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This is a Bill, not an Act. For current law, see the Acts databases.
Serial 75
Legal Profession Bill
2006
Mr Stirling
AN ACT
to
provide for admission to, and the regulation of, the legal profession, and for
entities relating to the legal profession, and for other purposes
NORTHERN TERRITORY OF AUSTRALIA
LEGAL PROFESSION ACT 2006
____________________
Act No. [ ] of 2006
____________________
TABLE OF PROVISIONS
Section
NORTHERN TERRITORY OF
AUSTRALIA
____________________
Act No. [ ] of 2006
____________________
AN ACT
to provide for admission to, and the regulation of, the legal profession, and for entities relating to the legal profession, and for other purposes
[Assented to [ ] 2006]
[Second reading [ ] 2006]
The Legislative Assembly of the Northern Territory enacts as follows:
PART 1.1 – PRELIMINARY MATTERS
This Act may be cited as the Legal Profession Act 2006.
This Act commences on the date fixed by the Administrator by Gazette notice.
The main purposes of this Act are as follows:
(a) to promote the administration of justice;
(b) to provide for the protection of consumers of legal services and the public generally;
(c) to regulate legal practice in this jurisdiction, including the legal practice of foreign law by foreign lawyers;
(d) to facilitate the regulation of legal practice on a national basis.
In this Act:
"ADI" means an authorised deposit-taking institution within the meaning of the Banking Act 1959 (Cth);
"Admission Board" means the Legal Practitioners Admission Board of the Northern Territory established by section 650;
"admission rules" means rules relating to the admission of persons to the legal profession and associated matters made under section 43;
"admission to the legal profession", see section 9;
"affairs", of a law practice, includes the following:
(a) all accounts and records required under this Act or the regulations to be maintained by the practice or an associate or former associate of the practice;
(b) other records of the practice or an associate or former associate of the practice;
(c) any transaction:
(i) to which the practice or an associate or former associate of the practice was or is a party; or
(ii) in which the practice or an associate or former associate of the practice has acted for a party;
"allow", for Part 3.5, see section 382;
"amend" includes:
(a) in relation to a practising certificate:
(i) impose a condition on the certificate; or
(ii) amend or revoke a condition already imposed on the certificate; and
(b) in relation to registration as a foreign lawyer:
(i) amend the lawyer's registration certificate; or
(ii) impose a condition on the registration; or
(iii) amend or revoke a condition already imposed on the registration;
"application date", for Part 3.6, see section 438;
"approved", for professional indemnity insurance, see section 373;
"approved academic qualifications", see section 10;
"approved ADI", for Part 3.1, see section 235(1);
"approved form" means a form approved under section 706;
"approved practical legal training requirements", see section 10;
"ASIC exemption", for Part 3.6, see section 438;
"associate":
(a) of a law practice – see section 7(1); or
(b) of a legal practitioner, for Part 3.6 – see section 439;
"Australia", for Part 2.7, see section 170;
"Australian law", for Part 2.7, see section 170;
"Australian lawyer", see section 5(a);
"Australian legal practitioner", see section 6(a);
"Australian practising certificate" means a local practising certificate or interstate practising certificate;
"Australian-registered foreign lawyer" means a locally-registered foreign lawyer or interstate-registered foreign lawyer;
"Australian roll" means the local roll or an interstate roll;
"Australian trust account" means a local trust account or an interstate trust account;
(a) a local legal practitioner who holds a current local practising certificate to practise as or in the manner of a barrister; or
(b) an interstate legal practitioner who holds a current interstate practising certificate that entitles the practitioner to engage in legal practice only as or in the manner of a barrister;
"bill", for Part 3.3, see section 295(1);
"borrower", for Part 3.6, see section 438;
"business day" means a day other than a Saturday, a Sunday or a public holiday;
"capping and sufficiency provisions", for Part 3.5, see section 382;
"chief executive officer", of the Law Society, means the person occupying or holding the office of chief executive officer established by section 640;
"Chief Justice" means the Chief Justice of the Supreme Court;
"claim", see:
(a) for Part 3.2 – section 289; or
(b) for Part 3.5 – section 382;
"claimant", for Part 3.5, see section 382;
"client":
(a) for Part 3.3, Division 7 – see section 329; or
(b) for Part 3.3, Division 8 – see section 331; or
(c) for Part 3.6 – see section 438; or
(d) otherwise – includes a person to whom or for whom legal services are provided;
"compensation order", see section 534;
"complaint", see section 462;
"complaint investigation", for Chapter 6, see section 617(d);
"compliance certificate", see section 36(2);
"complying community legal centre", see section 227;
"concerted interstate default", for Part 3.5, see section 382;
"conditional costs agreement", for Part 3.3, see section 295(1);
"conditions" means conditions, limitations or restrictions;
"conduct", for Chapter 4, see section 462;
"consumer dispute", see section 480;
"contravene" includes fail to comply with;
"contributor", for Part 3.6, see section 438;
"contributory mortgage", for Part 3.6, see section 438;
"controlled money", for Part 3.1, see section 235(1);
"controlled money account", for Part 3.1, see section 235(1);
"conviction", see section 15;
"corporation", for Part 2.6, see section 118;
"corresponding academic qualifications", see section 10;
"Corporations Act" means the Corporations Act 2001 (Cth);
"corresponding authority", see section 12;
"corresponding disciplinary body", see section 13;
"corresponding foreign law", see section 14(2);
"corresponding law", see section 14(1);
"corresponding practical legal training requirements", see section 10;
"costs", for Part 3.3, see section 295(1);
"costs agreement", for Part 3.3, see section 295(1);
"costs assessment", for Part 3.3, see section 295(1);
"costs assessor", for Part 3.3, see section 295(1);
"Council" means the Council of the Law Society established by section 638(1);
"default", for Part 3.5, see section 382;
"deposit record", for Part 3.1, see section 235(1);
"designated persons", for Part 3.1, see section 235(1);
"director", for Part 2.6, see section 118;
"disbursements", for Part 3.3, see section 295(1);
"disciplinary action", for Chapter 4, Part 4.13, see section 540;
"disciplinary application", for Chapter 4, see section 462;
"Disciplinary Tribunal" means the Legal Practitioners Disciplinary Tribunal established by section 669;
"dishonesty", for Part 3.5, see section 382;
"disqualified person" means any of the following persons whether the thing that has happened to the person happened before or after the commencement of this definition:
(a) a person whose name has (whether or not at his or her own request) been removed from an Australian roll and who has not subsequently been admitted or re-admitted to the legal profession under this Act or a corresponding law;
(b) a person whose Australian practising certificate has been suspended or cancelled under this Act or a corresponding law and who, because of the cancellation, is not an Australian legal practitioner or in relation to whom that suspension has not finished;
(c) a person who has been refused a renewal of an Australian practising certificate under this Act or a corresponding law and to whom an Australian practising certificate has not been granted at a later time;
(d) a person who is the subject of an order under this Act or a corresponding law prohibiting a law practice from employing or paying the person in connection with the relevant practice;
(e) a person who is the subject of an order under this Act or a corresponding law prohibiting an Australian legal practitioner from being a partner of the person in a business that includes the practitioner's practice;
(f) a person who is the subject of an order under section 140 or 165 or under provisions of a corresponding law that correspond to section 140 or 165;
"document" means any record of information, and includes:
(a) anything on which there is writing; and
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and
(d) a map, plan, drawing or photograph;
and a reference in this Act to a document (as so defined) includes a reference to:
(e) any part of the document; and
(f) any copy, reproduction or duplicate of the document or any part of the document; and
(g) any part of such a copy, reproduction or duplicate;
"employ", for Part 2.8, see section 226;
"employment", for Part 3.2, see section 289;
"engage", for Part 2.8, see section 226;
"engage in legal practice" includes practise law;
"external examination", for Part 3.1, see section 235(1);
"external examiner", for Part 3.1, see section 235(1);
"external intervener", for Chapter 5, see section 567(1);
"external intervention", for Chapter 5, see section 567(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;
"fee, gain or reward" includes any form of, and any expectation of, a fee, gain or reward;
"Fidelity Fund" means the Legal Practitioners Fidelity Fund established under section 385;
"financial institution", for Part 3.6, see section 438;
"financial year" means a year ending on 30 June;
"fixed costs provisions", for Part 3.3, see section 295(1);
"foreign country" means:
(a) a country other than Australia; or
(b) a state, province or other part of a country other than Australia;
"foreign law", for Part 2.7, see section 170;
"foreign law practice", for Part 2.7, see section 170;
"foreign registration authority", for Part 2.7, see section 170;
"foreign regulatory action", for Part 2.5, see section 102;
"foreign roll" means an official roll of lawyers (whether admitted, practising or otherwise) kept in a foreign country, but does not include a roll prescribed by the regulations or a kind of roll prescribed by the regulations;
"Funds Management Committee" means the Legal Practitioners Funds Management Committee established by section 659(1);
"general trust account", for Part 3.1, see section 235(1);
"graduate clerk" means a person who:
(a) is employed for at least 9 months in a law practice or as a government lawyer while completing a course of practical legal training; and
(b) in the course of the employment provides legal services under the supervision of an Australian lawyer;
"grant", of an interstate practising certificate, includes the issue of a practising certificate;
"GST", see the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
"home jurisdiction", see:
(a) for an Australian legal practitioner – section 8(2);
(b) for an Australian-registered foreign lawyer – section 8(3); or
(c) for an associate of a law practice who is neither an Australian legal practitioner nor an Australian-registered foreign lawyer – section 8(4);
"hospital", for Part 3.2, see section 289;
"ILP compliance audit", for Chapter 6, see section 617(a);
"inability", in relation to a person engaging in legal practice, means an inability arising wholly or principally from infirmity, injury or mental or physical illness;
"incident", for Part 3.2, see section 289;
"incorporated legal practice", see section 119;
"information notice" means a written notice to a person about a decision specifying:
(a) the decision; and
(b) the reasons for the decision; and
(c) the rights of appeal available to the person in relation to the decision and the period within which the appeal must be made;
"insolvent under administration" means:
(a) a person who is an undischarged bankrupt within the meaning of the Bankruptcy Act 1966 (Cth) (or the corresponding provisions of the law of a foreign country or external territory); or
(b) a person who has executed a deed of arrangement under Part X of the Bankruptcy Act 1966 (Cth) (or the corresponding provisions of the law of a foreign country or external territory) if the terms of the deed have not been fully complied with; or
(c) a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 (Cth) (or the corresponding provisions of the law of a foreign country or external territory) if a final payment has not been made under that composition; or
(d) a person for whom a debt agreement has been made under Part IX of the Bankruptcy Act 1966 (Cth) (or the corresponding provisions of the law of a foreign country or external territory) if the debt agreement has not ended or has not been terminated; or
(e) a person who has executed a personal insolvency agreement under Part X of the Bankruptcy Act 1966 (Cth) (or the corresponding provisions of the law of a foreign country or external territory) but not if the agreement has been set aside or terminated or all of the obligations that the agreement created have been discharged;
"interstate lawyer", see section 5(c);
"interstate legal practitioner", see section 6(c);
"interstate practising certificate" means a current practising certificate granted under a corresponding law;
"interstate-registered foreign lawyer" means a person who is registered as a foreign lawyer under a corresponding law;
"interstate roll" means a roll of lawyers maintained under a corresponding law;
"interstate trust account" means a trust account maintained under a corresponding law;
"investigation", for Part 3.1, see section 235(1);
"investigator", see:
(a) for Part 3.1 – section 235(1); or
(b) for Chapter 6 – section 618;
"itemised bill", for Part 3.3, see section 295(1);
"jurisdiction" means a State or Territory of the Commonwealth;
"law firm" means a partnership consisting only of:
(a) Australian legal practitioners; or
(b) one or more Australian legal practitioners and one or more Australian-registered foreign lawyers;
"law practice" means:
(a) an Australian legal practitioner who is a sole practitioner; or
(b) a law firm; or
(c) a multi-disciplinary partnership; or
(d) an incorporated legal practice;
"Law Society" means the Law Society Northern Territory established by section 635(1);
"lay associate", see section 7(2)(b);
"lay person" means a person who is not an Australian lawyer;
"legal costs" means amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest;
"legal practitioner", for Part 3.6, see section 438;
"legal practitioner associate", see section 7(2)(a);
"legal practitioner director", in relation to an incorporated legal practice, see section 118;
"legal practitioner partner", in relation to a multi-disciplinary partnership, see section 118;
"legal profession rules" means rules relating to legal practice made under Part 8.1;
"legal services" means work done, or business transacted, in the ordinary course of legal practice;
"lender", for Part 3.6, see section 438;
"litigious matter", for Part 3.3, see section 295(1);
"local lawyer", see section 5(b);
"local legal practitioner", see section 6(b);
"local practising certificate" means a practising certificate granted under this Act;
"local registration certificate", for Part 2.7, see section 170;
"local roll", see section 27(1);
"local trust account" means a trust account maintained under this Act;
"locally-registered foreign lawyer" means a person who is registered as a foreign lawyer under this Act;
"lump sum bill", for Part 3.3, see section 295(1);
"managed investment scheme" has the same meaning as in Chapter 5C of the Corporations Act;
"Master" means the person holding or occupying the office of Master of the Supreme Court established by section 41A of the Supreme Court Act;
"member", of a managed investment scheme, for Part 2.7, see the Corporations Act;
"modifications" includes modifications by way of alteration, omission, addition and substitution;
"mortgage" means an instrument under which an interest in real property is charged, encumbered or transferred as security for the payment or repayment of money, and includes:
(a) an instrument of a kind prescribed by the regulations as being a mortgage; and
(b) a proposed mortgage;
"mortgage financing" means facilitating a loan secured or intended to be secured by mortgage by:
(a) acting as an intermediary to match a prospective lender and borrower; or
(b) arranging the loan; or
(c) receiving or dealing with payments for, or under, the loan;
but does not include providing legal service or preparing an instrument for the loan;
"multi-disciplinary partnership", see section 151;
"Mutual Recognition Act" means:
(a) the Mutual Recognition Act 1992 (Cth); or
(b) the Trans-Tasman Mutual Recognition Act 1997 (Cth);
"officer", for Part 2.6, see section 118;
"official complaint", for Chapter 4, see section 462;
"overseas-registered foreign lawyer", for Part 2.7, see section 170;
"pecuniary loss", for Part 3.5, see section 382;
"permanent form", for Part 3.1, see section 235(1);
"personal injury", for Part 3.2, see section 3 of the Personal Injuries (Liabilities and Damages) Act;
"potential claimant", for Part 3.2, see section 289;
"power", for Part 3.1, see section 235(1);
"practical legal training" means either, or a combination of both, of the following:
(a) legal training by participation in course work;
(b) supervised legal training, whether involving articles of clerkship or otherwise;
"practise foreign law", for Part 2.7, see section 170;
"pre-admission event", in relation to an applicant for or holder of a local practising certificate, means a show cause event in relation to the applicant or holder before the applicant or holder was first admitted to the legal profession in this or another jurisdiction;
"prescribed mediator" means a person who, under the regulations, is permitted to conduct mediations of the type specified in the regulations;
"principal", see section 7(3);
"professional misconduct", see section 465;
"professional obligations", for Part 2.6, see section 118;
"public authority", for Part 3.3, see section 295(1);
"Register", for Part 4.13, means the Register of Disciplinary Action mentioned in section 541;
"registered", for Part 2.7, see section 170;
"Registrar", see section 9(1) of the Supreme Court Act;
"regulated mortgage", for Part 3.6, see section 438;
"regulated property", for Chapter 5, see section 567(1);
"regulation" means a regulation made under this Act;
"Regulator", for Part 2.6, see section 118;
"regulatory authority" means:
(a) in relation to this jurisdiction, the Law Society; or
(b) in relation to another jurisdiction, means:
(i) if there is only one regulatory authority for the other jurisdiction – that regulatory authority, unless subparagraph (iii) applies; or
(ii) if there are separate regulatory authorities for the other jurisdiction for different branches of the legal profession or for persons who practise in a particular style of legal practice – the regulatory authority relevant to the branch or style concerned, unless subparagraph (iii) applies; or
(iii) if the regulations specify or provide for the determination of one or more regulatory authorities for the other jurisdiction either generally or for particular purposes – the regulatory authority or authorities specified or determination under the regulations;
"related body corporate", for Part 2.6, see section 118;
"related entity", in relation to a person, means:
(a) if the person is a company within the meaning of the Corporations Act – a related body corporate within the meaning of section 50 of that Act; or
(b) otherwise – a person specified or described by the regulations;
"relevant jurisdiction", for Part 3.5, see section 396;
"responsible entity", for Part 3.6, see section 438;
"reviewer", for Part 3.3, Division 8, Subdivision 5, see section 351;
"run-out mortgage", for Part 3.6, see section 438;
"serious offence" means an offence (whether committed in or outside this jurisdiction) that is:
(a) an indictable offence against a law of the Commonwealth or any jurisdiction (whether or not the offence is or may be dealt with summarily); or
(b) an offence against a law of another jurisdiction that would be an indictable offence against a law of this jurisdiction if committed in this jurisdiction (whether or not the offence could be dealt with summarily if committed in this jurisdiction); or
(c) an offence against a law of a foreign country that would be an indictable offence against a law of the Commonwealth or this jurisdiction if committed in this jurisdiction (whether or not the offence could be dealt with summarily if committed in this jurisdiction);
"show cause event", in relation to a person, means:
(a) his or her becoming bankrupt or being served with notice of a creditor's petition presented to the Court under section 43 of the Bankruptcy Act 1966 (Cth); or
(b) his or her presentation (as a debtor) of a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 (Cth) of his or her intention to present a debtor's petition or his or her presentation (as a debtor) of such a petition under section 55 of that Act; or
(c) his or her applying to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounding with his or her creditors or made an assignment of his or her remuneration for their benefit; or
(d) his or her conviction for a serious offence or tax offence, whether or not:
(i) the offence was committed in or outside this jurisdiction; or
(ii) the offence was committed while the person was engaging in legal practice as an Australian legal practitioner or was practising foreign law as an Australian-registered foreign lawyer, as the case requires; or
(iii) other persons are prohibited from disclosing the identity of the offender;
"sole practitioner" means an Australian legal practitioner who engages in legal practice on his or her own account;
"solicitor" means:
(a) a local legal practitioner who holds a current local practising certificate to practise as a barrister and solicitor or a solicitor; or
(b) an interstate legal practitioner who holds a current interstate practising certificate that does not restrict the practitioner to engage in legal practice only as or in the manner of a barrister;
"sophisticated client", for Part 3.3, see section 295(1);
"statutory deposit holder", see section 281(1);
"Statutory Supervisor" means the person holding or occupying the office of Statutory Supervisor established by section 678(1);
"suitability matter", see section 11;
"supervised legal practice" means legal practice by a person who is an Australian legal practitioner:
(a) as an employee of, or other person working under supervision in, a law practice, where:
(i) at least one partner, legal practitioner director or other employee of the law practice is an Australian legal practitioner who holds an unrestricted practising certificate; and
(ii) the person engages in legal practice under the supervision of an Australian legal practitioner mentioned in subparagraph (i); or
(b) as a partner in a law firm, where:
(i) at least one other partner is an Australian legal practitioner who holds an unrestricted practising certificate; and
(ii) the person engages in legal practice under the supervision of an Australian legal practitioner referred to in subparagraph (i); or
(c) in a capacity approved under the legal profession rules;
"supervising legal practitioner", see section 227(d);
"tax offence" means an offence under the Taxation Administration Act 1953 (Cth), whether committed in or outside this jurisdiction;
"Territory regulated mortgage", for Part 3.6, see section 440;
"Territory regulated mortgage practice", for Part 3.6, see section 438;
"third party payer", for Part 3.3, see section 296;
"this Act" includes statutory instruments made under this Act;
"this jurisdiction" means the Territory;
"transit money", for Part 3.1, see section 235(1);
"trust account", see section 235(1);
"trust account examination", for Chapter 6, see section 617(c);
"trust account investigation", for Chapter 6, see section 617(b);
"trust money", see section 235(1);
"trust money protocols", see section 239(1);
"trust property" means property entrusted to a law practice in the course of or in connection with the provision of legal services by the practice, but does not include trust money or money referred to in section 236;
"trust records", for Part 3.1, see section 235(1);
"unrestricted practising certificate" means an Australian practising certificate that is not subject to any condition under this Act or a corresponding law requiring the holder to engage in supervised legal practice or restricting the holder to practise as or in the manner of a barrister;
"unsatisfactory professional conduct", see section 464;
"uplift fee", for Part 3.3, see section 295(1).
For this Act:
(a) an Australian lawyer is a person who is admitted to the legal profession under this Act or a corresponding law; and
(b) a local lawyer is a person who is admitted to the legal profession under this Act (whether or not the person is also admitted under a corresponding law); and
(c) an interstate lawyer is a person who is admitted to the legal profession under a corresponding law, but not under this Act.
For this Act:
(a) an Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate; and
(b) a local legal practitioner is an Australian lawyer who holds a current local practising certificate; and
(c) an interstate legal practitioner is an Australian lawyer who holds a current interstate practising certificate, but not a local practising certificate.
(1) For this Act, an associate of a law practice is:
(a) an Australian legal practitioner who is:
(i) a sole practitioner (in the case of a law practice constituted by the practitioner); or
(ii) a partner in the law practice (in the case of a law firm); or
(iii) a legal practitioner director in the law practice (in the case of an incorporated legal practice); or
(iv) a legal practitioner partner in the law practice (in the case of a multi-disciplinary partnership); or
(v) an employee of, or consultant to, the law practice; or
(b) an agent of the law practice who is not an Australian legal practitioner; or
(c) an employee of the law practice who is not an Australian legal practitioner; or
(d) an Australian-registered foreign lawyer who is a partner in the law practice; or
(e) a person (not being an Australian legal practitioner) who is a partner in a multi-disciplinary partnership; or
(f) an Australian-registered foreign lawyer who has a relationship with the law practice, being a relationship that is of a class prescribed by the regulations.
(2) For this Act:
(a) a legal practitioner associate of a law practice is an associate of the practice who is an Australian legal practitioner; and
(b) a lay associate of a law practice is an associate of the practice who is not an Australian legal practitioner.
(3) For this Act, a principal of a law practice is an Australian legal practitioner who is:
(a) a sole practitioner (in the case of a law practice constituted by the practitioner); or
(b) a partner in the law practice (in the case of a law firm); or
(c) a legal practitioner director in the law practice (in the case of an incorporated legal practice); or
(d) a legal practitioner partner in the law practice (in the case of a multi-disciplinary partnership).
(1) This section has effect for this Act.
(2) The home jurisdiction for an Australian legal practitioner is the jurisdiction in which the practitioner's only or most recent current Australian practising certificate was granted.
(3) The home jurisdiction for an Australian-registered foreign lawyer is the jurisdiction in which the lawyer's only or most recent current registration was granted.
(4) The home jurisdiction for an associate of a law practice who is neither an Australian legal practitioner nor an Australian-registered foreign lawyer is:
(a) where only one jurisdiction is the home jurisdiction for the only associate of the practice who is an Australian legal practitioner or for all the associates of the practice who are Australian legal practitioners – that jurisdiction; or
(b) where no one jurisdiction is the home jurisdiction for all the associates of the practice who are Australian legal practitioners:
(i) the jurisdiction in which the office is situated at which the associate performs most of the associate's duties for the law practice; or
(ii) if a jurisdiction cannot be determined under
subparagraph (i) – the jurisdiction in which the
associate is enrolled under a law of the jurisdiction to vote at elections for
the jurisdiction; or
(iii) if a jurisdiction cannot be determined under subparagraph (i) or (ii) – the jurisdiction decided in accordance with criteria specified or referred to in the regulations.
(1) Admission to the legal profession is admission under this Act or a corresponding law by a Supreme Court as:
(a) a lawyer; or
(b) a legal practitioner; or
(c) a barrister; or
(d) a solicitor; or
(e) a barrister and solicitor; or
(f) a solicitor and barrister.
(2) However, admission to the legal profession does not include the grant of a practising certificate under this Act or a corresponding law.
(1) Approved academic qualifications are academic qualifications approved, under the admission rules, for admission to the legal profession in this jurisdiction.
(2) Approved practical legal training requirements are legal training requirements approved, under the admission rules, for admission to the legal profession in this jurisdiction.
(3) Corresponding academic qualifications are academic qualifications that would qualify the person for admission to the legal profession in another jurisdiction if the Admission Board is satisfied substantially the same minimum criteria apply for the approval of academic qualifications for admission in the other jurisdiction as apply in this jurisdiction.
(4) Corresponding practical legal training requirements are legal training requirements that would qualify the person for admission to the legal profession in another jurisdiction if the Board is satisfied substantially the same minimum criteria apply for the approval of legal training requirements for admission in the other jurisdiction as apply in this jurisdiction.
(5) For this section, the Board may satisfy itself regarding the minimum criteria for the approval of academic qualifications, or legal training requirements, for admission in another jurisdiction by considering appropriate advice from an authority of the other jurisdiction that the criteria were established consistently with relevant agreed standards.
(6) Accordingly, the Board need not examine (in detail or at all) the content of courses of legal study or legal training requirements prescribed in the other jurisdiction.
(7) The regulations may identify or provide a way of identifying the agreed standards.
(1) Each of the following is a suitability matter in relation to an individual:
(a) whether the person is currently of good fame and character;
(b) whether the person is or has been an insolvent under administration;
(c) whether the person has been convicted of an offence in Australia or a foreign country, and if so:
(i) the nature of the offence; and
(ii) how long ago the offence was committed; and
(iii) the person's age when the offence was committed;
(d) whether the person engaged in legal practice in Australia:
(i) when not admitted, or not holding a practising certificate, as required under this Act or a previous law of this jurisdiction that corresponds to this Act or under a corresponding law; or
(ii) if admitted, in contravention of a condition on which admission was granted; or
(iii) if holding an Australian practising certificate, in contravention of a condition of the certificate or while the certificate was suspended;
(e) whether the person has practised law in a foreign country:
(i) when not permitted by or under a law of that country to do so; or
(ii) if permitted to do so, in contravention of a condition of the permission;
(f) whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following:
(i) this Act or a previous law of this jurisdiction that corresponds to this Act;
(ii) a corresponding law or corresponding foreign law;
(g) whether the person:
(i) is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country; or
(ii) has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt;
(h) whether the person's name has been removed from:
(i) a local roll, and has not since been restored to or entered on a local roll; or
(ii) an interstate roll, and has not since been restored to or entered on an interstate roll; or
(iii) a foreign roll;
(i) whether the person's right to engage in legal practice has been suspended or cancelled in Australia or a foreign country;
(j) whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts;
(k) whether, under this Act, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person;
(l) whether the person is or has been subject to an order, under this Act, a law of the Commonwealth or a corresponding law, disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice;
(m) whether the person currently has a material inability to engage in legal practice.
(2) A matter is a suitability matter even if it happened before the commencement of this section.
(1) A corresponding authority is:
(a) a person or body having powers or functions under a corresponding law; or
(b) when used in the context of a person or body having powers or functions under this Act (the "local authority"), a person or body having corresponding powers or functions under a corresponding law.
(2) Without limiting subsection (1)(b), if the powers or functions of the local authority relate to local lawyers or local legal practitioners generally or are limited to any particular class of local lawyers or local legal practitioners, a person or body having corresponding powers or functions under a corresponding law is a corresponding authority to the local authority.
(3) Subsection (2) applies regardless of whether the powers or functions relate to interstate lawyers or interstate legal practitioners generally or are limited to any particular class of interstate lawyers or interstate legal practitioners.
A corresponding disciplinary body is:
(a) a court or tribunal having powers or functions under a corresponding law that correspond to any of the powers and functions of the Disciplinary Tribunal; or
(b) the Supreme Court of another jurisdiction exercising:
(i) its inherent jurisdiction or powers in relation to the control and discipline of any Australian lawyers; or
(ii) its jurisdiction or powers to make orders under a corresponding law of the other jurisdiction in relation to any Australian lawyers.
(1) A corresponding law is:
(a) a law of another jurisdiction that corresponds to the relevant provisions of this Act or, if a law of the other jurisdiction is declared by regulation to be a law that corresponds to this Act, the law declared for the other jurisdiction; or
(b) if the term is used in relation to a matter that happened before the commencement of the law of another jurisdiction that, under paragraph (a), is the corresponding law for the other jurisdiction, a previous law applying to legal practice in the other jurisdiction.
(2) A corresponding foreign law is:
(a) a law of a foreign country that corresponds to the relevant provisions of this Act or, if a law of the foreign country is declared by regulation to be a law that corresponds to this Act, the law declared for the foreign country; or
(b) if the term is used in relation to a matter that happened before the commencement of the law of a foreign country that, under paragraph (a), is the corresponding law for the foreign country, a previous law applying to legal practice in the foreign country.
(1) A reference in this Act to a conviction includes a finding of guilt, whether or not a conviction is recorded.
(2) Without limiting subsection (1), a reference to the quashing of a conviction for an offence includes a reference to the quashing of a finding of guilt in relation to the offence.
(3) However, a reference to the quashing of a conviction for an offence does not include a reference to the quashing of a conviction if a finding of guilt in relation to the offence remains unaffected.
An offence against this Act is an offence to which Part IIAA of the Criminal Code applies.
Note for section 16
Part IIAA of the Criminal Code states the general principles of criminal responsibility (including burdens of proof and general defences) and defines terms used for offences, for example, "conduct", "intention", "recklessness" and "strict liability".
CHAPTER 2 – GENERAL REQUIREMENTS FOR ENGAGING IN LEGAL PRACTICE
PART 2.1 – RESERVATION OF LEGAL WORK AND LEGAL TITLES
The purposes of this Part are as follows:
(a) to protect the public interest in the proper administration of justice by ensuring legal work is carried out only by those who are properly qualified to do so;
(b) to protect consumers by ensuring persons carrying out legal work are entitled to do so.
(1) A person who is not an Australian legal practitioner must not engage in legal practice in this jurisdiction.
Maximum penalty: 500 penalty units.
(2) Subsection (1) does not apply to engaging in legal practice of the following kinds:
(a) legal practice engaged in under the authority of a law of this jurisdiction or of the Commonwealth;
(b) legal practice engaged in by an incorporated legal practice in accordance with Part 2.6;
(c) the practice of foreign law by an Australian-registered foreign lawyer in accordance with Part 2.7;
(d) legal practice engaged in by a complying community legal centre;
(e) carrying on business as a conveyancing agent or real estate agent under a licence under the Agents Licensing Act;
(f) preparing wills or administering estates in the course of employment in the office of the Public Trustee;
(g) legal practice of a kind prescribed by the regulations.
(3) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that the defendant did not engage in the legal practice for fee, gain or reward.
(4) A person is not entitled to recover any amount in respect of anything the person did in contravention of subsection (1).
(5) A person may recover from another person, as a debt due to the person, any amount the person paid to the other person in respect of anything the other person did in contravention of subsection (1).
(6) The regulations may make provision for or with respect to the application (with or without specified modifications) of provisions of this Act to persons engaged in legal practice of a kind referred to in subsection (2) other than paragraphs (a) and (b).
(1) A person who is not an Australian legal practitioner must not represent or advertise that the person is entitled to engage in legal practice.
Maximum penalty: 500 penalty units.
(2) A person is guilty of an offence if:
(a) the person is a director, officer, employee or agent of a body corporate; and
(b) the person represents or advertises that the body corporate is entitled to engage in legal practice; and
(c) the body corporate is not an incorporated legal practice.
Maximum penalty: 500 penalty units.
(3) Subsections (1) and (2) do not apply to a representation or advertisement about being entitled to engage in legal practice of a kind referred to in section 18(2).
(4) A reference in this section to a person representing or advertising that the person or a body corporate is entitled to engage in legal practice includes a reference to the person doing anything that specifies or implies the person or body corporate is entitled to engage in legal practice.
(1) This section applies to the following names, titles and descriptions:
(a) lawyer or legal practitioner;
(b) barrister, solicitor or attorney;
(c) counsel, Queen's Counsel, King's Counsel, Her Majesty's Counsel, His Majesty's Counsel or Senior Counsel;
(d) another name, title or description prescribed by the regulations.
(2) Subject to section 21, the regulations may specify the kind of persons who are entitled, and the circumstances in which they are entitled, to take or use that name, title or description to which this section applies.
(3) For section 19(1), the taking or using of a name, title or description to which this section applies by a person who is not entitled to take or use that name, title or description gives rise to a rebuttable presumption that the person represented the person is entitled to engage in legal practice.
(4) For section 19(2), the taking or using of a name, title or description to which this section applies by a person in relation to a body corporate, of which the person is a director, officer, employee or agent, gives rise to a rebuttable presumption the person represented the body corporate is entitled to engage in legal practice.
(1) The Chief Justice may appoint a local legal practitioner as a Queen's Counsel or Senior Counsel.
(2) An appointment must be made:
(a) under applicable rules of the Supreme Court; and
(b) only after consultation with:
(i) the Attorney-General; and
(ii) other Judges; and
(iii) the Law Society and Northern Territory Bar Association Incorporated; and
(iv) anyone else the Chief Justice considers appropriate.
(3) The practitioner must pay the Territory the fee prescribed by the regulations.
(4) In this section:
"Queen's Counsel" means one of Her Majesty's Counsel for the Territory, and extends to King's Counsel if appropriate.
Section 20 does not prevent:
(a) the Law Society from establishing a merit based scheme for recognising and naming specialist lawyers; or
(b) a lawyer who is named under the scheme as a particular type of specialist lawyer using that description.
(1) A contravention of this Part by an Australian lawyer who is not an Australian legal practitioner is capable of constituting unsatisfactory professional conduct or professional misconduct.
(2) Nothing in this Part affects any liability that a person who is an Australian lawyer but not an Australian legal practitioner may have under Chapter 4 and the person may be punished for an offence under this Part as well as being dealt with under Chapter 4 in relation to the same matter.
PART 2.2 – ADMISSION OF LOCAL LAWYERS
Division 1 – Preliminary matters
The purposes of this Part are as follows:
(a) in the interests of the administration of justice and for the protection of consumers of legal services, to provide a system under which only applicants who have appropriate academic qualifications and practical legal training and who are otherwise fit and proper persons to be admitted are qualified for admission to the legal profession in this jurisdiction;
(b) to provide for the recognition of equivalent qualifications and training that make applicants eligible for admission to the legal profession in other jurisdictions.
Division 2 – Admission to legal profession
(1) A person may apply to the Supreme Court to be admitted as a local lawyer.
(2) The Court may, after considering a recommendation of the Admission Board and any representations made by the Law Society, admit the person as a local lawyer if:
(a) the Court is satisfied:
(i) the person is eligible for admission to the legal profession; or
(ii) if the recommendation is made under section 29(2) – it is reasonable the person be admitted because the person has sufficient academic qualifications or sufficient relevant experience in legal practice or relevant service with an Agency; and
(b) the Court is satisfied the person is a fit and proper person to be admitted to the legal profession.
(3) A recommendation of the Board may be contained in a compliance certificate.
(4) The Court may refuse:
(a) to consider the application if it is not made in accordance with the admission rules; or
(b) to admit the person if the person has not complied with the admission rules.
(1) The Supreme Court may:
(a) admit a person to the legal profession either unconditionally or on any conditions it considers appropriate; and
(b) vary or revoke any conditions on which a person is admitted to the legal profession under this Act.
Example of conditions for subsection (1)(a)
If the Court admits a person on a recommendation of the Admission Board made under section 29(2), the Court may admit the person on the conditions relating to the obtaining of further academic qualifications or further legal training the Court considers appropriate.
(2) The Court may order the removal of a person's name from the local roll for a contravention of a condition.
(1) A Registrar must maintain a roll of persons admitted to the legal profession under this Act (the "local roll").
(2) If a person is admitted under this Act, the person's name must be entered on the local roll under the admission rules.
(3) A person admitted under this Act must sign the local roll.
(4) The person's admission under this Act takes effect when the person signs the local roll.
(5) A Registrar must give the Law Society the name, date of birth and date of admission of each person admitted under this Act as soon as practicable after the person has signed the local roll.
(6) A Registrar's functions under this section must be exercised by the Registrar or other person or body designated by the Chief Justice for the purpose.
(7) The regulations may make provision for or with respect to the following:
(a) the information that may or must be included in the local roll;
(b) publication of information contained in the local roll.
(1) A person becomes an officer of the Supreme Court on being admitted as a local lawyer under this Act.
(2) A person ceases to be an officer of the Court under subsection (1) if the person's name is removed from the local roll.
Division 3 – Eligibility and suitability for admission
(1) A person is eligible for admission to the legal profession under this Act only if:
(a) the person is an individual aged 18 years or over; and
(b) the person has attained:
(i) approved academic qualifications; or
(ii) corresponding academic qualifications; and
(c) the person has satisfactorily completed:
(i) approved practical legal training requirements; or
(ii) corresponding practical legal training requirements.
(2) However, the Admission Board may recommend the Supreme Court admit a person even if the person does not satisfy the requirements of subsection (1)(b) or (c), or both of those requirements, if the Board is satisfied it is reasonable that the person be admitted because the person has sufficient academic qualifications or sufficient relevant experience in legal practice or relevant service with an Agency.
(3) The Board may recommend the person be admitted unconditionally or subject to conditions relating to the obtaining of further academic qualifications or further legal training.
(1) The Supreme Court or Admission Board must, in deciding if a person is a fit and proper person to be admitted to the legal profession under this Act, consider:
(a) each of the suitability matters in relation to the person to the extent a suitability matter is appropriate; and
(b) any other matter it considers relevant.
(2) However, the Court or Board may consider a person to be a fit and proper person to be admitted to the legal profession under this Act despite a suitability matter because of the circumstances relating to the matter.
(1) A person may apply to the Admission Board for a declaration that matters disclosed by the person will not, without more, adversely affect an assessment by the Board as to whether the person is a fit and proper person to be admitted.
(2) The Board must consider the application and, subject to section 32, make the declaration sought or refuse to do so.
(3) If the Board makes the declaration it must give the Law Society a copy of the declaration.
(4) If the Board refuses to make the declaration it must:
(a) give the applicant an information notice for the decision; and
(b) give the Society written notice of the decision.
(1) The Admission Board may refer the issue of whether or not an applicant is a fit and proper person to be admitted to the Supreme Court for decision if, in the Board's opinion, it would be appropriate for the Court to consider the issue.
(2) The Board also may refer to the Court an application for a declaration under section 31 if, in the Board's opinion, it would be appropriate for the Court to consider the application.
(3) The Court has the same powers as the Board to deal with an application referred to it under this section and its decision on an application is taken to be a decision of the Board.
(4) On a referral under this section, the Court may make the order or declaration it considers appropriate.
A declaration or order made under section 31(2) or 32(4) is binding on the Admission Board unless the applicant failed to make a full and fair disclosure of all matters relevant to the declaration sought.
(1) The Admission Board must give notice under the admission rules to the Law Society of:
(a) any application for a declaration under section 31; and
(b) any declaration made under that section.
(2) The Society and the applicant concerned are entitled:
(a) to make written representations to the Board in relation to any matter under consideration by the Board under this Division; and
(b) to be represented and heard at any appeal under Division 5.
(3) The Board must give written notice to the Society of an application for admission.
(4) The Society is entitled to make written representations to the Supreme Court on an application for admission.
Division 4 – Powers and functions of Admission Board
The role of the Admission Board is to advise the Supreme Court whether or not the Board considers:
(a) an applicant for admission to the legal profession under this Act is:
(i) eligible for admission; and
(ii) a fit and proper person to be admitted, including having regard to all suitability matters in relation to the applicant to the extent appropriate; and
(b) the application conforms with the requirements of the admission rules.
(1) This section applies if, after considering an application for admission to the legal profession under this Act, the Admission Board considers:
(a) the applicant is:
(i) eligible for admission; and
(ii) a fit and proper person to be admitted; and
(b) the application conforms with the requirements of the admission rules and there are no grounds for refusing to give a certificate for the applicant.
(2) The Board must, within the time specified in or determined under the regulations, advise the Supreme Court to that effect by filing with a Registrar a certificate in the approved form (a "compliance certificate").
(3) The Board must give the Law Society a copy of the compliance certificate.
(4) If the Board refuses to give a compliance certificate for the applicant, the Board must, within the time specified in or determined under the regulations, give:
(a) a Registrar notice about the refusal; and
(b) the applicant an information notice about the refusal.
(5) If the Board does not comply with subsections (3) and (4), the Board is taken to have:
(a) decided to refuse to give a compliance certificate; and
(b) given an information notice about the refusal at the end of the time specified in or determined under the admission rules for deciding the application.
(1) To help it consider whether or not an applicant is eligible for admission to the legal profession under this Act or is a fit and proper person to be admitted under this Act, the Admission Board may, by notice to the applicant, require:
(a) the applicant to give it specified documents or information; or
(b) the applicant to cooperate with any inquiries by the Board that it considers appropriate.
(2) The applicant's failure to comply with the notice by the date specified in the notice, and in the way required by the notice, is a ground for refusing to give a compliance certificate for the applicant.
(3) The Board may refer a matter to the Supreme Court for directions.
Note for section 37
Under section 94, the Admission Board may obtain a police report about the applicant's criminal history. Also, under section 95, the Admission Board may require the applicant to undergo a health assessment.
(1) An applicant for a declaration under section 31 may appeal to the Supreme Court against a decision of the Admission Board to refuse to make the declaration.
(2) An applicant for admission may appeal to the Court against a decision of the Board under section 36 to refuse to give a compliance certificate for the applicant.
(3) The Law Society may appeal to the Court against the following decisions:
(a) a decision under section 31 to make a declaration sought under the section;
(b) a decision under section 36 to give a compliance certificate.
(4) An appeal under this section must be started by filing notice of appeal:
(a) for an appeal under subsection (1) or (2) – within 28 days after the appellant receives the information notice for the decision; or
(b) for an appeal under subsection (3) – within 28 days after the decision is made.
(5) The notice of appeal must state fully the grounds of appeal.
(6) An appeal under this section must be by way of rehearing and fresh evidence or evidence in addition to or in substitution for the evidence before the Board may be given on the appeal.
(7) On hearing an appeal under this section, the Court may make the order or declaration it considers appropriate.
Division 6 – Miscellaneous matters
For a Mutual Recognition Act, the Admission Board is the local registration authority for an application for registration under that Act so far as the application relates to the admission of a person to engage in legal practice in the Territory.
A Registrar must issue a certificate of admission to a person admitted as a local lawyer under this Part.
(1) The Admission Board is not a respondent to an application under this Part that is not made by it.
(2) However, the Board must give all documents and other things relevant to the application to the Supreme Court and any other person who, on application to the Court, is granted leave to be joined as a party to the application.
(3) In addition, the Court may appoint counsel to assist it in deciding an application under this Part.
(1) The Supreme Court may order the costs of counsel appointed by it to assist in an application under this Part, as certified by the Solicitor for the Territory, to be paid out of the Fidelity Fund.
(2) In addition, the Court may order the costs of the Law Society, as certified by the Solicitor for the Territory, to be paid out of the Fidelity Fund:
(a) for an appeal by it under Division 5; or
(b) if, under section 41, it is granted leave to be joined as a party to the application.
(3) However, the Court must not make an order under subsection (2) if it is satisfied the Society has acted unreasonably in relation to the appeal or application.
(1) The Judges appointed under section 32(1) of the Supreme Court Act who are not additional Judges, or a majority of them, may make rules, not inconsistent with this Act, for the admission of persons to the legal profession under this Act.
(2) Rules may be made about any of the following:
(a) the procedure for admission, including:
(i) how an application must be made; and
(ii) giving notice of the application to an entity or public notice of the application; and
(iii) the affidavits or certificates the applicant must provide with or for the application; and
(iv) the keeping and signing of the local roll and the particulars to be recorded on the roll; and
(v) the oath or affirmation of office to be taken or made by a local lawyer;
(b) admission requirements regarding, and the approval of, academic qualifications and practical legal training;
(c) the examination of candidates for admission and the assessment of their qualifications;
(d) the disclosure of matters that may affect consideration of the eligibility of an applicant for admission, or affect consideration of the question whether the applicant is a fit and proper person to be admitted, including convictions that must be disclosed and those that need not be disclosed;
(e) applications for admission under the trans-Tasman mutual recognition legislative scheme;
(f) the assessment of the qualifications and practical legal training of overseas qualified or trained applicants against the academic requirements and practical legal training requirements that apply to local applicants;
(g) the conferral of a right of objection to an applicant's admission on persons of appropriate standing;
(h) the procedure to be adopted in the conduct of inquiries under this Part;
(i) examinations in academic subjects of candidates for registration as students-at-law or of applicants for admission;
(j) the establishment and conduct of bodies with functions concerning:
(i) the examination of applicants for admission; and
(ii) the assessment of applicants as to whether they are eligible for admission and are fit and proper persons to be admitted;
(k) authorising the Admission Board to exempt a person from the requirements of:
(i) section 29(1)(b) to the extent the person has engaged in relevant studies in a foreign country to the satisfaction of the Board; or
(ii) section 29(1)(c) to the extent the person has completed a period of relevant service with a government department or other government agency (including, for example, service in courts administration) to the satisfaction of the Board;
(l) accreditation of legal education and practical legal training courses;
(m) any other matters relating to the Board's functions.
(3) Rules may provide for abridging, in specified circumstances, any period of practical legal training required by the rules.
(4) Despite anything to the contrary in the rules:
(a) the Board must give the Law Society a copy of each application for admission under the rules; and
(b) the Society is entitled to object to an application for admission under the rules and to be heard on the hearing of the application.
(5) The rules must not require a person to satisfactorily complete before admission a period of supervised training that exceeds in length a period or periods equivalent to one full-time year as determined under the rules.
PART 2.3 – LEGAL PRACTICE BY AUSTRALIAN LEGAL PRACTITIONERS
Division 1 – Preliminary matters
The purposes of this Part are as follows:
(a) to facilitate the national practice of law by ensuring Australian legal practitioners can engage in legal practice in this jurisdiction and to provide for the certification of Australian lawyers whether or not admitted in this jurisdiction;
(b) to provide a system for the granting and renewing of local practising certificates.
Division 2 – Legal practice in this jurisdiction by Australian legal practitioners
An Australian legal practitioner is, subject to this Act, entitled to engage in legal practice in this jurisdiction.
Division 3 – Local practising certificates generally
(1) Practising certificates may be granted under this Part.
(2) The regulations may prescribe the categories of local practising certificates.
(3) It is a statutory condition of a local practising certificate that the holder must not hold another local practising certificate, or an interstate practising certificate, that is in force during the currency of the first-mentioned local practising certificate.
(1) This section has effect for section 54 or another provision of this Act if the question of whether or not a person is a fit and proper person to hold a local practising certificate is relevant.
(2) The Law Society may, in considering whether or not a person is a fit and proper person to hold a local practising certificate, take into account any suitability matter relating to the person and any of the following, whether happening before or after the commencement of this section:
(a) whether the person obtained an Australian practising certificate because of incorrect or misleading information;
(b) whether the person has contravened a condition of an Australian practising certificate held by the person;
(c) whether the person has contravened this Act or a corresponding law or the regulations or legal profession rules under this Act or a corresponding law;
(d) whether the person has contravened:
(i) an order of the Disciplinary Tribunal; or
(ii) an order of a corresponding disciplinary body or of another court or tribunal of another jurisdiction exercising jurisdiction or powers by way of appeal or review of an order of a corresponding disciplinary body;
(e) without limiting any other paragraph:
(i) whether the person has failed to pay a required contribution or levy to the Fidelity Fund; or
(ii) whether the person has contravened a requirement of, or imposed under, this Act about professional indemnity insurance; or
(iii) whether the person has failed to pay other costs or expenses for which the person is liable under this Act;
(f) other matters the Society considers appropriate.
(3) A person may be considered a fit and proper person to hold a local practising certificate even though the person is within any of the categories of the matters referred to in subsection (2), if the Society considers the circumstances warrant the decision.
(4) A matter cannot be taken into account as a ground for refusing to grant or renew or for suspending or cancelling a local practising certificate if the matter was:
(a) disclosed in an application for admission to the legal profession in this or another jurisdiction; and
(b) decided by a Supreme Court or by the Admission Board or a corresponding authority not to be sufficient for refusing admission.
(5) Subsection (4) does not apply if later disclosures demonstrate the matter is part of a course of conduct that may warrant refusal, suspension or cancellation.
Note for section 47
Under section 94, the Admission Board may obtain a police report about the applicant's criminal history. Also, under section 95, the Admission Board may require the applicant to undergo a health assessment.
(1) A local practising certificate granted under this Act is in force from the date specified in it until the end of the financial year in which it is granted, unless the certificate is sooner suspended or cancelled.
(2) A local practising certificate renewed under this Act is in force until the end of the financial year following its previous period of currency, unless the certificate is sooner suspended or cancelled.
(3) If an application for the renewal of a local practising certificate has not been decided by the following 1 July, the certificate:
(a) continues in force on and from that 1 July until the Law Society renews or refuses to renew the certificate or the holder withdraws the application for renewal, unless the certificate is sooner cancelled or suspended; and
(b) if renewed, is taken to have been renewed on and from that 1 July.
(1) A person who is not already an officer of the Supreme Court becomes an officer of the Court on being granted a local practising certificate.
(2) A person ceases to be an officer of the Court under subsection (1) if the person ceases to hold a local practising certificate.
Division 4 – Grant or renewal of local practising certificates
(1) An Australian lawyer may apply to the Law Society for the grant or renewal of a local practising certificate if eligible to do so under this section.
(2) An Australian lawyer is eligible to apply for the grant or renewal of a local practising certificate if the lawyer complies with any regulations and legal profession rules relating to eligibility for the practising certificate and if:
(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
(ii) if subparagraph (i) does not apply to the lawyer or it is not reasonably practicable to decide 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 subparagraph (i), (ii) or (iii) does not apply to the lawyer or it is not reasonably practicable to decide whether subparagraph (i), (ii) or (iii) applies to the lawyer – the lawyer's place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia.
(3) For 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) An Australian lawyer is not eligible to apply for the grant or renewal of a local practising certificate in respect of a financial year if the lawyer would also be the holder of another Australian practising certificate for that year, but this subsection does not limit the factors determining ineligibility to apply for the grant or renewal of a local practising certificate.
(5) An Australian lawyer must not apply for the grant or renewal of a local practising certificate if the lawyer is not eligible to make the application.
(6) 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 this subsection.
(9) A reference in this section to engaging in legal practice principally in this or any other jurisdiction applies only to legal practice in Australia.
(10) 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.
(1) An application for the grant or renewal of a local practising certificate must be:
(a) made under the regulations in the approved form; and
(b) accompanied by the information required by the regulations; and
(c) accompanied by the fee prescribed by the regulations.
(2) On receipt of the application, the Law Society must pay the fee paid under subsection (1)(c) to the Funds Management Committee.
(3) The regulations may require the applicant to disclose matters that may affect the applicant's eligibility for the grant or renewal of a local practising certificate or the question whether the applicant is a fit and proper person to hold a local practising certificate.
(4) The regulations may indicate that particular kinds of matters previously disclosed in a particular way need not be disclosed for the current application.
(5) Without limiting subsection (3), the regulations may require the applicant to disclose details of, or details of the nature of, pre-admission events.
(1) An application for the renewal of a local practising certificate must be made within:
(a) the period prescribed by the regulations as the standard renewal period; or
(b) the later period prescribed by the regulations as the late fee period.
(2) Those periods must be within the currency of the local practising certificate being sought to be renewed.
(3) The Law Society may reject an application for renewal made during the late fee period, and must reject an application for renewal made outside those periods unless the Society accepts the application under subsection (4).
(4) The Society may accept an application made within 6 months after that period (even after the expiry of the local practising certificate being sought to be renewed) if satisfied the delay was caused by reasons beyond the control of the applicant or other special circumstances exist warranting acceptance of the application.
(5) For an application accepted under subsection (4) after the expiry of the local practising certificate on 30 June in the year concerned, the certificate:
(a) is taken to have continued in force on and from the 1 July immediately following its expiry until the Society renews or refuses to renew the certificate or the holder withdraws the application for renewal, unless the certificate is sooner suspended or cancelled; and
(b) if renewed, is taken to have been renewed on and from that 1 July.
(1) Subsection (2) applies if an application for renewal of a local practising certificate is made during the late fee period prescribed by the regulations.
(2) Payment of the late fee may, if the Law Society considers it appropriate, be required as a condition of acceptance of the application.
(1) The Law Society must consider an application that has been made for the grant or renewal of a local practising certificate and may:
(a) grant or refuse to grant the certificate; or
(b) renew or refuse to renew the certificate.
(2) In granting or renewing the certificate, the Society may impose conditions mentioned in section 70.
(3) The Society may refuse:
(a) to consider an application if:
(i) it is not made in accordance with this Act; or
(ii) the required fees and costs have not been paid; or
(b) to grant or renew a local practising certificate if the applicant has not complied with the regulations in relation to the application.
(4) The Society must not grant a local practising certificate unless it is satisfied the applicant:
(a) was eligible to apply for the grant when the application was made; and
(b) is a fit and proper person to hold the certificate.
(5) The Society must not renew a local practising certificate if it is satisfied the applicant:
(a) was not eligible to apply for the renewal when the application was made; or
(b) is not a fit and proper person to continue to hold the certificate.
(6) The Society must not grant or renew a local practising certificate if the Society considers:
(a) the applicant's circumstances have changed since the application was made; and
(b) the applicant would, having regard to information that has come to the Society's attention, not have been eligible to make the application when the application is being considered.
(7) Without limiting another provision of this section, the Society may refuse to grant or renew a local practising certificate if:
(a) the applicant is required by this Act to contribute to the Fidelity Fund and the application is not accompanied by the contribution payable; or
(b) any levy payable by the applicant under Part 3.5 is unpaid; or
(c) the Society is not satisfied the law practice in respect of which the applicant is:
(i) a sole practitioner (in the case of a law practice constituted by the practitioner); or
(ii) a partner (in the case of a law firm); or
(iii) a legal practitioner director (in the case of an incorporated legal practice); or
(iv) a legal practitioner partner (in the case of a
multi-disciplinary partnership); or
(v) an employee of, or consultant to;
has approved professional indemnity insurance; or
(d) the applicant is in breach of a condition imposed under section 70.
(8) If the Society grants or renews a local practising certificate, the Society must, as soon as practicable, give the applicant:
(a) for the grant of a certificate – a local practising certificate; or
(b) for the renewal of a certificate – a new local practising certificate.
(9) If the Society:
(a) refuses to grant or renew a local practising certificate; or
(b) imposes a condition on the certificate;
the Society must, as soon as practicable, give the applicant an information notice.
Division 5 – Amendment, suspension or cancellation of local practising certificates
This Division does not apply in relation to matters mentioned in Division 6.
Each of the following is a ground for amending, suspending or cancelling a local practising certificate:
(a) the holder is no longer a fit and proper person to hold the certificate;
(b) if the holder does not have, or no longer has, professional indemnity insurance that complies with this Act in relation to the certificate;
(c) if a condition of the certificate is that the holder is or has been limited to legal practice specified in the certificate – the holder is engaging in legal practice that the holder is not entitled to engage in under this Act.
(1) If the Law Society believes a ground exists to amend, suspend or cancel a local practising certificate (the "proposed action"), the Society must give the holder a notice that:
(a) specifies the proposed action and:
(i) if the proposed action is to amend the certificate – specifies the proposed amendment; and
(ii) if the proposed action is to suspend the certificate – specifies the proposed suspension period; and
(b) specifies the grounds for proposing to take the proposed action; and
(c) outlines the facts and circumstances that form the basis for the Society's belief; and
(d) invites the holder to make written representations to the Society, within a specified time of at least 7 days and not more than 28 days, as to why the proposed action should not be taken.
(2) If, after considering all written representations made within the specified time and, in its discretion, written representations made after the specified time, the Society still believes a ground exists to take the proposed action, the Society may:
(a) if the notice specified the proposed action was to amend the practising certificate – amend the certificate in the way specified or in a less onerous way the Society considers appropriate because of the representations; or
(b) if the notice specified the proposed action was to suspend the practising certificate for a specified period:
(i) suspend the certificate for a period no longer than the specified period; or
(ii) amend the certificate in a less onerous way the Society considers appropriate because of the representations; or
(c) if the notice specified the proposed action was to cancel the practising certificate:
(i) cancel the certificate; or
(ii) suspend the certificate for a period; or
(iii) amend the certificate in a less onerous way the Society considers appropriate because of the representations.
(3) If the Society decides to amend, suspend or cancel the practising certificate, the Society must give the holder an information notice for the decision.
(4) In this section:
"amend", a certificate, means amend the certificate under section 70 during its currency, other than at the request of the holder of the certificate.
(1) This section applies if a decision is made to amend, suspend or cancel a local practising certificate under section 57.
(2) Subject to subsections (3) and (4), the amendment, suspension or cancellation of the practising certificate takes effect on the later of the following:
(a) the day notice of the decision is given to the holder;
(b) the day specified in the notice.
(3) If the practising certificate is amended, suspended or cancelled because the holder has been convicted of an offence:
(a) the Supreme Court may, on the application of the holder, order that the operation of the amendment, suspension or cancellation of the practising certificate be stayed until:
(i) the end of the time to appeal against the conviction; and
(ii) if an appeal is made against the conviction – the appeal is finally decided, lapses or otherwise ends; and
(b) the amendment, suspension or cancellation does not have effect during any period in relation to which the stay is in force.
(4) If the practising certificate is amended, suspended or cancelled because the holder has been convicted of an offence and the conviction is quashed:
(a) the amendment or suspension ceases to have effect when the conviction is quashed; or
(b) the cancellation ceases to have effect when the conviction is quashed and the certificate is restored as if it had merely been suspended.
(1) The Law Society may amend or cancel a local practising certificate if the holder requests the Society to do so.
(2) The Society may amend a local practising certificate:
(a) for a formal or clerical reason; or
(b) in another way that does not adversely affect the holder's interests.
(3) The Society must cancel a local practising certificate if:
(a) the holder's name has been removed from the local roll; or
(b) the holder ceases to be an Australian lawyer.
(4) The amendment or cancellation of a local practising certificate under this section is effected by written notice given to the holder.
(5) Section 57 does not apply in a case to which this section applies.
Nothing in this Division prevents a complaint being made under Chapter 4 about a matter to which this Division relates.
Division 6 – Special powers in relation to local practising certificates – show cause events
(1) This section applies if:
(a) a person is applying for the grant of a local practising certificate; and
(b) a show cause event in relation to the person happened, whether before or after the commencement of this section, after the person was first admitted to the legal profession in this or another jurisdiction, however the admission was expressed at the time of the admission.
(2) As part of the application, the person must give to the Law Society a written statement under the regulations:
(a) about the show cause event; and
(b) explaining why, despite the show cause event, the applicant considers himself or herself to be a fit and proper person to hold a local practising certificate.
(3) However, the person need not provide a statement under subsection (2) if the person (as a previous applicant for a local practising certificate or as the holder of a local practising certificate previously in force) has previously provided to the Society:
(a) a statement under this section; or
(b) a notice and statement under section 62;
explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to hold a local practising certificate.
(1) This section applies to a show cause event that happens in relation to the holder of a local practising certificate.
(2) The holder must provide to the Law Society both of the following:
(a) within 7 days after the happening of the event – notice, in the approved form, that the event happened;
(b) within 28 days after the happening of the event – a written statement explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to hold a local practising certificate.
(3) If a written statement is provided after the 28 days mentioned in subsection (2)(b), the Society may accept the statement and take it into consideration.
(1) The Law Society may refuse to grant or renew, or may amend, suspend or cancel, a local practising certificate if the applicant or holder:
(a) is required by section 61 or 62 to provide a notice or written statement about a show cause event and has failed to provide a written statement under the requirement; or
(b) has provided a written statement under section 61 or 62 but, in the Society's opinion, the statement is not a genuine or reasonable attempt to show that the applicant or holder is a fit and proper person to hold a practising certificate; or
(c) has failed without reasonable excuse to comply with a requirement under Chapter 6 made in connection with an investigation of the show cause event concerned or has committed an offence under that Part in connection with any such investigation.
(2) For this section only, a written statement accepted by the Society under section 62(3) is taken to have been provided under section 62.
(3) The Society must give the applicant or holder an information notice for the decision to refuse to grant or renew, or to amend, suspend or cancel, the certificate.
(1) This section applies if the Law Society decides under section 63 to:
(a) refuse to grant or renew a local practising certificate to a person; or
(b) cancel a person's local practising certificate.
(2) The Society may also decide the person is not entitled to apply for the grant of a local practising certificate for a specified period not exceeding 5 years.
(3) If the Society makes a decision under subsection (2), the Society must include the decision in the information notice required under section 63(3).
(4) A person in respect of whom a decision has been made under this section, or under a provision of a corresponding law, is not entitled to apply for the grant of a local practising certificate during the period specified in the decision.
(1) The Law Society has and may exercise powers under Part 4.6 and Chapter 6, in relation to a matter under this Division as if the matter were the subject of a complaint under Chapter 4.
(2) Accordingly, Part 4.6 and Chapter 6 apply (with the necessary modifications) in relation to a matter under this Division.
(3) Nothing in this Division prevents a complaint being made under Chapter 4 about a matter to which this Division relates.
Division 7 – Further provisions relating to local practising certificates
(1) This section applies if the Law Society considers it necessary in the public interest to immediately suspend a local practising certificate on:
(a) any of the grounds on which the certificate could be suspended or cancelled under Division 5; or
(b) the ground of the happening of a show cause event in relation to the holder; or
(c) another ground that the Society considers warrants suspension of the local practising certificate in the public interest.
(2) This section applies whether or not any action has been taken or started under Division 5 or 6 in relation to the holder.
(3) The Society may, by written notice given to the holder, immediately suspend the practising certificate until the earlier of the following:
(a) the time at which the Society informs the holder of the Society's decision by notice under section 57;
(b) the end of the period of 56 days after the notice is given to the holder under this section.
(4) The notice under this section must:
(a) include an information notice about the suspension; and
(b) specify that the holder may make written representations to the Society about the suspension.
(5) The holder may make written representations to the Society about the suspension and the Society must consider the representations.
(6) The Society may revoke the suspension at any time, whether or not in response to any written representations made to it by the holder.
(7) This section does not prevent the Society from making a complaint under Chapter 4 about a matter to which this section relates.
(8) The suspension of a local practising certificate under this section does not affect any disciplinary processes in relation to matters arising before the suspension.
(1) The holder of a local practising certificate may surrender the certificate to the Law Society.
(2) The Society may cancel the certificate.
(1) This section applies if a local practising certificate granted to an Australian legal practitioner:
(a) is amended, suspended or cancelled by the Law Society; or
(b) is replaced by another certificate.
(2) The Society may give the practitioner a notice requiring the practitioner to return the certificate to the Society in the way specified in the notice within a specified period of not less than 14 days.
(3) The practitioner must comply with the notice.
Maximum penalty: 20 penalty units.
(4) It is a defence to a prosecution for an offence against subsection (3) if the practitioner has a reasonable excuse.
(5) The Society must:
(a) if the certificate is amended – give the practitioner the amended certificate or a replacement certificate as soon as practicable after the amendment is made; or
(b) if the certificate is replaced – give the practitioner the replacement certificate as soon as practicable after it is issued; or
(c) if the certificate is suspended and is still current at the end of the suspension period – give the practitioner the amended certificate or a replacement certificate as soon as practicable after the end of the suspension period.
Division 8 – Conditions on local practising certificates
(1) A local practising certificate is subject to:
(a) any conditions imposed by the Law Society; and
(b) any statutory conditions imposed by this or any other Act; and
(c) any conditions imposed by or under the regulations or legal profession rules; and
(d) any conditions imposed or varied by the Disciplinary Tribunal under section 71; and
(e) any conditions imposed under Chapter 4 or under provisions of a corresponding law that correspond to Chapter 4.
(2) If a condition is imposed, varied or revoked under this Act (other than a statutory condition) during the currency of the local practising certificate concerned, the certificate must be amended by the Society, or a new certificate must be issued by the Society, to reflect on its face the imposition, variation or revocation.
(1) The Law Society may impose conditions on a local practising certificate:
(a) when it is granted or renewed; or
(b) during its currency.
(2) A condition imposed under this section must be reasonable and relevant.
(3) A condition imposed under this section may be about any of the following:
(a) requiring the holder of the practising certificate to undertake and complete:
(i) continuing legal education prescribed by the regulations; or
(ii) specific legal education or training; or
(iii) a period of supervised legal practice;
(b) restricting the areas of law practised;
(c) controlling, restricting or prohibiting the operation of a trust account;
(d) restricting the holder to particular conditions concerning employment or supervision;
(e) requiring the holder to undergo counselling or medical treatment or to act in accordance with medical advice given to the holder;
(f) requiring the holder to use the services of an accountant or other financial specialist in connection with the holder's practice;
(g) requiring the holder to provide the Society with evidence as to any outstanding tax obligations of the holder and as to provision made by the holder to satisfy any such outstanding obligations;
(h) a matter agreed to by the holder.
(4) Subsection (3) does not limit the matters about which a condition may be imposed under this section.
(5) The Society must not impose a condition requiring the holder to undertake and complete specific legal education or training unless:
(a) the Society is satisfied it is reasonable to require the education or training to be undertaken 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; or
(b) the condition is one that is imposed generally on holders of local practising certificates or any class of holders of local practising certificates.
Note for subsection (5)(b)
A class of holders might comprise newly qualified lawyers or lawyers returning to legal practice after suspension or an extended break.
(6) The Society may vary or revoke conditions imposed under this section.
(7) If the Society imposes, varies or revokes a condition during the currency of the local practising certificate concerned, the imposition, variation or revocation takes effect when the holder has been notified of it or a later time specified by the Society.
(8) This section has effect subject to section 57 in relation to the imposition of a condition on a local practising certificate during its currency.
(1) If a local legal practitioner has been charged with a relevant offence but the charge has not been decided, the Law Society may apply to the Disciplinary Tribunal for an order under this section.
(2) On the application, the Tribunal, if it considers it appropriate to do so having regard to the seriousness of the offence and to the public interest, may make either or both of the following orders:
(a) an order varying the conditions on the practitioner's local practising certificate;
(b) an order imposing further conditions on the practitioner's local practising certificate.
(3) An order under this section has effect until the sooner of:
(a) the end of the period specified by the Tribunal; or
(b) if the practitioner is convicted of the offence – 28 days after the day of the conviction; or
(c) if the charge is dismissed – the day of the dismissal.
(4) The Tribunal, on application by any party, may vary or revoke an order under this section at any time.
(5) In this section:
"relevant offence" means a serious offence or an offence that would have to be disclosed under the admission rules in relation to an application for admission to the legal profession under this Act.
It is a statutory condition of a local practising certificate that the holder must not contravene a condition that was imposed on the admission of the person to the legal profession under a corresponding law (with any variations of the condition made from time) and that is still in force.
(1) It is a statutory condition of a local practising certificate that the holder must engage in supervised legal practice only until the holder has completed:
(a) if the holder completed practical legal training principally under the supervision of an Australian lawyer (whether involving articles of clerkship, graduate clerk or otherwise) to qualify for admission to the legal profession in this or another jurisdiction – a period or periods equivalent to 18 months supervised legal practice after the day the holder's first practising certificate was granted; or
(b) if the holder completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction – a period or periods equivalent to 2 years supervised legal practice after the day the holder's first practising certificate was granted.
(2) For subsection (1), the period or periods must be worked out under the regulations.
(3) Subsection (1) has effect subject to any other conditions that relate to engaging in supervised legal practice after a period or periods referred to in that subsection.
(4) The Law Society 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 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.
(5) An exemption under subsection (4) may be given unconditionally or subject to the conditions the Society considers appropriate.
(6) In this section:
"engage in supervised legal practice" includes:
(a) employment as a government lawyer as defined in section 90(5); and
(b) employment by a complying community legal centre under the supervision of a supervising legal practitioner.
The regulations or legal profession rules may make provision for or with respect to prohibiting the holder of a local practising certificate as a barrister (but not a solicitor and barrister) from the following:
(a) engaging in legal practice:
(i) otherwise than as a sole practitioner; or
(ii) in partnership with any person; or
(iii) as the employee of any person;
(b) holding office as a legal practitioner director of an incorporated legal practice.
(1) The Law Society may, under section 70, impose conditions of the following kinds on the practising certificate of a barrister:
(a) a condition requiring the holder to undertake and complete to the Society's satisfaction a full-time component or other component of a reading program applicable to the holder and decided or approved by:
(i) the Society; or
(ii) other body decided by the Statutory Supervisor;
(b) a condition requiring the holder to:
(i) read with a barrister of a specified class or description chosen by the holder (including a barrister chosen from a list of at least 10 barristers kept by the Society for the purpose) for a specified period; and
(ii) comply with the requirements that will enable the barrister, at the end of the specified period, to certify to the Society that the holder is fit to practise as a barrister without restriction.
(2) A condition of a kind mentioned in subsection (1) imposed on the practising certificate of a barrister may limit the barrister's practising rights until the condition is complied with.
(3) Subject to section 74, the Society may, under section 70, impose conditions of a kind mentioned in the section on a local practising certificate granted to a barrister (but not a solicitor and barrister).
(4) The Society may cancel or suspend a local practising certificate if the holder contravenes a condition of a kind mentioned in subsection (1) or (3).
(5) This section does not limit the Society's power under section 70 to impose conditions on a practising certificate.
(1) It is a statutory condition of a local practising certificate that the holder of the certificate must give written notice to the Law Society that the holder has been:
(a) convicted of an offence that would have to be disclosed under the admission rules in relation to an application for admission to the legal profession under this Act; or
(b) charged with a serious offence.
(2) The notice must be given within 7 days after the event.
(3) The regulations, or legal profession rules if the regulations do not do so, may specify the person to whom or the address to which the notice is to be sent or delivered.
(4) This section does not apply to an offence to which Division 6 applies.
The legal profession rules may:
(a) impose conditions on local practising certificates or any class of local practising certificates; or
(b) authorise conditions to be imposed on local practising certificates or any class of local practising certificates.
The holder of a current local practising certificate must not contravene (in this jurisdiction or elsewhere) a condition to which the certificate is subject.
Maximum penalty: 500 penalty units.
Division 9 – Interstate legal practitioners
(1) An interstate legal practitioner is guilty of an offence if the practitioner:
(a) either:
(i) engages in legal practice in this jurisdiction; or
(ii) represents or advertises that the practitioner is entitled to engage in legal practice in this jurisdiction; and
(b) is not covered by professional indemnity insurance that:
(i) covers legal practice in this jurisdiction; and
(ii) complies with the requirements prescribed by the regulations, being requirements that are no more onerous than the requirements for approved professional indemnity insurance.
Maximum penalty: 500 penalty units.
(2) This section does not apply to an interstate legal practitioner who:
(a) is employed by a corporation, other than an incorporated legal practice; and
(b) provides only in-house legal service in this jurisdiction.
(3) This section does not apply to an interstate legal practitioner who:
(a) is a government lawyer as defined in section 91(5); 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.
(4) The regulations may require an interstate legal practitioner to disclose information about professional indemnity insurance to clients or prospective clients.
(1) This Part does not authorise an interstate legal practitioner to engage in legal practice in this jurisdiction to a greater extent than a local legal practitioner could be authorised under a local practising certificate.
(2) Also, an interstate legal practitioner's right to engage in legal practice in this jurisdiction:
(a) is subject to:
(i) any conditions imposed by the Law Society under section 81; and
(ii) any conditions imposed by or under the legal profession rules as referred to in that section; and
(b) is, to the greatest practicable extent and with all necessary changes:
(i) the same as the practitioner's right to engage in legal practice in the practitioner's home jurisdiction; and
(ii) subject to any condition on the practitioner's right to engage in legal practice in that jurisdiction, including any conditions imposed on the practitioner's admission to the legal profession in this or another jurisdiction.
(3) If there is an inconsistency between conditions mentioned in subsection (2)(a) and conditions mentioned in subsection (2)(b), the conditions that are, in the opinion of the Society, more onerous prevail to the extent of the inconsistency.
(4) An interstate lawyer must not engage in legal practice in this jurisdiction in a manner not authorised by this Act or in contravention of any condition referred to in this section.
(1) The Law Society may, by written notice to an interstate legal practitioner engaged in legal practice in this jurisdiction, impose any condition on the practitioner's practice that it may impose under this Act on a local practising certificate.
(2) Also, an interstate legal practitioner's right to engage in legal practice in this jurisdiction is subject to any condition imposed by or under an applicable legal profession rule.
(3) Conditions imposed under or referred to in this section must not be more onerous than conditions applying to local legal practitioners.
(4) A notice under this section must include an information notice for the decision to impose a condition.
(5) An interstate legal practitioner must not contravene a condition imposed under this section.
(1) An interstate legal practitioner must not engage in unsupervised legal practice in this jurisdiction unless:
(a) if the interstate legal practitioner completed practical legal training principally under the supervision of an Australian lawyer (whether involving articles of clerkship, graduate clerk or otherwise) to qualify for admission to the legal profession in this or another jurisdiction – the interstate legal practitioner has undertaken a period or periods equivalent to 18 months supervised legal practice after the day the practitioner's first practising certificate was granted; or
(b) if the interstate legal practitioner completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction – the interstate legal practitioner has undertaken a period or periods equivalent to 2 years supervised legal practice after the day the practitioner's first practising certificate was granted.
Maximum penalty: 500 penalty units.
(2) For subsection (1):
(a) the period or periods must be worked out under the regulations; and
(b) a period of supervised legal practice in the practitioner's home jurisdiction must be worked out under the corresponding law for that jurisdiction.
(3) Subsection (1) does not apply if the practitioner is exempt from the requirement for supervised legal practice in the practitioner's home jurisdiction.
(4) Subsection (1) applies only to the extent of a shorter period if the required period of supervised legal practice has been reduced for the practitioner in the practitioner's home jurisdiction.
An interstate legal practitioner engaged in legal practice in this jurisdiction has all the duties and obligations of an officer of the Supreme Court, and is subject to the jurisdiction and powers of the Court in respect of those duties and obligations.
For a Mutual Recognition Act, the Law Society is the local registration authority for an application for registration under that Act so far as the application relates to an application for the issue of a practising certificate in the Territory.
Division 10 – Miscellaneous matters
(1) The Law Society may enter into arrangements ("jurisdiction protocols") with regulatory authorities of other jurisdictions about deciding:
(a) the jurisdiction in which an Australian lawyer engages in legal practice principally or can reasonably expect to engage in legal practice principally; or
(b) the circumstances in which an arrangement under which an Australian legal practitioner practises in a jurisdiction:
(i) can be regarded as being of a temporary nature; or
(ii) ceases to be of a temporary nature; or
(c) the circumstances in which an Australian legal practitioner can reasonably expect to engage in legal practice principally in a jurisdiction during the currency of an Australian practising certificate.
(2) For this Act, and to the extent a jurisdiction protocol is relevant, a matter referred to in subsection (1)(a), (b) or (c) must be decided in accordance with the protocol.
(3) The Society may enter into arrangements that amend, revoke or replace a jurisdiction protocol.
(4) A jurisdiction protocol does not have effect in this jurisdiction unless it is embodied or identified in the regulations.
(1) To help it consider whether or not to grant, renew, amend, suspend or cancel a local practising certificate, the Law Society may, by notice to the applicant or holder, require the applicant or holder:
(a) to give it specified documents or information; or
(b) to cooperate with any inquiries by the Society that it considers appropriate.
(2) A contravention of a notice under subsection (1) by the date specified in the notice and in the way required by the notice is a ground for making an adverse decision in relation to the action being considered by the Society.
(3) Without limiting subsection (2), a contravention of a requirement for a medical examination may be accepted by the Society as evidence of the unfitness of the person to engage in legal practice.
(1) The Law Society must keep a register of the names of Australian lawyers to whom it grants local practising certificates.
(2) The regulations may make provision for or with respect to the following:
(a) information that may be included in the register;
(b) information that must be included in the register;
(c) notice by local legal practitioners to the Society of changes of particulars;
(d) notice by the Society to other authorities of particulars contained in the register.
(3) The register must specify the conditions (if any) imposed on a local practising certificate in relation to engaging in legal practice.
(4) A condition imposed on a local practising certificate relating to infirmity, injury or mental or physical illness must not be specified on the register unless:
(a) the condition restricts the holder's right to engage in legal practice; or
(b) the holder consents to the condition being specified on the register.
(5) The register may be kept in the way the Society decides.
(6) The Society may publish, in the circumstances it considers appropriate, the names of persons kept on the register and any other information included in the register concerning the persons.
(7) The register must be available for inspection, without charge, at the Society's office during normal business hours.
(1) The Statutory Supervisor or Law Society may apply to the Supreme Court for an order that:
(a) a local legal practitioner not contravene a condition imposed under this Part; or
(b) an interstate legal practitioner not contravene a requirement of section 80(4).
(2) No undertaking as to damages or costs is required.
(3) On hearing the application, the Court may make the order it considers appropriate.
(4) This section does not affect section 700.
(1) An aggrieved person may appeal to the Supreme Court against any of the following decisions of the Law Society:
(a) a decision under section 54 or 63 to refuse to grant or renew a local practising certificate;
(b) a decision under section 54 to impose a condition on a local practising certificate;
(c) a decision under section 57, 63 or 66 to amend, suspend or cancel a local practising certificate;
(d) a decision under section 64 that the person is not entitled to apply for the grant of a local practising certificate for a specified period;
(e) a decision under section 81 to impose a condition on an interstate legal practitioner's right to engage in legal practice in this jurisdiction.
(2) An aggrieved person is the applicant for, or holder of, the practising certificate.
(3) The appeal must be started by filing a notice of appeal within 28 days after receiving the information notice for the decision.
(4) The notice of appeal must state fully the grounds of appeal.
(5) On hearing the appeal, the Court may make the order it considers appropriate.
(6) Except to the extent (if any) that may be ordered by the Court, the filing of an appeal does not stay the effect of the refusal, amendment, suspension or cancellation appealed against.
(1) A government lawyer's local practising certificate is not subject to conditions of the kind referred to in section 70(3)(a), (b) and (d) or 74, other than a condition relating to continuing legal education.
(2) However, a government lawyer's local practising certificate is not subject to a condition relating to continuing legal education if the lawyer holds an office prescribed by the regulations.
(3) Contributions and levies are not payable to the Fidelity Fund by or in relation to a government lawyer engaged in legal practice in the course of the lawyer's duties for the entity in relation to which the person is an employee.
(4) Without affecting subsections (1) and (2), this section does not prevent a government lawyer of another jurisdiction from being granted or holding a local practising certificate.
(5) In this section:
"another jurisdiction" means:
(a) another State or Territory of the Commonwealth; or
(b) the Commonwealth;
"government agency" means an entity, or class of entity, prescribed by the regulations;
"government lawyer" means an Australian lawyer, or a person eligible to be admitted as an Australian lawyer, employed by a government agency.
(1) A government lawyer of another jurisdiction is not subject to:
(a) any prohibition under this Act about:
(i) engaging in legal practice in this jurisdiction; or
(ii) making representations about engaging in legal practice in this jurisdiction; or
(b) conditions imposed on a local practising certificate; or
(c) requirements of legal profession rules; or
(d) professional discipline;
in relation to the performance of official duties or functions as a government employee of the other jurisdiction to the extent the lawyer is exempt from matters of the same kind under a law of the other jurisdiction.
(2) Contributions and levies are not payable to the Fidelity Fund by or in relation to a government lawyer of another jurisdiction in the lawyer's capacity as a government employee.
(3) Without affecting subsection (1), that subsection extends to prohibitions under section 79 relating to professional indemnity insurance.
(4) Without affecting subsections (1), (2) and (3), this section does not prevent a government lawyer of another jurisdiction from being granted or holding a local practising certificate.
(5) In this section:
"another jurisdiction" means:
(a) another State or Territory of the Commonwealth; or
(b) the Commonwealth;
"government agency", of another jurisdiction, means an entity, or class of entity, prescribed by the regulations;
"government lawyer" means an Australian lawyer, or a person eligible to be admitted as an Australian lawyer, employed by a government agency of another jurisdiction.
PART 2.4 – SUITABILITY REPORTS
Division 1 – Preliminary matters
The main purpose of this Part is to ensure police reports and health assessment reports may be obtained when this Act provides for the reports or assessments.
In this Part:
"health assessor", see section 96(1);
"interstate registration" means registration under a corresponding law as a locally-registered foreign lawyer under that law;
"legal practice" includes the practice of foreign law in this jurisdiction by a foreign lawyer;
"local registration" means registration under this Act as a locally-registered foreign lawyer;
"registration" means local registration or interstate registration;
"relevant authority" means:
(a) for an applicant for admission – the Admission Board; or
(b) for an applicant for the grant or renewal of a local practising certificate or local registration, for the holder of a local practising certificate or for a locally-registered foreign lawyer – the Law Society;
"subject person" means:
(a) an applicant for admission; or
(b) an applicant for the grant or renewal of a local practising certificate; or
(c) the holder of a local practising certificate; or
(d) an applicant for registration as a locally-registered foreign lawyer; or
(e) a locally-registered foreign lawyer;
"suitability report" means a police report or health assessment report prepared under this Part or under provisions of a corresponding law, and includes a copy of a report or a part of a report or copy.
(1) A relevant authority may ask the Commissioner of Police for a written report about a subject person's criminal history.
(2) Subsection (1), applies to the subject person's criminal history that is:
(a) in the Commissioner's possession; or
(b) ordinarily accessible to the Commissioner through arrangements with the police service of the Commonwealth or a State or another Territory.
(3) However, a relevant authority must not ask for a report about a local legal practitioner or locally-registered foreign lawyer unless the authority considers it appropriate.
(4) Subsection (3) applies to the relevant authority in relation to a local legal practitioner whether or not the practitioner is applying for the renewal of the local practising certificate or applying for another practising certificate.
(5) The Commissioner must give the report to the authority despite that part of the criminal history is a spent conviction as defined in the Criminal Records (Spent Convictions) Act.
Division 3 – Health assessments
(1) This section applies if a relevant authority believes a subject person may have a material inability that may make the person unsuitable to engage in legal practice in this jurisdiction.
(2) The relevant authority may require the subject person to undergo a health assessment by a person appointed by the relevant authority.
(3) If the relevant authority decides to require the health assessment, the authority must give the subject person an information notice for the decision to require the assessment that includes:
(a) the name and qualifications of the person appointed by the authority to conduct the assessment; and
(b) a specified date, and a specified time and place, for the assessment that must be reasonable having regard to the circumstances of the subject person as known to the authority.
(4) The specified date must be not earlier than 28 days after the information notice is given to the subject person.
(5) The subject person may appeal to the Supreme Court against the decision within 28 days after the day the information notice is given to the subject person.
(6) On hearing the appeal, the Court may make the order it considers appropriate.
(1) The relevant authority may appoint one or more appropriately qualified persons ("health assessors") to conduct all or part of a health assessment under this Division of a subject person.
(2) At least one health assessor must be a medical practitioner.
(3) If the relevant authority considers the subject person's criminal history is relevant to the assessment, the authority may disclose the history to the health assessor despite that part of the criminal history is a spent conviction as defined in the Criminal Records (Spent Convictions) Act.
(4) Before appointing a person as a health assessor, the relevant authority must be satisfied the person does not have a personal or professional connection with the subject person that may prejudice the way in which the person conducts the assessment.
(5) In this section:
"appropriately qualified", for a medical practitioner or other person conducting a health assessment, includes having the qualifications, experience, skills or knowledge appropriate to conduct the assessment.
(1) A health assessor conducting all or part of a health assessment of a subject person must prepare a report about the assessment (a "health assessment report").
(2) The health assessment report must include:
(a) the health assessor's findings as to any material inability of the subject person and the extent, if any, to which the inability may make the person unsuitable to engage in legal practice; and
(b) if the health assessor finds the person has a material inability that may make the person unsuitable to engage in legal practice, the health assessor's recommendations, if any, as to a condition:
(i) the Supreme Court could impose on the person's admission under this Act as a legal practitioner that would make, or would be likely to make, the person suitable to engage in legal practice, despite the inability; or
(ii) the relevant authority could impose on the person's practising certificate or local registration that would make, or would be likely to make, the person suitable to engage in legal practice, despite the inability.
(3) The health assessor must give the health assessment report to the relevant authority and a copy to the subject person.
The relevant authority that appoints a health assessor to conduct all or part of a health assessment is liable for the cost of the assessment conducted by, and the report prepared by, the health assessor.
(1) A report about a subject person is not admissible in any proceedings and a person can not be compelled to produce the report or to give evidence about the report or its contents in any proceedings.
(2) Subsection (1) does not apply in relation to:
(a) proceedings relating to an application by the subject person for admission under this Act as a local practitioner, for local registration, for admission to the legal profession in another jurisdiction or for interstate registration; or
(b) proceedings on an appeal by the subject person against a decision of a relevant authority of this or another jurisdiction:
(i) refusing to grant or renew a practising certificate or registration; or
(ii) imposing conditions on a practising certificate or registration; or
(iii) amending or cancelling a practising certificate or registration.
(3) Subsection (1) does not apply if the report is admitted or produced, or evidence about the report or its contents is given, in proceedings with the consent of:
(a) the health assessor who prepared the report; and
(b) the subject person to whom the report relates.
(4) In this section:
"report" means a health assessment report prepared under this Division or under provisions of a corresponding law, and includes a copy of a report or a part of a report or copy.
(1) This Part does not authorise the Admission Board to seek a suitability report about:
(a) an applicant for the grant or renewal of a local practising certificate; or
(b) the holder of a local practising certificate.
(2) This Part does not authorise the Law Society to seek a suitability report about an applicant for admission.
PART 2.5 – INTER-JURISDICTIONAL PROVISIONS REGARDING ADMISSION AND PRACTISING CERTIFICATES
Division 1 – Preliminary matters
The purpose of this Part is to provide a nationally consistent scheme for notices of and response to action taken by courts and other authorities in relation to the admission of persons to the legal profession and their right to engage in legal practice in Australia.
In this Part:
"foreign regulatory action", taken in relation to a person, means:
(a) removal of the person's name from a foreign roll for disciplinary reasons; or
(b) suspension or cancellation of, or refusal to renew, the person's right to engage in legal practice in a foreign country.
This Part does not affect any powers or duties under Chapter 4.
Division 2 – Notices to be given by local authorities to interstate authorities
(1) This section applies if an application for admission to the legal profession is made under this Act.
(2) The Admission Board may give the corresponding authority for another jurisdiction written notice of any of the following (as relevant):
(a) the making of the application;
(b) the refusal to issue a compliance certificate in relation to the application;
(c) the withdrawal of the application after an inquiry is proposed or started in relation to the application or a suitability report is sought or obtained;
(d) the refusal of the Supreme Court to admit the applicant to the legal profession under this Act.
(3) The notice must specify the applicant's name and address as last known to the Board and may contain other relevant information.
(1) This section applies if a person's name is removed from the local roll, except if the removal occurs under section 111.
(2) A Registrar must, as soon as practicable, give written notice of the removal to:
(a) the corresponding authority of every other jurisdiction; and
(b) the registrar or other proper officer of the High Court of Australia.
(3) The notice must specify:
(a) the person's name and address as last known to the Registrar; and
(b) the date the person's name was removed from the roll; and
(c) the reason for removing the person's name.
(4) The notice may contain other relevant information.
(1) This section applies if:
(a) the Law Society takes any of the following actions:
(i) refuses to grant an Australian lawyer a local practising certificate;
(ii) suspends, cancels or refuses to renew an Australian lawyer's local practising certificate; or
(b) the lawyer successfully appeals against the action taken.
(2) The Society must, as soon as practicable, give the corresponding authorities of other jurisdictions written notice of the action taken or the result of the appeal.
(3) The notice must specify:
(a) the lawyer's name and address as last known to the Society; and
(b) particulars of:
(i) the action taken and the reasons for it; or
(ii) the result of the appeal.
(4) The notice may contain other relevant information.
(5) The Society may give corresponding authorities written notice of a condition imposed on an Australian lawyer's local practising certificate.
Division 3 – Notices to be given by lawyers to local authorities
(1) A person is guilty of an offence if:
(a) the person is a local lawyer other than a local legal practitioner; and
(b) the person's name is removed from an interstate roll; and
(c) the person fails to give a Registrar written notice of the removal as soon as practicable after the removal.
Maximum penalty: 500 penalty units.
(2) A person is guilty of an offence if:
(a) the person is a local legal practitioner; and
(b) the person's name is removed from an interstate roll; and
(c) the person fails to give a Registrar written notice of the removal as soon as practicable after the removal.
Maximum penalty: 500 penalty units.
(3) This section does not apply if the name has been removed from an interstate roll under a provision that corresponds to section 111.
(4) Strict liability applies to subsections (1)(a) and (2)(a).
(1) A person is guilty of an offence if:
(a) the person is a local lawyer other than a local legal practitioner; and
(b) an order is made under a corresponding law recommending that the person's name be removed from the local roll; and
(c) the person fails to give a Registrar written notice of the removal under section 110 as soon as practicable after the removal.
Maximum penalty: 500 penalty units.
(2) A person is guilty of an offence if:
(a) the person is a local legal practitioner; and
(b) an order or decision is made under a corresponding law that:
(i) the person's local practising certificate be suspended or cancelled; or
(ii) a local practising certificate not be granted to the person for a period; or
(iii) conditions be imposed on the person's local practising certificate; and
(c) the person fails to give a Registrar written notice of the order or decision under section 110 as soon as practicable after the removal.
Maximum penalty: 500 penalty units.
(3) Strict liability applies to subsections (1)(a) and (2)(a).
(1) A person is guilty of an offence if:
(a) the person is a local lawyer other than a local legal practitioner; and
(b) foreign regulatory action has been taken in relation to the person; and
(c) the person fails to give a Registrar written notice of the action as soon as practicable after it is taken.
Maximum penalty: 500 penalty units.
(2) A person is guilty of an offence if:
(a) the person is a local legal practitioner; and
(b) foreign regulatory action has been taken in relation to the person; and
(c) the person fails to give the Law Society written notice of the action as soon as practicable after it is taken.
Maximum penalty: 500 penalty units.
(3) Strict liability applies to subsections (1)(a) and (2)(a).
A notice to be given under this Division by a local lawyer or local legal practitioner must:
(a) specify 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.
Division 4 – Taking of action by local authorities in response to notices received
(1) This section applies if a Registrar is satisfied:
(a) a local lawyer's name has been removed from an interstate roll; and
(b) no order referred to in section 115(1)(a) is, at the time of the removal, in force in relation to it.
(2) The Registrar must remove the lawyer's name from the local roll.
(3) The Registrar may, but need not, give the lawyer notice of the date on which the registrar proposes to remove the name from the local roll.
(4) The Registrar must, as soon as practicable, give the former local lawyer notice of the removal of the name from the local roll, unless notice of the date of the proposed removal was previously given.
(5) The name of the former local lawyer must, on his or her application to the Registrar or on the Registrar's own initiative, be restored to the local roll if the name is restored to the interstate roll.
(6) This section does not prevent the former local lawyer from afterwards applying for admission under Part 2.2.
(1) This section applies if:
(a) a person's name is removed from an interstate roll but the person remains an Australian lawyer; and
(b) the person is the holder of a local practising certificate; and
(c) no order mentioned in section 115(1)(b) is, at the time of the removal, in force in relation to it.
(2) The Law Society must cancel the local practising certificate as soon as practicable after receiving official written notice of the removal.
(3) The Society may, but need not, give the person notice of the date on which the Society proposes to cancel the local practising certificate.
(4) The Society must, as soon as practicable, give the person notice of the cancellation, unless notice of the date of the proposed cancellation was previously given.
(5) This section does not prevent the former local lawyer from afterwards applying for a local practising certificate.
(1) This section applies if the Law Society is satisfied:
(a) foreign regulatory action has been taken in relation to a local lawyer; and
(b) no order mentioned in section 115(1)(a) is, at the time of the removal, in force in relation to it.
(2) The Society may serve on the lawyer a notice specifying that the Society will apply to the Supreme Court for an order that the lawyer's name be removed from the local roll unless the lawyer shows cause to the Society why the lawyer's name should not be removed.
(3) If the lawyer does not satisfy the Society that the lawyer's name should not be removed from the local roll, the Society may apply to the Court for an order that the lawyer's name be removed from the local roll.
(4) Before applying for an order that the lawyer's name be removed, the Society must afford the practitioner a reasonable opportunity to show cause why the lawyer's name should not be removed.
(5) The Court may, on application made under this section, order that the lawyer's name be removed from the local roll, or may refuse to do so.
(6) The lawyer is entitled to appear before and be heard by the Court at a hearing of an application under this section.
(1) This section applies if the Law Society is satisfied:
(a) foreign regulatory action has been taken in relation to a local legal practitioner; and
(b) no order mentioned in section 115(1)(b) is, at the time the action was taken, in force in relation to the action taken.
(2) The Society may serve on the practitioner a notice specifying that the Society proposes to cancel the practitioner's local practising certificate unless the practitioner shows cause to the Society why the practitioner's practising certificate should not be cancelled.
(3) The Society must afford the practitioner a reasonable opportunity to show cause why the practitioner's practising certificate should not be cancelled.
(4) If the practitioner does not satisfy the Society that the practising certificate should not be cancelled, the Society may cancel the certificate.
(5) The Society must, as soon as practicable, give the practitioner an information notice for its decision to cancel the practising certificate.
(6) The practitioner may appeal to the Supreme Court against the decision.
(7) The appeal must be started by filing notice of appeal within 28 days after receiving the information notice.
(8) The notice of appeal must state fully the grounds of appeal.
(9) On hearing the appeal, the Court may make the order it considers appropriate.
(1) If an Australian lawyer reasonably expects that the lawyer's name will be removed from an interstate roll or that foreign regulatory action may be taken against the lawyer, the lawyer may apply to the Supreme Court for:
(a) an order that the lawyer's name not be removed from the local roll under section 111 or 113; or
(b) an order that the lawyer's local practising certificate not be cancelled under section 112 or 114;
or both.
(2) The Court may make the order or orders applied for if satisfied:
(a) the lawyer's name is likely to be removed from the interstate roll or the foreign regulatory action is likely to be taken; and
(b) the reason for the removal of the name or the taking of the foreign regulatory action will not involve disciplinary action or the possibility of disciplinary action;
or may refuse to make an order.
(3) An order under this section may be made subject to any conditions the Court considers appropriate and remains in force for the period specified in it.
(4) The Court may revoke an order made under this section and sections 111 to 114 (as relevant) then apply as if the lawyer's name were removed from the interstate roll when the revocation takes effect.
(5) Nothing in this section affects action being taken in relation to the lawyer under other provisions of this Act.
An authority of this jurisdiction that receives information from an authority of another jurisdiction under provisions of a corresponding law that correspond to this Part may give the information to other authorities of this jurisdiction that have powers or duties under this Act.
PART
2.6 – INCORPORATED LEGAL PRACTICES AND
MULTI-DISCIPLINARY PARTNERSHIPS
Division 1 – Preliminary matters
The purposes of this Part are:
(a) to regulate the provision of legal services by corporations in this jurisdiction; and
(b) to regulate the provision of legal services in this jurisdiction in conjunction with the provision of other services (whether by a corporation or persons acting in partnership with each other).
In this Part:
"corporation" means:
(a) a company within the meaning of the Corporations Act; or
(b) any other body corporate, or body corporate of a kind, prescribed by the regulations;
"director", in relation to:
(a) a company within the meaning of the Corporations Act – means a director as defined in section 9 of that Act; or
(b) any other body corporate, or body corporate of a kind, prescribed by the regulations – means a person specified or described in the regulations;
"legal practitioner director" means a director of an incorporated legal practice who is an Australian legal practitioner holding an unrestricted practising certificate;
"legal practitioner partner" means a partner of a multi-disciplinary partnership who is an Australian legal practitioner holding an unrestricted practising certificate;
"officer" means:
(a) in relation to a company within the meaning of the Corporations Act – an officer as defined in section 9 of that Act; or
(b) in relation to any other body corporate, or body corporate of a kind, prescribed by the regulations – a person specified or described in the regulations;
"professional obligations", of an Australian legal practitioner, include:
(a) duties to the Supreme Court; and
(b) obligations in connection with conflicts of interest; and
(c) duties to clients, including disclosure; and
(d) ethical rules required to be observed by the practitioner;
"Regulator", for another jurisdiction, means the entity defined as the Regulator for that jurisdiction by the corresponding law of that jurisdiction or, if there is no such definition, the corresponding authority;
"related body corporate" means:
(a) in relation to a company within the meaning of the Corporations Act – a related body corporate within the meaning of section 50 of that Act; or
(b) in relation to any other body corporate, or body corporate of a kind, prescribed by the regulations – a person specified or described in the regulations.
Division 2 – Incorporated legal practices
(1) An incorporated legal practice is a corporation that engages in legal practice in this jurisdiction, whether or not it also provides services that are not legal services.
(2) However, a corporation is not an incorporated legal practice if:
(a) the corporation does not receive any fee, gain or reward for the legal services it provides; or
(b) the only legal services that the corporation provides are any or all of the following services:
(i) in-house legal services, namely, legal services provided to the corporation concerning a proceeding or transaction to which the corporation (or a related body corporate) is a party;
(ii) services that are not legally required to be provided by an Australian legal practitioner and that are provided by an officer or employee who is not an Australian legal practitioner; or
(c) the corporation is a complying community legal centre; or
(d) the corporation is a practising company as defined in section 720; or
(e) this Part or the regulations exempt the corporation from this Part.
(3) The regulations may make provision for or with respect to the application (with or without specified modifications) of provisions of this Act to corporations that are not incorporated legal practices because of the operation of subsection (2).
(4) Nothing in this Part affects or applies to the provision by an incorporated legal practice of legal services in one or more other jurisdictions.
(1) An incorporated legal practice may provide any service and conduct any business that the corporation may lawfully provide or conduct, except as provided by this section.
(2) An incorporated legal practice (or a related body corporate) must not conduct a managed investment scheme.
(3) The regulations may prohibit an incorporated legal practice (or a related body corporate) from providing a service or conducting a business of a kind specified in the regulations.
(1) Any corporation is, subject to this Part, eligible to be an incorporated legal practice.
(2) This section does not authorise a corporation to provide legal services if the corporation is prohibited from doing so by any Act or law (whether of this jurisdiction, the Commonwealth or any other jurisdiction) under which it is incorporated or its affairs are regulated.
(3) An incorporated legal practice is not itself required to hold an Australian practising certificate.
(1) Before a corporation starts to engage in legal practice in this jurisdiction, the corporation must give the Law Society written notice, in the approved form, of its intention to do so.
(2) A corporation must not engage in legal practice in this jurisdiction if it is in default of this section under subsection (3).
Maximum penalty: 500 penalty units.
(3) A corporation that fails to comply with subsection (1) is in default of this section until it gives the Society written notice, in the approved form, of:
(a) the failure; and
(b) the fact that it has started to engage in legal practice.
(4) The giving of a notice under subsection (3) does not affect a corporation's liability under subsection (1) or (2).
(5) A corporation is not entitled to recover any amount for anything the corporation did in contravention of subsection (2).
(6) A person may recover from a corporation, as a debt due to the person, any amount the person paid to or at the direction of the corporation for anything the corporation did in contravention of subsection (2).
(7) An offence against subsection (2) is an offence of strict liability.
(8) This section does not apply to a corporation referred to in section 119(2)(a) to (e).
(1) A corporation must not represent or advertise it is an incorporated legal practice unless it has given notice under section 122.
Maximum penalty: 2 500 penalty units.
(2) An offence against subsection (1) is an offence of strict liability.
(3) A person is guilty of an offence if:
(a) the person is a director, officer, employee or agent of a corporation; and
(b) the person represents or advertises that the corporation is an incorporated legal practice; and
(c) the corporation has not given notice under section 122.
Maximum penalty: 500 penalty units.
(4) It is a defence to a prosecution for an offence against subsection (3) if the person has a reasonable excuse.
(5) A reference in this section to:
(a) a corporation representing or advertising that the corporation is an incorporated legal practice; or
(b) a person representing or advertising that a corporation is an incorporated legal practice;
includes a reference to the corporation or person doing anything that specifies or implies that the corporation is entitled to engage in legal practice.
(1) A corporation is guilty of an offence if:
(a) it ceases to engage in legal practice in this jurisdiction as an incorporated legal practice; and
(b) it fails to give the Law Society written notice in the approved form of that fact within the period prescribed by the regulations after the day it ceases to engage in legal practice in this jurisdiction as an incorporated legal practice.
Maximum penalty: 50 penalty units.
(2) An offence against subsection (1) is an offence of strict liability.
(3) The regulations may make provision for or with respect to determining whether and when a corporation ceases to engage in legal practice in this jurisdiction.
(1) An incorporated legal practice is required to have at least one legal practitioner director.
(2) Each legal practitioner director of an incorporated legal practice is, for this Act only, responsible for the management of the legal services provided in this jurisdiction by the incorporated legal practice.
(3) Each legal practitioner director of an incorporated legal practice must ensure appropriate management systems are implemented and maintained to enable the provision of legal services by the incorporated legal practice:
(a) in accordance with the professional obligations of Australian legal practitioners and other obligations imposed by or under this Act; and
(b) so that those obligations of Australian legal practitioners who are officers or employees of the practice are not affected by other officers or employees of the practice.
(4) If it ought reasonably to be apparent to a legal practitioner director of an incorporated legal practice that the provision of legal services by the practice will result in breaches of the professional obligations of Australian legal practitioners or other obligations imposed by or under this Act, the director must take all reasonable action available to the director to ensure:
(a) the breaches do not occur; and
(b) appropriate remedial action is taken in respect of breaches that do occur.
(5) Nothing in this Part derogates from the obligations or liabilities of a director of an incorporated legal practice under any other law.
(6) The reference in subsection (1) to a legal practitioner director does not include a reference to a person who is not validly appointed as a director, but this subsection does not affect the meaning of the expression "legal practitioner director" in other provisions of this Act.
(1) Each of the following is capable of constituting unsatisfactory professional conduct or professional misconduct by a legal practitioner director:
(a) unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the incorporated legal practice;
(b) conduct of any other director (not being an Australian legal practitioner) of the incorporated legal practice that adversely affects the provision of legal services by the practice;
(c) the unsuitability of any other director (not being an Australian legal practitioner) of the incorporated legal practice to be a director of a corporation that provides legal services.
(2) A legal practitioner director is not guilty of unsatisfactory professional conduct or professional misconduct under subsection (1) if the director establishes he or she took all reasonable steps to ensure:
(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.
(3) A legal practitioner director of an incorporated legal practice must ensure all reasonable action available to the legal practitioner director is taken to deal with any unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the practice.
(1) An incorporated legal practice contravenes this subsection if it does not have any legal practitioner directors for a period exceeding 7 days.
Maximum penalty: 20 penalty units.
(2) If an incorporated legal practice ceases to have any legal practitioner directors, the incorporated legal practice must notify the Law Society as soon as possible.
Maximum penalty: 20 penalty units.
(3) An incorporated legal practice must not provide legal services in this jurisdiction during any period it is in default of director requirements under this section.
Maximum penalty: 20 penalty units.
(4) An incorporated legal practice that contravenes subsection (1) is taken to be in default of director requirements under this section for the period from the end of the 7-day period until:
(a) it has at least one legal practitioner director; or
(b) a person is appointed under this section or a corresponding law in relation to the practice.
(5) The Society may, if it thinks it appropriate, appoint an Australian legal practitioner who is an employee of the incorporated legal practice or another person nominated by the Society, in the absence of a legal practitioner director, to exercise or perform the functions or duties conferred or imposed on a legal practitioner director under this Part.
(6) An Australian legal practitioner is not eligible to be appointed under this section unless the practitioner holds an unrestricted practising certificate.
(7) The appointment under this section of a person to exercise or perform functions or duties of a legal practitioner director does not, for any other purpose, confer or impose on the person any of the other functions or duties of a director of the incorporated legal practice.
(8) An incorporated legal practice does not contravene subsection (1) during any period during which a person holds an appointment under this section in relation to the practice.
(9) A reference in this section to a "legal practitioner director" does not include a reference to a person who is not validly appointed as a director, but this subsection does not affect the meaning of the expression "legal practitioner director" in other provisions of this Act.
(1) An Australian legal practitioner who provides legal services on behalf of an incorporated legal practice in the capacity of an officer or employee of the practice:
(a) is not excused from compliance with professional obligations as an Australian legal practitioner, or any obligations as an Australian legal practitioner under any law; and
(b) does not lose the professional privileges of an Australian legal practitioner.
(2) For the purposes only of subsection (1), the professional obligations and professional privileges of a practitioner apply as if:
(a) where there are 2 or more legal practitioner directors of an incorporated legal practice – the practice were a partnership of the legal practitioner directors and the employees of the practice were employees of the legal practitioner directors; or
(b) where there is only one legal practitioner director of an incorporated legal practice – the practice were a sole practitioner and the employees of the practice were employees of the legal practitioner director.
(3) The law relating to client legal privilege (or other legal professional privilege) is not excluded or otherwise affected because an Australian legal practitioner is acting in the capacity of an officer or employee of an incorporated legal practice.
(4) The directors of an incorporated legal practice do not breach their duties as directors merely because legal services are provided pro bono by an Australian legal practitioner employed by the practice.
(1) For the application of any law (including the common law) or legal profession rules relating to conflicts of interest to the conduct of an Australian legal practitioner who is:
(a) a legal practitioner director of an incorporated legal practice; or
(b) an officer or employee of an incorporated legal practice;
the interests of the incorporated legal practice or any related body corporate are also taken to be those of the practitioner (in addition to any interests the practitioner has apart from this subsection).
(2) Legal profession rules may be made for or with respect to additional duties and obligations in connection with conflicts of interest arising out of the conduct of an incorporated legal practice.
Note for section 129
Under section 128, an Australian legal practitioner who is an officer or employee of an incorporated legal practice must comply with the same professional obligations as other practitioners.
(1) A person (the "legal practitioner") is guilty of an offence if:
(a) someone else (the "client") engages an incorporated legal practice to provide services (the "required services") that the client might reasonably assume to be legal services; and
(b) the practice provides services other than legal services in this jurisdiction; and
(c) the legal practitioner is:
(i) a legal practitioner director of the practice; or
(ii) an employee of the practice who is an Australian legal practitioner and provides the required services on behalf of the practice; and
(d) the legal practitioner fails to ensure a disclosure, complying with the requirements of this section and the regulations made for this section, is made to the client about the required services.
Maximum penalty: 100 penalty units.
(2) The disclosure must be made by giving the person written notice:
(a) specifying the services to be provided; and
(b) specifying whether or not all the legal services to be provided will be provided by an Australian legal practitioner; and
(c) if some or all of the legal services to be provided will not be provided by an Australian legal practitioner – identifying the services and indicating the status or qualifications of the person or persons who will provide the services; and
(d) specifying that this Act applies to the provision of legal services but not to the provision of the non-legal services.
Example of status of person for subsection (2)(c)
A conveyancing agent as defined in the Agents Licensing Act.
(3) The regulations may provide for any of the following:
(a) how a disclosure must be made;
(b) additional matters required to be disclosed in relation to the provision of legal services or non-legal services by an incorporated legal practice.
(4) Without limiting subsection (3), the additional matters may include the kind of services provided by the incorporated legal practice and whether the services are or are not covered by the insurance or other provisions of this Act.
(5) A disclosure under this section to a person about the provision of legal services may relate to the provision of legal services on one occasion or on more than one occasion or on an on-going basis.
(1) This section applies if:
(a) section 130 applies in relation to a service that is provided to a person who has engaged an incorporated legal practice to provide the service and that the person might reasonably assume to be a legal service; and
(b) a disclosure has not been made under that section in relation to the service.
(2) The standard of care owed by the incorporated legal practice in respect of the service is the standard that would be applicable if the service had been provided by an Australian legal practitioner.
Legal profession rules, so far as they apply to Australian legal practitioners, also apply to Australian legal practitioners who are officers or employees of an incorporated legal practice, unless the rules otherwise provide.
(1) Any restriction imposed by or under this Act or any other Act, the regulations or legal profession rules in connection with advertising by Australian legal practitioners applies to advertising by an incorporated legal practice with respect to the provision of legal services.
(2) If a restriction referred to in subsection (1) is limited to a particular branch of the legal profession or for persons who practise in a particular style of legal practice, the restriction applies only to the extent that the incorporated legal practice carries on the business in that branch of the legal profession or in that style of legal practice.
(3) Any advertisement of the kind referred to in this section is, for disciplinary proceedings taken against an Australian legal practitioner, taken to have been authorised by each legal practitioner director of the incorporated legal practice.
(4) This section does not apply if the provision by which the restriction is imposed expressly excludes its application to incorporated legal practices.
(1) This section applies to any of the following proceedings (being proceedings based on the vicarious liability of an incorporated legal practice):
(a) civil proceedings relating to a failure to account for, pay or deliver money or property received by, or entrusted to, the practice (or to any officer or employee of the practice) in the course of the provision of legal services by the practice, being money or property under the direct or indirect control of the practice;
(b) civil proceedings for any other debt owed, or damages payable, to a client as a result of a dishonest act or omission by an Australian legal practitioner who is an employee of the practice in connection with the provision of legal services to the client.
(2) If the incorporated legal practice would not (but for this section) be vicariously liable for any acts or omissions of its officers and employees in those proceedings, but would be liable for those acts or omissions if the practice and those officers and employees were carrying on business in partnership, the practice is taken to be vicariously liable for those acts or omissions.
(1) Nothing in this Act prevents an Australian legal practitioner from sharing with an incorporated legal practice receipts, revenue or other income arising from the provision of legal services by the practitioner.
(2) This section does not extend to the sharing of receipts, revenue or other income in contravention of section 136 and has effect subject to section 74.
(1) An incorporated legal practice is guilty of an offence if a disqualified person:
(a) is an officer or employee of the incorporated legal practice (whether or not the person provides legal services) or is an officer or employee of a related body corporate; or
(b) is a partner of the incorporated legal practice in a business that includes the provision of legal services; or
(c) shares the receipts, revenue or other income arising from the provision of legal services by the incorporated legal practice; or
(d) is engaged or paid in connection with the provision of legal services by the incorporated legal practice.
Maximum penalty: 500 penalty units.
(2) The failure of a legal practitioner director of an incorporated legal practice to ensure the practice complies with subsection (1) is capable of constituting unsatisfactory professional conduct or professional misconduct.
(1) The Law Society may conduct an audit of:
(a) the compliance of an incorporated legal practice (and of its officers and employees) with the requirements of:
(i) this Part; or
(ii) the regulations or legal profession rules, so far as they relate specifically to incorporated legal practices; and
(b) the management of the provision of legal services by the incorporated legal practice (including the supervision of officers and employees providing the services).
Note for subsection (1)
Section 125(3) requires legal practitioner directors to ensure appropriate management systems are implemented and maintained.
(2) The Society may, in writing, appoint a suitably qualified person to conduct an audit under this section.
(3) The appointment may be made generally, or in relation to a particular incorporated legal practice, or in relation to a particular audit.
(4) An audit may be conducted whether or not a complaint has been made against an Australian lawyer with respect to the provision of legal services by the incorporated legal practice.
(5) A report of an audit:
(a) must be provided to the incorporated legal practice concerned; and
(b) may be provided to the Statutory Supervisor by the Society; and
(c) may be provided by the Society to the Regulator of another jurisdiction; and
(d) may be taken into account in connection with any disciplinary proceedings taken against legal practitioner directors or other persons or in connection with the grant, amendment, suspension or cancellation of Australian practising certificates.
Chapter 6 applies to an audit under this Division.
(1) The Supreme Court may, on the application of the Law Society, make an order disqualifying a corporation from providing legal services in this jurisdiction for the period the Court considers appropriate if satisfied:
(a) a ground for disqualifying the corporation under this section has been established; and
(b) the disqualification is justified.
(2) An order under this section may, if the Court thinks it appropriate, be made:
(a) subject to conditions as to the conduct of the incorporated legal practice; or
(b) subject to conditions as to when or in what circumstances the order is to take effect; or
(c) together with orders to safeguard the interests of clients or employees of the incorporated legal practice.
(3) Action may be taken against an incorporated legal practice on any of the following grounds:
(a) a legal practitioner director or an Australian legal practitioner who is an officer or employee of the corporation is found guilty of professional misconduct under a law of this jurisdiction or another jurisdiction;
(b) the Society is satisfied, after conducting an audit of the incorporated legal practice, that the incorporated legal practice has failed to implement satisfactory management and supervision of its provision of legal services;
(c) the incorporated legal practice (or a related body corporate) has contravened section 120 or the regulations made under that section;
(d) the incorporated legal practice has contravened section 136;
(e) a person who is an officer of the incorporated legal practice and who is the subject of an order under:
(i) section 140 or under provisions of a corresponding law that correspond to that section; or
(ii) section 165 or under provisions of a corresponding law that correspond to that section;
is acting in the management of the incorporated legal practice.
(4) If a corporation is disqualified under this section, the Society must, as soon as practicable, notify the Regulator of every other jurisdiction.
(5) If a corporation is disqualified from providing legal services in another jurisdiction under a corresponding law, the Society may decide that the corporation is taken to be disqualified from providing legal services in this jurisdiction for the same period, but nothing in this subsection prevents the Society from instead applying for an order under this section.
(6) A corporation is guilty of an offence if it provides legal services in contravention of an order under this section.
Maximum penalty: 500 penalty units.
(7) A corporation that is disqualified under this section ceases to be an incorporated legal practice.
(8) Conduct of an Australian legal practitioner who provides legal services on behalf of a corporation in the capacity of an officer or employee of the corporation is capable of constituting unsatisfactory professional conduct or professional misconduct where the practitioner ought reasonably to have known that the corporation is disqualified under this section.
(9) The regulations may make provision for or with respect to the publication and notification of orders made under this section, including notification of appropriate authorities of other jurisdictions.
(1) The Supreme Court may, on the application of the Law Society, make an order disqualifying a person from managing a corporation that is an incorporated legal practice for the period the Court considers appropriate if satisfied:
(a) the person is a person who could be disqualified under section 206C, 206D, 206E or 206F of the Corporations Act from managing corporations; and
(b) the disqualification is justified.
(2) The Court may, on the application of a person subject to a disqualification order under this section, revoke the order.
(3) A disqualification order made under this section has effect for the purposes only of this Act and does not affect the application or operation of the Corporations Act.
(4) The regulations may make provision for or with respect to the publication and notification of orders made under this section.
(5) A person who is disqualified from managing a corporation under provisions of a corresponding law that correspond to this section is taken to be disqualified from managing a corporation under this section.
(1) This section applies if the Law Society, in connection with exercising powers or performing functions under this Act, acquired information concerning a corporation that is or was an incorporated legal practice.
(2) The Society may disclose to the Australian Securities and Investments Commission information concerning the corporation that is relevant to the Commission's functions.
(3) Information may be provided under subsection (2) despite any law relating to secrecy or confidentiality, including any provisions of this Act.
(1) This section applies to proceedings in any court under Chapter 5 of the Corporations Act:
(a) relating to a corporation that is an externally-administered body corporate under that Act; or
(b) relating to a corporation becoming an externally-administered body corporate under that Act;
being a corporation that is or was an incorporated legal practice.
(2) The Law Society is entitled to intervene in the proceedings, unless the court decides the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.
(3) The court may, when exercising its jurisdiction in the proceedings, have regard to the interests of the clients of the incorporated legal practice who have been or are to be provided with legal services by the practice.
(4) Subsection (3) does not authorise the court to make any decision that is contrary to a specific provision of the Corporations Act.
(5) The provisions of subsections (2) and (3) are declared to be Corporations legislation displacement provisions for section 5G of the Corporations Act in relation to the provisions of Chapter 5 of that Act.
Note for subsection (5)
Section 5G of the Corporations Act provides that if a Territory law declares a provision of a Territory law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the Territory provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.
(1) This section applies to proceedings for the external administration (however expressed) of an incorporated legal practice, but does not apply to proceedings to which section 142 applies.
(2) The Law Society is entitled to intervene in the proceedings, unless the court decides the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.
(3) The court may, when exercising its jurisdiction in the proceedings, have regard to the interests of the clients of the incorporated legal practice who have been or are to be provided with legal services by the practice.
(4) Subsection (3) does not authorise the court to make any decision that is contrary to a specific provision of any legislation applicable to the incorporated legal practice.
(1) This section applies if an incorporated legal practice is the subject of both:
(a) the appointment of a Chapter 5 receiver; and
(b) the appointment of a Corporations Act administrator.
(2) The Chapter 5 receiver is under a duty to notify the Corporations Act administrator of the appointment of the Chapter 5 receiver, whether the appointment precedes, follows or is contemporaneous with the appointment of the Corporations Act administrator.
(3) The Chapter 5 receiver or the Corporations Act administrator (or both of them jointly) may apply to the Supreme Court for the resolution of issues arising from or in connection with the dual appointments and their respective powers, except where proceedings referred to in section 142 have been commenced.
(4) The Court may make the order it considers appropriate, and no liability attaches to the Chapter 5 receiver or Corporations Act administrator for any act or omission done by the receiver or administrator in good faith for carrying out or acting under the order.
(5) The Law Society is entitled to intervene in the proceedings, unless the Court decides the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.
(6) The provisions of subsections (3) and (4) are declared to be Corporations legislation displacement provisions for section 5G of the Corporations Act in relation to the provisions of Chapter 5 of that Act.
(7) In this section:
"Chapter 5 receiver" means a receiver appointed under Chapter 5;
"Corporations Act administrator" means:
(a) a receiver, receiver and manager, liquidator (including a provisional liquidator), controller, administrator or deed administrator appointed under the Corporations Act; or
(b) a person who:
(i) is appointed to exercise powers under that Act; and
(ii) is prescribed, or of a class prescribed, by the regulations.
(1) This section applies if an incorporated legal practice is the subject of both:
(a) the appointment of a Chapter 5 receiver; and
(b) the appointment of an external administrator.
(2) The Chapter 5 receiver is under a duty to notify the external administrator of the appointment of the Chapter 5 receiver, whether the appointment precedes, follows or is contemporaneous with the appointment of the external administrator.
(3) The Chapter 5 receiver or the external administrator (or both of them jointly) may apply to the Supreme Court for the resolution of issues arising from or in connection with the dual appointments and their respective powers.
(4) The Court may make the order it considers appropriate, and no liability attaches to the Chapter 5 receiver or external administrator for any act or omission done by the receiver or administrator in good faith for carrying out or acting under the order.
(5) The Law Society is entitled to intervene in the proceedings, unless the Court decides the proceedings do not concern or affect the provision of legal services by the incorporated legal practice.
(6) In this section:
"Chapter 5 receiver" means a receiver appointed under Chapter 5;
"external administrator" means a person who:
(a) is appointed to exercise powers under other legislation (whether or not of this jurisdiction); and
(b) is prescribed, or of a class prescribed, by the regulations.
Courts of this jurisdiction may make arrangements for communicating and cooperating with other courts or tribunals in connection with the exercise of powers under this Part.
The provisions of this Act that apply to an incorporated legal practice prevail, to the extent of any inconsistency, over the constitution or other constituent documents of the practice.
(1) This section applies to a corporation that is established by or under a law (whether or not of this jurisdiction) and is an incorporated legal practice, but is not a company within the meaning of the Corporations Act.
(2) The provisions of this Act or the regulations that apply to an incorporated legal practice prevail, to the extent of any inconsistency, over provisions of the legislation by or under which the corporation is established or regulated that are specified or described in the regulations.
(1) The regulations may declare any provision of this Act that relates to an incorporated legal practice to be a Corporations legislation displacement provision for section 5G of the Corporations Act.
(2) The regulations may declare any matter relating to an incorporated legal practice that is prohibited, required, authorised or permitted by or under this Act to be an excluded matter for section 5F of the Corporations Act in relation to:
(a) the whole of the Corporations legislation; or
(b) a specified provision of the Corporations legislation; or
(c) the Corporations legislation other than a specified provision; or
(d) the Corporations legislation otherwise than to a specified extent.
(3) In this section:
"matter" includes act, omission, body, person or thing.
A person is guilty of an offence if:
(a) the person causes or induces another person to contravene this Act or his or her professional obligations as an Australian legal practitioner; and
(b) the other person is:
(i) a legal practitioner director of an incorporated legal practice; or
(ii) another Australian legal practitioner who provides legal services on behalf of an incorporated legal practice.
Maximum penalty: 400 penalty units or imprisonment for 2 years.
Division 3 – Multi-disciplinary partnerships
(1) A multi-disciplinary partnership is a partnership between one or more Australian legal practitioners and one or more other persons who are not Australian legal practitioners, where the business of the partnership includes the provision of legal services in this jurisdiction as well as other services.
(2) However, a partnership consisting only of one or more Australian legal practitioners and one or more Australian-registered foreign lawyers is not a multi-disciplinary partnership.
(3) Nothing in this Part affects or applies to the provision by a multi-disciplinary partnership of legal services in one or more other jurisdictions.
(1) An Australian legal practitioner may be in partnership with a person who is not an Australian legal practitioner, where the business of the partnership includes the provision of legal services.
(2) Subsection (1) does not prevent an Australian legal practitioner from being in partnership with a person who is not an Australian legal practitioner, where the business of the partnership does not include the provision of legal services.
(3) The regulations may prohibit an Australian legal practitioner from being in partnership with a person providing a service or conducting a business of a kind specified in the regulations, where the business of the partnership includes the provision of legal services.
(1) A person is guilty of an offence if:
(a) the person is a legal practitioner partner of a multi-disciplinary partnership; and
(b) the person starts to provide legal services in this jurisdiction as a member of the partnership; and
(c) the person has not given the Law Society written notice, in the approved form, of the person's intention to start providing legal services.
Maximum penalty: 20 penalty units.
(2) An offence against subsection (1) is an offence of strict liability.
(1) Each legal practitioner partner of a multi-disciplinary partnership is, for the purposes only of this Act, responsible for the management of the legal services provided in this jurisdiction by the partnership.
(2) Each legal practitioner partner must ensure appropriate management systems are implemented and maintained to enable the provision of legal services by the multi-disciplinary partnership:
(a) in accordance with the professional obligations of Australian legal practitioners and the other obligations imposed by this Act; and
(b) so that the professional obligations of legal practitioner partners and employees who are Australian legal practitioners are not affected by other partners and employees of the partnership.
(1) Each of the following is capable of constituting unsatisfactory professional conduct or professional misconduct by a legal practitioner partner:
(a) unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the multi-disciplinary partnership;
(b) conduct of any other partner (not being an Australian legal practitioner) of the multi-disciplinary partnership that adversely affects the provision of legal services by the partnership;
(c) the unsuitability of any other partner (not being an Australian legal practitioner) of the multi-disciplinary partnership to be a member of a partnership that provides legal services.
(2) A legal practitioner partner of a multi-disciplinary partnership must ensure all reasonable action available to the legal practitioner partner is taken to deal with any unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the partnership.
A partner of a multi-disciplinary partnership who is not an Australian legal practitioner does not contravene a provision of this Act merely because of any of the following:
(a) the partner is a member of a partnership where the business of the partnership includes the provision of legal services;
(b) the partner receives any fee, gain or reward for business of the partnership that is the business of an Australian legal practitioner;
(c) the partner holds out, advertises or represents himself or herself as a member of a partnership where the business of the partnership includes the provision of legal services;
(d) the partner shares with any other partner the receipts of business of the partnership that is the business of an Australian legal practitioner;
unless the provision expressly applies to a partner of a multi-disciplinary partnership who is not an Australian legal practitioner.
(1) An Australian legal practitioner who provides legal services in the capacity of a partner or an employee of a multi-disciplinary partnership:
(a) is not excused from compliance with professional obligations as an Australian legal practitioner, or any other obligations as an Australian legal practitioner under any law; and
(b) does not lose the professional privileges of an Australian legal practitioner.
(2) The law relating to client legal privilege (or other
legal professional privilege) is not excluded or otherwise affected because an
Australian legal practitioner is acting in the capacity of a partner or an
employee of a
multi-disciplinary
partnership.
(1) For the application of any law (including the common law) or legal profession rules relating to conflicts of interest to the conduct of an Australian legal practitioner who is:
(a) a legal practitioner partner of a multi-disciplinary partnership; or
(b) an employee of a multi-disciplinary partnership;
the interests of the partnership or any partner of the multi-disciplinary partnership are also taken to be those of the practitioner concerned (in addition to any interests that the practitioner has apart from this subsection).
(2) Legal profession rules may be made for or with respect to additional duties and obligations in connection with conflicts of interest arising out of the conduct of a multi-disciplinary partnership.
Note for section 158
Under section 157, an Australian legal practitioner who is a partner of an multi-disciplinary partnership must comply with the same professional obligations as other practitioners.
(1) A person (the "legal practitioner") is guilty of an offence if:
(a) someone else (the "client") engages a multi-disciplinary partnership to provide services (the "required services") that the client might reasonably assume to be legal services; and
(b) the legal practitioner is:
(i) a legal practitioner partner of the partnership; or
(ii) an employee of the partnership who is an Australian legal practitioner and provides the required services on behalf of the partnership; and
(c) the legal practitioner fails to ensure a disclosure, complying with the requirements of this section and regulations made for this section, is made to the client in relation to the provision of the required services.
Maximum penalty: 100 penalty units.
(2) The disclosure must be made by giving the person written notice:
(a) specifying the services to be provided; and
(b) specifying whether or not all the legal services to be provided will be provided by an Australian legal practitioner; and
(c) if some or all of the legal services to be provided will not be provided by an Australian legal practitioner – identifying those services and indicating the status or qualifications of the person or persons who will provide the services; and
(d) specifying that this Act applies to the provision of legal services but not to the provision of the non-legal services.
Example for subsection (2)(c)
A conveyancing agent as defined in the Agents Licensing Act.
(3) The regulations may make provision for or with respect to any of the following:
(a) the way in which disclosure is to be made;
(b) additional matters required to be disclosed in connection
with the provision of legal services or non-legal services by a
multi-disciplinary partnership.
(4) Without limiting subsection (3), the additional matters may include the kind of services provided by the multi-disciplinary partnership and whether the services are or are not covered by the insurance or other provisions of this Act.
(5) A disclosure under this section to a person about the provision of legal services may relate to the provision of legal services on one occasion or on more than one occasion or on an on-going basis.
(1) This section applies if:
(a) section 159 applies in relation to a service that is provided to a person who has engaged a multi-disciplinary partnership to provide the service and that the person might reasonably assume to be a legal service; and
(b) a disclosure has not been made under that section in relation to the service.
(2) The standard of care owed by the multi-disciplinary partnership in respect of the service is the standard that would be applicable if the service had been provided by an Australian legal practitioner.
Legal profession rules, so far as they apply to Australian legal practitioners, also apply to Australian legal practitioners who are legal practitioner partners or employees of a multi-disciplinary partnership, unless the rules otherwise provide.
(1) Any restriction imposed by or under this Act or any other Act, the regulations or legal profession rules in connection with advertising by Australian legal practitioners applies to advertising by a multi-disciplinary partnership with respect to the provision of legal services.
(2) If a restriction referred to in subsection (1) is limited to a particular branch of the legal profession or for persons who practise in a particular style of legal practice, the restriction applies only to the extent that the multi-disciplinary partnership carries on the business of the relevant class of Australian legal practitioners.
(3) An advertisement of the kind referred to in this section is, for disciplinary proceedings taken against an Australian legal practitioner, taken to have been authorised by each legal practitioner partner of the multi-disciplinary partnership.
(4) This section does not apply if the provision by which the restriction is imposed expressly excludes its applications to multi-disciplinary partnerships.
(1) Nothing in this Act prevents a legal practitioner partner, or an Australian legal practitioner who is an employee of a multi-disciplinary partnership, from sharing receipts, revenue or other income arising from the provision of legal services by the partner or practitioner with a partner or partners who are not Australian legal practitioners.
(2) This section does not extend to the sharing of receipts, revenue or other income in contravention of section 164 and has effect subject to section 74.
A legal practitioner partner of a multi-disciplinary partnership is guilty of an offence if the partner knowingly:
(a) is a partner of a disqualified person in the partnership; or
(b) shares with a disqualified person the receipts, revenue or other income arising from the provision of legal services by the partnership; or
(c) employs or pays a disqualified person in connection with the provision of legal services by the partnership.
Maximum penalty: 500 penalty units.
(1) This section applies to a person who:
(a) is not an Australian legal practitioner; and
(b) is or was a partner of an Australian legal practitioner.
(2) On application by the Law Society, the Supreme Court may make an order prohibiting any Australian legal practitioner from being a partner, in a business that includes the provision of legal services, of a specified person to whom this section applies if:
(a) the Court is satisfied the person is not a fit and proper person to be a partner; or
(b) the Court is satisfied the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct; or
(c) in the case of a corporation – the Court is satisfied the corporation has been disqualified from providing legal services in this jurisdiction or there are grounds for disqualifying the corporation from providing legal services in this jurisdiction.
(3) An order made under this section may be revoked by the Court on application by the Society or by the person against whom the order was made.
(4) The death of an Australian legal practitioner does not prevent an application being made for, or the making of, an order under this section in relation to a person who was a partner of the practitioner.
(5) The regulations may make provision for or with respect to the publication and notification of orders made under this section.
A person is guilty of an offence if:
(a) the person causes or induces another person to contravene this Act or his or her professional obligations as an Australian legal practitioner; and
(b) the other person is:
(i) a legal practitioner partner of a multi-disciplinary partnership; or
(ii) another Australian legal practitioner who is an employee of a multi-disciplinary partnership and provides legal services.
Maximum penalty: 400 penalty units or imprisonment for 2 years.
Division 4 – Miscellaneous matters
Except as provided by this Part, nothing in this Part affects any obligation imposed on:
(a) a legal practitioner director or an Australian legal practitioner who is an employee of an incorporated legal practice; or
(b) a legal practitioner partner or an Australian legal practitioner who is an employee of a multi-disciplinary partnership;
under this Act or any other Act in his or her capacity as an Australian legal practitioner.
(1) The regulations may make provision for or with respect to any of the following matters:
(a) the legal services provided by incorporated legal practices or legal practitioner partners or employees of multi-disciplinary partnerships;
(b) other services provided by incorporated legal practices or legal practitioner partners or employees of multi-disciplinary partnerships in circumstances where a conflict of interest relating to the provision of legal services may arise.
(2) A regulation prevails over any inconsistent provision of the legal profession rules.
(3) A regulation may provide that a breach of the regulations is capable of constituting unsatisfactory professional conduct or professional misconduct:
(a) in the case of an incorporated legal practice – by a legal practitioner director, or by an Australian legal practitioner responsible for the breach, or both; or
(b) in the case of a multi-disciplinary partnership – by a legal practitioner partner, or by an Australian legal practitioner responsible for the breach, or both.
PART 2.7 – LEGAL PRACTICE BY FOREIGN LAWYERS
Division 1 – Preliminary matters
The purpose of this Part is to encourage and facilitate the internationalisation of legal services and the legal services sector by providing a framework for the regulation of the practice of foreign law in this jurisdiction by foreign lawyers as a recognised aspect of legal practice in this jurisdiction.
In this Part:
"Australia" includes the external Territories;
"Australian law" means law of the Commonwealth or of a jurisdiction;
"foreign law" means law of a foreign country;
"foreign law practice" means a partnership or corporate entity that is entitled to engage in legal practice in a foreign country;
"foreign registration authority" means an entity in a foreign country having the function, conferred by the law of the foreign country, of registering persons to engage in legal practice in the country;
"local registration certificate" means a registration certificate given under this Part;
"overseas-registered foreign lawyer" means an individual who is properly registered to engage in legal practice in a foreign country by the foreign registration authority for the country;
"practise foreign law" means doing work, or transacting business, in this jurisdiction concerning foreign law, being work or business of a kind that, if it concerned the law of this jurisdiction, would ordinarily be done or transacted by an Australian legal practitioner;
"registered", when used in connection with a foreign country, means having all necessary licences, approvals, admissions, certificates or other forms of authorisation (including practising certificates) required by or under legislation for engaging in legal practice in the country.
(1) This Part does not apply to an Australian legal practitioner (including an Australian legal practitioner who is also an overseas-registered foreign lawyer).
(2) Accordingly, nothing in this Part requires or enables an Australian legal practitioner (including an Australian legal practitioner who is also an overseas-registered foreign lawyer) to be registered as a foreign lawyer under this Act in order to practise foreign law in this jurisdiction.
Division 2 – Practice of foreign law
(1) A person is guilty of an offence if:
(a) the person practises foreign law in this jurisdiction; and
(b) the person is not;
(i) an Australian-registered foreign lawyer; or
(ii) an Australian legal practitioner.
Maximum penalty: 500 penalty units.
(2) Subsection (1) does not apply to an overseas-registered foreign lawyer:
(a) who:
(i) practises foreign law in this jurisdiction for one or more periods that do not in aggregate exceed 90 days in any period of 12 months; or
(ii) is subject to a restriction imposed under the Migration Act 1958 (Cth) that has the effect of limiting the period during which work may be done, or business transacted, in Australia by the person; and
(b) who:
(i) does not maintain an office for practising foreign law in this jurisdiction; or
(ii) does not become a partner or director of a law practice.
An Australian-registered foreign lawyer is, subject to this Act, entitled to practise foreign law in this jurisdiction.
(1) An Australian-registered foreign lawyer may provide only the following legal services in this jurisdiction:
(a) doing work, or transacting business, concerning the law of a foreign country where the lawyer is registered by the foreign registration authority for the country;
(b) legal services (including appearances) in relation to arbitration proceedings of a kind prescribed by the regulations;
(c) legal services (including appearances) in relation to proceedings before bodies other than courts, being proceedings in which the body concerned is not required to apply the rules of evidence and in which knowledge of the foreign law of a country referred to in paragraph (a) is essential;
(d) legal services for conciliation, mediation and other forms of consensual dispute resolution of a kind prescribed by the regulations.
(2) Nothing in this Act authorises an Australian-registered foreign lawyer to appear in any court (except on the lawyer's own behalf) or to practise Australian law in this jurisdiction.
(3) Despite subsection (2), an Australian-registered foreign lawyer may advise on the effect of an Australian law if:
(a) the giving of advice on Australian law is necessarily incidental to the practice of foreign law; and
(b) the advice is expressly based on advice given on the Australian law by an Australian legal practitioner who is not an employee of the foreign lawyer.
(1) An Australian-registered foreign lawyer may (subject to any conditions attaching to the foreign lawyer's registration) practise foreign law:
(a) on the foreign lawyer's own account; or
(b) in partnership with one or more Australian-registered foreign lawyers or one or more Australian legal practitioners, or both, in circumstances where, if the Australian-registered foreign lawyer were an Australian legal practitioner, the partnership would be permitted under a law of this jurisdiction; or
(c) as a director or employee of an incorporated legal practice or a partner or employee of a multi-disciplinary partnership that is permitted by a law of this jurisdiction; or
(d) as an employee of an Australian legal practitioner or law firm in circumstances where, if the Australian-registered foreign lawyer were an Australian legal practitioner, the employment would be permitted under a law of this jurisdiction; or
(e) as an employee of an Australian-registered foreign lawyer.
(2) An affiliation referred to in subsection (1)(b) to (e) does not entitle the Australian-registered foreign lawyer to practise Australian law in this jurisdiction.
(1) An Australian-registered foreign lawyer must not engage in any conduct in practising foreign law that would, if the conduct were engaged in by an Australian legal practitioner in practising Australian law in this jurisdiction, be capable of constituting professional misconduct or unsatisfactory professional conduct.
(2) Chapter 4 applies to a person who:
(a) is an Australian-registered foreign lawyer; or
(b) was an Australian-registered foreign lawyer when the relevant conduct allegedly occurred, but is no longer an Australian-registered foreign lawyer (in which case Chapter 4 applies as if the person were an Australian-registered foreign lawyer);
and so applies as if references in Chapter 4 to an Australian legal practitioner were references to a person of that kind.
(3) The regulations may make provision for or with respect to the application (with or without modifications) of the provisions of Chapter 4 for this section.
(4) Without limiting the matters that may be taken into account in deciding whether a person should be disciplined for a contravention of subsection (1), the following matters may be taken into account:
(a) whether the conduct of the person was consistent with the standard of professional conduct of the legal profession in any foreign country where the person is registered;
(b) whether the person contravened the subsection intentionally or without reasonable excuse.
(5) Without limiting any other provision of this section or the orders that may be made under Chapter 4 as applied by this section, the following orders may be made under that Chapter as applied by this section:
(a) an order that a person's registration under this Act as a foreign lawyer be cancelled;
(b) an order that a person's registration under a corresponding law as a foreign lawyer be cancelled.
(1) An Australian-registered foreign lawyer may use only the following designations:
(a) the lawyer's own name;
(b) a title or business name the lawyer is authorised by law to use in a foreign country where the lawyer is registered by a foreign registration authority;
(c) subject to this section, the name of a foreign law practice with which the lawyer is affiliated or associated (whether as a partner, director, employee or otherwise);
(d) if the lawyer is a principal of any law practice in Australia whose principals include both one or more Australian-registered foreign lawyers and one or more Australian legal practitioners – a description of the practice that includes reference to both Australian legal practitioners and Australian-registered foreign lawyers (for example, "Solicitors and locally-registered foreign lawyers" or "Australian solicitors and US attorneys").
(2) An Australian-registered foreign lawyer who is a principal of a foreign law practice may use the practice's name in or in connection with practising foreign law in this jurisdiction only if:
(a) the lawyer indicates, on the lawyer's letterhead or any other document used in this jurisdiction to identify the lawyer as an overseas-registered foreign lawyer, that the foreign law practice practises only foreign law in this jurisdiction; and
(b) the lawyer has provided the Law Society with acceptable evidence that the lawyer is a principal of the foreign law practice.
(3) An Australian-registered foreign lawyer who is a principal of a foreign law practice may use the name of the practice as referred to in this section whether or not other principals of the practice are Australian-registered foreign lawyers.
(4) This section does not authorise the use of a name or other designation that contravenes any requirements of the law of this jurisdiction concerning the use of business names or that is likely to lead to any confusion with the name of any established domestic law practice or foreign law practice in this jurisdiction.
(1) An Australian-registered foreign lawyer must indicate, in each public document distributed by the lawyer in connection with the lawyer's practice of foreign law, the fact that the lawyer is an Australian-registered foreign lawyer and is restricted to the practice of foreign law.
(2) Subsection (1) is satisfied if the lawyer includes in the public document the words:
(a) "registered foreign lawyer" or "registered foreign practitioner"; and
(b) "entitled to practise foreign law only".
(3) An Australian-registered foreign lawyer may (but need not) include any or all of the following on any public document:
(a) an indication of all foreign countries in which the lawyer is registered to engage in legal practice;
(b) a description of himself or herself, and any law practice with which the lawyer is affiliated or associated, in any of the ways designated in section 177.
(4) In this section:
"public document" includes any business letter, statement of account, invoice, business card and promotional and advertising material.
(1) An Australian-registered foreign lawyer is required to comply with any advertising restrictions imposed by the Law Society or by law on legal practice engaged in by an Australian legal practitioner that are relevant to the practice of law engaged in this jurisdiction.
(2) Without limiting subsection (1), an Australian-registered foreign lawyer must not advertise (or use any description on the lawyer's letterhead or any other document used in this jurisdiction to identify the lawyer as a lawyer) in any way that:
(a) might reasonably be regarded as:
(i) false, misleading or deceptive; or
(ii) suggesting that the Australian-registered foreign lawyer is an Australian legal practitioner; or
(b) contravenes any requirements of the regulations.
(1) An Australian-registered foreign lawyer may employ one or more Australian legal practitioners.
(2) Employment of an Australian legal practitioner does not entitle an Australian-registered foreign lawyer to practise Australian law in this jurisdiction.
(3) An Australian legal practitioner employed by an Australian-registered foreign lawyer may practise foreign law.
(4) An Australian legal practitioner employed by an Australian-registered foreign lawyer must not:
(a) provide advice on Australian law to, or for use by, the Australian-registered foreign lawyer; or
(b) otherwise practise Australian law in this jurisdiction in the course of that employment.
(5) Subsection (4) does not apply to an Australian legal practitioner employed by a law firm a partner of which is an Australian-registered foreign lawyer, if at least one other partner is an Australian legal practitioner.
(6) Any period of employment of an Australian legal practitioner by an Australian-registered foreign lawyer cannot be used to satisfy a requirement imposed by a condition on a local practising certificate to complete a period of supervised legal practice.
(1) The provisions of Part 3.1, and any other provisions of this Act, relating to requirements for trust money and trust accounts, apply (subject to this section) to Australian-registered foreign lawyers in the same way as they apply to law practices and Australian legal practitioners.
(2) In this section, a reference to money is not limited to a reference to money in this jurisdiction.
(3) The regulations may make provision with respect to the application (with or without modification) of the provisions of this Act relating to trust money and trust accounts for this section.
(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 indemnity 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 statement to each client specifying 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 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.
The regulations may provide that provisions of Part 3.5 apply to classes of Australian-registered foreign lawyers prescribed by the regulations and so apply with any modifications specified in the regulations.
Division 3 – Local registration of foreign lawyers generally
Overseas-registered foreign lawyers may be registered as foreign lawyers under this Act.
(1) Registration as a foreign lawyer granted under this Act is in force from the day specified in the local registration certificate until the end of the financial year in which it is granted, unless the registration is sooner suspended or cancelled.
(2) Registration as a foreign lawyer renewed under this Act is in force until the end of the financial year following its previous period of currency, unless the registration is sooner suspended or cancelled.
(3) If an application for the renewal of registration as a foreign lawyer has not been decided by the following 1 July, the registration:
(a) continues in force on and from that 1 July until the Law Society renews or refuses to renew the registration or the holder withdraws the application for renewal, unless the registration is sooner suspended or cancelled; and
(b) if renewed, is taken to have been renewed on and from that 1 July.
A locally-registered foreign lawyer is not an officer of the Supreme Court.
Division 4 – Applications for grant or renewal of local registration
An overseas-registered foreign lawyer may apply to the Law Society for the grant or renewal of registration as a foreign lawyer under this Act.
(1) An application for the grant or renewal of registration as a foreign lawyer must be:
(a) made in the approved form; and
(b) accompanied by the fee prescribed by the regulations.
(2) Different fees may be set according to different factors.
(3) The fees must not be greater than the maximum fees for a local practising certificate.
(4) The Society may also require the applicant to pay any reasonable costs and expenses incurred by the Society in considering the application, including (for example) costs and expenses of making inquiries and obtaining information or documents about whether the applicant meets the criteria for registration.
(5) The fees and costs must not include any component for compulsory membership of any professional association.
(6) The approved form may require the applicant to disclose:
(a) matters that may affect the Society's consideration of the application for the grant or renewal of registration; and
(b) particulars of any offences for which the applicant has been convicted in Australia or a foreign country, whether before or after the commencement of this section.
(7) The approved form may indicate that convictions of a particular kind need not be disclosed for the purposes of the current application.
(8) The approved form may indicate that specified kinds of matters or particulars previously disclosed in a particular manner need not be disclosed for the purposes of the current application.
(1) An application for grant of registration must specify the applicant's educational and professional qualifications.
(2) An application for grant or renewal of registration must:
(a) specify that the applicant is registered to engage in legal practice by one or more specified foreign registration authorities in one or more foreign countries; and
(b) specify that the applicant is not an Australian legal practitioner; and
(c) specify that the applicant is not the subject of disciplinary proceedings in Australia or a foreign country (including any preliminary investigations or action that might lead to disciplinary proceedings) in the applicant's capacity as:
(i) an overseas-registered foreign lawyer; or
(ii) an Australian-registered foreign lawyer; or
(iii) an Australian lawyer; and
(d) specify 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
(e) specify that the applicant's registration is not cancelled or currently suspended in any place as a result of any disciplinary action in Australia or a foreign country; and
(f) specify:
(i) that the applicant is not otherwise personally prohibited from engaging in legal practice in any place or bound by any undertaking not to engage in legal practice in any place; and
(ii) whether or not the applicant is subject to any special conditions in engaging in legal practice in any place;
as a result of criminal, civil or disciplinary proceedings in Australia or a foreign country; and
(g) specify any special conditions imposed in Australia or a foreign country as a restriction on legal practice engaged in by the applicant or any undertaking given by the applicant restricting the applicant's practice of law; and
(h) give consent to the making of inquiries of, and the exchange of information with, any foreign registration authorities the Law Society considers appropriate regarding the applicant's activities in engaging in legal practice in the places concerned or otherwise regarding matters relevant to the application; and
(i) specify which of the paragraphs of section 182(1) the applicant proposes to rely on and be accompanied by supporting proof of the relevant matters; and
(j) provide the information or be accompanied by the other information or documents (or both) that is specified in the application form or in material accompanying the application form as provided by the Society.
(3) The application must (if the Society so requires) be accompanied by an original instrument, or a copy of an original instrument, from each foreign registration authority specified in the application that:
(a) verifies the applicant's educational and professional qualifications; and
(b) verifies the applicant's registration by the authority to engage in legal practice in the foreign country concerned and the date of registration; and
(c) describes anything done by the applicant in engaging in legal practice in that foreign country of which the authority is aware and that, in the opinion of the authority, has had or is likely to have had an adverse effect on the applicant's professional standing within the legal profession of that place.
(4) The applicant must (if the Society so requires) certify in the application that the accompanying instrument is the original or a complete and accurate copy of the original.
(5) The Society may require the applicant to verify the statements in the application by statutory declaration or by other proof acceptable to the Society.
(6) If the accompanying instrument is not in English, it must be accompanied by a translation in English that is authenticated or certified to the satisfaction of the Society.
Division 5 – Grant or renewal of registration
(1) The Law Society must consider an application that has been made for the grant or renewal of registration as a foreign lawyer and may:
(a) grant or refuse to grant the registration; or
(b) renew or refuse to renew the registration.
(2) The Society may, when granting or renewing registration, impose conditions as referred to in section 210.
(3) If the Society grants or renews registration, it must, as soon as practicable, give the applicant a registration certificate or a notice of renewal.
(4) If the Society:
(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 Society must, as soon as practicable, give the applicant an information notice.
(5) A notice of renewal may be in the form of a new registration certificate or any other form the Society considers appropriate.
(1) The Law Society must grant an application for registration as a foreign lawyer if the Society:
(a) is satisfied the applicant is registered to engage in legal practice in one or more foreign countries and is not an Australian legal practitioner; and
(b) considers an effective system exists for regulating engaging in legal practice in one or more of the foreign countries; and
(c) considers the applicant is not, as a result of criminal, civil or disciplinary proceedings in any of the foreign countries, subject to:
(i) any special conditions in engaging in legal practice in any of the foreign countries; or
(ii) any undertakings concerning engaging in legal practice in any of the foreign countries;
that would make it inappropriate to register the person; and
(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;
unless the Society refuses the application under this Part.
(2) The Society must grant an application for renewal of a person's registration, unless the Society refuses renewal under this Part.
(3) Residence or domicile in this jurisdiction is not to be a prerequisite for or a factor in entitlement to the grant or renewal of registration.
(1) The Law Society may refuse to consider an application if:
(a) it is not made in accordance with this Act; or
(b) the fee prescribed by the regulations and costs have not been paid.
(2) The Society may refuse to grant or renew registration if:
(a) the application is not accompanied by, or does not contain, the information required by this Part or prescribed by the regulations; or
(b) the applicant has contravened this Act or a corresponding law; or
(c) the applicant has contravened an order of the Disciplinary Tribunal or a corresponding disciplinary body, including but not limited to an order to pay any fine or costs; or
(d) the applicant has contravened an order of a regulatory authority of any jurisdiction to pay any fine or costs; or
(e) the applicant has failed to comply with a requirement under this Act to pay a contribution to, or levy for, the Fidelity Fund; or
(f) the applicant has contravened a requirement of or made under this Act about professional indemnity insurance; or
(g) the applicant has failed to pay any expenses of receivership payable under this Act; or
(h) the applicant's foreign legal practice is in receivership (however described).
(3) The Society may refuse to grant or renew registration if an authority of another jurisdiction has under a corresponding law:
(a) refused to grant or renew registration for the applicant; or
(b) suspended or cancelled the applicant's registration.
(4) The Society may refuse to grant registration if it is satisfied the applicant is not a fit and proper person to be registered after considering:
(a) the nature of any offence for which the applicant has been convicted in Australia or a foreign country, whether before or after the commencement of this section; and
(b) how long ago the offence was committed; and
(c) the person's age when the offence was committed.
(5) The Society may refuse to renew registration if it is satisfied the applicant is not a fit and proper person to continue to be registered after considering:
(a) the nature of any offence for which the applicant has been convicted in Australia or a foreign country, whether before or after the commencement of this section, other than an offence disclosed in a previous application to the Society; and
(b) how long ago the offence was committed; and
(c) the person's age when the offence was committed.
(6) The Society may refuse to grant or renew registration on any ground on which registration could be suspended or cancelled.
(7) If the Society refuses to grant or renew registration, the Society must, as soon as practicable, give the applicant an information notice.
(8) Nothing in this section affects the operation of Division 7.
Division 6 – Amendment, suspension or cancellation of local registration
This Division does not apply in relation to matters referred to in Division 7.
(1) Each of the following is a ground for amending, suspending or cancelling a person's registration as a foreign lawyer:
(a) the registration was obtained because of incorrect or misleading information;
(b) the person contravenes a requirement of this Part;
(c) the person contravenes a condition imposed on the person's registration;
(d) the person becomes the subject of disciplinary proceedings in Australia or a foreign country (including any preliminary investigations or action that might lead to disciplinary proceedings) in the person's capacity as:
(i) an overseas-registered foreign lawyer; or
(ii) an Australian-registered foreign lawyer; or
(iii) an Australian lawyer;
(e) the person is a party in pending criminal or civil proceedings in Australia or a foreign country, or is convicted of an offence, that is likely to result in disciplinary action being taken against the person;
(f) the person's registration is cancelled or currently suspended in any place because of disciplinary action in Australia or a foreign country;
(g) the person does not meet the requirements of section 182;
(h) the person has become an insolvent under administration;
(i) another ground the Law Society considers sufficient.
(2) Subsection (1) does not limit the grounds on which conditions may be imposed on registration as a foreign lawyer under section 210.
(1) If the Law Society considers reasonable grounds exist to amend, suspend or cancel a person's registration by it as a foreign lawyer (the "action"), the Society must give the person a notice that:
(a) specifies the action proposed and:
(i) if the proposed action is to amend the registration in any way – specifies the proposed amendment; and
(ii) if the proposed action is to suspend the registration – specifies the proposed suspension period; and
(b) specifies the grounds for proposing to take the action; and
(c) outlines the facts and circumstances that form the basis for the Society's belief; and
(d) invites the person to make written representations to the Society, within a specified time not less than 7 days and not more than 28 days, as to why the action proposed should not be taken.
(2) If, after considering all written representations made within the specified time, the Society still believes grounds exist to take the action, the Society may:
(a) if the notice specified the action proposed was to amend the registration – amend the registration in the way specified or in another way the Society considers appropriate in the light of the representations; or
(b) if the notice specified 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 specified 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 Society considers appropriate because of the representations.
(3) The Society may, at its discretion, consider representations made after the specified time.
(4) The Society must give the person notice of the Society's decision.
(5) If the Society amends, suspends or cancels the registration, the Society must give the person an information notice.
(6) In this section:
"amend", registration, means amend the registration by imposing a condition under section 216 during its currency, otherwise than at the request of the foreign lawyer concerned.
(1) This section applies if a decision is made to amend, suspend or cancel a person's registration under section 195.
(2) Subject to subsections (3) and (4), the amendment, suspension or cancellation of the registration takes effect on the later of the following:
(a) the day notice of the decision is given to the person;
(b) the day specified in the notice.
(3) If the registration is amended, suspended or cancelled because the person has been convicted of an offence:
(a) the Supreme Court may, on the application of the person, order that the operation of the amendment, suspension or cancellation of the registration be stayed until:
(i) the end of the time to appeal against the conviction; and
(ii) if an appeal is made against the conviction – the appeal is finally decided, lapses or otherwise ends; and
(b) the amendment, suspension or cancellation does not have effect during any period in relation to which the stay is in force.
(4) If the registration is amended, suspended or cancelled because the person has been convicted of an offence and the conviction is quashed:
(a) the amendment or suspension ceases to have effect when the conviction is quashed; or
(b) the cancellation ceases to have effect when the conviction is quashed and the registration is restored as if it had merely been suspended.
(1) The Law Society may amend or cancel the registration of a locally-registered foreign lawyer if the lawyer requests the Society to do so.
(2) The Society may amend the registration of a locally-registered foreign lawyer:
(a) for a formal or clerical reason; or
(b) in another way that does not adversely affect the lawyer's interests.
(3) The amendment or cancellation of a registration under this section must be effected by written notice given to the foreign lawyer.
(4) Section 195 does not apply in a case to which this section applies.
Nothing in this Division prevents a complaint being made under Chapter 4 about a matter to which this Division relates.
Division 7 – Special powers in relation to local registration – show cause events
(1) This section applies if:
(a) a person is applying for registration as a foreign lawyer under this Act; and
(b) a show cause event in relation to the person happened, whether before or after the commencement of this section, after the person first became an overseas-registered foreign lawyer.
(2) As part of the application, the person must give the Law Society a written statement, in accordance with the regulations:
(a) about the show cause event; and
(b) explaining why, despite the show cause event, the applicant considers himself or herself to be a fit and proper person to be a locally-registered foreign lawyer.
(3) However, the person need not provide a statement under subsection (2) if the person has previously provided to the Society a statement under this section, or a notice and statement under section 200, explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to be a locally-registered foreign lawyer.
(1) This section applies to a show cause event that happens in relation to a locally-registered foreign lawyer.
(2) The locally-registered foreign lawyer must provide to the Law Society both of the following:
(a) within 7 days after the happening of the event – notice, in the approved form, that the event happened;
(b) within 28 days after the happening of the event – a written statement explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to be a locally-registered foreign lawyer.
(3) If a written statement is provided after the 28 days mentioned in subsection (2)(b), the Society may accept the statement and take it into consideration.
(1) The Law Society may refuse to grant or renew, or may amend, suspend or cancel, local registration if the applicant for registration or the locally-registered foreign lawyer:
(a) is required by section 199 or 200 to give a written statement relating to a matter and has failed to comply with the requirement; or
(b) has given a written statement under section 199 or 200 but the Society does not consider the applicant or foreign lawyer has shown in the statement that, despite the show cause event concerned, the applicant or lawyer is a fit and proper person to be a locally-registered foreign lawyer.
(2) For this section only, a written statement accepted by the Society under section 200(3) is taken to have been given under section 200.
(3) The Society must give the applicant or foreign lawyer an information notice for the decision to refuse to grant or renew, or to suspend or cancel, the registration.
(1) If the Law Society decides under this Division to cancel a person's registration, the Society may also decide that the person is not entitled to apply for registration under this Part for a specified period (being a period not exceeding 5 years).
(2) A person for whom a decision has been made under this section, or under a provision of a corresponding law that corresponds to this section, is not entitled to apply for registration under this Part during the period specified in the decision.
(3) As soon as practicable after making a decision under this section, the Society must give the person an information notice for the decision.
(1) The Law Society has and may exercise powers under Part 4.6 and Chapter 6, in relation to a matter under this Division, as if the matter were the subject of a complaint under Chapter 4.
(2) Accordingly, the provisions of Part 4.6 and Chapter 6 apply (with the necessary modifications) in relation to a matter under this Division.
(3) Nothing in this Division prevents a complaint being made under Chapter 4 about a matter to which this Division relates.
Division 8 – Further provisions relating to local registration
(1) This section applies, despite sections 195 and 196 if the Law Society considers it necessary in the public interest to immediately suspend a person's registration as a foreign lawyer.
(2) The Society may, by written notice given to the person, immediately suspend the registration until the earlier of the following:
(a) the time at which the Society informs the person of the Society's decision by notice under section 195;
(b) the end of the period of 56 days after the notice is given to the person under this section.
(3) The notice under this section must:
(a) include an information notice about the suspension; and
(b) specify that the person may make written representations to the Society about the suspension.
(4) The person may make written representations to the Society about the suspension, and the Society must consider the representations.
(5) The Society may revoke the suspension at any time, whether or not in response to any written representations made to it by the person.
(1) A person registered as a foreign lawyer under this Part may surrender the local registration certificate to the Law Society.
(2) The Society may cancel the registration.
A person's registration as a foreign lawyer under this Part is taken to be cancelled if the person becomes an Australian legal practitioner.
The suspension or cancellation of a person's registration as a foreign lawyer under this Part does not affect any disciplinary processes in relation to matters arising before the suspension or cancellation.
(1) This section applies if a person's registration under this Part as a foreign lawyer is amended, suspended or cancelled.
(2) The Law Society may give the person a notice requiring the person to return the certificate to the Society in the way specified in the notice within a specified period of not less than 14 days.
(3) The person must comply with the notice.
Maximum penalty: 20 penalty units.
(4) It is a defence to a prosecution for an offence against subsection (3) if the person has a reasonable excuse.
(5) An offence against subsection (3) is an offence of strict liability.
(6) If the certificate is amended, the Society must return the certificate to the person as soon as practicable after amending it.
Division 9 – Conditions on registration
Registration as a foreign lawyer under this Part is subject to:
(a) any conditions imposed by the Law Society; and
(b) any statutory conditions imposed by this or any other Act; and
(c) any conditions imposed by or under the legal profession rules; and
(d) any conditions imposed under Chapter 4 or under provisions of a corresponding law that correspond to Chapter 4.
(1) The Law Society may impose conditions on registration as a foreign lawyer:
(a) when it is granted or renewed; or
(b) during its currency.
(2) A condition imposed under this section must be reasonable and relevant.
(3) A condition imposed under this section may be about any of the following:
(a) any matter in relation to which a condition could be imposed on a local practising certificate;
(b) a matter agreed to by the foreign lawyer.
(4) The Society must not impose a condition under subsection (3)(a) that is more onerous than a condition that would be imposed on a local practising certificate of a local legal practitioner in the same or similar circumstances.
(5) The Society may vary or revoke conditions imposed by it under this section.
(1) If a person registered as a foreign lawyer under this Part has been charged with a relevant offence but the charge has not been decided, the Law Society may apply to the Disciplinary Tribunal for an order under this section.
(2) On an application under subsection (1), the Tribunal, if it considers it appropriate to do so having regard to the seriousness of the offence and to the public interest, may make either or both of the following orders:
(a) an order varying the conditions on the practitioner's registration;
(b) an order imposing further conditions on the practitioner's registration.
(3) An order under this section has effect until the sooner of:
(a) the end of the period specified by the Tribunal; or
(b) if the practitioner is convicted of the offence – 28 days after the day of the conviction; or
(c) if the charge is dismissed – the day of the dismissal.
(4) The Tribunal, on application by any party, may vary or revoke an order under this section at any time.
(5) In this section:
"relevant offence" means a serious offence or an offence that would have to be disclosed under the admission rules in relation to an application for admission to the legal profession under this Act.
(1) It is a statutory condition of registration as a foreign lawyer that the lawyer:
(a) must give written notice to the Law Society that the lawyer has been:
(i) convicted of an offence that would have to be disclosed in relation to an application for registration as a foreign lawyer under this Act; or
(ii) charged with a serious offence; and
(b) must do so within 7 days after the event.
(2) The legal profession rules may specify:
(a) the particulars to be included in the notice; and
(b) the person to whom or the address to which the notice is to be sent or delivered.
(3) This section does not apply to an offence to which Division 7 applies.
The regulations may:
(a) impose conditions on the registration of foreign lawyers or any class of foreign lawyers; or
(b) authorise conditions to be imposed on the registration of foreign lawyers or any class of foreign lawyers.
A locally-registered foreign lawyer must not contravene a condition to which the registration is subject.
Maximum penalty: 500 penalty units.
Division 10 – Interstate-registered foreign lawyers
(1) This Part does not authorise an interstate-registered foreign lawyer to practise foreign law in this jurisdiction to a greater extent than a locally-registered foreign lawyer could be authorised under a local registration certificate.
(2) Also, an interstate-registered foreign lawyer's right to practise foreign law in this jurisdiction:
(a) is subject to:
(i) any conditions imposed by the Law Society under section 216; and
(ii) any conditions imposed by or under the legal profession rules as referred to in that section; and
(b) is, to the greatest practicable extent and with all necessary modifications:
(i) the same as the interstate-registered foreign lawyer's right to practise foreign law in the lawyer's home jurisdiction; and
(ii) subject to any condition on the interstate-registered foreign lawyer's right to practise foreign law in that jurisdiction.
(3) If there is an inconsistency between conditions mentioned in subsection (2)(a) and conditions mentioned in subsection (2)(b), the conditions that are, in the opinion of the Society, more onerous prevail to the extent of the inconsistency.
(4) An interstate-registered foreign lawyer must not practise foreign law in this jurisdiction in a way not authorised by this Act or in contravention of any condition referred to in this section.
(1) The Law Society may, by written notice to an interstate-registered foreign lawyer practising foreign law in this jurisdiction, impose any condition on the interstate-registered foreign lawyer's practice that it may impose under this Act in relation to a locally-registered foreign lawyer.
(2) Also, an interstate-registered foreign lawyer's right to practise foreign law in this jurisdiction is subject to any condition imposed by or under an applicable legal profession rule.
(3) Conditions imposed under or referred to in this section must not be more onerous than conditions applying to locally-registered foreign lawyers in the same or similar circumstances.
(4) A notice under this section must include an information notice for the decision to impose a condition.
Division 11 – Miscellaneous matters
(1) To help it consider whether or not to grant, renew, suspend or cancel registration under this Part, or impose conditions on a person's registration under this Part, the Law Society may, by notice to the applicant or locally-registered foreign lawyer, require the applicant or lawyer:
(a) to give it specified documents or information; or
(b) to cooperate with any inquiries it considers appropriate.
(2) A failure to comply with the notice by the date specified in the notice and in the way required by the notice is a ground for making an adverse decision in relation to the action being considered by the Society.
(1) The Law Society must keep a register of the names of locally-registered foreign lawyers.
(2) The register must:
(a) specify the conditions (if any) imposed on a foreign lawyer's registration; and
(b) include other particulars prescribed by the regulations.
(3) The register may be kept in the way the Society decides.
(4) The register must be available for inspection, without charge, at the Society's office during normal business hours.
The Law Society may publish, in circumstances that it considers appropriate, the names of persons registered by it as foreign lawyers under this Part and any relevant particulars concerning those persons.
(1) The Law Society may apply to the Supreme Court for an order or injunction that an Australian-registered foreign lawyer not contravene a condition imposed under this Part.
(2) An undertaking as to damages or costs is not required.
(3) On hearing the application, the Court may make the order it considers appropriate.
(4) This section does not limit section 700.
(1) The Law Society may exempt an Australian-registered foreign lawyer or class of Australian-registered foreign lawyers from compliance with:
(a) a specified provision of this Act; or
(b) a specified rule or part of a rule that would otherwise apply to the foreign lawyer or class of foreign lawyers.
(2) An exemption may be granted unconditionally or subject to conditions specified in writing.
(3) The Society may revoke or vary any conditions imposed under this section or impose new conditions.
An Australian-registered foreign lawyer is not required to join (but may, if eligible, join) any professional association.
(1) The regulations may provide for the refund of a portion of a fee paid in relation to registration as a foreign lawyer if it is suspended or cancelled during its currency.
(2) Without limiting subsection (1), the regulations may specify:
(a) the circumstances in which a refund must be made; and
(b) the amount of the refund or the way in which the amount of the refund must be decided.
(1) An aggrieved person may appeal to the Supreme Court against any of the following decisions of the Law Society:
(a) a decision under section 190, 192 or 201 to refuse to grant or renew the registration of a person as a foreign lawyer;
(b) a decision under section 190 to impose a condition on the registration of a person as a foreign lawyer;
(c) a decision under section 216 to impose a condition on an interstate-registered foreign lawyer's practice in this jurisdiction;
(d) a decision under section 202 that the person is not entitled to apply for registration under this Part for a specified period;
(e) a decision under section 195, 201 or 204 to amend, suspend or cancel a person's registration as a foreign lawyer.
(2) An aggrieved person is:
(a) the applicant for registration; or
(b) the locally-registered foreign lawyer or interstate-registered foreign lawyer concerned.
(3) The appeal must be started by filing a notice of appeal within 28 days after receiving the information notice for the decision.
(4) The notice of appeal must state fully the grounds of appeal.
(5) On hearing the appeal, the Court may make the order it considers appropriate.
(6) Except to the extent (if any) that may be ordered by the Court, the filing of an appeal does not stay the effect of the refusal, amendment, suspension or cancellation appealed against.
PART 2.8 – COMPLYING COMMUNITY LEGAL CENTRES
The purpose of this Part is to facilitate the provision of legal services by non-profit bodies corporate for community purposes.
In this Part:
"employ" means to employ under a contract of employment or service;
"engage" means to use the services of, whether or not for reward or remuneration;
"supervising legal practitioner", see section 227(d).
A body corporate is a complying community legal centre if:
(a) it is funded or expected to be funded to a significant level by donations or grants from government, charitable or other organisations; and
(b) it holds itself out as providing legal services mentioned in paragraph (c), whether or not they are the only services it provides; and
(c) it provides legal services, other than for deriving a profit:
(i) to persons or organisations lacking the financial means to obtain privately funded legal services; or
(ii) to persons or organisations in relation to a legal matter that is expected to raise issues of public interest or to be of general concern to disadvantaged groups in the community; or
(iii) to persons or organisations having a special need because of their location or the nature of the legal matter; or
(iv) to persons having a significant physical or social disability; and
(d) it employs, or under an approval given under section 229, temporarily engages, a qualified legal practitioner who is responsible for the provision of the legal services (the "supervising legal practitioner"); and
(e) it has given the Society the information and fee prescribed by the regulations.
(1) A legal practitioner is qualified as the supervising legal practitioner of a complying community legal centre if the practitioner is an Australian legal practitioner who holds an unrestricted practising certificate.
(2) A complying community legal centre is not prevented from employing or temporarily engaging as the supervising legal practitioner a person who:
(a) is on the centre's board of management (however described); or
(b) is involved in the centre's management.
(1) A complying community legal centre may apply to the Law Society for approval to temporarily engage the legal practitioner named in the application to be the centre's supervising legal practitioner.
(2) The Society may give written approval only if it is satisfied:
(a) the practitioner is an Australian legal practitioner who holds an unrestricted practising certificate; and
(b) it is not practicable for the centre to employ a supervising legal practitioner; and
(c) the person will be able to properly supervise the provision of legal services at the centre; and
(d) the benefits of the temporary engagement to the centre's clients or potential clients will outweigh the disadvantage that would be caused to the clients if the centre were unable to provide legal services.
(3) The approval is for the period, not exceeding 12 weeks, specified in it.
(4) The centre may apply to the Society for further approvals under this section.
(5) If the Society refuses to give an approval under this section it must, as soon as practicable:
(a) publish particulars of the refusal in the Gazette; and
(b) give notice of the refusal to the Statutory Supervisor.
(6) Within 30 days after receiving the notice, the Supervisor:
(a) must review the Society's decision; and
(b) must:
(i) refuse to revoke the decision; or
(ii) revoke the decision and approve the application.
(7) The Supervisor may revoke the decision and approve the application only if satisfied it is in the public interest to do so.
(8) If the Supervisor revokes the decision and approves the application, the Supervisor must:
(a) publish notice of the decision in the Gazette; and
(b) give the Society written reasons for the decision.
(1) A complying community legal centre must give written notice to the Law Society of the name of, and of any change in, the supervising legal practitioner employed or engaged by it.
Maximum penalty: 20 penalty units.
(2) An offence against subsection (1) is an offence of strict liability.
(1) Subject to subsection (2) and the regulations, Parts 3.1, 3.4 and 3.5 and Chapters 5, 6 and 9 (the "applied provisions") apply (with the necessary modifications) in relation to a complying community legal centre as if:
(a) a reference in the applied provisions to a law practice were a reference to a complying community legal centre; and
(b) the supervising legal practitioner of the centre were the principal of the practice.
(2) In addition, a complying community legal centre must not operate a trust account under Part 3.1 unless the centre's supervising legal practitioner is a signatory to the account.
(3) For subsection (1), the following provisions also apply in relation to the application of the applied provisions:
(a) definitions necessary to give effect to the applied provisions;
(b) regulations made for the applied provisions.
(1) A complying community legal centre does not contravene this Act merely because:
(a) it employs, or otherwise uses the services of, Australian legal practitioners to provide legal services to members of the public; or
(b) it has a contractual relationship with a member of the public to whom the legal services are provided or receives any fee, gain or reward for providing the legal services; or
(c) it shares with an Australian legal practitioner employed or otherwise used by it to provide the legal services receipts, revenue or other income arising from the business of the centre of a kind usually conducted by an Australian legal practitioner; or
(d) it adopts or uses the word "legal" or a name, title or description to which section 20 applies (or a related term) in its name or any registered business name under which it provides legal services to members of the public.
(2) Subsection (1) has effect despite anything to the contrary in this Act.
(3) The regulations may make provision in relation to:
(a) the application (with any modifications prescribed by the regulations) of a provision of this Act to a complying community legal centre; and
(b) the legal services provided by a complying community legal centre.
(4) The regulations may provide that a breach of the regulations is capable of being unsatisfactory professional conduct or professional misconduct by an Australian legal practitioner responsible for the breach.
(5) A provision of the legal profession rules that applies to an Australian legal practitioner also applies to an Australian legal practitioner who is an officer or employee of, or whose services are used by, a complying community legal centre, unless the rules otherwise provide.
(1) For the making or enforcement of an order for costs, or deciding an entitlement to costs, in a proceeding before a court or tribunal to which an assisted person is a party, the person is taken to be liable to pay:
(a) the ordinary professional costs of the legal services provided to the person or in connection with the proceeding; and
(b) disbursements and out-of-pocket expenses incurred in connection with the provision of the services.
(2) In this section:
"assisted person" means a person to whom legal services are provided by a complying community legal centre.
CHAPTER 3 – CONDUCT OF LEGAL PRACTICE
PART 3.1 – TRUST MONEY AND TRUST ACCOUNTS
Division 1 – Preliminary matters
The purposes of this Part are as follows:
(a) to ensure trust money is held by law practices in a way that protects the interests of persons for whom money is held, both inside and outside this jurisdiction;
(b) to minimise compliance requirements for law practices that provide legal services within and outside this jurisdiction;
(c) to ensure the Law Society can work effectively with corresponding authorities in other jurisdictions in relation to the regulation of trust money and trust accounts.
(1) In this Part:
"approved ADI" means an ADI approved under section 278 by the Law Society;
"approved trust account" means a trust account approved under section 278 by the Law Society;
"controlled money" means money received or held by a law practice in respect of which the practice has a written direction to deposit the money in an account (other than a general trust account) over which the practice has or will have exclusive control;
Note for definition "controlled money"
Section 248(6) prevents pooling of controlled money.
"controlled money account" means an account maintained by a law practice with an ADI for the holding of controlled money received by the practice;
"deposit record" includes a deposit slip or duplicate deposit slip;
"designated persons", for Division 3, Subdivision 2, see section 268(1);
"external examination" means an external examination under Division 3, Subdivision 2 of a law practice's trust records;
"external examiner" means a person holding an appointment as an external examiner under Division 3, Subdivision 2;
"general trust account" means an approved trust account maintained by a law practice for the holding of trust money received by the practice, other than controlled money or transit money;
"investigation" means an investigation under Division 3, Subdivision 1 of the affairs of a law practice;
"investigator" means a person holding an appointment as an investigator under Division 3, Subdivision 1;
"permanent form", in relation to a trust record, means printed or, on request, capable of being printed, in English on paper or other material;
"power" includes authority;
"transit money" means money received by a law practice subject to instructions to pay or deliver it to a third party, other than an associate of the practice;
"trust account" means an account maintained by a law practice with an approved ADI to hold trust money;
"trust money" means money 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;
"trust money protocols", see section 239(1);
"trust records" includes the following documents:
(a) receipts;
(b) cheque butts or cheque requisitions;
(c) records of authorities to withdraw by electronic funds transfer;
(d) deposit records;
(e) trust account ADI statements;
(f) trust account receipts and payments cash books;
(g) trust ledger accounts;
(h) records of monthly trial balances;
(i) records of monthly reconciliations;
(j) trust transfer journals;
(k) statements of account as required to be furnished under the regulations;
(l) registers required to be kept under the regulations;
(m) monthly statements required to be kept under the regulations;
(n) files relating to trust transactions or bills of costs or both;
(o) written directions, authorities or other documents required to be kept under this Act;
(p) supporting information required to be kept under the regulations in relation to powers to deal with trust money.
(2) A reference in this Part to a law practice's trust account or trust records includes a reference to an associate's trust account or trust records.
(3) A reference in this Part to a power given to a law practice or an associate of the practice to deal with money for or on behalf of another person is a reference to a power given to the practice or associate that is exercisable by:
(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;
(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.
(1) Money that is entrusted to or held by a law practice for or in connection with the following is not trust money for this Act:
(a) a financial service provided by the practice or an associate of the practice in circumstances where the practice or associate is required to hold an Australian financial services licence covering the provision of the service (whether or not such a licence is held at any relevant time);
(b) a financial service provided by the practice or an associate of the practice in circumstances where the practice or associate provides the service as a representative of another person who carries on a financial services business (whether or not the practice or associate is an authorised representative at any relevant time).
(2) Without limiting subsection (1), money that is entrusted to or held by a law practice for or in connection with a managed investment scheme, or mortgage financing, undertaken by the practice is not trust money for this Act.
(3) Without limiting subsections (1) and (2), money that is entrusted to or held by a law practice for investment purposes, whether on its own account or as agent, is not trust money for this Act, unless:
(a) the money was entrusted to or held by the practice:
(i) in the ordinary course of legal practice; and
(ii) primarily in connection with the provision of legal services to or at the direction of the client; and
(b) the investment is or is to be made:
(i) in the ordinary course of legal practice; and
(ii) for the ancillary purpose of maintaining or enhancing the value of the money or property pending completion of the matter or further stages of the matter or pending payment or delivery of the money or property to or at the direction of the client.
(4) In this section:
"Australian financial services licence", see Chapter 7 of the Corporations Act;
"authorised representative", see Chapter 7 of the Corporations Act;
"financial service", see Chapter 7 of the Corporations Act;
"financial services business", see Chapter 7 of the Corporations Act.
(1) This section applies to money received by a law practice if the Law Society considers there is doubt or a dispute as to whether the money is trust money.
(2) The Society may determine that the money is or is not trust money.
(3) The Society may revoke or modify a determination under this section.
(4) While a determination under this section is in force that money is trust money, the money is taken to be trust money for this Act.
(5) While a determination under this section is in force that money is not trust money, the money is taken not to be trust money for this Act.
(6) This section has effect subject to a decision of a court made in relation to the money concerned.
(1) This Part applies to the following law practices in respect of trust money received by them in this jurisdiction:
(a) a law practice that has an office in this jurisdiction, whether or not the practice has an office in another jurisdiction;
(b) a law practice that does not have an office in any jurisdiction at all.
(2) This Part applies to the following law practices in respect of trust money received by them in another jurisdiction:
(a) a law practice that has an office in this jurisdiction and in no other jurisdiction;
(b) a law practice that has an office in this jurisdiction and in one or more other jurisdictions but not in the jurisdiction in which the trust money was received, unless the money is dealt with under the corresponding law of another jurisdiction.
(3) However, this Part does not apply to:
(a) prescribed law practices or classes of law practices; or
(b) prescribed law practices or classes of law practices in prescribed circumstances; or
(c) prescribed kinds of trust money; or
(d) prescribed kinds of trust money in prescribed circumstances.
(4) A reference in this section to having an office in a jurisdiction is a reference to having, or engaging in legal practice from, an office or business address in the jurisdiction.
Note for section 238
Section 181 applies this Part to Australian-registered foreign lawyers.
(1) The Law Society may enter into arrangements ("trust money protocols") with corresponding authorities about any or all of the following:
(a) deciding the jurisdiction where a law practice receives trust money;
(b) sharing information about whether, and (if so) how, trust money is being dealt with under this Act or a corresponding law.
(2) For this Act, to the extent a trust money protocol is relevant, the jurisdiction where a law practice receives trust money must be decided in accordance with the protocol.
(3) The Society may enter into arrangements that amend, revoke or replace a trust money protocol.
(4) A trust money protocol does not have effect in this jurisdiction unless it is embodied or identified in the regulations.
(1) For this Act, a law practice receives money when:
(a) the practice obtains possession or control of it directly; or
(b) the practice obtains possession or control of it indirectly as a result of its delivery to an associate of the practice; or
(c) the practice, or an associate of the practice (otherwise than in a private and personal capacity), is given a power to deal with the money for or on behalf of another person.
(2) For this Act, a law practice or associate is taken to have received money if the money is available to the practice or associate by means of an instrument or another way of authorising an ADI to credit or debit an amount to an account with the ADI, including, for example, an electronic funds transfer, credit card transaction or telegraphic transfer.
(1) The following actions, if taken by a legal practitioner associate of a law practice on behalf of the practice in relation to trust money received by the practice, discharge the corresponding obligations of the practice in relation to the money:
(a) the establishment of a trust account;
(b) the maintenance of a trust account;
(c) the payment of trust money into and out of a trust account and other dealings with trust money;
(d) the maintenance of trust records;
(e) engaging an external examiner to examine trust records;
(f) the payment of an amount into an ADI account as referred to in section 281;
(g) an action of a kind prescribed by the regulations.
(2) If the legal practitioner associate maintains a trust account in relation to trust money received by the law practice, the provisions of this Part and the regulations made for this Part apply to the associate in the same way as they apply to a law practice.
(3) Subsection (1) does not apply to the extent the associate is prevented by the regulations from taking any action referred to in that subsection.
(1) A provision of this Part or the regulations made for this Part expressed as imposing an obligation on a law practice imposes the same obligation on the principals of the law practice jointly and severally, but discharge of the practice's obligation also discharges the corresponding obligation imposed on the principals.
(2) References in this Part or the regulations made for this Part to a law practice include references to the principals of the law practice.
This Part applies in relation to former law practices and former principals and associates of law practices in relation to conduct occurring while they were respectively law practices, principals and associates in the same way as it applies to law practices, principals and associates, and so applies with any necessary modifications.
(1) A barrister must not, in the course of practising as a barrister, receive money on behalf of another person unless authorised under this section.
(2) The regulations may authorise a barrister to do so.
(3) For subsection (2), the regulations may apply to barristers any of the provisions of this Part or make other provision relating to the matter.
Division 2 – Trust accounts and trust money
(1) A law practice that receives trust money to which this Part applies must maintain a general trust account in this jurisdiction.
(2) A law practice that is required to maintain a general trust account in this jurisdiction must establish and maintain the account under the regulations.
(3) Subsection (1) does not apply to a law practice in respect of any period during which the practice receives or holds only either or both of the following:
(a) controlled money;
(b) transit money received in a form other than cash.
(4) If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1) or (2), the practitioner or practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(5) If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1) or (2), each principal of the practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(6) An offence against subsection (4) or (5) is an offence of strict liability.
(7) Subject to any requirements of the regulations, a requirement of this section for a law practice to maintain, or establish and maintain, a general trust account in this jurisdiction does not prevent the practice from maintaining, or establishing and maintaining, more than one general trust account in this jurisdiction, whether during the same or different periods.
(8) Without limiting the other provisions of this section, the regulations may provide that a law practice must not close a general trust account except as permitted by the regulations, either generally or in any circumstances prescribed by the regulations.
(1) As soon as practicable after receiving trust money, a law practice must deposit the money in a general trust account of the practice.
(2) Subsection (1) does not apply if:
(a) the practice has a written direction by an appropriate person to deal with it otherwise than by depositing it in the account; or
(b) the money is controlled money; or
(c) the money is transit money; or
(d) the money is 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.
(3) A law practice that has received money that is the subject of a written direction mentioned in subsection (2)(a) must deal with the money in accordance with the direction:
(a) within the period (if any) specified in the direction; or
(b) subject to paragraph (a), as soon as practicable after it is received.
(4) The law practice must keep a written direction mentioned in subsection (2)(a) for the period prescribed by the regulations.
(5) If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1), (3) or (4), the practitioner or practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(6) If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1), (3) or (4), each principal of the practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(7) An offence against subsection (5) or (6) is an offence of strict liability.
(8) A person is an appropriate person for this section if the person is legally entitled to give the law practice directions in respect of dealings with the trust money.
(1) A law practice must:
(a) hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received; and
(b) disburse the trust money only in accordance with a direction given by the person.
(2) Subsection (1) applies subject to an order of a court of competent jurisdiction or as authorised by law.
(3) The law practice must account for the trust money as required by the regulations.
(4) If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1) or (3), the practitioner or practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(5) If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1) or (3), each principal of the practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(6) An offence against subsection (4) or (5) is an offence of strict liability.
(1) As soon as practicable after receiving controlled money, a law practice must deposit the money in the account specified in the written direction relating to the money.
(2) The law practice must hold controlled money deposited in a controlled money account under subsection (1) exclusively for the person on whose behalf it was received.
(3) The law practice must not disburse the controlled money deposited in a controlled money account under subsection (1) except in accordance with:
(a) the written direction mentioned in that subsection; or
(b) a later written direction given by or on behalf of the person on whose behalf the money was received.
(4) The law practice must maintain the controlled money account, and account for the controlled money, as required by the regulations.
(5) The law practice must keep a written direction mentioned in this section for the period prescribed by the regulations.
(6) The law practice must ensure the controlled money account is used for the deposit of controlled money received on behalf of the person referred to in subsection (2), and not for the deposit of controlled money received on behalf of any other person, except to the extent the regulations otherwise permit.
(7) Subsection (3) applies subject to an order of a court of competent jurisdiction or as authorised by law.
(8) If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1), (2), (3), (4), (5) or (6), the practitioner or practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(9) If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1), (2), (3), (4), (5) or (6), each principal of the practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(10) An offence against subsection (8) or (9) is an offence of strict liability.
(1) A law practice that has received transit money must pay or deliver the money as required by the instructions relating to the money:
(a) within the period (if any) specified in the instructions; or
(b) subject to paragraph (a), as soon as practicable after it is received.
(2) The law practice must account for the money as required by the regulations.
(3) Subsections (1) and (2) do not apply to trust money if section 251 applies to the money.
(4) If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1) or (2), the practitioner or practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(5) If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1) or (2), each principal of the practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(6) An offence against subsection (4) or (5) is an offence of strict liability.
(1) A law practice must ensure 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.
(2) The law practice must account for the money in the way prescribed by the regulations.
(3) Subsections (1) and (2) do not apply to trust money if section 251 applies to the money.
(4) If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1) or (2), the practitioner or practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(5) If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1) or (2), each principal of the practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(6) An offence against subsection (4) or (5) is an offence of strict liability.
(1) A law practice must deposit general trust money received in the form of cash in a general trust account of the practice.
(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:
(a) the practice must nevertheless deposit the money in a general trust account of the practice under subsection (1); and
(b) afterwards, the practice must deal with the money in accordance with any applicable terms of the direction so far as those terms are not inconsistent with paragraph (a).
(3) A law practice must deposit controlled money received in the form of cash in a controlled money account under section 248.
(4) A law practice must deposit transit money received in the form of cash in a general trust account of the law practice concerned before the money is otherwise dealt with in accordance with the instructions relating to the money.
(5) 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.
(6) This section has effect despite anything to the contrary in any relevant direction, instruction or power.
(7) If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1), (2), (3), (4) or (5), the practitioner or practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(8) If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1), (2), (3), (4) or (5), each principal of the practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(9) An offence against subsection (7) or (8) is an offence of strict liability.
(10) 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.
(1) Money standing to the credit of a trust account maintained by a law practice is not available for the payment of debts of the practice or any of its associates.
(2) Money standing to the credit of a trust account maintained by a law practice is not liable to be attached or taken in execution for satisfying a judgment against the practice or any of its associates.
(3) This section does not apply to money to which a law practice or associate is entitled.
(1) A law practice must not mix trust money with other money.
(2) Subsection (1) does not apply in relation to the mixing of trust money with other money if:
(a) the Law Society has authorised the mixing of the trust money with other money to the extent to which it is mixed; and
(b) the law practice has complied with any conditions imposed on the authorisation by the Society.
(3) If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1), the practitioner or practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(4) If a law practice that is a law firm or multi-disciplinary partnership contravenes subsection (1), each principal of the practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(5) An offence against subsection (3) or (4) is an offence of strict liability.
(1) A law practice may do any of the following, in relation to trust money held in a general trust account or controlled money account of the practice for a person:
(a) exercise a lien, including a general retaining lien, for the amount of legal costs reasonably due and owing by the person to the practice;
(b) withdraw money for payment to the practice's account for legal costs owing to the practice if the relevant procedures or requirements prescribed by this Act are complied with;
(c) after deducting any legal costs properly owing to the practice, deal with the balance as an unclaimed amount under section 259.
(2) Subsection (1) applies despite any other provision of this Part but has effect subject to Part 3.3.
(1) An Australian legal practitioner is guilty of an offence if the practitioner causes:
(a) a deficiency in any trust account or trust ledger account; or
(b) a failure to pay or deliver any trust money.
Maximum penalty: 500 penalty units.
(2) It is a defence to a prosecution for an offence against subsection (1) if the practitioner has a reasonable excuse.
(3) In this section:
"account", in relation to an Australian legal practitioner, includes an account of the practitioner or of the law practice of which the practitioner is an associate;
"cause" includes be responsible for;
"deficiency" in a trust account or trust ledger account
includes the
non-inclusion or exclusion of the whole
or any part of an amount that is required to be included in the
account.
(1) A legal practitioner is guilty of an offence if:
(a) the practitioner is a legal practitioner associate of a law practice; and
(b) the practitioner becomes aware that there is an irregularity in any of the practice's trust accounts or trust ledger accounts; and
(c) the practitioner fails, as soon as practicable after becoming aware of the irregularity, to give written notice of the irregularity to:
(i) the Law Society; and
(ii) if a corresponding authority is responsible for the regulation of the accounts concerned – the corresponding authority.
Maximum penalty: 20 penalty units.
(2) An Australian legal practitioner is guilty of an offence if:
(a) the practitioner believes on reasonable grounds that there is an irregularity in relation to the receipt, recording or disbursement of any trust money received by a law practice; and
(b) the practitioner is not a legal practitioner associate of the practice; and
(c) the practitioner fails, as soon as practicable after forming the belief, to give written notice of it to:
(i) the Law Society; and
(ii) if a corresponding authority is responsible for the regulation of the accounts relating to the trust money concerned – the corresponding authority.
Maximum penalty: 20 penalty units.
(3) The validity of a requirement imposed on an Australian legal practitioner under subsection (1) or (2) is not affected, and the practitioner is not excused from complying with subsection (1) or (2), on the ground that giving the notice may tend to incriminate the practitioner.
(4) An Australian legal practitioner is not liable for any loss or damage suffered by another person as a result of the practitioner's compliance with subsection (1) or (2).
(1) A law practice must keep in permanent form trust records in relation to trust money received by the practice.
(2) The law practice must keep the trust records:
(a) in accordance with the regulations; and
(b) in a way that at all times discloses the true position in relation to trust money received for or on behalf of any person; and
(c) in a way that enables the trust records to be conveniently and properly investigated or externally examined; and
(d) for a period determined under the regulations.
(3) If a law practice that is an Australian legal practitioner who is a sole practitioner, or an incorporated legal practice, contravenes subsection (1) or (2), the practitioner or practice is guilty of an offence.
Maximum penalty: 500 penalty units.
(4) If a law practice that is a law firm or multi-disciplinary partnership contr