(1) A person is a disqualified person for the purposes of this Act if the
person--
(a) has a conviction in New South Wales or elsewhere for an offence
involving dishonesty that was recorded in the last 10 years, unless the
Secretary has determined under subsection (3) that the offence should be
ignored, or
(e) is a mentally incapacitated person, or
(f) is disqualified
from holding a licence or other authority under a corresponding law or is the
holder of such a licence or authority that is suspended, or
(g) is the holder
of a licence, permit or other authority that is suspended under legislation
administered by the Minister or is disqualified from holding a licence, permit
or other authority under legislation administered by the Minister, or
(h) is
in partnership with a person who is a disqualified person, or
(i) is for the
time being declared to be a disqualified person under Part 9 (Complaints and
disciplinary action), or
(j) is a corporation that is the subject of a
winding up order or for which a controller or administrator has been
appointed, or
(k) has failed to pay a contribution or levy payable by the
person under section 89 and the failure continues, or
(l) has failed to pay
an amount due as a debt to the Crown by way of recovery of an amount paid out
of the Compensation Fund and the failure continues, or
(m) has failed to pay
any monetary penalty payable by the person under Part 9 (Complaints and
disciplinary action) or has failed to comply with any direction given by the
Secretary under that Part, and the failure continues, or
(n) has failed to
comply with the requirements of section 75 to have an audit of the records and
documents relating to any trust money carried out within the required time,
unless the Secretary determines in the circumstances that failure should not
disqualify the person, or
(o) has been removed (otherwise than at his or her
own request) from the roll of lawyers kept by the Supreme Court or from a
corresponding roll of lawyers kept by a superior court of another State or
Territory, or
(p) is disqualified from being employed in a law practice by
virtue of an order made under Division 1 of Part 3.9 of the Legal Profession
Uniform Law (NSW) , or
(p1) is an Australian legal practitioner, incorporated
legal practice or solicitor corporation, or
(r) is in breach of any provision of this Act or the
regulations that is prescribed by the regulations as a disqualifying breach.
(2) A person is also a disqualified person for the purposes of this Act
(except for the purposes of section 29) if the person--
(a) is an undischarged
bankrupt, or
(b) at any time in the last 3 years was an undischarged
bankrupt, applied to take the benefit of any law for the relief of bankrupt or
insolvent debtors, compounded with his or her creditors or made an assignment
of his or her remuneration for their benefit, or
(c) is, or was at any time
in the last 3 years, concerned in the management of, or a director of, a
Chapter 5 body corporate except in a case of the voluntary winding up of the
body corporate, or
(d) is a person--
(i) who was, at any time in the last 3
years, concerned in the management of, or a director of, a body corporate
that, within 12 months of the person ceasing to be such a person or director,
became a Chapter 5 body corporate except in the case of a voluntary winding up
of the body corporate, and
(ii) who failed (while concerned in the management
of, or a director of, that body corporate) to take all reasonable steps to
avoid the body corporate becoming a Chapter 5 body corporate.
(3) The
Secretary may determine that an offence committed by a person should be
ignored for the purposes of this section because of the time that has passed
since the offence was committed or because of the triviality of the acts or
omissions giving rise to the offence.
(3A) The Secretary may determine that
the factors listed in subsection (1) (g) or (j) should be ignored for the
purposes of this section if, on the basis of information provided to the
Secretary, the Secretary considers it appropriate to make that determination.
(3B) The Secretary may exempt a person from the operation of subsection (2)
(a), (b) or (c) by--
(a) certifying, in the case of exemption from subsection
(2) (a), that the Secretary is satisfied that the person took all reasonable
steps to avoid the bankruptcy concerned, or
(b) certifying, in the case of
exemption from subsection (2) (b), that the Secretary is satisfied that the
person took all reasonable steps to avoid the bankruptcy or other financial
difficulties concerned, or
(c) certifying, in the case of exemption from
subsection (2) (c), that the Secretary is satisfied that the person took all
reasonable steps (while concerned in the management of, or a director of, the
body corporate) to avoid the body corporate becoming a
Chapter 5 body corporate.
(3C) Subsection (2) (d) does not operate to make a
person a disqualified person unless the Secretary has served a notice on the
person giving the person the opportunity to make oral or written submissions
to the Secretary within a period (being not less than 14 days) specified in
the notice with respect to the grounds on which the person believes he or she
took all reasonable steps to avoid the body corporate becoming a
Chapter 5 body corporate and the Secretary is satisfied that the person failed
to take all such steps.
(3D) In determining for the purposes of subsection
(3B) or (3C) what reasonable steps could have been taken by a person to avoid
a particular outcome, the Secretary is to have regard to the steps that could
have been taken by the person from the time that the financial difficulties
that gave rise to the outcome first arose.
(4) In this section--
"Chapter 5 body corporate" has the same meaning as in the Corporations Act.
"corresponding law" means a law of another Australian jurisdiction that is
declared by the Minister from time to time by order published on the NSW
legislation website to be a law that corresponds to this Act.
