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1
Legal Profession Bill 2004
LEGAL PROFESSION BILL 2004
EXPLANATORY NOTES
FOR
AMENDMENTS TO BE MOVED IN COMMITTEE
BY THE HONOURABLE THE ATTORNEY-GENERAL
AND MINISTER FOR JUSTICE
General Outline
Title of Bill
Legal Profession Bill 2004
Objectives of the Amendments
A number of amendments are proposed to the Bill:
· to provide for the commencement of certain provisions from
assent;
· to clarify the operation of the Bill as it applies to government
legal officers in certain respects;
· to provide for how certain information is publicly available;
· to clarify that a regulatory authority in setting fees may have
regard to its general regulatory costs;
· to allow for a barristers' rule to prohibit a barrister from being a
legal practitioner partner of a multi-disciplinary partnership;
· to clarify that an administration rule is a statutory instrument;
· to clarify the power of the disciplinary body to impose costs in
connection with interlocutory or interim proceedings;
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Legal Profession Bill 2004
· to provide for the different arrangements to apply for practising
certificates for solicitors and barristers for the 2004/2005
financial year;
· to ensure that the legal services commissioner can deal with files
handed over by the legal ombudsman and do preparatory work on
any complaint made before the commencement of Chapter 3;
· to repeal provisions relating to the legal ombudsman further to
the appointment of the legal services commissioner; and
· to provide for amendments of a drafting or transitional nature.
Achievement of objectives
These objectives are achieved by:
· providing for those sections of the Bill proposed to have effect
from the later of the date of assent and 25 May 2004;
· clarifying that a government legal officer is engaged in
government work when engaged in legal practice in the course of
the officer's duties for the entity that employs or appoints the
officer;
· allowing a government legal officer who is an Australian lawyer
to call himself or herself a solicitor or barrister according to his
or her previous admission or manner of practice;
· providing for certain information to be available publicly in a
physical form or on the internet;
· clarifying that a regulatory authority in setting fees may have
regard to its general regulatory costs and funding under the Act
and that a fee is not unreasonable only because a fee is more than
the cost of providing a specific service;
· allowing for a barristers' rule to prohibit a barrister from being a
legal practitioner partner of a multi-disciplinary partnership;
· clarifying that an administration rule is a statutory instrument;
· limiting the power of the disciplinary body to impose costs in
connection with interlocutory or interim proceedings;
· providing for the different arrangements to apply for practising
certificates for solicitors and barristers for the 2004/2005
financial year;
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Legal Profession Bill 2004
· repealing provisions relating to the legal ombudsman further to
the appointment of the legal services commissioner and ensuring
that the commissioner can review files handed over by the legal
ombudsman and do preparatory work on any complaint made
before the commencement of Chapter 3; and
· providing for amendments of a transitional, minor, technical or
drafting nature.
Alternatives to the Bill
There are no alternative ways of achieving the policy objectives.
Administrative cost to Government of implementation
There should not be any cost to government associated with the
implementation of the amendments.
Consistency with Fundamental Legislative Principles
Clause 643 of the Bill provides for a transitional regulation-making power
in relation to the transition from the specified Acts, viz, Queensland Law
Society Act 1952 and the Legal Practitioners Act 1995, to the new Act. The
clause is amended to ensure that, if the Act does not make adequate
provision for a matter, the regulation can be made for the transition from a
"relevant law" before commencement of the section to a "relevant law"
after commencement and from a "relevant law" after that commencement
to a "relevant law" in force from time to time after that commencement.
The same justifications apply as outlined for the clause in the explanatory
notes for the Bill.
Consultation
A number of the amendments in committee have resulted from
consultation with the Queensland Law Society and the Bar Association of
Queensland, particularly concerning the transitional arrangements.
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Legal Profession Bill 2004
NOTES ON PROVISIONS
Amendment 1 provides for the commencement of specified provisions
from the later of the date of assent and 25 May 2004.
Amendment 2 clarifies when a government legal officer is engaged in
government work.
Amendment 3 allows a government legal officer who is an Australian
lawyer to call himself or herself a solicitor or barrister according to his or
her admission or manner of practice.
Amendment 4 provides for the Brisbane Registrar of the Supreme Court
to give directions to other registrars about the keeping of the local roll.
Amendment 5 is a provision of a transitional nature. It allows persons
permitted to engage in legal practice before the commencement of the new
scheme to apply for a practising certificate as if they were Australian legal
practitioners.
Amendment 6 clarifies the power of a regulatory authority to impose a
condition in relation to education, and training does not limit a regulatory
authority's power to impose a relevant condition under an administration
rule.
Amendment 7 is an amendment of a drafting nature.
Amendment 8 provides that a register is to be available publicly in a
physical form or on the internet.
Amendment 9 clarifies that a regulatory authority in setting fees may
have regard to its general regulatory costs and funding under the Act and
that a fee is not unreasonable only because it is more than the cost of
providing a specific service.
Amendment 10 is an amendment of a transitional nature to allow costs of
the regulatory authorities in anticipation of the commencement of the new
regulatory regime to be paid from the Legal Practitioner Interest on Trust
Accounts Fund.
Amendment 11 allows a barristers' rule to prohibit a barrister from being
a legal practitioner partner of a multi-disciplinary partnership.
Amendment 12 provides for the setting of fees, levies and contributions
under an administration rule.
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Legal Profession Bill 2004
Amendment 13 clarifies that an administration rule is a statutory
instrument under the Statutory Instruments Act 1992.
Amendment 14 provides for an administration rule to be publicly
available in a physical form or on the internet.
Amendment 15 limits the power of the disciplinary body to impose costs
in connection with interlocutory or interim proceedings.
Amendments 16 and 17 are of a minor technical nature.
Amendment 18 provides in more detail for how different arrangements
are to apply for practising certificates for solicitors and barristers for the
2004/2005 financial year.
Amendment 19 is an amendment of a drafting nature.
Amendment 20 provides for how the disclosure regime for show cause
events operates for those applying for solicitors' practising certificates for
the 2004/2005 year.
Amendment 21 allows for the arrangements in respect of barristers'
practising certificates from 1 July 2004, in particular, to allow a person to
apply before the commencement of the new scheme and to allow for
persons to pay in advance.
Amendment 22 provides for the continuation of the existing Queensland
Law Society rules and how they are to be amended, repealed and expired.
Amendment 23 ensures that when the legal services commissioner
receives a complaint from the legal ombudsman on the expiry of the
operation of the legal ombudsman's office or between then and the
commencement of the new complaints regime, for the Commissioner to be
able to deal with the matter appropriately, including for preparation of the
new scheme.
Amendment 24 will allow complaints made before commencement of the
new complaints scheme in Chapter 3 (including complaints made to the
Legal Ombudsman and not finalised) to be dealt with in way that prevents
duplication and unreasonable delay.
Amendment 25 is an amendment of a drafting nature concerning
commencement.
Amendment 26 is an amendment of a drafting nature.
Amendment 27 provides for the transitional regulation making power to
apply to the transition:
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Legal Profession Bill 2004
(a) from a relevant law, or other Act in relation to the legal
profession, before the commencement of the section, to the
operation of a relevant law, or another Act in relation to the legal
profession, as in force from time to time after that
commencement;
(b) from the operation of a relevant law, or another Act in relation to
the legal profession, from time to time after the commencement
of the section, to the operation of a relevant law, or another Act in
relation to the legal in relation to the legal profession as in force
from time to time after that commencement.
Amendment 28 to 30 are amendments of a drafting nature.
© State of Queensland 2004