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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Legal Profession Further Amendment
Bill 2006
Contents
Page
1 Name of Act 2
2 Com mencem ent 2
3 Amendment of Legal Profession Act 2004 No 112 2
4 Amendment of other legislation 2
5 Repeal of Act 2
Schedule 1 Amendment of Legal Profession Act 2004 3
Schedule 2 Amendment of Legal Profession Act 2004 for consistency
with model legislation 10
Schedule 3 Amendment of other legislation 60
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, , 2006
New South Wales
Legal Profession Further Amendment
Bill 2006
Act No , 2006
An Act to amend the Legal Profession Act 2004 with respect to the role and
procedures of the Legal Profession Admission Board, the grant of local practising
certificates, payments from and to the Public Purpose Fund, the abolition of the
Legal Profession Advisory Council, and other matters, and to align the Act more
closely with legal profession model legislation; to amend the Administrative
Decisions Tribunal Act 1997; 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 Further Amendment Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Legal Profession Further Amendment Act 2006.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Legal Profession Act 2004 No 112
The Legal Profession Act 2004 is amended as set out in Schedules 1
and 2.
4 Amendment of other legislation
The Act and Regulation listed in Schedule 3 are amended as set out in
that Schedule.
5 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by
this Act.
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Legal Profession Further Amendment Bill 2006
Amendment of Legal Profession Act 2004 Schedule 1
Schedule 1 Amendment of Legal Profession Act 2004
(Section 3)
[1] Section 4 Definitions
Omit the definition of Advisory Council from section 4 (1).
[2] Section 4 (1), definition of "pre-admission event"
Omit "(as defined in Division 7 of Part 2.4)".
[3] Section 26 Early consideration of suitability
Omit ", subject to section 27 (Referral of matters to Supreme Court)," from
section 26 (2).
[4] Section 27 Referral of matters to Supreme Court
Omit the section.
[5] Section 28 Appeals
Insert after section 28 (6):
(7) On an appeal under this section, the Supreme Court may make
an order as to costs as it thinks fit, other than:
(a) an order against the Admission Board in favour of an
applicant where the appeal was not successful, and
(b) an order against the Admission Board in favour of a
Council.
[6] Section 29 Binding effect of declaration or order
Omit "27 or".
[7] Section 30 Entitlement to be represented, heard and make
representations
Insert after section 30 (3):
(4) The Admission Board is entitled to be represented and heard at
any appeal under section 28.
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Legal Profession Further Amendment Bill 2006
Schedule 1 Amendment of Legal Profession Act 2004
[8] Sections 35 and 36
Omit the sections. Insert instead:
35 Consideration of applications for admission
(1) The Admission Board is to consider whether or not:
(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 any
applicable admission rules and the applicant has
complied with any applicable requirements of the
admission rules.
(2) The Admission Board may refuse to consider the application if
the application was not made in accordance with the admission
rules.
(3) The Admission Board may require an applicant to provide such
further information as it considers relevant to its consideration
of the application within such time as it specifies.
36 Compliance certificates
(1) The Admission Board is to complete its processing of an
application for admission by giving a compliance certificate
under this section for the applicant or by refusing to give such
a certificate.
(2) If, after considering an application for admission, the
Admission Board considers:
(a) the applicant:
(i) is eligible for admission, and
(ii) is a fit and proper person to be admitted, and
(b) the application is made in accordance with any
applicable admission rules and the applicant has
complied with any applicable requirements of the
admission rules, and
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Legal Profession Further Amendment Bill 2006
Amendment of Legal Profession Act 2004 Schedule 1
(c) there are no grounds for refusing to give a certificate for
the applicant,
the Board must, within 7 days of its decision or 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).
(3) The Admission Board must refuse to give a compliance
certificate for an applicant unless the Board is satisfied that the
applicant:
(a) is eligible for admission, and
(b) is a fit and proper person to be admitted.
(4) The Admission Board may refuse to give a compliance
certificate for an applicant if it is not satisfied that:
(a) the application is made in accordance with the
admission rules, or
(b) the applicant has complied with any applicable
requirements of the admission rules.
(5) If the Admission Board refuses to give a compliance certificate
for the applicant, the Board must, as soon as practicable after
its decision or 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.
(6) For the purposes of section 28 (1), the Admission Board is
taken to have refused to give a compliance certificate for an
applicant if a compliance certificate has been neither given nor
refused for the applicant within 6 months after:
(a) the application for admission was lodged, or
(b) if the Board has given the applicant a notice under
section 37 (1)--the applicant has complied with the
notice to the Board's satisfaction.
[9] Section 48 Grant or renewal of local practising certificate
Omit section 48 (13). Insert instead:
(13) If an application made for the grant of a local practising
certificate is not determined within:
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Schedule 1 Amendment of Legal Profession Act 2004
(a) 3 months after the application is made, unless
paragraph (b) applies, or
(b) the required period referred to in section 68
(Investigation and consideration of show cause event),
if that section applies in relation to the applicant,
the application is deemed to have been refused.
[10] Section 78 Immediate suspension of local practising certificate
Omit "(within the meaning of Division 7)" from section 78 (1) (b).
[11] Section 137 Notice of intention to start providing legal services
Omit "(a) or (b)" from section 137 (7). Insert instead "(a), (b) or (c)".
[12] Section 290 Payment of certain costs and expenses from Fund
Omit section 290 (1) (g). Insert instead:
(g) the costs of the Admission Board in connection with an
appeal under section 28,
[13] Section 290 (3A) and (3B)
Insert after section 290 (3):
(3A) If the amount of costs or expenses actually expended or
incurred by a beneficiary in or in respect of a relevant period:
(a) exceeds the amount approved for payment under
subsection (3) in respect of costs or expenses of that
kind--the Director-General is to approve payment from
the Fund of such additional amount as the
Director-General considers necessary and reasonable for
the purpose of meeting or contributing to any
underpayment, or
(b) is less than the amount approved for payment under
subsection (3) in respect of costs or expenses of that
kind--the Director-General is to require the beneficiary
to repay to the Fund such amount already paid to the
beneficiary as the Director-General specifies for the
purpose of recouping the whole or a part of any
overpayment.
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Amendment of Legal Profession Act 2004 Schedule 1
(3B) Instead of dealing with an underpayment or overpayment in
accordance with subsection (3A), the Director-General may
deal with all or part of the underpayment or overpayment by
way of adjustment of amounts approved under subsection (3)
for payment to the beneficiary in or in respect of a future
period.
[14] Section 290 (5)
Omit the subsection. Insert instead:
(5) Payments under this section may be made in advance of or by
way of reimbursement of the relevant cost or expense.
[15] Section 291 Submission of budgets to Director-General
Insert "or supplementary budget" after "budget" wherever occurring in
section 291 (1)(3).
[16] Section 291 (1A)
Insert after section 291 (1):
(1A) Without limiting subsection (1), a budget or supplementary
budget may relate wholly or partly to a past period if the
Director-General so directs or approves, whether or not any
cost or expense has already been incurred or met by the
beneficiary.
[17] Section 347 Restrictions on commencing proceedings without
reasonable prospects of success
Omit "is not to be accepted for lodgment" from section 347 (3).
Insert instead ", which has been lodged for filing, is not to be filed in a court
or court registry".
[18] Part 7.2 (sections 682685) Legal Profession Advisory Council
Omit the Part.
[19] Section 707 Commissioner to be notified of proposed rules
Omit "and the Advisory Council" from section 707 (1).
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Legal Profession Further Amendment Bill 2006
Schedule 1 Amendment of Legal Profession Act 2004
[20] Section 707 (3)
Omit "or the Advisory Council".
[21] Section 715 Review of rules by Advisory Council
Omit the section.
[22] Section 716 Rules may be declared inoperative
Omit "but only" from section 716 (1).
[23] Section 716 (1) (b)
Omit the paragraph. Insert instead:
(b) the Attorney General is of the opinion that the rule
imposes restrictive or anti-competitive practices that are
not in the public interest or the rule is not otherwise in
the public interest.
[24] Schedule 3 Legal Profession Advisory Council
Omit the Schedule.
[25] Schedule 9 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Legal Profession Further Amendment Act 2006
[26] Schedule 9, clause 10A Barristers of the Australian Capital Territory
Omit the clause.
[27] Schedule 9, clause 20 Legal Practitioners Advisory Council
Omit the clause.
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Legal Profession Further Amendment Bill 2006
Amendment of Legal Profession Act 2004 Schedule 1
[28] Schedule 9, Part 3
Insert at the end of the Schedule:
Part 3 Provisions consequent on enactment of Legal
Profession Further Amendment Act 2006
32 Application for grant or renewal of local practising certificate
(1) Applications for the grant or renewal of a local practising
certificate made in accordance with section 45 as in force
immediately before the commencement of section 45 as
substituted by the Legal Profession Further Amendment Act
2006 and pending immediately before that commencement are
taken to be made in accordance with this Act and are to be
dealt with accordingly.
(2) Section 48 (13) as substituted by the Legal Profession Further
Amendment Act 2006 applies to applications pending
immediately before the commencement of that substituted
subsection as well as to applications made after that
commencement.
33 Legal Profession Advisory Council
The Legal Profession Advisory Council is abolished with effect
on and from 7 December 2006.
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Schedule 2 Amendment of Legal Profession Act 2004 for consistency with model
legislation
Schedule 2 Amendment of Legal Profession Act 2004
for consistency with model legislation
(Section 3)
[1] Section 4 Definitions
Omit "by the Supreme Court under this Act as a lawyer or by a Supreme
Court under a corresponding law" from the definition of admission to the
legal profession in section 4 (1).
Insert instead "by a Supreme Court".
[2] Section 4 (1), definition of "admission to the legal profession"
Insert "under this Act or a corresponding law," before "but".
[3] Section 4 (1), definition of "client"
Omit the definition. Insert instead:
client includes a person to whom or for whom legal services
are provided.
[4] Section 4 (1)
Insert in alphabetical order:
costs assessor has the meaning given in section 302 (1).
external territory means a Territory of the Commonwealth (not
being the Australian Capital Territory, the Jervis Bay Territory
or the Northern Territory of Australia) for the government of
which as a Territory provision is made by a Commonwealth
Act.
[5] Section 4 (1), definition of "practical legal training"
Omit "legal training under the supervision of an Australian lawyer" from
paragraph (b).
Insert instead "supervised legal training".
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Amendment of Legal Profession Act 2004 for consistency with model Schedule 2
legislation
[6] Section 4 (1), definition of "unrestricted practising certificate"
Omit the definition. Insert instead:
unrestricted practising certificate means an Australian
practising certificate that is not subject to any condition under
this Act or a corresponding law requiring the holder to engage
in supervised legal practice or restricting the holder to practise
as or in the manner of a barrister.
[7] Section 7 Terms relating to associates and principals of law practices
Insert ", or consultant to," after "employee of" in section 7 (1) (a) (vi).
[8] Section 7 (1) (d1)
Insert after section 7 (1) (d):
(d1) a person (not being an Australian legal practitioner) who
is a partner in a multi-disciplinary partnership, or
[9] Section 9 Suitability matters
Omit section 9 (1) (m). Insert instead:
(m) whether the person is currently unable to satisfactorily
carry out the inherent requirements of practice as an
Australian legal practitioner.
[10] Section 17 Associates who are disqualified or convicted persons
Insert after section 17 (8):
(9) In this section:
lay associate of a law practice has the same meaning as in
section 7 (Terms relating to associates and principals of law
practices), and includes a consultant to the law practice
(however described) who:
(a) is not an Australian legal practitioner, and
(b) provides legal or related services to the law practice,
other than services of a kind prescribed by the
regulations.
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Schedule 2 Amendment of Legal Profession Act 2004 for consistency with model
legislation
[11] Section 33 Local lawyer is officer of Supreme Court
Insert at the end of the section:
(2) A person ceases to be an officer of the Supreme Court under
subsection (1) if the person's name is removed from the local
roll.
[12] Section 38 Admission rules
Omit section 38 (2) (n). Insert instead:
(n) fees and costs payable under the rules and the refund or
remission of fees,
[13] Section 42 Suitability to hold local practising certificate
Omit section 42 (2) (e) (ii). Insert instead:
(ii) whether the person has contravened a
requirement imposed by a Council about
professional indemnity insurance, or
[14] Section 45
Omit the section. Insert instead:
45 Application for grant of local practising certificate
(1) Applications generally
An Australian lawyer may apply to the appropriate Council for
the grant or renewal of a local practising certificate if eligible
to do so under this section.
(2) General eligibility to make application
An Australian lawyer is eligible to apply for the grant or
renewal of a local practising certificate if the lawyer complies
with any regulations and legal profession rules relating to
eligibility for the practising certificate and if:
(a) in the case of a lawyer who is not an Australian legal
practitioner at the time of making the application:
(i) the lawyer reasonably expects to be engaged in
legal practice solely or principally in this
jurisdiction during the currency of the certificate
or renewal applied for, or
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Amendment of Legal Profession Act 2004 for consistency with model Schedule 2
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(ii) if subparagraph (i) does not apply to the lawyer
or it is not reasonably practicable to determine
whether it applies to the lawyer--the lawyer's
place of residence in Australia is this jurisdiction
or the lawyer does not have a place of residence
in Australia, or
(b) in the case of a lawyer who is an Australian legal
practitioner at the time of making the application:
(i) the jurisdiction in which the lawyer engages in
legal practice solely or principally is this
jurisdiction, or
(ii) the lawyer holds a current local practising
certificate and engages in legal practice in
another jurisdiction under an arrangement that is
of a temporary nature, or
(iii) the lawyer reasonably expects to be engaged in
legal practice solely or principally in this
jurisdiction during the currency of the certificate
or renewal applied for, or
(iv) if subparagraphs (i), (ii) and (iii) do not apply to
the lawyer or it is not reasonably practicable to
determine whether subparagraph (i), (ii) or (iii)
applies to the lawyer--the lawyer's place of
residence in Australia is this jurisdiction or the
lawyer does not have a place of residence in
Australia.
(3) Determination of place of legal practice in Australia
For the purposes of subsection (2) (b), the jurisdiction in which
an Australian lawyer engages in legal practice solely or
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) Circumstances in which application cannot be made (more than
one Australian practising certificate)
An Australian lawyer is not eligible to apply for the grant or
renewal of a local practising certificate in respect of a financial
year if the lawyer would also be the holder of another
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Schedule 2 Amendment of Legal Profession Act 2004 for consistency with model
legislation
Australian practising certificate for that year, but this subsection
does not limit the factors determining ineligibility to apply for
the grant or renewal of a local practising certificate.
(5) Application must not be made by ineligible lawyer
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.
(6) Circumstances in which application must be made
An Australian legal practitioner who:
(a) engages in legal practice solely or principally in this
jurisdiction during a financial year, and
(b) reasonably expects to engage in legal practice solely or
principally in this jurisdiction in the following financial
year,
must apply for the grant or renewal of a local practising
certificate in respect of the following financial year.
(7) Subsection (6) does not apply to an interstate legal practitioner
who applied for the grant or renewal of an interstate practising
certificate on the basis that the practitioner reasonably expected
to engage in legal practice solely or principally in this
jurisdiction under an arrangement that is of a temporary nature.
(8) The exemption provided by subsection (7) ceases to operate at
the end of the period prescribed by the regulations for the
purposes of this subsection.
(9) Application for local practising certificate by lawyer who
practises in Australia and overseas
A reference in this section to engaging in legal practice
principally in this or any other jurisdiction applies only to legal
practice in Australia. Accordingly, an Australian lawyer who is
engaged or expects to be engaged in legal practice principally
in a foreign country is nevertheless eligible to apply for the
grant or renewal of a local practising certificate if the lawyer
otherwise meets the requirements of this section.
Note. The purpose of this subsection is to deal with a case where a
person practises both in Australia and overseas. In that case, overseas
practice is to be disregarded (even if it forms the principal portion of the
person's overall practice), so that eligibility is determined by reference to
the person's practice in Australia.
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Amendment of Legal Profession Act 2004 for consistency with model Schedule 2
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(10) Application for local practising certificate by lawyer of prescribed
class
An Australian lawyer is also eligible to apply for the grant or
renewal of a local practising certificate if the lawyer is of a
class or description prescribed by the regulations. The
regulations may provide that a Council has a discretion as to
whether or not to grant or renew a local practising certificate to
a person in his or her capacity as an Australian lawyer of that
class or description.
Note. The purpose of this subsection is to enable regulations to be made
conferring eligibility on an Australian lawyer who is not otherwise eligible
to apply for a local practising certificate. Regulations could be made
conferring eligibility, for example, on an Australian lawyer who practises
exclusively overseas, or an Australian lawyer who holds a public office of
a specified kind.
[15] Section 48 Grant or renewal of local practising certificate
Omit "and in granting or renewing the certificate may impose conditions as
referred to in section 50 (Conditions imposed by Council)" from
section 48 (1).
[16] Section 48 (1A)
Insert after section 48 (1):
(1A) The appropriate Council may, when granting or renewing a
certificate, impose conditions as referred to in section 50
(Conditions imposed by Council).
[17] Section 50 Conditions imposed by Council
Omit section 50 (3) (a) (ii). Insert instead:
(ii) specific legal education or training, or
[18] Section 50 (5)
Omit "an academic or training course".
Insert instead "specific legal education or training".
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legislation
[19] Section 50 (5) (a)
Omit the paragraph. Insert instead:
(a) the Council is satisfied, having regard to:
(i) the nature or currency of the holder's academic
studies, legal training or legal experience, or
(ii) the holder's conduct,
that it is reasonable to require the specific legal
education or training to be undertaken, or
[20] Section 53 Statutory condition regarding practice as a solicitor
Omit section 53 (3). Insert instead:
(3) A Council may exempt a person or class of persons from the
requirement for supervised legal practice under subsection (1)
or may reduce a period referred to in that subsection for a
person or class of persons, if satisfied that the person or persons
do not need to be supervised or need to be supervised only for
a shorter period, having regard to:
(a) the length and nature of any legal practice previously
engaged in by the person or persons, and
(b) the length and nature of any legal practice engaged in by
the supervisors (if any) who previously supervised the
legal practice engaged in by the person or persons.
[21] Section 64 Relationship of this Division with Chapter 4
Omit "Council from making a complaint".
Insert instead "complaint from being made".
[22] Section 98
Omit the section. Insert instead:
98 Requirement for professional indemnity insurance
(1) An interstate legal practitioner must not engage in legal practice
in this jurisdiction, or represent or advertise that the practitioner
is entitled to engage in legal practice in this jurisdiction, unless
the practitioner:
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(a) is covered by professional indemnity insurance that:
(i) covers legal practice in this jurisdiction, and
(ii) has been approved under or complies with the
requirements of the corresponding law of the
practitioner's home jurisdiction, and
(iii) is for at least $1.5 million (inclusive of defence
costs),
unless (without affecting subparagraph (i) or (ii)) the
practitioner engages in legal practice solely as or in the
manner of a barrister, or
(b) is employed by a corporation or by a prescribed body,
other than an incorporated legal practice, and the only
legal services provided by the practitioner in this
jurisdiction are in-house legal services.
Maximum penalty: 100 penalty units.
(2) Subsection (1) does not apply to an interstate legal practitioner
who:
(a) is a government lawyer as defined in section 114, and
(b) is engaged in legal practice in this jurisdiction only to
the extent that the practitioner is engaging in
government work, and
(c) has an indemnity or immunity (whether provided by law
or governmental policy) that is applicable in respect of
that legal practice.
[23] Section 101 Additional conditions on practice of interstate legal
practitioners
Insert after section 101 (4):
(5) An interstate legal practitioner must not contravene a condition
imposed under this section.
[24] Section 102 Special provisions about interstate legal practitioner
engaging in unsupervised legal practice as solicitor in this jurisdiction
Insert "interstate legal" before "practitioner" where firstly and secondly
occurring in section 102 (a) and (b).
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[25] Section 102 (2)
Insert at the end of section 102:
(2) Subsection (1):
(a) does not apply if the interstate legal practitioner is
exempt from the requirement for supervised legal
practice in the practitioner's home jurisdiction, or
(b) applies only to the extent of a shorter period if the
required period of supervised legal practice has been
reduced for the interstate legal practitioner in the
practitioner's home jurisdiction.
[26] Section 105 Consideration and investigation of applicants or holders
Insert "amend," after "renew," in section 105 (1).
[27] Section 105 (1)
Omit "or impose conditions on a local practising certificate,".
[28] Section 114 Government lawyers of other jurisdictions
Omit "employee" wherever occurring in section 114 (1), (2) and (3).
Insert instead "lawyer".
[29] Section 114 (4)
Omit the definition of government employee. Insert instead:
government lawyer means an Australian lawyer, or a person
eligible for admission to the legal profession, employed in or by
a government agency of another jurisdiction.
[30] Section 120 Official notification to other jurisdictions of removals from
local roll
Omit "local lawyer's" from section 120 (1). Insert instead "person's".
[31] Section 120 (3)
Omit " lawyer's" wherever occurring. Insert instead "person's".
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[32] Section 125
Omit the section. Insert instead:
125 Provisions relating to requirement to notify
A notice to be given under this Division by a person must:
(a) state his or her name and address, and
(b) disclose full details of the action to which the notice
relates, including the date on which that action was
taken, and
(c) be accompanied by a copy of any official notification
provided to him or her in connection with that action.
[33] Section 127 Peremptory cancellation of local practising certificate
following removal of name from interstate roll
Insert "but he or she remains an Australian lawyer" after "roll" in section
127 (1) (a).
[34] Section 128 Show cause procedure for removal of lawyer's name from
local roll following foreign regulatory action
Omit ", at the time of that removal," from section 128 (1) (b).
[35] Section 129 Show cause procedure for cancellation of local practising
certificate following foreign regulatory action
Omit ", at the time the action was taken," from section 129 (1) (b).
[36] Section 129 (2)
Omit "name should not be removed".
Insert instead "practising certificate should not be cancelled".
[37] Section 129 (4A)
Insert after section 129 (4):
(4A) The Council must, as soon as practicable, give the practitioner
an information notice about its decision to cancel the practising
certificate.
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[38] Section 140 Incorporated legal practice must have legal practitioner
director
Omit "liability" from section 140 (6). Insert instead "liabilities".
[39] Section 141 Obligations of legal practitioner director relating to
misconduct
Insert after section 141 (1):
(1A) A legal practitioner director is not guilty of unsatisfactory
professional conduct or professional misconduct under
subsection (1) if the director establishes that he or she took all
reasonable steps to ensure that:
(a) Australian legal practitioners employed by the
incorporated legal practice did not engage in conduct or
misconduct referred to in subsection (1) (a), or
(b) directors (not being Australian legal practitioners) of the
incorporated legal practice did not engage in conduct
referred to in subsection (1) (b), or
(c) unsuitable directors (not being Australian legal
practitioners) of the incorporated legal practice were not
appointed or holding office as referred to in subsection
(1) (c),
as the case requires.
[40] Section 149 Requirements relating to advertising
Omit "of the relevant class of Australian legal practitioners" from section
149 (2).
Insert instead "in that branch of the legal profession or in that style of legal
practice".
[41] Section 184 Definitions
Omit the definition of commercial legal presence.
[42] Section 184, definition of "local registration certificate"
Omit "or issued".
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[43] Section 186 Requirement for registration
Omit section 186 (2) (a) (i). Insert instead:
(i) practises foreign law in this jurisdiction for one
or more periods that do not in aggregate exceed
90 days in any period of 12 months, or
[44] Section 186 (2) (b) (ii)
Omit the subparagraph. Insert instead:
(ii) does not become a partner or director of a law
practice.
[45] Section 196
Omit the section. Insert instead:
196 Professional indemnity insurance
(1) An Australian-registered foreign lawyer must, at all times while
practising foreign law in this jurisdiction, comply with one of
the following:
(a) the foreign lawyer must have professional indemnity
insurance that conforms with the requirements for
professional indemnity insurance applicable for
Australian legal practitioners in any jurisdiction,
(b) if the foreign lawyer does not have professional
indem nity insurance that complies with
paragraph (a)--the foreign lawyer:
(i) must have professional indemnity insurance that
covers the practice of foreign law in this
jurisdiction and that complies with the relevant
requirements of a foreign law or foreign
registration authority, and
(ii) if the insurance is for less than $1.5 million
(inclusive of defence costs)--must provide a
disclosure statement to each client disclosing the
level of cover,
(c) if the foreign lawyer does not have professional
indemnity insurance that complies with paragraph (a) or
(b)--the foreign lawyer must provide a disclosure
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statement to each client stating that the lawyer does not
have complying professional indemnity insurance.
(2) A disclosure statement must be made in writing before, or as
soon as practicable after, the foreign lawyer is retained in the
matter.
(3) A disclosure statement provided to a person before the foreign
lawyer is retained in a matter is taken to be provided to the
person as a client for the purposes of this section.
(4) A disclosure statement is not valid unless it is given in
accordance with, and otherwise complies with, any applicable
requirements of the regulations.
[46] Section 202 Manner of application
Omit section 202 (6) (a). Insert instead:
(a) matters that may affect the domestic registration
authority's consideration of the application for the grant
or renewal of registration, and
[47] Section 203 Requirements regarding applications for grant or renewal
of registration
Omit section 203 (2) (d). Insert instead:
(d) state whether the applicant 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 applicant's age when the offence was
committed, and
[48] Section 203 (2) (h1)
Insert after section 203 (2) (h):
(h1) specify which of the paragraphs of section 196 (1) the
applicant proposes to rely on and be accompanied by
supporting proof of the relevant matters, and
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[49] Section 204 Grant or renewal of registration
Insert after section 204 (1):
(1A) The domestic registration authority may, when granting or
renewing registration, impose conditions as referred to in
section 224 (Conditions imposed by domestic registration
authority).
[50] Section 204 (2A)
Insert after section 204 (2):
(2A) If the domestic registration authority:
(a) refuses to grant or renew registration, or
(b) imposes a condition of the registration and the applicant
does not agree to the condition,
the authority must, as soon as practicable, give the applicant an
information notice.
[51] Section 205 Requirement to grant or renew registration if criteria
satisfied
Insert "engaging in" after "regulating" in section 205 (1) (b).
[52] Section 205 (1) (c) (ii)
Insert "engaging in" after "concerning".
[53] Section 205 (1) (d)
Omit the paragraph. Insert instead:
(d) is satisfied the applicant demonstrates an intention to
commence practising foreign law in this jurisdiction
within a reasonable period if registration were to be
granted,
[54] Section 206 Refusal to grant or renew registration
Omit "or an office at which the applicant engages in legal practice in a
foreign country" from section 206 (2) (h).
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[55] Section 208 Grounds for amending, suspending or cancelling
registration
Omit section 208 (1) (e). Insert instead:
(e) the person has been convicted of an offence in Australia
or a foreign country,
[56] Section 208 (1) (g)
Omit section 208 (1) (g)(i). Insert instead:
(g) the person does not meet the requirements of
section 196 (Professional indemnity insurance),
[57] Section 209 Amending, suspending or cancelling registration
Omit section 209 (2) (b) and (c). Insert instead:
(b) if the notice stated the action proposed was to suspend
the registration for a specified period--suspend the
registration for a period no longer than the specified
period, or
(c) if the notice stated the action proposed was to cancel the
registration:
(i) cancel the registration, or
(ii) suspend the registration for a period, or
(iii) amend the registration in a less onerous way the
authority considers appropriate because of the
representations.
[58] Section 209 (6)
Insert after section 209 (5):
(6) In this section, amend registration means amend the
registration under section 224 during its currency, otherwise
than at the request of the foreign lawyer concerned.
[59] Section 217 Relationship of this Division with Chapters 4 and 6
Omit "the domestic registration authority from making a complaint" from
section 217 (3).
Insert instead "a complaint from being made".
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[60] Section 231 Consideration and investigation of applicants and locally
registered foreign lawyers
Insert "amend," after "renew," in section 231 (1).
[61] Section 231 (1)
Omit "or impose conditions on a person's registration under this Part,".
[62] Section 243 Definitions
Omit the definition of trust money from section 243 (1). Insert instead:
trust money means money entrusted to a law practice in the
course of or in connection with the provision of legal services
by the practice, and includes:
(a) money received by the practice on account of legal costs
in advance of providing the services, and
(b) controlled money received by the practice, and
(c) transit money received by the practice, and
(d) money received by the practice, that is the subject of a
power, exercisable by the practice or an associate of the
practice, to deal with the money for or on behalf of
another person.
[63] Section 243 (3)
Insert after section 243 (2):
(3) A reference in this Part to a power given to a law practice or an
associate of the practice to deal with money for or on behalf of
another person is a reference to a power given to the practice or
associate that is exercisable by:
(a) the practice alone, or
(b) an associate of the practice alone (otherwise than in a
private and personal capacity), or
(c) the practice or an associate of the practice jointly or
severally, or jointly and severally, with either or both of
the following:
(i) one or more associates of the practice,
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(ii) the person, or one or more nominees of the
person, for whom or on whose behalf the money
may or is to be dealt with under the power.
[64] Section 248 When money is received
Insert "of the practice" after "associate" in section 248 (1) (b).
[65] Section 248 (1) (c)
Omit section 248 (1) (c) and (d). Insert instead:
(c) the practice, or an associate of the practice (otherwise
than in a private and personal capacity), is given a
power to deal with the money for or on behalf of
another person.
[66] Section 250 Liability of principals of law practice
Omit "Accordingly, references" from section 250 (2).
Insert instead "References".
[67] Section 252 Barristers not to receive trust money
Omit "money on behalf of another person". Insert instead "trust money".
[68] Section 253 Maintenance of general trust account
Insert "or holds" after "receives" in section 253 (3).
[69] Section 254 Certain trust money to be deposited in general trust
account
Omit section 254 (1) (d). Insert instead:
(d) the money is the subject of a power given to the practice
or an associate of the practice to deal with the money
for or on behalf of another person.
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[70] Section 255A
Insert after section 255:
255A Manner of withdrawal of trust money from general trust account
(1) A law practice must not withdraw trust money from a general
trust account otherwise than by cheque or electronic funds
transfer.
Maximum penalty: 50 penalty units.
(2) Without limiting subsection (1), the following are specifically
prohibited:
(a) cash withdrawals,
(b) ATM withdrawals or transfers,
(c) telephone banking withdrawals or transfers.
(3) The regulations may make provision for or with respect to
withdrawals by cheque or electronic funds transfer.
(4) This section has effect despite anything to the contrary in any
directions given to the law practice concerned, even if the
directions are given by a person who is otherwise legally
entitled to give the law practice directions in respect of dealings
with the trust money.
[71] Section 256A
Insert after section 256:
256A Manner of withdrawal of controlled money from controlled
money account
(1) A law practice must not withdraw controlled money from a
controlled money account otherwise than by cheque or
electronic funds transfer.
Maximum penalty: 50 penalty units.
(2) Without limiting subsection (1), the following are specifically
prohibited:
(a) cash withdrawals,
(b) ATM withdrawals or transfers,
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(c) telephone banking withdrawals or transfers.
(3) The regulations may make provision for or with respect to
withdrawals by cheque or electronic funds transfer.
(4) This section has effect despite anything to the contrary in any
directions given to the law practice concerned, even if the
directions are given by a person who is otherwise legally
entitled to give the law practice directions in respect of dealings
with the controlled money.
[72] Section 258 Trust money subject to specific powers
Omit section 258 (1). Insert instead:
(1) Subject to section 258A, a law practice must ensure that trust
money that is the subject of a power given to the practice or an
associate of the practice is dealt with by the practice or
associate only in accordance with the power relating to the
money.
Maximum penalty: 50 penalty units.
[73] Section 258 (2)
Omit "as required". Insert instead "in the way prescribed".
[74] Section 258A
Omit the section. Insert instead:
258A Trust money received in the form of cash
(1) General trust money
A law practice must deposit general trust money received in the
form of cash in a general trust account of the practice.
Maximum penalty: 50 penalty units.
(2) If the law practice has a written direction by an appropriate
person to deal with general trust money received in the form of
cash otherwise than by first depositing it in a general trust
account of the practice:
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(a) the money must nevertheless be deposited in a general
trust account of the practice in accordance with
subsection (1), and
(b) the money is thereafter to be dealt with in accordance
with any applicable terms of the direction so far as those
terms are not inconsistent with paragraph (a).
(3) Controlled money
Controlled money received in the form of cash must be
deposited in a controlled money account in accordance with
section 256.
(4) Transit money
A law practice must deposit transit money received in the form
of cash in a general trust account of the practice before the
money is otherwise dealt with in accordance with the
instructions relating to the money.
Maximum penalty: 50 penalty units.
(5) Trust money subject of a power
A law practice must deposit trust money that is received in the
form of cash and is the subject of a power in a general trust
account (or a controlled money account in the case of
controlled money) of the practice before the money is otherwise
dealt with in accordance with the power.
Maximum penalty: 50 penalty units.
(6) Paramount operation of this section
This section has effect despite anything to the contrary in any
relevant direction, instruction or power.
(7) Definitions
In this section:
appropriate person, in relation to trust money, means a person
who is legally entitled to give the law practice concerned
directions in respect of dealings with the money.
general trust money means trust money, other than:
(a) controlled money, and
(b) transit money, and
(c) money that is the subject of a power.
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[75] Section 260 Intermixing money
Omit "allowed by the regulations".
Insert instead "permitted by subsection (2)".
[76] Section 260 (2)
Insert at the end of section 260:
(2) A law practice is permitted to mix trust money with other
money to the extent only that is authorised by the Law Society
Council and in accordance with any conditions imposed by the
Law Society Council in relation to the authorisation.
[77] Section 261 Dealing with trust money: legal costs and unclaimed money
Omit "practitioner" from section 261 (1) (a). Insert instead "practice".
[78] Section 261 (1) (b)
Omit the paragraph. Insert instead:
(b) withdraw money for payment to the practice's account
for legal costs owing to the practice if the relevant
procedures or requirements prescribed by this Act and
the regulations are complied with,
[79] Section 271 When costs of investigation are debt
Omit section 271 (1) (a). Insert instead:
(a) an investigator states in his or her report of an
investigation that there is evidence that a breach of this
Act or the regulations has been committed or evidence
that a default (within the meaning of Part 3.4) has
occurred in relation to the law practice whose affairs are
under investigation, and
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[80] Section 274 Trust records to be externally examined
Omit section 274 (2) and (3). Insert instead:
(2) The Law Society Council may appoint an external examiner to
examine a law practice's trust records if the Council is not
satisfied:
(a) that the practice has had its trust records externally
examined as required by this section, or
(b) that an external examination of the practice's trust
records has been carried out in accordance with the
regulations.
(3) Without affecting the generality of section 300, this section has
effect subject to any exemptions provided by or given under the
regulations from the requirement to have trust records
examined as otherwise required by this section.
[81] Section 282 Records, reports and information
Omit "rule of law" from section 282 (5). Insert instead "legislation".
[82] Section 296
Omit the section. Insert instead:
296 Application of Part to incorporated legal practices and
multi-disciplinary partnerships
(1) The obligations imposed on law practices by this Part, and any
other provisions of this Act, the regulations or any legal
profession rule relating to trust money and trust accounts, apply
to an incorporated legal practice or multi-disciplinary
partnership only in connection with legal services provided by
the practice or partnership.
(2) The regulations may provide that specified provisions of this
Part, and any other provisions of this Act, the regulations or any
legal profession rule relating to trust money and trust accounts,
do not apply to incorpo rated legal practices or
multi-disciplinary partnerships or both or apply to them with
specified modifications.
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[83] Sections 298 and 299
Omit the sections. Insert instead:
298 Disclosure to clients--money not received or held as trust money
(1) In this section:
non-trust money means money that is not trust money for the
purposes of this Act because of section 244 (Money involved
in financial services or investments) or because of a
determination under section 245 (Determinations about status
of money).
(2) When money entrusted to a law practice is or becomes
non-trust money, the practice must, in accordance with this
section and the regulations, notify the person who entrusted the
money to the practice that:
(a) the money is not treated as trust money for the purposes
of this Act and is not subject to any supervision,
investigation or audit requirements of this Act, and
(b) a claim against the Fidelity Fund under this Act cannot
be made in respect of the money.
Maximum penalty: 20 penalty units.
(3) The notification must be given, in writing, to the person at the
time:
(a) the money was entrusted to the law practice, if the
money was non-trust money when it was entrusted to
the practice, or
(b) the money becomes non-trust money, if the money was
trust money when it was entrusted to the practice.
(4) The regulations may make provision for or with respect to the
form and manner in which notification required by this section
is to be given and the contents of the notification.
299 Disclosure of accounts used to hold money entrusted to law
practice or legal practitioner associate
(1) A law practice must, in accordance with the regulations, notify
the appropriate Council of the details required by the
regulations of each account maintained at an ADI in which the
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practice or any legal practitioner associate of the practice holds
money entrusted to the practice or legal practitioner associate.
Maximum penalty: 50 penalty units.
(2) Subsection (1) applies whether or not the money is trust money
and whether or not section 244 (Money involved in financial
services or investments) or 245 (Determinations about status of
money) applies to the money.
[84] Section 301 Purposes
Omit "and prospective clients" from section 301 (a).
[85] Section 301 (d)
Omit "review" from section 301 (d). Insert instead "assessment".
[86] Section 302 Definitions
Insert in alphabetical order in section 302 (1):
public authority means an authority or body (whether a body
corporate or not) established or incorporated for a public
purpose by a law of a jurisdiction or of the Commonwealth,
and includes a body corporate incorporated under a law of a
jurisdiction or of the Commonwealth in which a jurisdiction or
the Commonwealth has a controlling interest.
sophisticated client means a client to whom, because of section
312 (1) (c) or (d), disclosure under section 309 or 310 (1) is not
or was not required.
third party payer--see section 302A (Terms relating to third
party payers).
uplift fee means additional legal costs (excluding
disbursements) payable under a costs agreement on the
successful outcome of the matter to which the agreement
relates.
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[87] Section 302A
Insert after section 302:
302A Terms relating to third party payers
(1) For the purposes of this Part:
(a) a person is a third party payer, in relation to a client of
a law practice, if the person is not the client and:
(i) is under a legal obligation to pay all or any part
of the legal costs for legal services provided to
the client, or
(ii) being under that obligation, has already paid all
or a part of those legal costs, and
(b) a third party payer is an associated third party payer if
the legal obligation referred to in paragraph (a) is owed
to the law practice, whether or not it is also owed to the
client or another person, and
(c) a third party payer is a non-associated third party payer
if the legal obligation referred to in paragraph (a) is
owed to the client or another person but not the law
practice.
(2) The legal obligation referred to in subsection (1) can arise by or
under contract or legislation or otherwise.
(3) A law practice that retains another law practice on behalf of a
client is not on that account a third party payer in relation to
that client.
[88] Section 304 Part also applies by agreement or at client's election
Omit "signs" from section 304 (1) (c) (i).
Insert instead "accepts, in writing or by other conduct, a written offer to
enter into".
[89] Section 304 (2) (a)
Omit "sign a written".
Insert instead "accept, in writing or by other conduct, a written offer that
complies with subsection (2A) to enter into an".
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[90] Section 304 (2A)
Insert after section 304 (2):
(2A) An offer referred to in subsection (2) (a) must clearly state:
(a) that it is an offer to enter into an agreement that this Part
is to apply to the matter, and
(b) that the client may accept it in writing or by other
conduct, and
(c) the type of conduct that will constitute acceptance.
[91] Section 305 Displacement of Part
Omit "signs under the corresponding law of the other jurisdiction a written"
from section 305 (2) (b) (i).
Insert instead "enters under the corresponding law of the other jurisdiction
into an".
[92] Section 306 How and when does a client first instruct a law practice?
Insert "or on behalf of" after "from".
[93] Section 308 What happens when different laws apply to a matter?
Omit "sign" from section 308 (4) (a). Insert instead "enter into".
[94] Section 308 (4) (b)
Omit "signs". Insert instead "enters into".
[95] Section 308 (4A) and (4B)
Insert after section 308 (4):
(4A) A written agreement referred to in subsection (4) need not be
signed by the client but in that case the client's acceptance must
be communicated to the law practice by facsimile transmission,
e-mail or some other written form.
(4B) If a corresponding law applied to a matter for a period and this
Part applies to the matter afterwards, this Part does not require
disclosure of any matters to the extent that they have already
been disclosed under a corresponding law.
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[96] Section 309 Disclosure of costs to clients
Omit "or prospective client" and "or prospective client's" wherever
occurring.
[97] Section 309 (1) (b) (iii)
Omit "within 30 days".
[98] Section 309 (1) (c)
Omit "it is not reasonably practicable to estimate the total legal costs".
Insert instead "that is not reasonably practicable".
[99] Section 309 (1) (e)
Insert ", whether that rate is a specific rate of interest or is a benchmark rate
of interest (as referred to in subsection (1A))" after "costs".
[100] Section 309 (1) (l)
Omit "sign under a corresponding law a written".
Insert instead "accept under a corresponding law a written offer to enter into
an".
[101] Section 309 (3)
Insert after section 309 (2):
(3) A law practice may disclose any or all of the details referred to
in subsection (1) (b) (i)(iii), (g), (i), (j) and (l) in or to the
effect of a form prescribed by the regulations for the purposes
of this subsection, and if it does so at the time the other details
are disclosed as required by this section the practice is taken to
have complied with this section in relation to the details so
disclosed.
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[102] Section 311 How and when must disclosure be made to a client?
Omit section 311 (2). Insert instead:
(2) Disclosure under section 310 (1) must be made in writing
before, or as soon as practicable after, the other law practice is
retained.
(3) Disclosure made to a person before the law practice is retained
in a matter is taken to be disclosure to the person as a client for
the purposes of sections 309 and 310.
[103] Section 312 Exceptions to requirement for disclosure
Insert "(exclusive of GST)" after "$750" wherever occurring in section 312
(1) and (2).
[104] Section 312 (1)
Omit "or prospective client" wherever occurring.
[105] Section 312 (1) (c) (ii)
Omit "respectively". Insert instead "each".
[106] Section 312 (1) (c) (v)
Omit "20 or more". Insert instead "more than 20".
[107] Section 312 (1) (c) (vii)
Omit the subparagraph. Insert instead:
(vii) an unincorporated group of participants in a joint
venture, if one or more members of the group
are persons to whom disclosure of costs is not
required and one or more members of the group
are not such persons and if all of the members of
the group who are not such persons have
indicated that they waive their right to
disclosure, or
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[108] Section 314
Omit the section. Insert instead:
314 Additional disclosure--uplift fees
(1) If a costs agreement involves an uplift fee, the law practice
must, before entering into the agreement, disclose to the client
in writing:
(a) the law practice's legal costs, and
(b) the uplift fee (or the basis of calculation of the uplift
fee), and
(c) the reasons why the uplift fee is warranted.
(2) A law practice is not required to make a disclosure under
subsection (1) to a sophisticated client.
[109] Section 315 Form of disclosure
Insert "to a client" after "disclosures" in section 315 (1).
[110] Section 315
Omit "or prospective client" wherever occurring.
[111] Section 316
Omit the section. Insert instead:
316 Ongoing obligation to disclose
A law practice must, in writing, disclose to a client any
substantial change to anything included in a disclosure already
made under this Division as soon as is reasonably practicable
after the law practice becomes aware of that change.
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[112] Section 317
Omit the section. Insert instead:
317 Effect of failure to disclose
(1) Postponement of payment of legal costs until assessed
If a law practice does not disclose to a client or an associated
third party payer anything required by this Division to be
disclosed, the client or associated third party payer (as the case
may be) need not pay the legal costs unless they have been
assessed under Division 11.
Note. Under section 369, the costs of an assessment in these
circumstances are generally payable by the law practice.
(2) Bar on recovering proceedings until legal costs assessed
A law practice that does not disclose to a client or an associated
third party payer anything required by this Division to be
disclosed may not maintain proceedings against the client or
associated third party payer (as the case may be) for the
recovery of legal costs unless the costs have been assessed
under Division 11.
(3) Setting costs agreement aside
If a law practice does not disclose to a client or an associated
third party payer anything required by this Division to be
disclosed and the client or associated third party payer has
entered into a costs agreement with the law practice, the client
or associated third party payer may also apply under section
328 for the costs agreement to be set aside.
(4) Reduction of legal costs on assessment
If a law practice does not disclose to a client or an associated
third party payer anything required by this Division to be
disclosed, then, on an assessment of the relevant legal costs, the
amount of the costs may be reduced by an amount considered
by the costs assessor to be proportionate to the seriousness of
the failure to disclose.
(5) Effect on legal costs where law practice retains another law
practice that fails to disclose
If a law practice retains another law practice on behalf of a
client and the first law practice fails to disclose something to
the client solely because the retained law practice failed to
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disclose relevant information to the first law practice as
required by section 310 (2), then subsections (1)(4):
(a) do not apply to the legal costs owing to the first law
practice on account of legal services provided by it, to
the extent that the non-disclosure by the first law
practice was caused by the failure of the retained law
practice to disclose the relevant information, and
(b) do apply to the legal costs owing to the retained law
practice.
(6) Circumstances where associated third party payer involved
In a matter involving both a client and an associated third party
payer where disclosure has been made to one of them but not
the other:
(a) subsection (1) does not affect the liability of the one to
whom disclosure was made to pay the legal costs, and
(b) subsection (2) does not prevent proceedings being
maintained against the one to whom the disclosure was
made for the recovery of those legal costs.
(7) Non-disclosure capable of constituting unsatisfactory
professional conduct or professional misconduct
Failure by a law practice to comply with this Division is
capable of being unsatisfactory professional conduct or
professional misconduct on the part of any Australian legal
practitioner or Australian-registered foreign lawyer involved in
the failure.
[113] Section 318A
Insert after section 318:
318A Disclosure to associated third party payers
(1) If a law practice is required to make a disclosure to a client of
the practice under this Division, the practice must, in
accordance with subsections (2) and (3), also make the same
disclosure to any associated third party payer for the client, but
only to the extent that the details or matters disclosed are
relevant to the associated third party payer and relate to costs
that are payable by the associated third party payer in respect of
legal services provided to the client.
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(2) A disclosure under subsection (1) must be made in writing:
(a) at the time the disclosure to the client is required under
this Division, or
(b) if the law practice only afterwards becomes aware of the
legal obligation of the associated third party payer to
pay legal costs of the client--as soon as practicable after
the practice became aware of the obligation.
(3) Section 315 (Form of disclosure) applies to a disclosure to an
associated third party payer under subsection (1) in the same
way as it applies to a client.
(4) An associated third party payer for a client of a law practice has
the same right as the client to obtain reports under section 318
(Progress reports) of legal costs incurred by the client, but only
to the extent that the costs are payable by the associated third
party payer in respect of legal services provided to the client,
and the law practice must comply with that section accordingly.
[114] Section 321 Interest on unpaid legal costs
Omit section 321 (1)(4). Insert instead:
(1) A law practice may charge interest on unpaid legal costs if the
costs are unpaid 30 days or more after the practice has given a
bill for the costs in accordance with this Part.
(2) A law practice may also charge interest on unpaid legal costs
in accordance with a costs agreement.
(3) A law practice must not charge interest under subsection (1) or
(2) on unpaid legal costs unless the bill for those costs contains
a statement that interest is payable and of the rate of interest.
(4) A law practice may not charge interest under this section or
under a costs agreement at a rate that exceeds the rate
prescribed by the regulations.
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[115] Section 322 Making costs agreements
Insert at the end of section 322 (1) (c):
, or
(d) between a law practice and an associated third party
payer.
[116] Section 322 (4) (a)
Insert "into" after "enter".
[117] Section 322 (5)
Omit "A costs agreement".
Insert instead "Except as provided by section 395A, a costs agreement".
[118] Section 322 (6)
Insert after section 322 (5):
(6) A reference in section 328 and in any prescribed provisions of
this Part to a client is, in relation to a costs agreement that is
entered into between a law practice and an associated third
party payer as referred to in subsection (1) (d) and to which a
client of the law practice is not a party, a reference to the
associated third party payer.
[119] Section 323 Conditional costs agreements
Omit ", and a costs agreement containing a provision of that kind is referred
to in this Act as a conditional costs agreement" from section 323 (1).
[120] Section 323 (4B)
Insert after section 323 (4A):
(4B) Subsection (3) (c) (iii), (d) and (e) do not apply to a conditional
costs agreement made with a sophisticated client.
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[121] Section 323 (5)
Omit the subsection. Insert instead:
(5) If a client terminates an agreement within the period referred to
in subsection (3) (e), the law practice:
(a) may recover only those legal costs in respect of legal
services performed for the client before that termination
that were performed on the instructions of the client and
with the client's knowledge that the legal services would
be performed during that period, and
(b) without affecting the generality of paragraph (a), may
not recover the uplift fee (if any).
[122] Section 324
Omit the section. Insert instead:
324 Conditional costs agreements involving uplift fees
(1) A law practice must not enter into a conditional costs
agreement in relation to a claim for damages that provides for
the payment of an uplift fee on the successful outcome of the
claim to which the fee relates.
(2) Except as provided by subsection (1), a conditional costs
agreement may provide for the payment of an uplift fee.
(3) The basis of calculation of the uplift fee must be separately
identified in the agreement.
(4) The agreement must contain an estimate of the uplift fee or, if
that is not reasonably practicable:
(a) a range of estimates of the uplift fee, and
(b) an explanation of the major variables that will affect the
calculation of the uplift fee.
(5) If a conditional costs agreement relates to a litigious matter, the
uplift fee must not exceed 25% of the legal costs (excluding
disbursements) otherwise payable.
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(6) A law practice must not enter into a costs agreement in
contravention of this section.
Maximum penalty: 100 penalty units.
[123] Section 325 Contingency fees are prohibited
Omit section 325 (1) (a).
[124] Section 328 Setting aside costs agreements or provisions of costs
agreements
Insert "and without limiting the matters to which the costs assessor can have
regard," after "reasonable," in section 328 (2).
[125] Section 328 (2) (d)(g)
Omit section 328 (2) (d). Insert instead:
(d) the circumstances and the conduct of the parties before
and when the agreement was made,
(e) the circumstances and the conduct of the parties in the
matters after the agreement was made,
(f) whether and how the agreement addresses the effect on
costs of matters and changed circumstances that might
foreseeably arise and affect the extent and nature of
legal services provided under the agreement,
(g) whether and how billing under the agreement addresses
changed circumstances affecting the extent and nature
of legal services provided under the agreement.
[126] Section 328 (12)
Insert after section 328 (11):
(12) In this section:
client means a person to whom or for whom legal services are
or have been provided.
Note. See also section 322 (6), which extends the application of this
section to associated third party payers.
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[127] Section 332 Bills
Insert after section 332 (6):
(6A) Despite anything in subsections (2)(6), a bill may be given to
a client electronically if the client is a sophisticated client and
requested the bill to be given electronically.
[128] Section 332A
Omit the section. Insert instead:
332A Request for itemised bill
(1) If a bill is given by a law practice in the form of a lump sum
bill, any person who is entitled to apply for an assessment of
the legal costs to which the bill relates may request the law
practice to give the person an itemised bill.
(2) The law practice must comply with the request within 21 days
after the date on which the request is made.
(3) If the person making the request is liable to pay only a part of
the legal costs to which the bill relates, the request for an
itemised bill may only be made in relation to those costs that
the person is liable to pay.
(4) Subject to subsection (5), a law practice must not commence
legal proceedings to recover legal costs from a person who has
been given a lump sum bill until at least 30 days after the date
on which the person is given the bill.
(5) If the person makes a request for an itemised bill in accordance
with this section, the law practice must not commence legal
proceedings to recover the legal costs from the person until at
least 30 days after complying with the request.
(6) A law practice is not entitled to charge a person for the
preparation of an itemised bill requested under this section.
(7) Section 332 (2), (5) and (6) apply to the giving of an itemised
bill under this section.
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[129] Section 333 Notification of client's rights
Insert after section 333 (2):
(3) Subsection (1) does not apply in relation to a sophisticated
client.
(4) A law practice may provide the written statement referred to in
subsection (1) in or to the effect of a form prescribed by the
regulations for the purposes of this subsection, and if it does so
the practice is taken to have complied with this section in
relation to the statement.
[130] Section 349A
Insert before section 350:
349A Definition
In this Division:
client means a person to whom or for whom legal services are
or have been provided.
[131] Section 350 Application by client or third party payers for costs
assessment
Omit section 350 (1)(4). Insert instead:
(1) A client may apply to the Manager, Costs Assessment for an
assessment of the whole or any part of legal costs.
(2) A third party payer may apply to a costs assessor for an
assessment of the whole or any part of legal costs payable by
the third party payer.
(3) An application for a costs assessment may be made even if the
legal costs have been wholly or partly paid.
(3A) If any legal costs have been paid without a bill, the client or
third party payer may nevertheless apply for a costs assessment.
(4) An application by a client or third party payer for a costs
assessment under this section must be made within 12 months
after:
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(a) the bill was given or the request for payment was made
to the client or third party payer, or
(b) the costs were paid if neither a bill was given nor a
request was made.
[132] Section 350 (5)
Omit the subsection. Insert instead:
(5) However, an application that is made out of time, otherwise
than by:
(a) a sophisticated client, or
(b) a third party payer who would be a sophisticated client
if the third party payer were a client of the law practice
concerned,
may be dealt with by the costs assessor if the Supreme Court,
on application by the costs assessor or the client or third party
payer who made the application for assessment, determines,
after having regard to the delay and the reasons for the delay,
that it is just and fair for the application for assessment to be
dealt with after the 12-month period.
[133] Section 350 (6)(9)
Omit section 350 (6). Insert instead:
(6) If the third party payer is a non-associated third party payer, the
law practice must provide the third party payer, on the written
request of the third party payer, with sufficient information to
allow the third party payer to consider making, and if thought
fit to make, an application for a costs assessment under this
section.
(7) If there is an associated third party payer for a client of a law
practice:
(a) nothing in this section prevents:
(i) the client from making one or more applications
for assessment under this section in relation to
costs for which the client is solely liable, and
(ii) the associated third party payer from making one
or more applications for assessment under this
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section in relation to costs for which the
associated third party payer is solely liable,
and those applications may be made by them at the
same time or at different times and may be dealt with
jointly or separately, and
(b) the client or the associated third party payer:
(i) may participate in the costs assessment process
where the other of them makes an application
for assessment under this section in relation to
costs for which they are both liable, and
(ii) is taken to be a party to the assessment and is
bound by the assessment, and
(c) the law practice:
(i) must participate in the costs assessment process
where an application is made under this section
by the associated third party payer in the same
way as the practice must participate in the
process where an application is made under this
section by a client, and
(ii) is taken to be a party to the assessment and is
bound by the assessment.
(8) If there is a non-associated third party payer for a client of a
law practice:
(a) nothing in this section prevents:
(i) the client from making one or more applications
for assessment under this section in relation to
costs for which the client is liable, and
(ii) the non-associated third party payer from
making one or more applications for assessment
under this section in relation to costs for which
the non-associated third party payer is liable,
and those applications may be made by them at the
same time or at different times but must be dealt with
separately, and
(b) the client:
(i) may participate in the costs assessment process
where the non-associated third party payer
makes an application under this section in
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relation to the legal costs for which the
non-associated third party payer is liable, and
(ii) is taken to be a party to the assessment and is
bound by the assessment, and
(c) the law practice:
(i) must participate in the costs assessment process,
and
(ii) is taken to be a party to the assessment, and
(d) despite any other provision of this Division, the
assessment of the costs payable by the non-associated
third party payer does not affect the amount of legal
costs payable by the client to the law practice.
(9) In this section:
client includes the following:
(a) an executor or administrator of a client,
(b) a trustee of the estate of a client.
third party payer includes the following:
(a) an executor or administrator of a third party payer,
(b) a trustee of the estate of a third party payer.
[134] Section 351 Application for costs assessment by law practice retaining
another law practice
Omit section 351 (2) and (3). Insert instead:
(2) If any legal costs have been paid without a bill, the law practice
may nevertheless apply for a costs assessment.
(2A) An application for a costs assessment may be made even if the
legal costs have been wholly or partly paid.
(3) An application under this section must be made within 60 days
after:
(a) the bill was given or the request for payment was made,
or
(b) the costs were paid if neither a bill was given nor a
request was made.
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[135] Section 352 Application for costs assessment by law practice giving bill
Omit section 352 (2) and (3). Insert instead:
(2) If any legal costs have been paid without a bill, the law practice
may nevertheless apply for a costs assessment.
(3) An application for a costs assessment may be made even if the
legal costs have been wholly or partly paid.
(4) An application may not be made under this section unless at
least 30 days have passed since:
(a) the bill was given or the request for payment was made,
or
(b) the costs were paid if neither a bill was given nor a
request was made, or
(c) an application has been made under this Division by
another person in respect of the legal costs.
[136] Section 356 Persons to be notified of application
Insert at the end of the section:
(2) A person who is notified by the Manager, Costs Assessment
under subsection (1):
(a) is entitled to participate in the costs assessment process,
and
(b) is taken to be a party to the assessment, and
(c) if the costs assessor so determines, is bound by the
assessment.
[137] Section 361
Omit the section. Insert instead:
361 Assessment of costs by reference to costs agreement
(1) A costs assessor must assess the amount of any disputed costs
that are subject to a costs agreement by reference to the
provisions of the costs agreement if:
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(a) a relevant provision of the costs agreement specifies the
amount, or a rate or other means for calculating the
amount, of the costs, and
(b) the agreement has not been set aside under section 328
(Setting aside costs agreements),
unless the assessor is satisfied:
(c) that the agreement does not comply in a material respect
with any applicable disclosure requirements of
Division 3 (Costs disclosure), or
(d) that Division 5 (Costs agreements) precludes the law
practice concerned from recovering the amount of the
costs, or
(e) that the parties otherwise agree.
(2) The costs assessor is not required to initiate an examination of
the matters referred to in subsection (1) (c) and (d).
[138] Section 363 Criteria for costs assessment
Insert ", except to the extent that section 361 or 362 applies to any disputed
costs" after "work" in section 363 (1) (c).
[139] Section 363 (2) (b)
Omit "or the failure to make any disclosure required under that Division,".
[140] Section 363 (2) (d)
Omit the paragraph.
[141] Section 369 Costs of costs assessment
Insert at the end of section 369 (1) (b):
, and
(c) costs that on assessment are reduced by 15% or more.
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[142] Section 369 (3)
Insert at the end of section 369 (3) (b):
, or
(c) for a costs assessment in relation to costs that on
assessment are reduced by 15% or more--by the law
practice that provided the legal services concerned or, if
the costs assessor so determines, by such persons, and
to such extent, as may be determined by the costs
assessor.
[143] Section 395A
Insert after section 395:
395A Contracting out of Division by sophisticated clients
A sophisticated client of a law practice, or an associated third
party payer who would be a sophisticated client if the third
party payer were a client of the law practice concerned, may
contract out of this Division.
[144] Section 419 Definitions
Omit "that arises from" from the definition of concerted interstate default.
Insert instead "arising from or constituted by".
[145] Section 419, definition of "default"
Omit "or an associate of the practice" wherever occurring.
[146] Section 419, definition of "default"
Omit "or an associate" where secondly occurring in paragraphs (a) and (b).
[147] Section 419, definition of "default"
Omit "is constituted by or arises from" from paragraph (b).
Insert instead "arises from or is constituted by".
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[148] Section 433 Meaning of "relevant jurisdiction"
Insert "or constitutes" after "rise to" in section 433 (1).
[149] Section 433 (1), note
Insert "or constituted by" after "from".
[150] Section 434 Defaults to which this Part applies
Insert "or constituted by" after "from" in section 434 (1).
[151] Section 434 (3)
Insert "or constituting" after "giving rise to".
[152] Section 440 Claims not affected by certain matters
Omit "from which the default arose".
Insert instead "giving rise to or constituting the default".
[153] Section 458 Claims by law practices or associates about defaults
Insert "or constituted by" after "arising from" in section 458 (1).
[154] Section 459 Claims by law practices or associates about notional
defaults
Insert "or constituted by" after "arising from" in section 459 (1).
[155] Section 461 Defaults involving interstate elements where committed by
one associate only
Omit "that arises from" from section 461 (1).
Insert instead "arising from or constituted by".
[156] Section 475 Application of Part to sole practitioners whose practising
certificates lapse
Insert "and the lawyer was a sole practitioner immediately before the
certificate lapsed" after "lapsed" in section 475 (1).
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[157] Section 475 (1) (b)
Insert "or renewed" after "granted".
[158] Section 475 (3)
Omit the subsection. Insert instead:
(3) Subsection (2) ceases to apply:
(a) if a manager or receiver is appointed under this Act for
the law practice, or
(b) when the period of 6 months after the practising
certificate actually lapsed expires, or
(c) if the lawyer's application for the grant or renewal of an
Australian practising certificate is refused under this Act
or a corresponding law,
whichever first occurs.
[159] Section 498 Conduct capable of being unsatisfactory professional
conduct or professional misconduct
Insert after section 498 (1) (f):
(g) conduct of an Australian legal practitioner in failing to
comply with an order of the Disciplinary Tribunal made
under this Act or an order of a corresponding
disciplinary body made under a corresponding law
(including but not limited to a failure to pay wholly or
partly a fine imposed under this Act or a corresponding
law),
(h) conduct of an Australian legal practitioner in failing to
comply with a compensation order made under this Act
or a corresponding law.
[160] Section 508 Practitioner to be notified of complaint
Insert after section 508 (4):
(5) Nothing in this section requires the Commissioner or a Council
to give written notice under this section to the practitioner until
the Commissioner or Council has had time to consider the
complaint, seek further information about the complaint from
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the complainant or otherwise undertake preliminary inquiries
into the complaint, and properly prepare the notice.
[161] Section 574 Enforcement of compensation orders
Omit section 574 (2).
[162] Section 596 Failure to comply with orders
Omit section 596 (1).
[163] Section 611 Definitions
Insert "or an associate of the practice" after "practice" in paragraph (d) of
the definition of regulated property in section 611 (1).
[164] Section 618 Notice of appointment
Insert "of trust money" after "supervisor" in section 618 (2) (a).
[165] Section 619 Effect of service of notice of appointment
Omit "for" wherever occurring in section 619 (1) and (2).
Insert instead "of".
[166] Section 619 (3)
Insert "of trust money" after "supervisor".
[167] Section 620 Role of supervisor of trust money
Omit "for" from section 620 (1). Insert instead "of trust money of".
[168] Section 620 (2) (b)
Insert "either or both of the following" after "supervisor" where firstly
occurring.
[169] Section 620 (2) (b) (i)
Insert "files and" before "documents".
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[170] Section 625 Effect of service of notice
Insert "trust" after "another" in section 625 (5).
[171] Section 626 Role of manager
Insert "either or both of the following" after "manager" where firstly
occurring in section 626 (2) (b).
[172] Section 632 Effect of service of notice
Insert "trust" after "another" in section 632 (5).
[173] Section 638 Power of receiver to require documents or information
Omit section 638 (1). Insert instead:
(1) A receiver for a law practice may require:
(a) a person who is an associate or former associate of the
practice, or
(b) a person who has or has had control of documents
relating to the affairs of the practice, or
(c) a person who has information relating to regulated
property of the practice or property that the receiver
believes on reasonable grounds to be regulated property
of the practice,
to give the receiver either or both of the following:
(d) access to the documents relating to the affairs of the
practice the receiver reasonably requires,
(e) information relating to the affairs of the practice the
receiver reasonably requires (verified by statutory
declaration if the requirement so states).
[174] Section 638 (3)
Omit the subsection.
[175] Section 645 Termination of receiver's appointment
Insert "by the Supreme Court" after "appointment" where first occurring in
section 645 (1).
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[176] Section 645 (2AA)
Insert after section 645 (2A):
(2AA) The Supreme Court may make any order it considers
appropriate in relation to an application under this section.
[177] Section 645 (2B)
Omit "under this section".
Insert instead "for termination of the receiver's appointment".
[178] Section 651
Omit the section. Insert instead:
651 ADI disclosure requirements
(1) An ADI must, at the request of an external intervener for a law
practice, disclose to the intervener without charge:
(a) whether or not the practice, or an associate of the
practice specified by the intervener, maintains or has
maintained an account at the ADI during a period
specified by the intervener, and
(b) details identifying every account so maintained.
Maximum penalty: 50 penalty units.
(2) An ADI at which an account of a law practice or associate of
a law practice is or has been maintained must, at the request of
an external intervener for the law practice, and without charge:
(a) produce for inspection or copying by the intervener, or
a nominee of the intervener, any records relating to any
such account or money deposited in any such account,
and
(b) provide the intervener with full details of any
transactions relating to any such account or money.
Maximum penalty: 50 penalty units.
(3) If an external intervener believes, on reasonable grounds, that
trust money has, without the authorisation of the person who
entrusted the trust money to the law practice, been deposited
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into the account of a third party who is not an associate of the
law practice, the ADI at which the account is maintained must
disclose to the intervener without charge:
(a) whether or not a person specified by the intervener
maintains or has maintained an account at the ADI
during a period specified by the intervener, and
(b) the details of any such account.
Maximum penalty: 50 penalty units.
(4) An obligation imposed by this section on an ADI does not
apply unless the external intervener produces to the ADI
evidence of the appointment of the intervener in relation to the
law practice concerned.
(5) A request under this section may be general or limited to a
particular kind of account.
(6) This section applies despite any legislation or duty of
confidence to the contrary.
(7) An ADI or an officer or employee of an ADI is not liable to
any action for any loss or damage suffered by another person
as a result of producing records or providing details in
accordance with this section.
[179] Section 659 Requirement to provide access to documents and
information relating to affairs of law practice
Insert "either or both of the following" after "investigator" where secondly
occurring in section 659 (2).
[180] Section 659 (2) (a) and (b)
Omit "practice's affairs" wherever occurring.
Insert instead "affairs of the practice".
[181] Section 659 (2) (a)
Omit "and".
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[182] Section 660 Requirements in relation to complaint investigations
Omit "the lawyer" where firstly occurring in section 660 (2).
Insert instead "a law practice of which the lawyer is or was an associate".
[183] Section 660 (2)
Insert "either or both of the following" after "investigator" where secondly
occurring in section 660 (2).
[184] Section 660 (2) (a) and (b)
Omit "lawyer's affairs" wherever occurring.
Insert instead "affairs of the lawyer".
[185] Section 660 (2) (a)
Omit "and".
[186] Section 724 Professional privilege or duty of confidence does not affect
validity of or compliance with certain requirements
Insert at the end of section 724 (3) (c):
, or
(d) proceedings taken by the receiver for the recovery of
regulated property (as defined in Chapter 5).
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Schedule 3 Amendment of other legislation
Schedule 3 Amendment of other legislation
(Section 4)
3.1 Administrative Decisions Tribunal Act 1997 No 76
Schedule 2, Part 3, clause 1 Composition of Division
Omit "from the barrister members or solicitor members" from clause 1 (3).
3.2 Legal Profession Regulation 2005
[1] Clause 18 Requirements for professional indemnity insurance for
interstate legal practitioners--section 98 of the Act
Omit the clause.
[2] Clause 87 Intermixing money--section 260 of the Act
Omit the clause.
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