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PARLIAMENT OF VICTORIA
Legal Profession Amendment Bill 2007
TABLE OF PROVISIONS
Clause Page
1 Purpose 1
2 Commencement 1
3 Principal Act 2
4 Definitions 2
5 Outline of Chapter 2 10
6 Workplace agreements and conveyancing work 10
7 Presumptions about taking or using certain names, titles or
descriptions 11
8 Prohibitions regarding associates 11
9 Admission to the legal profession 12
10 Local practising certificates 12
11 New section 2.4.14 substituted 17
2.4.14 Conditions imposed by the Board on grant or renewal 17
12 Conditions of local practising certificates 18
13 Amending, suspending or cancelling practising certificate 18
14 New section 2.4.24 substituted 19
2.4.24 Other ways of amending or cancelling local practising
certificates 19
15 Complaints about Australian legal practitioners 20
16 Show cause events 20
17 New section 2.4.34 substituted 21
2.4.34 Notification by interstate legal practitioner becoming
authorised to withdraw from local trust account 21
18 Review of local practising certificate decisions 22
19 New section 2.4.41 inserted 22
2.4.41 Government lawyers of other jurisdictions 22
20 New section 2.6.1A inserted 24
2.6.1A Definition 24
21 Removal from roll 24
22 New section 2.6.6A inserted 24
2.6.6A Lawyer to give notice of interstate orders 24
23 New sections 2.6.7 and 2.6.8 substituted 25
2.6.7 Lawyer to give notice of foreign regulatory action 25
2.6.8 Provisions relating to requirement to notify 26
24 Peremptory cancellation of local practising certificate
following removal from interstate roll 26
561025B.I-27/2/2007 i BILL LA INTRODUCTION 27/2/2007
Clause Page
25 New sections 2.6.10A and 2.6.10B inserted 26
2.6.10A Show cause procedure for removal of lawyer's name
from local roll following foreign regulatory action 26
2.6.10B Show cause procedure for cancellation of local
practising certificate following foreign regulatory
action 27
26 Further amendments regarding foreign regulatory action 28
27 Incorporated legal practices and multi-disciplinary partnerships 30
28 Foreign lawyers 32
29 New section 2.8.25 substituted 35
2.8.25 Grounds for amending, suspending of cancelling
registration 35
30 Further foreign lawyer amendments 36
31 New section 2.8.46 substituted 37
2.8.46 Consideration and investigation of applicants and
locally registered foreign lawyers 37
32 Legal profession rules 38
33 Trust money and trust accounts 39
34 New section 3.3.9 substituted 42
3.3.9 Liability of principals of law practice 42
35 Receiving and dealing with trust money 42
36 New section 3.3.14A inserted 43
3.3.14A Manner of withdrawal of trust money from general
trust account 43
37 New section 3.3.15A inserted 44
3.3.15A Manner of withdrawal of controlled money from
controlled money account 44
38 Transit money and trust money subject to specific powers 44
39 New section 3.3.17A inserted 45
3.3.17A Trust money received in the form of cash 45
40 Further trust money and trust account amendments 47
41 New section 3.3.71 substituted 49
3.3.71 Restrictions on receipt of trust money 49
42 New section 3.3.73 substituted 50
3.3.73 Application of Part to incorporated legal practices
and multi-disciplinary partnerships 50
43 Costs disclosure and review definitions 51
44 New section 3.4.2A inserted 52
3.4.2A Terms relating to third party payers 52
45 Costs disclosure 53
46 New section 3.4.16 substituted 56
3.4.16 Ongoing obligation to disclose 56
47 Further costs amendments 57
48 New section 3.4.18A inserted 58
3.4.18A Disclosure to associated third party payers 58
561025B.I-27/2/2007 ii BILL LA INTRODUCTION 27/2/2007
Clause Page
49 New section 3.4.21 substituted 59
3.4.21 Interest on unpaid legal costs 59
50 Costs agreements 59
51 New section 3.4.28 substituted 61
3.4.28 Conditional costs agreements involving uplift fees 61
52 Contingency fees 62
53 Setting aside costs agreements 62
54 Billing 63
55 New section 3.4.36 substituted 64
3.4.36 Request for itemised bill 64
56 New section 3.4.38 substituted 65
3.4.38 Application by clients or third party payers for costs
review 65
57 Costs reviews 69
58 New section 3.4.42 substituted 70
3.4.42 Persons to be notified of application 70
59 Procedure on costs review 71
60 Criteria for costs review 71
61 New sections 3.4.44A and 3.4.44B inserted 71
3.4.44A Review of costs by reference to costs agreement 71
3.4.44B Review of costs by reference to practitioner
remuneration order or scale of costs 72
62 Costs of review 72
63 Contracting out of Division by sophisticated clients 73
64 Fidelity cover 73
65 Complaints and discipline 75
66 External intervention 77
67 New section 5.5.17 substituted 83
5.5.17 Termination of receiver's appointment by Supreme
Court 83
68 Appeal against appointment 85
69 New section 5.6.5A inserted 85
5.6.5A Manager and receiver appointed for law practice 85
70 New section 5.6.6 substituted 86
5.6.6 ADI disclosure requirements 86
71 Immunity for Board members 87
72 Keeping the register 88
73 Immunity for Commissioner and others 88
74 Fidelity Fund 89
75 Injunctions 89
76 Confidentiality of personal information 90
77 Legal Services Board elections 91
2 Enrolment 91
3 Eligibility to stand and vote 91
78 Transitional provisions 92
561025B.I-27/2/2007 iii BILL LA INTRODUCTION 27/2/2007
Clause Page
79 New Part 12 inserted in Schedule 2 93
PART 12--LEGAL PROFESSION AMENDMENT
ACT 2007 93
12.1 Practising certificates 93
80 Consequential amendment of Conveyancers Act 2006 94
81 Repeal of Act 94
ENDNOTES 95
561025B.I-27/2/2007 iv BILL LA INTRODUCTION 27/2/2007
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Legal Profession Amendment Bill 2007
A Bill for an Act to amend the Legal Profession Act 2004 as a result
of amendments to the national model provisions for the regulation of
the legal profession and generally to improve the regulation of the
profession and for other purposes.
The Parliament of Victoria enacts:
1 Purpose
The purpose of this Act is to amend the Legal
Profession Act 2004 as a result of amendments to
the national model provisions for the regulation of
5 the legal profession and generally to improve the
regulation of the profession.
2 Commencement
(1) This Act (except sections 6, 48 and 49) comes into
operation on the day after the day on which it
10 receives the Royal Assent.
561025B.I-27/2/2007 1 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 3
(2) Section 6(1) is deemed to have come into
operation on 27 March 2006.
(3) Subject to subsection (4), section 6(2) comes into
operation on a day to be proclaimed.
5 (4) If section 6(2) does not come into operation
before 1 July 2008, it comes into operation on that
day.
(5) Sections 48 and 49 come into operation on the day
that is 6 months after the day on which this Act
10 receives the Royal Assent.
3 Principal Act
See: In this Act, the Legal Profession Act 2004 is
Act No.
99/2004. called the Principal Act.
Reprint No. 1
as at
12 December
2005
and
amending
Act Nos
97/2005,
14/2006,
29/2006,
75/2006,
79/2006 and
80/2006.
LawToday:
www.
legislation.
vic.gov.au
4 Definitions
15 (1) In section 1.2.1 of the Principal Act--
(a) insert the following definitions--
"client includes a person to whom or for
whom legal services are provided;
disqualified person means any of the
20 following persons, whether the thing
that has happened to the person
happened before or after the
commencement of this definition--
561025B.I-27/2/2007 2 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 4
(a) a person whose name has
(whether or not at his or her own
request) been removed from an
Australian roll and who has not
5 subsequently been admitted or
re-admitted to the legal profession
under this Act or a corresponding
law; or
(b) a person whose Australian
10 practising certificate has been
suspended or cancelled under this
Act or a corresponding law and
who, because of the cancellation,
is not an Australian legal
15 practitioner or in relation to whom
that suspension has not finished;
or
(c) a person who has been refused a
renewal of an Australian
20 practising certificate under this
Act or a corresponding law, and to
whom an Australian practising
certificate has not been granted at
a later time; or
25 (d) a person who is the subject of an
order under section 2.2.6 or an
order under a corresponding law
prohibiting a law practice from
employing or paying the person in
30 connection with the relevant
practice; or
(e) a person who is the subject of an
order under this Act or a
corresponding law prohibiting an
35 Australian legal practitioner from
being a partner of the person in a
561025B.I-27/2/2007 3 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 4
business that includes the
practitioner's practice; or
(f) a person who is the subject of an
order under section 2.7.25 or
5 2.7.50 or under provisions of a
corresponding law that correspond
to section 2.7.25 or 2.7.50;
domestic partner of a person means an adult
person to whom the person is not
10 married but with whom the person is in
a relationship as a couple where one or
each of them provides personal or
financial commitment and support of a
domestic nature for the material benefit
15 of the other, irrespective of their
genders and whether or not they are
living under the same roof, but does not
include a person who provides
domestic support and personal care to
20 the person--
(a) for fee or reward; or
(b) on behalf of another person or an
organisation (including a
government or government
25 agency, a body corporate or a
charitable or benevolent
organisation);
family member of a person means--
(a) a spouse or domestic partner of
30 the person; or
(b) a parent or grandparent of the
person; or
(c) a child or grandchild of the
person; or
561025B.I-27/2/2007 4 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 4
(d) a sibling of the person; or
(e) a child of a sibling of the person;
spouse of a person means a person to whom
the person is married;";
5 (b) for the definition of "affairs" substitute--
"affairs of a law practice includes the
following--
(a) all accounts and records required
under this Act or the regulations to
10 be maintained by the practice or
an associate or former associate of
the practice;
(b) other records of the practice or an
associate or former associate of
15 the practice;
(c) any transaction--
(i) to which the practice or an
associate or former associate
of the practice was or is a
20 party; or
(ii) in which the practice or an
associate or former associate
of the practice has acted for a
party;";
25 (c) in the definition of "amend", in paragraphs
(a)(ii) and (b)(iii), for "amend or revoke"
substitute "vary or revoke";
(d) for the definition of "community legal
centre" substitute--
30 "community legal centre means an
organisation, whether incorporated or
not--
561025B.I-27/2/2007 5 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 4
(a) that is held out or holds itself out
as being a community legal centre
(or a centre or establishment of a
similar description); and
5 (b) that provides legal services--
(i) that are directed generally to
persons or organisations that
lack the financial means to
obtain privately funded legal
10 services or whose cases are
expected to raise issues of
public interest or are of
general concern to
disadvantaged groups in the
15 community; and
(ii) that are made available to
persons or organisations that
have a special need arising
from their location or the
20 nature of the legal matter to
be addressed or have a
significant physical or social
disability; and
(iii) that are not intended, or
25 likely, to be provided at a
profit to the community legal
centre and the income (if
any) from which cannot or
will not be distributed to any
30 member or employee of the
centre otherwise than by way
of reasonable remuneration
under a contract of service or
for services;";
561025B.I-27/2/2007 6 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 4
(e) for the definition of "insolvent under
administration" substitute--
"insolvent under administration means--
(a) a person who is an undischarged
5 bankrupt within the meaning of
the Bankruptcy Act 1966 of the
Commonwealth (or the
corresponding provisions of the
law of a foreign country or
10 external territory); or
(b) a person who has executed a deed
of arrangement under Part X of
the Bankruptcy Act 1966 of the
Commonwealth (or the
15 corresponding provisions of the
law of a foreign country or
external territory) if the terms of
the deed have not been fully
complied with; or
20 (c) a person whose creditors have
accepted a composition under
Part X of the Bankruptcy Act
1966 of the Commonwealth (or
the corresponding provisions of
25 the law of a foreign country or
external territory) if a final
payment has not been made under
that composition; or
(d) a person for whom a debt
30 agreement has been made under
Part IX of the Bankruptcy Act
1966 of the Commonwealth (or
the corresponding provisions of
the law of a foreign country or
35 external territory) if the debt
agreement has not ended or has
not been terminated; or
561025B.I-27/2/2007 7 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 4
(e) a person who has executed a
personal insolvency agreement
under Part X of the Bankruptcy
Act 1966 of the Commonwealth
5 (or the corresponding provisions
of the law of a foreign country or
external territory) but not if the
agreement has been set aside or
terminated or all of the obligations
10 that the agreement created have
been discharged;";
(f) in the definition of "legal costs", after
"to pay" insert "to";
(g) for the definition of "show cause event"
15 substitute--
"show cause event, in relation to a person,
means--
(a) his or her becoming bankrupt or
being served with notice of a
20 creditor's petition presented to the
Court under section 43 of the
Bankruptcy Act 1966 of the
Commonwealth; or
(b) his or her presentation (as a
25 debtor) of a declaration to the
Official Receiver under
section 54A of the Bankruptcy
Act 1966 of the Commonwealth
of his or her intention to present a
30 debtor's petition or his or her
presentation (as a debtor) of such
a petition under section 55 of that
Act; or
(c) his or her applying to take the
35 benefit of any law for the relief of
bankrupt or insolvent debtors,
561025B.I-27/2/2007 8 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 4
compounding with his or her
creditors or making an assignment
of his or her remuneration for their
benefit; or
5 (d) his or her being found guilty of a
serious offence or a tax offence,
whether or not--
(i) the offence was committed
in or outside this jurisdiction;
10 or
(ii) the offence was committed
while the person was
engaging in legal practice as
an Australian legal
15 practitioner or was practising
foreign law as an Australian-
registered foreign lawyer, as
the case requires; or
(iii) other persons are prohibited
20 from disclosing the identity
of the offender;";
(h) in the definition of "trust property", after
"trust money" insert "or money referred to
in section 3.3.3".
25 (2) At the end of section 1.2.1 of the Principal Act
insert--
"(2) For the purposes of the definition of
domestic partner in subsection (1)--
(a) in determining whether persons are
30 domestic partners of each other, all the
circumstances of their relationship are
to be taken into account, including any
one or more of the matters referred to in
section 275(2) of the Property Law
35 Act 1958 as may be relevant in a
particular case;
561025B.I-27/2/2007 9 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 5
(b) a person is not a domestic partner of
another person only because they are
co-tenants.".
(3) In section 1.2.4(1) of the Principal Act--
5 (a) in paragraph (a)(vi), after "of" insert
", or consultant to,";
(b) after paragraph (d) insert--
"(da) a person (not being an Australian legal
practitioner) who is a partner in a multi-
10 disciplinary partnership; or".
5 Outline of Chapter 2
In section 2.1.1(2) of the Principal Act--
(a) for "admission to legal practice" substitute
"admission to the legal profession";
15 (b) for "this and other jurisdictions" substitute
"this jurisdiction and elsewhere".
6 Workplace agreements and conveyancing work
(1) In section 2.2.2(2)(e) of the Principal Act, for
"an AWA or certified agreement" substitute
20 "a workplace agreement".
(2) After section 2.2.2(2)(e) of the Principal Act
insert--
"(ea) a licensee within the meaning of the
Conveyancers Act 2006 who performs
25 conveyancing work in accordance with that
Act;".
561025B.I-27/2/2007 10 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 7
7 Presumptions about taking or using certain names,
titles or descriptions
(1) For section 2.2.4(1) of the Principal Act
substitute--
5 "(1) This section applies to the following names,
titles and descriptions--
(a) legal practitioner;
(b) barrister;
(c) solicitor;
10 (d) attorney;
(e) counsel;
(f) Queen's Counsel;
(g) King's Counsel;
(h) Her Majesty's Counsel;
15 (i) His Majesty's Counsel;
(j) Senior Counsel.
(1A) The regulations may specify the kind of
persons who are entitled, and the
circumstances in which they are entitled, to
20 take or use a name, title or description to
which this section applies.".
(2) In section 2.2.4(2) and (3) of the Principal Act, for
"specified in the regulations" substitute "to which
this section applies".
25 8 Prohibitions regarding associates
In section 2.2.5 of the Principal Act--
(a) the definition of "disqualified person" is
repealed;
561025B.I-27/2/2007 11 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 9
(b) in the definition of "lay associate", after
paragraph (b)(iii) insert--
"(iv) a consultant to the law practice
(however described) who--
5 (A) is not an Australian legal
practitioner; and
(B) provides services to the law
practice, other than services of a
kind prescribed by the
10 regulations;".
9 Admission to the legal profession
After section 2.3.9(2) of the Principal Act
insert--
"(3) A person ceases to be an officer of the
15 Supreme Court under subsection (1) if the
person's name is removed from the local
roll.".
10 Local practising certificates
(1) In the Principal Act--
20 (a) in section 2.4.1(b), for "grant" substitute
"granting and renewing";
(b) in section 2.4.3(4)(b), for "Court." substitute
"Court; and";
(c) after section 2.4.3(4)(b) insert--
25 "(c) the condition referred to in
subsection (8).".
(2) After section 2.4.3(7) of the Principal Act
insert--
"(8) It is a statutory condition of a local practising
30 certificate that the holder must not hold
another local practising certificate, or an
interstate practising certificate, that is in
561025B.I-27/2/2007 12 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 10
force during the currency of the first-
mentioned local practising certificate.".
(3) Before section 2.4.4(1) of the Principal Act
insert--
5 "(1AA) This section has effect for the purposes of
Division 4 of this Part or any other provision
of this Act where the question of whether or
not a person is a fit and proper person to hold
a local practising certificate is relevant.".
10 (4) In section 2.4.4 of the Principal Act--
(a) in subsection (1)--
(i) for "a person" substitute "the person";
(ii) in paragraph (c), after "law" insert
"or the regulations or legal profession
15 rules under this Act or a corresponding
law";
(iii) for paragraph (e)(ii) substitute--
"(ii) whether the person has
contravened a requirement
20 imposed by the Board or the
Liability Committee about
professional indemnity insurance;
or";
(b) in subsection (3)(b), for "Court;" substitute
25 "Court,".
(5) For section 2.4.8(2) of the Principal Act
substitute--
"(2) An Australian lawyer is eligible to apply for
the grant or renewal of a local practising
30 certificate if the lawyer complies with any
regulations and legal profession rules
relating to eligibility for the practising
certificate and if--
561025B.I-27/2/2007 13 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 10
(a) in the case of a lawyer who is not an
Australian legal practitioner at the time
of making the application--
(i) the lawyer reasonably expects to
5 be engaged in legal practice solely
or principally in this jurisdiction
during the currency of the
certificate or renewal applied for;
or
10 (ii) if subparagraph (i) does not apply
to the lawyer or it is not
reasonably practicable to
determine whether it applies to the
lawyer--the lawyer's place of
15 residence in Australia is this
jurisdiction or the lawyer does not
have a place of residence in
Australia; or
(b) in the case of a lawyer who is an
20 Australian legal practitioner at the time
of making the application--
(i) the jurisdiction in which the
lawyer engages in legal practice
solely or principally is this
25 jurisdiction; or
(ii) the lawyer holds a current local
practising certificate and engages
in legal practice in another
jurisdiction under an arrangement
30 that is of a temporary nature; or
(iii) the lawyer reasonably expects to
be engaged in legal practice solely
or principally in this jurisdiction
during the currency of the
35 certificate or renewal applied for;
or
561025B.I-27/2/2007 14 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 10
(iv) if subparagraph (i), (ii) or (iii)
does not apply to the lawyer or it
is not reasonably practicable to
determine whether subparagraph
5 (i), (ii) or (iii) applies to the
lawyer--the lawyer's place of
residence in Australia is this
jurisdiction or the lawyer does not
have a place of residence in
10 Australia.".
(6) After section 2.4.8(3) of the Principal Act
insert--
"(3A) An Australian lawyer is not eligible to apply
for the grant or renewal of a local practising
15 certificate in respect of a financial year if the
lawyer would also be the holder of another
Australian practising certificate for that year,
but this subsection does not limit the factors
determining ineligibility to apply for the
20 grant or renewal of a local practising
certificate.".
(7) For section 2.4.8(5), (6), (7) and (8) of the
Principal Act substitute--
"(5) An Australian legal practitioner who--
25 (a) engages in legal practice solely or
principally in this jurisdiction during a
financial year; and
(b) reasonably expects to engage in legal
practice solely or principally in this
30 jurisdiction in the following financial
year--
must apply for the grant or renewal of a local
practising certificate in respect of the
following financial year.
561025B.I-27/2/2007 15 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 10
(6) Subsection (5) does not apply to an interstate
legal practitioner who applied for the grant
or renewal of an interstate practising
certificate on the basis that the practitioner
5 reasonably expected to engage in legal
practice solely or principally in this
jurisdiction under an arrangement that is of a
temporary nature.
(7) A reference in this section to engaging in
10 legal practice principally in this or any other
jurisdiction applies only to legal practice in
Australia. Accordingly, an Australian
lawyer who is engaged or expects to be
engaged in legal practice principally in a
15 foreign country is nevertheless eligible to
apply for the grant or renewal of a local
practising certificate if the lawyer otherwise
meets the requirements of this section.
Note
20 The purpose of this subsection is to deal with a case
where a person practises both in Australia and
overseas. In that case, overseas practice is to be
disregarded (even if it forms the principal portion of
the person's overall practice), so that eligibility is
25 determined by reference only to the person's practice
in Australia.".
(8) After section 2.4.13(1)(d) of the Principal Act
insert--
"(da) any conditions imposed or varied by the
30 Board under section 2.4.21, 2.4.24 or 2.4.28;
and".
(9) After section 2.4.13(3) of the Principal Act
insert--
"(4) A condition imposed by the Board or
35 Tribunal must be reasonable and relevant.
561025B.I-27/2/2007 16 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 11
(5) A condition imposed by the Board or the
Tribunal may include any of the following--
(a) requiring the holder of the practising
certificate to undertake and complete an
5 academic or training course;
(b) controlling or restricting the operation
of a trust account;
(c) restricting the holder to particular
conditions concerning employment or
10 supervision;
(d) a matter agreed by the holder.
(6) Subsection (5) does not limit the matters
about which a condition may be imposed on
a practising certificate by the Board or the
15 Tribunal.
(7) If the Board or the Tribunal imposes, varies
or revokes a condition during the currency of
a local practising certificate, the condition,
variation or revocation takes effect when the
20 holder has been notified of it or at a later
time specified by the Board or Tribunal
(as the case requires).".
11 New section 2.4.14 substituted
For section 2.4.14 of the Principal Act
25 substitute--
"2.4.14 Conditions imposed by the Board on grant
or renewal
(1) The Board may impose conditions on a local
practising certificate when it is granted or
30 renewed.
Note
The Board may also impose conditions on a local
practising certificate, or vary or revoke conditions,
during the currency of the certificate--see sections
35 2.4.21, 2.4.24 and 2.4.28.
561025B.I-27/2/2007 17 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 12
(2) If the Board decides to impose a condition
on a local practising certificate under this
section, it must give the applicant or holder
an information notice about the decision.
5 Note
Section 2.4.37 provides a right to apply for review of
the decision.".
12 Conditions of local practising certificates
Section 2.4.15 of the Principal Act is repealed.
10 13 Amending, suspending or cancelling practising
certificate
(1) In section 2.4.20(c) of the Principal Act, for
"is engaging" substitute "is or has been
engaging".
15 (2) In section 2.4.21 of the Principal Act--
(a) in subsection (1)--
(i) omit '(the "show cause notice")';
(ii) in paragraph (d), after "not less than"
insert "7 days and not more than";
20 (b) in subsection (3)--
(i) in paragraph (a), for "show cause
notice" substitute "notice under
subsection (1)";
(ii) in paragraph (b), omit "show cause";
25 (c) for subsection (3)(c) substitute--
"(c) if the notice stated that the proposed
action was to cancel the practising
certificate--
(i) cancel the certificate; or
30 (ii) suspend the certificate for a
period; or
561025B.I-27/2/2007 18 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 14
(iii) amend the certificate in a less
onerous way the Board considers
appropriate because of the
representations.";
5 (d) at the foot of subsection (3) insert--
"Note
Amending a local practising certificate includes
imposing a condition on it, or varying or revoking a
condition--see the definition of amend in
10 section 1.2.1.";
(e) at the foot of subsection (4) insert--
"Note
Section 2.4.37 provides a right to apply for review of
the decision.".
15 14 New section 2.4.24 substituted
For section 2.4.24 of the Principal Act
substitute--
"2.4.24 Other ways of amending or cancelling
local practising certificates
20 (1) The Board may amend or cancel a local
practising certificate if the holder requests
the Board to do so.
Note
Amending a local practising certificate includes
25 imposing a condition on it, or varying or revoking a
condition--see the definition of amend in
section 1.2.1.
(2) The Board may amend a local practising
certificate--
30 (a) for a formal or clerical reason; or
(b) in another way that does not adversely
affect the holder's interests.
561025B.I-27/2/2007 19 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 15
(3) The Board must cancel a local practising
certificate if the holder's name has been
removed from the local roll or the holder
ceases to be an Australian lawyer.
5 (4) The amendment or cancellation of a local
practising certificate under this section is
effected by written notice given to the
holder.
(5) Section 2.4.21 does not apply in a case to
10 which this section applies.
(6) If the Board decides to refuse a request
referred to in subsection (1), the Board must
give the holder an information notice about
the decision.
15 Note
Section 2.4.37 provides a right to apply for review of
the decision.".
15 Complaints about Australian legal practitioners
In section 2.4.25 of the Principal Act, for "the
20 Board from making a complaint" substitute
"a complaint from being made".
16 Show cause events
(1) In section 2.4.26(2) of the Principal Act omit
", in accordance with the regulations".
25 (2) For section 2.4.26(3) of the Principal Act
substitute--
"(3) However, the person need not provide a
statement under subsection (2) if the person
(as a previous applicant for a local practising
30 certificate or as the holder of a local
practising certificate previously in force) has
previously provided to the Board--
(a) a statement under this section; or
561025B.I-27/2/2007 20 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 17
(b) a notice and statement under
section 2.4.27--
explaining why, despite the show cause
event, the person considers himself or herself
5 to be a fit and proper person to hold a local
practising certificate.".
(3) In section 2.4.27(2)(a) of the Principal Act, for
"approved form" substitute "form approved by
the Board".
10 (4) After section 2.4.33(4) of the Principal Act
insert--
"(5) An interstate legal practitioner must not
contravene a condition imposed under this
section.".
15 17 New section 2.4.34 substituted
For section 2.4.34 of the Principal Act
substitute--
"2.4.34 Notification by interstate legal
practitioner becoming authorised to
20 withdraw from local trust account
(1) An interstate legal practitioner must notify
the Board if the practitioner (whether alone
or with a co-signatory) becomes authorised
to withdraw money from a local trust
25 account.
(2) The Board may determine the manner in
which the notification is to be made and the
information or material that is to be included
in or to accompany the notification.
30 Note
The practitioner may also need to pay a contribution
to the Fidelity Fund--see section 6.7.27.".
561025B.I-27/2/2007 21 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 18
18 Review of local practising certificate decisions
After section 2.4.37(1)(a) of the Principal Act
insert--
"(ab) imposing a condition on a local practising
5 certificate under section 2.4.14; or".
19 New section 2.4.41 inserted
After section 2.4.40 of the Principal Act insert--
"2.4.41 Government lawyers of other jurisdictions
(1) A government lawyer of another jurisdiction
10 is not subject to--
(a) any prohibition under this Act about--
(i) engaging in legal practice in this
jurisdiction; or
(ii) making representations about
15 engaging in legal practice in this
jurisdiction; or
(b) conditions imposed on a local
practising certificate; or
(c) requirements of legal profession rules;
20 or
(d) professional discipline--
in respect of the performance of his or her
official duties or functions as a government
lawyer of the other jurisdiction to the extent
25 that he or she is exempt from matters of the
same kind under a law of the other
jurisdiction.
(2) Contributions and levies are not payable to
the Fidelity Fund by or in respect of a
30 government lawyer of another jurisdiction in
his or her capacity as a government lawyer.
561025B.I-27/2/2007 22 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 19
(3) Without affecting subsections (1) and (2),
nothing in this section prevents a
government lawyer of another jurisdiction
from being granted or holding a local
5 practising certificate.
(4) In this section--
another jurisdiction means--
(a) another State or a Territory of the
Commonwealth; or
10 (b) the Commonwealth;
government agency of another jurisdiction
means--
(a) a government department of that
jurisdiction; or
15 (b) a body or organisation that is
established by or under the law of
that jurisdiction for a public
purpose or to exercise
governmental functions--
20 and includes a body or organisation
(or bodies or organisations of a class)
prescribed by the regulations as being
within this definition;
government lawyer means an Australian
25 lawyer, or a person eligible for
admission to the legal profession,
employed by or in a government
agency of another jurisdiction.".
561025B.I-27/2/2007 23 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 20
20 New section 2.6.1A inserted
After section 2.6.1 of the Principal Act insert--
"2.6.1A Definition
In this Part--
5 foreign regulatory action taken in relation to
a person means--
(a) removal of the person's name from
a foreign roll for disciplinary
reasons; or
10 (b) suspension or cancellation of, or
refusal to renew, the person's right
to engage in legal practice in a
foreign country.".
21 Removal from roll
15 (1) In section 2.6.4 of the Principal Act--
(a) in subsection (1), for "local lawyer's"
substitute "person's";
(b) in subsection (3), for "lawyer's" (wherever
occurring) substitute "person's".
20 (2) In section 2.6.6(1) and (2) of the Principal Act,
after "practicable" insert "after becoming aware
of the removal".
22 New section 2.6.6A inserted
After section 2.6.6 of the Principal Act insert--
25 "2.6.6A Lawyer to give notice of interstate orders
(1) If an order is made under a corresponding
law recommending that the name of a local
lawyer be removed from the local roll, the
lawyer must, as soon as practicable after
30 becoming aware of the order, give the
prothonotary written notice of the order.
Penalty: 10 penalty units.
561025B.I-27/2/2007 24 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 23
(2) If an order is made under a corresponding
law in relation to a local legal practitioner
that--
(a) the practitioner's local practising
5 certificate be suspended or cancelled;
or
(b) a local practising certificate not be
granted to the practitioner for a period;
or
10 (c) conditions be imposed on the
practitioner's local practising
certificate--
the practitioner must, as soon as practicable
after becoming aware of the order, give the
15 Board written notice of the order.
Penalty: 60 penalty units.".
23 New sections 2.6.7 and 2.6.8 substituted
For sections 2.6.7 and 2.6.8 of the Principal Act
substitute--
20 "2.6.7 Lawyer to give notice of foreign
regulatory action
(1) If foreign regulatory action has been taken in
relation to a local lawyer, the lawyer must, as
soon as practicable after becoming aware of
25 the action, give the prothonotary a written
notice of the action taken.
Penalty: 10 penalty units.
(2) If foreign regulatory action has been taken in
relation to a local legal practitioner, the
30 practitioner must, as soon as practicable after
becoming aware of the action, give the
Board a written notice of the action taken.
Penalty: 60 penalty units.
561025B.I-27/2/2007 25 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 24
2.6.8 Provisions relating to requirement to
notify
A notice to be given under this Division by a
person must--
5 (a) state his or her name and address; and
(b) disclose full details of the action to
which the notice relates, including the
date on which that action was taken;
and
10 (c) be accompanied by a copy of any
official notification provided to him or
her in connection with that action.".
24 Peremptory cancellation of local practising
certificate following removal from interstate roll
15 For section 2.6.10(1)(a) of the Principal Act
substitute--
"(a) a person's name is removed from an
interstate roll but he or she remains an
Australian lawyer; and".
20 25 New sections 2.6.10A and 2.6.10B inserted
After section 2.6.10 of the Principal Act insert--
"2.6.10A Show cause procedure for removal of
lawyer's name from local roll following
foreign regulatory action
25 (1) This section applies if the Board is satisfied
that--
(a) foreign regulatory action has been
taken in relation to a local lawyer,
whether before or after the
30 commencement of this section; and
(b) no order referred to in
section 2.6.11(1)(a) is in force in
relation to the action taken.
561025B.I-27/2/2007 26 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 25
(2) The Board may serve on the lawyer a notice
stating that the Board will apply to the
Supreme Court for an order that the lawyer's
name be removed from the local roll unless
5 the lawyer shows cause to the Board why his
or her name should not be removed.
(3) If the lawyer does not satisfy the Board that
his or her name should not be removed from
the local roll, the Board may apply to the
10 Supreme Court for an order that his or her
name be removed from the local roll.
(4) Before applying for an order that the
lawyer's name be removed, the Board must
afford the lawyer a reasonable opportunity to
15 show cause why his or her name should not
be removed.
(5) The Supreme Court may, on application
made under this section, order that the
lawyer's name be removed from the local
20 roll, or may refuse to do so.
(6) The lawyer is entitled to appear before and
be heard by the Supreme Court at a hearing
in respect of an application under this
section.
25 2.6.10B Show cause procedure for cancellation of
local practising certificate following
foreign regulatory action
(1) This section applies if the Board is satisfied
that--
30 (a) foreign regulatory action has been
taken in relation to a local legal
practitioner, whether before or after the
commencement of this section; and
(b) no order referred to in
35 section 2.6.11(1)(b) is in force in
relation to the action taken.
561025B.I-27/2/2007 27 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 26
(2) The Board may serve on the practitioner a
notice stating that the Board proposes to
cancel his or her local practising certificate
unless the practitioner shows cause to the
5 Board why his or her practising certificate
should not be cancelled.
(3) The Board must afford the practitioner a
reasonable opportunity to show cause why
his or her practising certificate should not be
10 cancelled.
(4) If the practitioner does not satisfy the Board
that the practising certificate should not be
cancelled, the Board may cancel the
certificate.
15 (5) The Board must, as soon as practicable, give
the practitioner an information notice about
its decision to cancel the practising
certificate.
(6) The practitioner may apply to the Tribunal
20 for review of a decision of the Board to
cancel the practising certificate.
(7) An application for review must be made
within 28 days after the day on which the
information notice about the decision was
25 given to the practitioner.".
26 Further amendments regarding foreign regulatory
action
(1) For section 2.6.11(1) and (2) of the Principal Act
substitute--
30 "(1) If an Australian lawyer reasonably expects
that his or her name will be removed from an
interstate roll or that foreign regulatory
action will be taken against the lawyer, the
lawyer may apply to the Supreme Court for
35 either or both of the following--
561025B.I-27/2/2007 28 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 26
(a) an order that his or her name not be
removed from the local roll under
section 2.6.9 or 2.6.10A;
(b) an order that his or her local practising
5 certificate not be cancelled under
section 2.6.10 or 2.6.10B.
(2) The Supreme Court may make the order or
orders applied for if satisfied that--
(a) the lawyer's name is likely to be
10 removed from the interstate roll or the
foreign regulatory action is likely to be
taken; and
(b) the reason for the removal of the name
or the taking of the foreign regulatory
15 action will not involve disciplinary
action or the possibility of disciplinary
action--
or may refuse to make an order.".
(2) For section 2.6.11(4) of the Principal Act
20 substitute--
"(4) The Supreme Court may revoke an order
made under this section, and sections 2.6.9,
2.6.10, 2.6.10A and 2.6.10B (as relevant)
then apply as if the lawyer's name were
25 removed from the interstate roll or the
foreign regulatory action were taken when
the revocation takes effect.".
(3) Section 2.6.12 of the Principal Act is repealed.
561025B.I-27/2/2007 29 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 27
27 Incorporated legal practices and multi-disciplinary
partnerships
(1) In section 2.7.2 of the Principal Act, the definition
of "disqualified person" is repealed.
5 (2) After section 2.7.7(4) of the Principal Act
insert--
"(5) This section does not apply to a corporation
referred to in section 2.7.4(2)(a).".
(3) In section 2.7.10(6) of the Principal Act, for
10 "liability" substitute "liabilities".
(4) After section 2.7.11(1) of the Principal Act
insert--
"(1A) A legal practitioner director is not guilty of
unsatisfactory professional conduct or
15 professional misconduct under subsection (1)
if the director establishes that he or she took
all reasonable steps to ensure that--
(a) Australian legal practitioners employed
by the incorporated legal practice did
20 not engage in conduct or misconduct
referred to in subsection (1)(a); or
(b) directors (not being Australian legal
practitioners) of the incorporated legal
practice did not engage in conduct
25 referred to in subsection (1)(b); or
(c) unsuitable directors (not being
Australian legal practitioners) of the
incorporated legal practice were not
appointed or holding office as referred
30 to in subsection (1)(c)--
as the case requires.".
561025B.I-27/2/2007 30 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 27
(5) In the Principal Act--
(a) in section 2.7.18(2), for "of the relevant class
of Australian legal practitioners" substitute
"in that branch of the legal profession or in
5 that style of legal practice";
(b) in section 2.7.20, after "receipts" (wherever
occurring including in the heading) insert
", revenue or other income";
(c) in section 2.7.21(1)(c), for "receipts of"
10 substitute "receipts, revenue or other income
arising from".
(6) After section 2.7.22(1) of the Principal Act
insert--
"(1A) The Board may, in writing, appoint a
15 suitably qualified person to conduct an audit
under this section.
(1B) The appointment may be made generally, or
in relation to a particular incorporated legal
practice, or in relation to a particular audit.".
20 (7) In the Principal Act--
(a) in section 2.7.35, after "induce" insert
"or attempt to cause or induce";
(b) in section 2.7.38, for "approved form"
substitute "form approved by the Board";
25 (c) in section 2.7.48, after "receipts" (wherever
occurring including in the heading) insert
", revenue or other income";
(d) in section 2.7.49(1)(b), for "receipts of"
substitute "receipts, revenue or other income
30 arising from";
(e) in section 2.7.51, after "induce" insert
"or attempt to cause or induce".
561025B.I-27/2/2007 31 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 28
28 Foreign lawyers
(1) In section 2.8.2 of the Principal Act, the definition
of "commercial legal presence" is repealed.
(2) For section 2.8.4(2) of the Principal Act
5 substitute--
"(2) However, a person does not contravene
subsection (1) if the person is an overseas-
registered foreign lawyer--
(a) who--
10 (i) practises foreign law in this
jurisdiction for one or more
periods that do not in aggregate
exceed 90 days in any period of
12 months; or
15 (ii) is subject to a restriction imposed
under the Migration Act 1958 of
the Commonwealth that has the
effect of limiting the period during
which work may be done, or
20 business transacted, in Australia
by the person; and
(b) who--
(i) does not maintain an office for the
purpose of practising foreign law
25 in this jurisdiction; or
(ii) does not become a partner or
director of a law practice.".
(3) In the Principal Act--
(a) in section 2.8.8(1), for "constitute"
30 substitute "be capable of constituting";
(b) in section 2.8.11(1), for "the practice of law"
(where first occurring) substitute "legal
practice engaged in";
561025B.I-27/2/2007 32 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 28
(c) in section 2.8.13--
(i) in subsection (1), after "apply to" insert
"law practices and";
(ii) in subsection (3), after "this Act" insert
5 ", the regulations or any legal
profession rule".
(4) In section 2.8.20(2) of the Principal Act--
(a) for paragraph (d) substitute--
"(d) state whether the applicant has been
10 found guilty of an offence in Australia
or a foreign country, and if so--
(i) the nature of the offence; and
(ii) how long ago the offence was
committed; and
15 (iii) the applicant's age when the
offence was committed; and";
(b) for paragraph (f) substitute--
"(f) state--
(i) that the applicant is not otherwise
20 personally prohibited from
engaging in legal practice in any
place or bound by any undertaking
not to engage in legal practice in
any place; and
25 (ii) whether or not the applicant is
subject to any special conditions
in engaging in legal practice in
any place--
as a result of criminal, civil or
30 disciplinary proceedings in Australia or
a foreign country; and";
(c) in paragraph (g), for "the practice of law"
substitute "legal practice engaged in".
561025B.I-27/2/2007 33 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 28
(5) For section 2.8.21(2) of the Principal Act
substitute--
"(2) The Board may, when granting or renewing
registration, impose conditions as referred to
5 in section 2.8.40.
(2A) If the Board grants or renews registration,
the Board must, as soon as practicable, give
the applicant a registration certificate or a
notice of renewal.
10 (2B) If the Board--
(a) refuses to grant or renew registration;
or
(b) imposes a condition on the registration
and the applicant does not agree to the
15 condition--
the Board must, as soon as practicable, give
the applicant an information notice.".
(6) In section 2.8.22(1) of the Principal Act--
(a) in paragraph (b), for "the practice of law"
20 substitute "engaging in legal practice";
(b) in paragraph (c)--
(i) in subparagraph (i), for "carrying on the
practice of law" substitute "engaging
in legal practice";
25 (ii) in subparagraph (ii), for "the practice of
law" substitute "engaging in legal
practice";
(c) for paragraph (d) substitute--
"(d) is satisfied that the applicant
30 demonstrates an intention to commence
practising foreign law in this
jurisdiction within a reasonable period
if registration were to be granted--".
561025B.I-27/2/2007 34 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 29
(7) In section 2.8.23(2) of the Principal Act--
(a) in paragraph (g), for "Act." substitute
"Act; or";
(b) after paragraph (g) insert--
5 "(h) the applicant's foreign legal practice is
in receivership (however described).".
29 New section 2.8.25 substituted
For section 2.8.25 of the Principal Act
substitute--
10 "2.8.25 Grounds for amending, suspending of
cancelling registration
(1) Each of the following is a ground for
amending, suspending or cancelling a
person's registration as a foreign lawyer--
15 (a) the registration was obtained because of
incorrect or misleading information;
(b) the person fails to comply with a
requirement of this Part;
(c) the person fails to comply with a
20 condition imposed on the person's
registration;
(d) the person becomes the subject of
disciplinary proceedings in Australia or
a foreign country (including any
25 preliminary investigations or action that
might lead to disciplinary proceedings)
in his or her capacity as--
(i) an overseas-registered foreign
lawyer; or
30 (ii) an Australian-registered foreign
lawyer; or
(iii) an Australian lawyer;
561025B.I-27/2/2007 35 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 30
(e) the person has been found guilty of an
offence in Australia or a foreign
country;
(f) the person's registration is cancelled or
5 currently suspended in any place as a
result of any disciplinary action in
Australia or a foreign country;
(g) the person does not meet the
requirements of section 3.5.3;
10 (h) another ground the Board considers
sufficient.
(2) Subsection (1) does not limit the grounds on
which conditions may be imposed on
registration as a foreign lawyer under
15 section 2.8.40.".
30 Further foreign lawyer amendments
(1) In section 2.8.26 of the Principal Act--
(a) in subsection (1)--
(i) omit '(the "show cause notice")';
20 (ii) in paragraph (d), after "not less than"
insert "7 days and not more than";
(b) in subsection (2)--
(i) in paragraph (a), for "show cause
notice" substitute "notice under
25 subsection (1)";
(ii) in paragraph (b), omit "show cause";
(c) for subsection (2)(c) substitute--
"(c) if the notice stated the action proposed
was to cancel the registration--
30 (i) cancel the registration; or
(ii) suspend the registration for a
period; or
561025B.I-27/2/2007 36 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 31
(iii) amend the registration in a less
onerous way the Board considers
appropriate because of the
representations.".
5 (2) After section 2.8.26(5) of the Principal Act
insert--
"(6) In this section, amend registration means
amend the registration under section 2.8.40
during its currency, otherwise than at the
10 request of the foreign lawyer concerned.".
(3) In the Principal Act--
(a) in section 2.8.29, for "the Board from
making a complaint" substitute "a complaint
from being made";
15 (b) in section 2.8.31(2)(a) of the Principal Act,
for "approved form" substitute "form
approved by the Board".
31 New section 2.8.46 substituted
For section 2.8.46 of the Principal Act
20 substitute--
"2.8.46 Consideration and investigation of
applicants and locally registered foreign
lawyers
(1) To help it consider whether or not to grant,
25 renew, amend, suspend or cancel registration
under this Part, the Board may, by notice to
the applicant or locally registered foreign
lawyer, require the applicant or locally
registered foreign lawyer--
30 (a) to give it specified documents or
information; or
(b) to co-operate with any inquiries that it
considers appropriate.
561025B.I-27/2/2007 37 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 32
(2) A failure to comply with a notice under
subsection (1) by the date specified in the
notice and in the way required by the notice
is a ground for making an adverse decision
5 in relation to the action being considered by
the Board.".
32 Legal profession rules
(1) In the Principal Act--
(a) in section 3.2.10, for "a locally registered
10 foreign lawyer" substitute "an Australian-
registered foreign lawyer";
(b) for section 3.2.14(1)(b) substitute--
"(b) the provision of services that are not
legal services by or in connection with
15 incorporated legal practices or multi-
disciplinary partnerships, but only if the
provision of those services by--
(i) officers or employees of
incorporated legal practices; or
20 (ii) partners or employees of multi-
disciplinary partnerships--
may give rise to a conflict of interest
relating to the provision of legal
services.".
25 (2) For section 3.2.14(3) of the Principal Act
substitute--
"(3) However, the legal profession rules cannot--
(a) regulate any services that an
incorporated legal practice may provide
30 or conduct (other than the provision of
legal services or other services that may
give rise to a conflict of interest relating
to the provision of legal services); or
561025B.I-27/2/2007 38 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 33
(b) regulate or prohibit the conduct of
officers or employees of an
incorporated legal practice (other than
in connection with the provision of
5 legal services or other services that may
give rise to a conflict of interest relating
to the provision of legal services); or
(c) regulate any services that a multi-
disciplinary partnership may provide or
10 conduct (other than the provision of
legal services or other services that may
give rise to a conflict of interest relating
to the provision of legal services); or
(d) regulate or prohibit the conduct of
15 partners or employees of a multi-
disciplinary partnership (other than in
connection with the provision of legal
services or other services that may give
rise to a conflict of interest relating to
20 the provision of legal services).".
(3) In section 3.2.19(1) of the Principal Act, for
"on its Internet site or another Internet site"
substitute "(including on its Internet site, if any,
or on any other Internet site specified by the
25 Board)".
33 Trust money and trust accounts
(1) In section 3.3.2(1) of the Principal Act--
(a) the definition of "affairs" is repealed;
(b) in the definition of "controlled money", for
30 "trust money received by a law practice
with" substitute "money received or held by
a law practice in respect of which the
practice has";
(c) in the definition of "controlled money
35 account" omit "approved";
561025B.I-27/2/2007 39 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 33
(d) after the definition of "controlled money
account" insert--
"deposit record includes a deposit slip or
duplicate deposit slip;";
5 (e) for the definition of "trust money", in
relation to a law practice, substitute--
"trust money, in relation to a law practice,
means money entrusted to the law
practice in the course of or in
10 connection with the provision of legal
services by the practice, and includes--
(a) money received by the practice on
account of legal costs in advance
of providing the services; and
15 (b) controlled money received by the
practice; and
(c) transit money received by the
practice; and
(d) money received by the practice,
20 that is the subject of a power,
exercisable by the practice or an
associate of the practice, to deal
with the money for or on behalf of
another person;";
25 (f) in the definition of "trust records", for
paragraph (d) substitute--
"(d) deposit records;".
(2) After section 3.3.2(2) of the Principal Act
insert--
30 "(3) A reference in this Part to a power given to a
law practice or an associate of the practice to
deal with money for or on behalf of another
person is a reference to a power given to the
practice or associate that is exercisable by--
561025B.I-27/2/2007 40 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 33
(a) the practice alone; or
(b) an associate of the practice alone
(otherwise than in a private and
personal capacity); or
5 (c) the practice or an associate of the
practice jointly or severally, or jointly
and severally, with either or both of the
following--
(i) one or more associates of the
10 practice;
(ii) the person, or one or more
nominees of the person, for whom
or on whose behalf the money
may or is to be dealt with under
15 the power.".
(3) For section 3.3.3(2) of the Principal Act
substitute--
"(2) Without limiting subsection (1), money that
is entrusted to or held by a law practice for
20 or in connection with--
(a) a managed investment scheme; or
(b) mortgage financing--
undertaken by the practice is not trust money
for the purposes of this Act.".
25 (4) For section 3.3.7(1)(c) and (d) of the Principal Act
substitute--
"(c) the practice, or an associate of the practice
(otherwise than in a private and personal
capacity), is given a power to deal with the
30 money for or on behalf of another person.".
561025B.I-27/2/2007 41 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 34
34 New section 3.3.9 substituted
For section 3.3.9 of the Principal Act substitute--
"3.3.9 Liability of principals of law practice
(1) A provision of this Part or the regulations
5 made for the purposes of this Part expressed
as imposing an obligation on a law practice
imposes the same obligation on the
principals of the law practice jointly and
severally, but discharge of the practice's
10 obligation also discharges the corresponding
obligation imposed on the principals.
(2) References in this Part and the regulations
made for the purposes of this Part to a law
practice include references to the principals
15 of the law practice.".
35 Receiving and dealing with trust money
(1) For section 3.3.11(3) of the Principal Act
substitute--
"(3) Subsection (1) does not apply to a law
20 practice in respect of any period during
which the practice receives or holds only
either or both of the following--
(a) controlled money; or
(b) transit money received in a form other
25 than cash.".
(2) In section 3.3.13(1) of the Principal Act--
(a) for "As soon" substitute "Subject to
section 3.3.17A, as soon";
(b) for paragraph (d) substitute--
30 "(d) the money is the subject of a power
given to the practice or an associate of
the practice to deal with the money for
or on behalf of another person.".
561025B.I-27/2/2007 42 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 36
(3) In section 3.3.13 of the Principal Act--
(a) in subsection (2), for "A law practice"
substitute "Subject to section 3.3.17A, a law
practice";
5 (b) subsection (4) is repealed.
36 New section 3.3.14A inserted
After section 3.3.14 of the Principal Act insert--
"3.3.14A Manner of withdrawal of trust money
from general trust account
10 (1) A law practice or an approved clerk must not
withdraw trust money from a general trust
account otherwise than by cheque or
electronic funds transfer.
Penalty: 120 penalty units.
15 (2) Without limiting subsection (1), the
following are specifically prohibited--
(a) cash withdrawals;
(b) ATM withdrawals or transfers;
(c) telephone banking withdrawals or
20 transfers.
(3) The regulations may make provision for or
with respect to withdrawals by cheque or
electronic funds transfer.
(4) This section has effect despite anything to
25 the contrary in any directions given to the
law practice or approved clerk concerned,
even if the directions are given by a person
who is otherwise legally entitled to give the
law practice or approved clerk directions in
30 respect of dealings with trust money.".
561025B.I-27/2/2007 43 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 37
37 New section 3.3.15A inserted
After section 3.3.15 of the Principal Act insert--
"3.3.15A Manner of withdrawal of controlled
money from controlled money account
5 (1) A law practice must not withdraw controlled
money from a controlled money account
otherwise than by cheque or electronic funds
transfer.
Penalty: 120 penalty units.
10 (2) Without limiting subsection (1), the
following are specifically prohibited--
(a) cash withdrawals;
(b) ATM withdrawals or transfers;
(c) telephone banking withdrawals or
15 transfers.
(3) The regulations may make provision for or
with respect to withdrawals by cheque or
electronic funds transfer.
(4) This section has effect despite anything to
20 the contrary in any directions given to the
law practice concerned, even if the directions
are given by a person who is otherwise
legally entitled to give the law practice
directions in respect of dealings with trust
25 money.".
38 Transit money and trust money subject to specific
powers
(1) In section 3.3.16(1) of the Principal Act, for
"A law practice" substitute "Subject to
30 section 3.3.17A, a law practice".
561025B.I-27/2/2007 44 BILL LA INTRODUCTION 27/2/2007
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s. 39
(2) For section 3.3.17(1) of the Principal Act
substitute--
"(1) Subject to section 3.3.17A--
(a) a law practice must ensure that trust
5 money that is the subject of a power
given to the practice or an associate of
the practice is dealt with by the practice
or associate only in accordance with the
power relating to the money;
10 (b) an approved clerk must ensure that trust
money that is the subject of a power
given to the clerk is dealt with by the
clerk only in accordance with the power
relating to the money.
15 Penalty: 120 penalty units.".
(3) In section 3.3.17(2) of the Principal Act, for
"as required" substitute "in the way prescribed".
39 New section 3.3.17A inserted
After section 3.3.17 of the Principal Act insert--
20 "3.3.17A Trust money received in the form of cash
(1) A law practice or an approved clerk must
deposit general trust money received in the
form of cash in a general trust account of the
practice or approved clerk.
25 Penalty: 120 penalty units.
(2) If the law practice or approved clerk has a
written direction by an appropriate person to
deal with general trust money received in the
form of cash otherwise than by first
30 depositing it in a general trust account of the
practice or clerk--
561025B.I-27/2/2007 45 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 39
(a) the money must nevertheless be
deposited in a general trust account of
the practice or clerk in accordance with
subsection (1); and
5 (b) the money is thereafter to be dealt with
in accordance with any applicable
terms of the direction so far as those
terms are not inconsistent with
paragraph (a).
10 (3) Controlled money received in the form of
cash must be deposited in a controlled
money account in accordance with
section 3.3.15.
(4) A law practice must deposit transit money
15 received in the form of cash in a general trust
account of the practice before the money is
otherwise dealt with in accordance with the
instructions relating to the money.
Penalty: 120 penalty units.
20 (5) A law practice or an approved clerk must
deposit trust money that is received in the
form of cash and is the subject of a power in
a general trust account (or a controlled
money account in the case of controlled
25 money) of the practice or clerk before the
money is otherwise dealt with in accordance
with the power.
Penalty: 120 penalty units.
(6) This section has effect despite anything to
30 the contrary in any relevant direction,
instruction or power.
561025B.I-27/2/2007 46 BILL LA INTRODUCTION 27/2/2007
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s. 40
(7) In this section--
appropriate person, in relation to trust
money, means a person who is legally
entitled to give the law practice or
5 approved clerk concerned directions in
respect of dealings with the money;
general trust money means trust money,
other than--
(a) controlled money; and
10 (b) transit money; and
(c) money that is the subject of a
power.".
40 Further trust money and trust account amendments
(1) In section 3.3.19 of the Principal Act, for "allowed
15 by the regulations" substitute "permitted by
subsection (2)".
(2) At the end of section 3.3.19 of the Principal Act
insert--
"(2) A law practice or an approved clerk is
20 permitted to mix trust money with other
money to the extent only that is authorised
by the Board and in accordance with any
conditions imposed by the Board in relation
to the authorisation.".
25 (3) In the Principal Act--
(a) in section 3.3.20(1)(b) and (2)(a), for
"procedure prescribed in the regulations is"
substitute "relevant procedures or
requirements prescribed by this Act and the
30 regulations are";
561025B.I-27/2/2007 47 BILL LA INTRODUCTION 27/2/2007
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s. 40
(b) in sections 3.3.49(2)(g) and 3.3.51(1)(a)--
(i) for "the Australian Society of Certified
Practising Accountants" substitute
"CPA Australia";
5 (ii) for "Accountants Australia" substitute
"Accountants in Australia".
(4) After section 3.3.56(b) of the Principal Act
insert--
"(ba) to the Board; or".
10 (5) At the end of section 3.3.56 of the Principal Act
insert--
"(2) If an approved external examiner becomes
aware of--
(a) a deficiency in any trust account or
15 trust ledger account of a law practice or
an approved clerk; or
(b) a failure by a law practice or an
approved clerk to pay or deliver any
trust money; or
20 (c) any other failure by a law practice or an
approved clerk to comply with this Act
or the regulations--
the examiner must report the deficiency or
failure to the Board as soon as practicable
25 after becoming aware of it.
(3) The regulations may provide for the manner
in which a report under subsection (2) is to
be made and the information or material that
is to be included in or to accompany the
30 report.
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s. 41
(4) If an approved external examiner forms the
opinion that the trust records of a law
practice or an approved clerk are not being
kept in a way that enables them to be
5 conveniently and properly externally
examined, the examiner must report that
opinion to the Board as soon as practicable
after forming the opinion.
(5) In this section--
10 deficiency has the same meaning as in
section 3.3.21.".
(6) In section 3.3.58(2) of the Principal Act--
(a) for "the Australian Society of Certified
Practising Accountants" substitute
15 "CPA Australia";
(b) for "Accountants Australia" substitute
"Accountants in Australia".
41 New section 3.3.71 substituted
For section 3.3.71 of the Principal Act
20 substitute--
"3.3.71 Restrictions on receipt of trust money
(1) A law practice (other than an incorporated
legal practice) must not receive trust money
unless a principal holds an Australian
25 practising certificate authorising the receipt
of trust money.
Penalty: 240 penalty units.
(2) Subsection (1) does not apply in the case of
the receipt of money by a barrister if the
30 barrister, as soon as practicable after the
receipt, gives the money to an approved
clerk and the clerk accepts the money.
561025B.I-27/2/2007 49 BILL LA INTRODUCTION 27/2/2007
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s. 42
(3) An incorporated legal practice must not
receive trust money unless--
(a) at least one legal practitioner director of
the practice holds an Australian
5 practising certificate authorising the
receipt of trust money; or
(b) a person is holding an appointment
under section 2.7.12 in relation to the
practice and the person holds an
10 Australian practising certificate
authorising the receipt of trust money;
or
(c) the money is received during any
period during which the practice--
15 (i) does not have any legal
practitioner directors; and
(ii) is not in default of director
requirements under
section 2.7.12--
20 so long as there was, immediately
before the start of that period, at least
one legal practitioner director of the
practice who held an Australian
practising certificate authorising the
25 receipt of trust money.".
42 New section 3.3.73 substituted
For section 3.3.73 of the Principal Act
substitute--
"3.3.73 Application of Part to incorporated legal
30 practices and multi-disciplinary
partnerships
(1) The obligations imposed on law practices by
this Part, and any other provisions of this
Act, the regulations or any legal profession
35 rule relating to trust money and trust
561025B.I-27/2/2007 50 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 43
accounts, apply to an incorporated legal
practice or multi-disciplinary partnership
only in connection with legal services
provided by the practice or partnership.
5 (2) The regulations may provide that specified
provisions of this Part, and any other
provisions of this Act, the regulations or any
legal profession rule relating to trust money
and trust accounts, do not apply to
10 incorporated legal practices or multi-
disciplinary partnerships or both or apply to
them with specified modifications.".
43 Costs disclosure and review definitions
In section 3.4.2 of the Principal Act--
15 (a) insert the following definitions--
"third party payer--see section 3.4.2A;
uplift fee means additional legal costs
(excluding disbursements) payable
under a costs agreement on the
20 successful outcome of the matter to
which the agreement relates.";
(b) the definition of "client" is repealed;
(c) the definition of "uplift fee" appearing before
the definition of "Taxing Master" is
25 repealed;
(d) in the definition of "Taxing Master", for
"Court." substitute "Court;".
561025B.I-27/2/2007 51 BILL LA INTRODUCTION 27/2/2007
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s. 44
44 New section 3.4.2A inserted
After section 3.4.2 of the Principal Act insert--
"3.4.2A Terms relating to third party payers
(1) For the purposes of this Part--
5 (a) a person is a third party payer, in
relation to a client of a law practice, if
the person is not the client and--
(i) is under a legal obligation to pay
all or any part of the legal costs
10 for legal services provided to the
client; or
(ii) being under that obligation, has
already paid all or a part of those
legal costs; and
15 (b) a third party payer is an associated
third party payer if the legal obligation
referred to in paragraph (a) is owed to
the law practice, whether or not it is
also owed to the client or another
20 person; and
(c) a third party payer is a non-associated
third party payer if the legal obligation
referred to in paragraph (a) is owed to
the client or another person but not the
25 law practice.
(2) The legal obligation referred to in
subsection (1) can arise by or under
contract or legislation or otherwise.
(3) A law practice that retains another law
30 practice on behalf of a client is not on that
account a third party payer in relation to that
client.".
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Legal Profession Amendment Bill 2007
s. 45
45 Costs disclosure
(1) In section 3.4.4 of the Principal Act--
(a) for subsection (1)(c)(i) substitute--
"(i) the client accepts, in writing or by other
5 conduct, a written offer to enter into an
agreement under subsection (2)(a) in
respect of the matter; or";
(b) for subsection (2)(a) substitute--
"(a) accept, in writing or by other conduct, a
10 written offer that complies with
subsection (2A) to enter into an
agreement with the law practice that
this Part is to apply to the matter; or".
(2) After section 3.4.4(2) of the Principal Act
15 insert--
"(2A) An offer referred to in subsection (2)(a) must
clearly state--
(a) that it is an offer to enter into an
agreement that this Part is to apply to
20 the matter; and
(b) that the client may accept it in writing
or by other conduct; and
(c) the type of conduct that will constitute
acceptance.".
25 (3) In the Principal Act--
(a) in section 3.4.5(2)(b)(i), for "signs, under the
corresponding law of the other jurisdiction, a
written agreement" substitute "enters under
the corresponding law into an agreement";
30 (b) in section 3.4.6, for "client first provides
instructions to the law practice in relation to
the matter at an office of the law practice"
substitute "law practice first receives
561025B.I-27/2/2007 53 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 45
instructions from or on behalf of the client in
relation to the matter";
(c) in section 3.4.8(4)--
(i) in paragraph (a), for "sign" substitute
5 "enter into";
(ii) in paragraph (b), for "signs" substitute
"enters into".
(4) After section 3.4.8(4) of the Principal Act
insert--
10 "(4A) A written agreement referred to in
subsection (4) need not be signed by the
client but in that case the client's acceptance
must be communicated to the law practice by
fax, email or some other written form.
15 (4B) If a corresponding law applied to a matter for
a period and this Part applies to the matter
afterwards, this Part does not require
disclosure of any matters to the extent that
they have already been disclosed under a
20 corresponding law.".
(5) In section 3.4.9 of the Principal Act--
(a) after subsection (1)(b)(i) insert--
"(ia) receive a bill from the law practice;
and";
25 (b) for subsection (1)(f) substitute--
"(f) the rate of interest (if any) that the law
practice charges on overdue legal costs,
whether that rate is a specific rate of
interest or is a benchmark rate of
30 interest (as referred to in subsection
(1A)); and";
561025B.I-27/2/2007 54 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 45
(c) in subsection (1)(m)(i), for "sign under a
corresponding law a written agreement"
substitute "accept under a corresponding
law a written offer to enter into an
5 agreement";
(d) in the note at the foot of subsection (1), for
"sign" substitute "enter into".
(6) After section 3.4.9(1) of the Principal Act
insert--
10 "(1A) For the purposes of subsection (1)(f), a
benchmark rate of interest is a rate of interest
for the time being equal to or calculated by
reference to a rate of interest that is specified
or determined from time to time by an ADI
15 or another body or organisation, or by or
under other legislation, and that is publicly
available.
(1B) The regulations may make provision for or
with respect to the use of benchmark rates of
20 interest and, in particular, for or with respect
to permitting, regulating or preventing the
use of particular benchmark rates or
particular kinds of benchmark rates.".
(7) In section 3.4.9(2)(b) of the Principal Act, after
25 "enters" insert "into".
(8) After section 3.4.9(2) of the Principal Act
insert--
"(3) A law practice may disclose all or any of the
details referred to in subsection (1)(b)(iii),
30 (h), (j), (k) and (m) in a form prescribed by
the regulations for the purposes of this
subsection and, if it does so, the practice is
taken to have complied with this section in
relation to the details so disclosed.".
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s. 46
(9) In section 3.4.10(1) of the Principal Act, for "the
client" (where first occurring) substitute "a
client".
(10) In the heading to section 3.4.11 of the Principal
5 Act, for "made?" substitute "made to a
client?".
(11) For section 3.4.11(2) of the Principal Act
substitute--
"(2) Disclosure under section 3.4.10(1) must be
10 made in writing before, or as soon as
practicable after, the other law practice is
retained.
(3) Disclosure made to a person before the law
practice is retained in a matter is taken to be
15 disclosure to the person as a client for the
purposes of sections 3.4.9 and 3.4.10.".
(12) In section 3.4.14 of the Principal Act, for
"(expressed as a percentage of those fees)"
substitute "(or the basis of calculation of the
20 uplift fee)".
(13) In section 3.4.15(1) of the Principal Act, after
"disclosures" insert "to a client".
46 New section 3.4.16 substituted
For section 3.4.16 of the Principal Act
25 substitute--
"3.4.16 Ongoing obligation to disclose
A law practice must, in writing, disclose to a
client any substantial change to anything
included in a disclosure already made under
30 this Division as soon as is reasonably
practicable after the law practice becomes
aware of that change.".
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s. 47
47 Further costs amendments
(1) In section 3.4.17 of the Principal Act--
(a) in subsections (1) and (2)--
(i) after "a client" insert "or an associated
5 third party payer";
(ii) after "the client" insert "or associated
third party payer (as the case may be)";
(b) in subsection (3)--
(i) after "a client" insert "or an associated
10 third party payer";
(ii) after "the client" (where twice
occurring) insert "or associated third
party payer";
(c) in subsection (4), after "a client" insert "or
15 an associated third party payer".
(2) After section 3.4.17(5) of the Principal Act
insert--
"(5A) In a matter involving both a client and an
associated third party payer where disclosure
20 has been made to one of them but not the
other--
(a) subsection (1) does not affect the
liability of the one to whom disclosure
was made to pay the legal costs; and
25 (b) subsection (2) does not prevent
proceedings being maintained against
the one to whom the disclosure was
made for the recovery of those legal
costs.".
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s. 48
48 New section 3.4.18A inserted
After section 3.4.18 of the Principal Act insert--
"3.4.18A Disclosure to associated third party
payers
5 (1) If a law practice is required to make a
disclosure to a client of the practice under
this Division, the practice must, in
accordance with subsections (2) and (3), also
make the same disclosure to any associated
10 third party payer for the client, but only to
the extent that the details or matters
disclosed are relevant to the associated third
party payer and relate to costs that are
payable by the associated third party payer in
15 respect of legal services provided to the
client.
(2) A disclosure under subsection (1) must be
made in writing--
(a) at the time the disclosure to the client is
20 required under this Division; or
(b) if the law practice only afterwards
becomes aware of the legal obligation
of the associated third party payer to
pay legal costs of the client--as soon as
25 practicable after the practice became
aware of the obligation.
(3) Section 3.4.15 applies to a disclosure to an
associated third party payer under
subsection (1) in the same way as it applies
30 to a client.
(4) An associated third party payer for a client of
a law practice has the same right as the client
to obtain reports under section 3.4.18(1)(b)
of legal costs incurred by the client, but only
35 to the extent that the costs are payable by the
associated third party payer in respect of
561025B.I-27/2/2007 58 BILL LA INTRODUCTION 27/2/2007
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s. 49
legal services provided to the client, and the
law practice must comply with that section
accordingly.".
49 New section 3.4.21 substituted
5 For section 3.4.21 of the Principal Act
substitute--
"3.4.21 Interest on unpaid legal costs
(1) A law practice may charge interest on unpaid
legal costs if the costs are unpaid 30 days or
10 more after the practice has given a bill for
the costs in accordance with this Part.
(2) A law practice may also charge interest on
unpaid legal costs in accordance with a costs
agreement.
15 (3) A law practice must not charge interest under
subsection (1) or (2) on unpaid legal costs
unless the bill for those costs contains a
statement that interest is payable if the costs
are not paid and of the rate of interest.
20 (4) A law practice may not charge interest under
this section or under a costs agreement at a
rate that exceeds the rate prescribed by the
regulations.".
50 Costs agreements
25 (1) In section 3.4.26(1) of the Principal Act--
(a) in paragraph (c), for "client." substitute
"client; or";
(b) after paragraph (c) insert--
"(d) between a law practice and an
30 associated third party payer.".
(2) In section 3.4.26(5) of the Principal Act, for
"A costs agreement" substitute "Except as
provided by section 3.4.48A, a costs agreement".
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s. 50
(3) After section 3.4.26(5) of the Principal Act
insert--
"(6) A reference in section 3.4.32 and in any
prescribed provisions of this Part to a client
5 is, in relation to a costs agreement that is
entered into between a law practice and an
associated third party payer as referred to in
subsection (1)(d) and to which a client of the
law practice is not a party, a reference to the
10 associated third party payer.".
(4) In section 3.4.27(1) of the Principal Act omit
', and a costs agreement containing a provision of
that kind is referred to in this Act as a
"conditional costs agreement" '.
15 (5) For section 3.4.27(5) of the Principal Act
substitute--
"(5) If a client terminates an agreement within the
period referred to in subsection (3)(e), the
law practice--
20 (a) may recover only those legal costs in
respect of legal services performed for
the client before that termination that
were performed on the instructions of
the client and with the client's
25 knowledge that the legal services would
be performed during that period; and
(b) without affecting the generality of
paragraph (a), may not recover the
uplift fee (if any).".
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s. 51
51 New section 3.4.28 substituted
For section 3.4.28 of the Principal Act
substitute--
"3.4.28 Conditional costs agreements involving
5 uplift fees
(1) A conditional costs agreement may provide
for the payment of an uplift fee.
(2) The basis of calculation of the uplift fee must
be separately identified in the agreement.
10 (3) The agreement must contain an estimate of
the uplift fee or, if that is not reasonably
practicable--
(a) a range of estimates of the uplift fee;
and
15 (b) an explanation of the major variables
that will affect the calculation of the
uplift fee.
(4) If a conditional costs agreement relates to a
litigious matter--
20 (a) the agreement must not provide for the
payment of an uplift fee unless the law
practice has a reasonable belief that a
successful outcome of the matter is
reasonably likely; and
25 (b) the uplift fee must not exceed 25% of
the legal costs (excluding
disbursements) otherwise payable.
(5) A law practice must not enter into a costs
agreement in contravention of this section.
30 Penalty: 60 penalty units.".
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s. 52
52 Contingency fees
In section 3.4.29 of the Principal Act--
(a) subsection (1)(a) is repealed;
(b) in subsection (2) omit "practitioner
5 remuneration order or".
53 Setting aside costs agreements
(1) In section 3.4.32 of the Principal Act--
(a) in subsections (1) and (2), omit ", just";
(b) for subsection (2)(d) substitute--
10 "(d) the circumstances and conduct of the
parties before and when the agreement
was made;
(e) the circumstances and the conduct of
the parties in the matters after the
15 agreement was made;
(f) whether and how the agreement
addresses the effect on costs of matters
and changed circumstances that might
foreseeably arise and affect the extent
20 and nature of legal services provided
under the agreement;
(g) whether and how billing under the
agreement addresses changed
circumstances affecting the extent and
25 nature of legal services provided under
the agreement.".
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s. 54
(2) After section 3.4.32(9) of the Principal Act
insert--
"(10) In this section--
client means a person to whom or for whom
5 legal services are or have been
provided.
Note
See also section 3.4.26(6) which extends the
application of this section to associated third party
10 payers.".
54 Billing
(1) After section 3.4.34(2) of the Principal Act
insert--
"(2A) It is sufficient compliance with
15 subsection (2) if--
(a) in any case, a letter signed on behalf of
a law practice by an Australian legal
practitioner or an employee of the law
practice is attached to, or enclosed with,
20 the bill;
(b) in the case of a barrister, a letter signed
on behalf of the barrister by an
approved clerk or an employee of an
approved clerk authorised by the
25 approved clerk is attached to, or
enclosed with, the bill.".
(2) After section 3.4.35(2) of the Principal Act
insert--
(3) A law practice may provide the written
30 statement referred to in subsection (1) in a
form prescribed by the regulations for the
purposes of this subsection, and if it does so
the practice is taken to have complied with
this section in relation to the statement.".
561025B.I-27/2/2007 63 BILL LA INTRODUCTION 27/2/2007
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s. 55
55 New section 3.4.36 substituted
For section 3.4.36 of the Principal Act
substitute--
"3.4.36 Request for itemised bill
5 (1) If a bill is given by a law practice in the form
of a lump sum bill, any person who is
entitled to apply for a review of the legal
costs to which the bill relates may, within
30 days after the day the bill is given, request
10 the law practice to give the person an
itemised bill.
(2) The law practice must comply with the
request within 21 days after the date on
which the request was made.
15 (3) If the person making the request is liable to
pay only a part of the legal costs to which the
bill relates, the request for an itemised bill
may only be made in relation to those costs
that the person is liable to pay.
20 (4) If a person makes a request for an itemised
bill in accordance with this section, the law
practice must not commence legal
proceedings to recover the legal costs from
the person until at least 35 days after
25 complying with the request.
Note
Section 4.3.2 prohibits a law practice from
commencing proceedings if it has received notice of a
civil complaint regarding the legal costs.
30 (5) A law practice is not entitled to charge a
person other than a non-associated third
party payer for the preparation of an itemised
bill requested under this section.
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s. 56
(6) Section 3.4.34(2), (3) and (4) apply to the
giving of an itemised bill under this
section.".
56 New section 3.4.38 substituted
5 For section 3.4.38 of the Principal Act
substitute--
"3.4.38 Application by clients or third party
payers for costs review
(1) A client may apply to the Taxing Master for
10 a review of the whole or any part of legal
costs.
(2) A third party payer may apply to the Taxing
Master for a review of the whole or any part
of legal costs payable by the third party
15 payer.
(3) An application for a costs review may be
made even if the legal costs have been
wholly or partly paid.
(4) If any legal costs have been paid without a
20 bill, the client or third party payer may
nevertheless apply for a costs review.
(5) An application by a client or third party
payer for a costs review under this section
must be made within 12 months after--
25 (a) the bill was given or the request for
payment was made to the client or third
party payer; or
(b) the costs were paid if neither a bill was
given nor a request was made.
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s. 56
(6) However, an application that is made out of
time, otherwise than by--
(a) a sophisticated client; or
(b) a third party payer who would be a
5 sophisticated client if the third party
payer were a client of the law practice
concerned--
may be dealt with by the Taxing Master if
the Supreme Court, on application by the
10 Taxing Master or the client or third party
payer who made the application for review,
determines, after having regard to the delay
and the reasons for the delay, that it is just
and fair for the application for review to be
15 dealt with after the 12 month period.
(7) If the third party payer is a non-associated
third party payer, the law practice must
provide the third party payer, on the written
request of the third party payer, with
20 sufficient information to allow the third party
payer to consider making, and if thought fit
to make, an application for a costs review
under this section.
(8) If there is an associated third party payer for
25 a client of a law practice--
(a) nothing in this section prevents--
(i) the client from making one or
more applications for review
under this section in relation to
30 costs for which the client is solely
liable; and
(ii) the associated third party payer
from making one or more
applications for review under this
35 section in relation to costs for
561025B.I-27/2/2007 66 BILL LA INTRODUCTION 27/2/2007
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s. 56
which the associated third party
payer is solely liable--
and those applications may be made by
them at the same time or at different
5 times and may be dealt with jointly or
separately; and
(b) the client or the associated third party
payer--
(i) may participate in the costs review
10 process where the other of them
makes an application for review
under this section in relation to
costs for which they are both
liable; and
15 (ii) is taken to be a party to the review
and is bound by the review; and
(c) the law practice--
(i) must participate in the costs
review process where an
20 application is made under this
section by the associated third
party payer in the same way as the
practice must participate in the
process where an application is
25 made under this section by a
client; and
(ii) is taken to be a party to the review
and is bound by the review.
(9) If there is a non-associated third party payer
30 for a client of a law practice--
(a) nothing in this section prevents--
(i) the client from making one or
more applications for review
under this section in relation to
561025B.I-27/2/2007 67 BILL LA INTRODUCTION 27/2/2007
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s. 56
costs for which the client is liable;
and
(ii) the non-associated third party
payer from making one or more
5 applications for review under this
section in relation to costs for
which the non-associated third
party payer is liable--
and those applications may be made by
10 them at the same time or at different
times but must be dealt with separately;
and
(b) the client--
(i) may participate in the costs review
15 process where the non-associated
third party payer makes an
application under this section in
relation to costs for which the
non-associated third party payer is
20 liable; and
(ii) is taken to be a party to the review
and is bound by the review; and
(c) the law practice--
(i) must participate in the costs
25 review process; and
(ii) is taken to be a party to the
review; and
(d) despite any other provision of this
Division, the review of the costs
30 payable by the non-associated third
party payer does not affect the amount
of legal costs payable by the client to
the law practice.
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s. 57
(10) In this section--
client includes the following--
(a) an executor or administrator of a
client;
5 (b) a trustee of the estate of a client;
third party payer includes--
(a) an executor or administrator of a
third party payer;
(b) a trustee of the estate of a third
10 party payer.".
57 Costs reviews
(1) In section 3.4.39 of the Principal Act--
(a) in subsection (1), omit "to which a bill given
by the other law practice in accordance with
15 Division 6 relates";
(b) in subsection (2), omit "and, for that
purpose, the request for payment is taken to
be a bill".
(2) For section 3.4.39(3) of the Principal Act
20 substitute--
"(2A) An application for a costs review may be
made even if the legal costs have been
wholly or partly paid.
(3) An application under this section must be
25 made within 60 days after--
(a) the bill was given or the request for
payment was made; or
(b) the costs were paid if neither a bill was
given nor a request was made.".
30 (3) In section 3.4.40(2) of the Principal Act, omit
"and, for that purpose, the request for payment is
taken to be a bill".
561025B.I-27/2/2007 69 BILL LA INTRODUCTION 27/2/2007
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s. 58
(4) For section 3.4.40(3) of the Principal Act
substitute--
"(2A) An application for a costs review may be
made even if the legal costs have been
5 wholly or partly paid.
(3) An application may not be made under this
section unless at least 30 days have passed
since--
(a) the bill was given or the request for
10 payment was made; or
(b) the costs were paid if neither a bill was
given nor a request was made; or
(c) an application has been made under this
Division by another person in respect of
15 the legal costs.".
58 New section 3.4.42 substituted
For section 3.4.42 of the Principal Act
substitute--
"3.4.42 Persons to be notified of application
20 (1) An applicant for costs review must cause a
copy of the application to be given to any
law practice or client concerned or any other
person whom the Taxing Master thinks it
appropriate to notify.
25 (2) A person who is notified by the applicant
under subsection (1)--
(a) is entitled to participate in the costs
review process; and
(b) is taken to be a party to the review; and
30 (c) if the Taxing Master so determines, is
bound by the review.".
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s. 59
59 Procedure on costs review
Section 3.4.43(3) of the Principal Act is repealed.
60 Criteria for costs review
(1) In section 3.4.44 of the Principal Act--
5 (a) in subsection (1)(c), after "work" insert
", except to the extent that section 3.4.44A or
3.4.44B applies to any disputed costs";
(b) in subsection (2)--
(i) in paragraph (b), omit ", or the failure
10 to make any disclosures required under
that Division";
(ii) paragraph (d) is repealed.
(2) After section 3.4.44(2) of the Principal Act
insert--
15 "(3) In conducting a review of legal costs payable
by a non-associated third party payer, the
Taxing Master must also consider whether it
is fair and reasonable in the circumstances
for the non-associated third party payer to be
20 charged the amount claimed.".
61 New sections 3.4.44A and 3.4.44B inserted
After section 3.4.44 of the Principal Act insert--
"3.4.44A Review of costs by reference to costs
agreement
25 (1) The Taxing Master must review the amount
of any disputed costs that are subject to a
costs agreement by reference to the
provisions of the costs agreement if--
(a) a relevant provision of the costs
30 agreement specifies the amount, or a
rate or other means for calculating the
amount, of the costs; and
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s. 62
(b) the agreement has not been set aside
under section 3.4.32--
unless the Taxing Master is satisfied--
(c) that the agreement does not comply in a
5 material respect with any applicable
disclosure requirements of Division 3;
or
(d) that Division 5 precludes the law
practice concerned from recovering the
10 amount of the costs; or
(e) that the parties otherwise agree.
(2) The Taxing Master is not required to initiate
an examination of the matters referred to in
sub-section (1)(c) and (d).
15 3.4.44B Review of costs by reference to
practitioner remuneration order or scale
of costs
The Taxing Master must review the amount
of any disputed costs that are subject to a
20 practitioner remuneration order or scale of
costs by reference to the order or scale.".
62 Costs of review
For section 3.4.45(2) of the Principal Act
substitute--
25 "(2) Unless the Taxing Master otherwise orders
and subject to subsection (3), the law
practice to which the legal costs are payable
or were paid must pay the costs of the review
if--
30 (a) on the review the legal costs are
reduced by 15% or more; or
(b) the Taxing Master is satisfied that the
law practice failed to comply with
Division 3.
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s. 63
(2A) Unless the Taxing Master otherwise orders
and subject to subsection (3), if the law
practice is not, under subsection (2), liable to
pay the costs of the review, the costs of the
5 review must be paid by the party ordered by
the Taxing Master to pay those costs.".
63 Contracting out of Division by sophisticated clients
In section 3.4.48A of the Principal Act, after
"practice" insert ", or an associated third party
10 payer who would be a sophisticated client if the
third party payer were a client of the law practice
concerned,".
64 Fidelity cover
(1) In the Principal Act--
15 (a) in section 3.6.2, in the definition of
"concerted interstate default", for "that arises
from" substitute "arising from or constituted
by";
(b) for the definition of "default" substitute--
20 "default means--
(a) in the case of a law practice--
(i) a failure of the practice to
pay or deliver trust money or
trust property that was
25 received by the practice in
the course of legal practice
by the practice, where the
failure arises from or is
constituted by an act or
30 omission of an associate that
involves dishonesty; or
(ii) a fraudulent dealing with
trust property that was
received by the practice in
35 the course of legal practice
561025B.I-27/2/2007 73 BILL LA INTRODUCTION 27/2/2007
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s. 64
by the practice, where the
fraudulent dealing arises
from or is constituted by an
act or omission of an
5 associate that involves
dishonesty; or
(b) in the case of an approved clerk--
(i) a failure of the clerk to pay
or deliver trust money or
10 trust property that was
received by the clerk in his
or her capacity as an
approved clerk, where the
failure arises from or is
15 constituted by an act or
omission of the clerk or an
employee of the clerk that
involves dishonesty; or
(ii) a fraudulent dealing with
20 trust money that was
received by the clerk in his
or her capacity as an
approved clerk, where the
fraudulent dealing arises
25 from or is constituted by an
act or omission of the clerk
or an employee of the clerk
that involves dishonesty;";
(c) in section 3.6.31(1), for "that arises from"
30 substitute "arising from or constituted by";
(d) for the heading to section 3.6.44
substitute--
"Application of Part to sole practitioners
whose practising certificates lapse";
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s. 65
(e) in section 3.6.44(1), after "has lapsed" insert
"and the lawyer was a sole practitioner
immediately before the certificate lapsed".
(2) For section 3.6.44(3) of the Principal Act
5 substitute--
"(3) Subsection (2) ceases to apply when the first
of the following occurs--
(a) a manager or receiver is appointed
under this Act for the law practice; or
10 (b) the period of 6 months after the
practising certificate actually lapsed
expires; or
(c) the lawyer's application for the grant or
renewal of an Australian practising
15 certificate is refused under this Act or a
corresponding law.".
65 Complaints and discipline
(1) In the Principal Act--
(a) in section 4.4.4(e), for "Act." substitute
20 "Act;";
(b) after section 4.4.4(e) insert--
"(f) conduct of an Australian legal
practitioner in failing to comply with an
order of the Tribunal made under this
25 Act or an order of a corresponding
disciplinary body made under a
corresponding law (including but not
limited to a failure to pay wholly or
partly a fine imposed under this Act or
30 a corresponding law);
(g) conduct of an Australian legal
practitioner in failing to comply with a
compensation order made under this
Act or a corresponding law.";
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s. 65
(c) in section 4.4.16, after "may make" insert
"any orders it thinks fit, including";
(d) in section 4.4.18(b) and (c), after "an order"
insert "recommending";
5 (e) for section 4.4.18(d) substitute--
"(d) an order recommending--
(i) that specified conditions be
imposed on the practitioner's
interstate practising certificate, or
10 existing conditions be amended;
and
(ii) that the conditions be imposed or
amended for a specified period;
and
15 (iii) a specified time (if any) after
which the practitioner may apply
to the Tribunal for the conditions
to be amended or removed.";
(f) in section 4.4.25, in the definition of
20 "disciplinary action", in paragraph (b)(iii),
after "grant" insert "or renew".
(2) For section 4.4.36(1) of the Principal Act
substitute--
"(1) When dealing with a complaint or
25 conducting an investigation, the
Commissioner may consult and co-operate
with another person or body (whether in or
of Australia or a foreign country) who or
which has or may have relevant information
30 or powers in relation to the person against
whom the complaint was made or the person
under investigation.".
(3) In the heading to section 4.4.37 of the Principal
Act, after "with" insert "recommendations or".
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s. 66
(4) In section 4.4.37 of the Principal Act--
(a) in subsection (1)(a), for "any order"
substitute "or enforce any recommendation
or order";
5 (b) in subsection (1)(b)--
(i) for "enforce any order" substitute
"give effect to or enforce any
recommendation or order";
(ii) for "the order" substitute
10 "the recommendation or order";
(c) in subsection (2), for "an order
recommending" substitute
"a recommendation or order".
66 External intervention
15 (1) In the Principal Act--
(a) in section 5.1.1(a), for "lawyers (including
foreign lawyers)" substitute "law practices
and Australian-registered foreign lawyers";
(b) in section 5.1.2, for the definition of
20 "regulated property" substitute--
"regulated property, in relation to a law
practice, means the following--
(a) trust money or trust property
received, receivable or held by the
25 practice;
(b) interest, dividends or other income
or anything else derived from or
acquired with money or property
referred to in paragraph (a);
30 (c) documents or records of any
description relating to anything
referred to in paragraph (a) or (b);
561025B.I-27/2/2007 77 BILL LA INTRODUCTION 27/2/2007
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s. 66
(d) any computer hardware or
software, or other device, in the
custody or control of the practice
or an associate of the practice by
5 which any records referred to in
paragraph (c) may be produced or
reproduced in visible form.".
(2) At the end of section 5.1.2 of the Principal Act
insert--
10 "(2) Other expressions used in this Chapter have
the same meanings as in Part 3.3.".
(3) In the Principal Act--
(a) in section 5.1.3, after "lawyers" insert
"and former Australian-registered foreign
15 lawyers";
(b) in section 5.2.2(1) omit ", owners and
employees";
(c) in section 5.2.2(2)(a), for "received by"
substitute "of";
20 (d) for section 5.2.2(2)(b) substitute--
"(b) to appoint a manager for the law
practice, if the Board is of the
opinion--
(i) that external intervention is
25 required because of issues relating
to the practice's trust records; or
(ii) that the appointment is necessary
to protect the interests of clients in
relation to trust money or trust
30 property; or
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s. 66
(iii) that there is a need for an
independent person to be
appointed to take over
professional and operational
5 responsibility for the practice; or";
(e) in the heading to Part 5.3, after
"SUPERVISORS" insert "OF TRUST
MONEY";
(f) in the heading to section 5.3.1, after
10 "supervisor" insert "of trust money";
(g) in section 5.3.1--
(i) in subsection (1), for "received by"
substitute "of";
(ii) in subsections (2) and (4)(b), after
15 "supervisor" insert "of trust money";
(h) in section 5.3.2--
(i) in subsection (1), for "for a law
practice" substitute "of trust money of
a law practice";
20 (ii) in subsection (2)(b), after "supervisor"
insert "of trust money";
(i) in section 5.3.3(1)--
(i) for "received by" substitute "of";
(ii) in paragraph (b), after "supervisor"
25 insert "or the supervisor's nominee";
(j) in section 5.3.3--
(i) in subsection (2), for "received by"
substitute "of";
(ii) in subsection (3), after "supervisor"
30 insert "of trust money";
(k) in the heading to section 5.3.4, after
"supervisor" insert "of trust money";
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s. 66
(l) in section 5.3.4(1)(a), for "on behalf of"
substitute "entrusted to";
(m) in section 5.3.7(1), for "for a law practice"
substitute "of trust money of a law
5 practice";
(n) for section 5.4.3(2)(a), (b) and (c)
substitute--
"(a) the withdrawal or transfer is made by
cheque or other instrument drawn on
10 that account signed by--
(i) the manager; or
(ii) a receiver appointed for the
practice; or
(iii) a nominee of the manager or
15 receiver; or
(b) the withdrawal or transfer is made by
means of electronic or Internet banking
facilities, by--
(i) the manager; or
20 (ii) a receiver appointed for the
practice; or
(iii) a nominee of the manager or
receiver; or
(c) the withdrawal or transfer is made in
25 accordance with an authority to
withdraw or transfer funds from the
account signed by--
(i) the manager; or
(ii) a receiver appointed for the
30 practice; or
(iii) a nominee of the manager or
receiver.";
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s. 66
(o) in section 5.4.3(5), for "as directed by the
manager" substitute "of the practice or
another trust account nominated by the
manager or receiver";
5 (p) in section 5.5.1(4)(b), after "officer" insert
"or employee";
(q) after section 5.5.2(2)(c) insert--
"(ca) indicate the extent to which the receiver
has the powers of a manager for the
10 practice; and";
(r) for section 5.5.3(2)(a), (b) and (c)
substitute--
"(a) the withdrawal or transfer is made by
cheque or other instrument drawn on
15 that account signed by--
(i) the receiver; or
(ii) a manager appointed for the
practice; or
(iii) a nominee of the receiver or
20 manager; or
(b) the withdrawal or transfer is made by
means of electronic or Internet banking
facilities, by--
(i) the receiver; or
25 (ii) a manager appointed for the
practice; or
(iii) a nominee of the receiver or
manager; or
(c) the withdrawal or transfer is made in
30 accordance with an authority to
withdraw or transfer funds from the
account signed by--
(i) the receiver; or
561025B.I-27/2/2007 81 BILL LA INTRODUCTION 27/2/2007
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s. 66
(ii) a manager appointed for the
practice; or
(iii) a nominee of the receiver or
manager.";
5 (s) in section 5.5.3(5), for "as directed by the
receiver" substitute "of the practice or
another trust account nominated by the
receiver or manager".
(4) For section 5.5.9(1) of the Principal Act
10 substitute--
"(1) A receiver for a law practice may require--
(a) a person who is an associate or former
associate of the practice; or
(b) a person who has or has had control of
15 documents relating to the affairs of the
practice; or
(c) a person who has information relating
to regulated property of the practice or
property that the receiver believes on
20 reasonable grounds to be regulated
property of the practice--
to give the receiver either or both of the
following--
(d) access to the documents relating to the
25 affairs of the practice the receiver
reasonably requires;
(e) information relating to the affairs of the
practice the receiver reasonably
requires (verified by statutory
30 declaration if the requirement so
states).".
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s. 67
(5) In the Principal Act--
(a) in section 5.5.9(4)(c), for "answer."
substitute "answer; or";
(b) after section 5.5.9(4)(c) insert--
5 "(d) proceedings taken by the receiver for
the recovery of regulated property.".
(c) in section 5.5.11--
(i) in subsection (1)(b), before "a legal
practitioner" insert "the practice or";
10 (ii) in subsection (2), for "legal practitioner
associate a written notice requiring the
associate" substitute "law practice or
legal practitioner associate a written
notice requiring the practice or
15 associate";
(d) in section 5.5.11(3)--
(i) before "legal practitioner" insert
"law practice or";
(ii) after "to enable the" insert
20 "practice or".
67 New section 5.5.17 substituted
For section 5.5.17 of the Principal Act
substitute--
"5.5.17 Termination of receiver's appointment by
25 Supreme Court
(1) The appointment by the Supreme Court of a
receiver for a law practice terminates in the
following circumstances--
(a) the term (if any) of the appointment
30 comes to an end;
(b) the appointment is set aside under
section 5.6.4;
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(c) a determination of the Supreme Court
that the appointment be terminated has
taken effect.
(2) The Supreme Court may, on application by
5 the Board or receiver made at any time,
determine in writing that the appointment be
terminated immediately or with effect from a
specified date.
(3) A receiver for a law practice must apply to
10 the Supreme Court for termination of the
appointment when the affairs of the practice
have been wound up and terminated, unless
the term (if any) of the appointment has
already come to an end.
15 (4) The Supreme Court may make any order it
considers appropriate in relation to an
application under this section.
(5) The appointment of a receiver is not stayed
by the making of an application for
20 termination of the receiver's appointment,
and the receiver may accordingly continue to
perform his or her functions as receiver
pending the Supreme Court's decision on the
application except to the extent (if any) that
25 the Court otherwise directs.
(6) The former receiver must, as soon as
practicable, transfer and deliver the regulated
property of the law practice to--
(a) another external intervener appointed
30 for the practice within the period of
14 days beginning on the day after the
date of the termination; or
(b) the practice, if another external
intervener is not appointed for the
35 practice within that period and
paragraph (c) does not apply; or
561025B.I-27/2/2007 84 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 68
(c) another person in accordance with
arrangements approved by the Supreme
Court, if it is not practicable to transfer
and deliver the regulated property to the
5 practice.
(7) The former receiver need not transfer and
deliver regulated property to the law practice
in compliance with subsection (6) unless the
expenses of receivership have been paid.
10 (8) The Board must serve a written notice of the
termination on all persons originally served
with notice of the appointment.".
68 Appeal against appointment
After section 5.6.4(4) of the Principal Act
15 insert--
"(5) The appointment of an external intervener is
not stayed by the making of an appeal, and
the external intervener may accordingly
continue to perform his or her functions as
20 external intervener during the currency of the
appeal except to the extent (if any) that the
Supreme Court or Court of Appeal (as the
case requires) otherwise directs.".
69 New section 5.6.5A inserted
25 After section 5.6.5 of the Principal Act insert--
"5.6.5A Manager and receiver appointed for law
practice
If a manager and a receiver are appointed for
a law practice, any decision of the receiver
30 prevails over any decision of the manager in
the performance of their respective
functions, to the extent of any
inconsistency.".
561025B.I-27/2/2007 85 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 70
70 New section 5.6.6 substituted
For section 5.6.6 of the Principal Act substitute--
"5.6.6 ADI disclosure requirements
(1) An ADI must, at the request of an external
5 intervener for a law practice, disclose to the
intervener without charge--
(a) whether or not the practice, or an
associate of the practice specified by
the intervener, maintains or has
10 maintained an account at the ADI
during a period specified by the
intervener; and
(b) details identifying every account so
maintained.
15 Penalty: 60 penalty units.
(2) An ADI at which an account of a law
practice or associate of a law practice is or
has been maintained must, at the request of
an external intervener for the law practice,
20 and without charge--
(a) produce for inspection or copying by
the intervener, or a nominee of the
intervener, any records relating to any
such accounts or money deposited in
25 any such account; and
(b) provide the intervener with full details
of any transactions relating to any such
account or money.
Penalty: 60 penalty units.
561025B.I-27/2/2007 86 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 71
(3) If an external intervener believes, on
reasonable grounds, that trust money has,
without the authorisation of the person who
entrusted the trust money to the law practice,
5 been deposited into the account of a third
party who is not an associate of the law
practice, the ADI at which the account is
maintained must disclose to the intervener
without charge--
10 (a) whether or not a person specified by the
intervener maintains or has maintained
an account at the ADI during a period
specified by the intervener; and
(b) the details of any such account.
15 (4) An obligation imposed by this section on an
ADI does not apply unless the external
intervener produces to the ADI evidence of
the appointment of the intervener in relation
to the law practice concerned.
20 (5) A request under this section may be general
or limited to a particular kind of account.
(6) This section applies despite any legislation
or duty of confidence to the contrary.
(7) An ADI or an officer or employee of an ADI
25 is not liable to any action for any loss or
damage suffered by another person as a
result of producing records or providing
details in accordance with this section.".
71 Immunity for Board members
30 In section 6.2.18(1) and (2) of the Principal Act,
omit "necessarily or reasonably".
561025B.I-27/2/2007 87 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 72
72 Keeping the register
In section 6.2.23(2) of the Principal Act--
(a) in paragraph (a)(ii), after "practice;" insert
"and";
5 (b) after paragraph (a)(ii) insert--
"(iii) an indication of whether or not the
practitioner is a barrister; and
(iv) if the practitioner is an employee of a
law practice--the name of the law
10 practice; and
(v) if the practitioner is a sole
practitioner--any business name under
which the practitioner carries on
business;";
15 (c) after paragraph (e)(ii) insert--
"(iii) the name of the entity of which the
lawyer is a director, officer, partner or
employee or with which the lawyer is
otherwise engaged in legal practice;
20 and
(iv) any business name under which the
lawyer carries on business;";
(d) in paragraph (f)(ii), for "centre." substitute
"centre;".
25 73 Immunity for Commissioner and others
In section 6.3.11(1), (3) and (4) of the Principal
Act, omit "necessarily or reasonably".
561025B.I-27/2/2007 88 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 74
74 Fidelity Fund
In section 6.7.27 of the Principal Act--
(a) in subsection (1)(a), for "gives notice to"
substitute "notifies";
5 (b) in subsection (2), for "gave the notice"
substitute "notified the Board as";
(c) in subsection (3)(a)(i), for "making the
application" substitute "notifying the
Board".
10 75 Injunctions
(1) In section 7.2.13(1) of the Principal Act, for "or
the regulations" (wherever occurring) substitute
", the regulations or the legal profession rules".
(2) After section 7.2.13(3) of the Principal Act
15 insert--
"(4) If in the opinion of the Supreme Court it is
desirable to do so, the Court may grant an
interim injunction pending determination of
an application under subsection (1).
20 (5) The Supreme Court may discharge or vary
an injunction granted under subsection (1)
or (4).
(6) The power of the Supreme Court to grant an
injunction restraining a person from
25 engaging in conduct may be exercised--
(a) whether or not it appears to the Court
that the person intends to engage again,
or to continue to engage, in conduct of
that kind; and
30 (b) whether or not the person has
previously refused or failed to do that
act or thing; and
561025B.I-27/2/2007 89 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 76
(c) whether or not there is an imminent
danger of substantial damage to any
person if the first-mentioned person
refuses or fails to do that act or thing.
5 (7) The Supreme Court must not require the
Board or any other person, as a condition of
granting an interim injunction, to give an
undertaking as to damages.".
76 Confidentiality of personal information
10 For section 7.2.15(1) and (2) of the Principal Act
substitute--
"(1) A relevant person must not disclose to any
other person, whether directly or indirectly,
any personal information obtained by reason
15 of being a relevant person.
Penalty: 60 penalty units.
(2) Subsection (1) does not apply to the
disclosure of information--
(a) to the extent that the disclosure is
20 reasonably required to perform
functions under this Act, the regulations
or the legal profession rules, or under
any other Act or regulations; or
(b) to the extent that the relevant person is
25 expressly authorised, permitted or
required to disclose the information
under this Act, the regulations or the
legal profession rules, or under any
other Act or regulations; or
30 (c) with the prior consent in writing of the
person to whom the information relates;
or
(d) to a court or tribunal in the course of
legal proceedings; or
561025B.I-27/2/2007 90 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 77
(e) pursuant to an order of a court or
tribunal under any Act or law; or
(f) to the extent the disclosure is
reasonably required to enable the
5 enforcement or investigation of the
criminal law or a disciplinary matter.".
77 Legal Services Board elections
(1) For clauses 2 and 3 of Schedule 1 to the Principal
Act substitute--
10 "2 Enrolment
(1) A local legal practitioner is taken to be
enrolled on the roll of advocates if--
(a) his or her name is on the register under
section 6.2.23; and
15 (b) the register indicates that he or she is a
barrister.
(2) A local legal practitioner is taken to be
enrolled on the roll of non-advocates if--
(a) his or her name is on the register under
20 section 6.2.23; and
(b) the register indicates that he or she is
not a barrister.
3 Eligibility to stand and vote
(1) Each local legal practitioner of not less than
25 5 years' standing who is on the roll of
advocates is eligible to stand for election for
the advocate member of the Board.
(2) Each local legal practitioner of not less than
5 years' standing who is on the roll of non-
30 advocates is eligible to stand for election for
the non-advocate members of the Board.
561025B.I-27/2/2007 91 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 78
(3) Each local legal practitioner who is on the
roll of advocates is eligible to vote in an
election for the advocate member of the
Board.
5 (4) Each local legal practitioner who is on the
roll of non-advocates is eligible to vote in an
election for the non-advocate members of the
Board.".
78 Transitional provisions
10 In Schedule 2 to the Principal Act--
(a) in clause 4.3(3), for "Chartered Accounts"
substitute "Chartered Accountants";
(b) in clause 8.3(3)(e), for "proceeding."
substitute "proceeding; and";
15 (c) after clause 8.3(3)(e) insert--
"(f) if the Society (within the meaning of
clause 1 of Schedule 2 to the old Act)
was a party to the proceeding
immediately before the commencement
20 day, the Law Institute is a party to the
proceeding on and after that day, and
has all the functions in relation to the
proceeding that the Society had under
the old Act; and
25 (g) if the Bar (within the meaning of
clause 1 of Schedule 2 to the old Act)
was a party to the proceeding
immediately before the commencement
day, the Victorian Bar is a party to the
30 proceeding on and after that day, and
has all the functions in relation to the
proceeding that the Bar had under the
old Act.";
(d) in clause 8.4(3)(f), for "proceeding."
35 substitute "proceeding; and";
561025B.I-27/2/2007 92 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 79
(e) after clause 8.4(3)(f) insert--
"(g) if the Society (within the meaning of
clause 1 of Schedule 2 to the old Act)
was a party to the proceeding
5 immediately before the commencement
day, the Law Institute is a party to the
proceeding on and after that day, and
has all the functions in relation to the
proceeding that the Society had under
10 the old Act; and
(h) if the Bar (within the meaning of
clause 1 of Schedule 2 to the old Act)
was a party to the proceeding
immediately before the commencement
15 day, the Victorian Bar is a party to the
proceeding on and after that day, and
has all the functions in relation to the
proceeding that the Bar had under the
old Act.".
20 79 New Part 12 inserted in Schedule 2
After Part 11 of Schedule 2 to the Principal Act
insert--
"PART 12--LEGAL PROFESSION
AMENDMENT ACT 2007
25 12.1 Practising certificates
(1) Section 2.4.3(8) does not apply in relation to
an interstate practising certificate granted or
renewed before the commencement day.
(2) Subclause (1) has effect only in relation to
30 the period commencing on the
commencement day and ending on 30 June
2007.
561025B.I-27/2/2007 93 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
s. 80
(3) In this clause--
commencement day means the day after the
day on which the Legal Profession
Amendment Act 2007 received the
5 Royal Assent.".
80 Consequential amendment of Conveyancers
Act 2006
See: In section 5(a) of the Conveyancers Act 2006,
Act No.
75/2006. omit "section 2.2.5 of".
Statute Book:
www.
legislation.
vic.gov.au
10 81 Repeal of Act
This Act is repealed on 1 July 2009.
561025B.I-27/2/2007 94 BILL LA INTRODUCTION 27/2/2007
Legal Profession Amendment Bill 2007
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561025B.I-27/2/2007 95 BILL LA INTRODUCTION 27/2/2007
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