Legal Profession Amendment Bill 2005

This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The objects of this Bill are:

(a) to amend the Legal Profession Act 2004 to make amendments of a minor,
clarifying or machinery nature, and

(b) to amend the Public Notaries Act 1997 in relation to legal practitioners who
are public notaries and to make other amendments consequential on the
enactment of the Legal Profession Act 2004, and

(c) to amend other Acts consequentially on the enactment of the Legal Profession
Act 2004.

The Bill includes the following amendments:

• amendments to the model legislation approved by the Standing Committee of
Attorneys-General
• amendments suggested by the New South Wales Bar Association, New South
Wales Law Society, the Legal Practitioners Admission Board, the Legal
Services Commissioner and the Costs Assessors Rules Committee
• amendments to ensure that regulations for the Legal Profession Act 2004,
which are being developed through a consultative process, will have sufficient
legislative power
• amendments proposed in the Review of the Public Notaries Act 1997 tabled
in the Legislative Assembly on 9 December 2004
• amendments to clarify the operation of the Administrative Decisions Tribunal
Act 1997 in relation to matters arising under the Legal Profession Act 2004
• other amendments of a minor, consequential or transitional nature.

Some of the amendments to the Legal Profession Act 2004 remove provisions (for
example, section 58 (2)) stating that a particular contravention of the Act is capable
of being unsatisfactory professional conduct or professional misconduct. These
provisions are unnecessary as section 498 of the Act already contains a general
provision to that effect.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to
be appointed by proclamation.

Clause 3 is a formal provision giving effect to the amendments to the Legal
Profession Act 2004 set out in Schedules 1–9.

Clause 4 is a formal provision giving effect to the amendments to the Public
Notaries Act 1997 set out in Schedule 10.

Clause 5 is a formal provision giving effect to the amendments to other Acts set out
in Schedule 11.

Schedule 1 Amendment of Chapter 1 of Legal
Profession Act 2004
Schedule 1 amends Chapter 1, which contains introductory matters, including
definitions of defined terms.

Schedule 2 Amendment of Chapter 2 of Legal
Profession Act 2004
Schedule 2 amends Chapter 2, which contains provisions dealing with general
requirements for engaging in legal practice, including provisions for the reservation
of legal work and legal titles, for the admission of local lawyers, and for engaging
in legal practice. Amendments include the following:

• Section 24 is amended to permit the Legal Profession Admission Board to
exempt a person from compliance with the normally applicable academic or
practical legal training requirements for admission to the legal profession, if
the Admission Board is satisfied that the person has sufficient academic or
practical experience (whether in Australia or overseas) that renders the person
eligible for admission.

• New section 37A provides explicit authority for the Admission Board to
communicate with other authorities.

• Section 38 is amended to make it clear that the Admission Board can make
rules establishing committees and subcommittees and conferring functions on
them.

• Section 41 is amended to make it a statutory condition that the holder of a
local practising certificate must not be the holder of another local practising
certificate or the holder of an interstate practising certificate. This gives effect
to the principle that an Australian legal practitioner needs only one, and must
not have more than one, practising certificate granted in Australia. Section 45
is amended to complement this principle, by prohibiting applications for more
than one practising certificate in certain circumstances.

• Substituted section 79 permits regulations to be made regarding the surrender
of local practising certificates, the cancellation of surrendered certificates, and
the partial or whole refund of fees paid in respect of surrendered certificates.

• Substituted section 92 and new section 92A provide for the payment of late
fees for late applications for local practising certificates. These sections
complement substituted section 47, which provides for standard renewal
periods and late fee periods for applications for local practising certificates.

• Sections 96 and 97 are omitted. These sections deal with giving notice to the
Bar Council or Law Society Council when an interstate legal practitioner
establishes an office in this State.

• Substituted section 98 prohibits an interstate legal practitioner from engaging
in legal practice in this State without being covered by appropriate
professional indemnity insurance. This does not apply to an in-house lawyer
employed by a corporation (other than an incorporated legal practice).

Schedule 3 Amendment of Chapter 3 of Legal
Profession Act 2004
Schedule 3 amends Chapter 3, which contains provisions about the conduct of legal
practice, including provisions regarding trust money, legal costs, professional
indemnity insurance, fidelity cover and mortgage practices. Amendments include
the following:

• Substituted section 252 prohibits a barrister, in the course of practising as a
barrister, from receiving money on behalf of another person.

• New section 258A states that trust money received by a law practice in the
form of cash must be deposited in a general trust account (or, where relevant,
a controlled money account), even if there is a direction or instruction to the
contrary.

• Sections 367 and 375 are amended to enable a costs assessor or a review
panel to determine costs on the basis of agreement reached between the
parties.

• New section 373A enables the Manager, Costs Assessment to apply to a panel
for the review of a costs assessor’s determination of the costs of an
assessment.

Schedule 4 Amendment of Chapter 4 of Legal
Profession Act 2004
Schedule 4 amends Chapter 4, which contains provisions relating to complaints
about and discipline of Australian legal practitioners. Amendments include the
following:

• Section 501 is amended to make it clear that Chapter 4 extends to conduct of
a legal practitioner as a public notary. This is intended to supplement the
Public Notaries Act 1997, which provides for the application of the Chapter
to the conduct of a public notary, with prescribed modifications (if any).

• New section 531A provides that the Legal Services Commissioner, Bar
Council or Law Society Council may authorise suitably qualified persons to
exercise all or any functions of an investigator under Chapter 4.

• Section 562 is amended to empower the Administrative Decisions Tribunal,
when dealing with a complaint against a legal practitioner, to make an order
that the name of the practitioner be removed from the roll of public notaries.

• Section 562 is amended to remove the power to discipline legal practitioners
by private reprimand.

• Section 599 is omitted. It deals with the duty of the Legal Services
Commissioner, Bar Council or Law Society Council to report suspected
offences to law enforcement or prosecution authorities. The provisions of the
section are transferred from Chapter 4 to Chapter 8, so as to make it clear that
the duty is not limited to cases where complaints are involved.

• Section 606 is omitted. It deals with appeals to the Supreme Court against
orders and decisions of the Administrative Decisions Tribunal under Chapter
4. The provisions of the section are transferred from Chapter 4 to Chapter 8,
and the new section confers and regulates a right of appeal to the Supreme
Court for a wider range of orders and decisions of the Tribunal.

Schedule 5 Amendment of Chapter 5 of Legal
Profession Act 2004
Schedule 5 amends Chapter 5, which contains provisions relating to external
intervention in respect of law practices, by the appointment of supervisors,
managers or receivers.

Schedule 6 Amendment of Chapter 6 of Legal
Profession Act 2004
Schedule 6 amends Chapter 6, which contains provisions for carrying out trust
account investigations, trust account examinations, complaint investigations and
compliance audits.

Schedule 7 Amendment of Chapter 7 of Legal
Profession Act 2004
Schedule 7 amends Chapter 7, which contains provisions relating to regulatory
authorities and legal profession rules.

Schedule 8 Amendment of Chapter 8 of Legal
Profession Act 2004
Schedule 8 amends Chapter 8, which contains provisions of a general and
miscellaneous nature. Amendments include the following:

• New section 729A is intended to replace section 606, which deals with
appeals to the Supreme Court against orders and decisions of the
Administrative Decisions Tribunal under Chapter 4 and is being omitted. The
new section confers and regulates a right of appeal to the Supreme Court from
a wider range of orders and decisions of the Tribunal.

• New section 730A is intended to replace section 599, which is being omitted.

It deals with the duty of the Legal Services Commissioner, Bar Council or
Law Society Council to report suspected offences to law enforcement or
prosecution authorities. The provisions of the section are transferred from
Chapter 4 to Chapter 8, so as to make it clear that the duty is not limited to
cases where complaints are involved.

Schedule 9 Amendment of Schedule 9 to Legal
Profession Act 2004
Schedule 9 to the Bill amends Schedule 9 to the Act, which contains provisions of
a savings, transitional or other nature. Amendments include the following:

• Clause 9 is amended to allow old application forms for practising certificates
to continue to be used for 6 months.

• New clause 10A allows barristers of the Australian Capital Territory to hold
a practising certificate under the New South Wales Act while they do not hold
any other practising certificate.

• Substituted clause 26 provides for the interpretation of existing legislative
references to barristers, solicitors and legal practitioners without having to be
prescribed by regulations, but allows for regulations to be made adjusting the
meaning of the references.

• New clause 27 provides that an offence is not committed in connection with
legislative requirements about trust money and trust accounts for anything
done in good faith for 6 months, if it was done for the purpose of attempting
to comply with the new requirements or it was done in substantial conformity
with the old requirements.

Schedule 10 Amendment of Public Notaries Act 1997
Schedule 10 amends the Public Notaries Act 1997. Amendments include the
following:

• Section 6 is amended to give specific authority to the Supreme Court to order
the removal of the name of a person from the roll of public notaries for
misconduct, incompetence or any other reason the Court considers warrants
removal.

• Section 7 is amended to authorise the registrar of public notaries, rather than
the Supreme Court, to remove a person’s name from the roll of public notaries
at the person’s request.

• Section 8 is amended to empower the Admission Board to publish
information contained in the roll of public notaries.

Schedule 11 Amendment of other Acts
The Administrative Decisions Tribunal Act 1997 is amended to clarify the operation
of the Act in relation to matters arising under the Legal Profession Act 2004.

The Commercial Arbitration Act 1984 is amended to update references to the Legal
Profession Act 1987.

The Conveyancers Licensing Act 2003 is amended to update references to the Legal
Profession Act 1987.

The Interpretation Act 1987 is amended to include a definition (applicable for Acts
and statutory instruments generally) of the term Australian legal practitioner,
which is to have the same meaning as in the Legal Profession Act 2004.

The Ombudsman Act 1974 is amended to update a reference to the Legal
Profession Act 1987.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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