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Queensland
LEGAL PROFESSION BILL
2003
Queensland
LEGAL PROFESSION BILL 2003
TABLE OF PROVISIONS
Section Page
CHAPTER 1--INTRODUCTION
PART 1--PRELIMINARY
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2 Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3 Main purposes of this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
PART 2--INTERPRETATION
Division 1--Dictionary
4 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Division 2--Meaning of particular terms involving a legal title and
related matters
5 Meaning of terms involving "lawyer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6 Meaning of terms involving "legal practitioner". . . . . . . . . . . . . . . . . . . . . . 23
7 Meaning of "barrister". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8 Meaning of "solicitor". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
9 Meaning of "government legal officer" and related matters . . . . . . . . . . . . . 24
Division 3--Meaning of other terms for this Act
10 Meaning of "suitability matter". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11 Meaning of "serious offence" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
12 Meaning of "conviction" and "quashing a conviction". . . . . . . . . . . . . . . . . 27
13 Meaning of "information notice" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Division 4--Other matters relating to interpretation
14 Notes in text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
15 Timing for doing things. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
16 Grounds that are reasonable in the circumstances. . . . . . . . . . . . . . . . . . . . . 29
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CHAPTER 2--ENGAGING IN LEGAL PRACTICE
PART 1--PRELIMINARY
17 Simplified outline of ch 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
PART 2--RESERVATION OF LEGAL WORK AND RELATED
MATTERS
18 Main purpose of ch 2, pt 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
19 Part does not generally apply to a government legal officer . . . . . . . . . . . . . 31
20 Prohibition on engaging in legal practice when not entitled . . . . . . . . . . . . . 31
21 Prohibition on representing or advertising entitlement to engage in
legal practice when not entitled ............................... 32
22 Professional discipline. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
PART 3--ADMISSION OF LEGAL PRACTITIONERS
Division 1--Preliminary
23 Main purpose of ch 2, pt 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
24 Definitions for ch 2, pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Division 2--Eligibility and suitability for admission as legal
practitioners
25 Eligibility for admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
26 Suitability for admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Division 3--Application for admission
27 Main purposes of ch 2, pt 3, div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
28 Application for admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
29 Role of the board relating to application for admission . . . . . . . . . . . . . . . . 35
30 Role of Supreme Court relating to application for admission. . . . . . . . . . . . 36
Division 4--Early consideration of suitability
31 Main purpose of ch 2, pt 3, div 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
32 Early consideration of suitability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
33 Involvement of Supreme Court whether by referral or on appeal . . . . . . . . . 38
Division 5--Roll of legal practitioners
34 Roll of legal practitioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
35 Local legal practitioner is officer of Supreme Court . . . . . . . . . . . . . . . . . . . 39
Division 6--Miscellaneous
36 Conditional admission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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37 Board may appear before Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
38 Fees payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
PART 4--LEGAL PRACTICE BY AUSTRALIAN LEGAL
PRACTITIONERS
Division 1--Preliminary
39 Main purposes of ch 2, pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
40 Meaning of "relevant regulatory authority" . . . . . . . . . . . . . . . . . . . . . . . . . 40
41 How suitability relating to holding local practising certificate is to
be decided in this part ....................................... 40
Division 2--Legal practice in this jurisdiction
42 Entitlement to practise in this jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Division 3--Matters relating to applications for grant or renewal of
local practising certificates
43 Application for grant or renewal of local practising certificate. . . . . . . . . . . 42
44 Manner of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
45 Professional indemnity insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
46 Continuing obligation for professional indemnity insurance . . . . . . . . . . . . 45
Division 4--Grant or renewal of local practising certificates
47 Grant or renewal of local practising certificate . . . . . . . . . . . . . . . . . . . . . . . 46
48 Conditions imposed by law society or bar association . . . . . . . . . . . . . . . . . 47
49 Applications relating to conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
50 Local legal practitioner is officer of Supreme Court . . . . . . . . . . . . . . . . . . . 48
Division 5--Conditions applying to local practising certificates
51 Conditions generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
52 Statutory condition regarding notification of offence . . . . . . . . . . . . . . . . . . 49
53 Statutory condition regarding legal practice as solicitor . . . . . . . . . . . . . . . . 49
54 Compliance with conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Division 6--Special powers relating to local practising certificates
55 Application for local practising certificate if show cause event happened
after first admission ......................................... 50
56 Requirement if show cause event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
57 Refusal, cancellation or suspension of local practising certificate because
of failure to show cause ...................................... 51
58 Restriction on making further application. . . . . . . . . . . . . . . . . . . . . . . . . . . 52
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59 Relationship of this division with ch 5, pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . 53
Division 7--Amendment, cancellation or suspension of local practising
certificates
60 Application of ch 2, pt 4, div 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
61 Grounds for amending, cancelling or suspending a local
practising certificate ...................................... 54
62 Amending, cancelling or suspending local practising certificate . . . . . . . . . 54
63 Operation of amendment, cancellation or suspension of local
practising certificate ..................................... 55
64 Return of amended, cancelled or suspended local practising certificate . . . . 56
65 Other ways of amending or cancelling a local practising certificate. . . . . . . 57
66 Relationship of this division with ch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Division 8--Interstate legal practitioners
67 Requirement for interstate practising certificate and professional indemnity
insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
68 Extent of entitlement of certificate holder of interstate practising certificate
to practise in this jurisdiction ................................ 58
69 Additional condition on interstate legal practitioner engaging in legal
practice in this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
70 Special provision about interstate legal practitioner engaging in
unsupervised legal practice in this jurisdiction . . . . . . . . . . . . . . . . . . . . . 60
71 Interstate legal practitioner is officer of Supreme Court . . . . . . . . . . . . . . . . 60
Division 9--Miscellaneous provisions about local practising certificates
and other matters
72 Immediate suspension of local practising certificate. . . . . . . . . . . . . . . . . . . 60
73 Duration of local practising certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
74 Surrender and cancellation of local practising certificate . . . . . . . . . . . . . . . 62
75 Protocols . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
76 Consideration of applicant for local practising certificate
and certificate holder ..................................... 63
77 Register of local practising certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
78 Regulatory authority may charge reasonable fees. . . . . . . . . . . . . . . . . . . . . 64
PART 5--INCORPORATED LEGAL PRACTICES
Division 1--Preliminary
79 Main purpose of ch 2, pt 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
80 Meaning of "incorporated legal practice" . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
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81 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Division 2--Incorporated legal practices providing legal services
82 Non-legal services and businesses of incorporated legal practices . . . . . . . . 67
83 Corporations eligible to be incorporated legal practice. . . . . . . . . . . . . . . . . 68
84 Notice of intention to start providing legal services . . . . . . . . . . . . . . . . . . . 68
85 Prohibition on directors etc representing that corporation is incorporated
legal practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
86 Notice of termination of provision of legal services . . . . . . . . . . . . . . . . . . . 69
Division 3--Lawyer directors, and other legal practitioners employed by
incorporated legal practices
87 Incorporated legal practice must have lawyer director . . . . . . . . . . . . . . . . . 70
88 Obligations of lawyer director relating to misconduct . . . . . . . . . . . . . . . . . 70
89 Incorporated legal practice without lawyer director . . . . . . . . . . . . . . . . . . . 71
90 Obligations and privileges of an Australian legal practitioner who is an
officer or employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Division 4--Particular matters including application of other provisions
of relevant laws
91 Insurance obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
92 Conflicts of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
93 Disclosure obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
94 Effect of non-disclosure of provision of particular services . . . . . . . . . . . . . 75
95 Application of a legal profession rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
96 Advertising restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
97 Advertising by incorporated legal practice . . . . . . . . . . . . . . . . . . . . . . . . . . 76
98 Requirements relating to trust accounts and particular moneys . . . . . . . . . . 76
99 Requirements relating to fidelity fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
100 Extension to incorporated legal practice of vicarious liability relating to
failure to account and dishonesty ............................. 77
101 Sharing of receipts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
102 Disqualified persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Division 5--Ensuring compliance with this Act by incorporated legal
practices
103 Commissioner or law society may audit incorporated legal practice . . . . . . 78
104 Investigative powers relating to audits and other matters . . . . . . . . . . . . . . . 79
105 Examination of persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
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106 Inspection of books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
107 Power to hold hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
108 Failure to comply with investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
109 Banning of incorporated legal practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
110 Disqualification from managing incorporated legal practice . . . . . . . . . . . . 85
111 Disclosure of information to the Australian Securities and
Investments Commission .................................. 85
Division 6--External administration
112 External administration proceedings under Corporations Act . . . . . . . . . . . 86
113 External administration proceedings under other legislation . . . . . . . . . . . . 86
114 Incorporated legal practice that is subject to receivership under the QLS
Act and external administration under Corporations Act . . . . . . . . . . . . . . . 87
115 Incorporated legal practice that is subject to receivership under the QLS
Act and external administration under other local legislation. . . . . . . . . . . . 88
Division 7--Miscellaneous
116 Cooperation between courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
117 Relationship of Act to Corporations legislation and certain
other instruments ...................................... 89
118 Undue influence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
119 Regulation may require training requirement for lawyer director. . . . . . . . . 90
PART 6--FINANCIAL ARRANGEMENTS FOR THOSE WHO
MAY ENGAGE IN LEGAL PRACTICE IN THIS JURISDICTION
Division 1--Preliminary
120 Main purposes of ch 2, pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
121 Definitions for ch 2, pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
122 Relationship with other laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Division 2--Prescribed accounts
123 Regulation for prescribed account. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
124 Deposits to prescribed account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Division 3--Interest on trust accounts paid to department
125 Arrangement with financial institution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Division 4--Legal Practitioner Interest on Trust Accounts Fund
126 Establishment of fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
127 Payments from fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
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128 Minister to decide distribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
129 Submission of budgets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
PART 7--RULES ABOUT THOSE WHO MAY ENGAGE IN
LEGAL PRACTICE IN THIS JURISDICTION
Division 1--Preliminary
130 Main purposes of ch 2, pt 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
131 Power to make rules not limited to specific references to provision in other
chapters or parts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
132 Definitions for ch 2, pt 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Division 2--Legal profession rules
133 Rules to be made by Governor in Council . . . . . . . . . . . . . . . . . . . . . . . . . . 97
134 Rule may apply to individuals generally or by using a defined term
involving a legal title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
135 Particular provision about barristers rule . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
136 Solicitors rule or barristers rule may apply to government legal officer . . . . 98
137 Incorporated legal practice rule can not provide for particular matters . . . . 98
138 Recommendations to the Minister about legal profession rules . . . . . . . . . . 98
139 Monitoring role of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
140 Public notice of proposed legal profession rule . . . . . . . . . . . . . . . . . . . . . . 99
141 Binding nature of each legal profession rule. . . . . . . . . . . . . . . . . . . . . . . . . 100
142 Relationship of legal profession rule to this Act and regulation . . . . . . . . . . 100
143 Relationship of legal profession rule and administration rule. . . . . . . . . . . . 100
Division 3--Administration rules
144 Rules other than legal profession rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
145 Indemnity rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
146 Relationship of administration rule to this Act and regulation . . . . . . . . . . . 103
147 Availability of an administration rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
PART 8--INTER-JURISDICTIONAL PROVISIONS REGARDING
ADMISSION AND PRACTISING CERTIFICATES
Division 1--Preliminary
148 Main purpose of ch 2, pt 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
149 Ch 3 not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Division 2--Notifications to be given to interstate authorities
150 Notification to other jurisdictions about application for admission . . . . . . . 105
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151 Notification to other jurisdictions about removal from local roll . . . . . . . . . 105
152 Law society and bar association to notify other jurisdictions about actions
by it ..................................................... 106
Division 3--Notifications to be given by lawyers to local authorities
153 Lawyer to give notice of removal in another jurisdiction . . . . . . . . . . . . . . . 107
154 Lawyer to give notice of removal in foreign country . . . . . . . . . . . . . . . . . . 107
155 Provisions relating to requirement to notify . . . . . . . . . . . . . . . . . . . . . . . . . 107
Division 4--Taking of action by local authorities in response to
notifications received
156 Pre-emptory removal of local lawyer's name from local roll
following removal in another jurisdiction ....................... 108
157 Pre-emptory cancellation of local practising certificate following removal
of name from interstate roll .................................. 109
158 Order for non-removal of name or non-cancellation of practising certificate 109
159 Show cause procedure for removal of local lawyer's name from
local roll following removal in foreign country ................. 110
160 Local authority may give information to other local authority . . . . . . . . . . . 111
CHAPTER 3--COMPLAINTS, INVESTIGATION MATTERS AND
DISCIPLINE
PART 1--PRELIMINARY
Division 1--Purposes
161 Main purposes of ch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Division 2--Interpretation
162 Meaning of "unsatisfactory professional conduct" . . . . . . . . . . . . . . . . . . . . 111
163 Meaning of "professional misconduct". . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
164 Conduct capable of constituting unsatisfactory professional conduct or
professional misconduct .................................... 112
165 Meaning of "respondent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Division 3--Application of this chapter
166 Australian lawyers to whom this chapter applies . . . . . . . . . . . . . . . . . . . . . 113
167 Conduct to which this chapter applies--generally . . . . . . . . . . . . . . . . . . . . 114
168 Conduct to which this chapter applies--bankruptcy, serious offences and
tax offences ............................................... 115
169 Chapter also applies to law practice employees . . . . . . . . . . . . . . . . . . . . . . 116
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Division 4--Commissioner's obligations for complaints
170 Duty to deal with complaints efficiently and expeditiously . . . . . . . . . . . . . 116
171 Duty to inform complainant about action taken for complaint . . . . . . . . . . . 116
PART 2--MAKING COMPLAINTS
172 Conduct about which complaint may be made . . . . . . . . . . . . . . . . . . . . . . . 117
173 Making a complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
174 Further information and verification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
175 Complaints made over 3 years after conduct concerned . . . . . . . . . . . . . . . . 118
176 Summary dismissal of complaints. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
177 Withdrawal of complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
178 Commissioner may delay dealing with complaint . . . . . . . . . . . . . . . . . . . . 121
PART 3--MEDIATION FOR COMPLAINTS INVOLVING
CONSUMER DISPUTE
179 Definition for ch 3, pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
180 Mediation of complaint involving consumer dispute solely . . . . . . . . . . . . . 122
181 Mediation of hybrid complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
PART 4--STARTING INVESTIGATIONS BASED ON
COMPLAINT OR WITHOUT A COMPLAINT
182 Referral by commissioner to law society or bar association . . . . . . . . . . . . . 123
183 Commissioner investigating a complaint or investigation matter . . . . . . . . . 123
184 Australian lawyer to be notified of complaint or investigation matter . . . . 124
185 Role of law society or bar association. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
186 Powers for investigations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
187 Submissions by Australian lawyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
188 Referral of matters for cost assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
PART 5--DISCIPLINE
Division 1--Decision of commissioner
189 Decision of commissioner after investigation . . . . . . . . . . . . . . . . . . . . . . . . 128
190 Dismissal of complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
191 Record of decision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Division 2--Proceedings in disciplinary body
192 Starting proceeding before a disciplinary body. . . . . . . . . . . . . . . . . . . . . . . 129
193 Hearings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
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194 Variation of discipline application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
195 Joinder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Division 3--Decisions of disciplinary bodies
196 Decisions of tribunal about an Australian lawyer . . . . . . . . . . . . . . . . . . . . . 130
197 Orders to be filed in Supreme Court and information notices to be given
to parties etc. ............................................ 132
198 Decisions of committee about discipline application . . . . . . . . . . . . . . . . . . 133
199 Orders to be filed in Supreme Court and information notices to be given
to parties etc. ............................................ 134
200 Compliance with decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
201 Interim order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
202 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
203 Other remedies not affected. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
PART 6--COMPENSATION ORDERS
Division 1--Preliminary
204 Meaning of "compensation order" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Division 2--Compensation orders
205 Compensation order relating to pecuniary loss . . . . . . . . . . . . . . . . . . . . . . . 137
206 Effect of compensation order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
207 Other remedies not affected. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
PART 7--APPEALS FROM DECISIONS OF DISCIPLINARY
BODIES
208 Appeal may be made to Court of Appeal from tribunal's decision . . . . . . . . 138
209 Appeal to tribunal against committee's decision. . . . . . . . . . . . . . . . . . . . . . 139
210 Appeal to Court of Appeal in relation to a decision of committee . . . . . . . . 139
PART 8--PUBLICATION OF DISCIPLINARY ACTIONS
211 Definition for ch 3, pt 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
212 Discipline register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
213 Other means of publicising disciplinary action. . . . . . . . . . . . . . . . . . . . . . . 141
214 Disciplinary action taken because of infirmity, injury or illness . . . . . . . . . . 141
215 Quashing of disciplinary action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
216 Liability for publicising disciplinary action . . . . . . . . . . . . . . . . . . . . . . . . . 142
217 General provisions about disclosure of information . . . . . . . . . . . . . . . . . . . 143
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PART 9--INTER-JURISDICTIONAL PROVISIONS
218 Protocols . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
219 Request to another jurisdiction to investigate complaint or investigation
matter .................................................. 144
220 Request from another jurisdiction to investigate complaint . . . . . . . . . . . . . 144
221 Sharing of information with corresponding authorities . . . . . . . . . . . . . . . . 145
222 Cooperation with corresponding authorities . . . . . . . . . . . . . . . . . . . . . . . . . 145
223 Compliance with orders made under corresponding laws. . . . . . . . . . . . . . . 146
224 Other powers or functions not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
PART 10--MISCELLANEOUS
225 Information about complaints procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
226 Performance criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
227 Reports to Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
228 Offence of improper disclosure of information. . . . . . . . . . . . . . . . . . . . . . . 147
229 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
230 Confidentiality of client communications . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
231 Waiver of legal professional privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
CHAPTER 4--ESTABLISHMENT OF ENTITIES FOR THIS ACT,
AND RELATED MATTERS
PART 1--LEGAL SERVICES COMMISSIONER
Division 1--Preliminary
232 Main purposes of ch 4, pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Division 2--Appointment
233 Legal Services Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
234 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
235 Term of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
236 Remuneration and conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
237 Acting commissioner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
238 Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
239 Resignation of commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
Division 3--Functions
240 Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
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Division 4--Legal Services Commission
241 Establishment of commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
242 Staff and other resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
243 Preservation of rights if public service officer appointed or engaged . . . . . . 153
244 Preservation of rights if individual becomes public service officer . . . . . . . 153
245 Preservation of rights if public service officer seconded. . . . . . . . . . . . . . . . 154
246 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
PART 2--DISCIPLINARY TRIBUNAL
Division 1--Preliminary
247 Main purpose of ch 4, pt 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Division 2--Establishment of Legal Practice Tribunal and related
matters
248 Establishment, members and chairperson of tribunal . . . . . . . . . . . . . . . . . . 155
249 Way tribunal is to operate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
250 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
251 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
252 Rule-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
253 Practice directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
254 Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
255 Tribunal's seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Division 3--Panels, members of panels and related matters
256 Establishment of panels for helping the tribunal. . . . . . . . . . . . . . . . . . . . . . 156
257 Appointment of panel member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
258 Remuneration and appointment conditions of panel members . . . . . . . . . . . 158
259 Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
260 Resignation of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
Division 4--Role of tribunal members and panel members
261 Role of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
262 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
Division 5--Constitution of tribunal for hearings
263 Constitution of tribunal for hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Division 6--Other provisions
264 Institution of proceedings by the commissioner . . . . . . . . . . . . . . . . . . . . . . 160
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265 Contempt of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
266 Conduct that is contempt and an offence . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
267 Protection of members etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
PART 3--LEGAL PRACTICE COMMITTEE
Division 1--Preliminary
268 Main purpose of ch 4, pt 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
269 Definitions for ch 4, pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Division 2--Establishment, membership of committee, functions and
powers
270 Establishment of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
271 Committee members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
272 Term of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
273 Functions and powers of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
274 Administrative support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
Division 3--Provisions about committee members
275 Eligibility for membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
276 Termination of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
277 Resignation of committee member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
278 Deputy chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
279 Remuneration and allowances of lay members . . . . . . . . . . . . . . . . . . . . . . . 165
Division 4--Provisions about committee performing advisory functions
280 Application of ch 4, pt 3, div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
281 Conduct of business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
282 Time and place of meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
283 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
284 Presiding at meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
285 Conduct of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
286 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
287 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Division 5--Provisions applying to committee for hearings
288 Constitution of committee for hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
289 Conduct of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
290 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
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291 Protection of members etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
PART 4--PROVISIONS APPLYING TO EACH DISCIPLINARY
BODY
Division 1--Parties to proceedings
292 Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Division 2--Conduct of proceedings
293 Public hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
294 Procedure for hearing by a disciplinary body . . . . . . . . . . . . . . . . . . . . . . . . 171
295 Disciplinary body may proceed in absence of party or may adjourn hearing 172
296 Matter may be decided on affidavit evidence . . . . . . . . . . . . . . . . . . . . . . . . 172
297 Standard of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Division 3--Powers of disciplinary body
298 Power to disregard procedural lapses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
299 Directions for hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
300 Attendance notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
301 Authentication of documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Division 4--Offences
302 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
303 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
PART 5--LEGAL PRACTITIONERS ADMISSIONS BOARD
Division 1--Preliminary
304 Main purpose of ch 4, pt 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
305 Definitions for ch 4, pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Division 2--Establishment and membership of board
306 Establishment of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
307 Members of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
Division 3--Board's functions and powers
308 Functions and powers of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
309 Administrative support of the board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Division 4--Provisions about board members
310 Term of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
311 Chairperson and deputy chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
312 Eligibility for membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
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313 Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
314 Resignation of board member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Division 5--Board business
315 Conduct of business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
316 Times and places of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
317 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
318 Presiding at meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
319 Conduct of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
320 Minutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
321 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Division 6--Miscellaneous
322 Application of particular Acts to board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
CHAPTER 5--SUITABILITY REPORTS AND INVESTIGATIONS
PART 1--SUITABILITY REPORTS
Division 1--Preliminary
323 Main purpose of ch 5, pt 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
324 Definitions for ch 5, pt 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Division 2--Police reports
325 Relevant authority may ask for police report . . . . . . . . . . . . . . . . . . . . . . . . 183
Division 3--Health assessments
326 Health assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
327 Appointment of health assessor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
328 Health assessment report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
329 Payment for health assessment and report . . . . . . . . . . . . . . . . . . . . . . . . . . 185
330 Use of health assessment report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Division 4--General
331 Confidentiality of suitability report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
332 Operation of this part. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
PART 2--INVESTIGATORS AND THEIR POWERS
Division 1--Preliminary
333 Main purposes of ch 5, pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
334 Definitions for ch 5, pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
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Division 2--Investigators
335 Appointment, qualifications etc. of investigators . . . . . . . . . . . . . . . . . . . . . 188
336 Appointment conditions and limit on powers . . . . . . . . . . . . . . . . . . . . . . . . 189
337 Issue of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
338 Production or display of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
339 When investigator ceases to hold office . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
340 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
341 Return of identity card. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Division 3--Entry to places
342 Power to enter places. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
343 Entry with consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
344 Application for warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
345 Issue of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
346 Application by electronic communication and duplicate warrant ....... 194
347 Defect in relation to a warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
348 Warrants--procedure before entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
Division 4--Powers of investigators after entry
349 General powers of investigator after entering places . . . . . . . . . . . . . . . . . . 196
350 Power to require reasonable help or information . . . . . . . . . . . . . . . . . . . . . 197
Division 5--Power of investigators to seize evidence
351 Seizing evidence at place entered under s 342 . . . . . . . . . . . . . . . . . . . . . . . 198
352 Securing seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
353 Tampering with seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
354 Powers to support seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
355 Receipt for seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
356 Forfeiture of seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
357 Dealing with forfeited things etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
358 Return of seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
359 Access to seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Division 6--General enforcement matters
360 Notice of damage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
361 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
17
Legal Profession Bill 2003
362 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
363 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
364 Obstructing investigators. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
365 Impersonation of investigators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
CHAPTER 6--MISCELLANEOUS MATTERS
PART 1--JURISDICTION OF THE SUPREME COURT
366 Inherent jurisdiction of Supreme Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
367 Jurisdiction of Supreme Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
368 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
PART 2--SUSPECTED OFFENCES, PARTICULAR ASSOCIATES
AND OTHER MATTERS
369 Duty of relevant entities to report suspected offences. . . . . . . . . . . . . . . . . . 206
370 Associate who is proscribed person or has been convicted of serious
offence etc. ........................................... 208
371 Executive officers must ensure corporation complies with Act. . . . . . . . . . . 209
372 Offences are summary offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
373 Limitation on time for starting summary proceeding . . . . . . . . . . . . . . . . . . 210
374 Appointments and authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
375 Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
376 Evidentiary aids--documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
PART 3--OTHER MATTERS
377 Approved forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
378 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
PART 4--AMENDMENT OF ACTS
379 Acts amended in sch 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
PART 5--TRANSITIONAL, SAVINGS AND REPEAL
PROVISIONS
Division 1--Definitions for part
380 Definition for ch 6, pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
Division 2--Transitional provisions relating to ch 2, pt 2 (Reservation of
legal work and related matters)
381 Act or omission that happened before the commencement may be relevant
to an offence under ch 2, pt 2 ................................ 214
382 Offences committed before the commencement . . . . . . . . . . . . . . . . . . . . . . 215
18
Legal Profession Bill 2003
Division 3--Transitional provisions relating to ch 2, pt 3 (Admission of
legal practitioners)
383 Application for admission made before commencement but not heard
by Supreme Court before the commencement ................... 215
384 References in other Acts to applicant for admission as a barrister or as
a solicitor ............................................... 216
Division 4--Transitional provisions relating to ch 2, pt 4 (Legal Practice
by Australian legal practitioners)
385 Application for grant or renewal of practising certificate by person who
is solicitor or barrister at first commencement . . . . . . . . . . . . . . . . . . . . . 216
386 Actions before commencement that continue to have effect. . . . . . . . . . . . . 216
Division 5--Transitional provisions relating to ch 2, pt 7 (Rules about
those who may engage in legal practice in this jurisdiction)
387 Continuation of rules of law society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
388 Bar association rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Division 6--Transitional provisions relating to ch 3 (Complaints,
investigation matters and discipline)
389 Complaints made to the council before commencement but
not finally dealt with before that time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
390 Complaints made to the legal ombudsman before commencement but not
finally dealt with before that time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
391 Basis of complaint mentioned in ss 173 or 390(2) . . . . . . . . . . . . . . . . . . . . 219
Division 7--Transitional provisions relating to ch 4 (Establishment of
entities for this Act, and related matters)
392 Proceedings mentioned in s 5D(5) of Queensland Law Society Act 1952 . . 220
Division 8--Transitional provisions relating to the Legal Practitioners
Act 1995
393 Main purposes of ch 6, pt 5, div 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
394 Expiry of particular provisions of the Legal Practitioners Act . . . . . . . . . . . 221
395 Amendment and relocation of s 58 of the Legal Practitioners Act . . . . . . . . 221
396 Accounts kept by society under s 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
397 Repeal of remaining provisions of Legal Practitioners Act. . . . . . . . . . . . . . 222
398 References to Legal Practitioners Act and related matters . . . . . . . . . . . . . . 222
399 References to other Acts etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
400 Appeals under Legal Practitioners Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
19
Legal Profession Bill 2003
Division 9--Transitional provisions relating to the Queensland Law
Society Act 1952
401 Main purposes of ch 6, pt 5, div 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
402 Repeals relating to solicitors complaints tribunal under QLS Act . . . . . . . . 224
403 Repeals relating to legal ombudsman under the QLS Act. . . . . . . . . . . . . . . 224
404 Further amendment of QLS Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Division 10--Regulation-making power for transitional purposes
405 Transitional regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 226
ACTS AMENDED
ACTS INTERPRETATION ACT 1954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
CRIMINAL LAW (REHABILITATION OF OFFENDERS) ACT 1986 . . . 226
DIRECTOR OF PUBLIC PROSECUTIONS ACT 1984 . . . . . . . . . . . . . . . 227
DISTRICT COURT OF QUEENSLAND ACT 1967. . . . . . . . . . . . . . . . . . 228
JUSTICES ACT 1886 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
JUSTICES OF THE PEACE AND COMMISSIONERS FOR
DECLARATIONS ACT 1991. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
JUVENILE JUSTICE ACT 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
LAND SALES ACT 1984. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
LAND TITLE ACT 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
LEGAL AID QUEENSLAND ACT 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . 237
MAGISTRATES COURTS ACT 1921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
PROPERTY AGENTS AND MOTOR DEALERS ACT 2000 . . . . . . . . . . 242
RETAIL SHOP LEASES ACT 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
SUPREME COURT ACT 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
SUPREME COURT LIBRARY ACT 1968 . . . . . . . . . . . . . . . . . . . . . . . . . 246
SUPREME COURT OF QUEENSLAND ACT 1991 . . . . . . . . . . . . . . . . . 247
TRUST ACCOUNTS ACT 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 253
AMENDMENTS OF LEGAL PRACTITIONERS ACT 1995,
SECTION 58
SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . . 255
LEGAL PRACTITIONERS ACT 1995, SECTION 58 AS AMENDED
AND RELOCATED
20
Legal Profession Bill 2003
SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . . 256
AMENDMENT OF QUEENSLAND LAW SOCIETY ACT 1952
SCHEDULE 5 . . . . . . . . . . . . . . . . . . . . . . . . 266
DICTIONARY
2003
A BILL
FOR
An Act to provide for admission to, and the regulation of, the legal
profession, and for other purposes
s1 22 s4
Legal Profession Bill 2003
The Parliament of Queensland enacts-- 1
CHAPTER 1--INTRODUCTION 2
PART 1--PRELIMINARY 3
1 Short title 4
This Act may be cited as the Legal Profession Act 2003. 5
2 Commencement 6
This Act commences on a day to be fixed by proclamation. 7
3 Main purposes of this Act 8
The main purposes of this Act are as follows-- 9
(a) to promote the administration of justice; 10
(b) to provide for the protection of consumers of legal services and 11
the public generally; 12
(c) to regulate legal practice in this jurisdiction; 13
(d) to facilitate the regulation of legal practice on a national basis. 14
PART 2--INTERPRETATION 15
Division 1--Dictionary 16
4 Definitions 17
The dictionary in schedule 5 defines particular words used in this Act. 18
s5 23 s6
Legal Profession Bill 2003
Division 2--Meaning of particular terms involving a legal title and 1
related matters 2
5 Meaning of terms involving "lawyer" 3
(1) An "Australian lawyer" is an individual who is admitted as a legal 4
practitioner under this Act or a corresponding law. 5
(2) A "local lawyer" is an individual who is admitted as a legal 6
practitioner under this Act, whether or not the individual is also admitted 7
under a corresponding law. 8
(3) Each of the following is admitted as a legal practitioner under this 9
Act-- 10
(a) an individual whose name, immediately before the 11
commencement of this section, appeared on the roll of barristers 12
as kept by the Supreme Court before the commencement; 13
(b) an individual whose name, immediately before the 14
commencement of this section, appeared on the roll of solicitors 15
as kept by the Supreme Court before the commencement. 16
(4) An "interstate lawyer" is an individual who is admitted as a legal 17
practitioner under a corresponding law, but not under this Act. 18
(5) A reference to a person who is admitted as a legal practitioner 19
includes a reference to a person who is admitted in another jurisdiction as a 20
barrister and solicitor. 21
6 Meaning of terms involving "legal practitioner" 22
(1) An "Australian legal practitioner" is an Australian lawyer who 23
holds a current local practising certificate or a current interstate practising 24
certificate. 25
(2) A "local legal practitioner" is an Australian lawyer who holds a 26
current local practising certificate. 27
(3) An "interstate legal practitioner" is an Australian lawyer who 28
holds a current interstate practising certificate, but does not hold a local 29
practising certificate. 30
s7 24 s9
Legal Profession Bill 2003
7 Meaning of "barrister" 1
A "barrister" is-- 2
(a) a local legal practitioner who holds a current local practising 3
certificate to practise as a barrister granted or renewed by the bar 4
association; or 5
(b) an interstate legal practitioner who holds an interstate practising 6
certificate that entitles the certificate holder to practise only as a 7
barrister or in the manner of a barrister. 8
8 Meaning of "solicitor" 9
A "solicitor" is-- 10
(a) a local legal practitioner who holds a current local practising 11
certificate to practise as a solicitor granted or renewed by the law 12
society; or 13
(b) an interstate legal practitioner who holds an interstate practising 14
certificate that is not subject to a condition that allows the legal 15
practitioner to practise only as a barrister or in the manner of a 16
barrister. 17
9 Meaning of "government legal officer" and related matters 18
(1) A "government legal officer" is an individual whose employment or 19
appointment in any of the following includes or may include engaging in 20
legal practice-- 21
(a) a department of this jurisdiction, the commission or an agency 22
prescribed under a regulation for this paragraph; 23
(b) a department of government of the Commonwealth; 24
(c) a department of government of another jurisdiction; 25
(d) an agency of another jurisdiction if, under a corresponding law of 26
that jurisdiction, an individual engaging in legal practice for the 27
agency is exempted from holding a practising certificate or 28
otherwise does not require a practising certificate. 29
(2) A government legal officer is "engaged in government work" when 30
the government legal officer is engaged in legal practice for the purposes of 31
the entity in relation to which the individual is an employee or appointee. 32
s 10 25 s 10
Legal Profession Bill 2003
(3) However, for an agency prescribed for subsection (1)(a), a regulation 1
may specify activities that are, or are not, government work. 2
(4) If a provision under a relevant law does not apply to a government 3
legal officer engaged in government work, the provision applies to the 4
individual who is the government legal officer if the individual is engaging 5
in legal practice other than being engaged in government work. 6
(5) If a government legal officer holds a practising certificate from the 7
bar association, a condition of the barrister's practising certificate about 8
only practising as a barrister does not apply to the government legal officer 9
to the extent that the government legal officer practises as a solicitor as part 10
of engaging in government work. 11
(6) The provisions of a relevant law about the fidelity fund do not apply 12
to a government legal officer in his or her capacity as a government legal 13
officer engaged in government work even if the government legal officer is 14
the holder of a practising certificate. 15
(7) For an individual whose employment or appointment in a department 16
of government of the Commonwealth includes or may include engaging in 17
legal practice as mentioned in subsection (1)(b), this Act is subject to the 18
Judiciary Act 1903 (Cwlth). 19
Division 3--Meaning of other terms for this Act 20
10 Meaning of "suitability matter" 21
(1) Each of the following is a "suitability matter" in relation to an 22
individual-- 23
(a) whether the individual is currently of good fame and character; 24
(b) whether the individual is or has been an insolvent under 25
administration; 26
(c) whether the individual has been convicted of an offence in 27
Australia or a foreign country, and if so-- 28
(i) the nature of the offence; and 29
(ii) how long ago the offence was committed; and 30
(iii) the individual's age when the offence was committed; 31
(d) whether the individual engaged in legal practice in Australia-- 32
s 10 26 s 10
Legal Profession Bill 2003
(i) when not admitted, or not holding a practising certificate, as 1
required under a relevant law or a corresponding law; or 2
(ii) if admitted, in contravention of a condition on which 3
admission was granted; or 4
(iii) while the individual's practising certificate is or was 5
suspended or in contravention of a condition applicable to 6
the certificate; 7
(e) whether the individual has practised law in a foreign country-- 8
(i) when not permitted under a law of that country to do so; or 9
(ii) if permitted to do so, in contravention of a condition 10
applicable to the permission; 11
(f) whether the individual is currently subject to an unresolved 12
complaint, investigation, charge or order under any of the 13
following-- 14
(i) a relevant law as in force at any time before or after the 15
commencement of this section; 16
(ii) a corresponding law or a foreign law about persons 17
engaging in legal practice; 18
(g) whether the individual-- 19
(i) is the subject of current disciplinary action, however 20
expressed, in another profession or occupation in Australia 21
or a foreign country; or 22
(ii) has been the subject of disciplinary action, however 23
expressed, relating to the other profession or occupation that 24
involved a finding of guilt; 25
(h) whether the individual's name has been removed from-- 26
(i) the roll of barristers or the roll of solicitors, but has not been 27
restored to the roll of barristers or the roll of solicitors; or 28
(ii) the roll of barristers or the roll of solicitors, but has not been 29
relocated to the roll of solicitors or the roll of barristers; or 30
(iii) an interstate roll, but has not been restored; or 31
(iv) a foreign roll; 32
(i) whether the individual's right to engage in legal practice has been 33
cancelled or suspended in Australia or a foreign country; 34
s 11 27 s 12
Legal Profession Bill 2003
(j) whether the individual has contravened, in Australia or a foreign 1
country, a law about trust money or trust accounts; 2
(k) whether, under a relevant law, a law of the Commonwealth or a 3
corresponding law, a supervisor, manager or receiver, however 4
described, is or has been appointed in relation to any legal 5
practice engaged in by the individual; 6
(l) whether the individual is or has been subject to an order under a 7
relevant law, a law of the Commonwealth or a corresponding law, 8
disqualifying the applicant from being employed by, or a partner 9
of, an Australian lawyer or from managing a corporation that is 10
an incorporated legal practice; 11
(m) whether the individual currently has a material physical or 12
mental infirmity. 13
(2) A matter is a suitability matter even if it happened before the 14
commencement of this section. 15
11 Meaning of "serious offence" 16
A "serious offence" is an offence whether committed in or outside this 17
jurisdiction that is-- 18
(a) an indictable offence against an Act, or against a law of the 19
Commonwealth or another jurisdiction, whether or not the 20
offence is or may be dealt with summarily; or 21
(b) an offence against a law of another jurisdiction that would be an 22
indictable offence against an Act if committed in this 23
jurisdiction, whether or not the offence could be dealt with 24
summarily if committed in this jurisdiction; or 25
(c) an offence against a law of a foreign country that would be an 26
indictable offence against a law of the Commonwealth, or an Act 27
if committed in this jurisdiction, whether or not the offence could 28
be dealt with summarily if committed in this jurisdiction. 29
12 Meaning of "conviction" and "quashing a conviction" 30
(1) A "conviction", for an offence, includes either of the following 31
whether or not a conviction is recorded on sentence-- 32
(a) a finding of guilt; 33
s 13 28 s 13
Legal Profession Bill 2003
(b) the acceptance of a guilty plea. 1
(2) Without limiting subsection (1), "quashing a conviction", for an 2
offence-- 3
(a) includes quashing-- 4
(i) a finding of guilt for the offence; or 5
(ii) the acceptance of a guilty plea for the offence; and 6
(b) does not include quashing a conviction if-- 7
(i) a finding of guilt in relation to the offence remains 8
unaffected; or 9
(ii) the acceptance of a guilty plea in relation to the offence 10
remains unaffected. 11
(3) A conviction includes a conviction before the commencement of this 12
section. 13
14
Note--
15
See also Criminal Law (Rehabilitation of Offenders) Act 1986, section 9A, table, items
16
24 and 25.
13 Meaning of "information notice" 17
(1) An "information notice" is a written notice to a person about a 18
decision relating to the person stating-- 19
(a) the decision; and 20
(b) the reasons for the decision; and 21
(c) whether or not the person may appeal under this Act against the 22
decision to a stated court or entity; and 23
(d) if the person may appeal under this Act, the date by which the 24
appeal must be started. 25
(2) A provision under this Act may provide that an information notice for 26
the purposes of the provision must include other stated information. 27
(3) If a person may appeal within a number of days after the date an 28
information notice is given to the person, a defect in the notice does not 29
affect the person's right to appeal in relation to the matters dealt with in the 30
information notice. 31
s 14 29 s 16
Legal Profession Bill 2003
Division 4--Other matters relating to interpretation 1
14 Notes in text 2
A note in the text of this Act is part of this Act. 3
15 Timing for doing things 4
(1) If no time is provided or allowed for doing something under this Act, 5
the thing is to be done as soon as practicable, and as often as the relevant 6
occasion happens. 7
(2) If a provision of this Act provides that a person has a stated number 8
of days to appeal to the Supreme Court or the tribunal (the "appeal 9
period"), the court or tribunal may allow a person who may appeal within 10
the appeal period to appeal after that appeal period if the court or tribunal 11
considers it appropriate having regard to the extent and reasons for the 12
delay. 13
16 Grounds that are reasonable in the circumstances 14
(1) If a person is required, under this Act, to be satisfied or not satisfied 15
of, or have a belief or suspicion about, a particular matter before the person 16
may do or refrain from doing an act, or make a decision, the person must be 17
satisfied or not satisfied or have the belief or suspicion on grounds that are 18
reasonable in the circumstances. 19
(2) If, under this Act, a person who is satisfied or not satisfied of, or has a 20
belief or suspicion about, a particular matter is required to do or refrain 21
from doing an act, or make a decision, the person must be satisfied or not 22
satisfied, or have the belief or suspicion, on grounds that are reasonable in 23
the circumstances. 24
(3) If an entity is required under this Act to consider that a particular 25
matter is appropriate, including, for example, the following entities, before 26
the entity may do or refrain from doing an act or make a decision, the entity 27
must not do or refrain from doing the act, or make the decision, unless the 28
entity considers the particular matter is appropriate on grounds that are 29
reasonable in the circumstances-- 30
(a) a disciplinary body; 31
(b) the board; 32
s 17 30 s 17
Legal Profession Bill 2003
(c) the commissioner; 1
(d) a regulatory authority; 2
(e) an investigator. 3
CHAPTER 2--ENGAGING IN LEGAL PRACTICE 4
PART 1--PRELIMINARY 5
17 Simplified outline of ch 2 6
Generally, this chapter seeks to achieve the main purposes of this Act by 7
providing that-- 8
(a) legal practice is engaged in only by individuals who are properly 9
qualified and hold a current practising certificate; and 10
(b) only individuals who are eligible and suitable for admission are 11
admitted by the Supreme Court as legal practitioners in this 12
jurisdiction; and 13
(c) an Australian lawyer may obtain a local practising certificate 14
from the law society or bar association and become a local legal 15
practitioner; and 16
(d) corporations may engage in legal practice as incorporated legal 17
practices while they have a lawyer director; and 18
(e) accounts are to be kept by solicitors and interest payable on those 19
accounts is to be treated in a particular way; and 20
(f) rules about engaging in legal practice are to be made by the 21
Governor in Council after a process involving the law society or 22
bar association; and 23
(g) the regulation of legal practice on a national basis is promoted by 24
providing for inter-jurisdictional provisions regarding admission 25
and practising certificates. 26
s 18 31 s 20
Legal Profession Bill 2003
PART 2--RESERVATION OF LEGAL WORK AND 1
RELATED MATTERS 2
18 Main purpose of ch 2, pt 2 3
The main purpose of this part is to ensure legal practice is engaged in 4
only by individuals who are properly qualified and hold a current practising 5
certificate. 6
19 Part does not generally apply to a government legal officer 7
This part does not apply to a government legal officer engaged in 8
government work. 9
20 Prohibition on engaging in legal practice when not entitled 10
(1) An individual must not engage in legal practice in this jurisdiction 11
unless the individual is an Australian legal practitioner. 12
Maximum penalty--300 penalty units or 2 years imprisonment. 13
(2) Subsection (1)-- 14
(a) is subject to a relevant law, or a law of the Commonwealth that 15
authorises a person to engage in legal practice; and 16
(b) does not apply to preparing or assisting in the preparation of the 17
following-- 18
(i) a will if prepared in the course of the individual's 19
employment with a trustee company; 20
(ii) a contract if prepared by a real estate agent for another 21
person. 22
(3) An individual is not entitled to recover any amount for anything the 23
individual did in contravention of subsection (1). 24
(4) A person may recover from an individual, as a debt due to the person, 25
any amount the person paid to the individual for anything the individual did 26
in contravention of subsection (1). 27
s 21 32 s 22
Legal Profession Bill 2003
(5) This section is subject to chapter 2, part 4, division 8.1 1
(6) In this section-- 2
"real estate agent" see the Property Agents and Motor Dealers Act 2000, 3
schedule 2. 4
"trustee company" see the Trustee Companies Act 1968, section 4. 5
21 Prohibition on representing or advertising entitlement to engage 6
in legal practice when not entitled 7
(1) An individual must not, without a reasonable excuse, represent or 8
advertise that the individual is entitled to engage in legal practice unless the 9
individual is an Australian legal practitioner. 10
Maximum penalty--300 penalty units or 2 years imprisonment. 11
(2) This section does not apply to a representation or advertisement 12
about being entitled to engage in legal practice of a kind mentioned in 13
section 20(2)(b).2 14
(3) A reference in this section to an individual representing or 15
advertising that the individual is entitled to engage in legal practice 16
includes the individual doing anything that states or implies that the 17
individual is entitled to engage in legal practice. 18
(4) This section is subject to chapter 2, part 4, division 8.3 19
22 Professional discipline 20
(1) A contravention of section 20 or 21 by an Australian lawyer who is 21
not an Australian legal practitioner is capable of constituting unsatisfactory 22
professional conduct or professional misconduct. 23
(2) This part does not affect any liability that a individual who is an 24
Australian lawyer but not an Australian legal practitioner may have under 25
chapter 3.4 26
1 Chapter 2 (Engaging in legal practice), part 4 (Legal practice by Australian legal
practitioners), division 8 (Interstate legal practitioners)
2 Section 20 (Prohibition on engaging in legal practice when not entitled)
3 Chapter 2 (Engaging in legal practice), part 4 (Legal practice by Australian legal
practitioners), division 8 (Interstate legal practitioners)
4 Chapter 3 (Complaints, investigation matters and discipline)
s 23 33 s 24
Legal Profession Bill 2003
(3) An individual may be punished for an offence under section 20 or 21 1
as well as being dealt with under chapter 3 in relation to the same matters. 2
PART 3--ADMISSION OF LEGAL PRACTITIONERS 3
Division 1--Preliminary 4
23 Main purpose of ch 2, pt 3 5
The main purpose of this part is to provide for individuals who are 6
eligible and suitable for admission to be admitted by the Supreme Court as 7
legal practitioners in this jurisdiction. 8
24 Definitions for ch 2, pt 3 9
In this part-- 10
"admission rules" means the rules for the admission of legal practitioners 11
and associated matters under the Supreme Court of Queensland Act 12
1991, section 118.5 13
"applicant for admission" means an individual who has applied for 14
admission as a legal practitioner. 15
"Supreme Court", in relation to an exercise of power of the court, 16
means-- 17
(a) if the admission rules provide that the power may be exercised by 18
a single Supreme Court judge--a single Supreme Court judge; or 19
(b) otherwise--the Court of Appeal. 20
5 Supreme Court of Queensland Act 1991, section 118 (Rule-making power)
s 25 34 s 25
Legal Profession Bill 2003
Division 2--Eligibility and suitability for admission as legal practitioners 1
25 Eligibility for admission 2
(1) An individual is eligible for admission as a legal practitioner only if 3
the individual-- 4
(a) is aged 18 years or more; and 5
(b) has attained approved academic qualifications or corresponding 6
academic qualifications; and 7
(c) has satisfactorily completed approved practical legal training 8
requirements or corresponding practical legal training 9
requirements. 10
(2) In this section-- 11
"approved academic qualifications" means academic qualifications that 12
are approved under the admission rules. 13
"approved practical legal training requirements" means legal training 14
requirements that are approved under the admission rules. 15
"corresponding academic qualifications" means academic qualifications 16
that would qualify the individual for admission as a legal practitioner 17
in another jurisdiction if the board is satisfied that substantially the 18
same minimum criteria apply for the approval of academic 19
qualifications for admission in the other jurisdiction as apply in this 20
jurisdiction. 21
"corresponding practical legal training requirements" means legal 22
training requirements that would qualify the individual for admission 23
as a legal practitioner in another jurisdiction if the board is satisfied 24
that substantially the same minimum criteria apply for the approval of 25
legal training requirements for admission in the other jurisdiction as 26
apply in this jurisdiction. 27
28
Note--
29
The board is the Legal Practitioners Admissions Board established under
30
section 306.6
6 Section 306 (Establishment of board)
s 26 35 s 29
Legal Profession Bill 2003
26 Suitability for admission 1
(1) An individual is suitable for admission as a legal practitioner only if 2
the individual is a fit and proper person to be admitted as a legal 3
practitioner. 4
(2) In deciding if the individual is a fit and proper person to be admitted 5
as a legal practitioner, the Supreme Court must consider-- 6
(a) each of the suitability matters in relation to the individual to the 7
extent a suitability matter is appropriate; and 8
(b) any other matter it considers relevant. 9
(3) However, the Supreme Court may consider an individual suitable for 10
admission despite a suitability matter because of the circumstances relating 11
to the matter. 12
Division 3--Application for admission 13
27 Main purposes of ch 2, pt 3, div 3 14
The main purposes of this division are-- 15
(a) to allow an individual who considers himself or herself eligible 16
for admission and suitable for admission to apply to the Supreme 17
Court for admission as a legal practitioner; and 18
(b) to provide for the board's role in relation to an application for 19
admission. 20
28 Application for admission 21
(1) An individual may apply (an "application for admission") to the 22
Supreme Court to be admitted under this Act as a legal practitioner. 23
(2) The application must be made in the approved form and under the 24
admission rules. 25
29 Role of the board relating to application for admission 26
(1) The board's role is to help the Supreme Court by making a 27
recommendation about each application for admission. 28
s 30 36 s 30
Legal Profession Bill 2003
(2) The board must consider each application and, in particular, whether 1
or not-- 2
(a) the application is made under the admission rules; and 3
(b) the applicant is eligible for admission; and 4
(c) the applicant is suitable for admission, including having regard to 5
all suitability matters in relation to the applicant to the extent 6
appropriate; and 7
(d) there are other matters the Supreme Court may consider relevant. 8
(3) As part of considering the application, the board may, by notice to the 9
applicant, require-- 10
(a) the applicant to give it stated documents or information; or 11
(b) the applicant to cooperate with any inquiries by the board that it 12
considers appropriate. 13
(4) An applicant's failure to comply with a notice under subsection (3) 14
by the date stated in the notice and in the way required by the notice is a 15
ground for recommending to the Supreme Court that the applicant not be 16
admitted. 17
(5) The board makes a recommendation to the Supreme Court about the 18
application by giving the recommendation to the Brisbane registrar and a 19
copy of it to the applicant. 20
(6) However, if the board considers it appropriate to apply to the 21
Supreme Court for a direction about a matter concerning an application, the 22
board may do so. 23
30 Role of Supreme Court relating to application for admission 24
(1) The Supreme Court must hear and decide each application for 25
admission in a way that it considers appropriate. 26
(2) Without limiting subsection (1), the court may-- 27
(a) if satisfied that the applicant for admission is eligible and suitable 28
for admission as a legal practitioner--make an order admitting 29
the applicant as a legal practitioner; or 30
(b) otherwise--refuse the application. 31
(3) The court's order as mentioned in subsection (2)(a) may be made 32
unconditionally or on conditions the court considers appropriate. 33
s 31 37 s 32
Legal Profession Bill 2003
(4) In deciding the application, the Supreme Court may rely on a 1
recommendation of the board under section 29(5).7 2
(5) Also, the Supreme Court may hear and decide an application for a 3
direction as mentioned in section 29(6) and give a direction to the board as 4
the court considers appropriate. 5
Division 4--Early consideration of suitability 6
31 Main purpose of ch 2, pt 3, div 4 7
The main purpose of this division is to allow an individual, including 8
someone undertaking a course of legal studies, to apply for a declaration by 9
the board, or a direction of the Supreme Court, about whether an issue 10
relating to the individual, including a suitability matter, may affect a 11
current or future application for admission. 12
32 Early consideration of suitability 13
(1) This section applies if an individual considers an issue may adversely 14
affect an assessment of the individual's suitability for admission as a local 15
legal practitioner, including, for example, a suitability matter. 16
(2) The individual may apply, in the approved form, to the board for a 17
declaration that the matter will not, without more, adversely affect the 18
board's assessment of the individual's suitability for admission. 19
(3) The board must consider the application and do 1 of the following-- 20
(a) make the declaration; 21
(b) refer the application to the Supreme Court for a direction if the 22
board considers a direction would be appropriate; 23
(c) refuse to make the declaration. 24
(4) A declaration made under subsection (3)(a), or under a direction 25
mentioned in subsection (3)(b), is binding on the board unless the applicant 26
failed to make a full and fair disclosure of all matters relevant to the 27
declaration sought. 28
(5) If the board decides to refuse to make the declaration sought-- 29
7 Section 29 (Role of the board relating to application for admission)
s 33 38 s 34
Legal Profession Bill 2003
(a) the board must give the applicant an information notice about the 1
refusal to make the declaration; and 2
(b) the applicant may appeal to the Supreme Court against the 3
refusal within 28 days after the date the information notice is 4
given to the applicant. 5
33 Involvement of Supreme Court whether by referral or on appeal 6
(1) If an application under section 32(2) is referred to the Supreme Court 7
as mentioned in section 32(3)(b), the court may give a direction to the 8
board as the court considers appropriate. 9
(2) If the applicant appeals to the Supreme Court against the decision of 10
the board to refuse to make the declaration, the appeal is to be by way of 11
rehearing, and fresh evidence or evidence in addition to or in substitution 12
for the evidence before the board may be given on the appeal. 13
(3) On an appeal under this section, the Supreme Court may make an 14
order as it considers appropriate. 15
Division 5--Roll of legal practitioners 16
34 Roll of legal practitioners 17
(1) The Supreme Court must keep a roll of legal practitioners (the "local 18
roll"). 19
(2) The local roll must include the roll of barristers, and the roll of 20
solicitors, as kept by the Supreme Court before the commencement of this 21
section. 22
(3) After the Supreme Court makes an order admitting an individual as a 23
legal practitioner-- 24
(a) the registrar for the Supreme Court district at which the Supreme 25
Court is sitting must, under the admission rules, enter the legal 26
practitioner's name on the local roll; and 27
(b) the individual must sign the local roll. 28
(4) The admission of an individual as a legal practitioner takes effect 29
when the individual signs the local roll. 30
s 35 39 s 38
Legal Profession Bill 2003
35 Local legal practitioner is officer of Supreme Court 1
An individual becomes an officer of the Supreme Court on being 2
admitted under this Act as a legal practitioner. 3
Division 6--Miscellaneous 4
36 Conditional admission 5
(1) This section applies to the following-- 6
(a) an individual admitted by the Supreme Court as a legal 7
practitioner on conditions; 8
(b) an individual who is a local legal practitioner under section 5(3) 9
if the individual's admission is subject to a condition. 10
(2) The Supreme Court may do any of the following in relation to the 11
conditions-- 12
(a) revoke or vary the conditions on which the individual is admitted, 13
whether on application of the individual or on the court's own 14
initiative; 15
(b) order the removal of the individual's name from the local roll for 16
contravening a condition. 17
(3) Without limiting subsection (2)(b), a contravention of a condition is 18
capable of constituting unsatisfactory professional conduct or professional 19
misconduct. 20
37 Board may appear before Supreme Court 21
The board, by a member of the board or by an Australian legal 22
practitioner acting for the board, is entitled to appear before and be heard 23
by the Supreme Court at a hearing about any application made under this 24
part. 25
38 Fees payable 26
The board must charge the fee prescribed under a regulation for matters 27
under this part or for matters dealt with in the admission rules. 28
s 39 40 s 41
Legal Profession Bill 2003
PART 4--LEGAL PRACTICE BY AUSTRALIAN LEGAL 1
PRACTITIONERS 2
Division 1--Preliminary 3
39 Main purposes of ch 2, pt 4 4
The main purposes of this part are as follows-- 5
(a) to provide a system for the law society to grant or renew a local 6
practising certificate to an individual who practises or intends to 7
practise as a solicitor; 8
(b) to provide a system for the bar association to grant or renew a 9
local practising certificate to an individual who practises or 10
intends to practise only as a barrister; 11
(c) to facilitate the national practice of law by allowing an interstate 12
legal practitioner to engage in legal practice in this jurisdiction or 13
an interstate lawyer to obtain a local practising certificate. 14
40 Meaning of "relevant regulatory authority" 15
A "relevant regulatory authority" is-- 16
(a) if the individual in relation to whom the expression is used 17
practises, or intends to practise, only as a barrister--the bar 18
association; or 19
(b) otherwise--the law society. 20
41 How suitability relating to holding local practising certificate is to 21
be decided in this part 22
(1) Suitability in relation to holding or continuing to hold a local 23
practising certificate is to be decided by reference to whether the applicant 24
or certificate holder is a fit and proper person to hold the certificate. 25
(2) A regulatory authority, in considering whether an individual is, or is 26
no longer, a fit and proper person to hold a local practising certificate, may 27
take into account any suitability matter relating to the individual and any of 28
the following whether happening before or after the commencement of this 29
section-- 30
s 42 41 s 42
Legal Profession Bill 2003
(a) whether the local practising certificate, or any other practising 1
certificate held or previously held by the individual, was obtained 2
because of incorrect or misleading information; 3
(b) whether the individual has contravened a relevant law, a 4
condition of any certificate mentioned in paragraph (a) or an 5
order of a disciplinary body, a corresponding tribunal or the 6
solicitors complaints tribunal; 7
(c) whether the individual has failed to pay an amount for which the 8
individual is or was liable under a relevant law, including, for 9
example, an amount payable to the fidelity fund under a relevant 10
law; 11
(d) whether, without limiting paragraph (c), the individual has 12
contravened a provision of a relevant law about professional 13
indemnity insurance; 14
(e) another matter the authority considers it is appropriate to take 15
account of because of the public interest in the integrity of the 16
legal profession. 17
(3) Even though the regulatory authority considers a matter mentioned in 18
subsection (2) in relation to an individual, the authority may consider the 19
individual is suitable to hold a local practising certificate after considering 20
the circumstances of the matter mentioned in that subsection. 21
(4) If a matter was-- 22
(a) disclosed in an application for admission as a legal practitioner in 23
this or another jurisdiction; and 24
(b) the Supreme Court or a corresponding authority decided it was 25
not sufficient to refuse the application; 26
the matter can not be taken into account as a ground for refusing to grant or 27
renew or for cancelling a local practising certificate, but may be taken into 28
account as relevant when considering other matters in relation to the 29
individual. 30
Division 2--Legal practice in this jurisdiction 31
42 Entitlement to practise in this jurisdiction 32
(1) Subject to this Act, an Australian legal practitioner is entitled to 33
engage in legal practice in this jurisdiction. 34
s 43 42 s 43
Legal Profession Bill 2003
(2) Also, a government legal officer engaged in government work is 1
entitled to engage in legal practice in this jurisdiction even though the 2
government legal officer is not an Australian legal practitioner. 3
(3) Subsection (2) does not prevent a government legal officer from 4
being the holder of a local practising certificate. 5
Division 3--Matters relating to applications for grant or renewal of local 6
practising certificates 7
43 Application for grant or renewal of local practising certificate 8
(1) An Australian lawyer may apply to a regulatory authority for the 9
grant or renewal of a local practising certificate if eligible to do so. 10
(2) An Australian lawyer is eligible to apply for the grant or renewal of a 11
local practising certificate if the lawyer complies with any regulation 12
relating to eligibility for the practising certificate and-- 13
(a) for an Australian lawyer who is not an Australian legal 14
practitioner at the time of making the application-- 15
(i) the lawyer's place of residence in Australia is this 16
jurisdiction; or 17
(ii) the lawyer reasonably expects to be engaged in legal 18
practice principally from an office in this jurisdiction during 19
the whole of the currency of the certificate applied for; or 20
(iii) the lawyer does not have a place of residence in Australia; 21
or 22
(b) for an Australian lawyer who is an Australian legal practitioner at 23
the time of making the application-- 24
(i) the jurisdiction in which the lawyer engages in legal 25
practice principally is in this jurisdiction; or 26
(ii) the lawyer holds a current local practising certificate and 27
engages in legal practice principally in another jurisdiction 28
under an arrangement that is of a temporary nature; or 29
(iii) the lawyer reasonably expects to be engaged in legal 30
practice principally in this jurisdiction during the whole of 31
the currency of the certificate applied for; or 32
s 44 43 s 44
Legal Profession Bill 2003
(iv) the lawyer does not have a place of residence in Australia; 1
or 2
(v) the lawyer's place of residence in Australia is in this 3
jurisdiction. 4
(3) For subsection (2)(b), the jurisdiction in which an Australian lawyer 5
engages in legal practice principally is to be decided by reference to the 6
lawyer's legal practice during the certificate period current at the time-- 7
(a) the application is made; or 8
(b) in the case of a late application--the application should have 9
been made. 10
(4) An Australian lawyer must not apply for the grant or renewal of a 11
local practising certificate if the lawyer is not eligible to make the 12
application. 13
(5) An Australian lawyer who engages in legal practice principally in this 14
jurisdiction during a financial year and intends to engage in legal practice 15
in the following financial year must apply for the grant or renewal of a local 16
practising certificate for the following financial year. 17
(6) Subsection (5) does not apply to an interstate legal practitioner who 18
applied for the grant or renewal of an interstate practising certificate on the 19
basis that-- 20
(a) the practitioner reasonably expected to engage in legal practice 21
principally in this jurisdiction under an arrangement that is of a 22
temporary nature; or 23
(b) the practitioner reasonably expected to engage in legal practice 24
principally in another jurisdiction during the whole of the 25
currency of the interstate practising certificate. 26
(7) A contravention of this section is capable of constituting 27
unsatisfactory professional conduct or professional misconduct. 28
44 Manner of application 29
(1) An application for the grant or renewal of a local practising certificate 30
must be-- 31
s 45 44 s 45
Legal Profession Bill 2003
(a) made in the way provided for under the relevant regulatory 1
authority's administration rules, including in the approved form; 2
and 3
(b) for an application for renewal--made within the period stated in 4
an administration rule of the authority. 5
(2) An approved form for an application for the grant or renewal of a 6
local practising certificate-- 7
(a) may require information relating to suitability matters in relation 8
to the applicant; and 9
(b) if the form requires information relating to suitability 10
matters--must direct the attention of the applicant to 11
section 55(3)8 in relation to information that need not be 12
disclosed. 13
45 Professional indemnity insurance 14
(1) A relevant regulatory authority must not grant or renew a local 15
practising certificate unless the authority-- 16
(a) for an application by an individual who is a government legal 17
officer engaged in government work--imposes a condition on the 18
certificate that the individual is not to engage in legal practice 19
other than as a government legal officer engaged in government 20
work; or 21
(b) for an application by an individual who is employed by a 22
corporation, that is not an incorporated legal practice, and who 23
provides only in-house legal services--imposes a condition on 24
the certificate that the individual is not to engage in legal practice 25
other than for providing in-house legal services; or 26
(c) for an application by anyone else--is satisfied the applicant will, 27
during the currency of the practising certificate, be covered by 28
professional indemnity insurance that complies with this Act. 29
(2) Professional indemnity insurance complies with this Act in relation 30
to a practising certificate if it complies with the requirements prescribed 31
under a regulation. 32
8 Section 55 (Application for local practising certificate if show cause event
since first admission)
s 46 45 s 46
Legal Profession Bill 2003
(3) The regulation may, for example, require professional indemnity 1
insurance to be of a kind approved, or provided under a scheme approved, 2
or provided by an insurer approved, or arranged, by the relevant regulatory 3
authority for the practising certificate. 4
(4) An approval mentioned in subsection (3) may relate to professional 5
indemnity insurance approved under a corresponding law. 6
46 Continuing obligation for professional indemnity insurance 7
(1) An individual mentioned in section 45(1)(a) must notify the 8
regulatory authority, in the approved form, if the individual ceases to be-- 9
(a) a government legal officer; or 10
(b) a government legal officer only engaged in government work. 11
(2) An individual mentioned in section 45(1)(b) must notify the 12
regulatory authority, in the approved form, if the individual ceases to be 13
employed by a corporation, that is not an incorporated legal practice, in 14
providing only in-house legal services to the corporation. 15
(3) An individual mentioned in section 45(1)(c) must notify the 16
regulatory authority, in the approved form, if the individual becomes aware 17
that the individual will not be covered by professional indemnity insurance 18
that complies with the requirements prescribed under a regulation 19
mentioned in section 45(2). 20
(4) A local legal practitioner must not engage in legal practice in this 21
jurisdiction, or represent or advertise that the practitioner is entitled to 22
engage in legal practice in this jurisdiction, unless the practitioner has 23
professional indemnity insurance that complies with the requirements 24
prescribed under a regulation mentioned in section 45(2).9 25
Maximum penalty--300 penalty units or imprisonment for 2 years. 26
(5) A contravention of subsection (1), (2), (3) or (4) is capable of 27
constituting unsatisfactory professional conduct or professional 28
misconduct. 29
9 Section 45 (Professional indemnity insurance)
s 47 46 s 47
Legal Profession Bill 2003
Division 4--Grant or renewal of local practising certificates 1
47 Grant or renewal of local practising certificate 2
(1) A regulatory authority must consider an application that has been 3
made to it for the grant or renewal of a local practising certificate and 4
may-- 5
(a) grant or refuse to grant the certificate; or 6
(b) renew or refuse to renew the certificate. 7
(2) The regulatory authority may refuse to consider the application, or 8
refuse to grant or renew a local practising certificate, if the application is 9
not made under this Act and is not made in the way required by a relevant 10
administration rule of the authority. 11
(3) The authority must not grant or renew a local practising certificate if 12
the authority considers-- 13
(a) the applicant was not eligible to apply for the grant or renewal of 14
the certificate when the application was made; or 15
(b) the applicant's circumstances have changed since the application 16
was made and, having regard to information that has come to the 17
authority's attention, the applicant would not have been eligible 18
to make the application had the information been known when 19
the application was made; or 20
(c) the applicant is not suitable to hold the certificate. 21
(4) If the authority grants or renews a local practising certificate, the 22
authority must give the applicant-- 23
(a) for the grant of a certificate--a local practising certificate; or 24
(b) for the renewal of a certificate--a new local practising certificate. 25
(5) If the authority refuses to grant or renew a local practising 26
certificate-- 27
(a) the authority must give the applicant an information notice about 28
the decision to refuse the application; and 29
(b) the applicant may appeal to the Supreme Court against the 30
refusal within 28 days after the date the information notice is 31
given to the applicant. 32
s 48 47 s 49
Legal Profession Bill 2003
48 Conditions imposed by law society or bar association 1
(1) A regulatory authority may impose any reasonable and relevant 2
condition on a local practising certificate when the authority grants it. 3
(2) Without limiting subsection (1), the condition may be about any of 4
the following-- 5
(a) requiring the certificate holder to undertake and complete an 6
academic or training course; 7
(b) limiting the certificate holder to supervised legal practice in the 8
way stated in the condition; 9
(c) controlling or otherwise regulating the operation of a trust 10
account; 11
(d) if the practising certificate authorises the certificate holder to 12
practise in a particular branch of the legal profession or in a 13
particular style of legal practice--restricting the certificate holder 14
to particular conditions concerning employment or supervision; 15
(e) a matter agreed to by the certificate holder. 16
(3) However, the regulatory authority must not impose a condition as 17
mentioned in subsection (2)(a) unless-- 18
(a) the authority, having regard to the certificate holder's previous 19
academic studies, legal training, experience or conduct, considers 20
that clients of the certificate holder may be at risk of harm if the 21
condition is not imposed; or 22
(b) the condition is one that is imposed on a class of certificate 23
holders. 24
25
Note--
26
A class of certificate holders might comprise lawyers returning to legal
27
practice after suspension or an extended break.
49 Applications relating to conditions 28
(1) This section applies if a regulatory authority imposes a condition on a 29
practising certificate. 30
(2) If the applicant did not apply for a practising certificate subject to the 31
condition-- 32
(a) the regulatory authority must give the applicant an information 33
notice about the decision to impose the condition; and 34
s 50 48 s 51
Legal Profession Bill 2003
(b) the applicant may appeal to the Supreme Court against the 1
imposition within 28 days after the date the information notice is 2
given to the applicant. 3
(3) The regulatory authority may revoke a condition imposed under this 4
section on application of the certificate holder in the approved form, or on 5
its own initiative, by giving written notice about the revocation to the 6
certificate holder. 7
(4) If an application is made by a certificate holder for the revocation of a 8
condition and the relevant regulatory authority refuses to grant the 9
application-- 10
(a) the authority must give the applicant an information notice about 11
the decision refusing the application; and 12
(b) the applicant may appeal to the Supreme Court against the 13
imposition of the condition within 28 days after the date the 14
information notice is given to the applicant. 15
50 Local legal practitioner is officer of Supreme Court 16
An individual who is not already an officer of the Supreme Court 17
becomes an officer of the court on being granted a local practising 18
certificate. 19
Division 5--Conditions applying to local practising certificates 20
51 Conditions generally 21
A local practising certificate is subject to the following-- 22
(a) a condition imposed by the relevant regulatory authority under 23
division 410 at the time the certificate is granted unless the 24
condition is revoked at a later time; 25
10 Division 4 (Grant or renewal of local practising certificates)
s 52 49 s 53
Legal Profession Bill 2003
(b) a statutory condition as mentioned in section 52 or 53;11 1
(c) a condition imposed under chapter 312 or under a corresponding 2
law; 3
(d) a condition imposed under a legal profession rule or regulation. 4
52 Statutory condition regarding notification of offence 5
(1) It is a statutory condition of a local practising certificate that the 6
certificate holder must give notice in the approved form to the relevant 7
regulatory authority if the certificate holder is convicted of an offence that 8
would have to be disclosed under the admission rules for an application for 9
admission as a legal practitioner. 10
(2) The notice must be given to the regulatory authority within 7 days 11
after the conviction. 12
(3) The regulatory authority's administration rules may specify the 13
person to whom, or the address to which, the notice is to be given or sent. 14
(4) This section does not apply to a show cause event to which 15
division 613 applies. 16
53 Statutory condition regarding legal practice as solicitor 17
(1) Each local practising certificate granted or renewed by the law 18
society must state whether the certificate holder-- 19
(a) may only engage in supervised legal practice; or 20
(b) may engage in unsupervised legal practice. 21
(2) An administration rule may provide for the requirements for an 22
individual to be eligible for a practising certificate that states that the 23
certificate holder may engage in unsupervised legal practice. 24
(3) However, the administration rule may not provide that an individual 25
is eligible for the certificate unless-- 26
11 Section 52 (Statutory condition regarding notification of offence) or 53 (Statutory
condition regarding legal practice as solicitor)
12 Chapter 3 (Complaints, investigation matters and discipline)
13 Division 6 (Special powers relating to local practising certificates)
s 54 50 s 55
Legal Profession Bill 2003
(a) if the individual completed practical legal training under articles 1
of clerkship--the individual has undertaken a period of or 2
periods equivalent to 18 months supervised legal practice, 3
worked out under the regulation, after the day a practising 4
certificate is first granted; or 5
(b) if the individual completed other practical legal training--the 6
individual has undertaken a period of or periods equivalent to 7
2 years supervised legal practice, worked out under the 8
regulation, after the day a practising certificate is first granted. 9
54 Compliance with conditions 10
(1) The holder of a current local practising certificate must not 11
contravene, in this jurisdiction or elsewhere, a condition to which the 12
certificate is subject. 13
14
Example--
15
If an individual engages in unsupervised legal practice and the relevant practising
16
certificate states the certificate holder may only engage in supervised legal practice, the
17
person contravenes a condition of the certificate.
(2) A contravention of subsection (1) is capable of constituting 18
unsatisfactory professional conduct or professional misconduct. 19
Division 6--Special powers relating to local practising certificates 20
55 Application for local practising certificate if show cause event 21
happened after first admission 22
(1) This section applies if-- 23
(a) an individual is applying for the grant of a local practising 24
certificate under this Act; and 25
(b) a show cause event in relation to the individual happened, 26
whether before or after the commencement of this section, after 27
the individual was first admitted as a legal practitioner in this or 28
another jurisdiction, however the admission was expressed at the 29
time of the admission. 30
(2) As part of the application, the individual must give to the relevant 31
regulatory authority a written statement-- 32
(a) about the show cause event; and 33
s 56 51 s 57
Legal Profession Bill 2003
(b) explaining why, despite the event, the applicant is a suitable 1
person to hold a local practising certificate. 2
(3) However, an individual need not give a statement under 3
subsection (2) if the individual has previously given the regulatory 4
authority a statement under this section, or a notice and statement under 5
section 56, for the event stating why, despite the event, the individual is, or 6
continues to be, a suitable person to hold a local practising certificate. 7
(4) The regulatory authority must give a copy of a statement under 8
subsection (2) to the commissioner. 9
(5) A contravention of subsection (2) is capable of constituting 10
unsatisfactory professional conduct or professional misconduct. 11
56 Requirement if show cause event 12
(1) This section applies to a show cause event that happens in relation to 13
a local legal practitioner. 14
(2) The local legal practitioner must give to the relevant regulatory 15
authority both of the following-- 16
(a) within 7 days after the day of the event--notice, in the approved 17
form, that the event happened; 18
(b) within 28 days after the day of the event--a written statement 19
explaining why, despite the event, the practitioner continues to be 20
a suitable person to hold a local practising certificate. 21
(3) The regulatory authority must give a copy of a notice and a statement 22
under subsection (2) to the commissioner. 23
(4) A contravention of subsection (2) is capable of constituting 24
unsatisfactory professional conduct or professional misconduct. 25
(5) However, if a written statement is given after the 28 days mentioned 26
in subsection (2)(b), the regulatory authority may accept the statement and 27
take it into consideration. 28
57 Refusal, cancellation or suspension of local practising certificate 29
because of failure to show cause 30
(1) The relevant regulatory authority may refuse to grant or renew, or 31
may cancel or suspend, a local practising certificate if the applicant or 32
certificate holder-- 33
s 58 52 s 58
Legal Profession Bill 2003
(a) is required by section 55 or 5614 to give a written statement 1
relating to a matter to the regulatory authority and the applicant 2
has not done so; or 3
(b) has given a written statement under section 55 or 56 but the 4
authority does not consider that the applicant or certificate holder 5
has shown in the statement that the individual is a suitable person 6
to hold a local practising certificate. 7
(2) For the purposes of this section only, a written statement given to the 8
regulatory authority after the period prescribed under a regulation and 9
accepted by it, as mentioned in section 56(5), is given under section 56. 10
(3) If the regulatory authority decides to refuse to grant or renew, or to 11
cancel or suspend, a local practising certificate-- 12
(a) the authority must give the applicant or certificate holder an 13
information notice about the decision to refuse to grant or renew, 14
or to cancel or suspend, the certificate; and 15
(b) the applicant or certificate holder may appeal to the Supreme 16
Court against the decision within 28 days after the date the 17
information notice is given to the applicant or certificate holder. 18
(4) Also, the regulatory authority must give a copy of the information 19
notice to the commissioner. 20
58 Restriction on making further application 21
(1) This section applies if a regulatory authority decides under 22
section 5715 to refuse to grant or renew a local practising certificate to an 23
individual or to cancel or suspend an individual's local practising 24
certificate. 25
(2) The authority may also decide that the individual is not entitled to 26
apply for the grant of a local practising certificate for a stated period not 27
exceeding 5 years. 28
(3) If the authority makes a decision under subsection (2), the authority 29
must include the decision in the information notice required under 30
section 57(3)(a) and the applicant or certificate holder may also appeal to 31
14 Section 55 (Application for local practising certificate if show cause event since first
admission) or 56 (Requirement if show cause event)
15 Section 57 (Refusal, cancellation or suspension of local practising certificate
because of failure to show cause)
s 59 53 s 60
Legal Profession Bill 2003
the Supreme Court against the decision within 28 days after the date the 1
information notice is given to the applicant or certificate holder. 2
(4) An individual about whom a decision has been made under this 3
section, or under a provision of a corresponding law, is not entitled to apply 4
for the grant of a local practising certificate during the period stated in the 5
decision. 6
59 Relationship of this division with ch 5, pt 2 7
(1) An investigator nominated by a regulatory authority for appointment 8
as an investigator may exercise powers under chapter 5, part 216 for a 9
matter under this division as if the matter were the subject of a complaint. 10
(2) Accordingly, the provisions of chapter 5, part 2 apply in relation to a 11
matter under this division, and so apply with any necessary changes. 12
(3) Nothing in this division-- 13
(a) prevents a regulatory authority from making a complaint about a 14
matter to which this division relates; or 15
(b) the commissioner investigating or referring a matter for 16
investigation as mentioned in section 182.17 17
Division 7--Amendment, cancellation or suspension of local practising 18
certificates 19
60 Application of ch 2, pt 4, div 7 20
This division does not apply to a show cause event to which division 618 21
applies. 22
16 Chapter 5 (Suitability reports and investigations), part 2 (Investigators and their
powers)
17 Section 182 (Referral by commissioner to law society or bar association)
18 Division 6 (Special powers relating to local practising certificates)
s 61 54 s 62
Legal Profession Bill 2003
61 Grounds for amending, cancelling or suspending a local 1
practising certificate 2
Each of the following is a ground for amending, cancelling or 3
suspending a local practising certificate-- 4
(a) the certificate holder is no longer a fit and proper person to hold 5
the certificate; 6
(b) the certificate holder does not have, or no longer has, 7
professional indemnity insurance that complies with this Act in 8
relation to the relevant practising certificate; 9
(c) if a condition of the certificate is that the certificate holder is 10
limited to legal practice stated in the certificate--the certificate 11
holder is engaging in legal practice that the holder is not entitled 12
to engage in under this Act. 13
14
Note for paragraph (a)--
15
Section 4119 states how a decision about a person being fit and proper is to
16
be made.
62 Amending, cancelling or suspending local practising certificate 17
(1) If the relevant regulatory authority believes a ground exists to amend, 18
cancel or suspend an individual's local practising certificate (the 19
"proposed action"), the authority must give the individual a notice (the 20
"show cause notice") that states-- 21
(a) the proposed action and-- 22
(i) if the proposed action is to amend the certificate in a way, 23
including by imposing a condition on the certificate or by 24
changing an existing condition that may be imposed under 25
section 4820--states the proposed amendment; and 26
(ii) if the proposed action is to suspend the certificate--states 27
the proposed period of suspension; and 28
(b) the grounds for proposing to take the proposed action; and 29
(c) an outline of the facts and circumstances that form the basis for 30
the authority's belief; and 31
19 Section 41 (How suitability relating to holding local practising certificate is to be
decided in this part)
20 Section 48 (Conditions imposed by law society or bar association)
s 63 55 s 63
Legal Profession Bill 2003
(d) an invitation to the certificate holder to make representations to 1
the authority, within a stated time of not less than 28 days, why 2
the proposed action should not be taken. 3
(2) If, after considering all representations made within the stated time 4
or, in its discretion, after the stated time, the regulatory authority still 5
believes a ground exists to take the proposed action, the authority may-- 6
(a) if the show cause notice stated the proposed action was to amend 7
the practising certificate--amend the certificate in the way stated, 8
or in another way the authority considers appropriate because of 9
the representations; or 10
(b) if the show cause notice stated the proposed action was to cancel 11
the practising certificate--cancel the certificate or suspend the 12
certificate for a period; or 13
(c) if the show cause notice stated the proposed action was to 14
suspend the practising certificate for a stated period--suspend 15
the certificate for a period no longer than the stated period or 16
amend the certificate in a way the authority considers appropriate 17
because of the representations. 18
(3) If the regulatory authority decides to amend, cancel or suspend the 19
local practising certificate-- 20
(a) the authority must give the certificate holder an information 21
notice about the decision to amend, cancel or suspend the 22
certificate; and 23
(b) the certificate holder may appeal to the Supreme Court against 24
the decision within 28 days after the date the information notice 25
is given to the certificate holder. 26
63 Operation of amendment, cancellation or suspension of local 27
practising certificate 28
(1) This section applies if a decision is made to amend, cancel or 29
suspend a local practising certificate under section 62.21 30
(2) Subject to subsections (3) and (4), the amendment, cancellation or 31
suspension takes effect on the later of the following-- 32
21 Section 62 (Amending, cancelling or suspending a local practising certificate)
s 64 56 s 64
Legal Profession Bill 2003
(a) the day that the information notice about the decision is given to 1
the certificate holder; 2
(b) the day stated in the information notice. 3
(3) If the practising certificate is amended, cancelled or suspended 4
because the certificate holder has been convicted of an offence-- 5
(a) the Supreme Court may, on the application of the certificate 6
holder, order that the amendment, cancellation or suspension be 7
stayed until-- 8
(i) the end of the time to appeal against the conviction; and 9
(ii) if an appeal is made against the conviction--the appeal is 10
finally decided, lapses or otherwise ends; and 11
(b) the amendment, cancellation or suspension does not have effect 12
during any period for which the stay is in force. 13
(4) If the practising certificate is amended, cancelled or suspended 14
because the certificate holder has been convicted of an offence and the 15
conviction is quashed-- 16
(a) the amendment or suspension ceases to have effect when the 17
conviction is quashed; or 18
(b) the cancellation ceases to have effect when the conviction is 19
quashed and the certificate is restored as if it had merely been 20
suspended. 21
64 Return of amended, cancelled or suspended local practising 22
certificate 23
(1) This section applies if a local legal practitioner's local practising 24
certificate is amended, cancelled or suspended by the relevant regulatory 25
authority. 26
(2) The regulatory authority may-- 27
(a) give the certificate holder a notice requiring the practitioner to 28
return the certificate to the authority in the way stated in the 29
notice within a stated period of not less than 7 days; or 30
(b) include in an information notice that the authority must give to 31
the certificate holder under this part a further notice requiring the 32
holder to return the certificate to the authority in the way stated in 33
the notice within a stated period of not less than 7 days. 34
s 65 57 s 66
Legal Profession Bill 2003
(3) The certificate holder must comply with the requirement, unless the 1
holder has a reasonable excuse. 2
Maximum penalty--50 penalty units. 3
(4) The regulatory authority must return the practising certificate to the 4
certificate holder-- 5
(a) if the certificate is amended--after amending it; or 6
(b) if the certificate is suspended and is still current at the end of the 7
suspension period--at the end of the suspension period. 8
65 Other ways of amending or cancelling a local practising certificate 9
(1) This section applies if-- 10
(a) a local legal practitioner applies, in the approved form, to the 11
regulatory authority to amend or cancel the local legal 12
practitioner's practising certificate; or 13
(b) the regulatory authority proposes to amend a local legal 14
practitioner's practising certificate-- 15
(i) only for a formal or clerical reason or in another way that 16
does not adversely affect the legal practitioner's interests; 17
and 18
(ii) the local legal practitioner agrees in writing to the 19
amendment; or 20
(c) the regulatory authority considers cancellation of the local legal 21
practitioner is appropriate because the practitioner's name has 22
been removed from the local roll. 23
(2) The authority may amend or cancel the local practising certificate as 24
mentioned in subsection (1) by written notice given to the legal 25
practitioner. 26
66 Relationship of this division with ch 3 27
Nothing in this division prevents-- 28
(a) a regulatory authority from making a complaint about a matter to 29
which this division relates; or 30
s 67 58 s 68
Legal Profession Bill 2003
(b) the commissioner investigating or referring a matter for 1
investigation as mentioned in section 182.22 2
Division 8--Interstate legal practitioners 3
67 Requirement for interstate practising certificate and professional 4
indemnity insurance 5
(1) An interstate legal practitioner must not engage in legal practice in 6
this jurisdiction, or represent or advertise that the practitioner is entitled to 7
engage in legal practice in this jurisdiction, unless the practitioner-- 8
(a) is covered by professional indemnity insurance that-- 9
(i) covers legal practice in this jurisdiction; and 10
(ii) complies with the requirements prescribed under a 11
regulation, being requirements that are no more onerous 12
than the requirements under section 45(2);23 or 13
(b) is employed by a corporation, other than an incorporated legal 14
practice, and the only legal services provided by the practitioner 15
in this jurisdiction are in-house legal services. 16
Maximum penalty--300 penalty units or imprisonment for 2 years. 17
(2) A contravention of subsection (1) is capable of constituting 18
unsatisfactory professional conduct or professional misconduct. 19
(3) A regulation may require an interstate legal practitioner to disclose 20
information about professional indemnity insurance to clients or 21
prospective clients. 22
68 Extent of entitlement of certificate holder of interstate practising 23
certificate to practise in this jurisdiction 24
(1) This part does not authorise an interstate legal practitioner to engage 25
in legal practice in this jurisdiction to a greater extent than a local legal 26
practitioner may be authorised under a local practising certificate to engage 27
in legal practice in this jurisdiction. 28
22 Section 182 (Referral by commissioner to law society or bar association)
23 Section 45 (Professional indemnity insurance)
s 69 59 s 69
Legal Profession Bill 2003
(2) Also, the interstate legal practitioner's right to engage in legal 1
practice in this jurisdiction-- 2
(a) is subject to any conditions imposed by the relevant regulatory 3
authority under section 69;24 and 4
(b) to the greatest practicable extent and with all necessary 5
changes-- 6
(i) is the same as the practitioner's right to engage in legal 7
practice in the practitioner's home jurisdiction; and 8
(ii) is subject to any condition applicable to the practitioner's 9
right to engage in legal practice in that jurisdiction, 10
including any conditions imposed on the practitioner's 11
admission. 12
(3) An interstate legal practitioner must not engage in legal practice in 13
this jurisdiction in a way that is not authorised under this Act or in 14
contravention of any condition mentioned in this section. 15
(4) A contravention of this section is capable of constituting 16
unsatisfactory professional conduct or professional misconduct. 17
69 Additional condition on interstate legal practitioner engaging in 18
legal practice in this jurisdiction 19
(1) The relevant regulatory authority may impose a condition on an 20
interstate legal practitioner engaged in legal practice in this jurisdiction that 21
it may impose under this Act on a local practising certificate at the time the 22
certificate is granted or renewed. 23
(2) However, conditions imposed under this section must not be more 24
onerous than conditions applying to local legal practitioners. 25
(3) If the regulatory authority imposes a condition on an interstate legal 26
practitioner engaged in legal practice in this jurisdiction-- 27
(a) the authority must give the interstate legal practitioner an 28
information notice about the decision to impose the condition; 29
and 30
24 Section 69 (Additional condition on interstate legal practitioner engaging in legal
practice in this jurisdiction)
s 70 60 s 72
Legal Profession Bill 2003
(b) the interstate legal practitioner may appeal to the Supreme Court 1
against the decision within 28 days after the date the information 2
notice is given to the certificate holder. 3
70 Special provision about interstate legal practitioner engaging in 4
unsupervised legal practice in this jurisdiction 5
An interstate legal practitioner may not engage in unsupervised legal 6
practice in this jurisdiction unless-- 7
(a) if the interstate legal practitioner completed practical legal 8
training under articles of clerkship--the practitioner has 9
undertaken a period of or periods equivalent to 18 months 10
supervised legal practice, worked out under the regulation, after 11
the day the practitioner's first practising certificate was granted; 12
or 13
(b) if the interstate legal practitioner completed other practical legal 14
training--the practitioner has undertaken a period of or periods 15
equivalent to 2 years supervised legal practice, worked out under 16
the regulation, after the day the practitioner's first practising 17
certificate was granted. 18
71 Interstate legal practitioner is officer of Supreme Court 19
An interstate legal practitioner has all the duties and obligations of an 20
officer of the Supreme Court, and for those duties and obligations is subject 21
to the jurisdiction of the Supreme Court. 22
Division 9--Miscellaneous provisions about local practising certificates 23
and other matters 24
72 Immediate suspension of local practising certificate 25
(1) This section applies whether or not action in relation to a local legal 26
practitioner has been started under division 6.25 27
(2) If the relevant regulatory authority considers it necessary in the 28
public interest to immediately suspend a local practising certificate for any 29
25 Division 6 (Special powers relating to local practising certificates)
s 72 61 s 72
Legal Profession Bill 2003
of the following reasons, whether they happened before or after the 1
commencement of this section, the authority may, by information notice 2
given to the local legal practitioner about the decision to suspend the 3
certificate, immediately suspend the practising certificate-- 4
(a) the local legal practitioner has become an insolvent under 5
administration; 6
(b) the local legal practitioner has been convicted of a serious 7
offence or tax offence; 8
(c) a ground exists on which the certificate could be cancelled or 9
suspended under section 62.26 10
(3) Subject to subsection (7), the practising certificate continues to be 11
suspended until the earlier of the following-- 12
(a) the time at which the regulatory authority informs the local legal 13
practitioner of the authority's decision by information notice 14
under section 62(3); 15
(b) the end of 56 days after the information notice is given to the 16
local legal practitioner under this section. 17
(4) The information notice mentioned in subsection (2) must also state 18
that the local legal practitioner may make representations to the regulatory 19
authority about the suspension. 20
(5) If the local legal practitioner makes representations to the regulatory 21
authority about the suspension, the authority must consider the 22
representations. 23
(6) The regulatory authority may revoke the suspension at any time, 24
whether or not because of representations made to it by the local legal 25
practitioner. 26
(7) Also, the regulatory authority may apply to the Supreme Court for an 27
order extending the period of the suspension and, if the court considers it 28
appropriate and the suspension has not ended under subsection (3), the 29
court may extend the period of the suspension for a further period of not 30
more than a further 56 days after the date of the court order. 31
(8) The regulatory authority must give the certificate holder an 32
information notice about its decision to apply under subsection (7) for an 33
order extending the period of the suspension. 34
26 Section 62 (Amending, cancelling or suspending local practising certificate)
s 73 62 s 75
Legal Profession Bill 2003
73 Duration of local practising certificates 1
(1) A local practising certificate granted under this Act is in force from 2
the date stated in it until the end of the financial year in which it is granted, 3
unless the certificate is sooner cancelled or suspended. 4
(2) A local practising certificate renewed under this Act is in force until 5
the end of the financial year following its previous period of currency, 6
unless the certificate is sooner cancelled or suspended. 7
(3) If a local legal practitioner applies for the renewal of a local 8
practising certificate before the time stated in the regulatory authority's 9
administration rule for applying for a renewal and the authority has not 10
decided the application by the following 1 July, the certificate-- 11
(a) continues in force on and after that 1 July until 1 of the following 12
happens-- 13
(i) the authority renews or refuses to renew the certificate; 14
(ii) the local legal practitioner withdraws the application for 15
renewal; 16
(iii) the certificate is cancelled or suspended; and 17
(b) if renewed, is taken to have been renewed on that 1 July. 18
74 Surrender and cancellation of local practising certificate 19
(1) The holder of a local practising certificate may surrender the 20
certificate to the relevant regulatory authority. 21
(2) The authority may cancel a practising certificate surrendered under 22
subsection (1). 23
75 Protocols 24
(1) A regulatory authority may enter into arrangements ("protocols") 25
with regulatory authorities of other jurisdictions about deciding-- 26
(a) the jurisdiction from which an Australian lawyer practises law 27
principally or can reasonably expect to practise law principally; 28
or 29
(b) the circumstances in which an arrangement under which an 30
Australian legal practitioner practises in a jurisdiction-- 31
(i) may be regarded as being of a temporary nature; or 32
s 76 63 s 76
Legal Profession Bill 2003
(ii) ceases to be of a temporary nature; or 1
(c) the circumstances in which an Australian legal practitioner may 2
reasonably expect to practise law principally in a jurisdiction 3
during the currency of the practitioner's local practising 4
certificate or interstate practising certificate. 5
(2) For the purposes of this Act, and to the extent that the protocols are 6
relevant, a matter mentioned in subsection (1)(a), (b) or (c) is to be decided 7
under the protocols. 8
(3) The regulatory authority may enter into an arrangement that amends, 9
revokes or replaces a protocol. 10
(4) A protocol has effect in this jurisdiction only to the extent it is 11
approved under a regulation. 12
76 Consideration of applicant for local practising certificate 13
and certificate holder 14
(1) The purpose of this section is to enable a regulatory authority to 15
obtain a document or information, or a person's cooperation, to the extent 16
necessary for the authority to consider whether or not to grant, renew, 17
cancel or suspend a local practising certificate, or to impose conditions on a 18
local practising certificate. 19
(2) The relevant regulatory authority may, by written notice to the 20
applicant or certificate holder, ask the applicant or certificate holder-- 21
(a) to give it a stated document or information that the authority 22
believes is necessary for the authority's consideration about a 23
local practising certificate; or 24
(b) to cooperate in a stated way with the authority in an investigation 25
or inquiry that the authority believes is necessary for the 26
authority's consideration about a local practising certificate. 27
(3) The regulatory authority may decide to not grant or renew, to cancel 28
or suspend or to impose conditions on, a local practising certificate, if the 29
applicant or the certificate holder fails-- 30
(a) to give the stated documents or information as requested under 31
subsection (2); or 32
(b) to cooperate with the authority in its investigations or inquiries as 33
requested under subsection (2). 34
s 77 64 s 78
Legal Profession Bill 2003
77 Register of local practising certificates 1
(1) A regulatory authority must, in the way it considers appropriate, keep 2
a register of the names of Australian lawyers to whom it grants local 3
practising certificates. 4
(2) The register must-- 5
(a) state conditions, if any, imposed on a local practising certificate 6
relating to the certificate holder engaging in legal practice; and 7
(b) include other particulars prescribed under a regulation. 8
(3) A regulatory authority must keep its register-- 9
(a) available for inspection, without charge, at the authority's 10
principal place of business during normal business hours; or 11
(b) on the authority's internet site or an internet site identified on the 12
authority's internet site. 13
78 Regulatory authority may charge reasonable fees 14
(1) A regulatory authority may charge fees for the services that it 15
provides. 16
(2) The fees must be reasonable having regard to the funding that the 17
regulatory authority receives under this Act and the cost to the authority of 18
performing its functions under a relevant law. 19
(3) The fees set by a regulatory authority may be included in an 20
administration rule. 21
(4) Despite subsection (1), a regulatory authority may not charge a fee 22
for a service provided to another entity that has functions under a relevant 23
law. 24
s 79 65 s 81
Legal Profession Bill 2003
PART 5--INCORPORATED LEGAL PRACTICES 1
Division 1--Preliminary 2
79 Main purpose of ch 2, pt 5 3
The main purpose of this part is to regulate the provision of legal 4
services by corporations in this jurisdiction, whether or not the legal 5
services are provided in conjunction with other services. 6
80 Meaning of "incorporated legal practice" 7
(1) A corporation is an "incorporated legal practice" if it engages in 8
legal practice in this jurisdiction, whether or not it provides services that 9
are not legal services. 10
(2) However, a corporation is not an incorporated legal practice if the 11
legal services provided by it are only either or both the following 12
services-- 13
(a) in-house legal services; 14
(b) services that are not legally required to be provided by an 15
Australian legal practitioner and that are provided by an officer 16
or employee of the corporation who is not an Australian legal 17
practitioner. 18
(3) Also, a corporation that provides legal services is not an incorporated 19
legal practice if-- 20
(a) the corporation is prescribed under a regulation as a corporation 21
that is not an incorporated legal practice; and 22
(b) the corporation complies with provisions of that regulation 23
applying provisions of this part, with or without changes. 24
(4) Nothing in this part affects or applies to the provision by an 25
incorporated legal practice of legal services in 1 or more other jurisdictions 26
under a corresponding law or corresponding laws. 27
81 Definitions 28
In this part-- 29
s 81 66 s 81
Legal Profession Bill 2003
"corporation" means-- 1
(a) a company within the meaning of the Corporations Act; or 2
(b) a body corporate prescribed under a regulation. 3
"director" means-- 4
(a) in relation to a company within the meaning of the Corporations 5
Act--a director as defined in section 9 of that Act; or 6
(b) in relation to another body corporate prescribed under a 7
regulation--a person stated or described in a regulation as a 8
director. 9
"disqualified person" means any of the following persons whether the 10
thing that has happened to the person happened before or after the 11
commencement of this part-- 12
(a) a person whose name has, whether or not at his or her own 13
request, been removed from an Australian roll and who has not 14
subsequently been admitted or re-admitted as a lawyer under a 15
relevant law or a corresponding law; 16
(b) a person whose practising certificate has been cancelled or 17
suspended under a relevant law or a corresponding law and who, 18
because of the cancellation, is not an Australian legal practitioner 19
or in relation to whom that suspension has not finished; 20
(c) a person who has been refused a renewal of a practising 21
certificate under a relevant law or a corresponding law, and to 22
whom a practising certificate has not been granted at a later time; 23
(d) a person who is the subject of an order under a relevant law or a 24
corresponding law prohibiting a law practice from employing or 25
paying the person in connection with the relevant practice; 26
(e) a person who is the subject of an order under a corresponding 27
law prohibiting an Australian legal practitioner from being a 28
partner of the person in a business that includes the provision of 29
legal services; 30
(f) a person who is the subject of an order under section 110,27 a 31
corresponding law or a provision of a corresponding law relating 32
to prohibitions on partnerships with non-legal partners. 33
"ILP authority" means-- 34
27 Section 110 (Disqualification from managing incorporated legal practice)
s 82 67 s 82
Legal Profession Bill 2003
(a) the commissioner; or 1
(b) the law society; or 2
(c) the commissioner and the law society acting jointly under an 3
arrangement made between the commissioner and law society. 4
"lawyer director" means a director of an incorporated legal practice who 5
is an Australian legal practitioner who holds an unrestricted practising 6
certificate. 7
"officer" means-- 8
(a) in relation to a company within the meaning of the Corporations 9
Act--an officer as defined in section 9 of that Act; or 10
(b) in relation to another body corporate prescribed under a 11
regulation--a person stated or described in the regulation as an 12
officer. 13
"professional obligations", of an Australian legal practitioner, include-- 14
(a) duties to the Supreme Court; and 15
(b) obligations in connection with conflicts of interest; and 16
(c) duties to clients, including disclosure; and 17
(d) ethical rules the legal practitioner must observe. 18
"related body corporate" means-- 19
(a) in relation to a company within the meaning of the Corporations 20
Act--a related body corporate within the meaning of section 50 21
of that Act; or 22
(b) in relation to any other body corporate prescribed under a 23
regulation--a person stated or described in the regulation as a 24
related body corporate. 25
Division 2--Incorporated legal practices providing legal services 26
82 Non-legal services and businesses of incorporated legal practices 27
(1) An incorporated legal practice may provide any service and conduct 28
any business that the corporation may lawfully provide or conduct, except 29
as provided by this section. 30
s 83 68 s 84
Legal Profession Bill 2003
(2) An incorporated legal practice must not conduct a managed 1
investment scheme within the meaning of the Corporations Act, 2
chapter 5C.28 3
(3) Also if a regulation prohibits an incorporated legal practice, or a 4
related body corporate of the practice, from providing a service or 5
conducting a business of a kind stated in the regulation, the practice must 6
not provide the service or conduct the business. 7
8
Note--
9
Contravention of this section or the regulation is a ground for banning an incorporated
10
legal practice under section 109.29
83 Corporations eligible to be incorporated legal practice 11
(1) Any corporation is, subject to this part, eligible to be an incorporated 12
legal practice. 13
(2) This section does not authorise a corporation to provide legal 14
services if the corporation is prohibited from doing so under-- 15
(a) this Act; or 16
(b) a law of the Commonwealth under which it is incorporated or its 17
affairs are regulated; or 18
(c) an Act, or a law of another jurisdiction, under which it is 19
incorporated or its affairs are regulated. 20
(3) An incorporated legal practice is not required to hold a practising 21
certificate. 22
84 Notice of intention to start providing legal services 23
(1) Before a corporation starts to engage in legal practice in this 24
jurisdiction, the corporation must give the law society written notice in the 25
approved form of its intention to do so. 26
(2) A corporation must not engage in legal practice in this jurisdiction if 27
it has not given a notice under subsection (1). 28
Maximum penalty-- 29
28 Corporations Act, chapter 5C (Managed investment schemes)
29 Section 109 (Banning of incorporated legal practices)
s 85 69 s 86
Legal Profession Bill 2003
(a) for an individual guilty under the Criminal Code, chapter 2 of an 1
offence or for section 37130--300 penalty units; or 2
(b) for a corporation--1 500 penalty units. 3
(3) A corporation that starts to engage in legal practice in this jurisdiction 4
without giving a notice under subsection (1) is in default of this section 5
until it gives the law society notice, in the approved form, of the failure to 6
comply with that subsection and the fact that it has started to engage in 7
legal practice. 8
(4) The giving of a notice under subsection (3) does not affect a 9
corporation's liability under subsection (1) or (2). 10
(5) A corporation is not entitled to recover any amount for anything the 11
corporation did in contravention of subsection (2). 12
(6) A person may recover from a corporation, as a debt due to the person, 13
any amount the person paid to the corporation for anything the corporation 14
did in contravention of subsection (2). 15
85 Prohibition on directors etc representing that corporation is 16
incorporated legal practice 17
(1) A director, officer, employee or agent of a corporation must not, 18
without a reasonable excuse, represent or advertise that the corporation is 19
an incorporated legal practice unless a notice in relation to the corporation 20
has been given under section 84. 21
Maximum penalty--300 penalty units or 2 years imprisonment. 22
(2) A reference in this section to a director, officer, employee or agent of 23
a corporation representing or advertising that the corporation is an 24
incorporated legal practice includes the director, officer, employee or agent 25
doing anything that states or implies that the corporation is entitled to 26
engage in legal practice. 27
86 Notice of termination of provision of legal services 28
A corporation must, within the period prescribed under a regulation after 29
it stops engaging in legal practice in this jurisdiction as an incorporated 30
legal practice, give the law society written notice in the approved form of 31
that fact. 32
30 Section 371 (Executive officers must ensure corporation complies with Act)
s 87 70 s 88
Legal Profession Bill 2003
Maximum penalty-- 1
(a) for an individual guilty under the Criminal Code, chapter 2 of an 2
offence or for section 37131--20 penalty units; or 3
(b) for a corporation--100 penalty units. 4
Division 3--Lawyer directors, and other legal practitioners employed by 5
incorporated legal practices 6
87 Incorporated legal practice must have lawyer director 7
(1) An incorporated legal practice is required to have at least 1 lawyer 8
director. 9
(2) Each lawyer director of an incorporated legal practice is, for the 10
purposes only of this Act, responsible for the management of the legal 11
services provided in this jurisdiction by the incorporated legal practice. 12
(3) Each lawyer director of an incorporated legal practice must ensure 13
that appropriate management systems are implemented and maintained to 14
enable the provision of legal services by the incorporated legal practice-- 15
(a) under the professional obligations of Australian legal 16
practitioners and other obligations imposed under this Act; and 17
(b) so that the obligations of the Australian legal practitioners who 18
are officers or employees of the practice are not affected by other 19
officers or employees of the practice. 20
(4) Nothing in this part derogates from the obligations or liability of a 21
director of an incorporated legal practice under any other law. 22
88 Obligations of lawyer director relating to misconduct 23
(1) Each of the following is capable of constituting unsatisfactory 24
professional conduct or professional misconduct by a lawyer director-- 25
(a) unsatisfactory professional conduct or professional misconduct 26
of an Australian legal practitioner employed by the incorporated 27
legal practice; 28
31 Section 371 (Executive officers must ensure corporation complies with Act)
s 89 71 s 89
Legal Profession Bill 2003
(b) conduct of any other director, not being an Australian legal 1
practitioner, of the incorporated legal practice that adversely 2
affects the provision of legal services by the practice; 3
(c) the unsuitability of any other director, not being an Australian 4
legal practitioner, of the incorporated legal practice to be a 5
director of a corporation that provides legal services. 6
(2) A lawyer director of an incorporated legal practice must ensure that 7
all reasonable action available to the lawyer director is taken to deal with 8
any unsatisfactory professional conduct or professional misconduct of an 9
Australian legal practitioner employed by the practice. 10
(3) A contravention of subsection (2) is capable of constituting 11
unsatisfactory professional conduct or professional misconduct by the 12
lawyer director. 13
89 Incorporated legal practice without lawyer director 14
(1) An incorporated legal practice contravenes this subsection if it does 15
not have a lawyer director for the corporation for a period 16
exceeding 7 days. 17
(2) If an incorporated legal practice stops having a lawyer director, the 18
incorporated legal practice must notify the law society of that fact, by 19
notice in the approved form given to the law society within 7 days after the 20
practice stops having a lawyer director. 21
Maximum penalty-- 22
(a) for an individual guilty under the Criminal Code, chapter 2 of an 23
offence or for section 37132--60 penalty units; or 24
(b) for a corporation--300 penalty units. 25
(3) An incorporated legal practice that contravenes subsection (1) is 26
taken to be in default of lawyer director requirements under this section for 27
the period from the end of the period of 7 days until-- 28
(a) it has at least 1 lawyer director; or 29
(b) an individual is appointed under this section, or the provisions of 30
a corresponding law, in relation to the practice. 31
32 Section 371 (Executive officers must ensure corporation complies with Act)
s 90 72 s 90
Legal Profession Bill 2003
(4) An incorporated legal practice must not provide legal services in this 1
jurisdiction during any period it is in default of lawyer director 2
requirements as mentioned in subsection (3). 3
Maximum penalty-- 4
(a) for an individual guilty under the Criminal Code, chapter 2 of an 5
offence or for section 37133--180 penalty units; or 6
(b) for a corporation--900 penalty units. 7
(5) The law society may, if it considers it appropriate, appoint an 8
Australian legal practitioner who is an employee of the incorporated legal 9
practice, or another individual nominated by the society, in the absence of a 10
lawyer director, to exercise or perform the functions or duties conferred or 11
imposed on a lawyer director under this part. 12
(6) An Australian legal practitioner is not eligible to be appointed under 13
this section unless the practitioner holds an unrestricted practising 14
certificate. 15
(7) The appointment under this section of an individual to exercise or 16
perform functions or duties of a lawyer director does not, for any other 17
purpose, confer or impose on the individual any of the other functions or 18
duties of a director of the incorporated legal practice. 19
(8) An incorporated legal practice does not contravene subsection (1) 20
during any period during which an individual holds an appointment under 21
subsection (5) in relation to the practice. 22
90 Obligations and privileges of an Australian legal practitioner who 23
is an officer or employee 24
(1) An Australian legal practitioner who provides legal services for an 25
incorporated legal practice in the capacity of an officer or employee of the 26
incorporated legal practice-- 27
(a) is not excused from compliance with the professional obligations 28
of an Australian legal practitioner, or any obligations as an 29
Australian legal practitioner under any law; and 30
(b) does not lose the professional privileges of an Australian legal 31
practitioner. 32
33 Section 371 (Executive officers must ensure corporation complies with Act)
s 91 73 s 92
Legal Profession Bill 2003
(2) For the purpose only of subsection (1), the professional obligations 1
and professional privileges of an Australian legal practitioner apply as if-- 2
(a) for an incorporated legal practice with 2 or more lawyer 3
directors--the practice were a partnership of the lawyer directors 4
and the employees of the practice were employees of the lawyer 5
directors; and 6
(b) for an incorporated legal practice with only 1 lawyer 7
director--the practice were a sole practitioner and the employees 8
of the practice were employees of the lawyer director. 9
(3) To remove any doubt, it is declared that the law relating to client legal 10
privilege, or other legal professional privilege, is not excluded or otherwise 11
affected because an Australian legal practitioner is acting in the capacity of 12
an officer or employee of an incorporated legal practice. 13
(4) The directors of an incorporated legal practice do not breach their 14
duties as directors merely because legal services are provided without fee 15
or reward by the Australian legal practitioners employed by the practice. 16
Division 4--Particular matters including application of other provisions 17
of relevant laws 18
91 Insurance obligations 19
(1) The provisions of this Act, including provisions of an administration 20
rule, relating to insurance apply with any necessary changes to 21
incorporated legal practices in relation to the provision of legal services in 22
the same way that the provisions apply to Australian legal practitioners. 23
(2) However, this section does not affect an obligation of an Australian 24
legal practitioner, who is an officer or employee of an incorporated legal 25
practice, to comply with the provisions of this Act or an administration rule 26
relating to insurance. 27
92 Conflicts of interest 28
(1) For the purposes of the application of any law, including the common 29
law or a legal profession rule relating to conflicts of interest, to the conduct 30
of-- 31
(a) a lawyer director of an incorporated legal practice; or 32
s 93 74 s 93
Legal Profession Bill 2003
(b) an Australian legal practitioner who is an officer or employee of 1
an incorporated legal practice; 2
the interests of the incorporated legal practice or any related body corporate 3
are also taken to be those of the practitioner concerned (in addition to any 4
interests that the practitioner has apart from this subsection). 5
(2) A legal profession rule may be made for additional duties and 6
obligations in connection with conflicts of interest arising out of the 7
conduct of an incorporated legal practice. 8
9
Note--
10
Under section 90,34 a legal practitioner who is an officer or employee of an incorporated
11
legal practice must comply with the same professional obligations as other practitioners
12
in connection with conflicts of interest.
93 Disclosure obligations 13
(1) This section applies if a person engages an incorporated legal 14
practice to provide services that the person might reasonably assume to be 15
legal services, but does not apply if the practice provides only legal 16
services in this jurisdiction. 17
(2) Each lawyer director of the incorporated legal practice, and any 18
Australian legal practitioner who is an employee and who provides the 19
services on behalf of the practice, must ensure that a disclosure is made to 20
the person about the services that complies with the requirements of this 21
section and a regulation made for this section. 22
Maximum penalty--100 penalty units. 23
(3) The disclosure must be made by giving the person a written notice-- 24
(a) setting out-- 25
(i) the legal services, if any, to be provided; and 26
(ii) the services other than legal services, if any, to be provided 27
in connection with the provision of legal services; and 28
(b) stating whether or not all the legal services will be provided by 29
an Australian legal practitioner; and 30
34 Section 90 (Obligations and privileges of an Australian legal practitioner who is an
officer or employee)
s 94 75 s 94
Legal Profession Bill 2003
(c) if some or all of the legal services will not be provided by an 1
Australian legal practitioner--identifying those services and 2
indicating the status or qualifications of the person or persons 3
who will provide the services; and 4
(d) stating that this Act applies to the provision of legal services but 5
not to the provision of services that are not legal services. 6
(4) A regulation may provide for the following matters-- 7
(a) the way in which disclosure is to be made; 8
(b) additional matters required to be disclosed in connection with the 9
provision of legal services, or services other than legal services, 10
by an incorporated legal practice. 11
(5) Without limiting subsection (4), the additional matters may include 12
the kind of services provided by the incorporated legal practice and 13
whether those services are or are not covered by the insurance35 or other 14
provisions of this Act. 15
(6) A disclosure under this section to a person about the provision of 16
legal services may relate to the provision of legal services on 1 occasion or 17
on more than 1 occasion. 18
94 Effect of non-disclosure of provision of particular services 19
(1) If-- 20
(a) a legal service provided by an incorporated legal practice is of a 21
kind that may legally be provided by a person other than an 22
Australian legal practitioner; and 23
(b) no disclosure is made under section 9336 that the officer or 24
employee providing the service is not an Australian legal 25
practitioner; 26
the standard of care owed by the practice in relation to the service is the 27
standard that would be applicable if the service had been provided by an 28
Australian legal practitioner. 29
(2) The reference in subsection (1) to a legal service includes a service 30
that the person who engaged the incorporated legal practice to provide the 31
service might reasonably assume to be a legal service. 32
35 See section 91 (Insurance obligations).
36 Section 93 (Disclosure obligations)
s 95 76 s 99
Legal Profession Bill 2003
95 Application of a legal profession rule 1
A legal profession rule, so far as it applies to an Australian legal 2
practitioner, applies to an Australian legal practitioner who is an officer or 3
employee of an incorporated legal practice, unless the rule otherwise 4
provides. 5
96 Advertising restrictions 6
A restriction imposed under this or any other Act in connection with 7
advertising by Australian legal practitioners applies to advertising by an 8
incorporated legal practice in relation to the provision of legal services. 9
97 Advertising by incorporated legal practice 10
An advertisement by an incorporated legal practice about the provision 11
of legal services is, for the purposes of disciplinary proceedings taken 12
against an Australian legal practitioner, taken to have been authorised by 13
each lawyer director of the incorporated legal practice. 14
98 Requirements relating to trust accounts and particular moneys 15
A provision under a relevant law relating to trust moneys or trust 16
accounts applies to an incorporated legal practice in the same way as the 17
provision applies to a solicitor within the meaning of the Trust Accounts 18
Act 1973. 19
99 Requirements relating to fidelity fund 20
(1) The provisions of relevant law relating to the fidelity fund apply, 21
subject to this section, with any necessary adaptations to incorporated legal 22
practices in the same way that they apply to Australian legal practitioners. 23
(2) Nothing in this section affects any obligation of an Australian legal 24
practitioner who is an officer or employee of an incorporated legal practice 25
to comply with the provisions of a relevant law relating to the fidelity fund. 26
(3) An incorporated legal practice is required to make payments to or on 27
account of the fidelity fund under a relevant law as if it were an Australian 28
lawyer applying for or holding a local practising certificate. 29
(4) The law society may suspend the local practising certificate of a 30
lawyer director of the practice if any payment is not made by the due date. 31
s 100 77 s 101
Legal Profession Bill 2003
(5) The amounts payable to the fidelity fund by an incorporated legal 1
practice may be worked out by reference to the total number of Australian 2
legal practitioners employed by the practice and other relevant matters. 3
100 Extension to incorporated legal practice of vicarious liability 4
relating to failure to account and dishonesty 5
(1) This section applies to any of the following, being proceedings based 6
on the vicarious liability of an incorporated legal practice-- 7
(a) civil proceedings relating to a failure to account for, pay or 8
deliver money or other property received by, or entrusted to, the 9
practice or to any officer or employee of the practice in the 10
course of the provision of legal services by the practice, being 11
money or other property under the direct or indirect control of 12
the practice; 13
(b) civil proceedings for any other debt owed, or damages payable, 14
to a client because of a dishonest act or omission by an 15
Australian legal practitioner who is an employee of the practice 16
in connection with the provision of legal services to the client. 17
(2) If the incorporated legal practice would not, apart from this section, 18
be vicariously liable for any acts or omissions of its officers and employees 19
in those proceedings, but would be liable for those acts or omissions if the 20
practice and those officers and employees were carrying on business in 21
partnership, the practice is taken to be vicariously liable for those acts or 22
omissions. 23
101 Sharing of receipts 24
(1) Nothing under this Act prevents an Australian legal practitioner from 25
sharing with an incorporated legal practice receipts arising from the 26
provision of legal services by the practitioner. 27
(2) This section does not extend to the sharing of receipts in 28
contravention of section 102,37 and has effect subject to section 135.38 29
37 Section 102 (Disqualified persons)
38 Section 135 (Particular provision about barristers rule)
s 102 78 s 103
Legal Profession Bill 2003
102 Disqualified persons 1
(1) An incorporated legal practice commits an offence if a person who is 2
a disqualified person-- 3
(a) is an officer or employee of the incorporated legal practice, 4
whether or not the person provides legal services, or is an officer 5
or employee of a related body corporate; or 6
(b) is a partner of the incorporated legal practice in a business that 7
includes the provision of legal services; or 8
(c) shares the receipts of the provision of legal services by the 9
incorporated legal practice; or 10
(d) is engaged or paid in connection with the provision of legal 11
services by the incorporated legal practice. 12
Maximum penalty-- 13
(a) for an individual guilty under the Criminal Code, chapter 2 of an 14
offence or for section 37139--60 penalty units; or 15
(b) for a corporation--300 penalty units. 16
(2) Failure by a lawyer director of an incorporated legal practice to 17
ensure that the incorporated legal practice complies with subsection (1) is 18
capable of constituting professional misconduct. 19
Division 5--Ensuring compliance with this Act by incorporated legal 20
practices 21
103 Commissioner or law society may audit incorporated legal 22
practice 23
(1) An ILP authority may conduct an audit of an incorporated legal 24
practice about-- 25
(a) the compliance of the practice, and of its officers and employees, 26
with the requirements of-- 27
(i) this part; or 28
(ii) a regulation so far as the regulation applies to incorporated 29
legal practices; or 30
39 Section 371 (Executive officers must ensure corporation complies with Act)
s 104 79 s 104
Legal Profession Bill 2003
(iii) an incorporated legal practice rule; and 1
(b) the management of the provision of legal services by the 2
incorporated legal practice, including the supervision of officers 3
and employees providing the services. 4
(2) An audit may be conducted whether or not a complaint has been 5
made involving legal services provided by the incorporated legal practice, 6
however that complaint is expressed, including, for example, as a 7
complaint about the practice, a lawyer director of the practice, or an 8
employee of the practice who is engaged in providing, or associated with 9
the provision of, legal services. 10
(3) A report of the audit-- 11
(a) must be given to the incorporated legal practice concerned; and 12
(b) may be given to another ILP authority; and 13
(c) may be taken into account in connection with-- 14
(i) discipline application involving an Australian lawyer or law 15
practice employee; or 16
(ii) the grant, renewal, amendment, cancellation or suspension 17
of a practising certificate of an Australian legal practitioner. 18
104 Investigative powers relating to audits and other matters 19
(1) An ILP authority or, if both ILP authorities are acting jointly, both 20
ILP authorities may exercise the powers set out in sections 105, 106 21
and 10740 for the following purposes-- 22
(a) an audit conducted under this division; 23
(b) an investigation under a relevant law relating to the trust accounts 24
of an incorporated legal practice; 25
(c) an investigation relating to a complaint made under a relevant 26
law involving legal services provided by an incorporated legal 27
practice however that complaint is expressed. 28
(2) This section does not limit the powers under chapter 3, or chapter 5, 29
part 2, in relation to a lawyer director, or an employee, of an ILP. 30
40 Sections 105 (Examination of persons), 106 (Inspection of books) and 107 (Power
to hold hearings)
s 105 80 s 105
Legal Profession Bill 2003
105 Examination of persons 1
(1) Each ILP authority has and may exercise the same powers as those 2
conferred on the Australian Securities and Investments Commission by the 3
Australian Securities and Investments Commission Act 2001 (Cwlth), 4
part 3, division 2.41 5
(2) The Australian Securities and Investments Commission Act 2001 6
(Cwlth), part 3, division 2, applies to and in relation to the exercise of those 7
powers with the necessary changes, including the following changes-- 8
(a) a reference to the Australian Securities and Investments 9
Commission, however expressed, is taken to be a reference to an 10
ILP authority; 11
(b) a reference to a matter that is being or is to be investigated under 12
part 3, division 142 of that Act is taken to be a reference to a 13
matter that is being or is to be investigated by an ILP authority; 14
(c) a reference in section 1943 of that Act to a person is taken to be a 15
reference to an Australian legal practitioner or an incorporated 16
legal practice; 17
(d) a reference to an inspector is taken to be a reference to an 18
investigator under section 335;44 19
(e) a reference to a prescribed form is taken to be a reference to an 20
approved form that is approved by an ILP authority. 21
(3) The Australian Securities and Investments Commission Act 2001 22
(Cwlth), sections 22(2) and (3), 25(2) and (2A), 26 and 2745 do not apply in 23
relation to the exercise of the powers conferred on an ILP authority by this 24
section. 25
41 Australian Securities and Investments Commission Act 2001 (Cwlth), part 3
(Investigations and information-gathering), division 2 (Examination of persons)
42 Australian Securities and Investments Commission Act 2001 (Cwlth), part 3
(Investigations and information-gathering), division 1 (Investigations)
43 Australian Securities and Investments Commission Act 2001 (Cwlth), section 19
(Notice requiring appearance for examination)
44 Section 335 (Appointment, qualifications etc. of investigators)
45 Australian Securities and Investments Commission Act 2001 (Cwlth), sections 22
(Examination to take place in private), 25 (Giving to other persons copies of record),
26 (Copies given subject to conditions) and 27 (Record to accompany report)
s 106 81 s 107
Legal Profession Bill 2003
106 Inspection of books 1
(1) An ILP authority has and may exercise the same powers as those 2
conferred on the Australian Securities and Investments Commission by the 3
Australian Securities and Investments Commission Act 2001 (Cwlth), 4
sections 30(1), 34 and 37 to 39.46 5
(2) Those provisions apply in relation to the exercise of those powers, 6
with the necessary changes, including the following changes-- 7
(a) a reference to the Australian Securities and Investments 8
Commission, however expressed, is taken to be a reference to the 9
ILP authority; 10
(b) a reference to a body corporate, including a body corporate that 11
is not an exempt public authority, is taken to be a reference to an 12
incorporated legal practice; 13
(c) a reference to an eligible person in relation to an incorporated 14
legal practice is taken to be a reference to an officer or employee 15
of the incorporated legal practice; 16
(d) a reference to a member or staff member is taken to be a 17
reference to the ILP authority or a person authorised by the 18
authority who is an officer or employee of the authority; 19
(e) a reference in section 37 of that Act to a proceeding is taken to be 20
a reference to an investigation. 21
107 Power to hold hearings 22
(1) An ILP authority may hold hearings for the purposes of an 23
investigation. 24
(2) The Australian Securities and Investments Commission Act 2001 25
(Cwlth), sections 52, 56(1), 58, 59(1), (2), (5), (6) and (8) and 60 26
46 Australian Securities and Investments Commission Act 2001, sections 30 (Notice to
produce books about affairs of body corporate or registered scheme), 34 (ASIC may
authorise persons to require production of books), 37 (Powers where books
produced or seized), 38 (Powers where books not produced) and 39 (Power to
require person to identify property of body corporate)
s 108 82 s 108
Legal Profession Bill 2003
(paragraph (b) excepted)47 apply in relation to a hearing with any necessary 1
changes, including the following changes-- 2
(a) a reference to the Australian Securities and Investments 3
Commission (however expressed) is taken to be a reference to an 4
ILP authority; 5
(b) a reference to a member or staff member is taken to be a 6
reference to an ILP authority, or a person authorised by an ILP 7
authority who is an officer or employee of the authority; 8
(c) a reference to a prescribed form is taken to be a reference to a 9
form approved by an ILP authority. 10
108 Failure to comply with investigation 11
The following acts or omissions are capable of constituting 12
unsatisfactory professional conduct or professional misconduct-- 13
(a) a failure by an Australian legal practitioner to comply with any 14
requirement made by an ILP authority, or a person authorised by 15
the authority, in the exercise of powers conferred by sections 16
105, 106 and 107;48 17
(b) a contravention by an Australian legal practitioner of any 18
condition imposed by an ILP authority in the exercise of powers 19
conferred by those sections; 20
(c) a failure by a lawyer director of an incorporated legal practice to 21
ensure that the incorporated legal practice, or any officer or 22
employee of the incorporated legal practice, complies with any of 23
the following-- 24
(i) any requirement made by an ILP authority, or a person 25
authorised by the ILP authority, in the exercise of powers 26
conferred by sections 105, 106 and 107; 27
47 Australian Securities and Investments Commission Act 2001, sections 52 (General
discretion to hold hearing in public or private), 56 (Who may be present when
hearing takes place in private), 58 (Power to summon witnesses and take evidence),
59 (Proceedings at hearings) and 60 (ASIC to take account of evidence and
submissions)
48 Sections 105 (Examination of persons), 106 (Inspection of books) and 107 (Power
to hold hearings)
s 109 83 s 109
Legal Profession Bill 2003
(ii) any condition imposed by an ILP authority in the exercise of 1
powers conferred by those sections. 2
109 Banning of incorporated legal practices 3
(1) The Supreme Court may, on the application of an ILP authority, 4
make an order disqualifying a corporation from providing legal services in 5
this jurisdiction for the period the court considers appropriate if the court is 6
satisfied that-- 7
(a) a ground for disqualifying the corporation under this section has 8
been established; and 9
(b) the disqualification is justified. 10
(2) If the Supreme Court considers it appropriate, an order under this 11
section may be made-- 12
(a) subject to conditions as to the conduct of the incorporated legal 13
practice; or 14
(b) subject to conditions as to when or in what circumstances the 15
order is to take effect; or 16
(c) together with orders to safeguard the interests of clients or 17
employees of the incorporated legal practice. 18
(3) Action may be taken against an incorporated legal practice on any of 19
the following grounds-- 20
(a) a lawyer director or an Australian legal practitioner who is an 21
officer or employee of the corporation is found guilty of 22
professional misconduct under a relevant law or a corresponding 23
law; 24
(b) an ILP authority is satisfied, after conducting an audit of the 25
incorporated legal practice, that the incorporated legal practice 26
has failed to implement satisfactory management and supervision 27
of its provision of legal services; 28
(c) the incorporated legal practice, or a related body corporate, has 29
contravened section 8249 or a regulation made under that section; 30
(d) the incorporated legal practice has contravened section 102;50 31
49 Section 82 (Non-legal services and businesses of incorporated legal practices)
50 Section 102 (Disqualified persons)
s 109 84 s 109
Legal Profession Bill 2003
(e) a person is acting in the management of the incorporated legal 1
practice who is the subject of an order under-- 2
(i) section 11051 or under provisions of a corresponding law; or 3
(ii) a provision of a corresponding law relating to prohibitions 4
on partnerships with non-legal partners. 5
(4) If a corporation is disqualified under this section, the ILP authority 6
that applied for the order must notify the corresponding authority of every 7
other jurisdiction. 8
(5) If a corporation is disqualified from providing legal services in 9
another jurisdiction under a corresponding law, the commissioner may 10
decide that the corporation is taken to be disqualified from providing legal 11
services in this jurisdiction for the same period, but nothing in this 12
subsection prevents an ILP authority from instead applying for an order 13
under this section. 14
(6) A corporation that provides legal services in contravention of a 15
disqualification under this section commits an offence. 16
Maximum penalty-- 17
(a) for an individual guilty under the Criminal Code, chapter 2 of an 18
offence or for section 37152--180 penalty units; or 19
(b) for a corporation--900 penalty units. 20
(7) A corporation that is disqualified under this section ceases to be an 21
incorporated legal practice. 22
(8) Conduct of an Australian legal practitioner who provides legal 23
services on behalf of a corporation in the capacity of an officer or employee 24
of the corporation is capable of being unsatisfactory professional conduct 25
or professional misconduct if the practitioner ought reasonably to have 26
known that the corporation is disqualified under this section. 27
(9) A regulation may provide for the publication and notification of 28
orders made under this section, including notification of corresponding 29
authorities of other jurisdictions. 30
51 Section 110 (Disqualification from managing incorporated legal practice)
52 Section 371 (Executive officers must ensure corporation complies with Act)
s 110 85 s 111
Legal Profession Bill 2003
110 Disqualification from managing incorporated legal practice 1
(1) The Supreme Court may, on the application of an ILP authority, 2
make an order disqualifying a person from managing a corporation that is 3
an incorporated legal practice for the period the court considers appropriate 4
if the court is satisfied that-- 5
(a) the person is a person who could be disqualified under the 6
Corporations Act, section 206C, 206D, 206E or 206F53 from 7
managing corporations; and 8
(b) the disqualification is justified. 9
(2) The Supreme Court may, on the application of a person subject to a 10
disqualification order under this section, revoke the order. 11
(3) A disqualification order made under subsection (1) has effect for the 12
purposes only of this Act and does not affect the application or operation of 13
the Corporations Act. 14
(4) A regulation may provide for the publication and notification of 15
orders made under this section. 16
(5) A person who is disqualified from managing a corporation under 17
provisions of a corresponding law that correspond to this section is 18
disqualified from managing a corporation that is an incorporated legal 19
practice. 20
111 Disclosure of information to the Australian Securities and 21
Investments Commission 22
(1) This section applies if an ILP authority, in connection with 23
performing functions or exercising powers under this Act, acquired 24
information concerning a corporation that is or was an incorporated legal 25
practice. 26
(2) The ILP authority may disclose to the Australian Securities and 27
Investments Commission information concerning the corporation that is 28
relevant to the commission's functions. 29
(3) Information may be provided under subsection (2) despite any law 30
relating to secrecy or confidentiality, including any provisions of this Act. 31
53 Corporations Act, sections 206C (Court power of disqualification--contravention of
civil penalty provision), 206D (Court power of disqualification--insolvency and
non-payment of debts), 206E (Court power of disqualification--repeated
contraventions of Act) and 206F (ASIC's power of disqualification)
s 112 86 s 113
Legal Profession Bill 2003
Division 6--External administration 1
112 External administration proceedings under Corporations Act 2
(1) This section applies to proceedings in any court under the 3
Corporations Act, chapter 554-- 4
(a) relating to a corporation that is an externally-administered body 5
corporate under that Act and that is or was an incorporated legal 6
practice; or 7
(b) relating to a corporation that is or was an incorporated legal 8
practice becoming an externally-administered body corporate 9
under that Act. 10
(2) Each ILP authority is entitled to intervene in the proceedings, unless 11
the court decides that the proceedings do not concern or affect the 12
provision of legal services by the incorporated legal practice. 13
(3) The court may, when exercising its jurisdiction in the proceedings, 14
have regard to the interests of the clients of the incorporated legal practice 15
who have been or are to be provided with legal services by the practice. 16
(4) Subsection (3) does not authorise the court to make any decision that 17
is contrary to a specific provision of the Corporations Act. 18
(5) Subsections (2) and (3) are declared to be Corporations legislation 19
displacement provisions for the purposes of the Corporations Act, 20
section 5G in relation to the provisions of chapter 5 of that Act. 21
22
Note--
23
The Corporations Act, section 5G, provides that if a State law declares a provision of a
24
State law to be a Corporations legislation displacement provision, any provision of the
25
Corporations legislation with which the State provision would otherwise be
26
inconsistent does not apply to the extent necessary to avoid the inconsistency.
113 External administration proceedings under other legislation 27
(1) This section applies to proceedings for the external administration, 28
however expressed, of an incorporated legal practice but does not apply to 29
proceedings to which section 11255 applies. 30
54 Corporations Act, chapter 5 (External administration)
55 Section 112 (External administration proceedings under Corporations Act)
s 114 87 s 114
Legal Profession Bill 2003
(2) Each ILP authority is entitled to intervene in the proceedings, unless 1
the court decides that the proceedings do not concern or affect the 2
provision of legal services by the incorporated legal practice. 3
(3) The court may, when exercising its jurisdiction in the proceedings, 4
have regard to the interests of the clients of the incorporated legal practice 5
who have been or are to be provided with legal services by the practice. 6
(4) Subsection (3) does not authorise the court to make any decision that 7
is contrary to a specific provision of any legislation applicable to the 8
incorporated legal practice. 9
114 Incorporated legal practice that is subject to receivership under 10
the QLS Act and external administration under Corporations Act 11
(1) This section applies if an incorporated legal practice is the subject of 12
both-- 13
(a) the appointment of a QLS receiver; and 14
(b) the appointment of a Corporations Act administrator. 15
(2) The QLS receiver is under a duty to notify the Corporations Act 16
administrator of the appointment of the QLS receiver, whether the 17
appointment precedes, follows or is contemporaneous with the 18
appointment of the Corporations Act administrator. 19
(3) The QLS receiver or the Corporations Act administrator, or both of 20
them jointly, may apply to the Supreme Court for the resolution of issues 21
arising from or in connection with the dual appointments and their 22
respective powers, except if proceedings mentioned in section 11256 have 23
been started. 24
(4) The Supreme Court may make any orders it considers appropriate, 25
and no liability attaches to the QLS receiver or the Corporations Act 26
administrator for any act or omission done by the receiver or administrator 27
in good faith for the purpose of carrying out or acting under the orders. 28
(5) Each ILP authority is entitled to intervene in the proceedings, unless 29
the court decides that the proceedings do not concern or affect the 30
provision of legal services by the incorporated legal practice. 31
(6) The provisions of subsections (3) and (4) are declared to be 32
Corporations legislation displacement provisions for the purposes of the 33
56 Section 112 (External administration proceedings under Corporations Act)
s 115 88 s 115
Legal Profession Bill 2003
Corporations Act, section 5G in relation to the provisions of chapter 5 of 1
that Act. 2
(7) In this section-- 3
"Corporations Act administrator" means-- 4
(a) a receiver, receiver and manager, liquidator (including a 5
provisional liquidator), controller, administrator or deed 6
administrator appointed under the Corporations Act; or 7
(b) a person who is appointed to exercise powers under that Act and 8
who is prescribed under a regulation for this definition. 9
"QLS receiver" means a receiver appointed under the Queensland Law 10
Society Act 1952, section 11A.57 11
115 Incorporated legal practice that is subject to receivership under 12
the QLS Act and external administration under other local 13
legislation 14
(1) This section applies if an incorporated legal practice is the subject of 15
both-- 16
(a) the appointment of a QLS receiver; and 17
(b) the appointment of an external administrator. 18
(2) The QLS receiver is under a duty to notify the external administrator 19
of the appointment of the QLS receiver, whether the appointment precedes, 20
follows or is contemporaneous with the appointment of the external 21
administrator. 22
(3) The QLS receiver or the external administrator, or both of them 23
jointly, may apply to the Supreme Court for the resolution of issues arising 24
from or in connection with the dual appointments and their respective 25
powers. 26
(4) The Supreme Court may make any orders it considers appropriate, 27
and no liability attaches to the QLS receiver or the external administrator 28
for any act or omission done by the receiver or administrator in good faith 29
for the purpose of carrying out or acting under the orders. 30
57 Queensland Law Society Act 1952, section 11A (Appointment of receiver of trust
property)
s 116 89 s 117
Legal Profession Bill 2003
(5) Each ILP authority is entitled to intervene in the proceedings, unless 1
the court decides that the proceedings do not concern or affect the 2
provision of legal services by the incorporated legal practice. 3
(6) In this section-- 4
"external administrator" means a person who is appointed to exercise 5
powers under an Act and who is prescribed under a regulation for this 6
definition. 7
"QLS receiver" means a receiver appointed under the Queensland Law 8
Society Act 1952, section 11A. 9
Division 7--Miscellaneous 10
116 Cooperation between courts 11
Courts of this jurisdiction may make arrangements for communicating 12
and cooperating with other courts or tribunals in connection with the 13
exercise of powers under this part. 14
117 Relationship of Act to Corporations legislation and certain 15
other instruments 16
(1) A provision under a relevant law that applies in relation to an 17
incorporated legal practice prevails, to the extent of any inconsistency, over 18
the constitution or other constituent documents of the practice. 19
(2) A regulation may declare a provision under a relevant law that relates 20
to an incorporated legal practice to be a Corporations legislation 21
displacement provision for the purposes of the Corporations Act, 22
section 5G.58 23
(3) A regulation may declare a matter relating to an incorporated legal 24
practice that is prohibited, required, authorised or permitted under a 25
relevant law to be an excluded matter for the purposes of the Corporations 26
Act, section 5F,59 in relation to-- 27
(a) the whole of the Corporations legislation; or 28
58 Corporations Act, section 5G (Avoiding direct inconsistency arising between the
Corporations legislation and State and Territory laws)
59 Corporations Act, section 5F (Corporations legislation does not apply to matters
declared by State or Territory laws to be an excluded matter)
s 118 90 s 120
Legal Profession Bill 2003
(b) a specified provision of the Corporations legislation; or 1
(c) the Corporations legislation other than a specified provision; or 2
(d) the Corporations legislation other than to a specified extent. 3
(4) In this section-- 4
"matter" includes act, omission, body, person or thing. 5
118 Undue influence 6
A person, whether or not an officer or an employee of an incorporated 7
legal practice, must not cause or induce a lawyer director, or any other 8
Australian legal practitioner who provides legal services for an 9
incorporated legal practice, to contravene this Act or his or her professional 10
obligations as an Australian legal practitioner. 11
Maximum penalty--300 penalty units. 12
119 Regulation may require training requirement for lawyer director 13
(1) A regulation may provide that a lawyer director of an incorporated 14
legal practice must undertake training as required by the regulation. 15
(2) Without limiting subsection (1), the regulation may provide that a 16
person who has a qualification or experience of a type prescribed under the 17
regulation need not undertake that training. 18
PART 6--FINANCIAL ARRANGEMENTS FOR THOSE 19
WHO MAY ENGAGE IN LEGAL PRACTICE IN THIS 20
JURISDICTION 21
Division 1--Preliminary 22
120 Main purposes of ch 2, pt 6 23
The main purposes of this part are as follows-- 24
(a) to provide for the making of a regulation requiring particular 25
solicitors to deposit amounts into prescribed accounts; 26
s 121 91 s 123
Legal Profession Bill 2003
(b) to allow the chief executive to enter into agreements with 1
financial institutions, with whom solicitors have deposited 2
amounts under a regulation, for the payment of interest on the 3
trust accounts; 4
(c) to establish the Legal Practitioner Interest on Trust Accounts 5
Fund into which amounts received as interest must be paid; 6
(d) to ensure the interest paid into the fund, and other moneys 7
received for the fund, do not become part of the consolidated 8
fund; 9
(e) to provide for persons to whom or purposes for which amounts 10
may be paid from the fund. 11
121 Definitions for ch 2, pt 6 12
In this part-- 13
"fund" means the Legal Practitioner Interest on Trust Accounts Fund 14
established under section 126.60 15
"prescribed account" means an account prescribed under a regulation as 16
an account into which a solicitor must deposit moneys. 17
"solicitor" means a solicitor to whom the Trust Accounts Act 1973 applies. 18
"trust account" means a trust account kept by a solicitor under the Trust 19
Accounts Act 1973. 20
122 Relationship with other laws 21
The Trust Accounts Act 1973 provides for the audit of solicitors' trust 22
accounts. 23
Division 2--Prescribed accounts 24
123 Regulation for prescribed account 25
(1) A regulation may make provision for, and for matters relating to, 26
prescribed accounts. 27
60 Section 126 (Establishment of fund)
s 124 92 s 125
Legal Profession Bill 2003
(2) Without limiting subsection (1), the regulation may prescribe as 1
follows-- 2
(a) a solicitor to whom the regulation applies must deposit an 3
amount into a prescribed account; 4
(b) the way to work out an amount mentioned in paragraph (a), 5
including, for example, on the basis of the minimum amount held 6
by a solicitor in the solicitor's trust account for a calendar month 7
or year; 8
(c) the way in which the amounts may be paid to a solicitor from a 9
prescribed account; 10
(d) the way in which the law society may supervise compliance with 11
the regulation. 12
(3) If a solicitor contravenes a regulation as mentioned in 13
subsection (2)(a), it is capable of constituting unsatisfactory professional 14
conduct or professional misconduct. 15
124 Deposits to prescribed account 16
(1) No action at law or in equity may lie against any solicitor relating to 17
a matter or thing done by the solicitor for complying with a regulation as 18
mentioned in section 123 that applied to the solicitor. 19
(2) However, this section does not affect in any way the rights and 20
remedies of a claimant against the solicitor in the event of negligence or 21
dishonesty of the solicitor in relation to trust moneys. 22
Division 3--Interest on trust accounts paid to department 23
125 Arrangement with financial institution 24
The chief executive may enter into an arrangement with a financial 25
institution about the financial institution paying interest to the department 26
on-- 27
(a) prescribed accounts; and 28
(b) trust accounts kept by solicitors. 29
s 126 93 s 127
Legal Profession Bill 2003
Division 4--Legal Practitioner Interest on Trust Accounts Fund 1
126 Establishment of fund 2
(1) The Legal Practitioner Interest on Trust Accounts Fund is 3
established. 4
(2) Accounts for the fund must be kept as part of the departmental 5
accounts of the department. 6
(3) Amounts received for the fund must be deposited in a departmental 7
financial-institution account of the department used only for amounts 8
received for the fund. 9
(4) Amounts received for the fund include-- 10
(a) all interest payable to the department under an arrangement 11
entered into under section 12561 and 12
(b) other amounts payable for the fund under an Act. 13
(5) For the Financial Administration and Audit Act 1977, the amounts 14
received for the fund are not received or held for the State. 15
16
Note--
17
The amounts are other moneys under the Financial Administration and Audit Act 1977.
(6) An amount is payable from the fund only under section 127.62 18
(7) In this section-- 19
"departmental accounts", of a department, means the accounts of the 20
department under the Financial Administration and Audit Act 1977, 21
section 12. 22
"departmental financial-institution account", of a department, means an 23
account of the department kept under the Financial Administration 24
and Audit Act 1977, section 18. 25
127 Payments from fund 26
(1) The chief executive may make payments from the fund to or for any 27
of the following-- 28
61 Section 125 (Arrangement with financial institution)
62 Section 127 (Payments from fund)
s 127 94 s 127
Legal Profession Bill 2003
(a) Legal Aid Queensland; 1
(b) the fidelity fund; 2
(c) the Supreme Court Library; 3
(d) the commissioner; 4
(e) a disciplinary body; 5
(f) the board; 6
(g) part of the cost of the regulatory functions of the law society or 7
bar association; 8
(h) grants approved by the Minister for any of the following 9
purposes-- 10
(i) the advancement of law reform; 11
(ii) the collection, assessment and dissemination of information 12
concerning legal education, the law, the legal system, law 13
reform, the legal profession and legal services; 14
(iii) facilitating access to the legal system, legal information and 15
education and legal services for members of the community, 16
particularly economically or socially disadvantaged 17
members of the community; 18
(i) the department for the cost of administering this part. 19
(2) Also, the chief executive may make payments from the fund for a 20
grant or matter mentioned in the following if the law society incurred a 21
liability for the grant or matter before the commencement of this section-- 22
(a) a grant approved under the Queensland Law Society Act 1952, 23
section 36N; 24
(b) a matter approved by the Minister under section 36E(b)(iii) of 25
that Act.63 26
(3) The chief executive must not make a payment under subsection (1) 27
or (2) unless the Minister has decided the amount may be paid and has 28
given written authority to the chief executive to pay the amount. 29
63 Queensland Law Society Act 1952, section 36N (Functions of grants committee) and
section 36E (Distributions from contribution fund)
s 128 95 s 129
Legal Profession Bill 2003
128 Minister to decide distribution 1
(1) The Minister must decide-- 2
(a) whether a payment is to be made under section 127;64 and 3
(b) if the Minister decides a payment is to be made, the amount of 4
the payment and any conditions applicable to the payment. 5
(2) For subsection (1), the chief executive must make recommendations 6
to the Minister. 7
(3) The amount used for a purpose mentioned in section 127(1)(h) must 8
not be more than the amount prescribed under a regulation for this 9
subsection. 10
129 Submission of budgets 11
(1) To help the Minister in making decisions under section 128,65 the 12
chief executive may ask a potential beneficiary to prepare and submit a 13
budget to the chief executive, for the period the chief executive directs, 14
concerning the income and expenditure of the potential beneficiary, 15
including projected income and expenditure. 16
(2) The budget is to include the information the chief executive directs. 17
(3) In particular, the chief executive may require the provision of 18
information about the administration of the beneficiary. 19
(4) In this section-- 20
"potential beneficiary", of a payment, means the entity to which or in 21
relation to which a payment would be paid for a purpose mentioned in 22
section 127(1).66 23
64 Section 127 (Payments from fund)
65 Section 128 (Minister to decide distribution)
66 Section 127 (Payments from fund)
s 130 96 s 132
Legal Profession Bill 2003
PART 7--RULES ABOUT THOSE WHO MAY ENGAGE 1
IN LEGAL PRACTICE IN THIS JURISDICTION 2
Division 1--Preliminary 3
130 Main purposes of ch 2, pt 7 4
The main purposes of this part are as follows-- 5
(a) to promote the maintenance of high standards of professional 6
conduct by Australian lawyers and incorporated legal practices 7
by providing for legal profession rules; 8
(b) to allow each regulatory authority to provide for administrative 9
matters by providing for administration rules. 10
131 Power to make rules not limited to specific references to provision 11
in other chapters or parts 12
The power to make a legal profession rule or an administration rule is 13
not limited to matters for which this Act, other than this part, specifically 14
authorises the making of a legal profession rule or an administration rule. 15
132 Definitions for ch 2, pt 7 16
In this part-- 17
"administration rule" see section 144(3). 18
"barristers rule" see section 133(b). 19
"incorporated legal practice rule" see section 133(c). 20
"indemnity rule" see section 144(4). 21
"legal profession rule" means-- 22
(a) a solicitors rule; or 23
(b) a barristers rule; or 24
(c) an incorporated legal practice rule. 25
"solicitors rule" see section 133(a). 26
s 133 97 s 135
Legal Profession Bill 2003
Division 2--Legal profession rules 1
133 Rules to be made by Governor in Council 2
The Governor in Council may make the following-- 3
(a) a rule under this Act for any aspect of legal practice, including 4
standards of conduct expected of individuals who engage, or 5
intend to engage, in legal practice as a solicitor in this 6
jurisdiction (a "solicitors rule"); 7
(b) a rule under this Act for any aspect of legal practice, including 8
standards of conduct expected of individuals who engage, or 9
intend to engage, in legal practice as a barrister in this 10
jurisdiction (a "barristers rule"); 11
(c) a rule under this Act for any aspect of legal practice, including 12
standards of conduct expected of incorporated legal practices, 13
lawyer directors and qualified employees of the practices (the 14
"incorporated legal practice rule"). 15
134 Rule may apply to individuals generally or by using a defined 16
term involving a legal title 17
(1) A solicitors rule or barristers rule may apply to an individual 18
generally or by reference to whether the individual is any of the 19
following-- 20
(a) a local legal practitioner, interstate legal practitioner or 21
Australian legal practitioner; 22
(b) a local lawyer, interstate lawyer or Australian lawyer. 23
(2) An incorporated legal practice rule may apply to an incorporated 24
legal practice or a lawyer director or qualified employee of the practice. 25
135 Particular provision about barristers rule 26
A barristers rule may provide for a barrister to be prohibited from any or 27
all of the following-- 28
(a) engaging in legal practice-- 29
(i) otherwise than as a sole practitioner; or 30
(ii) in partnership with any person; or 31
s 136 98 s 138
Legal Profession Bill 2003
(iii) as the employee of any person; 1
(b) holding office as a lawyer director of an incorporated legal 2
practice. 3
136 Solicitors rule or barristers rule may apply to government legal 4
officer 5
The solicitors rule and barristers rule may provide that a rule applies to a 6
government legal officer. 7
137 Incorporated legal practice rule can not provide for particular 8
matters 9
An incorporated legal practice rule can not-- 10
(a) regulate any services that an incorporated legal practice may 11
provide or regulate conduct other than in connection with-- 12
(i) the provision of legal services; or 13
(ii) other services in circumstances where a conflict of interest 14
relating to the provision of legal services may arise; or 15
(b) regulate the conduct of officers or employees of an incorporated 16
legal practice other than in connection with-- 17
(i) the provision of legal services; or 18
(ii) other services in circumstances where a conflict of interest 19
relating to the provision of legal services may arise. 20
138 Recommendations to the Minister about legal profession rules 21
(1) The law society may make a recommendation to the Minister in 22
relation to-- 23
(a) the solicitors rule; and 24
(b) the incorporated legal practice rule. 25
(2) The bar association may make a recommendation to the Minister in 26
relation to the barristers rule. 27
(3) Without limiting subsection (1)(b), the law society's 28
recommendation about the incorporated legal practice rule may provide for 29
the following-- 30
s 139 99 s 140
Legal Profession Bill 2003
(a) matters that relate to the provision of legal services by or in 1
connection with an incorporated legal practice; 2
(b) professional obligations relating to legal services provided by or 3
in connection with an incorporated legal practice; 4
(c) the provision of other services by an incorporated legal practice 5
in circumstances in which a conflict of interest relating to the 6
provision of legal services may arise. 7
139 Monitoring role of committee 8
(1) The committee may make a recommendation to the Minister in 9
relation to any legal profession rule. 10
11
Note--
12
The committee is the Legal Practice Committee established under section 270.
(2) For subsection (1), the committee is-- 13
(a) to monitor the adequacy of each legal profession rule; and 14
(b) to consider any particular matter about which the Minister asks 15
the committee to make a recommendation for a legal profession 16
rule. 17
140 Public notice of proposed legal profession rule 18
(1) A regulatory authority that proposes to make a recommendation 19
about a legal profession rule must ensure that a notice is published in a 20
daily newspaper circulating in this jurisdiction-- 21
(a) explaining the object of the proposed rule; and 22
(b) advising where or how a copy of the proposed rule may be 23
accessed, obtained or inspected; and 24
(c) inviting comments and submissions within a stated period of not 25
less than 21 days from the date of first publication of the notice. 26
(2) The regulatory authority must ensure that a copy of the proposed rule 27
is given to the Minister before the notice is published. 28
(3) The regulatory authority must not make a recommendation about the 29
rule before the end of the period stated in the notice for making comments 30
and submissions and must ensure that any comments and submissions 31
received within that period are appropriately considered. 32
s 141 100 s 144
Legal Profession Bill 2003
(4) Subsections (1) to (3) do not apply to a proposed rule that the 1
Minister considers does not warrant publication because of its urgent 2
nature or of its minor or technical nature. 3
141 Binding nature of each legal profession rule 4
(1) Each provision of a legal profession rule is binding on a person to 5
whom the provision applies. 6
(2) Failure to comply with the provision of the legal profession rule by 7
an individual to whom the provision applies-- 8
(a) is capable of constituting unsatisfactory professional conduct or 9
professional misconduct; but 10
(b) is not a breach of this Act unless a provision of this Act otherwise 11
provides. 12
142 Relationship of legal profession rule to this Act and regulation 13
(1) A regulation may be made in relation to any matter for which a legal 14
profession rule may be made. 15
(2) A provision of a legal profession rule does not have effect to the 16
extent that it is inconsistent with this Act. 17
143 Relationship of legal profession rule and administration rule 18
(1) A legal profession rule may identify a provision of an administration 19
rule as a provision that a holder of a practising certificate, granted or 20
renewed by the regulatory authority who made the administration rule, 21
must comply with. 22
(2) If a provision of an administration rule is identified as mentioned in 23
subsection (1), a contravention of the provision is capable of constituting 24
unsatisfactory professional conduct or professional misconduct. 25
Division 3--Administration rules 26
144 Rules other than legal profession rule 27
(1) To the extent a regulatory authority does not have power under 28
another Act or otherwise to make rules for a matter mentioned in 29
s 144 101 s 144
Legal Profession Bill 2003
subsection (2) and another Act does not prevent a rule being made about 1
the matter, the regulatory authority may make a rule about the matter that 2
applies to-- 3
(a) Australian legal practitioners, including interstate legal 4
practitioners practising in this jurisdiction; and 5
(b) if the regulatory authority is the law society--an incorporated 6
legal practice. 7
(2) The matters about which a regulatory authority may make rules are 8
as follows-- 9
(a) types of practising certificates that the regulatory authority may 10
grant or renew, including, for example, practising certificates for 11
supervised legal practice or unsupervised legal practice by 12
solicitors; 13
(b) the courses of study that an Australian lawyer is required to 14
complete-- 15
(i) for the grant of a practising certificate by the law society for 16
unsupervised legal practice; and 17
(ii) for the grant of a practising certificate by the bar association 18
for practice as a barrister; 19
(c) matters relating to the courses of study mentioned in 20
paragraph (b) including enrolment procedures, fees payable, 21
minimum course attendance requirements, examination and 22
assessment and procedures for the review of assessments and 23
appeals against assessments; 24
(d) exempting an individual who applies for a practising certificate 25
from the requirement to have completed a course of study 26
mentioned in paragraph (b) given the length and nature of the 27
individual's experience in unsupervised practice or practice as a 28
barrister; 29
(e) the legal practice by an individual that may constitute supervised 30
legal practice, having regard to-- 31
(i) the length and nature of the legal practice engaged in by the 32
individual; and 33
(ii) the length and nature of the legal practice engaged in by the 34
person, if any, who supervised the individual's legal 35
practice; 36
s 145 102 s 145
Legal Profession Bill 2003
(f) approved forms to be used for an application to the regulatory 1
authority and the way an approved form is to be given to the 2
authority, including the time for giving the form to it; 3
(g) the timing for payment of fees, levies and contributions payable 4
under this Act; 5
(h) matters relating to other matters that may be approved by the 6
regulatory authority under this Act; 7
(i) matters relating to indemnity against loss arising from claims in 8
relation to every description of civil liability incurred by a local 9
legal practitioner or former local legal practitioner, including a 10
person who was a solicitor at any time before the commencement 11
of this section, in connection with practitioner's practice or in 12
connection with any trust of which the practitioner was a trustee. 13
(3) A rule about a matter mentioned in subsection (2) is an 14
"administration rule". 15
(4) An administration rule about a matter mentioned in subsection (2)(h) 16
is an "indemnity rule". 17
(5) This division does not affect a regulatory authority's power under 18
another Act or otherwise to make a rule that is not an administration rule or 19
indemnity rule. 20
145 Indemnity rule 21
(1) An indemnity rule-- 22
(a) may authorise or require the regulatory authority to establish and 23
maintain a fund or funds; or 24
(b) may authorise or require the regulatory authority to take out and 25
keep insurance with insurers carrying on insurance business and 26
approved by the authority for the purposes of the insurance; or 27
(c) may require local legal practitioners holding practising 28
certificates granted or renewed by the authority, or a class of 29
certificate holders, to take out and keep insurance with insurers 30
carrying on insurance business and approved by the authority for 31
the purposes of the insurance. 32
(2) An indemnity rule-- 33
s 146 103 s 146
Legal Profession Bill 2003
(a) may specify the terms and conditions on which indemnity is to 1
be available and any circumstances in which the right to 2
indemnity is to be excluded or modified; and 3
(b) may provide for the management, administration and protection 4
of any fund established and maintained under the indemnity rule, 5
and require certificate holders of practising certificates granted or 6
renewed by the authority, or a class of certificate holders, to make 7
payments to a fund; and 8
(c) may require certificate holders of practising certificates granted 9
or renewed by the authority, or a class of certificate holders, to 10
make payments by way of premium on any insurance policy 11
taken out and maintained by the authority under the indemnity 12
rule; and 13
(d) may require a local legal practitioner to disclose information 14
about professional indemnity insurance to clients or prospective 15
clients; and 16
(e) may prescribe terms and conditions with which an insurance 17
policy, required by the indemnity rule made for the purposes of 18
subsection (1)(c), must comply; and 19
(f) may authorise the authority to decide the amount of a payment 20
required by the indemnity rule, subject to limits or under the rule; 21
and 22
(g) may authorise the authority or insurer to take proceedings against 23
a certificate holder or former certificate holder for amounts paid 24
by way of indemnity in connection with a matter in relation to 25
which he or she has failed to comply with the indemnity rule, and 26
may specify circumstances in which the proceedings may be 27
taken; and 28
(h) may empower the law society to take steps as it considers 29
necessary or expedient to find out whether or not the indemnity 30
rule is being complied with. 31
(3) This section does not limit section 144(2)(h). 32
146 Relationship of administration rule to this Act and regulation 33
(1) A regulation may be made in relation to any matter for which an 34
administration rule may be made. 35
s 147 104 s 148
Legal Profession Bill 2003
(2) A provision of a regulatory authority's administration rule does not 1
have effect to the extent that it is inconsistent with this Act, a regulation or 2
a legal profession rule relevant to the authority. 3
(3) Despite another Act, an administration rule can not provide that 4
contravention of the rule-- 5
(a) is an offence; or 6
(b) is capable of constituting unsatisfactory professional conduct or 7
professional misconduct. 8
9
Note--
10
Under the Statutory Instruments Act 1992, section 2367 a regulation may apply, adopt or
11
incorporate an administration rule.
147 Availability of an administration rule 12
A regulatory authority must ensure that an up-to-date version of each 13
administration rule is available for public inspection-- 14
(a) at the authority's principal place of business; or 15
(b) on the authority's internet site or an internet site identified on the 16
authority's internet site. 17
PART 8--INTER-JURISDICTIONAL PROVISIONS 18
REGARDING ADMISSION AND PRACTISING 19
CERTIFICATES 20
Division 1--Preliminary 21
148 Main purpose of ch 2, pt 8 22
The main purpose of this part is to provide for the notification of and 23
response to action taken by courts and other regulatory authorities in 24
67 Statutory Instruments Act 1992, section 23 (Statutory instrument may make
provision by applying another document)
s 149 105 s 151
Legal Profession Bill 2003
relation to the admission of individuals as legal practitioners and their right 1
to practise in Australia. 2
149 Ch 3 not affected 3
This part does not affect a function or power under chapter 3. 68
4
Division 2--Notifications to be given to interstate authorities 5
150 Notification to other jurisdictions about application for admission 6
(1) This section applies to each application for admission. 7
(2) The board may give the corresponding authority of another 8
jurisdiction written notice of any of the following to the extent that it is 9
relevant to the corresponding authority's functions or powers-- 10
(a) the making of the application; 11
(b) the board's recommendation under section 29 in relation to the
69
12
application; 13
(c) the withdrawal of the application after an investigation or inquiry 14
is made or started, or a suitability report is sought or obtained, in 15
relation to the application or the applicant; 16
(d) the refusal of the Supreme Court to admit the applicant as a legal 17
practitioner under this Act. 18
(3) The notice must state the applicant's name and address as last known 19
to the board and may contain other relevant information. 20
151 Notification to other jurisdictions about removal from local roll 21
(1) This section applies if a local lawyer's name is removed from the 22
local roll, except if the removal happens under section 156.70 23
(2) The Brisbane registrar must give the corresponding authority of each 24
other jurisdiction written notice of the removal. 25
68 Chapter 3 (Complaints, investigation matters and discipline)
69 Section 29 (Role of the board relating to application for admission)
70 Section 156 (Pre-emptory removal of local lawyer's name from local roll following
removal in another jurisdiction)
s 152 106 s 152
Legal Profession Bill 2003
(3) The notice must state the following-- 1
(a) the lawyer's name and address as last known to the Brisbane 2
registrar; 3
(b) the date the lawyer's name was removed from the roll; 4
(c) the reason for removing the lawyer's name; 5
(d) other information prescribed under a regulation for this section. 6
152 Law society and bar association to notify other jurisdictions about 7
actions by it 8
(1) Subsection (2) applies if-- 9
(a) a regulatory authority takes any of the following actions in 10
relation to an Australian lawyer-- 11
(i) refuses to grant the lawyer a local practising certificate; 12
(ii) cancels, suspends or refuses to renew the lawyer's local 13
practising certificate; 14
(b) the lawyer successfully appeals against the taking of an action 15
mentioned in paragraph (a). 16
(2) The regulatory authority must give the regulatory authorities of other 17
jurisdictions written notice of the action taken or the result of the appeal. 18
(3) The notice must state the following-- 19
(a) the lawyer's name and address as last known to the regulatory 20
authority for this jurisdiction; 21
(b) particulars of-- 22
(i) the action taken and the reasons for it; or 23
(ii) the result of the appeal; 24
(c) other relevant information that the authority considers should be 25
included in the notice. 26
(4) The regulatory authority may give the regulatory authorities of other 27
jurisdictions written notice of a condition imposed on an Australian 28
lawyer's local practising certificate. 29
s 153 107 s 155
Legal Profession Bill 2003
Division 3--Notifications to be given by lawyers to local authorities 1
153 Lawyer to give notice of removal in another jurisdiction 2
(1) If a local lawyer's name has been removed from an interstate roll, the 3
lawyer must give the Brisbane registrar written notice of the removal. 4
Maximum penalty--100 penalty units. 5
(2) If a local legal practitioner's name has been removed from an 6
interstate roll, the practitioner must give the relevant regulatory authority 7
written notice of the removal. 8
Maximum penalty--100 penalty units. 9
(3) This section does not apply if the name has been removed from an 10
interstate roll under a corresponding law to section 156.71 11
154 Lawyer to give notice of removal in foreign country 12
(1) If a local lawyer's name has been removed from a foreign roll, the 13
lawyer must give each regulatory authority written notice of the removal. 14
Maximum penalty--200 penalty units. 15
(2) If a local legal practitioner's name has been removed from a foreign 16
roll, the practitioner must give the relevant regulatory authority written 17
notice of the removal. 18
Maximum penalty--200 penalty units. 19
155 Provisions relating to requirement to notify 20
(1) A notice to be given under this division by a local lawyer or local 21
legal practitioner must-- 22
(a) state his or her name and address; and 23
(b) identify the roll from which his or her name has been removed; 24
and 25
(c) state the date of the removal; and 26
71 Section 156 (Pre-emptory removal of local lawyer's name from local roll following
removal in another jurisdiction)
s 156 108 s 156
Legal Profession Bill 2003
(d) be accompanied by a copy of any official notification given to 1
him or her in connection with the removal. 2
(2) A contravention of section 153 or 154, including failing to comply 3
with subsection (1) in relation to the notice for those sections, is capable of 4
constituting unsatisfactory professional conduct or professional 5
misconduct. 6
Division 4--Taking of action by local authorities in response to 7
notifications received 8
156 Pre-emptory removal of local lawyer's name from local roll 9
following removal in another jurisdiction 10
(1) This section applies if the Brisbane registrar is satisfied that-- 11
(a) a local lawyer's name has been removed from an interstate roll; 12
and 13
(b) no order under section 158(1)(a)72 is, at the time of that removal, 14
in force in relation to the lawyer's name. 15
(2) The Brisbane registrar must remove, or arrange with another registrar 16
for the removal of, the lawyer's name from the local roll. 17
(3) The Brisbane registrar may, but need not, give the lawyer written 18
notice of the date on which the registrar proposes to remove the name from 19
the local roll. 20
(4) The Brisbane registrar must give the former local lawyer written 21
notice of the removal of the name from the local roll, unless notice of the 22
date of the proposed removal was previously given. 23
(5) The name of the former local lawyer is, on his or her application to 24
the Brisbane registrar or on the registrar's own initiative, to be restored to 25
the local roll if the name is restored to the interstate roll. 26
(6) Nothing in this section prevents the former local lawyer from 27
afterwards applying for admission under section 28.73 28
72 Section 158 (Order for non-removal of name or non-cancellation of practising
certificate)
73 Section 28 (Application for admission)
s 157 109 s 158
Legal Profession Bill 2003
157 Pre-emptory cancellation of local practising certificate following 1
removal of name from interstate roll 2
(1) This section applies if-- 3
(a) an individual's name is removed from an interstate roll; and 4
(b) the individual is the holder of a local practising certificate; and 5
(c) no order under section 158(1)(b) is, at the time of that removal,
74
6
in force in relation to the individual's local practising certificate. 7
(2) If the authority is given written notice of the removal by the 8
regulatory authority for the other jurisdiction, the relevant regulatory 9
authority must cancel the local practising certificate. 10
(3) The authority may, but need not, give the individual notice of the date 11
on which the authority proposes to remove the name from the local roll. 12
(4) The authority must give the individual notice of the cancellation, 13
unless notice of the date of the proposed cancellation was previously given. 14
(5) Nothing in this section prevents the former local lawyer from 15
applying for a local practising certificate at a later time. 16
158 Order for non-removal of name or non-cancellation of practising 17
certificate 18
(1) If an Australian lawyer reasonably expects that the lawyer's name 19
will be removed from an interstate roll, the lawyer may apply to the 20
Supreme Court for either or both of the following orders (each of which is 21
a "prevention order")-- 22
(a) an order that the lawyer's name not be removed from the local 23
roll under section 156; 24
(b) an order that the lawyer's local practising certificate not be 25
cancelled under section 157.75 26
(2) After hearing the application, the Supreme Court may-- 27
(a) refuse to make the prevention order; or 28
74 Section 158 (Order for non-removal of name or non-cancellation of practising
certificate)
75 Section 156 (Pre-emptory removal of local lawyer's name from local roll following
removal in another jurisdiction) and 157 (Pre-emptory cancellation of local
practising certificate following removal of name from interstate roll)
s 159 110 s 159
Legal Profession Bill 2003
(b) make the prevention order if it is satisfied that-- 1
(i) the lawyer's name is likely to be removed from the interstate 2
roll; and 3
(ii) the reason for the removal of the lawyer's name from the 4
interstate roll will not involve disciplinary action or the 5
possibility of disciplinary action. 6
(3) A prevention order may be made subject to any conditions the court 7
considers appropriate and remains in force for the period stated in it. 8
(4) The court may revoke a prevention order, including on its own 9
initiative. 10
(5) If a prevention order is revoked either or both of sections 156 11
and 157, as relevant, apply as if the lawyer's name were removed from the 12
interstate roll on the day the revocation takes effect. 13
(6) Nothing in this section affects action being taken in relation to the 14
lawyer under another provision of this Act. 15
159 Show cause procedure for removal of local lawyer's name from 16
local roll following removal in foreign country 17
(1) This section applies if a local lawyer's name has been removed from 18
a foreign roll and the name has not been restored. 19
(2) The relevant regulatory authority may serve on the local lawyer a 20
notice stating that the authority will apply to the Supreme Court for a order 21
that the lawyer's name be removed from the local roll unless the lawyer 22
shows cause to the authority why his or her name should not be removed. 23
(3) If the local lawyer does not satisfy the regulatory authority that the 24
lawyer's name should not be removed from the local roll, the authority may 25
apply to the Supreme Court for an order that the lawyer's name be removed 26
from the local roll. 27
(4) On hearing the application made under this section, the Supreme 28
Court may order the local lawyer's name be removed from the local roll or 29
refuse to make the order. 30
(5) The local lawyer is entitled to appear before and be heard by the 31
Supreme Court at a hearing about an application under this section. 32
s 160 111 s 162
Legal Profession Bill 2003
160 Local authority may give information to other local authority 1
(1) A local authority that receives information from an authority of 2
another jurisdiction under provisions of a corresponding law that 3
correspond to this part may give the information to another local authority. 4
(2) In this section-- 5
"local authority" mean an entity relevant to this jurisdiction that has 6
functions or powers under this Act. 7
CHAPTER 3--COMPLAINTS, INVESTIGATION 8
MATTERS AND DISCIPLINE 9
PART 1--PRELIMINARY 10
Division 1--Purposes 11
161 Main purposes of ch 3 12
The main purposes of this chapter are as follows-- 13
(a) to provide for the discipline of the legal profession; 14
(b) to promote and enforce the professional standards, competence 15
and honesty of the legal profession; 16
(c) to provide a means of redress for complaints by consumers of the 17
services of the legal profession about Australian lawyers and 18
employees. 19
Division 2--Interpretation 20
162 Meaning of "unsatisfactory professional conduct" 21
"Unsatisfactory professional conduct" includes conduct of an 22
Australian lawyer happening in connection with the lawyer engaging in 23
s 163 112 s 164
Legal Profession Bill 2003
legal practice that falls short of the standard of competence and diligence 1
that a member of the public is entitled to expect of a reasonably competent 2
Australian lawyer. 3
4
Note--
5
See section 39176 for how this term is defined for complaints made under the
6
Queensland Law Society Act 1952 that are dealt with under this Act.
163 Meaning of "professional misconduct" 7
(1) "Professional misconduct" includes unsatisfactory professional 8
conduct of an Australian lawyer, if the conduct involves a substantial or 9
consistent failure to reach or maintain a reasonable standard of competence 10
and diligence. 11
(2) Also, "professional misconduct" includes conduct of an Australian 12
lawyer, whether happening in connection with the lawyer engaging in legal 13
practice or happening otherwise than in connection with the practice, that 14
would, if established, justify a finding that the lawyer is not suitable to 15
engage in legal practice. 16
(3) For finding that an Australian lawyer is not suitable to engage in legal 17
practice as mentioned in subsection (2), regard may be given to the 18
suitability matters that would be considered if the lawyer were an applicant 19
for admission. 20
21
Note--
22
See section 391 for how this term is defined for complaints made under the Queensland
23
Law Society Act 1952 that are dealt with under this Act.
164 Conduct capable of constituting unsatisfactory professional 24
conduct or professional misconduct 25
Without limiting section 162 or 163, the following conduct is capable of 26
constituting unsatisfactory professional conduct or professional 27
misconduct-- 28
(a) an offence against a relevant law; 29
(b) charging of excessive legal fees or costs in connection with 30
engaging in legal practice; 31
76 Section 391 (Basis of complaint mentioned in ss 173 or 390(2))
s 165 113 s 166
Legal Profession Bill 2003
(c) conduct for which a court has convicted an Australian lawyer 1
for-- 2
(i) a serious offence; or 3
(ii) a tax offence; or 4
(iii) an offence involving dishonesty; 5
(d) an act of bankruptcy under the Bankruptcy Act 1966 (Cwlth); 6
(e) conduct that is, or is capable of being, unsatisfactory professional 7
conduct or professional misconduct under an Act or a legal 8
profession rule. 9
165 Meaning of "respondent" 10
A "respondent" is an individual to whom this chapter applies and-- 11
(a) who is the subject of a complaint; or 12
(b) about whom the commissioner, on his or her own initiative, starts 13
an investigation under section 182.77 14
Division 3--Application of this chapter 15
166 Australian lawyers to whom this chapter applies 16
(1) This chapter applies to an Australian lawyer for conduct to which this 17
chapter applies, whether or not 1 or more of the following apply-- 18
(a) the lawyer is a local lawyer; 19
(b) the lawyer holds a practising certificate issued under this Act; 20
(c) the lawyer holds a practising certificate issued under a 21
corresponding law; 22
(d) the lawyer resides or has an office in this jurisdiction; 23
(e) the lawyer is a government legal officer; 24
(f) the lawyer's conduct is or was part of the lawyer's role as a 25
lawyer director of an incorporated legal practice or the lawyer 26
77 Section 182 (Referral by commissioner to law society or bar association)
s 167 114 s 167
Legal Profession Bill 2003
providing legal services as a qualified employee of an 1
incorporated legal practice; 2
(g) if a complaint is made about the lawyer--the complainant 3
resides, works or has an office in this jurisdiction. 4
(2) Also, this chapter applies to-- 5
(a) an individual who was an Australian lawyer for conduct 6
happening while the individual was an Australian lawyer; or 7
(b) if the individual was a solicitor or barrister in this jurisdiction 8
before the commencement of this section but is not a local lawyer 9
on the commencement--the individual for conduct happening 10
while the individual was a solicitor or barrister in this 11
jurisdiction. 12
(3) The chapter applies to an individual mentioned in subsection (2) in 13
the same way as it applies to an Australian lawyer, with any necessary 14
changes. 15
167 Conduct to which this chapter applies--generally 16
(1) This chapter applies to conduct in this jurisdiction of an Australian 17
lawyer whether or not the conduct was engaged in before or after the 18
commencement of this section. 19
(2) Also, this chapter applies to conduct outside this jurisdiction of an 20
Australian lawyer whether or not the conduct was engaged in before or 21
after the commencement of this section-- 22
(a) if the conduct is part of a course of conduct that happened partly 23
in this jurisdiction and partly in another jurisdiction, and either-- 24
(i) the corresponding authority of each other jurisdiction in 25
which the conduct happened consents to it being dealt with 26
under this Act; or 27
(ii) the Australian lawyer and, if a complaint is made by a 28
person about the lawyer, the complainant consent to it being 29
dealt with under this Act; or 30
(b) if the conduct happened in Australia but wholly outside this 31
jurisdiction and the Australian lawyer is a local lawyer or a local 32
legal practitioner, and either-- 33
s 168 115 s 168
Legal Profession Bill 2003
(i) the corresponding authority of each jurisdiction in which 1
the conduct happened consents to it being dealt with under 2
this Act; or 3
(ii) the Australian lawyer and, if a complaint is made by a 4
person about the lawyer, the complainant consent to it being 5
dealt with under this Act; or 6
(c) if the conduct happened wholly or partly outside Australia and 7
the Australian lawyer is a local lawyer or a local legal 8
practitioner. 9
(3) However, this chapter does not apply to conduct in this jurisdiction 10
if-- 11
(a) the commissioner consents to the conduct being dealt with under 12
a corresponding law; or 13
(b) the Australian lawyer and, if a complaint is made by a person 14
about the lawyer, the complainant consent to the conduct being 15
dealt with under a corresponding law. 16
(4) The commissioner may give consent for the purposes of 17
subsection (3), and may do so conditionally or unconditionally. 18
168 Conduct to which this chapter applies--bankruptcy, serious 19
offences and tax offences 20
(1) This chapter applies to the following conduct of a local legal 21
practitioner whether happening in Australia or elsewhere and whether the 22
conduct was engaged in before or after the commencement of this 23
section-- 24
(a) conduct for which a court has convicted the practitioner for-- 25
(i) a serious offence; or 26
(ii) a tax offence; or 27
(iii) an offence involving dishonesty; 28
(b) an act of bankruptcy under the Bankruptcy Act 1966 (Cwlth). 29
(2) This section has effect despite anything in section 167.78 30
78 Section 167 (Conduct to which this chapter applies--generally)
s 169 116 s 171
Legal Profession Bill 2003
169 Chapter also applies to law practice employees 1
(1) This chapter applies to the conduct of a law practice employee in 2
relation to conduct to which this chapter applies under subsection (2). 3
(2) This chapter applies to the conduct of the employee in relation to the 4
relevant practice whether or not-- 5
(a) the conduct is part of a course of conduct that happened partly in 6
this jurisdiction and partly in another jurisdiction; or 7
(b) the conduct was engaged in before or after the commencement of 8
this section. 9
Division 4--Commissioner's obligations for complaints 10
170 Duty to deal with complaints efficiently and expeditiously 11
The commissioner must, under this Act, deal with complaints as 12
efficiently and expeditiously as is practicable.79 13
171 Duty to inform complainant about action taken for complaint 14
(1) The commissioner must keep a complainant informed about the way 15
the complaint is dealt with. 16
(2) Without limiting subsection (1), the commissioner must give the 17
complainant-- 18
(a) notice of the receipt of the complaint by the commissioner; and 19
(b) a copy of any discipline application made because of the 20
complaint; and 21
(c) written notice of a decision of a disciplinary body relating to the 22
complaint. 23
79 See section 178 (Commissioner may delay dealing with complaint).
s 172 117 s 173
Legal Profession Bill 2003
PART 2--MAKING COMPLAINTS 1
172 Conduct about which complaint may be made 2
(1) A complaint may be made under this chapter about-- 3
(a) an Australian lawyer's conduct to which this chapter applies; or 4
(b) the conduct of a law practice employee to which this chapter 5
applies. 6
(2) A complaint may be made under this chapter about conduct 7
happening outside this jurisdiction, but the complaint must not be dealt 8
with under this chapter unless this chapter is or becomes applicable to the 9
conduct. 10
173 Making a complaint 11
(1) An entity may make a complaint in writing to the commissioner 12
about the conduct of an Australian lawyer or law practice employee, 13
including, for example-- 14
(a) a client of the law practice; or 15
(b) the relevant regulatory authority. 16
(2) However for a government legal officer, only the following entities 17
may make a complaint about the conduct of the officer in relation to the 18
government work engaged in by the officer-- 19
(a) a relevant regulatory authority; 20
(b) the chief executive officer, however expressed, of the department 21
or agency in which the officer is a government legal officer or, if 22
the chief executive officer may delegate that power, a delegate. 23
(3) The complaint must-- 24
(a) identify the complainant; and 25
(b) if possible, identify the individual about whom the complaint is 26
made; and 27
(c) describe the alleged conduct the subject of the complaint. 28
(4) Even if a regulatory authority approves a form for making 29
complaints, a complaint may be made under subsection (1) other than in 30
the approved form. 31
s 174 118 s 175
Legal Profession Bill 2003
174 Further information and verification 1
(1) The commissioner may, by written notice to a complainant, require 2
the complainant to do 1 or more of the following-- 3
(a) to give further information about the complaint; 4
(b) to verify the complaint, or any further information, by statutory 5
declaration; 6
(c) to sign an approved form that acknowledges the waiver of legal 7
professional privilege as mentioned in section 231.80 8
(2) The notice must state a date, that is reasonable, by which the 9
complainant must comply with the notice. 10
(3) The commissioner may extend the time for the complainant to 11
comply with subsection (1) on application by the complainant before the 12
date stated in the notice. 13
175 Complaints made over 3 years after conduct concerned 14
(1) This section applies if a complaint is received by the commissioner 15
more than 3 years after the conduct happened that is the subject of the 16
complaint, including conduct that happened before the commencement of 17
this section. 18
(2) The commissioner may-- 19
(a) refer the complaint to mediation; or 20
(b) dismiss the complaint unless the commissioner decides that-- 21
(i) it is just and fair to deal with the complaint having regard to 22
the extent and reasons for the delay; or 23
(ii) the complaint involves conduct of the following type and it 24
is in the public interest to deal with the complaint-- 25
(A) conduct of an Australian lawyer that the commissioner 26
considers may be professional misconduct; or 27
(B) conduct of a law practice employee that the 28
commissioner considers may be misconduct in relation 29
to the relevant practice. 30
(3) The commissioner must give an information notice to-- 31
80 Section 231 (Waiver of legal professional privilege)
s 176 119 s 176
Legal Profession Bill 2003
(a) if the commissioner dismisses the complaint--the complainant; 1
or 2
(b) if the commissioner makes a decision mentioned in 3
subsection (2)(b)(i) or (ii)--the respondent. 4
(4) For working out whether it is more than 3 years since conduct that is 5
the subject of the complaint happened, the commissioner must calculate 6
from the last day that the conduct happened. 7
(5) This section does not limit the commissioner's power to dismiss a 8
complaint under section 176.81 9
(6) This section is subject to 391.82 10
176 Summary dismissal of complaints 11
(1) The commissioner may dismiss the complaint for 1 or more of the 12
following reasons-- 13
(a) the commissioner has given the complainant a notice under 14
section 17483 and, within the time stated in the notice or under an 15
extension under that section, the complainant has not complied 16
with the notice; 17
(b) the complaint does not disclose conduct that the commissioner 18
considers may be-- 19
(i) conduct to which this chapter applies; and 20
(ii) unsatisfactory professional conduct or professional 21
misconduct of an Australian lawyer or misconduct of a law 22
practice employee in relation to the relevant practice; 23
(c) the commissioner considers the complaint is vexatious, 24
misconceived or frivolous; 25
(d) the conduct complained about has been the subject of a previous 26
complaint that has been dismissed or dealt with, and the 27
commissioner considers that the complaint discloses no reason to 28
reconsider the matter; 29
81 Section 176 (Summary dismissal of complaints)
82 Section 391 (Basis of complaint mentioned in ss 173 or 390(2))
83 Section 174 (Further information and verification)
s 177 120 s 177
Legal Profession Bill 2003
(e) for a complaint about an Australian lawyer--the lawyer's name 1
has already been removed from the local roll or an interstate roll. 2
(2) The commissioner may dismiss a complaint under this section 3
without completing an investigation if, having considered the complaint, 4
the commissioner forms the view that the complaint requires no further 5
investigation. 6
(3) If a complaint is dismissed for the reason mentioned in 7
subsection (1)(a), the dismissal does not prevent the complainant from 8
making a fresh complaint under section 173.84 9
(4) In this section-- 10
"previous complaint" includes-- 11
(a) a complaint under the Queensland Law Society Act 1952 if the 12
complaint was made under that Act before the commencement of 13
this definition; and 14
(b) a complaint made to the bar association if the complaint was 15
made before that commencement. 16
177 Withdrawal of complaints 17
(1) The complainant may withdraw the complaint by notice to the 18
commissioner. 19
(2) If the notice about the withdrawal is oral, the commissioner must do 20
each of the following unless the complainant gives the commissioner 21
written confirmation of the withdrawal-- 22
(a) make a written record of the withdrawal; 23
(b) give the complainant a copy of the record, or send a copy of it 24
addressed to the complainant at the complainant's address last 25
known to the commissioner. 26
(3) However, the withdrawal of the complaint does not prevent action 27
being taken on a complaint by another person or by the commissioner on 28
the commissioner's own initiative. 29
(4) In this section-- 30
"withdrawal" of a complaint includes withdrawal of some only or part 31
only of the matters that form the subject of the complaint. 32
84 Section 173 (Making a complaint)
s 178 121 s 179
Legal Profession Bill 2003
178 Commissioner may delay dealing with complaint 1
(1) The commissioner may delay dealing with a complaint for 1 or more 2
of the following reasons-- 3
(a) the complainant has asked for a delay and the commissioner 4
considers the request reasonable; 5
(b) for a complaint about an Australian lawyer--the lawyer is under 6
investigation in this jurisdiction or another jurisdiction and, 7
under this Act or a corresponding law of that other jurisdiction, 8
the lawyer's name may be removed from the local roll or 9
interstate roll; 10
(c) the matter the subject of the complaint is being or about to be 11
dealt with in another way; 12
(d) the commissioner considers that it is in the public interest to 13
delay dealing with the complaint. 14
(2) Subsection (1) applies despite sections 15 and 170.85 15
PART 3--MEDIATION FOR COMPLAINTS INVOLVING 16
CONSUMER DISPUTE 17
179 Definition for ch 3, pt 3 18
In this part-- 19
"consumer dispute" means a dispute between a person and a law practice 20
about conduct of-- 21
(a) an Australian lawyer to the extent the commissioner considers 22
that the dispute does not involve an issue of unsatisfactory 23
professional conduct or professional misconduct; or 24
(b) a law practice employee to the extent the commissioner considers 25
that the dispute does not involve an issue of misconduct in 26
relation to the relevant practice. 27
85 Sections 15 (Timing for doing things) and 170 (Duty to deal with complaints
efficiently and expeditiously)
s 180 122 s 181
Legal Profession Bill 2003
180 Mediation of complaint involving consumer dispute solely 1
(1) This section applies to a complaint that involves a consumer dispute. 2
(2) The commissioner may-- 3
(a) suggest to the complainant and the Australian lawyer or law 4
practice that they enter into a process of mediation; and 5
(b) refer the matter to the relevant regulatory authority to see if the 6
authority may help in the mediation or otherwise in the 7
resolution of the complaint. 8
(3) The commissioner is then not required to take further action on the 9
complaint. 10
181 Mediation of hybrid complaint 11
(1) This section applies to a complaint that involves both of the 12
following-- 13
(a) a consumer dispute; 14
(b) an issue of unsatisfactory professional conduct or professional 15
misconduct by an Australian lawyer or of misconduct by a law 16
practice employee in relation to the relevant practice. 17
(2) The commissioner may-- 18
(a) suggest to the complainant and the Australian lawyer or law 19
practice that they enter into a process of mediation; and 20
(b) refer the matter to the relevant regulatory authority to see if the 21
authority may help in the mediation or otherwise in the 22
resolution of the complaint. 23
(3) The complaint must continue to be dealt with under this chapter after 24
or during the mediation or attempt at mediation. 25
s 182 123 s 183
Legal Profession Bill 2003
PART 4--STARTING INVESTIGATIONS BASED ON 1
COMPLAINT OR WITHOUT A COMPLAINT 2
182 Referral by commissioner to law society or bar association 3
(1) This section applies if-- 4
(a) a complaint is received by the commissioner and is not dismissed 5
under section 175(2)(b) or 17686 or withdrawn under 6
section 177;87 or 7
(b) a complaint is withdrawn under section 177 but the 8
commissioner has continued to investigate the matter on the 9
commissioner's own initiative; or 10
(c) the commissioner believes that an investigation about a matter 11
(an "investigation matter") should be started into the conduct of 12
an Australian lawyer or a law practice employee. 13
(2) The commissioner may refer the complaint or the investigation 14
matter to the relevant regulatory authority. 15
(3) The referral may state a date by which the regulatory authority is to 16
report to the commissioner about the complaint or investigation matter and 17
directions to the authority about the way in which the authority is to 18
conduct the investigation. 19
(4) The commissioner may extend the date for the report but may require 20
the authority to give the commissioner an interim report. 21
(5) At any time while the regulatory authority is carrying out its 22
investigation, including after the commissioner is given an interim report, 23
the commissioner may give directions or further directions about the way 24
in which the authority is to conduct the investigation. 25
183 Commissioner investigating a complaint or investigation matter 26
(1) The commissioner must investigate a complaint or an investigation 27
matter if the commissioner is satisfied-- 28
86 Section 175 (Complaints made over 3 years after conduct concerned) or
176 (Summary dismissal of complaints)
87 Section 177 (Withdrawal of complaint)
s 184 124 s 184
Legal Profession Bill 2003
(a) it is inconsistent with the public interest for the relevant 1
regulatory authority to investigate the complaint or investigation 2
matter; or 3
(b) it is in the public interest for the commissioner to investigate the 4
complaint or investigation matter. 5
(2) Also, the commissioner must investigate a complaint or investigation 6
matter that is not mentioned in subsection (1) but is not referred to a 7
regulatory authority under section 182(2).88 8
(3) If the commissioner considers it appropriate to start or continue an 9
investigation into a complaint or investigation matter that was referred to a 10
a regulatory authority under section 182(2), the commissioner may do so 11
by giving a written notice of the commissioner's decision to the authority. 12
(4) A regulatory authority given a notice under subsection (3) must give 13
to the commissioner all documents relating to the investigation into the 14
complaint or investigation matter. 15
184 Australian lawyer to be notified of complaint or 16
investigation matter 17
(1) The entity carrying out an investigation as mentioned in section 182 18
or 18389 must ensure that written notice of the following is given to the 19
Australian lawyer about whom, or the law practice about which, the 20
complaint is made or an investigation matter relates-- 21
(a) the making of the complaint or investigation matter; 22
(b) the nature of the complaint or investigation matter; 23
(c) the identity of the complainant; 24
(d) action taken by the entity in relation to the complaint or 25
investigation matter before giving the notice. 26
(2) Also, the notice must advise the Australian lawyer or law practice 27
that the lawyer or law practice may make submissions to the entity by a 28
stated date that is reasonable. 29
88 Section 182 (Referral by commissioner to law society or bar association)
89 Section 182 (Referral by commissioner to law society or bar association) or
183 (Commissioner investigating a complaint or investigation matter)
s 185 125 s 185
Legal Profession Bill 2003
(3) Despite section 15,90 the entity may delay giving the Australian 1
lawyer or law practice notice under subsection (1) until the entity-- 2
(a) considers notice of the complaint or investigation matter will not 3
prejudice the investigation of the complaint or investigation 4
matter; or 5
(b) the complainant complies with a notice given under 6
section 174(1).91 7
185 Role of law society or bar association 8
(1) If a complaint or investigation matter is referred to a regulatory 9
authority, it must investigate the complaint or investigation matter and 10
report to the commissioner about the complaint or matter by the stated date 11
or a later date stated in an extension. 12
(2) For subsection (1), the authority may investigate a complaint or 13
investigation matter by an investigator investigating the complaint or 14
matter and presenting evidence to the authority for its consideration and 15
report. 16
(3) However, the investigator must be an investigator appointed because 17
of a nomination by the authority. 18
(4) The report must-- 19
(a) be in an approved form approved by the commissioner; and 20
(b) include a recommendation about whether proceedings before a 21
disciplinary body in relation to the complaint or investigation 22
matter should be started. 23
(5) Without limiting the matters to which the authority may have regard 24
when making a recommendation as mentioned in subsection (4)(b), the 25
authority may have regard to the following-- 26
(a) the public interest in the complaint or investigation matter being 27
heard and decided by a disciplinary body; 28
(b) the likelihood of a finding of unsatisfactory professional conduct 29
or professional misconduct against the Australian lawyer or of 30
misconduct of the law practice employee in relation to the 31
relevant practice; 32
90 Section 15 (Timing for doing things)
91 Section 174 (Further information and verification)
s 186 126 s 186
Legal Profession Bill 2003
(c) other actions or proceedings that may have started or finished in 1
relation to the conduct the subject of the complaint or 2
investigation matter or to the same lawyer or law practice 3
employee. 4
(6) If the authority recommends making a discipline application, the 5
report must also include a draft of the application and the evidence to 6
support the application. 7
186 Powers for investigations 8
(1) The entity carrying out an investigation as mentioned in section 182 9
or 18392 may, for the investigation-- 10
(a) require an Australian lawyer who is the subject of the 11
investigation-- 12
(i) to give the entity, in writing or personally, within a stated 13
reasonable time a full explanation of the matter being 14
investigated; or 15
(ii) to appear before the entity at a stated reasonable time and 16
place; or 17
(iii) to produce to the entity within a stated reasonable time any 18
document in the lawyer's custody, possession or control that 19
the lawyer is entitled at law to produce; or 20
(b) engage a costs assessor to report on the reasonableness of a 21
lawyer's bill of costs. 22
(2) The lawyer must comply with a requirement under subsection (1)(a). 23
Maximum penalty--50 penalty units. 24
(3) If the lawyer fails to comply with the requirement, the entity may 25
give the lawyer written notice that if the failure continues for a further 14 26
days after the notice is given the lawyer may be dealt with for professional 27
misconduct. 28
(4) If notice under subsection (3) is given and the failure continues for 29
the 14 day period-- 30
92 Section 182 (Referral by commissioner to law society or bar association) or
183 (Commissioner investigating a complaint or investigation matter)
s 187 127 s 187
Legal Profession Bill 2003
(a) the lawyer is taken to have committed professional misconduct, 1
unless the lawyer has a reasonable excuse for not complying with 2
the requirement within the period; and 3
(b) the entity may bring a charge of professional misconduct against 4
the lawyer. 5
(5) In a hearing before the tribunal about a charge of professional 6
misconduct, a copy of the notice mentioned in subsection (3) and any 7
enclosures with the notice are evidence of the matters in the notice and the 8
enclosures. 9
(6) A lawyer may refuse to give the entity an explanation of a matter 10
being investigated if-- 11
(a) the lawyer satisfies the entity that to give the explanation would 12
contravene, or invalidate, a policy for professional indemnity 13
insurance held by the lawyer; or 14
(b) the explanation would incriminate the lawyer. 15
187 Submissions by Australian lawyer 16
(1) The Australian lawyer or law practice in relation to a complaint or 17
investigation matter who is given a notice under section 18493 may, by the 18
date stated in that notice, make written submissions to the commissioner or 19
the stated relevant regulatory authority about the complaint or investigation 20
matter. 21
(2) At the request of the lawyer or law practice or the authority, the 22
commissioner may substitute a later date by which submissions may be 23
made. 24
(3) The commissioner or authority must consider the submissions made 25
before the stated date or any later date before deciding whether to make a 26
discipline application relating to the complaint or investigation matter. 27
93 Section 184 (Australian lawyer to be notified of complaint or investigation matter)
s 188 128 s 190
Legal Profession Bill 2003
188 Referral of matters for cost assessment 1
For the purpose of investigating a complaint, the entity carrying out an 2
investigation as mentioned in section 182 or 18394 may refer a matter to a 3
costs assessor for assessment of costs charged or claimed by a law practice. 4
PART 5--DISCIPLINE 5
Division 1--Decision of commissioner 6
189 Decision of commissioner after investigation 7
As the commissioner considers appropriate in relation to a complaint or 8
investigation matter that has been or continues to be investigated, the 9
commissioner may start proceedings under this part with a disciplinary 10
body. 11
190 Dismissal of complaint 12
(1) The commissioner may dismiss the complaint or investigation matter 13
if satisfied that-- 14
(a) there is no reasonable likelihood of a finding by a disciplinary 15
body of-- 16
(i) for an Australian lawyer--either unsatisfactory professional 17
conduct or professional misconduct; or 18
(ii) for a law practice employee--misconduct in relation to the 19
relevant practice; or 20
(b) it is in the public interest to do so. 21
(2) The commissioner must give the lawyer or law practice and any 22
complainant written notice about the commissioner's decision to dismiss 23
the complaint or investigation matter. 24
94 Section 182 (Referral by commissioner to law society or bar association) or 183
(Commissioner investigating a complaint or investigation matter)
s 191 129 s 194
Legal Profession Bill 2003
191 Record of decision 1
The commissioner must cause a record of his or her decision about a 2
complaint or an investigation matter, together with reasons for the decision, 3
to be kept for each complaint or investigation matter dealt with under this 4
division. 5
Division 2--Proceedings in disciplinary body 6
192 Starting proceeding before a disciplinary body 7
(1) The commissioner may apply-- 8
(a) to the tribunal for an order against an Australian lawyer in 9
relation to a complaint against the lawyer or an investigation 10
matter; or 11
(b) to the committee for an order-- 12
(i) against an Australian lawyer in relation to a complaint 13
against the lawyer or an investigation matter; or 14
(ii) against a law practice employee in relation to a complaint 15
against the employee or an investigation matter involving 16
the employee. 17
(2) An application under subsection (1) is a "discipline application". 18
193 Hearings 19
The disciplinary body must hear and decide each allegation stated in the 20
discipline application. 21
194 Variation of discipline application 22
(1) The disciplinary body may, on the commissioner's application, vary a 23
discipline application by omitting allegations or including additional 24
allegations, if the body is satisfied that it is reasonable to do so having 25
regard to all the circumstances. 26
(2) Without limiting subsection (1), when considering whether or not it 27
is reasonable to vary a discipline application, the disciplinary body must 28
have regard to whether varying the application will affect the fairness of the 29
proceedings. 30
s 195 130 s 196
Legal Profession Bill 2003
(3) A variation to include an additional allegation is not precluded 1
merely because the alleged conduct happened more than 3 years before the 2
variation is made, including conduct that happened before the 3
commencement of this section. 4
195 Joinder 5
A disciplinary body may, subject to its rules, order the joinder of more 6
than 1 discipline application involving the same or different Australian 7
lawyers or law practice employees. 8
Division 3--Decisions of disciplinary bodies 9
196 Decisions of tribunal about an Australian lawyer 10
(1) This section applies if, after the tribunal has completed a hearing of a 11
discipline application in relation to a complaint or an investigation matter 12
against an Australian lawyer, the tribunal is satisfied that the Australian 13
lawyer is guilty of unsatisfactory professional conduct or professional 14
misconduct. 15
(2) The tribunal may, under this subsection, make 1 or more of the 16
following in a way it considers appropriate-- 17
(a) an order recommending that the name of the Australian lawyer 18
be removed from the local roll; 19
(b) an order that the Australian lawyer's local practising certificate 20
be cancelled or suspended; 21
(c) an order that a local practising certificate not be issued to the 22
Australian lawyer until the end of a stated period; 23
(d) an order that-- 24
(i) imposes stated conditions on the Australian lawyer's 25
practising certificate issued or to be issued under this Act; 26
and 27
(ii) imposes the conditions for a stated period; and 28
(iii) specifies the time, if any, after which the Australian lawyer 29
may apply to the tribunal for the conditions to be amended 30
or removed; 31
s 196 131 s 196
Legal Profession Bill 2003
(e) an order publicly reprimanding the Australian lawyer or, if there 1
are special circumstances, privately reprimanding the lawyer; 2
(f) an order that no law practice in this jurisdiction may, for a period 3
stated in the order of not more than 5 years-- 4
(i) employ or continue to employ the Australian lawyer in a law 5
practice in this jurisdiction; or 6
(ii) employ or continue to employ the Australian lawyer in this 7
jurisdiction unless the conditions of employment are subject 8
to conditions stated in the order. 9
(3) The tribunal may, under this subsection, make 1 or more of the 10
following-- 11
(a) an order recommending that the name of the Australian lawyer 12
be removed under a corresponding law from an interstate roll; 13
(b) an order that the Australian lawyer's interstate practising 14
certificate be cancelled or suspended under a corresponding law; 15
(c) an order that an interstate practising certificate not be, under a 16
corresponding law, granted to the Australian lawyer until the end 17
of a stated period; 18
(d) an order that-- 19
(i) stated conditions be imposed under a corresponding law on 20
the Australian lawyer's interstate practising certificate; and 21
(ii) the conditions be imposed for a stated period; and 22
(iii) specifies the time, if any, after which the Australian lawyer 23
may apply under the corresponding law for the conditions to 24
be amended or removed; 25
(e) an order that the Australian lawyer's registration under a 26
corresponding law as a foreign lawyer under that law be 27
cancelled. 28
(4) The tribunal may, under this subsection, make 1 or more of the 29
following-- 30
(a) an order that the Australian lawyer pay a penalty of a stated 31
amount, not exceeding $100 000; 32
(b) a compensation order; 33
(c) an order that the Australian lawyer undertake and complete a 34
stated course of further legal education; 35
s 197 132 s 197
Legal Profession Bill 2003
(d) an order that, for a stated period, the Australian lawyer engage in 1
legal practice under supervision as stated in the order; 2
(e) an order that the Australian lawyer do or refrain from doing 3
something in connection with the lawyer engaging in legal 4
practice; 5
(f) an order that the Australian lawyer stop accepting instructions as 6
a public notary in relation to notarial services; 7
(g) an order that engaging in legal practice by the Australian lawyer 8
is to be managed for a stated period in a stated way or subject to 9
stated conditions; 10
(h) an order that engaging in legal practice by the Australian lawyer 11
is to be subject to periodic inspection by a person nominated by 12
the relevant regulatory authority for a stated period; 13
(i) an order that the Australian lawyer seek advice from a stated 14
person in relation to the lawyer's management of engaging in 15
legal practice. 16
(5) To remove any doubt, it is declared that the tribunal may make any 17
number of orders mentioned in any or all of subsections (2), (3) and (4). 18
(6) Also, the tribunal may make ancillary orders, including an order for 19
payment by the Australian lawyer of expenses associated with orders under 20
subsection (4), as assessed in or under the order or as agreed. 21
(7) The tribunal may find an individual guilty of unsatisfactory 22
professional conduct even though the discipline application alleged 23
professional misconduct. 24
197 Orders to be filed in Supreme Court and information notices to be 25
given to parties etc. 26
(1) This section applies to the Brisbane registrar after the tribunal makes 27
an order under sections 196 or 202 or part 695 in relation to a discipline 28
application, including a discipline application that the tribunal dealt with 29
on an appeal from the committee under section 209.96 30
(2) The Brisbane registrar must-- 31
95 Sections 196 (Decisions of tribunal about an Australian lawyer) and 202 (Costs) or
part 6 (Compensation orders)
96 Section 209 (Appeal to tribunal against committee's decision)
s 198 133 s 198
Legal Profession Bill 2003
(a) file the order in a Supreme Court registry; and 1
(b) give the parties in relation to the discipline application a copy of 2
the order and an information notice about the final decision about 3
the discipline application; and 4
(c) give the Minister a copy of the order. 5
(3) On being filed, the order is an order of the Supreme Court and may 6
be enforced accordingly. 7
198 Decisions of committee about discipline application 8
(1) This section applies if, after a committee has completed a hearing of 9
a discipline application in relation to a complaint or an investigation matter 10
against an Australian lawyer or a law practice employee, the committee is 11
satisfied-- 12
(a) for the lawyer--that the lawyer is guilty of unsatisfactory 13
professional conduct; or 14
(b) for the employee--that the employee is guilty of misconduct in 15
relation to the relevant practice. 16
(2) The committee may make 1 or more of the following in relation to an 17
Australian lawyer-- 18
(a) an order publicly reprimanding the Australian lawyer or, if there 19
are special circumstances, privately reprimanding the lawyer; 20
(b) an order that the Australian lawyer pay a penalty of a stated 21
amount, not exceeding $10 000; 22
(c) a compensation order; 23
(d) an order that the Australian lawyer do or refrain from doing 24
something in connection with the lawyer engaging in legal 25
practice; 26
(e) an order that engaging in legal practice by the Australian lawyer 27
is to be managed for a stated period in a stated way or subject to 28
stated conditions; 29
(f) an order that engaging in legal practice by the Australian lawyer 30
is to be subject to periodic inspection by a person nominated by 31
the relevant regulatory authority for a stated period; 32
s 199 134 s 199
Legal Profession Bill 2003
(g) an order that the Australian lawyer seek advice from a person 1
nominated by the relevant regulatory authority in relation to the 2
lawyer's management of engaging in legal practice. 3
(3) Also, the committee may make ancillary orders, including an order 4
for payment by the Australian lawyer of expenses associated with orders 5
under subsection (2), as assessed in or under the order or as agreed. 6
(4) For a law practice employee, the committee may order that no law 7
practice in this jurisdiction may, for a period stated in the order of not more 8
than 5 years-- 9
(a) employ or continue to employ the employee in a law practice in 10
relation to the relevant practice in this jurisdiction; or 11
(b) employ or continue to employ the employee in this jurisdiction 12
unless the conditions of employment are subject to conditions 13
stated in the order. 14
(5) In this section-- 15
"law practice employee" means an individual who is or was a law practice 16
employee. 17
199 Orders to be filed in Supreme Court and information notices to be 18
given to parties etc. 19
(1) This section applies after the committee makes an order under 20
sections 198 or 202 or part 697 in relation to a discipline application. 21
(2) The commissioner must-- 22
(a) give the other party in relation to the discipline application a 23
copy of the order and an information notice about the final 24
decision about the discipline application; and 25
(b) give the Minister a copy of the order. 26
(3) If there is no appeal from the decision within the 28 days allowed for 27
the appeal, the commissioner must file the order in a Supreme Court 28
registry. 29
(4) On being filed, the order is an order of the Supreme Court and may 30
be enforced accordingly. 31
97 Sections 198 (Decisions of committee about discipline application) and 202 (Costs)
or part 6 (Compensation orders)
s 200 135 s 202
Legal Profession Bill 2003
200 Compliance with decisions 1
(1) To the extent an entity has a function or power under this Act relevant 2
to an order of a disciplinary body, the entity must-- 3
(a) give effect to an order made under section 196(2);98 and 4
(b) enforce an order made under section 196(4) or (6) or 198(2) 5
or (3) so far as the order relates to the legal practice of, or other 6
matters affecting, the Australian lawyer concerned in this 7
jurisdiction. 8
(2) The commissioner must ensure that entities having functions or 9
powers under a corresponding law of another jurisdiction are notified of the 10
making and contents of-- 11
(a) an order of the tribunal made under section 196(3) in relation to 12
that corresponding law; and 13
(b) an order of the body made under section 196(4) or (6) or 198(2) 14
or (3) so far as the order relates to the legal practice of, or other 15
matters affecting, the Australian lawyer concerned in that other 16
jurisdiction. 17
(3) If the tribunal makes an order recommending that the name of an 18
Australian lawyer be removed from the local roll, the Brisbane registrar 19
must remove, or arrange with another registrar for the removal of, the name 20
from the local roll. 21
201 Interim order 22
A disciplinary body may make an interim order as it considers 23
appropriate before making its final decision about a discipline application. 24
202 Costs 25
(1) A disciplinary body must make an order requiring an individual 26
whom it has found guilty to pay costs, including costs of the commissioner 27
and the complainant, unless the disciplinary body is satisfied exceptional 28
circumstances exist. 29
(2) A disciplinary body may make an order requiring an individual 30
whom it has not found guilty to pay costs, including costs of the 31
98 Section 196 (Decisions of tribunal about an Australian lawyer)
s 203 136 s 203
Legal Profession Bill 2003
commissioner and the complainant, if the disciplinary body is satisfied 1
that-- 2
(a) the sole or principal reason why the proceedings were started in 3
the disciplinary body was the individual's failure to cooperate 4
with the commissioner or a relevant regulatory authority; or 5
(b) there is some other reason warranting the making of an order in 6
the particular circumstances. 7
(3) A disciplinary body may make an order requiring the commissioner 8
to pay costs, but may do so only if it is satisfied that-- 9
(a) the Australian lawyer or law practice employee is not guilty; and 10
(b) the body considers that special circumstances warrant the 11
making of the order. 12
(4) An order for costs-- 13
(a) may be for a stated amount; or 14
(b) may be for an unstated amount but must specify the basis on 15
which the amount must be decided. 16
(5) An order for costs may specify the terms on which costs must be 17
paid. 18
(6) In this section-- 19
"guilty" means guilty of unsatisfactory professional conduct or 20
professional misconduct, or of misconduct in relation to a relevant 21
practice, as mentioned in section 196(1) or 198(1). 22
203 Other remedies not affected 23
This part does not affect any other remedy available to a complainant. 24
s 204 137 s 205
Legal Profession Bill 2003
PART 6--COMPENSATION ORDERS 1
Division 1--Preliminary 2
204 Meaning of "compensation order" 3
A "compensation order" is 1 or more of the following-- 4
(a) an order that a law practice can not recover or must repay the 5
whole or a stated part of the amount charged to a complainant by 6
the law practice for stated legal services; 7
(b) an order discharging a lien possessed by a law practice in relation 8
to a stated document or class of documents; 9
(c) an order that a law practice carry out stated work for a stated 10
person without a fee or for a stated fee; 11
(d) an order that a law practice pay to a complainant an amount by 12
way of compensation for pecuniary loss because of conduct that 13
has been found to be-- 14
(i) unsatisfactory professional conduct or professional 15
misconduct of an Australian lawyer involved in the relevant 16
practice; or 17
(ii) misconduct of a law practice employee in relation to the 18
relevant practice. 19
Division 2--Compensation orders 20
205 Compensation order relating to pecuniary loss 21
A disciplinary body may not make a compensation order as mentioned 22
in section 204(d) for a loss for which the relevant complainant has received 23
or is entitled to receive-- 24
(a) compensation under an order that has been made by a court; or 25
(b) compensation from a fidelity fund of any jurisdiction, if a claim 26
for payment from the fund has been made or decided. 27
s 206 138 s 208
Legal Profession Bill 2003
206 Effect of compensation order 1
(1) A compensation order preventing recovery of an amount of the type 2
mentioned in section 204(a) is effective even if proceedings to recover the 3
amount, or any part of it, have been started by or for the law practice. 4
(2) A compensation order requiring repayment of an amount of the type 5
mentioned in section 204(a) is effective even if a court has ordered 6
payment of the amount, or an amount of which it is part, in proceedings 7
brought by or for the law practice. 8
(3) A compensation order requiring payment of an amount exceeding 9
$7 500 by way of monetary compensation of the type mentioned in 10
section 204(d) is not to be made unless the complainant and the law 11
practice both consent to the order. 12
207 Other remedies not affected 13
The recovery of an amount awarded by a compensation order does not 14
affect any other remedy available to a complainant, but an amount so 15
awarded must be taken into account in any other proceedings by or for the 16
complainant in relation to the same loss. 17
PART 7--APPEALS FROM DECISIONS OF 18
DISCIPLINARY BODIES 19
208 Appeal may be made to Court of Appeal from tribunal's decision 20
(1) The following may appeal a decision of the tribunal to the Court of 21
Appeal-- 22
(a) a party dissatisfied with the tribunal's decision; 23
(b) the Minister. 24
(2) The appeal is by way of a rehearing on the evidence given in the 25
matter before the tribunal. 26
(3) However, subsection (2) does not prevent the Court of Appeal from 27
giving leave to introduce further evidence, whether fresh, additional or 28
substituted, if the court considers the further evidence may be material to 29
the appeal. 30
s 209 139 s 210
Legal Profession Bill 2003
(4) The appeal must be made-- 1
(a) if the appeal is being made by the Minister--within 28 days after 2
a copy of the tribunal's order is given to the Minister; or 3
(b) otherwise--within 28 days after the tribunal's order is made. 4
209 Appeal to tribunal against committee's decision 5
(1) A party dissatisfied with a final decision of the committee about a 6
discipline application may appeal to the tribunal against the decision within 7
28 days after the date the information notice mentioned in section 199(2)99 8
is given to the party. 9
(2) If a party appeals to the tribunal against the decision of the 10
committee, the appeal is to be by way of rehearing, and fresh evidence or 11
evidence in addition to or in substitution for the evidence before the 12
committee may be given on the appeal. 13
(3) On an appeal under this section, the tribunal may make an order as it 14
considers appropriate to decide the discipline application. 15
210 Appeal to Court of Appeal in relation to a decision of committee 16
(1) This section applies to a decision of the committee that, under 17
section 199(4), has become an order of the Supreme Court. 18
(2) A person may appeal against the order by appealing to the Court of 19
Appeal. 20
(3) The appeal is by way of a rehearing on the evidence given in the 21
matter before the tribunal. 22
(4) However, subsection (3) does not prevent the Court of Appeal from 23
giving leave to introduce further evidence, whether fresh, additional or 24
substituted, if the court considers the further evidence may be material to 25
the appeal. 26
99 Section 199 (Orders to be filed in Supreme Court and information notices to be
given to parties etc.)
s 211 140 s 212
Legal Profession Bill 2003
PART 8--PUBLICATION OF DISCIPLINARY ACTIONS 1
211 Definition for ch 3, pt 8 2
In this part-- 3
"disciplinary action" means-- 4
(a) the making of an order by a court or the tribunal that finds an 5
Australian lawyer guilty of professional misconduct under this 6
Act or under a corresponding law; or 7
(b) any of the following actions under this Act or under a 8
corresponding law, following a finding by a court or the tribunal 9
of professional misconduct by an Australian lawyer-- 10
(i) the removal of the name of the Australian lawyer from a 11
local roll or interstate roll; 12
(ii) the cancellation or suspension of the practising certificate of 13
the Australian lawyer; 14
(iii) the refusal to issue a practising certificate to the Australian 15
lawyer; or 16
(c) the making of an order by the committee under section 198(4). 17
212 Discipline register 18
(1) The commissioner must keep a register (the "discipline register") 19
about the following-- 20
(a) disciplinary action taken under this Act against an Australian 21
lawyer or in relation to a law practice employee; 22
(b) disciplinary action taken under a corresponding law against an 23
Australian lawyer who is or was admitted or practising in this 24
jurisdiction when the conduct that is the subject of the 25
disciplinary action happened. 26
(2) The discipline register must include-- 27
(a) the full name of the individual against whom the disciplinary 28
action was taken and the law practice who employs or employed 29
the individual; and 30
(b) the individual's business address or former business address; and 31
s 213 141 s 214
Legal Profession Bill 2003
(c) the individual's home jurisdiction if the individual has or had a 1
practising certificate; and 2
(d) particulars of the disciplinary action taken; and 3
(e) other particulars prescribed under a regulation. 4
(3) The discipline register may-- 5
(a) be kept in a form decided by the commissioner, including 6
forming part of other registers; and 7
(b) include other information, including, for example, the date and 8
jurisdiction of the individual's first admission as an Australian 9
lawyer. 10
(4) The discipline register must be available for public inspection on-- 11
(a) the internet site of the commissioner; or 12
(b) an internet site identified on the internet site of the commissioner. 13
(5) Information recorded in the discipline register may be given to 14
members of the public in another way approved by the commissioner. 15
(6) The commissioner may cause any error in or omission from the 16
discipline register to be corrected. 17
(7) The requirement to keep the discipline register applies only in 18
relation to disciplinary action taken after the commencement of this 19
section, but details relating to earlier disciplinary action may be included in 20
the register. 21
213 Other means of publicising disciplinary action 22
(1) The commissioner may publicise disciplinary action taken against an 23
individual in any way the commissioner considers appropriate. 24
(2) Nothing in this section affects the provisions of this part relating to 25
the discipline register. 26
214 Disciplinary action taken because of infirmity, injury or illness 27
(1) Disciplinary action taken against an individual because of infirmity, 28
injury or mental or physical illness is not to be recorded in the discipline 29
register or otherwise publicised under this part. 30
(2) Subsection (1) does not apply if the disciplinary action involves-- 31
s 215 142 s 216
Legal Profession Bill 2003
(a) the cancellation or suspension of the individual's practising 1
certificate; or 2
(b) a refusal to issue a practising certificate to the individual or to 3
renew the individual's practising certificate; or 4
(c) a regulation of the individual's right to engage in legal practice; 5
but in that case the reason for the disciplinary action, and any other 6
information relating to the infirmity, injury or mental or physical illness, is 7
not to be recorded in the register or otherwise publicised under this part 8
without the individual's consent. 9
215 Quashing of disciplinary action 10
(1) If disciplinary action is quashed on appeal or review, any reference to 11
that disciplinary action must be removed from the discipline register. 12
(2) If disciplinary action is quashed on appeal or review after the action 13
was publicised by the commissioner under section 213,100 the result of the 14
appeal or review must be publicised in the same way by the commissioner. 15
216 Liability for publicising disciplinary action 16
(1) No liability is incurred by a protected person in relation to anything 17
done or omitted to be done in good faith for the purpose of-- 18
(a) publicising disciplinary action taken against an individual or 19
relating to a law practice; or 20
(b) performing the functions or exercising the powers of the 21
commissioner under this part; or 22
(c) keeping, publishing or enabling access to the discipline register. 23
(2) Without limiting subsection (1), no liability, including liability in 24
defamation, is incurred by a person publishing in good faith-- 25
(a) information about disciplinary action-- 26
(i) recorded in the discipline register; or 27
(ii) otherwise publicised by the commissioner under this part; 28
or 29
100 Section 213 (Other means of publicising disciplinary action)
s 217 143 s 217
Legal Profession Bill 2003
(b) matter containing that information; or 1
(c) a fair report or summary of that information. 2
(3) In this section-- 3
"protected person" means-- 4
(a) the State; or 5
(b) the commissioner; or 6
(c) a regulatory authority; or 7
(d) a person responsible for keeping a record about disciplinary 8
action, or information about disciplinary action, under a 9
corresponding law; or 10
(e) an internet service provider or internet content host; or 11
(f) a person acting at the direction of the State or any person or body 12
mentioned in paragraphs (b) to (d). 13
217 General provisions about disclosure of information 14
(1) The provisions of this part are subject to any order made by any of 15
the following if the order regulates the disclosure of information-- 16
(a) a disciplinary body in relation to disciplinary action taken under 17
this part; 18
(b) a corresponding tribunal in relation to disciplinary action taken 19
under a corresponding law; 20
(c) a court of this or another jurisdiction. 21
(2) However, despite the order mentioned in subsection (1), the name 22
and other identifying particulars of the individual against whom the 23
disciplinary action was taken and the law practice who employs or 24
employed the individual, and the kind of disciplinary action taken-- 25
(a) must be recorded in the discipline register; and 26
(b) may be otherwise publicised under this part. 27
(3) Section 228101 is subject to this part. 28
101 Section 228 (Offence of improper disclosure of information)
s 218 144 s 220
Legal Profession Bill 2003
PART 9--INTER-JURISDICTIONAL PROVISIONS 1
218 Protocols 2
(1) The commissioner may enter into arrangements ("protocols") with 3
corresponding authorities about investigating and dealing with conduct that 4
appears to have happened in more than 1 jurisdiction. 5
(2) In particular, the protocols may provide for-- 6
(a) providing principles to help in deciding where conduct happens, 7
either generally or in stated classes of cases; and 8
(b) giving and receiving consent for conduct happening in a 9
jurisdiction to be dealt with under a law of another jurisdiction; 10
and 11
(c) the procedures to be adopted for requesting and conducting the 12
investigation of an aspect of complaints or investigation matters 13
under this part. 14
219 Request to another jurisdiction to investigate complaint or 15
investigation matter 16
(1) The commissioner may request a corresponding authority to arrange 17
for the investigation of an aspect of a complaint or an investigation matter 18
that is being dealt with by the commissioner and to give the commissioner 19
a report on the result of the investigation. 20
(2) A report on the result of the investigation received from-- 21
(a) the corresponding authority; or 22
(b) a person or body authorised by the corresponding authority to 23
conduct the investigation; 24
may be used and considered by the commissioner and a disciplinary body 25
in the course of dealing with the discipline application under this chapter. 26
220 Request from another jurisdiction to investigate complaint 27
(1) This section applies in relation to a request received by the 28
commissioner from a corresponding authority to arrange for the 29
investigation of an aspect of a complaint or an investigation matter being 30
s 221 145 s 222
Legal Profession Bill 2003
dealt with under a corresponding law, including a complaint under that law 1
that is made by the corresponding authority. 2
(2) The commissioner may conduct the investigation or authorise 3
another entity to conduct it. 4
(3) The provisions of this chapter relating to the investigation of a 5
complaint or investigation matter apply, with any necessary changes, in 6
relation to the investigation that is the subject of the request. 7
(4) The commissioner or other authority must give a report on the result 8
of the investigation to the corresponding authority. 9
221 Sharing of information with corresponding authorities 10
(1) The commissioner may give information to a corresponding 11
authority about-- 12
(a) a complaint or investigation matter made under this chapter; and 13
(b) any action taken in relation to a complaint or investigation matter 14
made under this chapter, including a decision of a disciplinary 15
body in relation to a discipline application. 16
(2) However, the commissioner must enter into an arrangement with the 17
corresponding authority before providing information to the corresponding 18
authority. 19
(3) The arrangement must include the following-- 20
(a) the purposes for which the corresponding authority is given the 21
information; 22
(b) how the corresponding authority will protect the privacy of 23
information. 24
222 Cooperation with corresponding authorities 25
(1) When dealing with a complaint or investigation matter relating to an 26
Australian lawyer or law practice, the commissioner may consult and 27
cooperate with another person or body who or which has powers under the 28
corresponding law of another jurisdiction in relation to the Australian 29
lawyer or law practice. 30
(2) For subsection (1), the commissioner and the other person or body 31
may exchange information concerning the complaint or investigation 32
matter. 33
s 223 146 s 225
Legal Profession Bill 2003
223 Compliance with orders made under corresponding laws 1
(1) Entities having relevant functions or powers under this Act must-- 2
(a) give effect to any order of a corresponding tribunal or other 3
corresponding authority made under a corresponding law in 4
relation to powers exercisable under this Act; and 5
(b) enforce any order of a corresponding tribunal or other 6
corresponding authority made under a corresponding law so far 7
as the order relates to the legal practice of the Australian lawyer 8
or law practice concerned in this jurisdiction. 9
(2) If a corresponding tribunal makes an order recommending that the 10
name of an Australian lawyer be removed from the roll of this jurisdiction 11
or of rolls of other jurisdictions, the Brisbane registrar must remove, or 12
arrange with another registrar for the removal of, the lawyer's name from 13
the local roll. 14
(3) If a corresponding tribunal makes an order that a local Australian 15
lawyer pay a penalty, or pay an amount under a compensation order under 16
corresponding law, a copy of the order may be filed in the Supreme Court 17
and the order may be enforced as if it were an order of the court. 18
224 Other powers or functions not affected 19
Nothing in this part affects any functions or powers that a person or body 20
has apart from this part. 21
PART 10--MISCELLANEOUS 22
225 Information about complaints procedure 23
The commissioner must-- 24
(a) produce information about the making of complaints and the 25
procedure for dealing with complaints; and 26
(b) ensure that information is available to members of the public on 27
request; and 28
(c) give help to members of the public in making complaints. 29
s 226 147 s 228
Legal Profession Bill 2003
226 Performance criteria 1
(1) The commissioner must develop performance criteria relating to the 2
handling of complaints under this chapter. 3
(2) The commissioner must include the relevant criteria in the 4
commissioner's annual report under this Act, together with an assessment 5
of the commissioner's performance against the criteria in the period to 6
which the report relates. 7
227 Reports to Minister 8
(1) The commissioner must give to the Minister, at the times and for the 9
periods required by the Minister, reports about the system established 10
under this Act for dealing with complaints. 11
(2) A report about the system must deal with matters stated by the 12
Minister and other matters the commissioner considers appropriate to 13
include in the report. 14
(3) The obligations under this section are in addition to another 15
obligation to give an annual or other report under another Act. 16
228 Offence of improper disclosure of information 17
(1) A person who discloses information obtained in the administration of 18
this chapter commits an offence, unless the disclosure is-- 19
(a) authorised or required by an Act; or 20
(b) made in connection with the administration of this chapter; or 21
(c) made with the consent of the person to whom the information 22
relates; or 23
(d) made in connection with legal proceedings under a relevant law 24
or of any report of those proceedings, including proceedings 25
before the tribunal or the committee relating to a discipline 26
application; or 27
(e) made with other lawful excuse. 28
Maximum penalty--200 penalty units. 29
(2) For the purposes of and without limiting subsection (1), a person who 30
receives information directly or indirectly from a corresponding authority 31
s 229 148 s 229
Legal Profession Bill 2003
is taken to have obtained the information in the administration of this 1
chapter. 2
(3) This section does not apply to the disclosure of information that does 3
not identify or assist in the identification of-- 4
(a) a complainant; or 5
(b) an Australian lawyer or law practice employee, who is the 6
subject of a complaint or an investigation matter, or a law 7
practice that employs the lawyer or employee; or 8
(c) a person associated with the complainant, Australian lawyer, law 9
practice employee or law practice. 10
229 Protection from liability 11
(1) An Act official is not civilly liable to someone for an act done, or 12
omission made, honestly and without negligence under this chapter. 13
(2) If subsection (1) prevents a civil liability attaching to an Act official, 14
the liability attaches instead to the State. 15
(3) This section does not apply to an act done, or omission made, for 16
which liability is excluded under section 216, 267 or 291.102 17
(4) In this section-- 18
"Act official" means-- 19
(a) the commissioner or the staff of the commission; or 20
(b) an investigator involved in the conduct of an investigation under 21
this chapter; or 22
(c) a disciplinary body, any member of the disciplinary body or a 23
panel member; or 24
(d) the Brisbane registrar and other registrars; or 25
(e) a mediator to whom a matter is referred under this chapter; or 26
(f) a regulatory authority; or 27
(g) a member of the staff of an entity mentioned in paragraphs (b) 28
to (f). 29
102 Section 216 (Liability for publicising disciplinary action), 267 (Protection of
members etc.) or 291 (Protection of members etc.)
s 230 149 s 231
Legal Profession Bill 2003
"civil liability" includes liability for the payment of costs ordered to be 1
paid in a proceeding for an offence against this Act. 2
230 Confidentiality of client communications 3
(1) An Australian lawyer must comply with a requirement under this 4
chapter, or chapter 5, part 2, to answer a question or to produce information 5
or a document, despite any duty of confidentiality about a communication 6
between the lawyer and a client, but only if the client is the complainant or 7
consents to its disclosure. 8
(2) A provision of an agreement with a client in settlement of a matter 9
that involves conduct that may be the subject of a complaint under this 10
chapter is not enforceable to prevent the client disclosing, or consenting to 11
the disclosure of, information for an investigation of the complaint whether 12
or not it has been withdrawn or of an investigation matter. 13
(3) It is a reasonable excuse for the Australian lawyer not to comply with 14
the requirement if complying with the requirement might tend to 15
incriminate the lawyer. 16
231 Waiver of legal professional privilege 17
(1) If a person signs a document waiving the person's legal professional 18
privilege about a matter the subject of a complaint or an investigation 19
matter, an Australian lawyer can not refuse to disclose to the commissioner 20
or relevant regulatory authority any information about the matter on the 21
grounds of legal professional privilege. 22
(2) However, the Australian lawyer may refuse to disclose the 23
information on the grounds that it might tend to incriminate the lawyer. 24
s 232 150 s 234
Legal Profession Bill 2003
CHAPTER 4--ESTABLISHMENT OF ENTITIES FOR 1
THIS ACT, AND RELATED MATTERS 2
PART 1--LEGAL SERVICES COMMISSIONER 3
Division 1--Preliminary 4
232 Main purposes of ch 4, pt 1 5
The main purposes of this part are to establish the Legal Services 6
Commissioner and to provide for matters relevant to the commissioner. 7
Division 2--Appointment 8
233 Legal Services Commissioner 9
There is to be a Legal Services Commissioner. 10
234 Appointment 11
(1) The Governor in Council may appoint an individual as the 12
commissioner by gazette notice. 13
(2) Before recommending an individual for appointment as the 14
commissioner, the Minister must be satisfied that the appointee-- 15
(a) is familiar with the nature of the legal system and legal practice; 16
and 17
(b) possesses appropriate qualities of independence, fairness and 18
integrity. 19
(3) The Minister may recommend an individual who is not an Australian 20
lawyer. 21
(4) The commissioner is appointed under this Act and not under the 22
Public Service Act 1996. 23
s 235 151 s 238
Legal Profession Bill 2003
235 Term of appointment 1
(1) The commissioner holds office for the term, not longer than 5 years, 2
stated in the gazette notice and may be reappointed. 3
(2) However, an individual must not be reappointed if the total of the 4
individual's term of appointment would be more than 10 years. 5
236 Remuneration and conditions 6
(1) The commissioner is entitled to be paid the remuneration and 7
allowances decided by the Governor in Council. 8
(2) The commissioner holds office-- 9
(a) on the conditions stated in this Act; and 10
(b) on other conditions decided by the Minister. 11
(3) In this section-- 12
"commissioner" includes an individual appointed to act as commissioner 13
under section 237.103 14
237 Acting commissioner 15
(1) The Governor in Council may appoint an individual to act as 16
commissioner-- 17
(a) during a vacancy in the office; or 18
(b) during any period, or during any periods, when the commissioner 19
is absent from duty or from the State or is, for another reason, 20
unable to perform the duties of the office. 21
(2) The individual appointed to act as commissioner must be eligible for 22
appointment as commissioner. 23
238 Termination of appointment 24
(1) The Governor in Council may end the appointment of the 25
commissioner if the commissioner-- 26
(a) becomes incapable of performing the commissioner's functions 27
because of physical or mental incapacity; or 28
103 Section 237 (Acting commissioner)
s 239 152 s 241
Legal Profession Bill 2003
(b) is an insolvent under administration; or 1
(c) is guilty of misconduct of a kind that could warrant dismissal 2
from the public service if the commissioner were an officer of the 3
public service. 4
(2) The Governor in Council must end the appointment of the 5
commissioner if the commissioner is convicted of a serious offence or an 6
offence against this Act. 7
239 Resignation of commissioner 8
(1) The commissioner may resign by giving a signed notice of 9
resignation to the Minister. 10
(2) A notice of resignation under subsection (1) takes effect when the 11
notice is given to the Minister or, if a later time is stated in the notice, the 12
later time. 13
Division 3--Functions 14
240 Functions 15
(1) The commissioner has the functions conferred or imposed on the 16
commissioner under this or another Act. 17
(2) The commissioner may appear, by Australian legal practitioner or 18
government legal officer, and be heard by, the Supreme Court in relation to 19
the court's jurisdiction, or an exercise of the court's power, under a relevant 20
law. 21
Division 4--Legal Services Commission 22
241 Establishment of commission 23
(1) The Legal Services Commission (the "commission") is established. 24
(2) The commission consists of the commissioner and the staff of the 25
commission. 26
(3) The commissioner controls the commission. 27
s 242 153 s 244
Legal Profession Bill 2003
242 Staff and other resources 1
(1) The chief executive must provide the commission with the resources 2
the chief executive considers appropriate for the commissioner to discharge 3
the commissioner's functions effectively and efficiently. 4
(2) The commission may, with the chief executive's approval, consult 5
with, employ and remunerate the Australian lawyers, accountants, auditors 6
or other professionals the commissioner considers necessary to properly 7
perform the commissioner's functions. 8
(3) For subsection (1) or (2), a public service officer may be seconded to 9
the commission. 10
(4) In this section-- 11
"resources" includes office accommodation and equipment, staff and 12
administrative support. 13
"staff", in relation to the commission, means the staff that the chief 14
executive provides under subsection (1) and an individual employed 15
under subsection (2). 16
243 Preservation of rights if public service officer appointed or 17
engaged 18
(1) A public service officer who is appointed to an office under this part 19
is entitled to retain all existing and accruing rights as if service in that office 20
were a continuation of service as a public service officer. 21
(2) If the individual stops holding that office for a reason other than 22
misconduct, the individual-- 23
(a) is entitled to be employed as a public service officer; and 24
(b) is to be employed on the classification level and remuneration 25
that the public service commissioner or another entity prescribed 26
under a regulation considers the individual would have attained 27
in the ordinary course of progression if the individual had 28
continued in employment as a public service officer. 29
244 Preservation of rights if individual becomes public service officer 30
(1) On the appointment of an individual holding office under this part as 31
a public service officer, the individual's service under this part must be 32
regarded as service as a public service officer. 33
s 245 154 s 246
Legal Profession Bill 2003
(2) Subsection (1) does not apply to the commissioner if the individual is 1
guilty of misconduct in office as commissioner. 2
245 Preservation of rights if public service officer seconded 3
(1) A public service officer seconded as mentioned in section 242(3) --104
4
(a) is entitled to the individual's existing and accruing rights as if 5
employment as a member of the staff of the commission were a 6
continuation of employment as a public service officer; and 7
(b) may apply for positions, and be employed in, the public service 8
as if the individual were a public service officer. 9
(2) When the secondment ends, the individual's employment on 10
secondment as a member of the staff of the commission is employment of 11
the same nature in the public service for working out the individual's rights 12
as a public service officer. 13
(3) If the secondment ended for a reason other than misconduct, the 14
individual is entitled to be employed-- 15
(a) as a public service officer; and 16
(b) on the same, or a higher, classification level and remuneration 17
that the public service commissioner or another entity prescribed 18
under a regulation considers the individual would have attained 19
in the ordinary course of progression if the individual had not 20
been seconded. 21
246 Delegation 22
(1) The commissioner may delegate the commissioner's powers under 23
this Act, other than this power of delegation, to an appropriately qualified 24
member of the staff of the commission. 25
(2) In this section-- 26
"appropriately qualified", includes having the qualifications, experience 27
or standing appropriate to the exercise of the power. 28
104 Section 242 (Staff and other resources)
s 247 155 s 251
Legal Profession Bill 2003
PART 2--DISCIPLINARY TRIBUNAL 1
Division 1--Preliminary 2
247 Main purpose of ch 4, pt 2 3
The main purpose of this part is to establish the Legal Practice Tribunal 4
to deal with matters it is empowered to deal with under this Act. 5
Division 2--Establishment of Legal Practice Tribunal and related 6
matters 7
248 Establishment, members and chairperson of tribunal 8
(1) The Legal Practice Tribunal is established. 9
(2) The members of the tribunal are the Supreme Court judges. 10
(3) The Chief Justice is the chairperson of the tribunal. 11
(4) The tribunal is constituted by any 1 of its members. 12
249 Way tribunal is to operate 13
(1) The chairperson is to allocate the work of the tribunal. 14
(2) The tribunal, as constituted by any 1 of its members, may sit in more 15
than 1 place at the same time. 16
250 Jurisdiction 17
The tribunal's jurisdiction is to hear and decide a discipline application 18
made to the tribunal. 19
251 Powers 20
(1) The tribunal may do all things necessary or convenient to be done for 21
exercising its jurisdiction. 22
(2) Without limiting subsection (1), the tribunal has the powers conferred 23
on it under this or another Act. 24
s 252 156 s 256
Legal Profession Bill 2003
252 Rule-making power 1
(1) The Governor in Council may, on the recommendation of the 2
chairperson, make rules for the practice and procedure for the tribunal 3
("tribunal rules"). 4
(2) The tribunal rules are subordinate legislation. 5
253 Practice directions 6
(1) To the extent a matter about the tribunal's procedure is not provided 7
for by this Act or the tribunal rules, the matter may be dealt with by 8
directions under this section. 9
(2) The chairperson may issue directions of general application about the 10
tribunal's procedures. 11
(3) The chairperson may delegate the chairperson's power under 12
subsection (2) to another member of the tribunal. 13
(4) The member constituting the tribunal may issue particular directions 14
for a hearing. 15
254 Registrar 16
The registrar of the tribunal, as constituted by any 1 of its members, is 17
the registrar for the Supreme Court district in which the tribunal is hearing 18
the discipline application. 19
255 Tribunal's seal 20
(1) The tribunal must have a seal for each Supreme Court district. 21
(2) Each seal must be judicially noticed. 22
(3) The registrar for each Supreme Court district is to have custody of 23
the seal for the district. 24
Division 3--Panels, members of panels and related matters 25
256 Establishment of panels for helping the tribunal 26
(1) The following are established-- 27
s 257 157 s 257
Legal Profession Bill 2003
(a) the lay panel; 1
(b) the practitioner panel. 2
(2) The practitioner panel is to consist of both barristers and solicitors. 3
(3) One member of the lay panel and 1 member of the practitioner panel 4
are to sit with the tribunal and help the tribunal in hearing and deciding a 5
discipline application. 6
(4) However, if a panel member disqualifies himself or herself as 7
mentioned in section 262(2),105 the tribunal may continue with the relevant 8
hearing if the tribunal member considers it appropriate to do so. 9
257 Appointment of panel member 10
(1) The members of the panels are to be appointed under this Act by the 11
Governor in Council. 12
(2) An individual is eligible for appointment as a member of the lay 13
panel only if the individual-- 14
(a) has high level experience and knowledge of consumer protection, 15
business, public administration or another relevant area; and 16
(b) is not, and has not been, an Australian lawyer, foreign lawyer or 17
otherwise legally qualified; and 18
(c) has not been convicted of a serious offence or a offence against a 19
relevant law, including before the commencement of this section. 20
(3) An individual is eligible for appointment as a member of the 21
practitioner panel only if the individual-- 22
(a) is an Australian legal practitioner who has held a practising 23
certificate for at least 5 years; and 24
(b) has not been convicted of a serious offence or an offence against 25
a relevant law, including before that commencement. 26
(4) A member holds office for a term of not longer than 5 years stated in 27
the instrument of appointment. 28
(5) For subsection (3)(a), in relation to any part of the 5 year period 29
before the commencement of this section, a barrister is not required to have 30
105 Section 262 (Disclosure of interest)
s 258 158 s 259
Legal Profession Bill 2003
held a practising certificate for that part of the period if the barrister was 1
practising as a barrister during that period. 2
258 Remuneration and appointment conditions of panel members 3
(1) A member of the lay panel is entitled to be paid the remuneration and 4
allowances decided by the Governor in Council for sitting with the tribunal 5
in relation to hearing and deciding a discipline application. 6
(2) It is a condition of a lay member's appointment that if the member's 7
appointment is terminated under section 259,106 the member is not entitled 8
to any remuneration or allowances applicable to any sitting after the date of 9
the termination. 10
(3) To the extent that the conditions are not provided for by this Act, a 11
member of the lay panel or practitioner panel holds office on the conditions 12
decided by the Governor in Council. 13
259 Termination of appointment 14
(1) The Governor in Council may end the appointment of a panel 15
member if the panel member-- 16
(a) becomes incapable of performing the member's functions 17
because of physical or mental incapacity; or 18
(b) is an insolvent under administration; or 19
(c) is guilty of misconduct of a kind that could warrant dismissal 20
from the public service if the member were an officer of the 21
public service. 22
(2) The Governor in Council must terminate the appointment of a panel 23
member if the member-- 24
(a) is convicted of a serious offence or an offence against a relevant 25
law; or 26
(b) for a member of the lay panel--becomes an Australian lawyer or 27
otherwise legally qualified; or 28
(c) for a member of the practitioner panel--stops holding a 29
practising certificate. 30
106 Section 259 (Termination of appointment)
s 260 159 s 262
Legal Profession Bill 2003
260 Resignation of members 1
(1) A panel member may resign by giving a signed notice of resignation 2
to the Minister. 3
(2) A notice of resignation under subsection (1) takes effect when the 4
notice is given to the Minister or, if a later time is stated in the notice, the 5
later time. 6
Division 4--Role of tribunal members and panel members 7
261 Role of members 8
(1) The chairperson may do all things necessary or convenient to be 9
done for the performance of the chairperson's role. 10
(2) The role of a tribunal member and panel member includes 11
professionally and efficiently performing the functions of the tribunal 12
assigned or given to the member under this or another Act. 13
(3) Each tribunal member and panel member must comply with the 14
procedures and policies implemented by the chairperson for the tribunal's 15
adjudicative operations. 16
262 Disclosure of interests 17
(1) If a tribunal member, or a panel member helping the tribunal, 18
becomes aware that the member has a conflict of interest about a 19
proceeding before the tribunal, the member must disclose the issue giving 20
rise to the conflict-- 21
(a) if the member is the chairperson--to the parties to the 22
proceeding; or 23
(b) otherwise--to the chairperson and the parties to the proceeding. 24
(2) After making the disclosure, the member must disqualify himself or 25
herself. 26
(3) A member has a conflict of interest about a proceeding if the member 27
has an interest, financial or otherwise, that could conflict with the proper 28
performance of the member's functions for the proceeding. 29
s 263 160 s 264
Legal Profession Bill 2003
(4) If the individual who is disqualified is a panel member, the tribunal 1
member may decide it is appropriate to proceed with the hearing with 2
only 1 panel member. 3
Division 5--Constitution of tribunal for hearings 4
263 Constitution of tribunal for hearing 5
(1) For hearing and deciding a discipline application made to the 6
tribunal, the tribunal is constituted by a tribunal member. 7
(2) However, although panel members do not constitute the tribunal, the 8
tribunal member is to be helped by 2 panel members chosen by the 9
Brisbane registrar and approved by the tribunal member. 10
(3) The panel members mentioned in subsection (2) must consist of-- 11
(a) a lay panel member; and 12
(b) 1 of the following members-- 13
(i) if the complaint is about the conduct of a person who, at the 14
time of performing the acts or omitting to do the acts 15
constituting the conduct complained of, was a barrister or, 16
in the opinion of the tribunal member, was engaged in legal 17
practice in the manner of a barrister--a member of the 18
practitioner panel who is a barrister; 19
(ii) otherwise--a member of the practitioner panel who is a 20
solicitor. 21
(4) The registrar must keep a record of the name of the tribunal member 22
for each hearing, the names of the panel members helping the tribunal and 23
the discipline application for which the hearing is held. 24
Division 6--Other provisions 25
264 Institution of proceedings by the commissioner 26
The commissioner may bring a proceeding for the imposition or 27
enforcement of a penalty under this part. 28
s 265 161 s 267
Legal Profession Bill 2003
265 Contempt of tribunal 1
(1) The tribunal has, for itself, the tribunal members and the panel 2
members, all the protection, powers, jurisdiction and authority the Supreme 3
Court has for that court in relation to contempt of court. 4
(2) The tribunal must comply with the Uniform Civil Procedure Rules 5
relating to contempt of court, with necessary changes. 6
(3) The registrar may apply to the tribunal for an order that a person be 7
committed to prison for contempt of the tribunal. 8
(4) The tribunal's jurisdiction to punish a contempt of the tribunal may 9
be exercised on the tribunal's own initiative. 10
266 Conduct that is contempt and an offence 11
If conduct of a person is both contempt of the tribunal and an offence, 12
the person may be proceeded against for the contempt or for the offence, 13
but the person is not liable to be punished twice for the same conduct. 14
267 Protection of members etc. 15
(1) A tribunal member or panel member has, in the performance of the 16
member's duties as a member, the same protection and immunity as a 17
Supreme Court judge carrying out the functions of a judge. 18
(2) A person representing a person before the tribunal has the same 19
protection and immunity as an Australian legal practitioner appearing for a 20
party in a proceeding in the Supreme Court. 21
(3) A person appearing before the tribunal as a witness has the same 22
protection as a witness in a proceeding in the Supreme Court. 23
(4) A document produced at, or used for, a tribunal hearing has the same 24
protection it would have if produced before the Supreme Court. 25
s 268 162 s 271
Legal Profession Bill 2003
PART 3--LEGAL PRACTICE COMMITTEE 1
Division 1--Preliminary 2
268 Main purpose of ch 4, pt 3 3
The main purpose of this part is to establish the Legal Practice 4
Committee to deal with matters it is empowered to deal with under this Act. 5
269 Definitions for ch 4, pt 3 6
In this part-- 7
"barrister" means a local legal practitioner who holds a current practising 8
certificate to practise as a barrister. 9
"solicitor" means a local legal practitioner who holds a current local 10
practising certificate to practise as a solicitor. 11
Division 2--Establishment, membership of committee, functions and 12
powers 13
270 Establishment of committee 14
The Legal Practice Committee is established. 15
271 Committee members 16
(1) The committee is to consist of the following members appointed by 17
the Governor in Council-- 18
(a) a chairperson; 19
(b) 2 solicitors; 20
(c) 2 barristers; 21
(d) 2 lay members. 22
(2) Before recommending an individual for appointment as the 23
chairperson, the Minister must be satisfied that the individual has high level 24
experience and knowledge of the legal system and legal practice. 25
s 272 163 s 275
Legal Profession Bill 2003
(3) For choosing someone to recommend for appointment under 1
subsection (1)(b), the Minister may invite nominations from the law 2
society. 3
(4) For choosing someone to recommend for appointment under 4
subsection (1)(c), the Minister may invite nominations from the bar 5
association. 6
(5) Before recommending an individual for appointment under 7
subsection (1)(d), the Minister must be satisfied that the individual has high 8
level experience and knowledge of consumer protection, business, public 9
administration or another relevant area but is not an Australian lawyer or is 10
otherwise legally qualified. 11
272 Term of appointment 12
The appointment of a member of the committee is for the term stated in 13
the member's appointment. 14
273 Functions and powers of committee 15
(1) The committee has the functions provided for under this Act. 16
(2) The committee has all the powers necessary or convenient for 17
performing its functions. 18
274 Administrative support 19
The commissioner must provide administrative support for the 20
committee, including secretariat support. 21
Division 3--Provisions about committee members 22
275 Eligibility for membership 23
An individual can not become a member of the committee if the 24
individual-- 25
(a) is an insolvent under administration; or 26
(b) has been convicted of a serious offence or an offence against a 27
relevant law. 28
s 276 164 s 278
Legal Profession Bill 2003
276 Termination of office 1
(1) The Governor in Council may end the appointment of a committee 2
member if the member-- 3
(a) becomes incapable of performing the member's functions 4
because of physical or mental incapacity; or 5
(b) is an insolvent under administration; or 6
(c) is guilty of misconduct of a kind that could warrant dismissal 7
from the public service if the member were an officer of the 8
public service. 9
(2) The Governor in Council must end the appointment of a committee 10
member if the member-- 11
(a) is convicted of a serious offence or an offence against a relevant 12
law; or 13
(b) if the individual was appointed because the individual was a 14
solicitor--the individual stops being a solicitor; or 15
(c) if the individual was appointed because the individual was a 16
barrister--the individual stops being a barrister; or 17
(d) if the individual was appointed as a lay member--the individual 18
becomes an Australian lawyer or otherwise legally qualified. 19
277 Resignation of committee member 20
(1) A committee member may resign by giving a signed notice of 21
resignation to the Minister. 22
(2) A notice of resignation under subsection (1) takes effect when the 23
notice is given to the Minister or, if a later time is stated in the notice, the 24
later time. 25
278 Deputy chairperson 26
(1) The committee members must appoint a member, other than the 27
chairperson, as the deputy chairperson of the committee. 28
(2) The appointment of the deputy chairperson may be for a time 29
decided by the committee but not for longer than the deputy chairperson's 30
term of appointment as a member. 31
s 279 165 s 284
Legal Profession Bill 2003
279 Remuneration and allowances of lay members 1
A lay member of the committee is entitled to be paid the remuneration 2
and allowances decided by the Governor in Council. 3
Division 4--Provisions about committee performing advisory functions 4
280 Application of ch 4, pt 3, div 4 5
This division applies to the committee in performing its advisory 6
functions under this Act.107 7
281 Conduct of business 8
Subject to this division, the committee may conduct its business, 9
including its meetings, in the way it considers appropriate. 10
282 Time and place of meeting 11
(1) Committee meetings are to be held at the times and places the 12
chairperson decides. 13
(2) However, the chairperson must call a meeting if asked, in writing, to 14
do so by at least the number of members forming a quorum for the 15
committee. 16
283 Quorum 17
A quorum for the committee is 4 members. 18
284 Presiding at meetings 19
(1) The chairperson is to preside at all meetings of the committee at 20
which the chairperson is present. 21
(2) If the chairperson is absent from a committee meeting, but the deputy 22
chairperson is present, the deputy chairperson is to preside. 23
107 See section 139 (Monitoring role of committee) which provides that the committee
has certain functions in relation to advising the Minister about the legal profession
rules.
s 285 166 s 286
Legal Profession Bill 2003
(3) If the chairperson and deputy chairperson are both absent from a 1
committee meeting, including because of a vacancy in the office, a member 2
chosen by the members present is to preside at the committee meeting. 3
285 Conduct of meetings 4
(1) A question at a committee meeting is decided by a majority of the 5
votes of the members present. 6
(2) Each member present at the meeting has a vote on each question to 7
be decided and, if the votes are equal, the member presiding also has a 8
casting vote. 9
(3) A member present at the meeting who abstains from voting is taken 10
to be have voted for the negative. 11
(4) The committee may hold meetings, or allow members to take part in 12
its meetings, by using any technology that reasonably allows members to 13
hear and take part in discussions as they happen. 14
15
Example of use of technology--
16
Teleconferencing.
(5) A member who takes part in a committee meeting under 17
subsection (4) is taken to be present at the meeting. 18
(6) A resolution is validly made by the committee, even if it is not passed 19
at a committee meeting, if-- 20
(a) a majority of the committee members give written agreement to 21
the resolution; and 22
(b) notice of the resolution is given under procedures approved by 23
the committee. 24
286 Minutes 25
(1) The committee must keep-- 26
(a) minutes of its meetings; and 27
(b) a record of any resolutions made under section 285(6).108 28
(2) Subsection (3) applies if a resolution is passed at a committee 29
meeting by a majority of the members present. 30
108 Section 285 (Conduct of meetings)
s 287 167 s 287
Legal Profession Bill 2003
(3) If asked by a member who voted against the passing of the 1
resolution, the committee must record in the minutes of the meeting that 2
the member voted against the resolution. 3
287 Disclosure of interests 4
(1) This section applies to a committee member (the "interested 5
person") if-- 6
(a) the interested person has a direct or indirect interest in an issue 7
being considered, or about to be considered, by the committee; 8
and 9
(b) the interest could conflict with the proper performance of the 10
interested person's duties about the consideration of the issue. 11
(2) After the relevant facts come to the interested person's knowledge, 12
the person must disclose the nature of the interest to a committee meeting. 13
(3) Unless the committee otherwise directs, the interested person must 14
not-- 15
(a) be present when the committee considers the issue; or 16
(b) take part in a decision of the committee about the issue. 17
(4) The interested person must not be present when the committee is 18
considering whether to give a direction under subsection (3). 19
(5) If there is another person who must, under subsection (2), also 20
disclose an interest in the issue, the other person must not-- 21
(a) be present when the committee is considering whether to give a 22
direction under subsection (3) about the interested person; or 23
(b) take part in making the decision about giving the direction. 24
(6) If-- 25
(a) because of this section, a committee member is not present at a 26
committee meeting for considering or deciding an issue, or for 27
considering or deciding whether to give a direction under 28
subsection (3); and 29
(b) there would be a quorum if the member were present; 30
the remaining persons present are a quorum of the committee for 31
considering or deciding the issue, or for considering or deciding whether to 32
give the direction, at the meeting. 33
s 288 168 s 289
Legal Profession Bill 2003
(7) A disclosure under subsection (2) must be recorded in the 1
committee's minutes. 2
Division 5--Provisions applying to committee for hearings 3
288 Constitution of committee for hearing 4
(1) The chairperson must make arrangements about constituting the 5
committee for hearing and deciding discipline applications. 6
(2) For hearing and deciding a discipline application made to the 7
committee, the committee is constituted by-- 8
(a) the chairperson; and 9
(b) a member of the committee who is a local legal practitioner 10
chosen by the chairperson; and 11
(c) a lay member of the committee chosen by the chairperson. 12
(3) In choosing a local legal practitioner as mentioned in subsection (2), 13
the chairperson must choose an individual who is-- 14
(a) if the discipline application relates to a barrister--a barrister; or 15
(b) otherwise--a solicitor. 16
(4) The chairperson is to preside at the hearing of a matter referred to the 17
committee. 18
(5) In this section-- 19
"chairperson" includes the deputy chairperson. 20
289 Conduct of meetings 21
(1) A question at a committee meeting is decided by a majority of the 22
votes of the members present. 23
(2) Each member present at the meeting has a vote on each question to 24
be decided and, if the votes are equal, the member presiding also has a 25
casting vote. 26
(3) A member present at the meeting who abstains from voting is taken 27
to be have voted for the negative. 28
s 290 169 s 290
Legal Profession Bill 2003
(4) The committee may hold meetings, or allow members to take part in 1
its meetings, by using any technology that reasonably allows members to 2
hear and take part in discussions as they happen. 3
4
Example of use of technology--
5
Teleconferencing.
(5) A member who takes part in a committee meeting under 6
subsection (4) is taken to be present at the meeting. 7
(6) A resolution is validly made by the committee, even if it is not passed 8
at a committee meeting, if-- 9
(a) a majority of the committee members give written agreement to 10
the resolution; and 11
(b) notice of the resolution is given under procedures approved by 12
the committee. 13
290 Disclosure of interests 14
(1) If a member of the committee becomes aware that the member has a 15
conflict of interest about a discipline application made to the committee, 16
the member must disclose the issue giving rise to the conflict-- 17
(a) if the member is the chairperson--to the parties to the 18
proceeding in relation to the discipline application; or 19
(b) otherwise--to the chairperson and the parties to the proceeding. 20
(2) After making the disclosure, the member must disqualify himself or 21
herself. 22
(3) A member has a conflict of interest about a proceeding if the member 23
has an interest, financial or otherwise, that could conflict with the proper 24
performance of the member's functions for the proceeding. 25
(4) If the parties agree, the remaining members of the committee may 26
continue with hearing and deciding the discipline application. 27
(5) However, if the parties do not agree as mentioned in subsection (4), 28
the hearing of the discipline application must stop and the committee must 29
be reconstituted to hear and decide the discipline application. 30
(6) If the committee can not reconstituted under subsection (5), the 31
discipline application is to be transferred to the tribunal under the tribunal 32
rules. 33
s 291 170 s 292
Legal Profession Bill 2003
291 Protection of members etc. 1
(1) A committee member has, in the performance of the member's duties 2
as a member of the committee hearing and deciding a discipline 3
application, the same protection and immunity as a Supreme Court judge 4
carrying out the functions of a judge. 5
(2) A person representing a person before the committee has the same 6
protection and immunity as an Australian legal practitioner appearing for a 7
party in a proceeding in the Supreme Court. 8
(3) A person appearing before the committee as a witness has the same 9
protection as a witness in a proceeding in the Supreme Court. 10
(4) A document produced at, or used for, a hearing of the committee has 11
the same protection it would have if produced before the Supreme Court. 12
PART 4--PROVISIONS APPLYING TO EACH 13
DISCIPLINARY BODY 14
Division 1--Parties to proceedings 15
292 Parties 16
(1) The parties to a proceeding in a disciplinary body for a discipline 17
application are-- 18
(a) the Australian lawyer, or the law practice employee, about whom 19
the complaint has been made or an investigation matter relates; 20
and 21
(b) the commissioner. 22
(2) The parties are entitled to appear at the hearing of the application. 23
(3) The complainant is entitled to appear at the hearing in relation to-- 24
(a) those aspects of the hearing that relate to a request by the 25
complainant for a compensation order; and 26
(b) other aspects of the hearing, but only if the disciplinary body 27
grants leave to the complainant to appear in relation to them. 28
s 293 171 s 294
Legal Profession Bill 2003
(4) The disciplinary body may grant leave to any other person to appear 1
at the hearing if the disciplinary body is satisfied that it is appropriate for 2
that person to appear at the hearing. 3
(5) A person who is entitled to appear at the hearing or who is granted 4
leave to appear at the hearing may appear personally or be represented by 5
an Australian legal practitioner or a government legal officer. 6
Division 2--Conduct of proceedings 7
293 Public hearings 8
(1) A hearing before a disciplinary body must be open to the public, 9
unless the disciplinary body directs that the hearing or a part of the hearing 10
be closed to the public. 11
(2) A disciplinary body may not direct that a hearing or a part of a 12
hearing be closed to the public unless satisfied that it is desirable to do so in 13
the public interest for reasons connected with-- 14
(a) the subject matter of the hearing; or 15
(b) the nature of the evidence to be given. 16
294 Procedure for hearing by a disciplinary body 17
(1) When conducting a hearing, a disciplinary body-- 18
(a) must comply with natural justice; and 19
(b) must act as quickly, and with as little formality and technicality, 20
as is consistent with a fair and proper consideration of the issues 21
before it; and 22
(c) is not bound by the rules of evidence; and 23
(d) may inform itself of anything in the way it considers appropriate. 24
(2) Subsection (1) is subject to another provision of this Act that states a 25
particular way the disciplinary body must conduct the hearing. 26
s 295 172 s 297
Legal Profession Bill 2003
295 Disciplinary body may proceed in absence of party or may 1
adjourn hearing 2
(1) At a hearing, a disciplinary body may proceed in the absence of a 3
party if it reasonably believes the party has been given sufficient notice of 4
the hearing. 5
(2) A disciplinary body may adjourn the hearing from time to time. 6
296 Matter may be decided on affidavit evidence 7
If a disciplinary body receives in evidence an affidavit of 1 party, the 8
disciplinary body may decide all or part of a discipline application or any 9
relevant fact on the evidence given in the affidavit-- 10
(a) with the written consent of the other party; or 11
(b) if the other party does not appear and-- 12
(i) the party filing the affidavit has given the other party a copy 13
of the affidavit and the name of the person making the 14
affidavit is included in a list of documents given to the other 15
party under the tribunal rules; or 16
(ii) appropriate enquiries have been made as to the other party's 17
whereabouts and, in all the circumstances, it is reasonable 18
for the matter to be decided in that party's absence. 19
297 Standard of proof 20
(1) If an allegation of fact is not admitted or is challenged when a 21
disciplinary body is hearing a discipline application, the body may act on 22
the allegation if the body is satisfied on the balance of probabilities that the 23
allegation is true. 24
(2) For subsection (1), the degree of satisfaction required varies 25
according to the consequences for the relevant Australian lawyer or law 26
practice employee of finding the allegation to be true. 27
s 298 173 s 300
Legal Profession Bill 2003
Division 3--Powers of disciplinary body 1
298 Power to disregard procedural lapses 2
(1) A disciplinary body may order that a failure by the commissioner to 3
observe a procedural requirement in relation to a complaint, an 4
investigation matter or a discipline application must be disregarded, if the 5
disciplinary body is satisfied that the parties to the hearing have not been 6
prejudiced by the failure. 7
(2) This section applies whether the failure happened-- 8
(a) before the making of the discipline application resulting from the 9
complaint or investigation matter; or 10
(b) after the making of the discipline application. 11
(3) Subsection (1) does not limit the disciplinary body's power to 12
disregard a failure by another person to observe a procedural requirement. 13
299 Directions for hearings 14
(1) A disciplinary body may issue directions in relation to a hearing 15
before the disciplinary body. 16
(2) The disciplinary body may issue the directions-- 17
(a) on the body's own initiative; or 18
(b) at the request of a party, or a person granted leave to appear at the 19
hearing; or 20
(c) at the request of another person who has a sufficient interest in-- 21
(i) the hearing; or 22
(ii) another matter arising out of or relating to the hearing. 23
(3) Subsection (1) is subject to the tribunal rules and directions under 24
section 253.109 25
300 Attendance notice 26
(1) A disciplinary body may, on the application of a party to a hearing or 27
on its own initiative, by written notice given to a person (an "attendance 28
109 Section 253 (Practice directions)
s 301 174 s 301
Legal Profession Bill 2003
notice"), require the person to attend the hearing at a stated time and place 1
to give evidence or to produce stated documents or things. 2
(2) A person given an attendance notice must not fail, without reasonable 3
excuse-- 4
(a) to attend as required by the notice; or 5
(b) to continue to attend as required by the disciplinary body until 6
excused from further attendance. 7
Maximum penalty--100 penalty units. 8
(3) Also at a hearing, a person appearing as a witness must not-- 9
(a) fail to take an oath or make an affirmation when required by the 10
disciplinary body; or 11
(b) fail, without reasonable excuse, to answer a question the person 12
is required to answer by the disciplinary body; or 13
(c) fail, without reasonable excuse, to produce a document or thing 14
the person is required to produce by an attendance notice. 15
Maximum penalty--100 penalty units. 16
(4) It is a reasonable excuse for an individual to fail to answer a question 17
or produce a document or other thing, if answering the question or 18
producing the document or other thing might tend to incriminate the 19
individual. 20
301 Authentication of documents 21
(1) A document relating to proceedings for a discipline application 22
requiring authentication by a disciplinary body is sufficiently authenticated 23
if it is signed by the tribunal member or the registrar for the proceedings, or 24
the chairperson or deputy chairperson of the committee. 25
(2) However, the tribunal rules may require that a document issued by 26
the tribunal is stamped with the tribunal's seal. 27
(3) Judicial notice must be taken of the signature of-- 28
(a) a tribunal member or the registrar that appears on a document 29
issued by the tribunal; or 30
(b) the chairperson or deputy chairperson of the committee that 31
appears on a document issued by the tribunal. 32
s 302 175 s 305
Legal Profession Bill 2003
Division 4--Offences 1
302 False or misleading information 2
A person must not state anything to a disciplinary body that the person 3
knows is false or misleading in a material particular. 4
Maximum penalty--200 penalty units. 5
303 False or misleading documents 6
(1) A person must not give to a disciplinary body a document containing 7
information the person knows is false or misleading in a material particular. 8
Maximum penalty--200 penalty units. 9
(2) Subsection (1) does not apply to a person who, when giving the 10
document-- 11
(a) informs the disciplinary body, to the best of the person's ability, 12
how it is false or misleading; and 13
(b) gives the correct information to the disciplinary body if the 14
person has, or can reasonably obtain, the correct information. 15
PART 5--LEGAL PRACTITIONERS ADMISSIONS 16
BOARD 17
Division 1--Preliminary 18
304 Main purpose of ch 4, pt 5 19
The main purpose of this part is to establish the Legal Practitioners 20
Admissions Board to deal with matters it is empowered to deal with under 21
this Act. 22
305 Definitions for ch 4, pt 5 23
In this part-- 24
s 306 176 s 307
Legal Profession Bill 2003
"barrister" means a local legal practitioner who holds a current local 1
practising certificate to practise as a barrister. 2
"solicitor" means a local legal practitioner who holds a current local 3
practising certificate to practise as a solicitor. 4
Division 2--Establishment and membership of board 5
306 Establishment of board 6
The Legal Practitioners Admissions Board is established. 7
307 Members of board 8
(1) The board is to consist of the following members-- 9
(a) 2 solicitors and 2 barristers; 10
(b) 1 solicitor nominated by the law society; 11
(c) 1 barrister nominated by the bar association; 12
(d) the Brisbane registrar; 13
(e) an individual nominated by the Minister. 14
(2) The Chief Justice must appoint the members of the board, other than 15
the Brisbane registrar or the Minister's nominee. 16
(3) An individual mentioned in subsection (1)(a), (b) or (c) must not be 17
appointed unless the Chief Justice is satisfied the individual is an Australian 18
lawyer of at least 5 years standing, including before the commencement of 19
this section. 20
(4) If the law society or bar association fails to nominate a member 21
within 14 days after being requested to do so by the Chief Justice, the chief 22
justice may appoint any individual whom the Chief Justice considers 23
suitable to represent the interests of the law society or bar association as a 24
member of the board and the nomination is taken to have been made by the 25
law society or bar association. 26
(5) An appointment under this section must be for no longer than 1 year 27
but an individual may be reappointed. 28
s 308 177 s 312
Legal Profession Bill 2003
Division 3--Board's functions and powers 1
308 Functions and powers of board 2
(1) The board has the functions provided for under this Act and the 3
admission rules. 4
(2) The board has all the powers necessary or convenient for performing 5
its functions. 6
309 Administrative support of the board 7
The law society must provide administrative support for the board, 8
including secretariat support. 9
Division 4--Provisions about board members 10
310 Term of appointment 11
A member of the board, other than the Brisbane registrar, holds office for 12
the term stated in the member's appointment. 13
311 Chairperson and deputy chairperson 14
(1) The member of the board appointed by the Chief Justice as 15
chairperson is the chairperson of the board. 16
(2) The board members must appoint a member, other than the 17
chairperson, as the deputy chairperson of the board. 18
(3) The appointment of the deputy chairperson may be for a time 19
decided by the board but not for longer than the deputy chairperson's term 20
of appointment as a member. 21
312 Eligibility for membership 22
An individual can not become a board member if the individual-- 23
(a) is an insolvent under administration; or 24
(b) has been convicted of a serious offence; or 25
(c) has been convicted of an offence against this Act. 26
s 313 178 s 315
Legal Profession Bill 2003
313 Termination of appointment 1
(1) The Chief Justice may end the appointment of a board member if the 2
member is absent without the board's permission from 3 consecutive 3
meetings of the board of which proper notice has been given. 4
(2) The Chief Justice must end the appointment of a board member if the 5
member-- 6
(a) is an insolvent under administration; or 7
(b) is convicted of a serious offence; or 8
(c) is convicted of an offence against this Act; or 9
(d) if the individual was appointed because the individual was a 10
solicitor--stops being a solicitor; or 11
(e) if the individual was appointed because the individual was a 12
barrister--stops being a barrister. 13
(3) In this section-- 14
"meeting" means the following-- 15
(a) if the member does not attend--a meeting with a quorum 16
present; 17
(b) if the member attends--a meeting with or without a quorum 18
present. 19
314 Resignation of board member 20
(1) A board member, other than the Brisbane registrar, may resign by 21
giving a signed notice of resignation to the Chief Justice. 22
(2) A notice of resignation under subsection (1) takes effect when the 23
notice is given to the Chief Justice or, if a later time is stated in the notice, 24
the later time. 25
Division 5--Board business 26
315 Conduct of business 27
Subject to this division, the board may conduct its business, including its 28
meetings, in the way it considers appropriate. 29
s 316 179 s 319
Legal Profession Bill 2003
316 Times and places of meetings 1
(1) Board meetings are to be held at the times and places the chairperson 2
decides. 3
(2) However, the chairperson must call a meeting if asked, in writing, to 4
do so by the Chief Justice or at least the number of members forming a 5
quorum for the board. 6
317 Quorum 7
A quorum for the board is 4 members. 8
318 Presiding at meetings 9
(1) The chairperson is to preside at all meetings of the board at which the 10
chairperson is present. 11
(2) If the chairperson is absent from a board meeting, but the deputy 12
chairperson is present, the deputy chairperson is to preside. 13
(3) If the chairperson and deputy chairperson are both absent from a 14
board meeting, including because of a vacancy in the office, a member 15
chosen by the members present is to preside at the board meeting. 16
319 Conduct of meetings 17
(1) A question at a board meeting is decided by a majority of the votes of 18
the members present. 19
(2) Each member present at the meeting has a vote on each question to 20
be decided and, if the votes are equal, the member presiding also has a 21
casting vote. 22
(3) A member present at the meeting who abstains from voting is taken 23
to be have voted for the negative. 24
(4) The board may hold meetings, or allow members to take part in its 25
meetings, by using any technology that reasonably allows members to hear 26
and take part in discussions as they happen. 27
28
Example of use of technology--
29
Teleconferencing.
(5) A member who takes part in a board meeting under subsection (4) is 30
taken to be present at the meeting. 31
s 320 180 s 321
Legal Profession Bill 2003
(6) A resolution is validly made by the board, even if it is not passed at a 1
board meeting, if-- 2
(a) a majority of the board members gives written agreement to the 3
resolution; and 4
(b) notice of the resolution is given under procedures approved by 5
the board. 6
320 Minutes 7
(1) The board must keep-- 8
(a) minutes of its meetings; and 9
(b) a record of any resolutions made under section 319(6).110 10
(2) Subsection (3) applies if a resolution is passed at a board meeting by 11
a majority of the members present. 12
(3) If asked by a member who voted against the passing of the 13
resolution, the board must record in the minutes of the meeting that the 14
member voted against the resolution. 15
321 Disclosure of interests 16
(1) This section applies to a board member (the "interested person") 17
if-- 18
(a) the interested person has a direct or indirect interest in an issue 19
being considered, or about to be considered, by the board; and 20
(b) the interest could conflict with the proper performance of the 21
person's duties about the consideration of the issue. 22
(2) After the relevant facts come to the interested person's knowledge, 23
the person must disclose the nature of the interest to a board meeting. 24
(3) Unless the board otherwise directs, the interested person must not-- 25
(a) be present when the board considers the issue; or 26
(b) take part in a decision of the board about the issue. 27
(4) The interested person must not be present when the board is 28
considering whether to give a direction under subsection (3). 29
110 Section 319 (Conduct of meetings)
s 322 181 s 322
Legal Profession Bill 2003
(5) If there is another person who must, under subsection (2), also 1
disclose an interest in the issue, the other person must not-- 2
(a) be present when the board is considering whether to give a 3
direction under subsection (3) about the interested person; or 4
(b) take part in making the decision about giving the direction. 5
(6) If-- 6
(a) because of this section, a board member is not present at a board 7
mee