.6 (b) any other body corporate, or body corporate of a kind, prescribed by the regulations--means a person specified or described in the regulations. legal practitioner director means a director of an 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. officer means: (a) in relation to a company within the meaning of the Corporations Act 2001 of the Commonwealth--an officer as defined in section 9 of that Act, or (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. professional obligations of an Australian legal practitioner include: (a) duties to the Supreme Court, and (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 practitioner. Regulator means: (a) in relation to this jurisdiction--the Commissioner, or (b) in relation to another jurisdiction--the person or body defined as the Regulator in relation to that jurisdiction by the corresponding law of that jurisdiction or, if there is no such definition, the corresponding authority. related body corporate means: (a) in relation to a company within the meaning of the Corporations Act 2001 of the Commonwealth--a related body corporate within the meaning of section 50 of that Act, or (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. Page 95

Clause 134 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.6 Incorporated legal practices and multi-disciplinary partnerships Division 2 Incorporated legal practices 134 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 if: (a) the corporation does not receive any form of, or have any expectation of, a fee, gain or reward for the legal services it provides, or (b) the only legal services that the corporation provides are 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 party, (ii) services that are not legally required to be provided by an Australian legal practitioner and that are provided by an officer or employee who is not an Australian legal practitioner, or (c) the corporation is a complying community legal centre, or (d) this Division or the regulations so provide. (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 Division affects or applies to the provision by an incorporated legal practice of legal services in one or more other jurisdictions. 135 Non-legal services and businesses of incorporated legal practices (1) An incorporated legal practice may provide any service and 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) must not conduct a managed investment scheme. Page 96

Legal Profession Bill 2004 Clause 135 General requirements for engaging in legal practice Chapter 2 Incorporated legal practices and multi-disciplinary partnerships Part 2.6 (3) The regulations may prohibit an incorporated legal practice (or a related body corporate) from providing a service or conducting a business of a kind specified by the regulations. 136 Corporations eligible to be incorporated legal practice (1) Any corporation is, subject to this Division, eligible to be an incorporated legal practice. (2) This section does not authorise a corporation to provide legal services if the corporation is prohibited from doing so by any Act or law (whether of this jurisdiction, the Commonwealth or any other jurisdiction) under which it is incorporated or its affairs are regulated. (3) An incorporated legal practice is not itself required to hold an Australian practising certificate. 137 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 Law Society written notice, in the approved form, of its intention to do so. (2) A corporation must not engage in legal practice in this jurisdiction if it is in default of this section. Maximum penalty: 50 penalty units. (3) A corporation that starts to engage in legal practice in this jurisdiction without giving a notice under subsection (1) is in default of this section until it gives the Law Society 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). (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 for anything the corporation did in contravention of subsection (2). (7) This section does not apply to a corporation referred to in section 134 (2) (a) or (b). Page 97

Clause 138 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.6 Incorporated legal practices and multi-disciplinary partnerships 138 Prohibition on representations that corporation is 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 137 (Notice of intention to start providing legal services). Maximum penalty: 500 penalty units. (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 137 (Notice of intention to start providing legal services). Maximum penalty: 100 penalty units. (3) A reference in this section to a person, being: (a) a corporation--representing or advertising that the corporation is an incorporated legal practice, or (b) a director, officer, employee or agent of a corporation--representing or advertising that the corporation is an incorporated legal practice, includes a reference to the person doing anything that states or implies that the corporation is entitled to engage in legal practice. 139 Notice of termination of provision of legal services (1) A corporation must, within the prescribed period after it ceases to engage in legal practice in this jurisdiction as an incorporated legal practice, give the Law Society a written notice, in the approved form, of that fact. Maximum penalty: 50 penalty units. (2) The regulations may make provision for or with respect to determining whether and when a corporation ceases to engage in legal practice in this jurisdiction. 140 Incorporated legal practice must have legal practitioner director (1) An incorporated legal practice is required to have at least one legal practitioner director. Page 98

Legal Profession Bill 2004 Clause 140 General requirements for engaging in legal practice Chapter 2 Incorporated legal practices and multi-disciplinary partnerships Part 2.6 (2) Each legal practitioner director of an incorporated legal practice is, for the purposes of this Act only, responsible for the 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 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 by or under this Act, the regulations or the legal profession rules, and (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 legal services by the practice will result in breaches of the professional obligations of Australian legal practitioners or other obligations imposed by or under this Act, the regulations or the legal profession rules, the director must take all reasonable action available to the director to ensure that: (a) the breaches do not occur, and (b) appropriate remedial action is taken in respect of breaches that do occur. (5) A contravention of subsection (3) or (4) or both by a legal practitioner director is capable of being professional misconduct. (6) Nothing in this Division derogates from the obligations or liability of a director of an incorporated legal practice under any other law. (7) 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. Note: The requirements of this section may be subject to audit under section 670. 141 Obligations of legal practitioner director relating to misconduct (1) Each of the following is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner director: Page 99

Clause 141 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.6 Incorporated legal practices and multi-disciplinary partnerships (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 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 practice to be a director of a corporation that provides legal services. (2) A legal practitioner director of an incorporated legal practice must ensure that all reasonable action available to the legal practitioner director is taken to deal with any unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the practice. (3) A contravention of subsection (2) is capable of being unsatisfactory professional conduct or professional misconduct by the legal practitioner director. 142 Incorporated legal practice without legal practitioner director (1) An incorporated legal practice contravenes this subsection if it does not have any legal practitioner directors for a period exceeding 7 days. Maximum penalty: 500 penalty units. (2) If an incorporated legal practice ceases to have any legal practitioner directors, the incorporated legal practice must notify the Law Society as soon as possible. Maximum penalty: 500 penalty units. (3) An incorporated legal practice must not provide legal services in this jurisdiction during any period it is in default of director requirements under this section. Maximum penalty: 100 penalty units. (4) An incorporated legal practice that contravenes subsection (1) is taken to be in default of director requirements under this section 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. Page 100

Legal Profession Bill 2004 Clause 142 General requirements for engaging in legal practice Chapter 2 Incorporated legal practices and multi-disciplinary partnerships Part 2.6 (5) The Law Society Council may, if it thinks it appropriate, appoint an Australian legal practitioner who is an employee of the incorporated legal practice or another person nominated by the Council, in the absence of a legal practitioner director, to exercise the functions conferred or imposed on a legal practitioner director under this Part. (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 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 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 the expression "legal practitioner director" in other provisions of this Act. 143 Obligations and privileges of practitioners who are officers or employees (1) An Australian legal practitioner who provides legal services on behalf of an incorporated legal practice in the capacity of an officer or employee of the practice: (a) is not excused from compliance with professional obligations as an Australian legal practitioner, or any obligations as an Australian legal practitioner under any law, and (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 a practitioner apply as if: (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 employees of the practice were employees of the legal practitioner directors, or Page 101

Clause 143 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.6 Incorporated legal practices and multi-disciplinary partnerships (b) where there is only 1 legal practitioner director of an incorporated legal practice--the practice were a sole 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 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. 144 Professional indemnity Insurance (1) An incorporated legal practice, and each insurable solicitor who is a legal practitioner director or an officer or employee of the practice, is required to comply with the obligations of an insurable solicitor under Part 3.3 (Professional indemnity insurance) with respect to insurance policies and payments to or on account of the Solicitors Mutual Indemnity Fund. (2) Each solicitor who is an interstate legal practitioner who is a legal practitioner director or an officer or employee of the practice and who if, he or she were a local practitioner, would be an insurable solicitor is required to comply with the obligations of an interstate legal practitioner under section 98 with respect to appropriate indemnity insurance. (3) If an obligation referred in subsection (1) or (2) is not complied with, the Law Society Council may: (a) in the case of a legal practitioner director who holds a local practising certificate--suspend the director's practising certificate while the failure continues, or (b) in the case of a legal practitioner director who is an interstate legal practitioner--suspend that director's entitlement under Part 2.4 to practise in this State while the failure continues and request the corresponding authority in the jurisdiction in which the practitioner has his or her sole or principal place of legal practice to suspend the director's interstate practising certificate until the Law Society Council notifies the corresponding authority that the obligation has been complied with. Page 102

Legal Profession Bill 2004 Clause 144 General requirements for engaging in legal practice Chapter 2 Incorporated legal practices and multi-disciplinary partnerships Part 2.6 (4) The insurance premiums or other amounts payable under Part 3.3 by an incorporated legal practice may be determined by reference to the total number of solicitors employed by the practice and other relevant matters. (5) The amounts payable from the Solicitors Mutual Indemnity Fund include payments for such liability of an incorporated legal practice, and of the solicitors who are officers and employees of the practice, in connection with the provision of legal services as the Law Society Council determines with the approval of the Attorney General. (6) The Law Council Society may exempt an incorporated legal practice from this section on such grounds as the Council considers sufficient. 145 Conflicts of interest (1) For the purposes of the application of any law (including the common law) or legal profession rules relating to conflicts of interest to the conduct of an Australian legal practitioner who 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 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 interest arising out of the conduct of an incorporated legal practice. Note. Under section 143 (Obligations and privileges of practitioners who are officers or employees), an Australian legal practitioner who is an officer or employee of an incorporated legal practice must comply with the same professional obligations as other practitioners. 146 Disclosure obligations (1) This section applies if a person engages an incorporated legal practice to provide services that the person might reasonably assume to be legal services, but does not apply where the practice provides only legal services in this jurisdiction. (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 requirements of this section and the Page 103

Clause 146 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.6 Incorporated legal practices and multi-disciplinary partnerships regulations made for the purposes of this section, is made to the person in connection with the provision of the services. Maximum penalty: 50 penalty units. (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 provided will be provided by an Australian legal practitioner, and (c) if some or all of the legal services to be provided 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 Note. For example, the person might be a licensed conveyancer. However, this paragraph would not apply in a case where a law applying in the jurisdiction prohibits a particular legal service from being provided by a person who is not an Australian legal practitioner. (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 following matters: (a) the manner in which a 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 an incorporated legal practice. (5) Without limiting subsection (4), the additional matters may include the kind of services provided by the incorporated legal 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 one occasion or on more than one occasion or on an on-going basis. 147 Effect of non-disclosure of provision of certain services (1) This section applies if: (a) section 146 (Disclosure obligations) 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 Page 104

Legal Profession Bill 2004 Clause 147 General requirements for engaging in legal practice Chapter 2 Incorporated legal practices and multi-disciplinary partnerships Part 2.6 (b) a disclosure has not been made under that section in relation to the service. (2) The standard of care owed by the incorporated legal practice in respect of the service is the standard that would be applicable if the service had been provided by an Australian legal practitioner. 148 Application of legal profession rules 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. 149 Requirements relating to advertising (1) Any restriction imposed by or under this or any other Act, the regulations or the legal profession rules 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 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 incorporated legal practice carries on the business of the relevant class of Australian legal practitioners. (3) Any 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 director of the incorporated legal practice. (4) This section does not apply if the provision by which the restriction is imposed expressly excludes its application to incorporated legal practices. 150 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 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 Page 105

Clause 150 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.6 Incorporated legal practices and multi-disciplinary partnerships practice (or to any officer or employee of the 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 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 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. 151 Sharing of receipts, revenue or other income (1) Nothing in this Act, the regulations or the legal profession rules 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. (2) This section does not extend to the sharing of receipts, revenue or other income in contravention of section 152 (Disqualified persons), and has effect subject to section 54 (Statutory condition regarding practice as a barrister). 152 Disqualified persons (1) An incorporated legal practice is guilty of an offence if a person who is a 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 (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 (d) is engaged or paid in connection with the provision of legal services by the incorporated legal practice. Maximum penalty: 100 penalty units. Page 106

Legal Profession Bill 2004 Clause 152 General requirements for engaging in legal practice Chapter 2 Incorporated legal practices and multi-disciplinary partnerships Part 2.6 (2) The failure of a legal practitioner director of an incorporated legal practice to ensure that the practice complies with subsection (1) is capable of being unsatisfactory professional conduct or professional misconduct. 153 Banning of incorporated legal practices (1) The Supreme Court may, on the application of the Law Society Council or the Regulator, make an order disqualifying a corporation from providing legal services in this jurisdiction for the period the Court considers appropriate if satisfied that: (a) a ground for disqualifying the corporation under this section has been established, and (b) the disqualification is justified. (2) An order under this section may, if the Supreme Court 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 circumstances the order is to take effect, or (c) together with orders to safeguard the interests of clients or employees of the incorporated legal 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 corporation is found guilty of professional misconduct under a law of this jurisdiction or another jurisdiction, (b) that the Law Society Council or the Regulator is satisfied, after conducting an audit of the incorporated legal practice, that the incorporated legal practice has failed to implement satisfactory management and supervision of its provision of legal services, (c) that the incorporated legal practice (or a related body corporate) has contravened section 135 (Non-legal services and businesses of incorporated legal practices) or the regulations made under that section, Page 107

Clause 153 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.6 Incorporated legal practices and multi-disciplinary partnerships (d) that the incorporated legal practice has contravened section 152 (Disqualified persons), (e) that a person who is an officer of the incorporated legal practice and who is the subject of an order under: (i) section 154 (Disqualification from managing incorporated legal practice) or under provisions of a corresponding law that correspond to that section, or (ii) section 179 (Prohibition on partnerships with certain partners who are not Australian legal practitioners) or under provisions of a corresponding law that correspond to that section, is acting in the management of the incorporated legal practice. (4) If a corporation is disqualified under this section, the Law Society Council or the Regulator that applied for the order must, as soon as practicable, notify the Regulator of every other jurisdiction. (5) If a corporation is disqualified from providing legal services in another jurisdiction under a corresponding law, the Regulator or the Law Society Council 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 Regulator or the Law Society Council from instead applying for an order under this section. (6) A corporation that provides legal services in contravention of a disqualification under this section is guilty of an offence. Maximum penalty: 500 penalty units. (7) A corporation that is disqualified under this section ceases to be an incorporated legal practice. (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 being unsatisfactory professional conduct or professional misconduct where 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, including notification of appropriate authorities of other jurisdictions. Page 108

Legal Profession Bill 2004 Clause 154 General requirements for engaging in legal practice Chapter 2 Incorporated legal practices and multi-disciplinary partnerships Part 2.6 154 Disqualification from managing incorporated legal practice (1) The Supreme Court may, on the application of the Law Society Council or the Regulator, make an order disqualifying a person from managing a corporation that is an incorporated legal practice for the period the Court 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 2001 of the Commonwealth from managing corporations, and (b) the disqualification is justified. (2) The Supreme Court 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 the purposes only of this Act and does not affect the application or operation of the Corporations Act 2001 of the Commonwealth. (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 under provisions of a corresponding law that correspond to this section is taken to be disqualified from managing a corporation under this section. 155 Disclosure of information to Australian Securities and Investments Commission (1) This section applies if the Law Society Council or the Regulator, in connection with exercising functions under this Act, acquired information concerning a corporation that is or was an incorporated legal practice. (2) The Law Society Council or the Regulator may disclose to the Australian Securities and Investments Commission information concerning the corporation that is relevant to the Commission's functions. (3) Information may be provided under subsection (2) despite any law relating to secrecy or confidentiality, including any provisions of this Act. Page 109

Clause 156 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.6 Incorporated legal practices and multi-disciplinary partnerships 156 External administration proceedings under Corporations Act 2001 (Cth) (1) This section applies to proceedings in any court under Chapter 5 (External administration) of the Corporations Act 2001 of the Commonwealth: (a) relating to a corporation that is an externally-administered body corporate under that Act, or (b) relating to a corporation becoming an externally-administered body corporate under that Act, being a corporation that is or was an incorporated legal practice. (2) The Law Society Council and the Regulator are entitled to intervene in the proceedings, unless the court determines that the proceedings do not concern or affect 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 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 2001 of the Commonwealth. (5) The provisions of subsections (2) and (3) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of Chapter 5 of that Act. Note. Section 5G of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency. 157 External administration proceedings under other legislation (1) This section applies to proceedings for the external administration (however expressed) of an incorporated legal practice, but does not apply to proceedings to which section 156 (External administration proceedings under Corporations Act 2001 (Cth)) applies. Page 110

Legal Profession Bill 2004 Clause 157 General requirements for engaging in legal practice Chapter 2 Incorporated legal practices and multi-disciplinary partnerships Part 2.6 (2) The Law Society Council and the Regulator are entitled to intervene in the proceedings, unless the court determines that the proceedings do not concern or affect 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 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. 158 Incorporated legal practice that is subject to receivership under this Act and external administration under Corporations Act 2001 (Cth) (1) This section applies if an incorporated legal practice is the subject of both: (a) the appointment of a Part 5.5 receiver, and (b) the appointment of a Corporations Act administrator. (2) The Part 5.5 receiver is under a duty to notify the Corporations Act administrator of the appointment of the Part 5.5 receiver, whether the appointment precedes, follows or is contemporaneous with the appointment of the Corporations Act administrator. (3) The Part 5.5 receiver or the Corporations Act administrator (or both of them jointly) may apply to the Supreme Court for the resolution of issues arising from or in connection with the dual appointments and their respective powers, except where proceedings referred to in section 156 (External administration proceedings under Corporations Act 2001 (Cth)) have been commenced. (4) The Supreme Court may make any orders it considers appropriate, and no liability attaches to the Part 5.5 receiver or the Corporations Act administrator for any act or omission done by the receiver or administrator in good faith for the purpose of carrying out or acting in accordance with the orders. (5) The Law Society Council and the Regulator are entitled to intervene in the proceedings, unless the court determines that the proceedings do not concern or affect the provision of legal services by the incorporated legal practice. Page 111

Clause 158 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.6 Incorporated legal practices and multi-disciplinary partnerships (6) The provisions of subsections (3) and (4) are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth in relation to the provisions of Chapter 5 of that Act. (7) In this section: 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 2001 of the Commonwealth, or (b) a person who is appointed to exercise powers under that Act and who is prescribed, or of a class prescribed, by the regulations for the purposes of this definition. Part 5.5 receiver means a receiver appointed under Part 5.5. 159 Incorporated legal practice that is subject to receivership under this Act and external administration under other legislation (1) This section applies if an incorporated legal practice is the subject of both: (a) the appointment of a Part 5.5 receiver, and (b) the appointment of an external administrator. (2) The Part 5.5 receiver is under a duty to notify the external administrator of the appointment of the Part 5.5 receiver, whether the appointment precedes, follows or is contemporaneous with the appointment of the external administrator. (3) The Part 5.5 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 connection with the dual appointments and their respective powers. (4) The Supreme Court may make any orders it considers appropriate, and no liability attaches to the Part 5.5 receiver or the external administrator for any act or omission done by the receiver or administrator in good faith for the purpose of carrying out or acting in accordance with the orders. Page 112

Legal Profession Bill 2004 Clause 159 General requirements for engaging in legal practice Chapter 2 Incorporated legal practices and multi-disciplinary partnerships Part 2.6 (5) The Law Society Council and the Regulator are entitled to intervene in the proceedings, unless the court determines that the proceedings do not concern or affect the provision of legal services by the incorporated legal practice. (6) In this section: external administrator means a person who is appointed to exercise powers under other legislation (whether or not of this jurisdiction) and who is prescribed, or of a class prescribed, by the regulations for the purposes of this definition. Part 5.5 receiver means a receiver appointed under Part 5.5. 160 Co-operation between courts Courts of this jurisdiction may make arrangements for communicating and co-operating with other courts or tribunals in connection with the exercise of powers under this Division. 161 Relationship of Act to constitution of incorporated legal practice The provisions of this Act or the regulations that apply to an incorporated legal practice prevail, to the extent of any inconsistency, over the constitution or other constituent documents of the practice. 162 Relationship of Act to legislation establishing incorporated legal practice (1) This section applies to a corporation that is established by or under a law (whether or not of this jurisdiction), and is an incorporated legal practice, but is not a company within the meaning of the Corporations Act 2001 of the Commonwealth. (2) The provisions of this Act or the regulations that apply to an incorporated legal practice prevail, to the extent of any inconsistency, over provisions of the legislation by or under which the corporation is established or regulated that are specified or described in the regulations. 163 Relationship of Act to Corporations legislation (1) The regulations may declare any provision of this Act or the regulations that relates to an incorporated legal practice to be a Corporations legislation displacement provision for the purposes of section 5G of the Corporations Act 2001 of the Commonwealth. Page 113

Clause 163 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.6 Incorporated legal practices and multi-disciplinary partnerships (2) The regulations may declare any matter relating to an incorporated legal practice that is prohibited, required, authorised or permitted by or under this Act or the regulations to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to: (a) the whole of the Corporations legislation, or (b) a specified provision of the Corporations legislation, or (c) the Corporations legislation other than a specified provision, or (d) the Corporations legislation otherwise than to a specified extent. (3) In this section: matter includes act, omission, body, person or thing. 164 Undue influence A person (whether or not an officer or an employee of an incorporated legal practice) must not cause or induce: (a) a legal practitioner director, or (b) another Australian legal practitioner who provides legal services on behalf of an incorporated legal practice, to contravene this Act, the regulations, the legal profession rules or his or her professional obligations as an Australian legal practitioner. Maximum penalty: 100 penalty units. Division 3 Multi-disciplinary partnerships 165 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 services in this jurisdiction as well as other services. (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. (3) A complying community legal centre is not a multi-disciplinary partnership. Page 114

Legal Profession Bill 2004 Clause 165 General requirements for engaging in legal practice Chapter 2 Incorporated legal practices and multi-disciplinary partnerships Part 2.6 (4) Nothing in this Division affects or applies to the provision by a multi-disciplinary partnership of legal services in one or more other jurisdictions. 166 Conduct of multi-disciplinary partnerships (1) An Australian legal practitioner may be in partnership with a 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 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, where the business of the partnership includes the provision of legal services. 167 Notice of intention to start practice in multi-disciplinary partnership A legal practitioner partner must, before starting to provide legal services in this jurisdiction as a member of a multi-disciplinary partnership, give the Law Society written notice, in the approved form, of his or her intention to do so. Maximum penalty: 50 penalty units. 168 General obligations of legal practitioner partners (1) Each legal practitioner partner of a multi-disciplinary partnership is, for the purposes only of this Act, responsible for 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 the provision of legal services by the multi-disciplinary partnership: (a) in accordance with the professional obligations of Australian legal practitioners and the other obligations imposed by this Act, the regulations or the legal profession rules, and (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. Page 115

Clause 168 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.6 Incorporated legal practices and multi-disciplinary partnerships (3) A contravention of subsection (2) by a legal practitioner partner is capable of being unsatisfactory professional conduct or professional misconduct. 169 Obligations of legal practitioner partner relating to misconduct (1) Each of the following is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner partner: (a) unsatisfactory professional conduct or professional 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 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. (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 professional conduct or professional misconduct of an Australian legal practitioner employed by the partnership. (3) A contravention of subsection (2) is capable of being unsatisfactory professional conduct or professional misconduct. 170 Actions of partner who is not an Australian legal practitioner A partner of a multi-disciplinary partnership who is not an Australian legal practitioner does not contravene a provision of this Act, the regulations or the legal profession rules merely because of any of the following: (a) the partner is a member of a partnership where the business of the partnership includes the provision of legal services, (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 of the partnership includes the provision of legal services, Page 116

Legal Profession Bill 2004 Clause 170 General requirements for engaging in legal practice Chapter 2 Incorporated legal practices and multi-disciplinary partnerships Part 2.6 (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, unless the provision expressly applies to a partner of a multi-disciplinary partnership who is not an Australian legal practitioner. 171 Obligations and privileges of practitioners who are partners or employees (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 professional obligations as an Australian legal practitioner, or any other obligations as an Australian legal practitioner under any law, and (b) does not lose the professional privileges of an Australian legal practitioner. (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. 172 Conflicts of interest (1) For the purposes of the application of any law (including the common law) or legal profession rules relating to conflicts of interest to the conduct of an Australian legal practitioner who is: (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 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 partnership. Page 117

Clause 173 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.6 Incorporated legal practices and multi-disciplinary partnerships 173 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. (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 partnership, must ensure that a disclosure, complying with the 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. Maximum penalty: 50 penalty units. (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 provided will be provided by an Australian legal practitioner, and (c) if some or all of the legal services to be provided 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 Note. For example, the person might be a licensed conveyancer. However, this paragraph would not apply in a case where a law applying in the jurisdiction prohibits a particular legal service from being provided by a person who is not an Australian legal practitioner. (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 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. (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. Page 118

Legal Profession Bill 2004 Clause 173 General requirements for engaging in legal practice Chapter 2 Incorporated legal practices and multi-disciplinary partnerships Part 2.6 (6) A disclosure under this section to a person about the provision 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. 174 Effect of non-disclosure of provision of certain services (1) This section applies if: (a) section 173 (Disclosure obligations) applies in relation to a service that is provided to a person who has engaged a multi-disciplinary partnership 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 in relation to the service. (2) The standard of care owed by the multi-disciplinary partnership in respect of the service is the standard that would be applicable if the service had been provided by an Australian legal practitioner. 175 Application of legal profession rules 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. 176 Requirements relating to advertising (1) Any restriction imposed by or under this or any other Act, the regulations or the legal profession rules in connection with advertising by Australian legal practitioners applies to advertising by a multi-disciplinary partnership with respect to the provision of legal services. (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 the relevant class of Australian legal practitioners. (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 partnership. Page 119

Clause 176 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.6 Incorporated legal practices and multi-disciplinary partnerships (4) This section does not apply if the provision by which the restriction is imposed expressly excludes its application to multi-disciplinary partnerships. 177 Sharing of receipts, revenue or other income (1) Nothing in this Act, the regulations or the legal profession rules 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 or partners who are not Australian legal practitioners. (2) This section does not extend to the sharing of receipts, revenue or other income in contravention of section 178 (Disqualified persons), and has effect subject to section 54 (Statutory condition regarding practice as a barrister). 178 Disqualified persons (1) A legal practitioner partner of a multi-disciplinary partnership 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 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. Maximum penalty: 100 penalty units. (2) A contravention of subsection (1) by a legal practitioner partner of a multi-disciplinary partnership is capable of being unsatisfactory professional conduct or professional misconduct. 179 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 a partner of an Australian legal practitioner. Page 120

Legal Profession Bill 2004 Clause 179 General requirements for engaging in legal practice Chapter 2 Incorporated legal practices and multi-disciplinary partnerships Part 2.6 (2) On application by the Law Society Council or the Regulator, the Supreme Court 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 if: (a) the Court is satisfied that the person is not a fit and proper person to be a partner, or (b) the Court is satisfied that the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct, or (c) in the case of a corporation, if the Court is satisfied that the corporation has been disqualified from providing legal services in this jurisdiction or there are grounds for disqualifying the corporation from providing legal services in this jurisdiction. (3) An order made under this section may be revoked by the Supreme Court on application by the Law Society Council or the Regulator or by the person against whom the order was made. (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 publication and notification of orders made under this section. 180 Undue influence A person (whether or not a partner, or an employee, of a multi-disciplinary partnership) must not cause or induce: (a) a legal practitioner partner, or (b) an employee of a multi-disciplinary partnership who provides legal services and who is an Australian legal practitioner, to contravene this Act, the regulations, the legal profession rules or his or her professional obligations as an Australian legal practitioner. Maximum penalty: 100 penalty units. Page 121

Clause 181 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.6 Incorporated legal practices and multi-disciplinary partnerships Division 4 Miscellaneous 181 Obligations of individual practitioners not affected Except as provided by this Part, nothing in this Part affects any 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 or an Australian legal practitioner who is an employee of a multi-disciplinary partnership, or (c) an Australian legal practitioner who is an officer or employee of, or whose services are used by, a complying community legal centre, under this or any other Act, the regulations or the legal profession rules in his or her capacity as an Australian legal practitioner. 182 Regulations (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, (b) other services provided by incorporated legal practices or legal practitioner partners or employees of multi-disciplinary partnerships in circumstances where a conflict of interest relating to the provision of legal services may arise. (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 being unsatisfactory professional conduct or 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 legal practitioner partner, or by an Australian legal practitioner responsible for the breach, or both. Page 122

Legal Profession Bill 2004 Clause 183 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 Part 2.7 Legal practice by foreign lawyers Division 1 Preliminary 183 Purpose The purpose of this Part is to encourage and facilitate the internationalisation of legal services and the legal services 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. 184 Definitions In this Part: Australia includes the external Territories. Australian law means law of the Commonwealth or of a jurisdiction. commercial legal presence means an interest in a law practice practising foreign law. domestic registration authority means the Bar Council or the Law Society Council. foreign law means law of a foreign country. 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 foreign country, of registering persons to engage in legal practice in the foreign country. local registration certificate means a registration certificate given or issued under this Part. overseas-registered foreign lawyer means a natural person 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 doing work, or transacting business, in this jurisdiction concerning foreign law, being work or business of a kind that, if it concerned the law of this jurisdiction, would ordinarily be done or transacted by an Australian legal practitioner. Page 123

Clause 184 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers registered, when used in connection with a foreign country, means having all necessary licences, approvals, admissions, certificates or other forms of authorisation (including practising certificates) required by or under legislation for engaging in legal practice in that country. show cause event, in relation to a person, means: (a) his or her becoming an insolvent under administration, or (b) his or her conviction for a serious offence or a tax offence, whether or not: (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 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. Note. The terms Australian-registered foreign lawyer, foreign country, interstate-registered foreign lawyer and locally registered foreign lawyer are defined in section 4 (Definitions). 185 This Part does not apply to Australian legal practitioners (1) This Part does not apply to an Australian legal practitioner (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) 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 186 Requirement for registration (1) A person must not practise foreign law in this jurisdiction unless the person is: (a) an Australian-registered foreign lawyer, or Page 124

Legal Profession Bill 2004 Clause 186 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 (b) an Australian legal practitioner. Maximum penalty: 200 penalty units. (2) However, a person does not contravene subsection (1) if the person is an overseas-registered foreign lawyer: (a) who: (i) practises foreign law in this jurisdiction for one or more continuous periods that do not in aggregate exceed 12 months in any 3 year period, or is subject to a restriction imposed under the Migration (ii) Act 1958 of the Commonwealth that has the effect of limiting the period during which work may be done, or business transacted, in Australia by the person, and (b) who: (i) does not maintain an office for the purpose of practising foreign law in this jurisdiction, or (ii) does not have a commercial legal presence in this jurisdiction. 187 Entitlement of Australian-registered foreign lawyer to practise in this jurisdiction An Australian-registered foreign lawyer is, subject to this Act, entitled to practise foreign law in this jurisdiction. 188 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 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, (c) legal services (including appearances) in relation to proceedings before bodies other than courts, being proceedings in which the body concerned is not required to apply the rules of evidence and in which knowledge of the foreign law of a country referred to in paragraph (a) is essential, Page 125

Clause 188 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers (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 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 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. 189 Form of practice (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 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 (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 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 (e) as an employee of an Australian-registered foreign lawyer. (2) An affiliation referred to in subsection (1) (b)�(e) does not entitle the Australian-registered foreign lawyer to practise Australian law in this jurisdiction. Page 126

Legal Profession Bill 2004 Clause 190 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 190 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 were engaged in by an Australian legal practitioner in practising Australian law in this jurisdiction, be capable of being professional misconduct or unsatisfactory professional conduct. (2) Chapter 4 (Complaints and discipline) applies to a person who: (a) is an Australian-registered foreign lawyer, or (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 Chapter 4 applies as if the person were an Australian-registered foreign lawyer), and so applies as if references in Chapter 4 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 Chapter 4 for the purposes of this section. (4) Without limiting the matters that may be taken into account in determining 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 the standard of professional conduct of the legal profession in any foreign country where the person is registered, (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 Chapter 4 as applied by this section, the following orders may be made under that Chapter 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 corresponding law as a foreign lawyer be cancelled. Page 127

Clause 191 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers 191 Designation (1) An Australian-registered foreign lawyer may use only the following designations: (a) the lawyer's own name, (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 (whether as a partner, director, employee or otherwise), (d) if the lawyer is a principal of any law practice in Australia w h o s e p r i n c i p a ls i n c lu d e b o t h o n e o r m o r e Australian-registered foreign lawyers and one or more Australian legal practitioners--a description of the practice that includes reference to both Australian legal practitioners and Australian-registered foreign lawyers (for example, "Solicitors and locally registered foreign lawyers" or "Australian solicitors and US attorneys"). (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: (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 (b) the lawyer has provided the domestic registration authority 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 referred to 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 likely to lead to any confusion with the name of any established domestic law practice or foreign law practice in this jurisdiction. Page 128

Legal Profession Bill 2004 Clause 192 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 192 Letterhead and other identifying documents (1) 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 an Australian-registered foreign lawyer and is restricted to the practice of foreign law. (2) Subsection (1) is satisfied if the lawyer includes in the public document the words: (a) "registered foreign lawyer" or "registered foreign practitioner", and (b) "entitled to practise foreign law only". (3) 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, (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 191 (Designation). (4) In this section: public document includes any business letter, statement of account, invoice, business card, and promotional and advertising material. 193 Advertising (1) An Australian-registered foreign lawyer is required to comply with any advertising restrictions imposed by the domestic registration authority or by law on the practice of law 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 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: (i) false, misleading or deceptive, or (ii) suggesting that the Australian-registered foreign lawyer is an Australian legal practitioner, or (b) contravenes any requirements of the regulations. Page 129

Clause 194 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers 194 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 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 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. (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 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. 195 Trust money and trust accounts (1) The provisions of Part 3.1 (Trust money and trust accounts), and any other provisions of this Act, the regulations or any legal profession rule 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 Australian legal practitioners. (2) In this section, a reference to money is not limited to a reference to money in this jurisdiction. (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. Page 130

Legal Profession Bill 2004 Clause 196 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 196 Professional Indemnity insurance An Australian-registered foreign lawyer who practises foreign law in this jurisdiction must have professional indemnity insurance that conforms with the requirements (if any) prescribed by the regulations. 197 Fidelity cover The regulations may provide that provisions of Part 3.4 (Fidelity cover) apply to prescribed classes of Australian-registered foreign lawyers and so apply with any modifications specified in the regulations. Note. Section 398 applies the provisions of Part 3.2 to Australian-registered foreign lawyers. Division 3 Local registration of foreign lawyers generally 198 Local registration of foreign lawyers Overseas-registered foreign lawyers may be registered as foreign lawyers under this Act. 199 Duration of registration (1) Registration as a 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 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 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 domestic registration authority renews or refuses to renew the registration or the 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. Page 131

Clause 200 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers 200 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 Applications for grant or renewal of local registration 201 Application for grant or renewal of registration An overseas-registered foreign lawyer may apply to a domestic registration authority for the grant or renewal of registration as a foreign lawyer under this Act. 202 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 domestic registration authority. (2) Different fees may be set according to different factors determined by the domestic registration authority. (3) The fees are not to be greater than the maximum fees for a local practising certificate. (4) The domestic registration authority may also require the applicant to pay any reasonable costs and expenses incurred by the authority 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. (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 be relevant to or affect 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. Page 132

Legal Profession Bill 2004 Clause 202 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 (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 not be disclosed for the purposes of the current application. 203 Requirements regarding applications for grant or renewal of registration (1) An application for grant of registration must state the applicant's educational and professional qualifications. (2) An application for 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 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 his or her capacity as: (i) an overseas-registered foreign lawyer, or (ii) an Australian-registered foreign lawyer, or (iii) an Australian lawyer, and (d) state that the applicant is not a party in any pending criminal or civil proceedings in Australia or a foreign country that is likely to result in disciplinary action being taken against the applicant, 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 that the applicant is: (i) not otherwise personally prohibited from carrying on the practice of law in any place or bound by any undertaking not to carry out the practice of law in any place, and Page 133

Clause 203 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers (ii) not subject to any special conditions in carrying on any practice of law 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 foreign country as a restriction on the practice of law 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 exchange of information with, any foreign registration authorities the domestic registration authority considers appropriate regarding the applicant's activities in engaging in legal practice in the places concerned or otherwise regarding matters relevant to the application, and (i) provide the information or be accompanied by the other information or documents (or both) that is specified in the application form or in material accompanying the application form as provided by the domestic registration authority. (3) The application must (if the domestic registration authority 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 qualifications, and (b) verifies the applicant's registration by the authority to practise law in the foreign country concerned, and the date of registration, and (c) describes anything done by the applicant in engaging in 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. (4) The applicant must (if the domestic registration authority so requires) certify in the application that the accompanying instrument is the original or a complete and accurate copy of the original. (5) The domestic registration authority may require the applicant to verify the statements in the application by statutory declaration or by other proof acceptable to the authority. Page 134

Legal Profession Bill 2004 Clause 203 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 (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 domestic registration authority. Division 5 Grant or renewal of registration 204 Grant or renewal of registration (1) The domestic registration authority must consider an application that has been made for the grant or renewal of registration as a foreign lawyer and may: (a) grant or refuse to grant the registration, or (b) renew or refuse to renew the registration, and in granting or renewing the certificate may impose conditions as referred to in section 224 (Conditions imposed by domestic registration authority). (2) If the domestic registration authority grants or renews registration, the authority must, as soon as practicable, give the applicant a registration certificate or a notice of renewal. (3) If the domestic registration authority refuses to grant or renew registration, the domestic registration authority must, as soon as practicable, give the applicant an information notice. (4) A notice of renewal may be in the form of a new registration certificate or any other form the authority considers appropriate. 205 Requirement to grant or renew registration if criteria satisfied (1) The domestic registration authority must grant an application for registration as a foreign lawyer if the domestic registration authority: (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 the practice of law in one or more of the foreign countries, and (c) considers the applicant is not, as a result of criminal, civil or disciplinary proceedings in any of the foreign countries, subject to: Page 135

Clause 205 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers (i) any special conditions in carrying on the practice of law in any of the foreign countries, or (ii) any undertakings concerning the practice of law in any of the foreign countries, that would make it inappropriate to register the person, and (d) is satisfied the applicant demonstrates an intention: (i) to practise foreign law in this jurisdiction, and (ii) to establish an office or a commercial legal presence in this jurisdiction within a reasonable period after grant of registration for practice, unless the authority refuses the application under this Division. (2) The domestic registration authority must grant an application for renewal of a person's registration, unless the authority refuses renewal under this Division. (3) Residence or domicile in this jurisdiction is not to be a prerequisite for or a factor in entitlement to the grant or renewal of registration. 206 Refusal to grant or renew registration (1) The domestic registration authority may refuse to consider an application if it is not made in accordance with this Act or the regulations or the required fees and costs have not been paid. (2) The domestic registration authority may refuse to grant or renew registration if: (a) the application is not accompanied by, or does not contain, the information required by this Division or prescribed by the regulations, or (b) the applicant has contravened this Act or a corresponding law, or (c) the applicant has contravened an order of the Tribunal or a corresponding disciplinary body, including but not limited to an order to pay any fine or costs, or (d) the applicant has contravened an order of a regulatory authority of any jurisdiction to pay any fine or costs, or (e) the applicant has failed to comply with a requirement under this Act to pay a contribution to, or levy for, the Fidelity Fund, or (f) the applicant has contravened a requirement of or made under this Act about professional indemnity insurance, or Page 136

Legal Profession Bill 2004 Clause 206 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 (g) the applicant has failed to pay any expenses of receivership payable under this Act. (3) The domestic registration authority may refuse to grant or renew registration if an authority of another jurisdiction has under a corresponding law: (a) refused to grant or renew registration for the applicant, or (b) suspended or cancelled the applicant's registration. (4) The domestic registration authority may refuse to grant registration if the authority is satisfied that the applicant is not a fit and proper person to be registered after considering: (a) the nature of any offence for which the applicant has been convicted in Australia or a foreign country, whether before or after the commencement of this section, and (b) how long ago the offence was committed, and (c) the person's age when the offence was committed. (5) The domestic registration authority may refuse to renew registration if the authority 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 for which the applicant has 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 domestic registration authority, and (b) how long ago the offence was committed, and (c) the person's age when the offence was committed. (6) The domestic registration authority may refuse to grant or renew registration on any ground on which registration could be suspended or cancelled. (7) If the domestic registration authority refuses to grant or renew registration, the authority must, as soon as practicable, give the applicant an information notice. (8) Nothing in this section affects the operation of Division 7 (Special powers in relation to local registration--show cause events). Page 137

Clause 207 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers Division 6 Amendment, suspension or cancellation of local registration 207 Application of this Division This Division does not apply in relation to matters referred to in Division 7 (Special powers in relation to local registration--show cause events). 208 Grounds for amending, suspending or cancelling registration Each of the following is a ground for amending, suspending or cancelling a person's registration as a foreign lawyer: (a) the registration was obtained because of incorrect or misleading information, (b) the person fails to comply with a requirement of this Part, (c) the person fails to comply with a condition imposed on the person's registration, (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 his or her capacity as: (i) an overseas-registered foreign lawyer, or (ii) an Australian-registered foreign lawyer, or (iii) an Australian lawyer, (e) the person is a party in pending criminal or civil proceedings in Australia or a foreign country, or is convicted of an offence, that is likely to result in disciplinary action being taken against the applicant, (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 have professional indemnity insurance that complies with the requirements mentioned in section 196 (Professional indemnity insurance), (h) the person has not established an office to practise foreign law or a commercial legal presence in this jurisdiction within the period prescribed by the regulations after being granted registration, Page 138

Legal Profession Bill 2004 Clause 208 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 (i) the person, having ceased to have an office or commercial legal presence in this jurisdiction after being granted registration, has not had an office or a commercial legal presence in this jurisdiction for a period prescribed by the regulations, (j) another ground the domestic registration authority considers sufficient. 209 Amending, suspending or cancelling registration (1) If the domestic registration authority believes a ground exists to amend, suspend or cancel a person's registration by it as a foreign lawyer (the proposed action), the authority must give the person a notice (the show cause notice) that: (a) states the proposed action and: (i) if the proposed action is to amend the registration in any way--states the proposed amendment, and (ii) if the proposed action is to suspend the registration--states the proposed suspension period, and (b) states the grounds for proposing to take the proposed action, and (c) outlines the facts and circumstances that form the basis for the authority's belief, and (d) invites the person to make written representations to the authority, within a specified time not less than 7 days and not more than 28 days, as to why the proposed action should not be taken. (2) If, after considering all written representations made within the specified time, the domestic registration authority still believes grounds exist to take the action, the authority may: (a) if the show cause notice stated the proposed action was to amend the registration--amend the registration in the way specified or in another way the authority considers appropriate because of the representations, or (b) if the show cause notice stated the proposed action was to suspend the registration for a specified period: (i) suspend the registration for a period no longer than the specified period, or Page 139

Clause 209 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers (ii) amend the registration in a less onerous way the authority considers appropriate because of the representations, or (c) if the show cause notice stated the proposed action was to cancel the registration: (i) cancel the registration, or (ii) suspend the registration for a period. (3) The domestic registration authority may, at its discretion, consider representations made after the specified time. (4) The domestic registration authority must give the person notice of the authority's decision. (5) If the domestic registration authority decides to amend, suspend or cancel the registration, the authority must give the person an information notice about the decision. 210 Operation of amendment, suspension or cancellation of registration (1) Application of section This section applies if a decision is made to amend, suspend or cancel a person's registration under section 209 (Amending, suspending or cancelling registration). (2) Action to take effect on giving of notice or specified date Subject to subsections (3) and (4), the amendment, suspension or cancellation of the registration takes effect on the later of the following: (a) the day notice of the decision is given to the person, (b) the day specified in the notice. (3) Grant of stay If the registration is amended, suspended or cancelled because the person has been convicted of an offence: (a) the Supreme Court may, on the application of the person, order that the operation of the amendment, suspension or cancellation of the registration 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 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 stay is in force. Page 140

Legal Profession Bill 2004 Clause 210 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 (4) Quashing of conviction If the registration is amended, suspended or cancelled because the person has been convicted of an offence and the conviction is quashed: (a) the amendment or suspension ceases to have effect when the conviction is quashed, or (b) the cancellation ceases to have effect when the conviction is quashed and the registration is restored as if it had merely been suspended. 211 Other ways of amending or cancelling registration (1) The appropriate domestic registration authority may amend or cancel the registration of a locally registered foreign lawyer if the foreign lawyer requests the authority to do so. (2) The appropriate domestic registration authority may amend the registration of a locally registered foreign lawyer: (a) for a formal or clerical reason, or (b) in another way that does not adversely affect the lawyer's interests. (3) The amendment or cancellation of a registration under this section is effected by written notice given to the foreign lawyer. (4) Section 209 (Amending, suspending or cancelling registration) does not apply in a case to which this section applies. 212 Relationship of this Division with Chapter 4 Nothing in this Division prevents the domestic registration authority from making a complaint under Chapter 4 (Complaints and discipline) about a matter to which this Division relates. Division 7 Special powers in relation to local registration-- show cause events 213 Applicant for local registration--show cause event (1) This section applies if: (a) a person is applying for registration as a foreign lawyer under this Act, and Page 141

Clause 213 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers (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 overseas-registered foreign lawyer. (2) As part of the application, the person must provide to the domestic registration authority a written statement, in accordance with the regulations: (a) about the show cause event, and (b) explaining why, despite the show cause event, the applicant considers himself or herself to be a fit and proper person to be a locally registered foreign lawyer. (3) However, the person need not provide a statement under subsection (2) if the person has previously provided to the domestic registration authority a statement under this section, or a notice and statement under section 214 (Locally registered foreign lawyer--show cause event), 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. (4) A contravention of subsection (2) is capable of being unsatisfactory professional conduct or professional misconduct. 214 Locally registered foreign lawyer--show cause event (1) This section applies to a show cause event that happens in relation to a locally registered foreign lawyer. (2) The locally registered foreign lawyer must provide to the domestic registration authority 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 written statement 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. (3) A contravention of subsection (2) is capable of being unsatisfactory professional conduct or professional misconduct. (4) If a written statement is provided after the 28 days mentioned in subsection (2) (b), the domestic registration authority may accept the statement and take it into consideration. Page 142

Legal Profession Bill 2004 Clause 215 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 215 Refusal, amendment, suspension or cancellation of local registration--failure to show cause (1) The domestic registration authority may refuse to grant or renew, or may amend, suspend or cancel, local registration if the applicant for registration or the locally registered foreign lawyer: (a) is required by section 213 (Applicant for local registration--show cause event) or 214 (Locally registered foreign lawyer--show cause event) to provide a written statement relating to a matter and has failed to provide a written statement in accordance with that requirement, or (b) has provided a written statement in accordance with section 213 or 214 but the authority does not consider that the applicant or foreign lawyer has shown in the statement that, despite the show cause event concerned, 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 domestic registration authority under section 214 (4) is taken to have been provided in accordance with section 214. (3) The domestic registration authority 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. 216 Restriction on making further applications (1) If the domestic registration authority determines under this Division to cancel a person's registration, the authority may also determine that the person is not entitled to apply for registration under this Part for a specified period (being a period not exceeding 5 years). (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 determination. (3) If the domestic registration authority makes a determination under this section, the authority must, as soon as practicable, give the applicant an information notice. 217 Relationship of this Division with Chapters 4 and 6 (1) The domestic registration authority has and may exercise powers under Part 4.4 (Investigation of complaints) of Chapter 4, and Chapter 6 Page 143

Clause 217 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers (Provisions relating to investigations), in relation to a matter under this Division, as if the matter were the subject of a complaint under Chapter 4. (2) Accordingly, the provisions of Part 4.4 of Chapter 4, and Chapter 6, apply in relation to a matter under this Division, and so apply with any necessary modifications. (3) Nothing in this Division prevents the domestic registration authority from making a complaint under Chapter 4 about a matter to which this Division relates. Division 8 Further provisions relating to local registration 218 Immediate suspension of registration (1) This section applies, despite Divisions 6 and 7, if the domestic registration authority considers it necessary in the public interest to immediately suspend a person's registration as a foreign lawyer. (2) The domestic registration authority may, by written notice given to the person, immediately suspend the registration until the earlier of the following: (a) the time at which the authority informs the person of the authority's decision by notice under section 209, (b) the end of the period of 56 days after the notice is given to the person under this section. (3) The notice under this section must: (a) include an information notice about the suspension, and (b) state that the person may make written representations to the domestic registration authority about the suspension, and (c) state that the person may appeal against the suspension under section 238. (4) The person may make written representations to the domestic registration authority about the suspension, and the authority must consider the representations. (5) The domestic registration authority may revoke the suspension at any time, whether or not in response to any written representations made to it by the person. Page 144

Legal Profession Bill 2004 Clause 219 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 219 Surrender of local registration certificate and cancellation of registration (1) A person registered as a foreign lawyer under this Part may surrender the local registration certificate to the domestic registration authority. (2) The domestic registration authority may cancel the surrendered registration certificate. 220 Automatic suspension or cancellation of registration on grant of practising certificate or other disciplinary action (1) A person's registration as a foreign lawyer under this Part is taken to be: (a) cancelled if the person becomes an Australian legal practitioner, or (b) suspended or cancelled if a foreign registration authority suspends or cancels, or a disciplinary body of another jurisdiction corresponding to the Tribunal orders the suspension or cancellation of, the person's registration in a foreign country because of criminal, civil or disciplinary proceedings against the person, or (c) cancelled if the person's registration in a foreign country lapses. (2) A suspension under this section has effect while the person's registration in the foreign country is suspended. 221 Suspension or cancellation of registration not to affect disciplinary processes The suspension or cancellation of a person's registration as a foreign lawyer under this Part does not affect any disciplinary processes in respect of matters arising before the suspension or cancellation. 222 Return of local registration certificate on amendment, suspension or cancellation of registration (1) This section applies if a person's registration under this Part as a foreign lawyer is amended, suspended or cancelled. (2) The domestic registration authority may give the person a notice requiring the person to return the registration certificate to the authority in the way specified in the notice within a specified period of not less than 14 days. Page 145

Clause 222 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers (3) The person must comply with the notice, unless the person has a reasonable excuse. Maximum penalty: 20 penalty units. (4) If the registration is amended, the domestic registration authority must return the registration certificate to the person as soon as practicable after amending it. Division 9 Conditions on registration 223 Conditions generally (1) Registration as a foreign lawyer under this Part is subject to: (a) any conditions imposed by the domestic registration authority, and (b) any statutory conditions imposed by this or any other Act, and (c) any conditions imposed by or under the legal profession rules, and (d) any conditions imposed under Chapter 4 (Complaints and discipline) or under provisions of a corresponding law that correspond to Chapter 4. (2) If a condition is imposed, varied or revoked under this Act (other than a statutory condition) during the currency of the registration concerned, the registration certificate is to be amended by the domestic registration authority, or a new certificate is to be issued by the authority, to reflect on its face the imposition, variation or revocation. 224 Conditions imposed by domestic registration authority (1) The domestic registration authority may impose conditions on registration as a foreign lawyer: (a) when it is granted or renewed, or (b) during its currency. (2) A condition imposed under this section must be reasonable and relevant. Page 146

Legal Profession Bill 2004 Clause 224 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 (3) A condition imposed under this section may be about any of the 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. (4) The domestic registration authority must not impose a condition under subsection (3) (a) that is more onerous than a condition that would be imposed on a local practising certificate of a local legal practitioner in the same or similar circumstances. (5) The domestic registration authority may vary or revoke conditions imposed by it under this section. (6) If the domestic registration authority imposes, varies or revokes a condition during the currency of the registration concerned, the imposition, variation or revocation takes effect when the holder has been notified of it or at a later time specified by the authority. (7) If the domestic registration authority imposes a condition on registration when it is granted or renewed and the foreign lawyer within one month after the grant or renewal notifies the authority in writing that he or she does not agree to the condition, the authority must, as soon as practicable, give the holder an information notice. (8) This section has effect subject to section 209 (Amending, suspending or cancelling registration) in relation to the imposition of a condition on registration during its currency. 225 Imposition or variation of conditions pending criminal proceedings (1) If a person registered as a foreign lawyer under this Part has been charged with a relevant offence but the charge has not been determined, the appropriate domestic registration authority may apply to the Tribunal for an order under this section. (2) On an application under subsection (1), the Tribunal, if it considers it appropriate to do so having regard to the seriousness of the offence and to the public interest, may make either or both of the following orders: (a) an order varying the conditions on the practitioner's registration, or (b) an order imposing further conditions on the practitioner's registration. Page 147

Clause 225 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers (3) An order under this section has effect until the sooner of: (a) the end of the period specified by the Tribunal, or (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. (4) The Tribunal, on application by any party, may vary or revoke an order under this section at any time. (5) In this section: relevant offence means a serious offence or an offence that would have to be disclosed under the admission rules in relation to an application for admission to the legal profession under this Act. 226 Statutory condition regarding notification of offence (1) It is a statutory condition of registration as a foreign lawyer that the lawyer: (a) must notify the domestic registration authority that the lawyer has been: (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 (b) must do so within 7 days of the event and by a written notice. (2) The regulations, or the legal profession rules if the regulations do not do so, may specify the form of the notice to be used and the person to whom or the address to which it is to be sent or delivered. (3) The giving of a notice in accordance with Division 7 (Special powers in relation to local registration--show cause events) of a conviction for a serious offence satisfies the requirements of subsection (1) (a) (i) in relation to the conviction. 227 Conditions imposed by legal profession rules The legal profession rules may: (a) impose conditions on the registration of foreign lawyers or any class of foreign lawyers, or Page 148

Legal Profession Bill 2004 Clause 227 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 (b) authorise conditions to be imposed on the registration of foreign lawyers or on the registration of any class of foreign lawyers. 228 Compliance with conditions (1) A locally registered foreign lawyer must not contravene a condition to which the registration is subject. Maximum penalty: 100 penalty units. (2) A contravention of subsection (1) is capable of being unsatisfactory professional misconduct or professional misconduct. Division 10 Interstate-registered foreign lawyers 229 Extent of entitlement of interstate-registered foreign lawyer to practise in this jurisdiction (1) This Part does not authorise an interstate-registered foreign 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: (a) is subject to: (i) any conditions imposed by the domestic registration authority under section 230 (Additional conditions on practice of interstate-registered foreign lawyers), and (ii) any conditions imposed by or under the legal 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 interstate-registered foreign lawyer's right to practise foreign law in the 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. Page 149

Clause 229 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers (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 domestic registration authority, 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 in contravention of any condition referred to in this section. (5) A contravention of this section is capable of being unsatisfactory professional conduct or professional misconduct. 230 Additional conditions on practice of interstate-registered foreign lawyers (1) The domestic registration authority may, by written notice to an interstate-registered foreign lawyer practising foreign law in this jurisdiction, impose 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) Also, an interstate-registered foreign lawyer's right to practise foreign law in this jurisdiction is subject to any condition imposed by or under an applicable legal profession rule. (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 about the decision to impose a condition. Division 11 Miscellaneous 231 Consideration and investigation of applicants and locally registered foreign lawyers (1) To help it consider whether or not to grant, renew, suspend or cancel registration under this Part, or impose conditions on a person's registration under this Part, the domestic registration authority may, by notice to the applicant or locally registered foreign lawyer, require the applicant or locally registered foreign lawyer: (a) to give it specified documents or information, or (b) to co-operate with any inquiries that it considers appropriate. Page 150

Legal Profession Bill 2004 Clause 231 General requirements for engaging in legal practice Chapter 2 Legal practice by foreign lawyers Part 2.7 (2) 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 is a ground for making an adverse decision in relation to the action being considered by the domestic registration authority. 232 Register of locally registered foreign lawyers (1) The domestic registration authority must keep a register of the names of locally 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. (3) The register may be kept in the way the domestic registration authority decides. (4) The register must be available for inspection, without charge, at the domestic registration authority's office during normal business hours. 233 Publication of information about locally registered foreign lawyers The domestic registration authority may publish, in circumstances that it considers appropriate, the names of persons registered by it as foreign lawyers under this Part and any relevant particulars concerning those persons. 234 Supreme Court orders about conditions (1) The domestic registration authority may apply to the Supreme Court for an order or injunction that an Australian-registered foreign lawyer not contravene a condition imposed under this Part. (2) No undertaking as to damages or costs is required. (3) The Supreme Court may grant an order or injunction in such terms as it considers appropriate, and make any order it considers appropriate, on the application. (4) This section does not affect the generality of section 720 (Injunctions). 235 Exemption by domestic registration authority (1) The dom estic registration authority may exempt an Australian-registered foreign lawyer or class of Australian-registered foreign lawyers from compliance with a specified provision of this Act Page 151

Clause 235 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.7 Legal practice by foreign lawyers or the 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. (3) The domestic registration authority may revoke or vary any conditions imposed under this section or impose new conditions. 236 Membership of professional association An Australian-registered foreign lawyer is not required to join (but may, if eligible, join) any professional association. 237 Refund of fees (1) The regulations may provide for the refund of a portion of a fee paid in respect of registration as a foreign lawyer if it is suspended or cancelled during its currency. (2) Without limiting subsection (1), the regulations may specify: (a) the circumstances in which a refund is to be made, and (b) the amount of the refund or the manner in which the amount of the refund is to be determined. 238 Appeals or reviews (1) If the domestic registration authority: (a) refuses to grant or renew the registration of a person as a foreign lawyer, or (b) amends, suspends or cancels a person's registration as a foreign lawyer, or (c) takes any action under Divisions 3 and 4 of Part 3.1, the foreign lawyer may appeal to the Supreme Court against the refusal, amendment, suspension, cancellation or action. (2) The Supreme Court may make such an order in the matter as it thinks fit. 239 Joint rules Practice as a locally registered foreign lawyer is subject to the legal profession rules that apply to locally registered foreign lawyers. Page 152

Legal Profession Bill 2004 Clause 240 General requirements for engaging in legal practice Chapter 2 Community legal centres Part 2.8 Part 2.8 Community legal centres 240 Community legal centres (1) An organisation, whether incorporated or not, is a complying community legal centre for the purposes of this Act if: (a) it is held out or holds itself out as being a community legal centre (or a centre or establishment of a similar description), and (b) it provides legal services: (i) that are directed generally to persons or organisations that lack the financial means to obtain privately funded legal services or whose cases are expected to raise issues of public interest or are of general concern to disadvantaged groups in the community, and (ii) that are made available to persons or organisations that have a special need arising from their location or the nature of the legal matter to be addressed or have a significant physical or social disability, and (iii) that are not intended, or likely, to be provided at a profit to the community legal centre and the income (if any) from which cannot or will not be distributed to any member or employee of the centre otherwise than by way of reasonable remuneration under a contract of service or for services, and (iv) that are funded or expected to be funded to a significant level by donations or by grants from government, charitable or other organisations, and (c) at least one of the persons who is employed or otherwise used by it to provide those legal services is an Australian legal practitioner and is generally responsible for the provision of those legal services (whether or not the person has an unrestricted practising certificate). (2) A complying community legal centre does not contravene this Act merely because: (a) it employs, or otherwise uses the services of, Australian legal practitioners to provide legal services to members of the public, or Page 153

Clause 240 Legal Profession Bill 2004 Chapter 2 General requirements for engaging in legal practice Part 2.8 Community legal centres (b) it has a contractual relationship with a member of the public to whom those legal services are provided or receives any fee, gain or reward for providing those legal services, or (c) it shares with an Australian legal practitioner employed or otherwise used by it to provide those legal services receipts, revenue or other income arising from the business of the centre, being business of a kind usually conducted by an Australian legal practitioner, or (d) it adopts or uses the word "legal" or a name, description or title specified in regulations under section 16 (or some related term) in its name or any registered business name under which it provides legal services to members of the public. (3) This section has effect despite anything to the contrary in this Act. (4) The regulations may make provision for or with respect to: (a) the application (with or without specified modifications) of provisions of this Act to complying community legal centres, and (b) the legal services provided by complying community legal centres or officers or employees of, or persons whose services are used by, complying community legal centres. (5) A regulation may provide that a breach of the regulations is capable of being unsatisfactory professional conduct or professional misconduct by, in the case of a complying community legal centre, an Australian legal practitioner responsible for the breach. 241 Application of legal profession rules Legal profession rules, so far as they apply to Australian legal practitioners, also apply to Australian legal practitioners who are officers or employees of, or whose services are used by, a complying community legal centre, unless the rules otherwise provide. Page 154

Legal Profession Bill 2004 Clause 242 Conduct of legal practice Chapter 3 Trust money and trust accounts Part 3.1 Chapter 3 Conduct of legal practice Part 3.1 Trust money and trust accounts Division 1 Preliminary 242 Purposes The purposes of this Part are as follows: (a) to ensure trust money is held by law practices in a way that protects the interests of persons for or on whose behalf money is held, both inside and outside this jurisdiction, (b) to minimise compliance requirements for law practices that provide legal services within and outside this jurisdiction, (c) to ensure the Law Society Council can work effectively with corresponding authorities in other jurisdictions in relation to the regulation of trust money and trust accounts. 243 Definitions (1) In this Part: approved ADI means an ADI approved under section 280 (Approval of ADIs) by the Law Society Council. controlled money means trust money received by a law practice in respect of which there is a written direction to deposit the money in an account (other than a general trust account) over which the practice has or will have exclusive control. Note. See section 256 (6) (Controlled money), which prevents pooling of controlled money. controlled money account means an account maintained by a law practice with an approved ADI for the holding of controlled money received by the practice. external examination means an external examination under Division 4 of Part 3.1 of a law practice's trust records. external examiner means a person holding an appointment as an external examiner under Division 4 of Part 3.1. Page 155

Clause 243 Legal Profession Bill 2004 Chapter 3 Conduct of legal practice Part 3.1 Trust money and trust accounts general trust account means an account maintained by a law practice with an approved ADI for the holding of trust money received by the practice, other than controlled money or transit money. investigation means an investigation under Division 3 of Part 3.1 of the affairs of a law practice. investigator means a person holding an appointment as an investigator under Division 3 of Part 3.1. permanent form, in relation to a trust record, means printed or, on request, capable of being printed, in English on paper or other material. power includes authority. transit money means money received by a law practice subject to instructions to pay or deliver it to a third party, other than an associate of the practice. trust account means an account maintained by a law practice with an approved ADI to hold trust money. trust money means money received in the course of or in connection with the provision of legal services by a law practice for or on behalf of another person, and includes: (a) money received on account of legal costs in advance of providing the services, and (b) controlled money, and (c) transit money, and (d) money controlled by a law practice (or by an associate, alone or with another associate), pursuant to a power to deal with money for or on behalf of another person that is: (i) exercisable by the practice (or by an associate alone or with another associate), or (ii) exercisable jointly and severally with the person or a nominee or nominees of the person, but does not include money to which section 244 applies. trust records includes the following documents: (a) receipts, (b) cheque butts or cheque requisitions, (c) records of authorities to withdraw by electronic funds transfer, (d) duplicate deposit slips, Page 156

Legal Profession Bill 2004 Clause 243 Conduct of legal practice Chapter 3 Trust money and trust accounts Part 3.1 (e) trust account ADI statements, (f) trust account receipts and payments cash books, (g) trust ledger accounts, (h) records of monthly trial balances, (i) records of monthly reconciliations, (j) trust transfer journals, (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 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 or the regulations, (p) supporting information required to be kept under the regulations in relation to powers to deal with trust money. Trustees means the Trustees of the Public Purpose Fund. (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 trust records. 244 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 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 (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 or associate is an authorised representative at any relevant time), is not trust money for the purposes of this Act. Page 157

Clause 244 Legal Profession Bill 2004 Chapter 3 Conduct of legal practice Part 3.1 Trust money and trust accounts (2) Without limiting subsection (1), money that is entrusted to or held by a law practice for or in connection with: (a) a managed investment scheme, or (b) 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 the purposes of this Act, unless: (a) the money or property 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, and (b) the investment is or is to be made: (i) in the ordinary course of legal practice, and (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 direction of the client. (4) In this section: Australian financial services licence, authorised representative, financial service and financial services business have the same meanings as in Chapter 7 of the Corporations Act 2001 of the Commonwealth. 245 Determinations about status of money (1) This section applies to money received by a law practice if the Law Society Council considers that there is doubt or a dispute as to whether the money is trust money. (2) The Council may determine that the money is or is not trust money. (3) The Council 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 purposes of this Act. Page 158

Legal Profession Bill 2004 Clause 245 Conduct of legal practice Chapter 3 Trust money and trust accounts Part 3.1 (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 administrative review body made in relation to the money concerned. Note. Section 298 requires notice to be given to a client when money entrusted to a law practice is not trust money because of a determination under this section. 246 Application of Part to law practices and trust money (1) Trust money received in this jurisdiction This Part applies to the following law practices in respect of trust money received by them in this jurisdiction: (a) a law practice that has an office in this jurisdiction, whether or not the practice has an office in another jurisdiction, (b) a law practice that does not have an office in any jurisdiction at all. Note. It is intended that a law practice that receives trust money in this jurisdiction, that does not have an office in this jurisdiction, but that has an office in another jurisdiction, must deal with the money in accordance with the corresponding law of the other jurisdiction. (2) Trust money received in another jurisdiction This Part applies to the following law practices in respect of trust money received by them in another jurisdiction: (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, unless the money is dealt with in accordance with the corresponding law of another jurisdiction. (3) Exclusions 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 prescribed circumstances, or (c) prescribed kinds of trust money, or (d) prescribed kinds of trust money in prescribed circumstances. Page 159

Clause 246 Legal Profession Bill 2004 Chapter 3 Conduct of legal practice Part 3.1 Trust money and trust accounts (4) Money received for costs not trust money Money received in the course of or in connection with the provision of legal services by a law practice for or on behalf of another person for the payment of costs due to the practice (including costs that have been awarded by a court, tribunal or other body that has power to award costs), is not trust money for the purposes of this Act. (5) Meaning of having an office in a jurisdiction A reference in this section to having an office in a jurisdiction is a reference to having, or engaging in legal practice from, an office or business address in the jurisdiction. Note. Section 195 (Trust money and trust accounts) applies this Part to Australian-registered foreign lawyers. 247 Protocols for determining where trust money is received (1) The Law Society Council may enter into arrangements (referred to in this Part as protocols) with corresponding authorities about any or all of 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 corresponding law. (2) For the purposes of this Act, to the extent that the protocols are relevant, the jurisdiction where a law practice receives trust money is to be determined in accordance with the protocols. (3) The Law Society Council may enter into arrangements that amend, revoke or replace a protocol. (4) A protocol does not have effect in this jurisdiction unless it is embodied or identified in the regulations. 248 When money is received (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 as a result of its delivery to an associate, or Page 160

Legal Profession Bill 2004 Clause 248 Conduct of legal practice Chapter 3 Trust money and trust accounts Part 3.1 (c) the practice is given a power enabling the practice to deal with it whether alone or with an associate or jointly with another person, or (d) an associate is given a power enabling the associate to deal with it, on behalf of the practice, whether alone or with another associate or jointly with another 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 with the ADI, including, for example, an electronic funds transfer, credit card transaction or telegraphic transfer. 249 Discharge by legal practitioner associate of obligations of law practice (1) The following actions, if taken by a legal practitioner associate 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, (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, (e) engaging an external examiner to examine trust records, (f) the payment of an amount into an ADI account as referred to in section 283 (Statutory deposits), (g) 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 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. Page 161

Clause 250 Legal Profession Bill 2004 Chapter 3 Conduct of legal practice Part 3.1 Trust money and trust accounts 250 Liability of principals of law practice (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 obligation also discharges the corresponding obligation imposed on the principals. (2) Accordingly, 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. 251 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, principals and associates, and so applies with any necessary modifications. 252 Barristers receiving money on behalf of other persons (1) A barrister is not, in the course of practising as a barrister, to receive money on behalf of another person unless authorised under this section. (2) The regulations may authorise a barrister to do so. For that purpose, the regulations may apply to barristers any of the provisions of this Part or make other provision relating to the matter. Division 2 Trust accounts and trust money 253 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. Maximum penalty: 100 penalty units. (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. Maximum penalty: 100 penalty units. Page 162

Legal Profession Bill 2004 Clause 253 Conduct of legal practice Chapter 3 Trust money and trust accounts Part 3.1 (3) Subsection (1) does not apply to a law practice in respect of any period during which the practice receives only controlled money or transit money (or both), except where it is received in the form of cash. (4) Subject to any 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 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, either generally or in any prescribed circumstances. 254 Certain trust money to be deposited in general trust account (1) 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 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 to be dealt with under a power to receive or disburse money for or on behalf of another person exercisable jointly and severally with the other person or a nominee of the other person. Maximum penalty: 100 penalty units. (2) A law practice that has received money that is the subject of a written direction mentioned in subsection (1) (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. Maximum penalty: 100 penalty units. (3) The law practice must keep a written direction mentioned in subsection (1) (a) for the period prescribed by the regulations. Maximum penalty: 50 penalty units. Page 163

Clause 254 Legal Profession Bill 2004 Chapter 3 Conduct of legal practice Part 3.1 Trust money and trust accounts (4) Paragraphs (a) to (d) of subsection (1) do not apply to cash. (5) A person is an appropriate person for the purposes of this section if the person is legally entitled to give the law practice directions in respect of dealings with the trust money. 255 Holding, disbursing and accounting for trust money (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 direction given by the person. Maximum penalty: 50 penalty units. (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. Maximum penalty: 50 penalty units. 256 Controlled money (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. Maximum penalty: 50 penalty units. (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. Maximum penalty: 50 penalty units. (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 person on whose behalf the money was received. Maximum penalty: 50 penalty units. Page 164

Legal Profession Bill 2004 Clause 256 Conduct of legal practice Chapter 3 Trust money and trust accounts Part 3.1 (4) The law practice must maintain the controlled money account, and account for the controlled money, as required by the regulations. Maximum penalty: 50 penalty units. (5) The law practice must keep a written direction mentioned in this section for the period prescribed by the regulations. Maximum penalty: 50 penalty units. (6) The law practice must ensure that the controlled money account 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. Maximum penalty: 50 penalty units. (7) Subsection (3) applies subject to an order of a court of competent jurisdiction or as authorised by law. 257 Transit money (1) A law practice that has received transit 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. Maximum penalty: 50 penalty units. (2) The law practice must account for the money as req