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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Legal Profession Bill 2007
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Interpretation
3. Terms used in this Act 3
4. Terms relating to lawyers 18
5. Terms relating to legal practitioners 18
6. Terms relating to associates and principals of law
practices 18
7. Home jurisdiction 20
8. Suitability matters 21
9. Information notices 23
10. References to conviction and quashing a
conviction 23
Part 3 -- Reservation of legal work
and related matters
Division 1 -- Preliminary
11. Purposes 25
Division 2 -- General prohibitions on
unqualified practice
12. Prohibition on engaging in legal practice when not
entitled 25
13. Prohibition on representing or advertising
entitlement to engage in legal practice when not
entitled 27
14. Presumptions about taking or using name, title or
description specified in regulations 28
245--2 page i
Legal Profession Bill 2007
Contents
15. Associates who are disqualified or convicted
persons 29
16. Sharing income with unqualified persons 30
17. Permitting or assisting unqualified persons to
practise 30
Division 3 -- General
18. Prohibited person must not act as executor or
trustee 30
19. Professional discipline 31
Part 4 -- Admission of local lawyers
Division 1 -- Preliminary
20. Purposes 32
Division 2 -- Eligibility and suitability for
admission
21. Eligibility for admission 32
22. Suitability for admission 33
23. Early consideration of suitability 33
24. Referral of matters to State Administrative
Tribunal 34
Division 3 -- Admission to the legal profession
25. Application for admission 35
26. Admission by the Supreme Court 35
27. Objection to admission 36
28. Roll of persons admitted to the legal profession 36
29. Local lawyer is an officer of the Supreme Court 37
Division 4 -- Functions of Legal Practice Board
in relation to admissions
30. Board to advise on applications for admission 37
31. Compliance certificates 37
32. Consideration of applicant's eligibility and
suitability 38
Division 5 -- Miscellaneous
33. Board is respondent to application under this Part 39
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Legal Profession Bill 2007
Contents
Part 5 -- Legal practice by
Australian legal practitioners
Division 1 -- Preliminary
34. Purposes 40
Division 2 -- Legal practice in this jurisdiction
by Australian legal practitioners
35. Entitlement of Australian legal practitioner to
practise in this jurisdiction 40
36. WA government lawyers taken to be local legal
practitioners 40
Division 3 -- Local practising certificates
generally
37. Local practising certificates 42
38. Suitability to hold local practising certificate 42
39. Duration of local practising certificate 44
40. Professional indemnity insurance 45
41. Local legal practitioner is officer of Supreme Court 45
Division 4 -- Grant or renewal of local
practising certificate
42. Application for grant or renewal of local practising
certificate 45
43. Manner of application and fees 48
44. Timing of application for renewal of local
practising certificate 48
45. Grant or renewal of local practising certificate 50
Division 5 -- Conditions on local practising
certificates
46. Conditions generally 51
47. Conditions imposed by Board 52
48. Imposition or variation of conditions pending
criminal proceedings 54
49. Conditions imposed on interstate admission 55
50. Restricted legal practice 55
51. Notification of offence 57
52. Conditions imposed by legal profession rules 58
53. Compliance with conditions 58
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Legal Profession Bill 2007
Contents
Division 6 -- Amendment, suspension or
cancellation of local practising certificates
54. Application of this Division 58
55. Grounds for amending, suspending or cancelling
local practising certificate 58
56. Amending, suspending or cancelling local
practising certificate 59
57. Operation of amendment, suspension or
cancellation of local practising certificate 60
58. Immediate suspension of local practising
certificate 62
59. Other ways of amending, suspending or cancelling
local practising certificate 63
60. Relationship of this Division with Part 13 63
Division 7 -- Special powers in relation to local
practising certificates -- show cause
events
61. Applicant for local practising certificate -- show
cause event 64
62. Holder of local practising certificate -- show cause
event 64
63. Refusal, amendment, suspension or cancellation of
local practising certificate -- failure to show cause 65
64. Restriction on making further applications 66
65. Power to renew practising certificate or defer
action in special circumstances 66
66. Relationship of this Division with Part 13 67
Division 8 -- Further provisions relating to
local practising certificates
67. Return of local practising certificate 67
Division 9 -- Interstate legal practitioners
68. Requirement for professional indemnity insurance 68
69. Extent of entitlement of interstate legal practitioner
to practise in this jurisdiction 68
70. Additional conditions on practice of interstate legal
practitioners 69
71. Notification requirements for interstate legal
practitioners 70
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Legal Profession Bill 2007
Contents
72. Special provisions about interstate legal
practitioner engaging in unsupervised legal
practice in this jurisdiction 72
73. Interstate legal practitioner is officer of Supreme
Court 74
Division 10 -- Miscellaneous provisions relating
to practice
74. Jurisdiction protocols 74
75. Consideration and investigation of applicants or
holders 75
76. Register of local practising certificates 76
77. Orders about conditions 77
78. Review of decisions of Board 77
79. Interstate government lawyers 77
80. Fees 79
Part 6 -- Inter-jurisdictional
provisions regarding admission
and practising certificates
Division 1 -- Preliminary
81. Purpose 80
82. Other requirements not affected 80
Division 2 -- Notifications to be given by local
authorities to interstate authorities
83. Official notification to other jurisdictions of
applications for admission and associated matters 80
84. Official notification to other jurisdictions of
removals from local roll 81
85. Board to notify other jurisdictions of certain
matters 81
Division 3 -- Notifications to be given by
lawyers to local authorities
86. Lawyer to give notice of removal of name from
interstate roll 82
87. Lawyer to give notice of interstate orders 83
88. Lawyer to give notice of foreign regulatory action 83
89. Provisions relating to requirement to notify 83
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Legal Profession Bill 2007
Contents
Division 4 -- Taking of action by local
authorities in response to notifications
received
90. Peremptory removal of local lawyer's name from
local roll following removal in another jurisdiction 84
91. Peremptory cancellation of local practising
certificate following removal of name from
interstate roll 85
92. Show cause procedure for removal of lawyer's
name from local roll following foreign regulatory
action 85
93. Show cause procedure for cancellation of local
practising certificate following foreign regulatory
action 86
94. Order for non-removal of name 87
95. Order for non-cancellation of local practising
certificate 88
96. Local authority may give information to other local
authorities 89
Part 7 -- Incorporated legal practices
and multi-disciplinary
partnerships
Division 1 -- Preliminary
97. Purposes 90
98. Definitions 90
Division 2 -- Incorporated legal practices
providing legal services
99. Nature of incorporated legal practice 91
100. Non-legal services and businesses of incorporated
legal practices 92
101. Corporations eligible to be incorporated legal
practice 92
102. Notice of intention to start providing legal services 93
103. Prohibition on representations that corporation is
incorporated legal practice 93
104. Notice of corporation ceasing to engage in legal
practice 94
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Legal Profession Bill 2007
Contents
105. Incorporated legal practice must have legal
practitioner director 94
106. Obligations of legal practitioner director relating to
misconduct 96
107. Incorporated legal practice without legal
practitioner director 97
108. Obligations and privileges of practitioners who are
officers or employees 98
109. Professional indemnity insurance 99
110. Conflicts of interest 100
111. Disclosure obligations 100
112. Effect of non-disclosure on provision of certain
services 102
113. Application of legal profession rules 102
114. Requirements relating to advertising 102
115. Extension of vicarious liability relating to failure to
account, pay or deliver and dishonesty to
incorporated legal practices 103
116. Sharing of receipts, revenue or other income 103
117. Disqualified persons 104
118. Audit of incorporated legal practice 104
119. Banning of incorporated legal practices 106
120. Disqualification from managing incorporated legal
practice 108
121. Disclosure of information to Australian Securities
and Investments Commission 109
122. External administration proceedings under
Corporations Act 109
123. External administration proceedings under other
legislation 110
124. Incorporated legal practice is subject to
receivership under this Act and external
administration under Corporations Act 111
125. Incorporated legal practice that is subject to
receivership under this Act and external
administration under other legislation 112
126. Cooperation between courts 113
127. Relationship of Act to constitution of incorporated
legal practice 113
128. Relationship of Act to legislation establishing
incorporated legal practice 113
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Legal Profession Bill 2007
Contents
129. Relationship of Act to Corporations legislation 113
130. Undue influence 114
Division 3 -- Multi-disciplinary partnerships
131. Nature of multi-disciplinary partnership 114
132. Conduct of multi-disciplinary partnership 115
133. Notice of intention to start practice in
multi-disciplinary partnership 115
134. General obligations of legal practitioner partners 115
135. Obligations of legal practitioner partner relating to
misconduct 116
136. Actions of partner who is not Australian legal
practitioner 117
137. Obligations and privileges of practitioners who are
partners or employees 117
138. Conflicts of interest 118
139. Disclosure obligations 118
140. Effect of non-disclosure on provision of certain
services 119
141. Application of legal profession rules 120
142. Requirements relating to advertising 120
143. Sharing of receipts, revenue or other income 121
144. Disqualified persons 121
145. Prohibition on partnerships with certain partners
who are not Australian legal practitioners 121
146. Undue influence 122
Division 4 -- Miscellaneous
147. Obligations of individual practitioners not affected 123
148. Regulations 123
Part 8 -- Legal practice by foreign
lawyers
Division 1 -- Preliminary
149. Purpose 125
150. Definitions 125
151. This Part does not apply to Australian legal
practitioners 126
Division 2 -- Practice of foreign law
152. Requirement for registration 126
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Legal Profession Bill 2007
Contents
153. Entitlement of Australian-registered foreign lawyer
to practise in this jurisdiction 127
154. Scope of practice 127
155. Form of practice 128
156. Application of Australian professional ethical and
practice standards 129
157. Designation 130
158. Letterhead and other identifying documents 131
159. Advertising 132
160. Foreign lawyer employing Australian legal
practitioner 133
161. Trust money and trust accounts 133
162. Professional indemnity insurance 134
163. Fidelity cover 135
Division 3 -- Local registration of foreign
lawyers generally
164. Local registration of foreign lawyers 135
165. Duration of registration 135
166. Locally registered foreign lawyer is not officer of
Supreme Court 136
Division 4 -- Application for grant or renewal
of local registration
167. Application for grant or renewal of registration 136
168. Manner of application 136
169. Requirements regarding applications for grant or
renewal of registration 137
Division 5 -- Grant or renewal of registration
170. Grant or renewal of registration 140
171. Requirement to grant or renew registration if
criteria satisfied 140
172. Refusal to grant or renew registration 141
Division 6 -- Amendment, suspension or
cancellation of local registration
173. Application of this Division 143
174. Grounds for amending, suspending or cancelling
local registration 143
175. Amending, suspending or cancelling registration 144
176. Operation of amendment, suspension or
cancellation of registration 146
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Legal Profession Bill 2007
Contents
177. Other ways of amending or cancelling registration 147
178. Relationship of this Division with Part 13 147
Division 7 -- Special powers in relation to local
registration -- show cause events
179. Applicant for local registration -- show cause
event 148
180. Locally registered foreign lawyer -- show cause
event 148
181. Refusal, amendment, suspension or cancellation of
local registration -- failure to show cause 149
182. Restriction on making further applications 149
183. Relationship of this Division with Part 13 150
Division 8 -- Further provisions relating to
local registration
184. Immediate suspension of registration 150
185. Automatic cancellation of registration on grant of
practising certificate 151
186. Suspension or cancellation of registration not to
affect disciplinary processes 151
187. Return of local registration certificate on
amendment, suspension or cancellation of
registration 151
Division 9 -- Conditions on registration
188. Conditions generally 152
189. Conditions imposed by Board 152
190. Imposition or variation of conditions pending
criminal proceedings 153
191. Condition regarding notification of offence 154
192. Conditions imposed by legal profession rules 154
193. Compliance with conditions 154
Division 10 -- Interstate-registered foreign
lawyers
194. Extent of entitlement of interstate-registered
foreign lawyer to practise in this jurisdiction 155
195. Additional conditions on practice of
interstate-registered foreign lawyers 156
196. Notification requirements for interstate-registered
foreign lawyers 156
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Legal Profession Bill 2007
Contents
Division 11 -- Miscellaneous
197. Consideration and investigation of applicants and
locally registered foreign lawyers 158
198. Register of locally registered foreign lawyers 158
199. Publication of information about locally registered
foreign lawyers 159
200. State Administrative Tribunal orders about
conditions 159
201. Exemption by Board 159
202. Membership of professional association 159
203. Review by State Administrative Tribunal 159
Part 9 -- Trust money and trust
accounts
Division 1 -- Preliminary
204. Purposes 161
205. Definitions 161
206. Money involved in financial services or
investments 164
207. Determinations about status of money 165
208. Application of Part to law practices and trust
money 165
209. Trust money protocols 166
210. When money is received 167
211. Discharge by legal practitioner associate of
obligations of law practice 167
212. Liability of principals of law practices 168
213. Former practices, principals and associates 168
Division 2 -- Trust accounts and trust money
214. Maintenance of general trust account 169
215. Certain trust money to be deposited in general trust
account 169
216. Holding, disbursing and accounting for trust
money 170
217. Manner of withdrawal of trust money from general
trust account 171
218. Controlled money 171
219. Manner of withdrawal of controlled money from
controlled money account 172
220. Transit money 173
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Legal Profession Bill 2007
Contents
221. Trust money subject to specific powers 173
222. Trust money received in the form of cash 174
223. Protection of trust money 175
224. Intermixing money 175
225. Dealing with trust money: legal costs and
unclaimed money 176
226. Deficiency in trust account 176
227. Reporting certain irregularities and suspected
irregularities 177
228. Keeping trust records 178
229. False names 178
Division 3 -- Investigations
230. Appointment of investigators 179
231. Investigations 179
232. Application of Part 15 179
233. Investigator's report and confidentiality 180
234. When costs of investigation are debt 180
Division 4 -- External examinations
235. Designation of external examiners 181
236. Designation and appointment of associates as
external examiners 181
237. Trust records to be externally examined 181
238. Examination of affairs in connection with
examination of trust records 182
239. Final examination of trust records 182
240. Carrying out examination 183
241. External examiner's report and confidentiality 184
242. Law practice liable for costs of examination 184
Division 5 -- Provisions relating to ADIs
243. ADI not subject to certain obligations and
liabilities 184
244. Reports, records and information 185
Division 6 -- Miscellaneous
245. Restrictions on receipt of trust money 186
246. Restrictions on receipt of trust money by interstate
legal practitioners 187
247. Application of Part to incorporated legal practices
and multi-disciplinary partnerships 187
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Legal Profession Bill 2007
Contents
248. Disclosure to clients -- money not received or held
as trust money 187
249. Disclosure of accounts used to hold money
entrusted to law practice or legal practitioner
associate 188
250. Regulations 189
Part 10 -- Costs disclosure and
assessment
Division 1 -- Preliminary
251. Purposes 191
252. Definitions 191
253. Terms relating to third party payers 192
Division 2 -- Application of this Part
254. Application of Part -- first instructions rule 193
255. Part also applies by agreement or at client's
election 193
256. Displacement of Part 194
257. How and where a client first instructs a law
practice 195
258. When a matter has a substantial connection with
this jurisdiction 195
259. What happens when different laws apply to a
matter 196
Division 3 -- Costs disclosure
260. Disclosure of costs to clients 197
261. Disclosure if another law practice is to be retained 200
262. How and when disclosure must be made 200
263. Exceptions to requirement for disclosure 200
264. Additional disclosure -- settlement of litigious
matters 203
265. Additional disclosure -- uplift fees 204
266. Form of disclosure 204
267. Ongoing obligation to disclose 204
268. Effect of failure to disclose 204
269. Progress reports 206
270. Disclosure to associated third party payers 206
Division 4 -- Legal costs generally
271. Basis on which legal costs are recoverable 207
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Legal Profession Bill 2007
Contents
272. Security for legal costs 208
273. Interest on unpaid legal costs 208
Division 5 -- Legal costs determinations
274. Terms used in this Division 208
275. Legal costs determinations 209
276. Review of costs determinations 210
277. Inquiries by Legal Costs Committee 210
278. Notice and submissions in respect of determination 211
279. Report and publication of costs determinations 212
280. Effect of costs determination 212
281. Reports 213
Division 6 -- Costs agreements
282. Making costs agreements 213
283. Conditional costs agreements 214
284. Conditional costs agreements involving uplift fees 216
285. Contingency fees are prohibited 217
286. Effect of costs agreement 217
287. Certain costs agreements void 217
288. Setting aside costs agreements 218
Division 7 -- Billing
289. Legal costs cannot be recovered unless bill has
been given 221
290. Bills 221
291. Notification of client's rights 223
292. Request for itemised bill 224
293. Interim bills 224
Division 8 -- Costs assessment
294. Meaning of "client" 225
295. Application by clients or third party payers for
costs assessment 225
296. Application for costs assessment by law practice
retaining another law practice 228
297. Application for costs assessment by law practice
giving bill 229
298. Consequences of application 229
299. Persons to be notified of application 229
300. Procedure on assessment 230
301. Criteria for assessment 230
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Legal Profession Bill 2007
Contents
302. Assessment of costs by reference to costs
agreement 231
303. Assessment of costs by reference to costs
determination 232
304. Costs of assessment 232
305. Certification and interest 233
306. Assessment of Legal Aid Commission bill 233
307. Referral for disciplinary action 233
308. Review of assessment 234
309. Contracting out of Division by sophisticated clients 234
Division 9 -- Legal Costs Committee
Subdivision 1 -- Establishment
310. Legal Costs Committee 234
311. Nominations 235
312. Term of office 235
313. Deputy chairperson 236
314. Deputy members 236
315. Removal and resignation 237
316. Leave of absence 237
317. Remuneration and allowances 237
Subdivision 2 -- Procedure
318. Meetings 237
319. Voting 238
320. Quorum 238
321. Legal Costs Committee to determine procedures 238
Subdivision 3 -- Support and financial provisions
322. Use of staff and facilities of departments 239
323. Funds 239
324. Application of Financial Management Act 2006
and Auditor General Act 2006 240
Division 10 -- Miscellaneous
325. Application of Part to incorporated legal practices
and multi-disciplinary partnerships 240
326. Imputed acts, omissions or knowledge 241
Part 11 -- Professional indemnity
insurance
327. Terms used in this Part 242
328. Regulations as to professional indemnity insurance 242
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Legal Profession Bill 2007
Contents
329. Law Mutual (WA) 244
330. Law Mutual Fund 244
331. PII management committee 245
332. Delegation 245
Part 12 -- Fidelity cover
Division 1 -- Preliminary
333. Purpose 247
334. Definitions 247
335. Time of default 248
Division 2 -- Solicitors' Guarantee Fund
336. Establishment of Guarantee Fund 249
337. Payment of contributions by local legal
practitioners 250
338. Payment of contributions by interstate legal
practitioners 251
339. Levy to supplement Guarantee Fund 251
340. Failure to pay levy 252
341. Insurance 252
342. Investment of Guarantee Fund 253
343. Borrowing 253
Division 3 -- Fidelity cover
Subdivision 1 -- Application provisions
344. Application to Australian-registered foreign
lawyers 253
345. Application to incorporated legal practices 254
346. Application to multi-disciplinary partnerships 254
347. Application to sole practitioners whose practising
certificates lapse 255
Subdivision 2 -- Defaults to which this Division
applies
348. Meaning of "relevant jurisdiction" 256
349. Defaults to which this Division applies 257
350. Defaults relating to financial services or
investments 257
Subdivision 3 -- Claims about defaults
351. Claims about defaults 259
352. Time limit for making claims 259
353. Advertisements 260
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Legal Profession Bill 2007
Contents
354. Time limit for making claims following
advertisement 261
355. Claims not affected by certain matters 262
356. Investigation of claims 262
357. Advance payments 262
Subdivision 4 -- Determination of claims
358. Determination of claims 263
359. Maximum amount allowable 264
360. Costs 265
361. Interest 265
362. Reduction of claim because of other benefits 265
363. Subrogation 266
364. Repayment of certain amounts 267
365. Notification of delay in making decision 267
366. Notification of decision 268
367. Proceedings against Trust restrained 268
368. Proceedings to establish claim 269
369. Court proceedings 269
Subdivision 5 -- Payments from Guarantee Fund for
defaults
370. Application of Guarantee Fund 270
371. Caps on payments 270
372. Sufficiency of Guarantee Fund 271
Subdivision 6 -- Claims by law practices or
associates
373. Claims by law practices or associates about
defaults 272
374. Claims by law practices or associates about
notional defaults 272
Subdivision 7 -- Defaults involving interstate
elements
375. Concerted interstate defaults 273
376. Defaults involving interstate elements where
committed by one associate only 274
Subdivision 8 -- Inter-jurisdictional provisions
377. Fidelity protocols 275
378. Forwarding of claims 275
379. Investigation of defaults to which this Division
applies 276
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Legal Profession Bill 2007
Contents
380. Investigation of defaults to which a corresponding
law applies 276
381. Investigation of concerted interstate defaults and
other defaults involving interstate elements 277
382. Recommendations by Trust to corresponding
authorities 277
383. Recommendations to and decisions by Trust after
receiving recommendations from corresponding
authorities 277
384. Request to another jurisdiction to investigate
aspects of claim 278
385. Request from another jurisdiction to investigate
aspects of claim 278
386. Cooperation with other authorities 278
Division 4 -- Interest on trust accounts
387. ADI to pay interest on trust accounts to Trust 279
388. Application of interest 280
389. Audit of expenditure 282
390. Application of Financial Management Act 2006
and Auditor General Act 2006 283
Division 5 -- Legal Contribution Trust
391. Establishment of Trust 283
392. Relationship to Crown 283
393. Constitution of Trust 284
394. Chairperson 284
395. Deputies 285
396. Vacation of office 285
397. Meetings 285
398. Voting 286
399. Functions of the Trust 286
400. Execution of documents by the Trust 286
Part 13 -- Complaints and discipline
Division 1 -- Preliminary
401. Purposes 288
Division 2 -- Key concepts
402. Unsatisfactory professional conduct 288
403. Professional misconduct 288
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Legal Profession Bill 2007
Contents
404. Conduct capable of constituting unsatisfactory
professional conduct or professional misconduct 289
Division 3 -- Application
405. Practitioners to whom this Part applies 290
406. Application of Part to lawyers, former lawyers and
former practitioners 290
407. Conduct to which this Part applies -- generally 291
408. Conduct to which this Part applies -- insolvency,
serious offences and tax offences 292
Division 4 -- Complaints about Australian legal
practitioners
409. Complaints 293
410. Making of complaints 293
411. Time of complaint 294
412. Further information and verification 295
413. Practitioner to be notified of complaint 295
414. Submissions by practitioner 296
415. Summary dismissal of complaints 296
416. Withdrawal of complaint 297
Division 5 -- Mediation
417. Mediation of complaints 299
418. Facilitation of mediation 299
419. Admissibility of evidence and documents 299
420. Order following mediation 300
Division 6 -- Investigation by Complaints
Committee
421. Investigations 300
422. Application of Part 15 301
423. Referral of matters for costs assessment 301
Division 7 -- Decision of Complaints Committee
424. Decision of Complaints Committee after
investigation 301
425. Dismissal of complaint 301
426. Summary conclusion of complaint procedure 302
427. Record of decision 303
428. Referrals to State Administrative Tribunal 303
429. Costs 303
Division 8 -- General procedural matters
430. Procedure 304
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Legal Profession Bill 2007
Contents
431. Duty to deal with complaints efficiently and
expeditiously 304
432. Complainant and practitioner to be informed of
action taken 304
433. Parties 305
434. Proceedings generally not to be public 305
435. Review of Complaints Committee decision 306
Division 9 -- Immediate suspension of local
practising certificate
436. Interim restrictions on practice 306
Division 10 -- Proceedings in State
Administrative Tribunal
437. Constitution of State Administrative Tribunal
under this Act 307
438. Jurisdiction of State Administrative Tribunal 308
439. Orders requiring official implementation in this
jurisdiction 309
440. Orders requiring official implementation in another
jurisdiction 310
441. Orders requiring compliance by practitioner 310
442. Alternative finding 311
443. Interlocutory and interim orders 312
444. Court may punish 312
445. Official notification to Board and Complaints
Committee of removals from local roll 312
446. Compliance with orders 313
447. Other remedies not affected 315
Division 11 -- Compensation
448. Compensation orders 315
449. Prerequisites to making of compensation orders 316
450. Effect on other remedies 316
Division 12 -- Publicising disciplinary action
451. Definitions 317
452. Register of Disciplinary Action 317
453. Other means of publicising disciplinary action 319
454. Quashing of disciplinary action 319
455. Liability for publicising disciplinary action 319
456. Disciplinary action taken because of infirmity,
injury or illness 320
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Legal Profession Bill 2007
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457. Effect of secrecy provisions and non-disclosure
orders 321
Division 13 -- Inter-jurisdictional provisions
458. Conduct protocols 321
459. Request to another jurisdiction to investigate
complaint or conduct 322
460. Request from another jurisdiction to investigate
complaint or conduct 322
461. Sharing of information with corresponding
authorities 323
462. Cooperation with other authorities 323
463. Compliance with recommendations or orders made
under corresponding laws 324
464. Other powers or functions not affected 324
Division 14 -- Miscellaneous
465. Jurisdiction of Supreme Court 325
466. Failure to comply with orders 325
467. Confidentiality of client communications 325
468. Claims of privilege 325
469. Waiver of privilege or duty of confidentiality 326
Part 14 -- External intervention
Division 1 -- Preliminary
470. Purposes 327
471. Definitions 327
472. Application of Part to Australian-registered foreign
lawyers 328
473. Application of Part to other persons 328
Division 2 -- Initiation of external intervention
474. Circumstances warranting external intervention 329
475. Determination regarding external intervention 330
Division 3 -- Supervisors of trust money
476. Appointment of supervisor of trust money 332
477. Notice of appointment 333
478. Effect of service of notice of appointment 334
479. Role of supervisor of trust money 335
480. Records of and dealing with trust money of law
practice under supervision 337
481. Termination of supervisor's appointment 337
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Division 4 -- Managers
482. Appointment of manager 338
483. Notice of appointment 338
484. Effect of service of notice of appointment 339
485. Role of manager 341
486. Records and accounts of law practice under
management and dealings with trust money 343
487. Deceased estates 343
488. Termination of manager's appointment 344
Division 5 -- Receivers
489. Appointment of receiver 345
490. Notice of appointment 346
491. Effect of service of notice of appointment 347
492. Role of receiver 349
493. Records and accounts of, and dealing with trust
money of, law practice under receivership 351
494. Power of receiver to take possession of regulated
property 351
495. Power of receiver to take delivery of regulated
property 352
496. Power of receiver to deal with regulated property 352
497. Power of receiver to require documents or
information 353
498. Examinations 354
499. Lien for costs on regulated property 354
500. Regulated property not to be attached 355
501. Recovery of regulated property where there has
been a breach of trust 355
502. Improperly destroying property 357
503. Deceased estates 358
504. Termination of receiver's appointment 358
Division 6 -- General
505. Conditions on appointment of external intervener 359
506. Status of acts of external intervener 360
507. Eligibility for reappointment or authorisation 360
508. Review of appointment 360
509. Directions of State Administrative Tribunal 361
510. Manager and receiver appointed for law practice 361
511. ADI disclosure requirements 361
512. Fees, legal costs and expenses 363
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Legal Profession Bill 2007
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513. Reports by external intervener 363
514. Confidentiality 364
515. Provisions relating to requirements under this Part 365
516. Obstruction of external intervener 366
Part 15 -- Provisions relating to
investigations
Division 1 -- Preliminary
517. Definitions 367
Division 2 -- Requirements relating to
documents, information and other
assistance
518. Application of Division 368
519. Requirement to provide access to documents and
information relating to affairs of law practice 368
520. Requirements in relation to complaint
investigations 369
521. Provisions relating to requirements under this
Division 370
Division 3 -- Entry and search of premises
522. Application of Division 371
523. Investigator's power to enter premises 371
524. Search warrant 372
525. Powers of investigator while on premises 373
Division 4 -- Additional powers in relation to
incorporated legal practices
526. Application of Division 375
527. Powers relating to investigations and audits to
which this Division applies 376
528. Examination of persons 376
529. Inspection of books 377
530. Power to hold hearings 377
Division 5 -- Miscellaneous
531. Obstruction or misleading of investigator 378
532. Obligations of Australian lawyers 378
533. Permitted disclosure of confidential information 379
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Legal Profession Bill 2007
Contents
Part 16 -- Regulatory authorities
Division 1 -- Legal Practice Board
Subdivision 1 -- Establishment
534. Board established 382
535. Relationship to the Crown 382
536. Board members 382
537. Who may vote in election 383
538. Vacation of office by member 383
539. Functions 383
540. Powers 383
541. Chairperson and deputy chairperson 383
542. Casual vacancies 384
Subdivision 2 -- Performance
543. Presiding at meetings 384
544. Quorum 385
545. Voting 385
546. Procedures 385
547. Delegation 385
Subdivision 3 -- Financial and reporting provisions
548. Application of funds 386
549. Accounts and records 386
550. Audit 387
551. Annual and other reports 387
Subdivision 4 -- Miscellaneous
552. Committees 388
553. Secretary of the Board 388
554. Execution of documents by the Board 388
Division 2 -- Legal Profession Complaints
Committee
Subdivision 1 -- Establishment
555. Legal Profession Complaints Committee
established 389
556. Complaints Committee members 390
557. Functions of the Complaints Committee 390
558. Term of appointment -- representative of the
community 391
559. Deputy chairperson 392
560. Deputies of representatives of the community 392
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Legal Profession Bill 2007
Contents
561. Removal or resignation 393
562. Leave of absence 394
563. Termination of office may be deferred 394
564. Remuneration and allowances 394
565. Saving 394
Subdivision 2 -- Performance
566. Quorum 394
567. Meetings 395
568. Divisions 395
569. Voting 396
570. Complaints Committee may determine its own
procedures 396
571. Reports 396
Division 3 -- Law Complaints Officer and staff
572. Law Complaints Officer 398
573. Delegation to Law Complaints Officer 398
574. Staff 399
Part 17 -- Rules
Division 1 -- Admission rules
575. Admission rules 400
Division 2 -- Legal profession rules
576. Subject-matter of legal profession rules 401
577. Rules for Australian legal practitioners 401
578. Rules for Australian-registered foreign lawyers 401
579. Rules for incorporated legal practices and
multi-disciplinary partnerships 401
580. Rules for Board, Law Library and Complaints
Committee 403
Division 3 -- General provisions
581. Binding nature of legal profession rules 403
582. Rules inconsistent with regulations 404
583. Rules are subsidiary legislation 404
Part 18 -- General provisions
584. Liability of principals 405
585. Injunctions 405
586. Disclosure of information by local regulatory
authorities 407
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Legal Profession Bill 2007
Contents
587. Confidentiality of personal information 407
588. Professional privilege or duty of confidence does
not affect validity or compliance with certain
requirements 408
589. Duty to report suspected offences 409
590. Contempt of the Supreme Court 409
591. Protection from liability 410
592. Legal proceedings 411
593. Evidentiary certificates 411
594. Approved forms 413
595. Laying documents before House of Parliament that
is not sitting 413
596. Regulations 414
597. Review of Act 415
Part 19 -- Repeal, savings,
transitional and other provisions
Division 1 -- Repeals
598. Legal Practice Act 2003 repealed 416
599. Legal Contribution Trust Act 1967 repealed 416
600. Interpretation Act 1984 not affected 416
Division 2 -- Savings and transitional
provisions relating to repeal of Legal
Practice Act 2003
601. Definitions 416
602. Articles and other practical legal training 416
603. Admission 417
604. Existing applications for admission 417
605. The Roll 417
606. Practising certificates 417
607. Actions before the commencement day that
continue to have effect 419
608. Restricted legal practice 420
609. Foreign lawyers 420
610. Incorporated legal practices 421
611. Orders in relation to multi-disciplinary
partnerships 421
612. Approvals under section 133 of 2003 Act 421
613. Authority to receive trust money 422
614. Deficiencies in trust accounts 422
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Legal Profession Bill 2007
Contents
615. Investigations 422
616. Client information and legal costs 422
617. Legal costs determinations and Legal Costs
Committee 423
618. Legal Practice Board continued 423
619. Membership of Board 423
620. Complaints Committee continued 424
621. Complaints and investigations under Act of prior
conduct 424
622. Discipline 425
623. Examiners 425
624. Orders under section 149 of 2003 Act 425
625. Orders under section 150 of 2003 Act 425
626. Appointments and authorisations under section 151
of the 2003 Act 426
627. Appointments under section 154 of the 2003 Act 426
628. Appointments and orders under section 156 of the
2003 Act 426
629. Board may give directions 427
630. References to 1893 and 2003 Acts and related
matters 427
Division 3 -- Savings and transitional
provisions relating to repeal of Legal
Contribution Trust Act 1967
631. Terms used in this Division 428
632. Legal Contribution Trust continued 428
633. Solicitors' Guarantee Fund 428
634. Contributions 428
635. Claims for acts happening before the
commencement day 428
636. References to Legal Contribution Trust Act 1967 429
Division 4 -- Transitional regulations
637. Transitional regulations 429
Part 20 -- Consequential
amendments
638. Adoption Act 1994 amended 431
639. Agricultural Practices (Disputes) Act 1995
amended 431
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Legal Profession Bill 2007
Contents
640. Australian Crime Commission (Western Australia)
Act 2004 amended 432
641. Builders' Registration Act 1939 amended 432
642. Children and Community Services Act 2004
amended 433
643. Children's Court of Western Australia Act 1988
amended 434
644. Chiropractors Act 2005 amended 435
645. Civil Judgments Enforcement Act 2004 amended 435
646. Civil Liability Act 2002 amended 436
647. Coal Industry Tribunal of Western Australia
Act 1992 amended 438
648. Commercial Arbitration Act 1985 amended 438
649. Companies (Co-operative) Act 1943 amended 439
650. Constitution Acts Amendment Act 1899 amended 439
651. Consumer Affairs Act 1971 amended 440
652. Coroners Act 1996 amended 440
653. Corporations (Western Australia) Act 1990
amended 441
654. Corruption and Crime Commission Act 2003
amended 441
655. Criminal Injuries Compensation Act 2003
amended 442
1. Qualifications for appointment 443
656. Criminal Investigation Act 2006 amended 444
657. Criminal Procedure Act 2004 amended 445
658. Debt Collectors Licensing Act 1964 amended 446
659. Director of Public Prosecutions Act 1991 amended 447
660. District Court of Western Australia Act 1969
amended 448
661. Equal Opportunity Act 1984 amended 450
662. Evidence Act 1906 amended 450
663. Family Court Act 1997 amended 451
664. Finance Brokers Control Act 1975 amended 452
665. Gas Pipelines Access (Western Australia) Act 1998
amended 452
666. Gender Reassignment Act 2000 amended 453
667. Guardianship and Administration Act 1990
amended 453
668. Industrial Relations Act 1979 amended 454
669. Juries Act 1957 amended 455
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Legal Profession Bill 2007
Contents
670. Jurisdiction of Courts (Cross-vesting) Act 1987
amended 456
671. Land Valuers Licensing Act 1978 amended 456
672. Law Reform Commission Act 1972 amended 457
673. Law Society Public Purposes Trust Act 1985
amended 458
674. Legal Aid Commission Act 1976 amended 459
675. Liquor Control Act 1988 amended 466
676. Long Service Leave Act 1958 amended 467
677. Magistrates Court Act 2004 amended 467
678. Magistrates Court (Civil Proceedings) Act 2004
amended 468
679. Medical Radiation Technologists Act 2006
amended 470
680. Mental Health Act 1996 amended 470
681. Mining Act 1978 amended 472
682. Motor Vehicle (Third Party Insurance) Act 1943
amended 472
683. Nurses and Midwives Act 2006 amended 473
684. Oaths, Affidavits and Statutory Declarations
Act 2005 amended 473
8. Meaning of "experienced legal
practitioner" 473
685. Occupational Therapists Act 2005 amended 474
686. Official Prosecutions (Accused's Costs) Act 1973
amended 474
687. Optometrists Act 2005 amended 475
688. Osteopaths Act 2005 amended 475
689. Physiotherapists Act 2005 amended 476
690. Planning and Development Act 2005 amended 476
691. Podiatrists Act 2005 amended 476
692. Police Act 1892 amended 477
693. Psychologists Act 2005 amended 477
694. Public Notaries Act 1979 amended 477
695. Racing Penalties (Appeals) Act 1990 amended 478
696. Real Estate and Business Agents Act 1978
amended 479
697. Registration of Deeds Act 1856 amended 480
698. Residential Tenancies Act 1987 amended 480
699. Restraining Orders Act 1997 amended 481
700. Royal Commission (Police) Act 2002 amended 481
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Legal Profession Bill 2007
Contents
701. Sale of Goods (Vienna Convention) Act 1986
amended 481
702. Sale of Land Act 1970 amended 482
703. Security and Related Activities (Control) Act 1996
amended 482
704. Settlement Agents Act 1981 amended 482
705. Solicitor-General Act 1969 amended 483
706. State Administrative Tribunal Act 2004 amended 484
707. Strata Titles Act 1985 amended 485
708. Suitors' Fund Act 1964 amended 485
709. Supreme Court Act 1935 amended 486
710. Terrorism (Preventative Detention) Act 2006
amended 488
711. Transfer of Land Act 1893 amended 488
712. Western Australian College of Teaching Act 2004
amended 489
713. Workers' Compensation and Injury Management
Act 1981 amended 490
714. Young Offenders Act 1994 amended 491
Defined Terms
page xxx
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Legal Profession Bill 2007
A Bill for
An Act --
· to provide for the regulation of legal practice in Western
Australia; and
· to facilitate the regulation of legal practice on a national basis;
and
· for other related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Legal Profession Bill 2007
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This is the Legal Profession Act 2007.
2. Commencement
5 This Act comes into operation as follows:
(a) Part 1 -- on the day on which this Act receives the
Royal Assent;
(b) the rest of the Act -- on a day fixed by proclamation
and different days may be fixed for different provisions.
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Legal Profession Bill 2007
Interpretation Part 2
s. 3
Part 2 -- Interpretation
3. Terms used in this Act
In this Act --
"accountant" means a member of --
5 (a) The Institute of Chartered Accountants in Australia
(AR643BN 084 642 571); or
(b) CPA Australia (ACN 008 392 452); or
(c) the National Institute of Accountants (ACN
004 130 643);
10 "ADI" means an authorised deposit-taking institution as defined
in the Banking Act 1959 of the Commonwealth;
"admission rules" means rules relating to the admission of
lawyers and associated matters made under section 575;
"admission to the legal profession" means admission by a
15 Supreme Court as --
(a) a lawyer; or
(b) a legal practitioner; or
(c) a barrister; or
(d) a solicitor; or
20 (e) a barrister and solicitor; or
(f) a solicitor and barrister,
under this Act or a corresponding law but does not include
the grant of a practising certificate under this Act or a
corresponding law and "admitted to the legal profession"
25 has a corresponding meaning;
"affairs" of a law practice include the following --
(a) all accounts and records required under this Act to be
maintained by the practice or an associate or former
associate of the practice;
30 (b) other records of the practice or an associate or former
associate of the practice;
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Legal Profession Bill 2007
Part 2 Interpretation
s. 3
(c) any transaction --
(i) to which the practice or an associate or former
associate of the practice was or is a party; or
(ii) in which the practice or an associate or former
5 associate of the practice has acted for a party;
"amend" includes --
(a) in relation to a practising certificate --
(i) impose a condition on the certificate; and
(ii) vary or revoke a condition already imposed on
10 the certificate;
and
(b) in relation to registration as a foreign lawyer --
(i) amend the lawyer's registration certificate;
and
15 (ii) impose a condition on the registration; and
(iii) vary or revoke a condition already imposed on
the registration;
"approved form" means a form approved by the Board;
"associate" has the meaning given in section 6(1);
20 "Australian lawyer" has the meaning given in section 4(a);
"Australian legal practitioner" has the meaning given in
section 5(a) as affected by section 36(3);
"Australian practising certificate" means a local practising
certificate or an interstate practising certificate;
25 "Australian-registered foreign lawyer" means a locally
registered foreign lawyer or an interstate-registered foreign
lawyer;
"Australian roll" means the local roll or an interstate roll;
"barrister" means an Australian legal practitioner who engages
30 in legal practice solely as a barrister;
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Legal Profession Bill 2007
Interpretation Part 2
s. 3
"Board" means the Legal Practice Board established under
section 534;
"client" includes a person to whom or for whom legal services
are provided;
5 "compensation order" means an order referred to in
section 448;
"complaint" means a complaint under Part 13;
"Complaints Committee" means the committee established
under section 555;
10 "compliance certificate" has the meaning given in section 31;
"condition" means condition, limitation or restriction;
"conduct" means conduct whether consisting of an act or
omission;
"conviction" has the meaning given in section 10;
15 "corporation" means --
(a) a company as defined in the Corporations Act
section 9; or
(b) any other body corporate, or body corporate of a
kind, prescribed by the regulations;
20 "Corporations Act" means the Corporations Act 2001 of the
Commonwealth;
"corresponding authority" means --
(a) a person or body having functions under a
corresponding law; or
25 (b) when used in the context of a person or body having
functions under this Act (the "local authority") --
(i) a person or body having corresponding
functions under a corresponding law; and
page 5
Legal Profession Bill 2007
Part 2 Interpretation
s. 3
(ii)without limiting subparagraph (i), if the
functions of the local authority relate to local
lawyers or local legal practitioners generally
or are limited to any particular class of local
5 lawyers or local legal practitioners -- a
person or body having corresponding
functions under a corresponding law
regardless of whether they relate to interstate
lawyers or interstate legal practitioners
10 generally or are limited to any particular class
of interstate lawyers or interstate legal
practitioners;
"corresponding disciplinary body" means --
(a) a body having functions under a corresponding law
15 that correspond to any of the functions of the
Complaints Committee; or
(b) a court or tribunal having functions under a
corresponding law that correspond to any of the
functions of the Complaints Committee, State
20 Administrative Tribunal or Supreme Court in relation
to the control and discipline of any Australian
lawyers; or
(c) the Supreme Court of another jurisdiction
exercising --
25 (i) its inherent jurisdiction or powers in relation
to the control and discipline of any Australian
lawyers; or
(ii) its jurisdiction or powers to make orders
under a corresponding law of the other
30 jurisdiction in relation to any Australian
lawyers;
"corresponding foreign law" means --
(a) a law of a foreign country that corresponds to the
relevant provisions of this Act or, if a regulation is
35 made declaring a law of the foreign country to be a
page 6
Legal Profession Bill 2007
Interpretation Part 2
s. 3
law that corresponds to this Act, the law declared
under that regulation for the foreign country; or
(b) if the term is used in relation to a matter that
happened before the commencement of the law of a
5 foreign country that, under paragraph (a), is the
corresponding law for the foreign country, a previous
law applying to legal practice in the foreign country;
"corresponding law" means --
(a) a law of another jurisdiction that corresponds to the
10 relevant provisions of this Act or, if a regulation is
made declaring a law of another jurisdiction to be a
law that corresponds to this Act, the law declared
under that regulation for the other jurisdiction; or
(b) if the term is used in relation to a matter that
15 happened before the commencement of the law of
another jurisdiction that, under paragraph (a), is the
corresponding law for the other jurisdiction, a
previous law applying to legal practice in the other
jurisdiction;
20 "director" means --
(a) in relation to a company within the meaning given in
the Corporations Act -- a director as defined in
section 9 of that Act; or
(b) in relation to any other body corporate, or body
25 corporate of a kind, prescribed by the regulations -- a
person specified or described in the regulations;
"disqualified person" means any of the following persons,
whether the thing that has happened to the person happened
before or after the commencement of this definition --
30 (a) a person whose name has (whether or not at his or her
own request) been removed from an Australian roll
and who has not subsequently been admitted or
re-admitted to the legal profession under this Act or a
corresponding law;
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Legal Profession Bill 2007
Part 2 Interpretation
s. 3
(b) a person whose Australian practising certificate has
been suspended or cancelled under this Act or a
corresponding law and who, because of the
cancellation, is not an Australian legal practitioner or
5 in relation to whom that suspension has not finished;
(c) a person who has been refused a renewal of an
Australian practising certificate under this Act or a
corresponding law, and to whom an Australian
practising certificate has not been granted at a later
10 time;
(d) a person who is the subject of an order under this Act
or a corresponding law prohibiting a law practice
from employing or paying the person in connection
with the relevant practice;
15 (e) a person who is the subject of an order under this Act
or a corresponding law prohibiting an Australian
legal practitioner from being a partner of the person
in a business that includes the practitioner's practice;
(f) a person who is subject to an order under section 120
20 or 145 or under provisions of a corresponding law
that correspond to section 120 or 145;
"document" means any record of information, and includes --
(a) anything on which there is writing; and
(b) anything on which there are marks, figures, symbols
25 or perforations having a meaning for persons
qualified to interpret them; and
(c) anything from which sounds, images or writings can
be reproduced with or without the aid of anything
else; and
30 (d) a map, plan, drawing or photograph,
and a reference in this Act to a document (as so defined)
includes a reference to --
(e) any part of the document; and
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Legal Profession Bill 2007
Interpretation Part 2
s. 3
(f) any copy, reproduction or duplicate of the document
or of any part of the document; and
(g) any part of such a copy, reproduction or duplicate;
"engage in legal practice" includes practise law;
5 "external examination" means an external examination under
Part 9 Division 4 of a law practice's trust records;
"external examiner" means a person holding an appointment
as an external examiner under Part 9 Division 4;
"external territory" means a Territory of the Commonwealth
10 (not being the Australian Capital Territory, the Jervis Bay
Territory or the Northern Territory of Australia) for the
government of which as a Territory provision is made by a
Commonwealth Act;
"foreign country" means --
15 (a) a country other than Australia; or
(b) a state, province or other part of a country other than
Australia;
"foreign regulatory action" taken in relation to a person
means --
20 (a) removal of the person's name from a foreign roll for
disciplinary reasons; or
(b) suspension or cancellation of, or refusal to renew, the
person's right to engage in legal practice in a foreign
country;
25 "foreign roll" means an official roll of lawyers (whether
admitted, practising or otherwise) kept in a foreign country,
but does not include a roll prescribed by the regulations or
a kind of roll prescribed by the regulations;
"grant" of a practising certificate includes the issue of a
30 practising certificate;
"Guarantee Fund" means the Solicitor's Guarantee Fund
established under section 336;
"home jurisdiction" has the meaning given in section 7;
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Legal Profession Bill 2007
Part 2 Interpretation
s. 3
"incorporated legal practice" has the meaning given in Part 7
Division 2;
"information notice" has the meaning given in section 9;
"insolvent under administration" means --
5 (a) a person who is an undischarged bankrupt under the
Bankruptcy Act 1966 of the Commonwealth (or the
corresponding provisions of the law of a foreign
country or external territory); or
(b) a person who has executed a deed of arrangement
10 under Part X of the Bankruptcy Act 1966 of the
Commonwealth (or the corresponding provisions of
the law of a foreign country or external territory) if
the terms of the deed have not been fully complied
with; or
15 (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 the law of a foreign country or external
territory) if a final payment has not been made under
20 that composition; or
(d) a person for whom a debt 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 external territory) if
25 the debt agreement has not ended or has not been
terminated; or
(e) a person who has executed a personal insolvency
agreement under Part X of the Bankruptcy Act 1966
of the Commonwealth (or the corresponding
30 provisions of the law of a foreign country or external
territory) but not if the agreement has been set aside
or terminated or all of the obligations that the
agreement created have been discharged;
"interstate government lawyer" has the meaning given in
35 section 79(1);
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Legal Profession Bill 2007
Interpretation Part 2
s. 3
"interstate lawyer" has the meaning given in section 4(c);
"interstate legal practitioner" has the meaning given in
section 5(c);
"interstate practising certificate" means a current practising
5 certificate granted under a corresponding law;
"interstate-registered foreign lawyer" means a person who is
registered as a foreign lawyer under a corresponding law;
"interstate regulatory authority" means, in relation to another
jurisdiction --
10 (a) if there is only one regulatory authority for the
jurisdiction -- that regulatory authority unless
subparagraph (c) applies; or
(b) if there are separate regulatory authorities for the
jurisdiction for different branches of the legal
15 profession or for persons who practise in a particular
style of legal practice -- the regulatory authority
relevant to the branch or style concerned unless
subparagraph (c) applies; or
(c) if the regulations specify or provide for the
20 determination of one or more regulatory authorities
for the jurisdiction either generally or for particular
purposes -- the regulatory authority or authorities
specified in or determined in accordance with the
regulations;
25 "interstate roll" means a roll of lawyers maintained under a
corresponding law;
"jurisdiction" means a State or Territory of the
Commonwealth;
"Law Complaints Officer" means the person holding the
30 office of that name under section 572;
"law firm" means a partnership consisting only of --
(a) Australian legal practitioners; or
page 11
Legal Profession Bill 2007
Part 2 Interpretation
s. 3
(b) one or more Australian legal practitioners and one or
more Australian-registered foreign lawyers;
"law practice" means --
(a) an Australian legal practitioner who is a sole
5 practitioner; or
(b) a law firm; or
(c) a multi-disciplinary partnership; or
(d) an incorporated legal practice;
"Law Society" means the Law Society of Western Australia
10 (Inc.);
"lay associate" has the meaning given in section 6(2)(b);
"legal costs" means amounts that a person has been or may be
charged by, or is or may become liable to pay to, a law
practice for the provision of legal services including
15 disbursements but not including interest;
"legal practitioner associate" has the meaning given in
section 6(2)(a);
"legal practitioner director", in relation to an incorporated
legal practice, has the meaning given in Part 7 Division 1;
20 "legal practitioner partner", in relation to a multi-disciplinary
partnership, has the meaning given in Part 7 Division 1;
"legal profession rules" means rules relating to legal practice
made under this Act;
"legal services" means work done, or business transacted, in
25 the ordinary course of legal practice;
"local lawyer" has the meaning given in section 4(b);
"local legal practitioner" has the meaning given in section 5(b)
as affected by section 36(3);
"local practising certificate" means a practising certificate
30 granted under this Act;
"local regulatory authority" means --
(a) an authority having functions under this Act; or
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Legal Profession Bill 2007
Interpretation Part 2
s. 3
(b) a person or body prescribed by the regulations as a
local regulatory authority;
"local roll" has the meaning given in section 28(1);
"locally registered foreign lawyer" means a person who is
5 registered as a foreign lawyer under Part 8;
"managed investment scheme" has the same meaning as in the
Corporations Act Chapter 5C;
"modifications" includes modifications by way of alteration,
omission, addition or substitution;
10 "mortgage" means an instrument under which an interest in
real property is charged, encumbered or transferred as
security for the payment or repayment of money, and
includes --
(a) any instrument of a kind that is prescribed by the
15 regulations as being a mortgage; and
(b) a proposed mortgage;
"mortgage financing" means facilitating a loan secured or
intended to be secured by mortgage by --
(a) acting as an intermediary to match a prospective
20 lender and borrower; or
(b) arranging the loan; or
(c) receiving or dealing with payments for the purposes
of, or under, the loan,
but does not include providing legal advice or preparing an
25 instrument for the loan;
"multi-disciplinary partnership" has the meaning given in
Part 7 Division 3;
"practical legal training" means either, or a combination of
both, of the following --
30 (a) legal training by participation in course work;
(b) supervised legal training, whether involving articles
of clerkship or otherwise;
page 13
Legal Profession Bill 2007
Part 2 Interpretation
s. 3
"previous Act" means --
(a) the Legal Practice Act 2003;
(b) the Legal Practitioners Act 1893;
"principal" has the meaning given in section 6(3);
5 "Principal Registrar" has the meaning given in the Supreme
Court Act 1935 section 4(1);
"professional misconduct" has the meaning given in
section 403;
"serious offence" means an offence (whether committed in or
10 outside this jurisdiction) that is --
(a) an indictable offence against a law of the
Commonwealth or any jurisdiction (whether or not
the offence is or may be dealt with summarily); or
(b) an offence against the law of another jurisdiction that
15 would be an indictable offence against a law of this
jurisdiction if committed in this jurisdiction (whether
or not the offence could be dealt with summarily if
committed in this jurisdiction); or
(c) an offence against the law of a foreign country that
20 would be an indictable offence against a law of the
Commonwealth or this jurisdiction if committed in
this jurisdiction (whether or not the offence could be
dealt with summarily if committed in this
jurisdiction);
25 "show cause event", in relation to a person, means --
(a) the person becoming bankrupt or being served with
notice of a creditor's petition presented to the Court
under the Bankruptcy Act 1966 of the
Commonwealth section 43; or
30 (b) the presentation by the person (as a debtor) of a
declaration to the Official Receiver under the
Bankruptcy Act 1966 of the Commonwealth
section 54A of his or her intention to present a
debtor's petition or his or her presentation (as a
page 14
Legal Profession Bill 2007
Interpretation Part 2
s. 3
debtor) of such a petition under section 55 of that
Act; or
(c) the application by the person to take the benefit of
any law for the relief of bankrupt or insolvent
5 debtors, compounding with his or her creditors or
making an assignment of his or her remuneration for
their benefit; or
(d) the conviction of the person for a serious offence or a
tax offence, whether or not --
10 (i) the offence was committed in or outside this
jurisdiction; or
(ii) the offence was committed while the person
was engaging in legal practice as an
Australian legal practitioner or was practising
15 foreign law as an Australian-registered
foreign lawyer, as the case requires; or
(iii) other persons are prohibited from disclosing
the identity of the offender;
"sole practitioner" means an Australian lawyer who engages in
20 legal practice on his or her own account;
"suitability matter" has the meaning given in section 8;
"supervised legal practice" means legal practice by a person
who is an Australian legal practitioner --
(a) as an employee of a law practice if --
25 (i) at least one partner, legal practitioner director
or other employee of the law practice is an
Australian legal practitioner who holds an
unrestricted practising certificate; and
(ii) the person engages in legal practice under the
30 supervision of an Australian legal practitioner
referred to in subparagraph (i);
or
page 15
Legal Profession Bill 2007
Part 2 Interpretation
s. 3
(b) as a partner in a law firm if --
(i) at least one other partner is an Australian legal
practitioner who holds an unrestricted
practising certificate; and
5 (ii) the person engages in legal practice under the
supervision of an Australian legal practitioner
referred to in subparagraph (i);
or
(c) as a WA government lawyer if the person engages in
10 legal practice under the supervision of --
(i) the State Solicitor; or
(ii) the Director of Legal Aid appointed under the
Legal Aid Commission Act 1976 section 18; or
(iii) the Director of Public Prosecutions appointed
15 under the Director of Public Prosecutions
Act 1991 section 5; or
(iv) the holder of an office prescribed by
regulations for the purposes of this paragraph;
or
20 (d) as an interstate government lawyer if the person
engages in legal practice under the supervision of --
(i) a person acting as a Director of the Australian
Government Solicitor established under
Part VIIIB Division 2 of the Judiciary
25 Act 1903 of the Commonwealth; or
(ii) a General Counsel or Regional General
Counsel of the Australian Securities and
Investments Commission; or
(iii) the holder of an office prescribed by
30 regulations for the purposes of this paragraph;
or
(e) as an employee of a body that carries on a business
other than the practice of law if the person engages in
page 16
Legal Profession Bill 2007
Interpretation Part 2
s. 3
legal practice under the supervision of an Australian
legal practitioner who holds an unrestricted practising
certificate; or
(f) in a capacity approved for the purposes of this
5 paragraph under a legal profession rule;
"Supreme Court (full bench)" means the Supreme Court
constituted by at least 3 judges;
"tax offence" means an offence under the Taxation
Administration Act 1953 of the Commonwealth, whether
10 committed in or outside this jurisdiction;
"taxing officer" means a taxing officer of the Supreme Court;
"this jurisdiction" means this State;
"Trust" means the Legal Contribution Trust established under
section 391;
15 "trust account" has the meaning given in section 205(1);
"trust money" has the meaning given in section 205(1);
"trust property" means property entrusted to a law practice in
the course of or in connection with the provision of legal
services by the practice, but does not include trust money
20 or money referred to in section 206;
"trust records" has the meaning given in section 205(1);
"unrestricted practising certificate" means an Australian
practising certificate that is not subject to any condition
under this Act or a corresponding law requiring the holder
25 to engage in supervised legal practice or restricting the
holder to practise as or in the manner of a barrister;
"unsatisfactory professional conduct" has the meaning given
in section 402;
"WA government lawyer" has the meaning given in
30 section 36(1).
page 17
Legal Profession Bill 2007
Part 2 Interpretation
s. 4
4. Terms relating to lawyers
For the purposes of this Act --
(a) an "Australian lawyer" is a person who is admitted to
the legal profession under this Act or a corresponding
5 law; and
(b) a "local lawyer" is a person who is admitted to the legal
profession under this Act (whether or not the person is
also admitted under a corresponding law); and
(c) an "interstate lawyer" is a person who is admitted to
10 the legal profession under a corresponding law, but not
under this Act.
5. Terms relating to legal practitioners
For the purposes of this Act --
(a) an "Australian legal practitioner" is an Australian
15 lawyer who holds a current local practising certificate or
a current interstate practising certificate; and
(b) a "local legal practitioner" is an Australian lawyer who
holds a current local practising certificate; and
(c) an "interstate legal practitioner" is an Australian
20 lawyer who holds a current interstate practising
certificate, but not a local practising certificate.
6. Terms relating to associates and principals of law practices
(1) For the purposes of this Act, an "associate" of a law practice
is --
25 (a) an Australian legal practitioner who is --
(i) a sole practitioner (in the case of a law practice
constituted by the practitioner); or
(ii) a partner in the law practice (in the case of a law
firm); or
30 (iii) a legal practitioner director in the law practice (in
the case of an incorporated legal practice); or
page 18
Legal Profession Bill 2007
Interpretation Part 2
s. 6
(iv) a legal practitioner partner in the law practice (in
the case of a multi-disciplinary partnership); or
(v) an employee of, or consultant to, the law
practice;
5 or
(b) an agent of the law practice who is not an Australian
legal practitioner; or
(c) an employee of the law practice who is not an Australian
legal practitioner; or
10 (d) an Australian-registered foreign lawyer who is a partner
in the law practice; or
(e) a person (not being an Australian legal practitioner) who
is a partner in a multi-disciplinary partnership; or
(f) an Australian-registered foreign lawyer who has a
15 relationship with the law practice, being a relationship
that is of a class prescribed by the regulations; or
(g) a person (not being an Australian legal practitioner) who
is a partner in a business that includes the law practice;
or
20 (h) a person (not being an Australian legal practitioner) who
shares the receipts, revenue or other income arising from
the law practice.
(2) For the purposes of this Act --
(a) a "legal practitioner associate" of a law practice is an
25 associate of the practice who is an Australian legal
practitioner; and
(b) a "lay associate" of a law practice is an associate of the
practice who is not an Australian legal practitioner.
(3) For the purposes of this Act, a "principal" of a law practice is
30 an Australian legal practitioner who is --
(a) a sole practitioner (in the case of a law practice
constituted by the practitioner); or
page 19
Legal Profession Bill 2007
Part 2 Interpretation
s. 7
(b) a partner in the law practice (in the case of a law firm);
or
(c) a legal practitioner director in the law practice (in the
case of an incorporated legal practice); or
5 (d) a legal practitioner partner in the law practice (in the
case of a multi-disciplinary partnership).
7. Home jurisdiction
(1) This section has effect for the purposes of this Act.
(2) The "home jurisdiction" for an Australian legal practitioner is
10 the jurisdiction in which the practitioner's only or most recent
current Australian practising certificate was granted.
(3) The "home jurisdiction" for an Australian-registered foreign
lawyer is the jurisdiction in which the lawyer's only or most
recent current registration was granted.
15 (4) The "home jurisdiction" for an associate of a law practice who
is neither an Australian legal practitioner nor an
Australian-registered foreign lawyer is --
(a) where only one jurisdiction is the home jurisdiction for
the only associate of the practice who is an Australian
20 legal practitioner or for all the associates of the practice
who are Australian legal practitioners -- that
jurisdiction; or
(b) where no one jurisdiction is the home jurisdiction for all
the associates of the practice who are Australian legal
25 practitioners --
(i) the jurisdiction in which the office is situated at
which the associate performs most of the
associate's duties for the law practice; or
(ii) if a jurisdiction cannot be determined under
30 subparagraph (i) -- the jurisdiction in which the
associate is enrolled under a law of the
page 20
Legal Profession Bill 2007
Interpretation Part 2
s. 8
jurisdiction to vote at elections for the
jurisdiction; or
(iii) if a jurisdiction can be determined under neither
subparagraph (i) nor subparagraph (ii) -- the
5 jurisdiction determined in accordance with
criteria specified or referred to in the regulations.
8. Suitability matters
(1) Each of the following is a "suitability matter" in relation to an
individual --
10 (a) whether the person is currently of good fame and
character;
(b) whether the person is or has been an insolvent under
administration;
(c) whether the person has been convicted of an offence in
15 Australia or a foreign country, and if so --
(i) the nature of the offence; and
(ii) how long ago the offence was committed; and
(iii) the person's age when the offence was
committed;
20 (d) whether the person has engaged in legal practice in
Australia --
(i) unlawfully; or
(ii) when not admitted, or not holding a practising
certificate, as required under this Act or a
25 previous law of this jurisdiction that corresponds
to this Act or under a corresponding law; or
(iii) if holding an Australian practising certificate, in
contravention of a condition of the certificate or
while the certificate was suspended;
page 21
Legal Profession Bill 2007
Part 2 Interpretation
s. 8
(e) whether the person has practised law in a foreign
country --
(i) when not permitted under a law of that country
to do so; or
5 (ii) if permitted to do so, in contravention of a
condition applicable to the permission;
(f) whether the person is currently subject to an unresolved
complaint, investigation, charge or order under any of
the following --
10 (i) this Act or a previous Act;
(ii) a corresponding law or corresponding foreign
law;
(g) whether the person --
(i) is the subject of current disciplinary action,
15 however expressed, in another profession or
occupation in Australia or a foreign country; or
(ii) has been the subject of disciplinary action,
however expressed, relating to another
profession or occupation that involved a finding
20 of guilt;
(h) whether the person's name has been removed from --
(i) the local roll, and has not since been restored to
or entered on a local roll; or
(ii) an interstate roll, and has not since been restored
25 to or entered on an interstate roll; or
(iii) a foreign roll;
(i) whether the person's right to engage in legal practice
has been suspended or cancelled in Australia or a
foreign country;
30 (j) whether the person has contravened, in Australia or a
foreign country, a law about trust money or trust
accounts;
page 22
Legal Profession Bill 2007
Interpretation Part 2
s. 9
(k) whether, under this Act, a previous Act, a law of the
Commonwealth or a corresponding law, a supervisor,
manager or receiver, however described, is or has been
appointed in relation to any legal practice engaged in by
5 the person;
(l) whether the person is or has been subject to an order
under this Act, a previous Act, a law of the
Commonwealth or a corresponding law, disqualifying
the applicant from being employed by, or a partner of,
10 an Australian legal practitioner or from managing a
corporation that is an incorporated legal practice;
(m) whether the person is currently unable to carry out the
inherent requirements of practice as an Australian legal
practitioner.
15 (2) A matter mentioned in subsection (1) is a suitability matter even
if it happened before the commencement of this section.
9. Information notices
For the purposes of this Act, an "information notice" is a
written notice to a person about a decision stating --
20 (a) the decision; and
(b) the reasons for the decision; and
(c) the rights of appeal or review available to the person in
respect of the decision and the period within which any
such appeal or review must be made or applied for.
25 10. References to conviction and quashing a conviction
(1) A reference in this Act to a conviction includes a finding of
guilt, or the acceptance of a guilty plea, whether or not a
conviction is recorded.
(2) Without limiting subsection (1), a reference in this Act to the
30 quashing of a conviction for an offence includes a reference to
the quashing of --
(a) a finding of guilt in relation to the offence; or
page 23
Legal Profession Bill 2007
Part 2 Interpretation
s. 10
(b) the acceptance of a guilty plea in relation to the offence.
(3) However, a reference in this Act to the quashing of a conviction
for an offence does not include a reference to the quashing of a
conviction where --
5 (a) a finding of guilt in relation to the offence; or
(b) the acceptance of a guilty plea in relation to the offence,
remains unaffected.
(4) A conviction includes a conviction before the commencement
of this section.
page 24
Legal Profession Bill 2007
Reservation of legal work and related matters Part 3
Preliminary Division 1
s. 11
Part 3 -- Reservation of legal work and
related matters
Division 1 -- Preliminary
11. Purposes
5 The purposes of this Part are as follows --
(a) to protect the public interest in the proper administration
of justice by ensuring that legal work is carried out only
by those who are properly qualified to do so;
(b) to protect consumers by ensuring that persons carrying
10 out legal work are entitled to do so.
Division 2 -- General prohibitions on unqualified practice
12. Prohibition on engaging in legal practice when not entitled
(1) In this section --
"legal work" means --
15 (a) any work in connection with the administration of
law; or
(b) drawing or preparing any deed, instrument or writing
relating to or in any manner dealing with or
affecting --
20 (i) real or personal estate or any interest in real or
personal estate; or
(ii) any proceedings at law, civil or criminal, or in
equity;
"public officer" has the meaning given in The Criminal Code.
25 (2) A person must not engage in legal practice in this jurisdiction
unless the person is an Australian legal practitioner.
Penalty: a fine of $20 000.
page 25
Legal Profession Bill 2007
Part 3 Reservation of legal work and related matters
Division 2 General prohibitions on unqualified practice
s. 12
(3) Subsection (2) does not apply to engaging in legal practice of
the following kinds --
(a) legal practice engaged in under the authority of a law of
this jurisdiction or of the Commonwealth;
5 (b) legal practice engaged in by an incorporated legal
practice in accordance with Part 7 Division 2;
(c) the practice of foreign law by an Australian-registered
foreign lawyer in accordance with Part 8;
(d) appearing or defending in person in a court;
10 (e) drawing or preparing a transfer under the Transfer of
Land Act 1893;
(f) a public officer doing legal work in the course of his or
her duties;
(g) a person doing legal work under the supervision of an
15 Australian legal practitioner, as a paid employee of a
law practice or in the course of approved legal training;
(h) legal practice of a kind prescribed by the regulations.
(4) It is a defence to a prosecution for an offence against
subsection (2) in relation to the doing of legal work to show that
20 the person who did the legal work has not directly or indirectly
been paid or remunerated or promised or expected pay or
remuneration for the work so done (the "unpaid work").
(5) Subsection (4) does not apply if the person directly or indirectly
receives, expects or is promised, pay or remuneration for or in
25 respect of other work or services relating to, connected with or
arising out of the same transaction or subject matter as that to
which the unpaid work relates.
(6) A person is not entitled to recover any amount in respect of
anything the person did in contravention of subsection (2).
30 (7) A person may recover from another person in a court of
competent jurisdiction, as a debt due to the person, any amount
the person paid to the other person in respect of anything the
other person did in contravention of subsection (2).
page 26
Legal Profession Bill 2007
Reservation of legal work and related matters Part 3
General prohibitions on unqualified practice Division 2
s. 13
(8) The regulations may make provision for or with respect to the
application (with or without specified modifications) of
provisions of this Act to persons engaged in legal practice of a
kind referred to in subsection (3) (other than subsection (3)(a)
5 and (b)).
13. Prohibition on representing or advertising entitlement to
engage in legal practice when not entitled
(1) A person must not represent or advertise that the person is
entitled to engage in legal practice unless the person is an
10 Australian legal practitioner.
Penalty: a fine of $20 000.
(2) A director, officer, employee or agent of a body corporate must
not represent or advertise that the body corporate is entitled to
engage in legal practice unless the body corporate is an
15 incorporated legal practice.
Penalty: a fine of $20 000.
(3) Subsections (1) and (2) do not apply to a representation or
advertisement about being entitled to engage in legal practice of
a kind referred to in section 12(3).
20 (4) A reference in this section to a person --
(a) representing or advertising that the person is entitled to
engage in legal practice; or
(b) representing or advertising that a body corporate is
entitled to engage in legal practice,
25 includes a reference to the person doing anything that states or
implies that the person or the body corporate is entitled to
engage in legal practice.
page 27
Legal Profession Bill 2007
Part 3 Reservation of legal work and related matters
Division 2 General prohibitions on unqualified practice
s. 14
14. Presumptions about taking or using name, title or
description specified in regulations
(1) This section applies to the following names, titles and
descriptions --
5 (a) lawyer;
(b) legal practitioner;
(c) barrister;
(d) solicitor;
(e) attorney;
10 (f) counsel;
(g) Queen's Counsel;
(h) King's Counsel;
(i) Her Majesty's Counsel;
(j) His Majesty's Counsel;
15 (k) Senior Counsel.
(2) The regulations may specify the kind of persons who are
entitled, and the circumstances in which they are entitled, to
take or use a name, title or description to which this section
applies.
20 (3) For the purposes of section 13(1), the taking or using of a name,
title or description to which this section applies by a person who
is not entitled to take or use that name, title or description gives
rise to a rebuttable presumption that the person represented that
the person is entitled to engage in legal practice.
25 (4) For the purposes of section 13(2), the taking or using of a name,
title or description to which this section applies by a person in
relation to a body corporate, of which the person is a director,
officer, employee or agent, gives rise to a rebuttable
presumption that the person represented that the body corporate
30 is entitled to engage in legal practice.
page 28
Legal Profession Bill 2007
Reservation of legal work and related matters Part 3
General prohibitions on unqualified practice Division 2
s. 15
15. Associates who are disqualified or convicted persons
(1) In this section --
"lay associate" of a law practice has the meaning given in
section 6(2)(b) and includes a consultant to the law practice
5 (however described) who --
(a) is not an Australian legal practitioner; and
(b) provides legal or related services to the law practice,
other than services of a kind prescribed by the
regulations.
10 (2) A law practice must not have a lay associate whom any
principal or other legal practitioner associate of the practice
knows to be --
(a) an Australian lawyer; or
(b) a disqualified person; or
15 (c) a person who has been convicted of a serious offence,
unless the lay associate is approved by the Board under
subsection (3).
(3) The Board may, on application by a law practice or the lay
associate, approve a lay associate for the purposes of this
20 section.
(4) An approval under this section may be subject to specified
conditions.
(5) If the Board decides to refuse an application for approval, or to
grant the approval subject to conditions, the applicant may
25 apply to the State Administrative Tribunal for a review of the
decision.
(6) A disqualified person, or a person convicted of a serious
offence, must not become or seek to become a lay associate of a
law practice unless the person first informs the law practice of
30 the disqualification or conviction.
Penalty: a fine of $10 000.
page 29
Legal Profession Bill 2007
Part 3 Reservation of legal work and related matters
Division 3 General
s. 16
(7) Proceedings for an offence under subsection (6) may only be
brought within 6 months after discovery of the offence by the
Board.
(8) This section does not apply in circumstances prescribed by the
5 regulations.
16. Sharing income with unqualified persons
Without limiting sections 116 and 143, an Australian legal
practitioner may share with any other person the receipts,
revenue or other income arising from the provision of legal
10 services by the practitioner, except to the extent (if any) that the
regulations or legal profession rules otherwise provide.
17. Permitting or assisting unqualified persons to practise
An Australian legal practitioner must not permit or assist a
person who is not an Australian legal practitioner to engage in
15 legal practice in this jurisdiction in contravention of this Act.
Penalty: a fine of $10 000.
Division 3 -- General
18. Prohibited person must not act as executor or trustee
(1) In this section --
20 "prohibited person" means either of the following persons,
whether the thing that has happened to the person happened
before or after the commencement of this section --
(a) a person whose name has (whether or not at his or her
own request) been removed from an Australian roll
25 and who has not subsequently been admitted or
re-admitted to the legal profession under this Act or a
corresponding law;
(b) a person whose Australian practising certificate has
been suspended or cancelled under this Act or a
30 corresponding law and who, because of the
page 30
Legal Profession Bill 2007
Reservation of legal work and related matters Part 3
General Division 3
s. 19
cancellation, is not an Australian legal practitioner or
in relation to whom that suspension has not finished.
(2) A prohibited person must not hold or obtain the office of
executor or trustee of any will or trust without the leave of the
5 Supreme Court.
(3) Nothing in subsection (2) --
(a) operates in respect of a person holding the office of
executor pursuant to probate granted by the Supreme
Court before the coming into operation of this section;
10 or
(b) affects or invalidates any act by a person purporting to
act as the holder of an office of executor or trustee when
prohibited from so acting under subsection (2).
19. Professional discipline
15 (1) A contravention of this Part by an Australian lawyer who is not
an Australian legal practitioner is capable of constituting
unsatisfactory professional conduct or professional misconduct.
(2) Nothing in this Part affects any liability that a person who is an
Australian lawyer (but not an Australian legal practitioner) may
20 have under Part 13, and the person may be punished for an
offence under this Part as well as being dealt with under Part 13
in relation to the same matter.
page 31
Legal Profession Bill 2007
Part 4 Admission of local lawyers
Division 1 Preliminary
s. 20
Part 4 -- Admission of local lawyers
Division 1 -- Preliminary
20. Purposes
The purposes of this Part are as follows --
5 (a) in the interests of the administration of justice and for
the protection of consumers of legal services, to provide
a system under which only applicants who have
appropriate academic qualifications and practical legal
training and who are otherwise fit and proper persons to
10 be admitted are qualified for admission to the legal
profession in this jurisdiction;
(b) to provide for the recognition of equivalent
qualifications and training that make applicants eligible
for admission to the legal profession in other
15 jurisdictions.
Division 2 -- Eligibility and suitability for admission
21. Eligibility for admission
(1) In this section --
"approved academic qualifications" means academic
20 qualifications that are approved, under the admission rules,
for admission to the legal profession in this jurisdiction;
"approved practical legal training requirements" means
legal training requirements that are approved, under the
admission rules, for admission to the legal profession in
25 this jurisdiction;
"corresponding academic qualifications" means academic
qualifications that would qualify the person for admission
to the legal profession in another jurisdiction if the Board is
satisfied that substantially the same minimum criteria apply
30 for the approval of academic qualifications for admission in
the other jurisdiction as apply in this jurisdiction;
page 32
Legal Profession Bill 2007
Admission of local lawyers Part 4
Eligibility and suitability for admission Division 2
s. 22
"corresponding practical legal training requirements"
means legal training requirements that would qualify the
person for admission to the legal profession in another
jurisdiction if the Board is satisfied that substantially the
5 same minimum criteria apply for the approval of legal
training requirements for admission in the other jurisdiction
as apply in this jurisdiction.
(2) A person is eligible for admission to the legal profession under
this Act only if the person --
10 (a) is an individual aged 18 years or more; and
(b) has attained approved academic qualifications or
corresponding academic qualifications; and
(c) has satisfactorily completed approved practical training
requirements or corresponding practical legal training
15 requirements.
22. Suitability for admission
(1) The Supreme Court or Board must, in deciding if a person is a
fit and proper person to be admitted to the legal profession,
consider --
20 (a) each of the suitability matters in relation to the person to
the extent that a suitability matter is appropriate; and
(b) any other matter it considers relevant.
(2) However, the Supreme Court or Board may consider a person to
be a fit and proper person to be admitted despite a suitability
25 matter because of the circumstances relating to that matter.
23. Early consideration of suitability
(1) In this section --
"applicant for admission" means an applicant for admission to
the legal profession under this Act;
30 "prospective applicant for admission" means a person who is
undertaking or is eligible to undertake or has completed a
page 33
Legal Profession Bill 2007
Part 4 Admission of local lawyers
Division 2 Eligibility and suitability for admission
s. 24
course of legal studies but who is not an applicant for
admission;
"relevant person" means --
(a) an applicant for admission; or
5 (b) a prospective applicant for admission; or
(c) another person who has a sufficient interest in
applying for a declaration under this section.
(2) A relevant person may apply to the Board for a declaration that
a matter disclosed (including, for example, a suitability matter)
10 either in --
(a) the application for the declaration; or
(b) an undecided application for admission to the legal
profession under this Act,
will not, without more, adversely affect an assessment by the
15 Board as to whether the person is a fit and proper person to be
admitted.
(3) The Board must consider each application under this section
and, subject to section 24, make the declaration sought or refuse
to do so.
20 (4) A declaration made under this section is binding on the Board
unless the applicant failed to make a full and fair disclosure of
all matters relevant to the declaration sought.
(5) Any costs of the Board under this section are to be borne by the
person who made the application for the declaration.
25 (6) If the Board refuses to make the declaration sought, the
applicant for the declaration may apply to the State
Administrative Tribunal for a review of the decision.
24. Referral of matters to State Administrative Tribunal
(1) The Board may refer to the State Administrative Tribunal any
30 application for a declaration under section 23 if, in the opinion
of the Board, it would be appropriate for the Tribunal to
page 34
Legal Profession Bill 2007
Admission of local lawyers Part 4
Admission to the legal profession Division 3
s. 25
consider the application having regard to the seriousness of
matters disclosed by or ascertained about the applicant for
admission or prospective applicant for admission.
(2) Without limiting the powers of the State Administrative
5 Tribunal under the State Administrative Tribunal Act 2004, the
Tribunal may exercise any of the powers of the Board when
dealing with an application referred to it under this section.
(3) A decision by the Tribunal is binding on the Board and the
Tribunal unless the applicant failed to make a full and fair
10 disclosure of all matters relevant to the decision.
(4) Any costs of the Board, and the costs of a proceeding in the
Tribunal, under this section are to be borne by the person who
made the application for the declaration under section 23.
Division 3 -- Admission to the legal profession
15 25. Application for admission
(1) A person may apply to the Supreme Court (full bench) to be
admitted to the legal profession.
(2) An application must be made in accordance with the admission
rules.
20 26. Admission by the Supreme Court
(1) The Supreme Court (full bench) may admit a person as a
lawyer if --
(a) the Supreme Court (full bench) is satisfied that the
person --
25 (i) is eligible for admission to the legal profession;
and
(ii) is a fit and proper person to be admitted to the
legal profession;
and
page 35
Legal Profession Bill 2007
Part 4 Admission of local lawyers
Division 3 Admission to the legal profession
s. 27
(b) the person takes an oath of office, or an affirmation of
office, in the form required by the Supreme Court.
(2) For the purposes of subsection (1)(a), the Supreme Court (full
bench) may rely on the advice of the Board.
5 (3) The advice of the Board may be contained in a compliance
certificate.
(4) The Supreme Court (full bench) may refuse --
(a) to consider an application for admission if it is not made
in accordance with the admission rules; or
10 (b) to admit the person if the person has not complied with
the admission rules.
27. Objection to admission
(1) Any person who has reasonable grounds to do so may object to
the admission of a person to the legal profession.
15 (2) A notice stating the grounds of the objection must be lodged in
the Supreme Court not less than 7 days before the day on which
the application for admission is to be heard.
(3) A person who lodges a notice of objection is entitled to appear
at any hearing held to determine the objection.
20 28. Roll of persons admitted to the legal profession
(1) The Supreme Court must maintain a roll of persons admitted to
the legal profession under this Act (the "local roll").
(2) When a person is admitted under this Act, the person's name
must be entered on the local roll.
25 (3) A person admitted to the legal profession under this Act must
sign the local roll.
(4) The admission of a person under this Act is effective from the
time the person signs the local roll.
page 36
Legal Profession Bill 2007
Admission of local lawyers Part 4
Functions of Legal Practice Board in relation to admissions Division 4
s. 29
(5) The Principal Registrar must forward to the Board the name,
date of birth and date of admission of each person admitted
under this Act as soon as practicable after the person has signed
the local roll.
5 29. Local lawyer is an officer of the Supreme Court
(1) A person becomes an officer of the Supreme Court on being
admitted to the legal profession under this Act.
(2) A person ceases to be an officer of the Supreme Court under
subsection (1) if the person's name is removed from the local
10 roll.
Division 4 -- Functions of Legal Practice Board in relation
to admissions
30. Board to advise on applications for admission
The Board must --
15 (a) consider applications by persons for admission to the
legal profession under this Act; and
(b) advise the Supreme Court as to whether it considers
that --
(i) the applicant is eligible for admission; and
20 (ii) the applicant is a fit and proper person to be
admitted; and
(iii) the application is in accordance with the
admission rules.
31. Compliance certificates
25 (1) If, after considering an application for admission to the legal
profession, the Board considers that --
(a) the applicant is --
(i) eligible for admission; and
(ii) a fit and proper person to be admitted;
page 37
Legal Profession Bill 2007
Part 4 Admission of local lawyers
Division 4 Functions of Legal Practice Board in relation to admissions
s. 32
and
(b) the application is in accordance with the admission
rules; and
(c) there are no grounds for refusing to give a certificate of
5 the matters mentioned in paragraphs (a) and (b) (a
"compliance certificate"),
the Board must, within the time specified in or determined in
accordance with the admission rules, advise the Supreme Court
to that effect by filing a compliance certificate.
10 (2) If the Board refuses to give a compliance certificate to an
applicant, the Board must, within the time specified in or
determined in accordance with the admission rules, give the
Supreme Court and the applicant an information notice about
the refusal.
15 (3) An applicant may apply to the State Administrative Tribunal for
a review of a decision of the Board to refuse to give the
applicant a compliance certificate.
(4) The Board is taken to have refused to give a compliance
certificate if a compliance certificate has neither been given to
20 the applicant nor refused within 6 months after --
(a) if the Board has given the applicant a notice under
section 32 -- the applicant has complied with the notice
to the Board's satisfaction; or
(b) if paragraph (a) does not apply -- the application for
25 admission was lodged.
32. Consideration of applicant's eligibility and suitability
(1) To help the Board consider the matters referred to in
section 31(1), the Board may, by notice to the applicant,
require --
30 (a) the applicant to give the Board specified documents or
information; or
page 38
Legal Profession Bill 2007
Admission of local lawyers Part 4
Miscellaneous Division 5
s. 33
(b) the applicant to cooperate with any inquiries by the
Board that it considers appropriate.
(2) An applicant's failure to comply with a notice under
subsection (1) by the date specified in the notice and in the way
5 required by the notice is a ground for refusing to give a
compliance certificate for the applicant.
(3) The Board may refer a matter to the State Administrative
Tribunal for directions.
Division 5 -- Miscellaneous
10 33. Board is respondent to application under this Part
The Board is taken to be a respondent to every application under
this Part not made by it.
page 39
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 1 Preliminary
s. 34
Part 5 -- Legal practice by Australian
legal practitioners
Division 1 -- Preliminary
34. Purposes
5 The purposes of this Part are as follows --
(a) to facilitate the national practice of law by ensuring that
Australian legal practitioners can engage in legal
practice in this jurisdiction;
(b) to provide a system for the granting and renewing of
10 local practising certificates.
Division 2 -- Legal practice in this jurisdiction by Australian
legal practitioners
35. Entitlement of Australian legal practitioner to practise in
this jurisdiction
15 An Australian legal practitioner is, subject to this Act, entitled
to engage in legal practice in this jurisdiction.
36. WA government lawyers taken to be local legal practitioners
(1) In this section --
"employing authority" of a WA government lawyer means --
20 (a) the employing authority of the lawyer under the
Public Sector Management Act 1994; or
(b) if the lawyer does not have an employing authority
under that Act, the employing authority of the lawyer
specified in the regulations for the purposes of this
25 definition;
"government agency" means --
(a) a body, whether corporate or unincorporate, or the
holder of an office, established under a law of this
page 40
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Legal practice in this jurisdiction by Australian legal Division 2
practitioners
s. 36
jurisdiction for a public purpose or to exercise
governmental functions; or
(b) a person or body (or a class of persons or bodies)
prescribed by the regulations as being within this
5 definition;
"WA government lawyer" means an Australian lawyer
employed in --
(a) the State Solicitor's Office; or
(b) the Parliamentary Counsel's Office; or
10 (c) the Office of the Director of Public Prosecutions; or
(d) a government agency prescribed by the regulations
for the purposes of this definition.
(2) A WA government lawyer is engaged in government work
when the lawyer is engaged in legal practice in the course of the
15 lawyer's duties in relation to the entity in which the lawyer is
employed.
(3) A WA government lawyer engaged in government work is
taken to be a local legal practitioner and an Australian legal
practitioner.
20 (4) The regulations may make provision for --
(a) arrangements to be made by employing authorities of
WA government lawyers for the continuing professional
development of those lawyers; and
(b) the submission of those arrangements for approval by
25 the Attorney General; and
(c) the information to be given to the Board by an
employing authority or former employing authority of a
WA government lawyer in relation to that lawyer; and
(d) the manner and form in which the information is to be
30 given.
page 41
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 3 Local practising certificates generally
s. 37
Division 3 -- Local practising certificates generally
37. Local practising certificates
(1) Practising certificates may be granted by the Board under
this Part.
5 (2) The Board may determine the categories of local practising
certificates.
(3) The holder of a local practising certificate must not hold another
local practising certificate, or an interstate practising certificate,
that is in force during the currency of the first-mentioned local
10 practising certificate.
(4) A person contravening subsection (3) is taken to contravene a
condition of the person's practising certificate.
38. Suitability to hold local practising certificate
(1) This section has effect for the purposes of section 45 or any
15 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.
(2) The Board may, in considering whether or not the person is a fit
and proper person to hold a local practising certificate, take into
20 account any suitability matter relating to the person, and any of
the following, whether happening before or after the
commencement of this section --
(a) whether the person obtained an Australian practising
certificate because of incorrect or misleading
25 information;
(b) whether the person has contravened a condition of an
Australian practising certificate held by the person;
(c) whether the person has contravened this Act, a previous
Act or a corresponding law or the regulations or legal
30 profession rules under this Act or a corresponding law;
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Local practising certificates generally Division 3
s. 38
(d) whether the person has contravened --
(i) an order of the Complaints Committee or the
State Administrative Tribunal or Supreme Court
(full bench) exercising jurisdiction under this Act
5 or a previous Act; or
(ii) an order of a corresponding disciplinary body or
of another court or tribunal of another
jurisdiction exercising jurisdiction or powers by
way of appeal or review of an order of a
10 corresponding disciplinary body;
(e) without limiting any other paragraph --
(i) whether the person has failed to pay a required
contribution or levy to the Guarantee Fund; or
(ii) whether the person has contravened a
15 requirement imposed under this Act about
professional indemnity insurance; or
(iii) whether the person has failed to pay other costs,
expenses or fines for which the person is liable
under this Act or a previous Act;
20 (f) any other matters relating to the person the Board
considers are appropriate.
(3) A person may be considered a fit and proper person to hold a
local practising certificate even though the person is within any
of the categories of the matters referred to in subsection (2), if
25 the Board consider that the circumstances warrant the
determination.
(4) If a matter was --
(a) disclosed in an application for admission to the legal
profession in this or another jurisdiction; and
30 (b) determined by the Supreme Court or by the Board or a
corresponding authority not to be sufficient for refusing
admission,
the matter cannot be taken into account as a ground for refusing
to grant or renew or for cancelling a local practising certificate,
page 43
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 3 Local practising certificates generally
s. 39
but the matter may be taken into account when considering
other matters in relation to the person concerned.
39. Duration of local practising certificate
(1) A local practising certificate granted under this Act is in force
5 from the date specified in it until the end of the financial year in
which it is granted, unless --
(a) the certificate is sooner suspended or cancelled; or
(b) an earlier date is specified in the local practising
certificate as the date on which it ceases to be in force.
10 (2) A local practising certificate renewed under this Act is in force
until the end of the financial year following its previous period
of currency, unless --
(a) the certificate is sooner suspended or cancelled; or
(b) an earlier date is specified in the local practising
15 certificate as the date on which it ceases to be in force.
(3) If an application accepted by the Board for the renewal of a
local practising certificate that ceases to be in force at the end of
a financial year has not been finally determined by the
following 1 July, the certificate --
20 (a) continues in force on and from that 1 July until the
application has been finally determined or the holder
withdraws the application for renewal, unless the
certificate is sooner cancelled or renewed; and
(b) if renewed, is to be taken to have been renewed on and
25 from that 1 July.
(4) For the purposes of subsection (3), an application is finally
determined --
(a) by the renewal of the certificate; or
(b) by the exhaustion of all rights of review in relation to a
30 decision to refuse to renew the certificate.
page 44
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Grant or renewal of local practising certificate Division 4
s. 40
40. Professional indemnity insurance
(1) The Board must not grant or renew a local practising certificate
unless the applicant produces evidence to the satisfaction of the
Board that the applicant is, or will be, covered by professional
5 indemnity insurance that complies with the requirements
imposed under this Act in relation to the applicant.
(2) This section does not apply in relation to a person, or person of
a class, exempted from the requirements of the regulations.
(3) The Board is entitled to accept as evidence that the applicant
10 has, or will, comply with the requirements of the regulations
under Part 11 evidence that the regulations provide is acceptable
evidence for the purposes of this section.
41. Local legal practitioner is officer of Supreme Court
A local legal practitioner is an officer of the Supreme Court.
15 Division 4 -- Grant or renewal of local practising certificate
42. Application for grant or renewal of local practising
certificate
(1) An Australian lawyer may apply to the Board for the grant or
renewal of a local practising certificate if eligible to do so under
20 this section.
(2) An Australian lawyer is eligible to apply for the grant or
renewal of a local practising certificate if the lawyer complies
with any regulations and legal profession rules relating to
eligibility for the practising certificate and if --
25 (a) in the case of a lawyer who is not an Australian legal
practitioner at the time of making the application --
(i) the lawyer reasonably expects to be engaged in
Australian legal practice solely or principally in
this jurisdiction during the currency of the
30 certificate or renewal applied for; or
page 45
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 4 Grant or renewal of local practising certificate
s. 42
(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 residence in Australia is this jurisdiction
5 or the lawyer does not have a place of residence
in Australia;
or
(b) in the case of a lawyer who is an Australian legal
practitioner at the time of making the application --
10 (i) the jurisdiction in which the lawyer engages in
legal practice solely or principally is this
jurisdiction; or
(ii) the lawyer holds a current local practising
certificate and engages in legal practice in
15 another jurisdiction under an arrangement that is
of a temporary nature; or
(iii) the lawyer reasonably expects to be engaged in
legal practice solely or principally in this
jurisdiction during the currency of the certificate
20 or renewal applied for; or
(iv) if subparagraph (i), (ii) or (iii) does not apply to
the lawyer or it is not reasonably practicable to
determine whether subparagraph (i), (ii) or (iii)
applies to the lawyer -- the lawyer's place of
25 residence in Australia is this jurisdiction or the
lawyer does not have a place of residence in
Australia.
(3) For the purposes of subsection (2)(b), the jurisdiction in which
an Australian lawyer engages in legal practice solely or
30 principally is to be decided by reference to the lawyer's legal
practice during the certificate period current at the time --
(a) the application is made; or
(b) in the case of a late application -- the application should
have been made.
page 46
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Grant or renewal of local practising certificate Division 4
s. 42
(4) An Australian lawyer is not eligible to apply for the grant or
renewal of a local practising certificate in respect of a financial
year if the lawyer would also be the holder of another Australian
practising certificate for that year, but this subsection does not
5 limit the factors determining ineligibility to apply for the grant
or renewal of a local practising certificate.
(5) An Australian lawyer must not apply for the grant or renewal of
a local practising certificate if the lawyer is not eligible to make
the application.
10 (6) An Australian lawyer who --
(a) engages in legal practice solely or principally in this
jurisdiction during a financial year; and
(b) reasonably expects to engage in legal practice solely or
principally in this jurisdiction in the following financial
15 year,
must apply for the grant or renewal of a local practising
certificate in respect of the following financial year.
(7) Subsection (6) does not apply to an interstate legal practitioner
who applied for the grant or renewal of an interstate practising
20 certificate on the basis that the practitioner reasonably expected
to engage in legal practice solely or principally in this
jurisdiction under an arrangement that is of a temporary nature.
(8) The exemption provided by subsection (7) ceases to operate at
the end of the period prescribed by the regulations for the
25 purposes of this subsection.
(9) A reference in this section to engaging in legal practice
principally in this or any other jurisdiction applies only to legal
practice in Australia and, accordingly, an Australian lawyer who
is engaged or expects to be engaged in legal practice principally
30 in a foreign country is nevertheless eligible to apply for the
grant or renewal of a local practising certificate if the lawyer
otherwise meets the requirements of this section.
page 47
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 4 Grant or renewal of local practising certificate
s. 43
(10) An Australian lawyer is also eligible to apply for the grant or
renewal of a local practising certificate if the lawyer is of a class
of description prescribed by the regulations. The regulations
may provide that the Board has a discretion as to whether or not
5 to grant or renew a local practising certificate to a person in his
or her capacity as an Australian lawyer of that class or
description.
43. Manner of application and fees
(1) An application for the grant or renewal of a local practising
10 certificate must be --
(a) made in an approved form; and
(b) accompanied by the fees prescribed by the legal
profession rules and the Guarantee Fund contribution, if
any, required under this Act.
15 (2) Different fees may be set for local practising certificates
according to different factors as prescribed by the legal
profession rules.
(3) The approved form may require the applicant to disclose matters
that may affect the applicant's eligibility for the grant or
20 renewal of a local practising certificate or the question whether
the applicant is a fit and proper person to hold a local practising
certificate.
(4) The approved form may indicate that particular kinds of matters
previously disclosed in a particular manner need not be
25 disclosed for the purposes of the current application.
44. Timing of application for renewal of local practising
certificate
(1) An application for the renewal of a local practising certificate
must be made within --
30 (a) the period prescribed by the legal profession rules as the
standard renewal period; or
page 48
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Grant or renewal of local practising certificate Division 4
s. 44
(b) the later period prescribed by the legal profession rules
as the late fee period.
(2) Those periods must be within the currency of the local
practising certificate being sought to be renewed.
5 (3) The Board may reject an application for renewal made during
the late fee period, and must reject an application for renewal
made outside those periods unless the Board accepts the
application under subsection (4).
(4) The Board may accept an application made within 6 months
10 after the late fee period (even after the expiry of the local
practising certificate being sought to be renewed) if satisfied the
delay was caused by reasons beyond the control of the applicant
or other special circumstances warranting acceptance of the
application.
15 (5) For an application accepted under subsection (4) after the expiry
of the local practising certificate on 30 June in the year
concerned, the certificate --
(a) is taken to have continued in force on and from the
1 July immediately following its expiry until the Board
20 renews or refuses to renew the certificate or the holder
withdraws the application for renewal, unless the
certificate is sooner suspended or cancelled; and
(b) if renewed, is taken to have been renewed on and from
that 1 July.
25 (6) Subsection (7) applies if an application for renewal of a local
practising certificate is made during or after the late fee period
prescribed by the legal profession rules.
(7) Payment of a late fee prescribed by or determined under the
legal profession rules may, if the Board thinks fit, be required as
30 a condition of acceptance of the application.
page 49
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 4 Grant or renewal of local practising certificate
s. 45
45. Grant or renewal of local practising certificate
(1) The Board must consider an application that has been made to it
for the grant or renewal of a local practising certificate and
may --
5 (a) grant or refuse to grant the certificate; or
(b) renew or refuse to renew the certificate.
(2) The Board may, when granting or renewing the certificate,
impose conditions as referred to in section 47.
(3) The Board may refuse --
10 (a) to consider an application if --
(i) it is not made in accordance with this Act; or
(ii) the required fees and costs have not been paid;
or
(b) to grant or renew a local practising certificate if the
15 applicant has not complied with this Act in relation to
the application.
(4) The Board must not grant a local practising certificate unless it
is satisfied that the applicant --
(a) was eligible to apply for the grant when the application
20 was made; and
(b) is a fit and proper person to hold the certificate.
(5) The Board must not renew a local practising certificate if it is
satisfied that the applicant --
(a) was not eligible to apply for the renewal when the
25 application was made; or
(b) is not a fit and proper person to continue to hold the
certificate.
(6) The Board must not grant or renew a local practising certificate
if it considers the applicant's circumstances have changed since
30 the application was made and the applicant would (having
page 50
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Conditions on local practising certificates Division 5
s. 46
regard to information that has come to the Board's attention) not
have been eligible to make the application when the application
is being considered.
(7) If the Board grants or renews a local practising certificate, the
5 Board must, as soon as practicable, give the applicant --
(a) for the grant of a certificate -- a local practising
certificate; or
(b) for the renewal of a certificate -- a new local practising
certificate.
10 (8) If the Board --
(a) refuses to grant or renew a local practising certificate; or
(b) imposes a condition on the certificate and the applicant
does not agree to the condition,
the Board must, as soon as practicable, give the applicant an
15 information notice.
(9) The Board is taken to have refused to grant a local practising
certificate if the certificate has neither been granted nor refused
within 6 months after --
(a) if the Board has given the applicant a notice under
20 section 75 -- the applicant has complied with the notice
to the Board's satisfaction; or
(b) if paragraph (a) does not apply -- the application was
lodged.
Division 5 -- Conditions on local practising certificates
25 46. Conditions generally
(1) A local practising certificate is subject to --
(a) any conditions imposed by the Board under this Act;
and
(b) any conditions imposed under section 48; and
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Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 5 Conditions on local practising certificates
s. 47
(c) any conditions imposed under the legal profession rules;
and
(d) any conditions imposed under Part 13 or under
provisions of a corresponding law that correspond to
5 Part 13; and
(e) any other conditions imposed under this or any other
Act.
(2) If a condition is imposed, varied or revoked under this Act
during the currency of the local practising certificate concerned,
10 the certificate must be amended by the Board, or a new
certificate must be issued by the Board, to reflect on its face the
imposition, variation or revocation.
47. Conditions imposed by Board
(1) The Board may impose conditions on a local practising
15 certificate --
(a) when it is granted or renewed; or
(b) during its currency.
(2) A condition imposed under this section must be reasonable and
relevant.
20 (3) A condition imposed under this section may be about any of the
following --
(a) requiring the holder of the practising certificate to
undertake and complete --
(i) continuing legal education; or
25 (ii) specific legal education or training; or
(iii) a period of supervised legal practice;
(b) restricting the areas of law practised;
(c) controlling, restricting or prohibiting the operation of a
trust account;
30 (d) controlling, restricting or prohibiting the receipt of trust
money;
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Conditions on local practising certificates Division 5
s. 47
(e) restricting the holder to particular conditions concerning
employment or supervision;
(f) requiring the holder of the practising certificate to
undergo counselling or medical treatment or to act in
5 accordance with medical advice given to the holder;
(g) requiring the holder of the practising certificate to use
the services of an accountant or other financial specialist
in connection with the holder's practice;
(h) requiring the holder of the practising certificate to
10 provide the Board with evidence as to any outstanding
tax obligations of the holder and as to provision made by
the holder to satisfy any such outstanding obligations;
(i) a matter agreed by the holder.
(4) Subsection (3) does not limit the matters about which a
15 condition may be imposed under this section.
(5) The Board must not impose a condition requiring the holder to
undertake and complete specific legal education or training
unless --
(a) the Board is satisfied, having regard to --
20 (i) the nature and currency of the holder's academic
studies, legal training or experience; or
(ii) the holder's conduct,
that it is reasonable to require the specific legal
education or training to be undertaken; or
25 (b) the condition is one that is imposed generally on holders
of local practising certificates or any class of holders of
local practising certificates.
(6) The Board may vary or revoke conditions imposed under this
section.
30 (7) If the Board imposes a condition on, or varies or revokes a
condition during the currency of the local practising certificate
concerned, the imposition, variation or revocation takes effect
page 53
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 5 Conditions on local practising certificates
s. 48
when the holder has been notified of it or at a later time
specified by the Board.
(8) This section has effect subject to section 56 in relation to the
imposition of a condition on a local practising certificate during
5 its currency.
48. Imposition or variation of conditions pending criminal
proceedings
(1) If a local legal practitioner has been charged with an offence but
the charge has not been determined, the Board may apply to the
10 State Administrative Tribunal for an order under this section.
(2) On application under subsection (1), the State Administrative
Tribunal may make either or both of the following orders --
(a) an order varying the conditions on the practitioner's
local practising certificate;
15 (b) an order imposing conditions or further conditions on
the practitioner's local practising certificate.
(3) The State Administrative Tribunal may make an order under
this section only if the Tribunal considers it appropriate to do
so, having regard to --
20 (a) the seriousness of the offence; and
(b) the public interest.
(4) An order under this section has effect until the sooner of --
(a) the end of the period specified by the State
Administrative Tribunal; or
25 (b) if the practitioner is convicted of the offence -- 28 days
after the day of the conviction; or
(c) if the charge is dismissed -- the day of the dismissal.
(5) The State Administrative Tribunal, on application by any party,
may vary or revoke an order under this section at any time.
page 54
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Conditions on local practising certificates Division 5
s. 49
49. Conditions imposed on interstate admission
(1) A local legal practitioner must not contravene a condition that
was imposed on the admission of a person to the legal
profession under a corresponding law (with any variations of the
5 condition made from time to time) and that is still in force.
(2) A person contravening a condition referred to in subsection (1)
is taken to contravene a condition of the person's local
practising certificate.
50. Restricted legal practice
10 (1) In this section
"required experience" means --
(a) 18 months supervised legal practice, in the case of a
person who, to qualify for admission to the legal
profession, completed practical legal training --
15 (i) principally under the supervision of an
Australian legal practitioner, whether
involving articles of clerkship or otherwise; or
(ii) involving articles of clerkship principally
under the supervision of a person other than
20 an Australian legal practitioner in accordance
with the admission rules;
or
(b) 2 years supervised legal practice, in the case of a
person who, to qualify for admission to the legal
25 profession in this or another jurisdiction, completed
other practical legal training;
"restricted legal practice" means legal practice by a person
who is an Australian legal practitioner --
(a) as an employee of a law practice if --
30 (i) at least one partner, legal practitioner director
or other employee of the law practice is an
Australian legal practitioner who holds an
unrestricted practising certificate; and
page 55
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 5 Conditions on local practising certificates
s. 50
(ii) the person engages in legal practice under the
supervision of an Australian legal practitioner
referred to in subparagraph (i);
or
5 (b) as a partner in a law firm if --
(i) at least one other partner is an Australian legal
practitioner who holds an unrestricted
practising certificate; and
(ii) the person engages in legal practice under the
10 supervision of an Australian legal practitioner
referred to in subparagraph (i);
or
(c) as a WA government lawyer; or
(d) as an interstate government lawyer; or
15 (e) as an employee of a body that carries on a business
other than the practice of law if the person engages in
legal practice under the supervision of an Australian
legal practitioner who holds an unrestricted practising
certificate; or
20 (f) in a capacity approved for the purposes of this
paragraph under a legal profession rule.
(2) In determining whether a person has the required experience
regard can only be had to a period of supervised legal practice
that the regulations permit to be taken into account for the
25 purposes of this section.
(3) The required experience may be made up of separate periods of
supervised legal practice.
(4) A local legal practitioner who does not have the required
experience must engage in restricted legal practice only.
30 (5) A person contravening subsection (4) is taken to contravene a
condition of the person's local practising certificate.
page 56
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Conditions on local practising certificates Division 5
s. 51
(6) A condition of a local practising certificate may require the
holder to engage in supervised legal practice even though the
holder has the required experience.
(7) The Board may exempt a person or class of persons from the
5 requirement of subsection (4) or may reduce the required
experience for the person or class of persons, if satisfied that the
person or persons do not need to be supervised or need to be
supervised only for a shorter period, having regard to --
(a) the length and nature of any legal practice previously
10 engaged in by the person or persons; and
(b) the length and nature of any legal practice engaged in by
the supervisors (if any) who previously supervised the
legal practice engaged in by the person or persons.
(8) An exemption under subsection (7) may be given
15 unconditionally or subject to such conditions as the Board
thinks appropriate.
51. Notification of offence
(1) A local legal practitioner must give notice in an approved form
to the Board if the holder is --
20 (a) convicted of an offence that would have to be disclosed
under the admission rules in relation to an application to
admission; or
(b) charged with a serious offence.
(2) The notice must be given to the Board within 7 days after
25 conviction or charge.
(3) This section does not apply to an offence to which Division 7
applies.
(4) A person contravening subsection (1) is taken to contravene a
condition of the person's local practising certificate.
page 57
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 6 Amendment, suspension or cancellation of local practising
certificates
s. 52
52. Conditions imposed by legal profession rules
(1) The legal profession rules may --
(a) impose conditions on local practising certificates or any
class of local practising certificates; and
5 (b) authorise conditions to be imposed on local practising
certificates or any class of local practising certificates.
(2) Without limiting subsection (1), conditions on local practising
certificates or any class of local practising certificates may be
imposed under the legal profession rules about any matter
10 referred to in section 47(3)(a)(1), (c) or (d).
53. Compliance with conditions
The holder of a current local practising certificate must not
contravene (in this jurisdiction or elsewhere) a condition to
which the certificate is subject.
15 Division 6 -- Amendment, suspension or cancellation of local
practising certificates
54. Application of this Division
This Division does not apply in relation to matters referred to in
Division 7.
20 55. Grounds for amending, suspending or cancelling local
practising certificate
Each of the following is a ground for amending, suspending or
cancelling a local practising certificate --
(a) the holder is no longer a fit and proper person to hold
25 the certificate;
(b) the holder is not, or is no longer, covered by
professional indemnity insurance that complies with
requirements imposed under this Act;
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Legal practice by Australian legal practitioners Part 5
Amendment, suspension or cancellation of local practising Division 6
certificates
s. 56
(c) if a condition of the certificate is that the holder is
limited to legal practice specified in the certificate -- the
holder is or has been engaging in legal practice that the
holder is not entitled to engage in under this Act.
5 56. Amending, suspending or cancelling local practising
certificate
(1) In this section --
"amend", in relation to a certificate, means amend the
certificate under section 47 during its currency, otherwise
10 than at the request of the holder of the certificate.
(2) If the Board believes a ground exists to amend, suspend or
cancel a local practising certificate (the "proposed action"), the
Board must give the holder a notice that --
(a) states the proposed action and --
15 (i) if the proposed action is to amend the
certificate -- states the proposed amendment;
and
(ii) if the proposed action is to suspend the
certificate -- states the proposed suspension
20 period;
and
(b) states the grounds for proposing to take the proposed
action; and
(c) outlines the facts and circumstances that form the basis
25 for the Board's belief; and
(d) invites the holder to make written representations to the
Board within a specified time of not less than 7 days and
not more than 28 days, as to why the proposed action
should not be taken.
30 (3) If, after considering all written representations made within the
specified time and, in its discretion, written representations
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Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 6 Amendment, suspension or cancellation of local practising
certificates
s. 57
made after the specified time, the Board still believes a ground
exists to take the proposed action, the Board may --
(a) if the notice under subsection (2) stated the proposed
action was to amend the practising certificate -- amend
5 the certificate in the way stated or in a less onerous way
the Board considers appropriate because of the
representations; or
(b) if the notice stated the proposed action was to suspend
the practising certificate for a specified period --
10 (i) suspend the certificate for a period no longer
than the specified period; or
(ii) amend the certificate in a less onerous way the
Board considers appropriate because of the
representations;
15 or
(c) if the notice stated the proposed action was to cancel the
practising certificate --
(i) cancel the certificate; or
(ii) suspend the certificate for a period; or
20 (iii) amend the certificate in a less onerous way the
Board considers appropriate because of the
representations.
(4) If the Board decides to amend, suspend or cancel the practising
certificate, the Board must give the holder an information notice
25 about the decision.
57. Operation of amendment, suspension or cancellation of local
practising certificate
(1) This section applies if a decision is made to amend, suspend or
cancel a local practising certificate under section 56.
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Amendment, suspension or cancellation of local practising Division 6
certificates
s. 57
(2) Subject to subsections (3) and (4), the amendment, suspension
or cancellation of the practising certificate takes effect on the
later of the following --
(a) the day notice of the decision is given to the holder;
5 (b) the day specified in the information notice.
(3) If the practising certificate is amended, suspended or cancelled
because the holder has been convicted of an offence --
(a) the State Administrative Tribunal may, on the
application of the holder, order that the operation of the
10 amendment, suspension or cancellation of the practising
certificate be stayed until --
(i) the end of the time to appeal against the
conviction; and
(ii) if an appeal is made against the conviction -- the
15 appeal is finally decided, lapses or otherwise
ends;
and
(b) the amendment, suspension or cancellation does not
have effect during any period in respect of which the
20 stay is in force.
(4) If the practising certificate is amended, suspended or cancelled
because the holder has been convicted of an offence and the
conviction is quashed --
(a) the amendment or suspension ceases to have effect when
25 the conviction is quashed; or
(b) the cancellation ceases to have effect when the
conviction is quashed and the certificate is restored as if
it had merely been suspended.
page 61
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 6 Amendment, suspension or cancellation of local practising
certificates
s. 58
58. Immediate suspension of local practising certificate
(1) This section applies, despite section 56 and Division 7, if the
Board considers it necessary in the public interest to
immediately suspend a local practising certificate on --
5 (a) any of the grounds on which the certificate could be
suspended or cancelled under section 56; or
(b) the ground of the happening of a show cause event in
relation to the holder; or
(c) any other ground that the Board considers warrants
10 suspension of the certificate in the public interest,
whether or not any action has been taken or commenced under
section 56 or Division 7 in relation to the holder.
(2) The Board may, by written notice given to the holder,
immediately suspend the practising certificate until the earlier of
15 the following --
(a) the time at which the Board informs the holder of the
Board's decision by notice under section 56;
(b) the end of the period of 56 days after the notice is given
to the holder under this section.
20 (3) The notice under this section must --
(a) include an information notice about the suspension; and
(b) state that the holder may make written representations to
the Board about the suspension.
(4) The holder may make written representations to the Board about
25 the suspension, and the Board must consider the representations.
(5) The Board may revoke the suspension at any time, whether or
not in response to any written representations made to it by the
holder.
page 62
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Amendment, suspension or cancellation of local practising Division 6
certificates
s. 59
59. Other ways of amending, suspending or cancelling local
practising certificate
(1) The Board may --
(a) amend a local practising certificate if the holder requests
5 the Board to do so; or
(b) suspend a local practising certificate for a specified
period if the holder requests the Board to do so or agrees
to the Board doing so; or
(c) cancel a local practising certificate if the holder requests
10 the Board to do so or surrenders the certificate to the
Board.
(2) The Board may amend a local practising certificate --
(a) for a formal or clerical reason; or
(b) in another way that does not adversely affect the
15 holder's interests.
(3) A local practising certificate is automatically cancelled when
the holder's name is removed from the local roll or the holder
ceases to be an Australian lawyer.
(4) The amendment, suspension or cancellation of a local practising
20 certificate under subsection (1) or (2) is effected by written
notice given to the holder.
(5) Section 56 does not apply in the case of an amendment,
suspension or cancellation under this section.
(6) If the Board decides to refuse a request referred to in
25 subsection (1), the Board must give the holder an information
notice about the decision.
60. Relationship of this Division with Part 13
Nothing in this Division prevents a complaint from being made,
or an investigation being initiated, under Part 13 about a matter
30 to which this Division relates.
page 63
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 7 Special powers in relation to local practising certificates --
show cause events
s. 61
Division 7 -- Special powers in relation to local practising
certificates -- show cause events
61. Applicant for local practising certificate -- show cause event
(1) This section applies if --
5 (a) a person (the "applicant") is applying for the grant of a
local practising certificate; and
(b) a show cause event in relation to the person happened,
whether before or after the commencement of this
section, after the person was first admitted to the legal
10 profession in this or another jurisdiction, however the
admission was expressed at the time of the admission.
(2) As part of the application, the applicant must provide to the
Board a written statement --
(a) about the show cause event; and
15 (b) explaining why, despite the show cause event, the
applicant considers himself or herself to be a fit and
proper person to hold a local practising certificate.
(3) However, the applicant need not provide a statement under
subsection (2) if the applicant (as a previous applicant for a
20 local practising 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
(b) a notice and statement under section 62,
25 explaining why, despite the show cause event, the applicant
considers himself or herself to be a fit and proper person to hold
a local practising certificate.
62. Holder of local practising certificate -- show cause event
(1) This section applies to a show cause event that happens in
30 relation to the holder of a local practising certificate.
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Special powers in relation to local practising certificates -- Division 7
show cause events
s. 63
(2) The holder must provide to the Board both of the following --
(a) within 7 days after the happening of the event -- notice,
in the approved form, that the event happened;
(b) within 28 days after the happening of the event -- a
5 written statement explaining why, despite the show
cause event, the person considers himself or herself to
be a fit and proper person to hold a local practising
certificate.
(3) If a written statement is provided after the 28 days mentioned in
10 subsection (2)(b), the Board may accept the statement and take
it into account.
63. Refusal, amendment, suspension or cancellation of local
practising certificate -- failure to show cause
(1) The Board may refuse to grant or renew, or may amend,
15 suspend or cancel, a local practising certificate if the applicant
or holder --
(a) is required by section 61 or 62 to provide a written
statement relating to a matter and has failed to provide a
written statement in accordance with that requirement;
20 or
(b) has provided a written statement in accordance with
section 61 or 62, but the Board does not consider that
the applicant or holder has shown in the statement that,
despite the show cause event concerned, the applicant or
25 holder is a fit and proper person to hold a local
practising certificate.
(2) For the purposes of this section only, a written statement
accepted by the Board under section 62(3) is taken to have been
provided in accordance with section 62.
30 (3) The Board must give the applicant or holder an information
notice about the decision to refuse to grant or renew, or to
amend, suspend or cancel, the certificate.
page 65
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 7 Special powers in relation to local practising certificates --
show cause events
s. 64
64. Restriction on making further applications
(1) This section applies if the Board decides under section 63 to
refuse to grant or renew a local practising certificate to a person
or to cancel a person's local practising certificate.
5 (2) The Board may also decide that the person is not entitled to
apply for the grant of a local practising certificate for a specified
period not exceeding 5 years.
(3) If the Board makes a decision under subsection (2), the Board
must include the decision in the information notice required
10 under section 63(3).
(4) A person in respect of whom a decision has been made under
this section, or under a provision of a corresponding law, is not
entitled to apply for the grant of a local practising certificate
during the period specified in the decision.
15 65. Power to renew practising certificate or defer action in
special circumstances
(1) Despite any other provision of this Division, the Board may
renew a holder's local practising certificate if the end of the
financial year for which the holder's current practising
20 certificate is in force is imminent and the Board has not made a
determination under section 63 in relation to the holder.
(2) The renewal of a practising certificate in the circumstances
referred to in subsection (1) does not prevent a determination
from subsequently being made and action taken under this
25 Division to cancel, suspend or amend the holder's local
practising certificate.
(3) Despite any other provision of this Act, where the Board is
required to determine a matter under section 63 in relation to a
holder, it may, for the purpose of enabling the proper
30 arrangement of the affairs of the holder --
(a) renew the holder's local practising certificate for such
period, specified in the local practising certificate, as the
Board considers necessary to achieve that purpose; or
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Legal practice by Australian legal practitioners Part 5
Further provisions relating to local practising certificates Division 8
s. 66
(b) defer cancelling or suspending the holder's local
practising certificate for such period as the Board
considers necessary to achieve that purpose.
66. Relationship of this Division with Part 13
5 Nothing in this Division prevents a complaint from being made,
or an investigation from being initiated, under Part 13 about a
matter to which this Division relates.
Division 8 -- Further provisions relating to local
practising certificates
10 67. Return of local practising certificate
(1) This section applies if a local practising certificate granted to an
Australian legal practitioner --
(a) is amended, cancelled or suspended by the Board or
because of an order under Part 13; or
15 (b) is replaced by another certificate.
(2) The Board may give the practitioner a notice requiring the
practitioner to return the certificate to the Board in the way
specified in the notice within a specified period of not less than
14 days.
20 (3) The practitioner must comply with a notice, unless the
practitioner has a reasonable excuse.
Penalty: a fine of $2 000.
(4) The Board must return the practising certificate to the
practitioner as soon as practicable --
25 (a) if the certificate is amended -- after amending it; or
(b) if the certificate is suspended and is still current at the
end of the suspension period -- at the end of the
suspension period.
page 67
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 9 Interstate legal practitioners
s. 68
Division 9 -- Interstate legal practitioners
68. Requirement for professional indemnity insurance
(1) An interstate legal practitioner must not engage in legal practice
in this jurisdiction, or represent or advertise that the practitioner
5 is entitled to engage in legal practice in this jurisdiction, unless
the practitioner --
(a) is covered by professional indemnity insurance that --
(i) covers legal practice in this jurisdiction; and
(ii) has been approved under or complies with the
10 requirements of the corresponding law of the
practitioner's home jurisdiction; and
(iii) is for at least $1.5 million (inclusive of defence
costs), unless (without affecting subparagraph (i)
or (ii)) the practitioner engages in legal practice
15 solely as or in the manner of a barrister;
or
(b) is employed by a corporation, other than an incorporated
legal practice, and the only legal services provided by
the practitioner in this jurisdiction are in-house legal
20 services.
Penalty: a fine of $10 000.
(2) Subsection (1) does not apply to an interstate legal practitioner
who --
(a) is an interstate government lawyer; and
25 (b) is engaged in legal practice in this jurisdiction only to
the extent that the practitioner is engaged in government
work.
69. Extent of entitlement of interstate legal practitioner to
practise in this jurisdiction
30 (1) This Part does not authorise an interstate legal practitioner to
engage in legal practice in this jurisdiction to a greater extent
page 68
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Interstate legal practitioners Division 9
s. 70
than a local legal practitioner could be authorised under a local
practising certificate.
(2) Also, an interstate legal practitioner's right to engage in legal
practice in this jurisdiction --
5 (a) is subject to --
(i) any conditions imposed by the Board under
section 70 in relation to the interstate legal
practitioner; and
(ii) any conditions imposed under the legal
10 profession rules as referred to in that section;
and
(b) is, to the greatest practicable extent and with all
necessary changes --
(i) the same as the practitioner's right to engage in
15 legal practice in the practitioner's home
jurisdiction; and
(ii) subject to any condition on the practitioner's
right to engage in legal practice in that
jurisdiction, including any conditions imposed on
20 the practitioner's admission to the legal
profession in this or another jurisdiction.
(3) If there is an inconsistency between conditions mentioned in
subsection (2)(a) and conditions mentioned in subsection (2)(b),
the conditions that are, in the opinion of the Board, more
25 onerous prevail to the extent of the inconsistency.
(4) An interstate legal practitioner must not engage in legal practice
in this jurisdiction in a way that is not authorised under this Act
or in contravention of any condition referred to in this section.
70. Additional conditions on practice of interstate legal
30 practitioners
(1) The Board may, by written notice to an interstate legal
practitioner engaged in legal practice in this jurisdiction, impose
page 69
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 9 Interstate legal practitioners
s. 71
any condition on the practitioner's practice that the Board may
impose under this Act on a local practising certificate.
(2) The legal profession rules may impose, or provide for the
imposition of, conditions on an interstate legal practitioner's
5 right to engage in legal practice.
(3) Conditions imposed under or referred to in this section must not
be more onerous than conditions applying to local legal
practitioners.
(4) A notice under this section must include an information notice
10 about the decision to impose a condition.
(5) An interstate legal practitioner must not contravene a condition
imposed under this section.
(6) An interstate legal practitioner may apply to the State
Administrative Tribunal for review of a decision of the Board to
15 impose a condition on the practitioner's practice under this
section.
71. Notification requirements for interstate legal practitioners
(1) An interstate legal practitioner who establishes an office in this
jurisdiction must give written notice to the Board in accordance
20 with this section within 28 days after establishing the office.
Penalty: a fine of $5 000.
(2) The notice must contain --
(a) the practitioner's name, date of birth and date of
admission to the legal profession; and
25 (b) the name of any law practice of which the practitioner is
a principal or employee, or any other person or body of
which the practitioner is an employee; and
(c) if the practitioner is a sole practitioner, any business
names under which the practitioner engages in legal
30 practice; and
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Interstate legal practitioners Division 9
s. 71
(d) any condition to which the practitioner is subject in
respect of his or her legal practice in his or her home
jurisdiction or elsewhere; and
(e) an address in this jurisdiction for service of notices and
5 other documents on the practitioner; and
(f) a statement as to whether the practitioner has
established, or intends to establish, an office in this
jurisdiction; and
(g) a statement as to whether the practitioner is entitled to
10 receive trust money, or to withdraw trust money from a
trust account; and
(h) the information prescribed by the regulations (if any).
(3) A notice under this section must be accompanied by --
(a) satisfactory evidence, in an approved form, that the
15 interstate legal practitioner has professional indemnity
insurance that complies with the requirements under this
Act; and
(b) the required contribution to the Guarantee Fund under
section 338, if any.
20 (4) If an interstate legal practitioner who has indicated that he or
she does not intend to establish an office in this jurisdiction
subsequently establishes an office in this jurisdiction, the
practitioner must give notice to the Board within 14 days.
(5) For the purposes of this section, an interstate legal practitioner
25 establishes an office in this jurisdiction when the practitioner
first offers or provides legal services to the public in this
jurisdiction from an office maintained by the practitioner, or by
a principal of a law practice of which the practitioner is an
associate, for that purpose in this jurisdiction.
page 71
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 9 Interstate legal practitioners
s. 72
72. Special provisions about interstate legal practitioner
engaging in unsupervised legal practice in this jurisdiction
(1) In this section --
"required experience" means --
5 (a) 18 months supervised legal practice, in the case of a
person who, to qualify for admission to the legal
profession, completed practical legal training --
(i) principally under the supervision of an
Australian legal practitioner, whether
10 involving articles of clerkship or otherwise; or
(ii) involving articles of clerkship principally
under the supervision of a person other than
an Australian legal practitioner in accordance
with the admission rules;
15 or
(b) 2 years supervised legal practice, in the case of a
person who, to qualify for admission to the legal
profession in this or another jurisdiction, completed
other practical legal training;
20 "restricted legal practice" means legal practice by a person
who is an Australian legal practitioner --
(a) as an employee of a law practice if --
(i) at least one partner, legal practitioner director
or other employee of the law practice is an
25 Australian legal practitioner who holds an
unrestricted practising certificate; and
(ii) the person engages in legal practice under the
supervision of an Australian legal practitioner
referred to in subparagraph (i);
30 or
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Interstate legal practitioners Division 9
s. 72
(b) as a partner in a law firm if --
(i) at least one other partner is an Australian legal
practitioner who holds an unrestricted
practising certificate; and
5 (ii) the person engages in legal practice under the
supervision of an Australian legal practitioner
referred to in subparagraph (i);
or
(c) as a WA government lawyer; or
10 (d) as an interstate government lawyer; or
(e) as an employee of a body that carries on a business
other than the practice of law if the person engages in
legal practice under the supervision of an Australian
legal practitioner who holds an unrestricted practising
15 certificate; or
(f) in a capacity approved for the purposes of this
paragraph under a legal profession rule.
(2) In determining whether a person has the required experience
regard can only be had to a period of supervised legal practice
20 that the regulations permit to be taken into account for the
purposes of this section.
(3) The required experience may be made up of separate periods of
supervised legal practice.
(4) An interstate legal practitioner who does not have the required
25 experience must engage in restricted legal practice only.
(5) Subsection (4) --
(a) does not apply if the interstate legal practitioner is
exempt from the requirement for required experience in
the practitioner's home jurisdiction; or
30 (b) applies only to the extent of a shorter period if the
required period of required experience has been reduced
for the interstate legal practitioner in the practitioner's
home jurisdiction.
page 73
Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 10 Miscellaneous provisions relating to practice
s. 73
73. Interstate legal practitioner is officer of Supreme Court
An interstate legal practitioner engaged in legal practice in this
jurisdiction has all the duties and obligations of an officer of the
Supreme Court, and is subject to the jurisdiction of the Supreme
5 Court in respect of those duties and obligations.
Division 10 -- Miscellaneous provisions relating to practice
74. Jurisdiction protocols
(1) The Board may enter into arrangements ("jurisdiction
protocols") with regulatory authorities of other jurisdictions
10 about determining --
(a) the jurisdiction in which an Australian lawyer engages
in legal practice principally or can reasonably expect to
engage in legal practice principally; or
(b) the circumstances in which an arrangement under which
15 an Australian legal practitioner practises in a
jurisdiction --
(i) can be regarded as being of a temporary nature;
or
(ii) ceases to be of a temporary nature;
20 or
(c) the circumstances in which an Australian legal
practitioner can reasonably expect to engage in legal
practice principally in a jurisdiction during the currency
of an Australian practising certificate.
25 (2) For the purposes of this Act, and to the extent that the
jurisdiction protocols are relevant, a matter referred to in
subsection (1)(a), (b) or (c) is to be determined in accordance
with the protocols.
(3) The Board may enter into arrangements that amend, revoke or
30 replace a jurisdiction protocol.
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Miscellaneous provisions relating to practice Division 10
s. 75
(4) A jurisdiction protocol does not have effect in this jurisdiction
unless it is embodied or identified in the regulations.
75. Consideration and investigation of applicants or holders
(1) To help it consider whether or not to grant, renew, amend,
5 suspend or cancel a local practising certificate the Board may,
by notice to the applicant or holder, require the applicant or
holder --
(a) to give the Board specified documents or information; or
(b) to be medically examined by a registered medical
10 practitioner nominated by the Board and to provide to
the Board a report of that examination, at the applicant's
or holder's expense; or
(c) to obtain, at the applicant's or holder's expense, a
criminal record check for the applicant or holder and to
15 provide it to the Board; or
(d) to cooperate with any inquiries by the Board that the
Board considers appropriate.
(2) In subsection (1)(c) --
"criminal record check" means a document issued by the
20 Australian Federal Police, the Police Force of a State or
Territory, or another body or agency approved by the
Board regarding the criminal convictions of a person for
offences under the law of this or any other jurisdiction or
the Commonwealth.
25 (3) The Board may require the applicant or holder to verify
information or documents by statutory declaration or in another
manner specified by the Board.
(4) 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
30 is a ground for making an adverse decision in relation to the
action being considered by the Board.
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Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 10 Miscellaneous provisions relating to practice
s. 76
(5) Without limiting subsection (4), a failure to comply with a
requirement under subsection (1)(b) or (c) may be accepted by
the Board as evidence of the unfitness of the person to engage in
legal practice.
5 (6) A report of the medical examination of an applicant or holder is
not admissible in any proceeding, and a person cannot be
compelled to produce the report or to give evidence about the
report or its contents in any proceeding.
(7) Subsection (6) does not apply in relation to a proceeding for
10 review of a decision of the Board --
(a) refusing to grant or renew a local practising certificate;
or
(b) amending, suspending or cancelling a local practising
certificate.
15 (8) Subsection (6) does not apply if the report is admitted or
produced, or evidence about the report or its contents is given in
a proceeding with the consent of the applicant or holder to
whom the report relates.
76. Register of local practising certificates
20 (1) The Board must keep a register of the names of Australian
lawyers to whom it grants local practising certificates.
(2) The register must --
(a) state the conditions (if any) imposed on a local
practising certificate in relation to engaging in legal
25 practice; and
(b) include any other particulars prescribed by the
regulations.
(3) If a condition is imposed on a local practising certificate
because of the infirmity, injury or mental or physical illness of
30 the holder of the practising certificate, the Board may omit from
the register any part of the condition that includes the reason for
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Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Miscellaneous provisions relating to practice Division 10
s. 77
the imposition of the condition or other information in relation
to the infirmity, injury or mental or physical illness.
(4) The register may be kept in the way the Board decides.
(5) The register must be available for inspection, without charge, at
5 the Board's principal place of business during normal business
hours.
77. Orders about conditions
The Board may apply to the State Administrative Tribunal for
an order that an Australian lawyer not contravene a condition
10 imposed under this Part.
78. Review of decisions of Board
A person may apply to the State Administrative Tribunal for a
review of --
(a) a decision of the Board --
15 (i) to refuse to grant or renew a local practising
certificate; or
(ii) to amend, suspend or cancel a local practising
certificate;
or
20 (b) a decision of the Board refusing a request to amend a
local practising certificate under section 59(1); or
(c) a decision of the Board under section 64 that the person
is not entitled to apply for the grant of a local practising
certificate for a specified period.
25 79. Interstate government lawyers
(1) In this section --
"another jurisdiction" means --
(a) another State or Territory of the Commonwealth; or
(b) the Commonwealth;
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Legal Profession Bill 2007
Part 5 Legal practice by Australian legal practitioners
Division 10 Miscellaneous provisions relating to practice
s. 79
"government agency" of another jurisdiction means --
(a) a body or organisation that is established under the
law of that jurisdiction for a public purpose or to
exercise governmental functions; or
5 (b) a body or organisation (or a class of bodies or
organisations) prescribed by the regulations as being
within this definition;
"interstate government lawyer" means an Australian lawyer,
or a person eligible for admission to the legal profession,
10 employed by another jurisdiction or a government agency
of another jurisdiction.
(2) An interstate government lawyer is not subject to --
(a) any prohibition under this Act about --
(i) engaging in legal practice in this jurisdiction; or
15 (ii) making representations about engaging in legal
practice in this jurisdiction;
or
(b) conditions imposed on a local practising certificate,
in respect of the performance of the lawyer's official duties or
20 functions as an interstate government lawyer of the other
jurisdiction to the extent that the lawyer is exempt from matters
of the same kind under a law of the other jurisdiction.
(3) Contributions and levies are not payable to the Guarantee Fund
by or in respect of an interstate government lawyer in his or her
25 capacity as an interstate government lawyer.
(4) Without affecting the generality of subsection (2), that
subsection extends to prohibitions under section 68 relating to
professional indemnity insurance.
(5) Without affecting subsections (2), (3) and (4), nothing in this
30 section prevents an interstate government lawyer from being
granted or holding a local practising certificate.
page 78
Legal Profession Bill 2007
Legal practice by Australian legal practitioners Part 5
Miscellaneous provisions relating to practice Division 10
s. 80
80. Fees
(1) The Board may charge fees for the services that it provides.
(2) The fees set by the Board may be included in the legal
profession or admission rules.
page 79
Legal Profession Bill 2007
Part 6 Inter-jurisdictional provisions regarding admission and
practising certificates
Division 1 Preliminary
s. 81
Part 6 -- Inter-jurisdictional provisions regarding
admission and practising certificates
Division 1 -- Preliminary
81. Purpose
5 The purpose of this Part is to provide a nationally consistent
scheme for the notification of and response to action taken by
courts and other authorities in relation to the admission of
persons to the legal profession and their right to engage in legal
practice in Australia.
10 82. Other requirements not affected
This Division does not affect any functions under Part 13.
Division 2 -- Notifications to be given by local authorities to
interstate authorities
83. Official notification to other jurisdictions of applications for
15 admission and associated matters
(1) This section applies if an application for admission to the legal
profession is made under this Act.
(2) The Board may give the corresponding authority for another
jurisdiction written notice of any of the following (as
20 relevant) --
(a) the making of the application;
(b) the refusal to issue a compliance certificate in relation to
the application;
(c) the withdrawal of the application after an inquiry is
25 proposed or commenced in relation to the application;
(d) the refusal of the Supreme Court to admit the applicant
to the legal profession under this Act.
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practising certificates
Notifications to be given by local authorities to interstate Division 2
authorities
s. 84
(3) The notice must state the applicant's name and address as last
known to the Board and may contain other relevant information.
84. Official notification to other jurisdictions of removals from
local roll
5 (1) This section applies if a person's name is removed from the
local roll, except where the removal occurs under section 90.
(2) The Principal Registrar must, as soon as practicable, give
written notice of the removal to --
(a) the corresponding authority of every other jurisdiction;
10 and
(b) the registrar or other proper officer of the High Court.
(3) The notice must state --
(a) the person's name and address as last known to the
Principal Registrar; and
15 (b) the date the person's name was removed from the roll;
and
(c) the reason for removing the person's name.
(4) The notice may contain other relevant information.
85. Board to notify other jurisdictions of certain matters
20 (1) This section applies if --
(a) the Board takes any of the following actions --
(i) a refusal to grant an Australian lawyer a local
practising certificate;
(ii) a suspension or cancellation or, or refusal to
25 renew, an Australian lawyer's local practising
certificate;
or
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Division 3 Notifications to be given by lawyers to local authorities
s. 86
(b) the decision of the Board to take the action is varied or
set aside on review by the State Administrative
Tribunal.
(2) The Board must, as soon as practicable, give the corresponding
5 authorities of other jurisdictions written notice of the action
taken or the result of the review.
(3) The notice must state --
(a) the lawyer's name and address as last known to the
Board; and
10 (b) particulars of --
(i) the action taken and the reasons for it; or
(ii) the result of the review.
(4) The notice may contain other relevant information.
(5) The Board may give corresponding authorities written notice of
15 a condition imposed on an Australian lawyer's local practising
certificate.
Division 3 -- Notifications to be given by lawyers to
local authorities
86. Lawyer to give notice of removal of name from interstate
20 roll
(1) If the name of a local lawyer or a local legal practitioner has
been removed from an interstate roll, the lawyer or practitioner
must, as soon as practicable after becoming aware of the
removal, give the Principal Registrar and the Board a written
25 notice of the removal.
Penalty: a fine of $5 000.
(2) This section does not apply where the name has been removed
from an interstate roll under a provision that corresponds to
section 90.
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practising certificates
Notifications to be given by lawyers to local authorities Division 3
s. 87
87. 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 becoming aware of
5 the order, give the Board written notice of the order.
Penalty: a fine of $5 000.
(2) If an order is made under a corresponding law in relation to a
local legal practitioner that --
(a) the practitioner's local practising certificate be
10 suspended or cancelled; or
(b) a local practising certificate not be granted to the
practitioner for a period; or
(c) conditions be imposed on the practitioner's local
practising certificate,
15 the practitioner must, as soon as practicable after becoming
aware of the order, give the Board written notice of the order.
Penalty: a fine of $5 000.
88. Lawyer to give notice of foreign regulatory action
If foreign regulatory action has been taken in relation to a local
20 lawyer or a local legal practitioner, the lawyer or practitioner
must, as soon as practicable, give the Board written notice of the
action taken.
Penalty: a fine of $5 000.
89. Provisions relating to requirement to notify
25 A notice to be given under this Division by a person must --
(a) state the person's 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
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Division 4 Taking of action by local authorities in response to notifications
received
s. 90
(c) be accompanied by a copy of any official notification
provided to the person in connection with that action.
Division 4 -- Taking of action by local authorities in response
to notifications received
5 90. Peremptory removal of local lawyer's name from local roll
following removal in another jurisdiction
(1) This section applies if the Principal Registrar is satisfied that --
(a) a local lawyer's name has been removed from an
interstate roll; and
10 (b) no order referred to in section 94(1) is, at the time of
that removal, in force in relation to it.
(2) The Principal Registrar must remove the lawyer's name from
the local roll.
(3) The Principal Registrar may, but need not, give the lawyer
15 notice of the date on which the Principal Registrar proposes to
remove the name from the local roll.
(4) The Principal Registrar must, as soon as practicable, give the
former local lawyer notice of the removal of the name from the
local roll, unless notice of the date of the proposed removal was
20 previously given.
(5) The name of the former local lawyer is, on the application of the
lawyer to the Principal Registrar or on the Principal Registrar's
own initiative, to be restored to the local roll if the name is
restored to the interstate roll.
25 (6) Nothing in this section prevents the former local lawyer from
afterwards applying for admission under Part 4.
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practising certificates
Taking of action by local authorities in response to notifications Division 4
received
s. 91
91. Peremptory cancellation of local practising certificate
following removal of name from interstate roll
(1) This section applies if --
(a) a person's name is removed from an interstate roll but
5 the person remains an Australian lawyer; and
(b) the person is the holder of a local practising certificate;
and
(c) no order referred to in section 95(1) is, at the time of
that removal, in force in relation to it.
10 (2) The Board must cancel the local practising certificate as soon as
practicable after receiving official written notification of the
removal.
(3) The Board may, but need not, give the person notice of the date
on which the Board proposes to cancel the local practising
15 certificate.
(4) The Board must, as soon as practicable, give the person notice
of the cancellation, unless notice of the date of the proposed
cancellation was previously given.
(5) Nothing in this section prevents the former local lawyer from
20 afterwards applying for a local practising certificate.
92. Show cause procedure for removal of lawyer's name from
local roll following foreign regulatory action
(1) The section applies if the Board is satisfied that --
(a) foreign regulatory action has been taken in relation to a
25 local lawyer, whether before or after the commencement
of this section; and
(b) no order referred to in section 94(1) is in force in
relation to the action taken.
(2) The Board may serve on the lawyer a notice stating that the
30 Board will apply to the Supreme Court (full bench) for an order
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Part 6 Inter-jurisdictional provisions regarding admission and
practising certificates
Division 4 Taking of action by local authorities in response to notifications
received
s. 93
that the lawyer's name be removed from the local roll unless the
lawyer shows cause to the Board why the lawyer's name should
not be removed.
(3) If the lawyer does not satisfy the Board that the lawyer's name
5 should not be removed from the local roll, the Board may apply
to the Supreme Court (full bench) for an order that the lawyer's
name be removed from the local roll.
(4) Before applying for an order that the lawyer's name be
removed, the Board must afford the lawyer a reasonable
10 opportunity to show cause why the lawyer's name should not be
removed.
(5) The Supreme Court (full bench) may, on application made
under this section, order that the lawyer's name be removed
from the local roll, or may refuse to do so.
15 (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.
93. Show cause procedure for cancellation of local practising
certificate following foreign regulatory action
20 (1) The section applies if the Board is satisfied that --
(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 section 95(1) is in force in
25 relation to the action taken.
(2) The Board may serve on the practitioner a notice stating that the
Board proposes to cancel the practitioner's local practising
certificate unless the practitioner shows cause to the Board why
the practising certificate should not be cancelled.
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practising certificates
Taking of action by local authorities in response to notifications Division 4
received
s. 94
(3) The Board must afford the practitioner a reasonable opportunity
to show cause why the practitioner's practising certificate
should not be cancelled.
(4) If the practitioner does not satisfy the Board that the practising
5 certificate should not be cancelled, the Board may cancel the
certificate.
(5) The Board must, as soon as practicable, give the practitioner an
information notice about its decision to cancel the practising
certificate.
10 (6) The practitioner may apply to the State Administrative Tribunal
for a review of the decision of the Board to cancel the practising
certificate.
94. Order for non-removal of name
(1) If an Australian lawyer reasonably expects that the lawyer's
15 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 an order that the lawyer's
name not be removed from the local roll under section 90 or 92.
(2) The Supreme Court may make the order applied for if satisfied
20 that --
(a) the lawyer's name is likely to be removed from the
interstate roll or the foreign regulatory action is likely to
be taken; and
(b) the reason for the removal of the name or the taking of
25 the foreign regulatory action will not involve
disciplinary action or the possibility of disciplinary
action,
or may refuse to make an order.
(3) An order under this section may be made subject to any
30 conditions the Supreme Court considers appropriate, and
remains in force for the period specified in it.
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Part 6 Inter-jurisdictional provisions regarding admission and
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Division 4 Taking of action by local authorities in response to notifications
received
s. 95
(4) The Supreme Court may revoke an order made under this
section, and sections 90 and 92 then apply as if the lawyer's
name were removed from the interstate roll or the foreign
regulatory action were taken when the revocation takes effect.
5 (5) Nothing in this section affects action being taken in relation to
the lawyer under other provisions of this Act.
95. Order for non-cancellation of local practising certificate
(1) If an Australian lawyer reasonably expects that the lawyer's
name will be removed from an interstate roll or that foreign
10 regulatory action will be taken against the lawyer, the lawyer
may apply to the State Administrative Tribunal for an order that
the lawyer's local practising certificate not be cancelled under
section 91 or 93.
(2) The State Administrative Tribunal may make the order applied
15 for if satisfied that --
(a) the lawyer's name is likely to be removed from the
interstate roll or the foreign regulatory action is likely to
be taken; and
(b) the reason for the removal of the name or the taking of
20 the foreign regulatory action will not involve
disciplinary action or the possibility of disciplinary
action,
or may refuse to make an order.
(3) An order under this section may be made subject to any
25 conditions the State Administrative Tribunal considers
appropriate, and remains in force for the period specified in it.
(4) The State Administrative Tribunal may revoke an order made
under this section, and sections 91 and 93 then apply as if the
lawyer's name were removed from the interstate roll or the
30 foreign regulatory action were taken when the revocation takes
effect.
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Inter-jurisdictional provisions regarding admission and Part 6
practising certificates
Taking of action by local authorities in response to notifications Division 4
received
s. 96
(5) Nothing in this section affects action being taken in relation to
the lawyer under other provisions of this Act.
96. Local authority may give information to other local
authorities
5 An authority of this jurisdiction that receives information from
an authority of another jurisdiction under provisions of a
corresponding law that correspond to this Part may give the
information to other authorities of this jurisdiction that have
functions under this Act.
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Part 7 Incorporated legal practices and multi-disciplinary partnerships
Division 1 Preliminary
s. 97
Part 7 -- Incorporated legal practices and
multi-disciplinary partnerships
Division 1 -- Preliminary
97. Purposes
5 The purposes of this Part are as follows: --
(a) to regulate the provision of legal services by
corporations in this jurisdiction; and
(b) to regulate the provision of legal services in this
jurisdiction in conjunction with the provision of other
10 services (whether by a corporation or persons acting in
partnership with each other).
98. Definitions
In this Part --
"legal practitioner director" means a director of an
15 incorporated legal practice who is an Australian legal
practitioner holding an unrestricted practising certificate;
"legal practitioner partner" means a partner of a
multi-disciplinary partnership who is an Australian legal
practitioner holding an unrestricted practising certificate;
20 "officer" means --
(a) in relation to a company within the meaning given in
the Corporations Act -- an officer within the
meaning given in section 9 of that Act; or
(b) in relation to any other body corporate, or body
25 corporate of a kind, prescribed by the regulations -- a
person specified or described in the regulations;
"professional obligations" of an Australian legal practitioner
include --
(a) duties to the Supreme Court; and
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Incorporated legal practices providing legal services Division 2
s. 99
(b) obligations in connection with conflicts of interest;
and
(c) duties to clients, including disclosure; and
(d) ethical rules required to be observed by the
5 practitioner;
"related body corporate" means --
(a) in relation to a company within the meaning given in
the Corporations Act -- a related body corporate
within the meaning given in section 50 of that Act; or
10 (b) in relation to any other body corporate, or body
corporate of a kind, prescribed by the regulations -- a
person specified or described in the regulations.
Division 2 -- Incorporated legal practices providing
legal services
15 99. Nature of incorporated legal practice
(1) An incorporated legal practice is a corporation that engages in
legal practice in this jurisdiction, whether or not it also provides
services that are not legal services.
(2) However, a corporation is not an incorporated legal practice
20 if --
(a) the corporation does not receive any form of, or have an
expectation of, a fee, gain or reward for the legal
services it provides; or
(b) the only legal services that the corporation provides are
25 any or all of the following services --
(i) in-house legal services, namely, legal services
provided to the corporation concerning a
proceeding or transaction to which the
corporation (or a related body corporate) is a
30 party;
(ii) services that are not legally required to be
provided by an Australian legal practitioner and
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Division 2 Incorporated legal practices providing legal services
s. 100
that are provided by an officer or an employee
who is not an Australian legal practitioner;
or
(c) this Part or the regulations so provide.
5 (3) The regulations may make provision for or with respect to the
application (with or without specified modifications) of
provisions of this Act to corporations that are not incorporated
legal practices because of the operation of subsection (2).
(4) Nothing in this Part affects or applies to the provision by an
10 incorporated legal practice of legal services in one or more other
jurisdictions.
100. Non-legal services and businesses of incorporated legal
practices
(1) An incorporated legal practice may provide any service and
15 conduct any business that the corporation may lawfully provide
or conduct, except as provided by this section.
(2) An incorporated legal practice or a related body corporate of an
incorporated legal practice must not conduct a managed
investment scheme.
20 (3) The regulations may prohibit an incorporated legal practice or a
related body corporate of the practice from providing a service
or conducting a business of a kind specified by the regulations.
101. Corporations eligible to be incorporated legal practice
(1) Any corporation is, subject to this Part, eligible to be an
25 incorporated legal practice.
(2) This section does not authorise a corporation to provide legal
services if the corporation is prohibited from doing so under any
Act or law (whether of this jurisdiction, the Commonwealth or
any other jurisdiction) under which it is incorporated or its
30 affairs are regulated.
(3) An incorporated legal practice is not itself required to hold an
Australian practising certificate.
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Incorporated legal practices providing legal services Division 2
s. 102
102. Notice of intention to start providing legal services
(1) Before a corporation starts to engage in legal practice in this
jurisdiction, the corporation must give the Board written notice,
in the approved form, of its intention to do so.
5 (2) A corporation must not engage in legal practice in this
jurisdiction if it is in default of this section.
Penalty: a fine of $25 000.
(3) A corporation that starts to engage in legal practice in this
jurisdiction without giving a notice under subsection (1) is in
10 default of this section until it gives the Board written notice, in
the approved form, of the failure to comply with that subsection
and the fact that it has started to engage in legal practice.
(4) The giving of a notice under subsection (3) does not affect a
corporation's liability under subsection (1) or (2).
15 (5) A corporation is not entitled to recover any amount for anything
the corporation did in contravention of subsection (2).
(6) A person may recover from a corporation or a legal practitioner
associate of the corporation, as a debt due to the person, any
amount the person paid to or at the direction of the corporation
20 for anything the corporation did in contravention of
subsection (2).
(7) This section does not apply to a corporation that is not an
incorporated legal practice because of section 99(2).
103. Prohibition on representations that corporation is
25 incorporated legal practice
(1) A corporation must not, without reasonable excuse, represent or
advertise that the corporation is an incorporated legal practice
unless a notice in relation to the corporation has been given
under section 102.
30 Penalty: a fine of $50 000.
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Division 2 Incorporated legal practices providing legal services
s. 104
(2) A director, officer, employee or agent of a corporation must not,
without reasonable excuse, represent or advertise that the
corporation is an incorporated legal practice unless a notice in
relation to the corporation has been given under section 102.
5 Penalty: a fine of $10 000.
(3) A reference in this section to a corporation representing or
advertising that the corporation is an incorporated legal practice
includes a reference to the corporation doing anything that states
or implies that the corporation is entitled to engage in legal
10 practice.
(4) A reference in this section to director, officer, employee or
agent of a corporation representing or advertising that the
corporation is an incorporated legal practice includes a
reference to the director, officer, employee or agent doing
15 anything that states or implies that the corporation is entitled to
engage in legal practice.
104. Notice of corporation ceasing to engage in legal practice
(1) A corporation must, within the period prescribed by the
regulations after it ceases to engage in legal practice in this
20 jurisdiction as an incorporated legal practice, give the Board a
written notice, in the approved form, of that fact.
Penalty: a fine of $5 000.
(2) The regulations may make provision for or with respect to
determining whether and when a corporation ceases to engage
25 in legal practice in this jurisdiction.
105. Incorporated legal practice must have legal practitioner
director
(1) An incorporated legal practice is required to have at least one
legal practitioner director.
30 (2) Each legal practitioner director of an incorporated legal practice
is, for the purposes only of this Act, responsible for the
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Incorporated legal practices providing legal services Division 2
s. 105
management of the legal services provided in this jurisdiction
by the incorporated legal practice.
(3) Each legal practitioner director of an incorporated legal practice
must ensure that appropriate management systems are
5 implemented and maintained to enable the provision of legal
services by the incorporated legal practice --
(a) in accordance with the professional obligations of
Australian legal practitioners and other obligations
imposed under this Act; and
10 (b) so that those obligations of Australian legal practitioners
who are officers or employees of the practice are not
affected by other officers or employees of the practice.
(4) If it ought reasonably to be apparent to a legal practitioner
director of an incorporated legal practice that the provision of
15 legal services by the practice will result in breaches of the
professional obligations of an Australian legal practitioner or
other obligations imposed under this Act, the director must take
all reasonable action available to the director to ensure that --
(a) the breaches do not occur; and
20 (b) appropriate remedial action is taken in relation to the
breaches that do occur.
(5) Nothing in this Part derogates from the obligations or liabilities
of a director of an incorporated legal practice under any other
law.
25 (6) The reference in subsection (1) to a legal practitioner director
does not include a reference to a person who is not validly
appointed as a director, but this subsection does not affect the
meaning of the expression "legal practitioner director" in
other provisions of this Act.
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Division 2 Incorporated legal practices providing legal services
s. 106
106. Obligations of legal practitioner director relating to
misconduct
(1) Each of the following is capable of constituting unsatisfactory
professional conduct or professional misconduct by a legal
5 practitioner director --
(a) unsatisfactory professional conduct or professional
misconduct of an Australian legal practitioner employed
by the incorporated legal practice;
(b) conduct of any other director (not being an Australian
10 legal practitioner) of the incorporated legal practice that
adversely affects the provision of legal services by the
practice;
(c) the unsuitability of any other director (not being an
Australian legal practitioner) of the incorporated legal
15 practice to be a director of a corporation that provides
legal services.
(2) A legal practitioner director is not guilty of unsatisfactory
professional conduct or professional misconduct under
subsection (1) if the director establishes that the director took all
20 reasonable steps to ensure that --
(a) Australian legal practitioners employed by the
incorporated legal practice did not engage in conduct or
misconduct referred to in subsection (1)(a); or
(b) directors (not being Australian legal practitioners) of the
25 incorporated legal practice did not engage in conduct
referred to in subsection (1)(b); or
(c) unsuitable directors (not being Australian legal
practitioners) of the incorporated legal practice were not
appointed or holding office as referred to in
30 subsection (1)(c),
as the case requires.
(3) A legal practitioner director of an incorporated legal practice
must ensure that all reasonable action available to the legal
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Incorporated legal practices providing legal services Division 2
s. 107
practitioner director is taken to deal with any unsatisfactory
professional conduct or professional misconduct of an
Australian legal practitioner employed by the practice.
107. Incorporated legal practice without legal practitioner
5 director
(1) An incorporated legal practice contravenes this subsection if it
does not have any legal practitioner directors for a period
exceeding 7 days.
Penalty: a fine of $50 000.
10 (2) If an incorporated legal practice ceases to have any legal
practitioner directors, the practice must notify the Board as soon
as possible.
Penalty: a fine of $50 000.
(3) An incorporated legal practice must not provide legal services in
15 this jurisdiction during any period it is in default of director
requirements under this section.
Penalty: a fine of $25 000.
(4) An incorporated legal practice that contravenes subsection (1) is
taken to be in default of director requirements under this section
20 for the period from the end of the period of 7 days until --
(a) it has at least one legal practitioner director; or
(b) a person is appointed under this section or a
corresponding law in relation to the practice.
(5) The Board may, if it thinks it appropriate, appoint an Australian
25 legal practitioner who is an employee of the incorporated legal
practice or another Australian legal practitioner nominated by
the Board, in the absence of a legal practitioner director, to
exercise the functions conferred or imposed on a legal
practitioner director under this Part.
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Division 2 Incorporated legal practices providing legal services
s. 108
(6) An Australian legal practitioner is not eligible to be appointed
under this section unless the practitioner holds an unrestricted
practising certificate.
(7) The appointment under this section of a person to exercise the
5 functions of a legal practitioner director does not, for any other
purpose, confer or impose on the person any of the other
functions or duties of a director of the incorporated legal
practice.
(8) An incorporated legal practice does not contravene
10 subsection (1) during any period during which a person holds an
appointment under this section in relation to the practice.
(9) A reference in this section to a legal practitioner director does
not include a reference to a person who is not validly appointed
as a director, but this subsection does not affect the meaning of
15 the expression "legal practitioner director" in other provisions
of this Act.
108. Obligations and privileges of practitioners who are officers
or employees
(1) An Australian legal practitioner who provides legal services for
20 an incorporated legal practice in the capacity of an officer or
employee of the incorporated legal practice --
(a) is not excused from compliance with the professional
obligations, or any obligations under any law, of an
Australian legal practitioner; and
25 (b) does not lose the professional privileges of an Australian
legal practitioner.
(2) For the purposes only of subsection (1), the professional
obligations and professional privileges of an Australian legal
practitioner apply as if --
30 (a) where there are 2 or more legal practitioner directors of
an incorporated legal practice -- the practice were a
partnership of the legal practitioner directors and the
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Incorporated legal practices providing legal services Division 2
s. 109
employees of the practice were employees of the legal
practitioner directors; or
(b) where there is only one legal practitioner director of an
incorporated legal practice -- the practice were a sole
5 practitioner and the employees of the practice were
employees of the legal practitioner director.
(3) The law relating to client legal privilege (or other legal
professional privilege) is not excluded or otherwise affected
because an Australian legal practitioner is acting in the capacity
10 of an officer or employee of an incorporated legal practice.
(4) The directors of an incorporated legal practice do not breach
their duties as directors merely because legal services are
provided pro bono by an Australian legal practitioner employed
by the practice.
15 109. Professional indemnity insurance
(1) An incorporated legal practice must comply with the obligations
of an incorporated legal practice under this Act relating to
professional indemnity insurance.
(2) Subsection (1) does not affect an obligation of an Australian
20 legal practitioner who is a legal practitioner director or an
officer or employee of an incorporated legal practice to comply
with the obligations of an Australian legal practitioner under
this Act relating to professional indemnity insurance, and the
Australian legal practitioner must comply with those
25 requirements accordingly.
(3) If subsection (1) or (2) is not complied with the Board may --
(a) for a legal practitioner director who holds a local
practising certificate -- suspend the director's practising
certificate while the failure continues; or
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Division 2 Incorporated legal practices providing legal services
s. 110
(b) for a legal practitioner director who is an interstate legal
practitioner --
(i) suspend the director's entitlement under Part 5 to
practise in this jurisdiction while the failure to
5 comply continues; and
(ii) ask the corresponding authority in the
practitioner's home jurisdiction to suspend the
director's interstate practising certificate until the
Board tells the corresponding authority that this
10 section has been complied with.
110. Conflicts of interest
(1) For the purposes of the application of any law (including the
common law) or legal profession rule relating to conflicts of
interest to the conduct of an Australian legal practitioner who
15 is --
(a) a legal practitioner director of an incorporated legal
practice; or
(b) an officer or employee of an incorporated legal practice,
the interests of the incorporated legal practice or any related
20 body corporate are also taken to be those of the practitioner (in
addition to any interests that the practitioner has apart from this
subsection).
(2) Legal profession rules may be made for or with respect to
additional duties and obligations in connection with conflicts of
25 interest arising out of the conduct of an incorporated legal
practice.
111. Disclosure obligations
(1) This section applies if a person engages an incorporated legal
practice to provide services that the person might reasonably
30 assume to be legal services, but does not apply if the practice
provides only legal services in this jurisdiction.
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(2) Each legal practitioner director of the incorporated legal
practice, and any employee who is an Australian legal
practitioner and who provides the services on behalf of the
practice, must ensure that a disclosure, complying with the
5 requirements of this section and the regulations made for the
purposes of this section, is made to the person in connection
with the provision of the services.
Penalty: a fine of $10 000.
(3) The disclosure must be made by giving the person a notice in
10 writing --
(a) setting out the services to be provided; and
(b) stating whether or not all the legal services to be
provided will be provided by an Australian legal
practitioner; and
15 (c) if some or all of the legal services will not be provided
by an Australian legal practitioner -- identifying those
services and indicating the status or qualifications of the
person or persons who will provide the services; and
(d) stating that this Act applies to the provision of legal
20 services but not to the provision of the non-legal
services.
(4) The regulations may make provision for or with respect to the
following matters --
(a) the manner in which disclosure is to be made;
25 (b) additional matters required to be disclosed in connection
with the provision of legal services or non-legal services
by an incorporated legal practice.
(5) Without limiting subsection (4), the additional matters may
include the kind of services provided by the incorporated legal
30 practice and whether those services are or are not covered by the
insurance or other provisions of this Act.
(6) A disclosure under this section to a person about the provision
of legal services may relate to the provision of legal services on
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Division 2 Incorporated legal practices providing legal services
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one occasion or on more than one occasion or on an ongoing
basis.
112. Effect of non-disclosure on provision of certain services
(1) This section applies if --
5 (a) section 111 applies in relation to a service that is
provided to a person who has engaged an incorporated
legal practice to provide the service and that the person
might reasonably assume to be a legal service; and
(b) a disclosure has not been made under that section about
10 that service.
(2) The standard of care owed by the practice in relation to the
service is the standard that would be applicable if the service
had been provided by an Australian legal practitioner.
113. Application of legal profession rules
15 Legal profession rules, so far as they apply to Australian legal
practitioners, also apply to Australian legal practitioners who
are officers or employees of an incorporated legal practice,
unless the rules otherwise provide.
114. Requirements relating to advertising
20 (1) Any restriction imposed under this Act or another Act in
connection with advertising by Australian legal practitioners
applies to advertising by an incorporated legal practice with
respect to the provision of legal services.
(2) If a restriction mentioned in subsection (1) is limited to a
25 particular branch of the legal profession or persons who practise
in a particular style of legal practice, the restriction applies only
to the extent that the incorporated legal practice carries on the
business of that branch of the legal profession or in that
particular style of legal practice.
30 (3) Any advertisement of the kind referred to in this section is, for
the purposes of disciplinary proceedings taken against an
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Incorporated legal practices providing legal services Division 2
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Australian legal practitioner, taken to have been authorised by
each legal practitioner director of the incorporated legal
practice.
(4) This section does not apply if the provision by which the
5 restriction is imposed expressly excludes its application to
incorporated legal practices.
115. Extension of vicarious liability relating to failure to account,
pay or deliver and dishonesty to incorporated legal practices
(1) This section applies to any of the following proceedings (being
10 proceedings based on the vicarious liability of an incorporated
legal practice) --
(a) civil proceedings relating to a failure to account for, pay
or deliver money or property received by, or entrusted
to, the practice (or to any officer or employee of the
15 practice) in the course of the provision of legal services
by the practice, being money or property under the
direct or indirect control of the practice;
(b) civil proceedings for any other debt owed, or damages
payable, to a client as a result of a dishonest act or
20 omission by an Australian legal practitioner who is an
employee of the practice in connection with the
provision of legal services to the client.
(2) If the incorporated legal practice would not (but for this section)
be vicariously liable for any acts or omissions of its officers and
25 employees in those proceedings, but would be liable for those
acts or omissions if the practice and those officers and
employees were carrying on business in partnership, the practice
is taken to be vicariously liable for those acts or omissions.
116. Sharing of receipts, revenue or other income
30 (1) Nothing under this Act prevents an Australian legal practitioner
from sharing with an incorporated legal practice receipts,
revenue or other income arising from the provision of legal
services by the practitioner.
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(2) This section does not extend to the sharing of receipts, revenue
or other income in contravention of section 117.
117. Disqualified persons
(1) An incorporated legal practice commits an offence if a
5 disqualified person --
(a) is an officer or employee of the incorporated legal
practice (whether or not the person provides legal
services) or is an officer or employee of a related body
corporate; or
10 (b) is a partner of the incorporated legal practice in a
business that includes the provision of legal services; or
(c) shares the receipts, revenue or other income arising from
the provision of legal services by the incorporated legal
practice; or
15 (d) is engaged or paid in connection with the provision of
legal services by the incorporated legal practice.
Penalty: a fine of $15 000.
(2) The failure of a legal practitioner director of an incorporated
legal practice to ensure that the practice complies with
20 subsection (1) is capable of constituting unsatisfactory
professional conduct or professional misconduct.
118. Audit of incorporated legal practice
(1) The Board or the Complaints Committee may conduct an audit
of --
25 (a) the compliance of an incorporated legal practice (and of
its officers and employees) with the requirements of --
(i) this Part; or
(ii) the regulations or the legal profession rules, so
far as they relate specifically to incorporated
30 legal practices;
and
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Incorporated legal practices providing legal services Division 2
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(b) the management of the provision of legal services by the
incorporated legal practice (including the supervision of
officers and employees providing the services).
(2) The Board or the Complaints Committee may, in writing,
5 appoint a suitably qualified person to conduct an audit under
this section.
(3) The appointment may be made generally, or in relation to a
particular incorporated legal practice, or in relation to a
particular audit.
10 (4) An audit may be conducted whether or not a complaint has been
made against an Australian lawyer with respect to the provision
of legal services by the incorporated legal practice.
(5) A report of an audit --
(a) must be provided to the incorporated legal practice
15 concerned; and
(b) may be provided by the Board to the Complaints
Committee or by the Complaints Committee to the
Board; and
(c) may be provided by the Board or the Complaints
20 Committee to a corresponding authority; and
(d) may be taken into account in connection with any
disciplinary proceedings taken against legal practitioner
directors or other persons or in connection with the
grant, amendment, suspension or cancellation of
25 Australian practising certificates.
(6) The Board must notify the Complaints Committee, and the
Complaints Committee must notify the Board, when it
commences an audit.
(7) Part 15 applies to an audit under this section.
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119. Banning of incorporated legal practices
(1) The State Administrative Tribunal may, on the application of
the Board or the Complaints Committee, make an order
disqualifying a corporation from providing legal services in this
5 jurisdiction for the period the Tribunal considers appropriate if
satisfied that --
(a) a ground for disqualifying the corporation under this
section has been established; and
(b) the disqualification is justified.
10 (2) An order under this section may, if the State Administrative
Tribunal thinks it appropriate, be made --
(a) subject to conditions as to the conduct of the
incorporated legal practice; or
(b) subject to conditions as to when or in what
15 circumstances the order is to take effect; or
(c) together with orders to safeguard the interests of clients
of the incorporated legal practice who have been or are
to be provided with legal services by the practice, and
the employees or officers of the incorporated legal
20 practice.
(3) Action may be taken against an incorporated legal practice on
any of the following grounds --
(a) that a legal practitioner director or an Australian legal
practitioner who is an officer or employee of the
25 corporation is found guilty of professional misconduct
under a law of this jurisdiction or another jurisdiction;
(b) that the Board or the Complaints Committee is satisfied,
after conducting an audit of the incorporated legal
practice, that the incorporated legal practice has failed to
30 implement satisfactory management and supervision of
its provision of legal services;
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(c) that the incorporated legal practice (or a related body
corporate) has contravened section 100 or a regulation
made under that section;
(d) that the incorporated legal practice has contravened
5 section 117;
(e) that a person who is an officer of the incorporated legal
practice and who is the subject of an order under --
(i) section 120 or under provisions of a
corresponding law that correspond to that
10 section; or
(ii) section 145 or under provisions of a
corresponding law that correspond to that
section,
is acting in the management of the incorporated legal
15 practice.
(4) If a corporation is disqualified under this section, the Board
must, as soon as practicable, notify the corresponding authority
of every other jurisdiction.
(5) If a corporation is disqualified from providing legal services in
20 another jurisdiction under a corresponding law, the Board may
determine that the corporation is taken to be disqualified from
providing legal services in this jurisdiction for the same period,
but nothing in this subsection prevents the Board from instead
applying for an order under this section.
25 (6) A corporation that provides legal services in contravention of a
disqualification under this section commits an offence.
Penalty: a fine of $50 000.
(7) A corporation that is disqualified under this section ceases to be
an incorporated legal practice.
30 (8) Conduct of an Australian legal practitioner who provides legal
services on behalf of a corporation in the capacity of an officer
or employee of the corporation is capable of constituting
unsatisfactory professional conduct or professional misconduct
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if the practitioner ought reasonably to have known that the
corporation is disqualified under this section.
(9) The regulations may make provision for or with respect to the
publication and notification of orders made under this section,
5 including notification of corresponding authorities of other
jurisdictions.
120. Disqualification from managing incorporated legal practice
(1) The State Administrative Tribunal may, on the application of
the Board, make an order disqualifying a person from managing
10 a corporation that is an incorporated legal practice for the period
the Tribunal considers appropriate if satisfied that --
(a) the person is a person who could be disqualified under
section 206C, 206D, 206E or 206F of the Corporations
Act from managing corporations; and
15 (b) the disqualification is justified.
(2) The State Administrative Tribunal may, on the application of a
person subject to a disqualification order under this section,
revoke the order.
(3) A disqualification order made under this section has effect for
20 the purposes only of this Act and does not affect the application
or operation of the Corporations Act.
(4) The regulations may make provision for or with respect to the
publication and notification of orders made under this section.
(5) A person who is disqualified from managing a corporation
25 under provisions of a corresponding law that correspond to this
section is taken to be disqualified from managing a corporation
under this section.
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Incorporated legal practices providing legal services Division 2
s. 121
121. Disclosure of information to Australian Securities and
Investments Commission
(1) In this section --
"authorised person" means --
5 (a) the Board; or
(b) the Complaints Committee; or
(c) the Law Complaints Officer; or
(d) the President of the State Administrative Tribunal or
a member of staff of the Tribunal.
10 (2) This section applies if an authorised person, in connection with
performing functions under this Act, acquired information
concerning a corporation that is or was an incorporated legal
practice.
(3) The authorised person may disclose to the Australian Securities
15 and Investments Commission information concerning the
corporation that is relevant to the Commission's functions.
(4) Information may be provided under subsection (3) despite any
law relating to secrecy or confidentiality, including any
provisions of this Act.
20 122. External administration proceedings under Corporations
Act
(1) This section applies to proceedings in any court under the
Corporations Act Chapter 5 --
(a) relating to a corporation that is an
25 externally-administered body corporate under that Act
and that is or was an incorporated legal practice; or
(b) relating to a corporation that is or was an incorporated
legal practice becoming an externally-administered body
corporate under that Act.
30 (2) The Board is entitled to intervene in the proceedings, unless the
court determines that the proceedings do not concern or affect
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Division 2 Incorporated legal practices providing legal services
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the provision of legal services by the incorporated legal
practice.
(3) The court may, when exercising its jurisdiction in the
proceedings, have regard to the interests of the clients of the
5 incorporated legal practice who have been or are to be provided
with legal services by the practice.
(4) Subsection (3) does not authorise the court to make any decision
that is contrary to a specific provision of the Corporations Act.
(5) The provisions of subsections (2) and (3) are declared to be
10 Corporations legislation displacement provisions for the
purposes of the Corporations Act section 5G in relation to the
provisions of Chapter 5 of that Act.
123. External administration proceedings under other legislation
(1) This section applies to proceedings for the external
15 administration (however expressed) of an incorporated legal
practice, but does not apply to proceedings to which section 122
applies.
(2) The Board is entitled to intervene in the proceedings, unless the
court determines that the proceedings do not concern or affect
20 the provision of legal services by the incorporated legal
practice.
(3) The court may, when exercising its jurisdiction in the
proceedings, have regard to the interests of the clients of the
incorporated legal practice who have been or are to be provided
25 with legal services by the practice.
(4) Subsection (3) does not authorise the court to make any decision
that is contrary to a specific provision of any legislation
applicable to the incorporated legal practice.
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Incorporated legal practices providing legal services Division 2
s. 124
124. Incorporated legal practice is subject to receivership under
this Act and external administration under
Corporations Act
(1) In this section --
5 "Corporations Act administrator" means --
(a) a receiver, receiver and manager, liquidator
(including a provisional liquidator), controller,
administrator or deed administrator appointed under
the Corporations Act; or
10 (b) a person who is appointed to exercise powers under
the Corporations Act and who is prescribed, or of a
class prescribed, by the regulations for the purposes
of this definition;
"LP receiver" means a receiver appointed under Part 14.
15 (2) This section applies if a corporation that is or was an
incorporated legal practice is the subject of both --
(a) the appointment of an LP receiver; and
(b) the appointment of a Corporations Act administrator.
(3) The LP receiver is under a duty to tell the Corporations Act
20 administrator of the appointment of the LP receiver, whether the
appointment precedes, follows or happens at the same time as
the appointment of the Corporations Act administrator.
(4) The LP receiver or the Corporations Act administrator (or both
of them jointly) may apply to the Supreme Court for the
25 resolution of issues arising from or in relation to the dual
appointments and their respective powers, except if proceedings
mentioned in section 122 have been started.
(5) The Supreme Court may make any orders it considers
appropriate, and no liability attaches to the LP receiver or the
30 Corporations Act administrator for any act or omission done by
the receiver or administrator in good faith for the purposes of
carrying out or acting in accordance with the orders.
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Division 2 Incorporated legal practices providing legal services
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(6) The Board is entitled to intervene in the proceeding, unless the
court decides that the proceeding does not concern or affect the
provision of legal services by the incorporated legal practice.
(7) The provisions of subsections (4) and (5) are declared to be
5 Corporations legislation displacement provisions for section 5G
of the Corporations Act in relation to the provisions of
Chapter 5 of that Act.
125. Incorporated legal practice that is subject to receivership
under this Act and external administration under other
10 legislation
(1) In this section --
"external administrator" means a person who is appointed to
exercise powers under other legislation (whether or not
legislation of this jurisdiction) and who is prescribed, or of
15 a class prescribed, by the regulations for the purposes of
this definition;
"LP receiver" means a receiver appointed under Part 14.
(2) This section applies if an incorporated legal practice is the
subject of both --
20 (a) the appointment of an LP receiver; and
(b) the appointment of an external administrator.
(3) The LP receiver is under a duty to tell the external administrator
of the appointment of the LP receiver, whether the appointment
precedes, follows or happens at the same time as the
25 appointment of the external administrator.
(4) The LP receiver or the external administrator (or both of them
jointly) may apply to the Supreme Court for the resolution of
issues arising from or in relation to the dual appointments and
their respective powers.
30 (5) The Supreme Court may make any orders it considers
appropriate, and no liability attaches to the LP receiver or the
external administrator for any act or omission done by the
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Incorporated legal practices providing legal services Division 2
s. 126
receiver or administrator in good faith for the purposes of
carrying out or acting in accordance with the orders.
(6) The Board is entitled to intervene in the proceeding, unless the
court decides that the proceeding does not concern or affect the
5 provision of legal services by the incorporated legal practice.
126. Cooperation between courts
Courts and tribunals of this jurisdiction may make arrangements
for communicating and cooperating with other courts and
tribunals in connection with the exercise of powers under
10 this Part.
127. Relationship of Act to constitution of incorporated legal
practice
The provisions of this Act that apply to an incorporated legal
practice prevail, to the extent of any inconsistency, over the
15 constitution or other constituent documents of the practice.
128. Relationship of Act to legislation establishing incorporated
legal practice
(1) This section applies to a corporation, established by or under a
law (whether or not of this jurisdiction), that is an incorporated
20 legal practice but is not a company under the Corporations Act.
(2) The provisions of this Act that apply to an incorporated legal
practice prevail, to the extent of any inconsistency, over
provisions of the legislation under which the corporation is
established or regulated that are specified or described in the
25 regulations.
129. Relationship of Act to Corporations legislation
(1) In this section --
"matter" includes act, omission, body, person or thing.
(2) The regulations may declare any provision of this Act that
30 relates to an incorporated legal practice to be a Corporations
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Division 3 Multi-disciplinary partnerships
s. 130
legislation displacement provision for the purposes of the
Corporations Act section 5G.
(3) The regulations may declare any matter relating to an
incorporated legal practice that is prohibited, required,
5 authorised or permitted under this Act to be an excluded matter
for the purposes of the Corporations Act section 5F in
relation to --
(a) the whole of the Corporations legislation; or
(b) a specified provision of the Corporations legislation; or
10 (c) the Corporations legislation other than a specified
provision; or
(d) the Corporations legislation other than to a specified
extent.
130. Undue influence
15 A person (whether or not an officer or employee of an
incorporated legal practice) must not cause or induce or attempt
to cause or induce --
(a) a legal practitioner director; or
(b) another Australian legal practitioner who provides legal
20 services on behalf of an incorporated legal practice,
to contravene this Act or his or her professional obligations as
an Australian legal practitioner.
Penalty: a fine of $25 000.
Division 3 -- Multi-disciplinary partnerships
25 131. Nature of multi-disciplinary partnership
(1) A multi-disciplinary partnership is a partnership between one or
more Australian legal practitioners and one or more other
persons who are not Australian legal practitioners, where the
business of the partnership includes the provision of legal
30 services in this jurisdiction as well as other services.
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s. 132
(2) However, a partnership consisting only of one or more
Australian legal practitioners and one or more
Australian-registered foreign lawyers is not a multi-disciplinary
partnership.
5 (3) Nothing in this Division affects or applies to the provision by a
multi-disciplinary partnership of legal services in one or more
other jurisdictions.
132. Conduct of multi-disciplinary partnership
(1) An Australian legal practitioner may be in partnership with a
10 person who is not an Australian legal practitioner, where the
business of the partnership includes the provision of legal
services.
(2) Subsection (1) does not prevent an Australian legal practitioner
from being in partnership with a person who is not an Australian
15 legal practitioner, where the business of the partnership does not
include the provision of legal services.
(3) The regulations may prohibit an Australian legal practitioner
from being in partnership with a person providing a service or
conducting a business of a kind specified by the regulations,
20 where the business of the partnership includes the provision of
legal services.
133. Notice of intention to start practice in multi-disciplinary
partnership
A legal practitioner partner must, before starting to provide
25 legal services in this jurisdiction as a member of a
multi-disciplinary partnership, give the Board written notice, in
the approved form, of the partner's intention to do so.
Penalty: a fine of $5 000.
134. General obligations of legal practitioner partners
30 (1) Each legal practitioner partner of a multi-disciplinary
partnership is, for the purposes only of this Act, responsible for
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Division 3 Multi-disciplinary partnerships
s. 135
the management of the legal services provided in this
jurisdiction by the partnership.
(2) Each legal practitioner partner must ensure that appropriate
management systems are implemented and maintained to enable
5 the provision of legal services by the multi-disciplinary
partnership --
(a) in accordance with the professional obligations of
Australian legal practitioners and other obligations
imposed by this Act; and
10 (b) so that the professional obligations of legal practitioner
partners and employees who are Australian legal
practitioners are not affected by other partners and
employees of the partnership.
135. Obligations of legal practitioner partner relating to
15 misconduct
(1) Each of the following is capable of constituting unsatisfactory
professional conduct or professional misconduct by a legal
practitioner partner --
(a) unsatisfactory professional conduct or professional
20 misconduct of an Australian legal practitioner employed
by the multi-disciplinary partnership;
(b) conduct of any other partner (not being an Australian
legal practitioner) of the multi-disciplinary partnership
that adversely affects the provision of legal services by
25 the partnership;
(c) the unsuitability of any other partner (not being an
Australian legal practitioner) of the multi-disciplinary
partnership to be a member of a partnership that
provides legal services.
30 (2) A legal practitioner partner of a multi-disciplinary partnership
must ensure that all reasonable action available to the legal
practitioner partner is taken to deal with any unsatisfactory
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Multi-disciplinary partnerships Division 3
s. 136
professional conduct or professional misconduct of an
Australian legal practitioner employed by the partnership.
136. Actions of partner who is not Australian legal practitioner
A partner of a multi-disciplinary partnership who is not an
5 Australian legal practitioner does not contravene a provision of
this Act merely because of any of the following --
(a) the partner is a member of a partnership and the
partnership business includes the provision of legal
services;
10 (b) the partner receives any fee, gain or reward for business
of the partnership that is the business of an Australian
legal practitioner;
(c) the partner holds out, advertises or represents himself or
herself as a member of a partnership where the business
15 of the partnership includes the provision of legal
services;
(d) the partner shares with any other partner the receipts,
revenue or other income of business of the partnership
that is the business of an Australian legal practitioner,
20 unless the provision expressly applies to a partner of a
multi-disciplinary partnership who is not an Australian legal
practitioner.
137. Obligations and privileges of practitioners who are partners
or employees
25 (1) An Australian legal practitioner who provides legal services in
the capacity of a partner or an employee of a multi-disciplinary
partnership --
(a) is not excused from compliance with the professional
obligations, or any obligations under any law, of an
30 Australian legal practitioner; and
(b) does not lose the professional privileges of an Australian
legal practitioner.
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Division 3 Multi-disciplinary partnerships
s. 138
(2) The law relating to client legal privilege (or other legal
professional privilege) is not excluded or otherwise affected
because an Australian legal practitioner is acting in the capacity
of a partner or an employee of a multi-disciplinary partnership.
5 138. Conflicts of interest
(1) For the purposes of the application of any law (including the
common law) or legal profession rule relating to conflicts of
interest to the conduct of an Australian legal practitioner who
is --
10 (a) a legal practitioner partner of a multi-disciplinary
partnership; or
(b) an employee of a multi-disciplinary partnership,
the interests of the partnership, or any partner of the
multi-disciplinary partnership, are also taken to be those of the
15 practitioner concerned (in addition to any interests that the
practitioner has apart from this subsection).
(2) Legal profession rules may be made for or with respect to
additional duties and obligations in connection with conflicts of
interest arising out of the conduct of a multi-disciplinary
20 partnership.
139. Disclosure obligations
(1) This section applies if a person engages a multi-disciplinary
partnership to provide services that the person might reasonably
assume to be legal services.
25 (2) Each legal practitioner partner of the multi-disciplinary
partnership, and any employee of the partnership who is an
Australian legal practitioner and who provides the services on
behalf of the practice, must ensure that a disclosure, complying
with the requirements of this section and the regulations made
30 for the purposes of this section, is made to the person in
connection with the provision of the services.
Penalty: a fine of $10 000.
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s. 140
(3) The disclosure must be made by giving the person a notice in
writing --
(a) setting out the services to be provided; and
(b) stating whether or not all the legal services to be
5 provided will be provided by an Australian legal
practitioner; and
(c) if some or all of the legal services will not be provided
by an Australian legal practitioner -- identifying those
services and indicating the status or qualifications of the
10 person or persons who will provide the services; and
(d) stating that this Act applies to the provision of legal
services but not to the provision of the non-legal
services.
(4) The regulations may make provision for or with respect to the
15 following matters --
(a) the manner in which disclosure is to be made;
(b) additional matters required to be disclosed in connection
with the provision of legal services or non-legal services
by a multi-disciplinary partnership.
20 (5) Without limiting subsection (4), the additional matters may
include the kind of services provided by the multi-disciplinary
partnership and whether those services are or are not covered by
the insurance or other provisions of this Act.
(6) A disclosure under this section to a person about the provision
25 of legal services may relate to the provision of legal services on
one occasion or on more than one occasion or on an on-going
basis.
140. Effect of non-disclosure on provision of certain services
(1) This section applies if --
30 (a) section 139 applies to a service that is provided to a
person who has engaged a multi-disciplinary partnership
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Division 3 Multi-disciplinary partnerships
s. 141
to provide the service and that the person might
reasonably assume to be a legal service; and
(b) a disclosure has not been made under that section about
that service.
5 (2) The standard of care owed by the multi-disciplinary partnership
in relation to the service is the standard that would be applicable
if the service had been provided by an Australian legal
practitioner.
141. Application of legal profession rules
10 Legal profession rules, so far as they apply to Australian legal
practitioners, also apply to Australian legal practitioners who
are legal practitioner partners or employees of a
multi-disciplinary partnership, unless the rules otherwise
provide.
15 142. Requirements relating to advertising
(1) Any restriction imposed under this Act or another Act in
connection with advertising by Australian legal practitioners
applies to advertising by a multi-disciplinary partnership with
respect to the provision of legal services.
20 (2) If a restriction referred to in subsection (1) is limited to a
particular branch of the legal profession or for persons who
practise in a particular style of legal practice, the restriction
applies only to the extent that the multi-disciplinary partnership
carries on the business of that branch of the legal profession or
25 in that particular style of legal practice.
(3) An advertisement of the kind referred to in this section is, for
the purposes of disciplinary proceedings taken against an
Australian legal practitioner, taken to have been authorised by
each legal practitioner partner of the multi-disciplinary
30 partnership.
page 120
Legal Profession Bill 2007
Incorporated legal practices and multi-disciplinary partnerships Part 7
Multi-disciplinary partnerships Division 3
s. 143
(4) This section does not apply if the provision by which the
restriction is imposed expressly excludes its application to
multi-disciplinary partnerships.
143. Sharing of receipts, revenue or other income
5 (1) Nothing under this Act prevents a legal practitioner partner, or
an Australian legal practitioner who is an employee of a
multi-disciplinary partnership, from sharing receipts, revenue or
other income arising from the provision of legal services by the
partner or practitioner with a partner who is not an Australian
10 legal practitioner.
(2) This section does not extend to the sharing of receipts in
contravention of section 144.
144. Disqualified persons
A legal practitioner partner of a multi-disciplinary partnership
15 must not knowingly --
(a) be a partner of a disqualified person in the
multi-disciplinary partnership; or
(b) share with a disqualified person the receipts, revenue or
other income arising from the provision of legal services
20 by the multi-disciplinary partnership; or
(c) employ or pay a disqualified person in connection with
the provision of legal services by the multi-disciplinary
partnership.
Penalty: a fine of $15 000.
25 145. Prohibition on partnerships with certain partners who are
not Australian legal practitioners
(1) This section applies to a person who --
(a) is not an Australian legal practitioner; and
(b) is or was the partner of an Australian legal practitioner.
page 121
Legal Profession Bill 2007
Part 7 Incorporated legal practices and multi-disciplinary partnerships
Division 3 Multi-disciplinary partnerships
s. 146
(2) On application by the Board, the State Administrative Tribunal
may make an order prohibiting any Australian legal practitioner
from being a partner, in a business that includes the provision of
legal services, of a specified person to whom this section applies
5 if --
(a) the Tribunal is satisfied that the person is not a fit and
proper person to be a partner; or
(b) the Tribunal is satisfied that the person has been guilty
of conduct that, if the person were an Australian legal
10 practitioner, would have constituted unsatisfactory
professional conduct or professional misconduct; or
(c) in the case of a corporation, if the Tribunal is satisfied
that the corporation has been disqualified from
providing legal services in this jurisdiction or there are
15 grounds for disqualifying the corporation from
providing legal services in this jurisdiction.
(3) An order made under this section may be revoked by the State
Administrative Tribunal on application by the Board or by the
person against whom the order was made.
20 (4) The death of an Australian legal practitioner does not prevent an
application being made for, or the making of, an order under
this section in relation to a person who was a partner of the
practitioner.
(5) The regulations may make provision for or with respect to the
25 publication and notification of orders made under this section.
146. Undue influence
A person (whether or not a partner or employee of a
multi-disciplinary partnership) must not cause or induce or
attempt to cause or induce --
30 (a) a legal practitioner partner; or
page 122
Legal Profession Bill 2007
Incorporated legal practices and multi-disciplinary partnerships Part 7
Miscellaneous Division 4
s. 147
(b) an employee of a multi-disciplinary partnership who
provides legal services and who is an Australian legal
practitioner,
to contravene this Act or his or her professional obligations as
5 an Australian legal practitioner.
Penalty: a fine of $25 000.
Division 4 -- Miscellaneous
147. Obligations of individual practitioners not affected
Except as provided by this Part, nothing in this Part affects any
10 obligation imposed on --
(a) a legal practitioner director or an Australian legal
practitioner who is an employee of an incorporated legal
practice; or
(b) a legal practitioner partner of, or an Australian legal
15 practitioner who is an employee of, a multi-disciplinary
partnership,
under this Act or another Act in his or her capacity as an
Australian legal practitioner.
148. Regulations
20 (1) The regulations may make provision for or with respect to the
following matters --
(a) the legal services provided by incorporated legal
practices or legal practitioner partners or employees of
multi-disciplinary partnerships;
25 (b) other services provided by incorporated legal practices
or legal practitioner partners or employees of
multi-disciplinary partnerships in circumstances in
which a conflict of interest relating to the provision of
legal services may arise.
page 123
Legal Profession Bill 2007
Part 7 Incorporated legal practices and multi-disciplinary partnerships
Division 4 Miscellaneous
s. 148
(2) A regulation prevails over any inconsistent provision of the
legal profession rules.
(3) A regulation may provide that a breach of the regulations is
capable of constituting unsatisfactory professional conduct or
5 professional misconduct --
(a) in the case of an incorporated legal practice -- by a legal
practitioner director, or by an Australian legal
practitioner responsible for the breach, or both; or
(b) in the case of a multi-disciplinary partnership -- by a
10 legal practitioner partner, or by an Australian legal
practitioner responsible for the breach, or both.
page 124
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Preliminary Division 1
s. 149
Part 8 -- Legal practice by foreign lawyers
Division 1 -- Preliminary
149. Purpose
The purpose of this Part is to encourage and facilitate the
5 internationalisation of legal services and the legal service sector
by providing a framework for the regulation of the practice of
foreign law in this jurisdiction by foreign lawyers as a
recognised aspect of legal practice in this jurisdiction.
150. Definitions
10 In this Part --
"Australia" includes the external territories;
"Australian law" means law of the Commonwealth or of a
jurisdiction;
"foreign law" means law of a foreign country;
15 "foreign law practice" means a partnership or corporate entity
that is entitled to engage in legal practice in a foreign
country;
"foreign registration authority" means an entity in a foreign
country having the function, conferred by the law of the
20 foreign country, of registering persons to engage in legal
practice in the foreign country;
"local registration certificate" means a registration certificate
given under this Part;
"overseas-registered foreign lawyer" means a natural person
25 who is properly registered to engage in legal practice in a
foreign country by the foreign registration authority for the
country;
"practise foreign law" means do work, or transact business, in
this jurisdiction concerning foreign law, being work or
30 business of a kind that, if it concerned the law of this
page 125
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 2 Practice of foreign law
s. 151
jurisdiction, would ordinarily be done or transacted by an
Australian legal practitioner;
"registered", when used in connection with a foreign country,
means having all necessary licences, approvals, admissions,
5 certificates or other forms of authorisation (including
practising certificates) required under legislation for
engaging in legal practice in that country.
151. This Part does not apply to Australian legal practitioners
(1) This Part does not apply to an Australian legal practitioner
10 (including an Australian legal practitioner who is also an
overseas-registered foreign lawyer).
(2) Accordingly, nothing in this Part requires or enables an
Australian legal practitioner (including an Australian legal
practitioner who is also an overseas-registered foreign lawyer)
15 to be registered as a foreign lawyer under this Act in order to
practise foreign law in this jurisdiction.
Division 2 -- Practice of foreign law
152. Requirement for registration
(1) A person must not practise foreign law in this jurisdiction unless
20 the person is --
(a) an Australian-registered foreign lawyer; or
(b) an Australian legal practitioner.
Penalty: a fine of $25 000.
(2) However, a person does not contravene subsection (1) if the
25 person is an overseas-registered foreign lawyer --
(a) who --
(i) practises foreign law in this jurisdiction for one
or more periods that do not in aggregate exceed
90 days in any period of 12 months; or
page 126
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Practice of foreign law Division 2
s. 153
(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 business transacted, in
5 Australia by the person;
and
(b) who --
(i) does not maintain an office for the purpose of
practising foreign law in this jurisdiction; or
10 (ii) does not become a partner or director of a law
practice.
153. Entitlement of Australian-registered foreign lawyer to
practise in this jurisdiction
An Australian-registered foreign lawyer is, subject to this Act,
15 entitled to practise foreign law in this jurisdiction.
154. Scope of practice
(1) An Australian-registered foreign lawyer may provide only the
following legal services in this jurisdiction --
(a) doing work, or transacting business, concerning the law
20 of a foreign country where the lawyer is registered by
the foreign registration authority for the country;
(b) legal services (including appearances) in relation to
arbitration proceedings of a kind prescribed under the
regulations;
25 (c) legal services (including appearances) in relation to
proceedings before bodies other than courts, being
proceedings in which the bodies concerned are not
required to apply the rules of evidence and in which
knowledge of the foreign law of a country referred to in
30 paragraph (a) is essential;
page 127
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 2 Practice of foreign law
s. 155
(d) legal services for conciliation, mediation and other
forms of consensual dispute resolution of a kind
prescribed under the regulations.
(2) Nothing in this Act authorises an Australian-registered foreign
5 lawyer to appear in any court (except on the lawyer's own
behalf) or to practise Australian law in this jurisdiction.
(3) Despite subsection (2), an Australian-registered foreign lawyer
may advise on the effect of an Australian law if --
(a) the giving of advice on Australian law is necessarily
10 incidental to the practice of foreign law; and
(b) the advice is expressly based on advice given on the
Australian law by an Australian legal practitioner who is
not an employee of the foreign lawyer.
155. Form of practice
15 (1) An Australian-registered foreign lawyer may (subject to any
conditions attaching to the foreign lawyer's registration)
practise foreign law --
(a) on the foreign lawyer's own account; or
(b) in partnership with one or more Australian-registered
20 foreign lawyers or one or more Australian legal
practitioners, or both, in circumstances where, if the
Australian-registered foreign lawyer were an Australian
legal practitioner, the partnership would be permitted
under a law of this jurisdiction; or
25 (c) as a director or employee of an incorporated legal
practice or a partner or employee of a multi-disciplinary
partnership that is permitted by a law of this jurisdiction;
or
(d) as an employee of an Australian legal practitioner or law
30 firm in circumstances where, if the Australian-registered
foreign lawyer were an Australian legal practitioner, the
employment would be permitted under a law of this
jurisdiction; or
page 128
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Practice of foreign law Division 2
s. 156
(e) as an employee of an Australian-registered foreign
lawyer.
(2) An affiliation referred to in subsection (1)(b) to (e) does not
entitle the Australian-registered foreign lawyer to practise
5 Australian law in this jurisdiction.
156. Application of Australian professional ethical and practice
standards
(1) An Australian-registered foreign lawyer must not engage in any
conduct in practising foreign law that would, if the conduct
10 were engaged in by an Australian legal practitioner in practising
Australian law in this jurisdiction, be capable of constituting
professional misconduct or unsatisfactory professional conduct.
(2) Part 13 applies to a person who --
(a) is an Australian-registered foreign lawyer; or
15 (b) was an Australian-registered foreign lawyer when the
relevant conduct allegedly occurred, but is no longer an
Australian-registered foreign lawyer (in which case
Part 13 applies as if the person were an
Australian-registered foreign lawyer),
20 and so applies as if references in Part 13 to an Australian legal
practitioner were references to a person of that kind.
(3) The regulations may make provision with respect to the
application (with or without modification) of the provisions of
Part 13 for the purposes of this section.
25 (4) Without limiting the matters that may be taken into account in
deciding whether a person should be disciplined for a
contravention of subsection (1), the following matters may be
taken into account --
(a) whether the conduct of the person was consistent with
30 the standard of professional conduct of the legal
profession in any foreign country where the person is
registered;
page 129
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 2 Practice of foreign law
s. 157
(b) whether the person contravened the subsection wilfully
or without reasonable excuse.
(5) Without limiting any other provision of this section or the
orders that may be made under Part 13 as applied by this
5 section, the following orders may be made under that Part as
applied by this section --
(a) an order that a person's registration under this Act as a
foreign lawyer be cancelled;
(b) an order that a person's registration under a
10 corresponding law as a foreign lawyer be cancelled.
157. Designation
(1) An Australian-registered foreign lawyer may use only the
following designations --
(a) the lawyer's own name;
15 (b) a title or business name the lawyer is authorised by law
to use in a foreign country where the lawyer is registered
by a foreign registration authority;
(c) subject to this section, the name of a foreign law
practice with which the lawyer is affiliated or associated
20 (whether as a partner, director, employee or otherwise);
(d) if the lawyer is a principal of any law practice in
Australia whose principals include both one or more
Australian-registered foreign lawyers and one or more
Australian legal practitioners -- a description of the
25 practice that includes references to both Australian legal
practitioners and Australian-registered foreign lawyers
(for example: "Solicitors and locally registered foreign
lawyers" or "Australian solicitors and US attorneys").
page 130
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Practice of foreign law Division 2
s. 158
(2) An Australian-registered foreign lawyer who is a principal of a
foreign law practice may use the practice's name in or in
connection with practising foreign law in this jurisdiction only
if --
5 (a) the lawyer indicates, on the lawyer's letterhead or any
other document used in this jurisdiction to identify the
lawyer as an overseas-registered foreign lawyer, that the
foreign law practice practises only foreign law in this
jurisdiction; and
10 (b) the lawyer has provided the Board with acceptable
evidence that the lawyer is a principal of the foreign law
practice.
(3) An Australian-registered foreign lawyer who is a principal of a
foreign law practice may use the name of the practice as
15 mentioned in this section whether or not other principals of the
practice are Australian-registered foreign lawyers.
(4) This section does not authorise the use of a name or other
designation that contravenes any requirements of the law of this
jurisdiction concerning the use of business names or that is
20 likely to lead to any confusion with the name of any established
domestic law practice or foreign law practice in this jurisdiction.
158. Letterhead and other identifying documents
(1) In this section --
"public document" includes any business letter, statement of
25 account, invoice, business card, and promotional and
advertising material.
(2) An Australian-registered foreign lawyer must indicate, in each
public document distributed by the lawyer in connection with
the lawyer's practice of foreign law, the fact that the lawyer is
30 an Australian-registered foreign lawyer and is restricted to the
practice of foreign law.
page 131
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 2 Practice of foreign law
s. 159
(3) Subsection (2) is satisfied if the lawyer includes in the public
document the words --
(a) "registered foreign lawyer" or "registered foreign
practitioner"; and
5 (b) "entitled to practise foreign law only".
(4) An Australian-registered foreign lawyer may (but need not)
include any or all of the following on any public document --
(a) an indication of all foreign countries in which the lawyer
is registered to engage in legal practice;
10 (b) a description of himself or herself, and any law practice
with which the lawyer is affiliated or associated in any
of the ways designated in section 157.
159. Advertising
(1) An Australian-registered foreign lawyer is required to comply
15 with any advertising restrictions imposed by the Board or by
law on the legal practice engaged in by an Australian legal
practitioner that are relevant to the practice of law in this
jurisdiction.
(2) Without limiting subsection (1), an Australian-registered foreign
20 lawyer must not advertise (or use any description on the
lawyer's letterhead or any other document used in this
jurisdiction to identify the lawyer as a lawyer) in any way
that --
(a) might reasonably be regarded as --
25 (i) false, misleading or deceptive; or
(ii) suggesting that the Australian-registered foreign
lawyer is an Australian legal practitioner;
or
(b) contravenes any requirement of the regulations.
page 132
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Practice of foreign law Division 2
s. 160
160. Foreign lawyer employing Australian legal practitioner
(1) An Australian-registered foreign lawyer may employ one or
more Australian legal practitioners.
(2) Employment of an Australian legal practitioner does not entitle
5 an Australian-registered foreign lawyer to practise Australian
law in this jurisdiction.
(3) An Australian legal practitioner employed by an
Australian-registered foreign lawyer may practise foreign law.
(4) An Australian legal practitioner employed by an
10 Australian-registered foreign lawyer must not --
(a) provide advice on Australian law to, or for use by, the
Australian-registered foreign lawyer; or
(b) otherwise practise Australian law in this jurisdiction in
the course of that employment.
15 (5) Subsection (4) does not apply to an Australian legal practitioner
employed by a law firm a partner of which is an
Australian-registered foreign lawyer, if at least one other partner
is an Australian legal practitioner.
(6) Any period of employment of an Australian legal practitioner by
20 an Australian-registered foreign lawyer cannot be used to satisfy
a requirement imposed by a condition on a local practising
certificate to complete a period of supervised legal practice.
161. Trust money and trust accounts
(1) The provisions of Part 9, and any other provisions of this Act
25 relating to requirements for trust money and trust accounts
apply (subject to this section) to Australian-registered foreign
lawyers in the same way as they apply to law practices and
Australian legal practitioners.
(2) In this section, a reference to money is not limited to a reference
30 to money in this jurisdiction.
page 133
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 2 Practice of foreign law
s. 162
(3) The regulations may make provision with respect to the
application (with or without modification) of the provisions of
this Act relating to trust money and trust accounts for the
purposes of this section.
5 162. Professional indemnity insurance
(1) An Australian-registered foreign lawyer must, at all times while
practising foreign law in this jurisdiction, comply with one of
the following --
(a) the foreign lawyer must have professional indemnity
10 insurance that conforms with the requirements for
professional indemnity insurance applicable for
Australian legal practitioners in any jurisdiction;
(b) if the foreign lawyer does not have professional
indemnity insurance that complies with paragraph (a) --
15 the foreign lawyer --
(i) must have professional indemnity insurance that
covers the practice of foreign law in this
jurisdiction and that complies with the relevant
requirements of a foreign law or foreign
20 registration authority; and
(ii) if the insurance is for less than $1.5 million
(inclusive of defence costs) -- must provide a
disclosure statement to each client disclosing the
level of cover;
25 (c) if the foreign lawyer does not have professional
indemnity insurance that complies with paragraph (a)
or (b) -- the foreign lawyer must provide a disclosure
statement to each client stating that the lawyer does not
have complying professional indemnity insurance.
30 (2) A disclosure statement must be made in writing before, or as
soon as practicable after, the foreign lawyer is retained in the
matter.
page 134
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Local registration of foreign lawyers generally Division 3
s. 163
(3) A disclosure statement provided to a person before the foreign
lawyer is retained in a matter is taken to be provided to the
person as a client for the purposes of this section.
(4) A disclosure statement is not valid unless it is given in
5 accordance with, and otherwise complies with, any applicable
requirements of the regulations.
163. Fidelity cover
The regulations may provide that the provisions of Part 12 apply
to classes of Australian-registered foreign lawyers prescribed by
10 the regulations and so apply with any modifications specified in
the regulations.
Division 3 -- Local registration of foreign lawyers generally
164. Local registration of foreign lawyers
Overseas-registered foreign lawyers may be registered as
15 foreign lawyers under this Act.
165. Duration of registration
(1) Registration as a locally registered foreign lawyer granted under
this Act is in force from the day specified in the local
registration certificate until the end of the financial year in
20 which it is granted, unless the registration is sooner suspended
or cancelled.
(2) Registration as a foreign lawyer renewed under this Act is in
force until the end of the financial year following its previous
period of currency, unless the registration is sooner suspended
25 or cancelled.
(3) If an application for the renewal of registration as a foreign
lawyer has not been determined by the following 1 July, the
registration --
(a) continues in force on and from that 1 July until the
30 Board renews or refuses to renew the registration or the
page 135
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 4 Application for grant or renewal of local registration
s. 166
holder withdraws the application for renewal, unless the
registration is sooner suspended or cancelled; and
(b) if renewed, is taken to have been renewed on and from
that 1 July.
5 166. Locally registered foreign lawyer is not officer of Supreme
Court
A locally registered foreign lawyer is not an officer of the
Supreme Court.
Division 4 -- Application for grant or renewal of
10 local registration
167. Application for grant or renewal of registration
An overseas-registered foreign lawyer may apply to the Board
for the grant or renewal of registration as a foreign lawyer under
this Act.
15 168. Manner of application
(1) An application for the grant or renewal of registration as a
foreign lawyer must be --
(a) made in the approved form; and
(b) accompanied by the fees determined by the Board.
20 (2) Different fees may be set according to different factors
determined by the Board.
(3) The fees are not to be greater than the maximum fees for a local
practising certificate.
(4) The Board may also require the applicant to pay any reasonable
25 costs and expenses incurred by the Board in considering the
application, including (for example) costs and expenses of
making inquiries and obtaining information or documents about
whether the applicant meets the criteria for registration.
page 136
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Application for grant or renewal of local registration Division 4
s. 169
(5) The fees and costs must not include any component for
compulsory membership of any professional association.
(6) The approved form may require the applicant to disclose --
(a) matters that may affect the Board's consideration of the
5 application for the grant or renewal of registration; and
(b) particulars of any offences for which the applicant has
been convicted in Australia or a foreign country,
whether before or after the commencement of this
section.
10 (7) The approved form may indicate that convictions of a particular
kind need not be disclosed for the purposes of the current
application.
(8) The approved form may indicate that specified kinds of matters
or particulars previously disclosed in a particular manner need
15 not be disclosed for the purposes of the current application.
169. Requirements regarding applications for grant or renewal
of registration
(1) An application for the grant of registration must state the
applicant's educational and professional qualifications.
20 (2) An application for the grant or renewal of registration must --
(a) state that the applicant is registered to engage in legal
practice by one or more specified foreign registration
authorities in one or more foreign countries; and
(b) state that the applicant is not an Australian legal
25 practitioner; and
(c) state that the applicant is not the subject of disciplinary
proceedings in Australia or a foreign country (including
any preliminary investigations or action that might lead
to disciplinary proceedings) in the applicant's capacity
30 as --
(i) an overseas-registered foreign lawyer; or
page 137
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 4 Application for grant or renewal of local registration
s. 169
(ii) an Australian-registered foreign lawyer; or
(iii) an Australian lawyer;
and
(d) state whether the applicant has been convicted of an
5 offence in Australia or a foreign country, and if so --
(i) the nature of the offence; and
(ii) how long ago the offence was committed; and
(iii) the applicant's age when the offence was
committed;
10 and
(e) state that the applicant's registration is not cancelled or
currently suspended in any place as a result of any
disciplinary action in Australia or a foreign country; and
(f) state --
15 (i) that the applicant is not otherwise personally
prohibited from engaging in legal practice in any
place or bound by any undertaking not to engage
in legal practice in any place; and
(ii) whether or not the applicant is subject to any
20 special conditions in engaging in legal practice in
any place,
as a result of criminal, civil or disciplinary proceedings
in Australia or a foreign country; and
(g) specify any special conditions imposed in Australia or a
25 foreign country as a restriction on the legal practice
engaged in by the applicant or any undertaking given by
the applicant restricting the applicant's practice of law;
and
(h) give consent to the making of inquiries of, and the
30 exchange of information with, any foreign registration
authorities the Board considers appropriate regarding the
applicant's activities in engaging in legal practice in the
page 138
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Application for grant or renewal of local registration Division 4
s. 169
places concerned or otherwise regarding matters
relevant to the application; and
(i) specify which of the paragraphs of section 162(1) the
applicant proposes to rely on and be accompanied by
5 supporting proof of the relevant matters; and
(j) provide the information or be accompanied by other
information or documents (or both) that is specified in
the application form or in material accompanying the
application form as provided by the Board.
10 (3) The application must (if the Board so requires) be accompanied
by an original instrument, or a copy of an original instrument,
from each foreign registration authority specified in the
application that --
(a) verifies the applicant's educational and professional
15 qualifications; and
(b) verifies the applicant's registration by the authority to
engage in legal practice in the foreign country
concerned, and the date of registration; and
(c) describes anything done by the applicant in engaging in
20 legal practice in that foreign country of which the
authority is aware and that, in the opinion of the
authority, has had or is likely to have had an adverse
effect on the applicant's professional standing within the
legal profession of that place.
25 (4) The applicant must (if the Board so requires) certify in the
application that the accompanying instrument is the original or a
complete and accurate copy of the original.
(5) The Board may require the applicant to verify the statements in
the application by statutory declaration or by other proof
30 acceptable to the Board.
(6) If the accompanying instrument is not in English, it must be
accompanied by a translation in English that is authenticated or
certified to the satisfaction of the Board.
page 139
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 5 Grant or renewal of registration
s. 170
Division 5 -- Grant or renewal of registration
170. Grant or renewal of registration
(1) The Board must consider an application that has been made for
the grant or renewal of registration as a locally registered
5 foreign lawyer and may --
(a) grant or refuse to grant the registration; and
(b) renew or refuse to renew the registration.
(2) The Board may, when granting or renewing registration, impose
conditions as referred to in section 189.
10 (3) If the Board grants or renews the registration, the Board must
give the applicant a registration certificate or a notice of
renewal.
(4) If the Board --
(a) refuses to grant or renew registration; or
15 (b) imposes a condition on the registration and the applicant
does not agree to the condition,
the Board must, as soon as practicable, give the applicant an
information notice.
(5) A notice of renewal may be in the form of a new registration
20 certificate or another form the Board considers appropriate.
171. Requirement to grant or renew registration if criteria
satisfied
(1) The Board must grant an application for registration as a foreign
lawyer if the Board --
25 (a) is satisfied the applicant is registered to engage in legal
practice in one or more foreign countries and is not an
Australian legal practitioner; and
(b) considers an effective system exists for regulating
engaging in legal practice in one or more of the foreign
30 countries; and
page 140
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Grant or renewal of registration Division 5
s. 172
(c) considers the applicant is not, as a result of criminal,
civil or disciplinary proceedings in any of the foreign
countries, subject to --
(i) any special conditions in engaging in legal
5 practice in any of the foreign countries; or
(ii) any undertakings concerning engaging in legal
practice in any of the foreign countries,
that would make it inappropriate to register the person;
and
10 (d) is satisfied that the applicant demonstrates an intention
to commence practising foreign law in this jurisdiction
within a reasonable period if registration were to be
granted,
unless the Board refuses the application under this Part.
15 (2) The Board must grant an application for renewal of a person's
registration, unless the Board refuses the renewal under
this Part.
(3) Residence or domicile in this jurisdiction is not to be a
prerequisite for or a factor in entitlement to the grant or renewal
20 of registration.
172. Refusal to grant or renew registration
(1) The Board may refuse to consider an application for registration
as a foreign lawyer if it is not made in accordance with this Act.
(2) The Board may refuse to grant or renew registration if --
25 (a) the application is not accompanied by, or does not
contain, the information required under this Part or
prescribed by the regulations; or
(b) the applicant has contravened this Act or a
corresponding law; or
30 (c) the applicant has contravened an order of the
Complaints Committee, the State Administrative
page 141
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 5 Grant or renewal of registration
s. 172
Tribunal or the Supreme Court exercising jurisdiction
under this Act or a corresponding disciplinary body,
including but not limited to an order to pay any fine or
costs; or
5 (d) the applicant has contravened an order of a local
regulatory authority or interstate regulatory authority to
pay any fine or costs; or
(e) the applicant has failed to comply with a requirement
under this Act to pay a contribution or levy to the
10 Guarantee Fund; or
(f) the applicant has contravened a requirement under this
Act about professional indemnity insurance; or
(g) the applicant has failed to pay any expenses of
receivership payable under this Act; or
15 (h) the applicant's foreign legal practice is in receivership
(however described).
(3) The Board may refuse to grant or renew registration if an
authority of another jurisdiction has under a corresponding
law --
20 (a) refused to grant or renew registration for the applicant;
or
(b) suspended or cancelled the applicant's registration.
(4) The Board may refuse to grant registration if the Board is
satisfied that the applicant is not a fit and proper person to be
25 registered after considering --
(a) the nature of any offence of which the applicant has
been convicted in Australia or a foreign country,
whether before or after the commencement of this
section; and
30 (b) how long ago the offence was committed; and
(c) the person's age when the offence was committed.
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Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Amendment, suspension or cancellation of local registration Division 6
s. 173
(5) The Board may refuse to renew registration if the Board is
satisfied that the applicant is not a fit and proper person to
continue to be registered after considering --
(a) the nature of any offence of which the applicant has
5 been convicted in Australia or a foreign country,
whether before or after the commencement of this
section, other than an offence disclosed in a previous
application to the Board; and
(b) how long ago the offence was committed; and
10 (c) the person's age when the offence was committed.
(6) The Board may refuse to grant or renew registration on any
ground on which registration could be suspended or cancelled.
(7) If the Board refuses to grant or renew registration, the Board
must, as soon as practicable, give the applicant an information
15 notice.
(8) Nothing in this section affects the operation of Division 7.
Division 6 -- Amendment, suspension or cancellation of
local registration
173. Application of this Division
20 This Division does not apply in relation to matters referred to in
Division 7.
174. Grounds for amending, suspending or cancelling local
registration
(1) Each of the following is a ground for amending, suspending or
25 cancelling a person's registration as a foreign lawyer --
(a) the registration was obtained because of incorrect or
misleading information;
(b) the person contravenes a requirement of this Part;
(c) the person contravenes a condition imposed on the
30 person's registration;
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Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 6 Amendment, suspension or cancellation of local registration
s. 175
(d) the person becomes the subject of disciplinary
proceedings in Australia or a foreign country (including
any preliminary investigations or action that might lead
to disciplinary proceedings) in the person's capacity
5 as --
(i) an overseas-registered foreign lawyer; or
(ii) an Australian-registered foreign lawyer; or
(iii) an Australian lawyer;
(e) the person has been convicted of an offence in Australia
10 or a foreign country;
(f) the person's registration is cancelled or 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
15 section 162;
(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
section 189.
20 175. Amending, suspending or cancelling registration
(1) In this section --
"amend", in relation to registration, means amend the
registration under section 189 during its currency,
otherwise than at the request of the foreign lawyer
25 concerned.
(2) If the Board believes a ground exists to amend, suspend or
cancel a person's registration by it as a foreign lawyer (the
"action"), the Board must give the person a notice that --
(a) states the action proposed and --
30 (i) if the proposed action is to amend the registration
in any way -- states the proposed amendment;
and
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Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Amendment, suspension or cancellation of local registration Division 6
s. 175
(ii) if the proposed action is to suspend the
registration -- states the proposed suspension
period;
and
5 (b) states the grounds for proposing to take the action; and
(c) outlines the facts and circumstances that form the basis
for the Board's belief; and
(d) invites the person to make written representations to the
Board, within a specified time not less than 7 days and
10 not more than 28 days, as to why the action proposed
should not be taken.
(3) If, after considering all written submissions made within the
specified time, the Board still believes a ground exists to take
the action, the Board may --
15 (a) if the notice under subsection (2) stated the action
proposed was to amend the person's registration --
amend the registration in the way stated, or in another
way the Board considers appropriate because of the
representations; or
20 (b) if the notice stated the action proposed was to suspend
the registration for a specified period -- suspend the
registration for a period no longer than the specified
period; or
(c) if the notice stated the action proposed was to cancel the
25 registration --
(i) cancel the registration; or
(ii) suspend the registration for a period; or
(iii) amend the registration in a less onerous way the
Board considers appropriate because of the
30 representations.
(4) The Board may, in its discretion, consider representations made
after the specified time.
page 145
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 6 Amendment, suspension or cancellation of local registration
s. 176
(5) If the Board decides to amend, suspend or cancel the
registration, the Board must give the person an information
notice about the decision.
176. Operation of amendment, suspension or cancellation of
5 registration
(1) This section applies if a decision is made under section 175 to
amend, suspend or cancel a person's registration.
(2) Subject to subsections (3) and (4), the amendment, cancellation
or suspension of the person's registration takes effect on the
10 later of the following --
(a) the day notice of the decision is given to the person;
(b) the day specified in the notice.
(3) If the registration is amended, cancelled or suspended because
the person has been convicted of an offence --
15 (a) the State Administrative Tribunal may, on the
application of the person, order that the amendment,
cancellation or suspension be stayed until --
(i) the end of the time to appeal against the
conviction; or
20 (ii) if an appeal is made against the conviction -- the
appeal is finally decided, lapses or otherwise
ends;
and
(b) the amendment, cancellation or suspension does not
25 have effect during any period for which the stay is in
force.
(4) If the registration is amended, suspended or cancelled because
the person has been convicted of an offence and the conviction
is quashed --
30 (a) the amendment or suspension ceases to have effect when
the conviction is quashed; or
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Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Amendment, suspension or cancellation of local registration Division 6
s. 177
(b) the cancellation ceases to have effect when the
conviction is quashed and the registration is restored as
if it had merely been suspended.
177. Other ways of amending or cancelling registration
5 (1) The Board may --
(a) amend the registration of a locally registered foreign
lawyer if the lawyer requests the Board to do so; or
(b) suspend the registration of a locally registered foreign
lawyer for a specified period if the lawyer requests the
10 Board to do so or agrees to the Board doing so; or
(c) cancel the registration of a locally registered foreign
lawyer if the lawyer requests the Board to do so or
surrenders the lawyer's local registration certificate to
the Board.
15 (2) The Board may amend a locally registered foreign lawyer's
registration --
(a) for a formal or clerical reason; or
(b) in another way that does not adversely affect the
lawyer's interests.
20 (3) The amendment, suspension or cancellation of registration
under this section is effected by written notice given to the
lawyer.
(4) Section 175 does not apply in the case of an amendment,
suspension or cancellation under this section.
25 178. Relationship of this Division with Part 13
Nothing in this Division prevents a complaint from being made,
or an investigation from being initiated, under Part 13 about a
matter to which this Division relates.
page 147
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 7 Special powers in relation to local registration -- show cause
events
s. 179
Division 7 -- Special powers in relation to local registration --
show cause events
179. Applicant for local registration -- show cause event
(1) This section applies if --
5 (a) a person is applying for registration as a foreign lawyer
under this Act; and
(b) a show cause event in relation to the person happened,
whether before or after the commencement of this
section, after the person first became an
10 overseas-registered foreign lawyer.
(2) As part of the application, the person must provide to the Board
a written statement, in accordance with the regulations --
(a) about the show cause event; and
(b) explaining why, despite the show cause event, the
15 person considers himself or herself to be a fit and proper
person to be a locally registered foreign lawyer.
(3) However, a person need not provide a statement under
subsection (2) if the person has previously provided to the
Board a statement under this section, or a notice and statement
20 under section 180, explaining why, despite the show cause
event, the person considers himself or herself to be a fit and
proper person to be a locally registered foreign lawyer.
180. Locally registered foreign lawyer -- show cause event
(1) This section applies to a show cause event that happens in
25 relation to a locally registered foreign lawyer.
(2) The locally registered foreign lawyer must provide to the Board
both of the following --
(a) within 7 days after the happening of the event -- notice,
in the approved form, that the event happened;
30 (b) within 28 days after the happening of the event -- a
written statement explaining why, despite the show
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Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Special powers in relation to local registration -- show cause Division 7
events
s. 181
cause event, the person considers himself or herself to
be a fit and proper person to be a locally registered
foreign lawyer.
(3) If a written statement is provided after the 28 days mentioned in
5 subsection (2)(b), the Board may accept the statement and take
it into consideration.
181. Refusal, amendment, suspension or cancellation of local
registration -- failure to show cause
(1) The Board may refuse to grant or renew, or may amend,
10 suspend or cancel, local registration if the applicant for
registration or the locally registered foreign lawyer --
(a) is required under section 179 or 180 to provide a written
statement relating to a matter and has failed to provide a
written statement in accordance with that requirement;
15 or
(b) has provided a written statement in accordance with
section 179 or 180, but the Board does not consider that
the applicant or foreign lawyer has shown in the
statement that, despite the show cause event concerned,
20 he or she is a fit and proper person to be a locally
registered foreign lawyer.
(2) For the purposes of this section only, a written statement
accepted by the Board under section 180(3) is taken to have
been provided in accordance with section 180.
25 (3) The Board must give the applicant or foreign lawyer an
information notice about the decision to refuse to grant or
renew, or to suspend or cancel, the registration.
182. Restriction on making further applications
(1) If the Board determines under this Division to cancel a person's
30 registration, the Board may also determine that the person is not
entitled to apply for registration under this Part for a specified
period not exceeding 5 years.
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Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 8 Further provisions relating to local registration
s. 183
(2) A person in respect of whom a determination has been made
under this section, or under a provision of a corresponding law
that corresponds to this section, is not entitled to apply for
registration under this Part during the period specified in the
5 decision.
(3) If the Board makes a determination under this section, the Board
must give the person an information notice about the
determination.
183. Relationship of this Division with Part 13
10 Nothing in this Division prevents a complaint from being made,
or an investigation from being initiated, under Part 13 about a
matter to which this Division relates.
Division 8 -- Further provisions relating to local registration
184. Immediate suspension of registration
15 (1) This section applies, despite sections 175 and 176, if the Board
considers it necessary in the public interest to immediately
suspend a person's registration as a locally registered foreign
lawyer.
(2) The Board may, by written notice given to the person,
20 immediately suspend the registration until the earlier of the
following --
(a) the time at which the Board informs the person of the
Board's decision by notice under section 175;
(b) the end of the period of 56 days after the notice is given
25 to the person under this section.
(3) The notice under this section must state --
(a) the reasons for the suspension; and
(b) that the person may make written representations to the
Board about the suspension; and
30 (c) the review rights of the person under section 203.
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Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Further provisions relating to local registration Division 8
s. 185
(4) The person may make written representations to the Board
about the suspension, and the Board must consider the
representations.
(5) The Board may revoke the suspension at any time, whether or
5 not in response to any written representations made to it by the
person.
185. Automatic cancellation of registration on grant of practising
certificate
A person's registration as a foreign lawyer under this Part is
10 taken to be cancelled if the person becomes an Australian legal
practitioner.
186. Suspension or cancellation of registration not to affect
disciplinary processes
The suspension or cancellation of a person's registration as a
15 foreign lawyer under this Part does not affect any disciplinary
processes in respect of matters arising before the suspension or
cancellation.
187. Return of local registration certificate on amendment,
suspension or cancellation of registration
20 (1) This section applies if a person's registration under this Part as a
foreign lawyer is amended, suspended or cancelled.
(2) The Board may give the person a notice requiring the person to
return the registration certificate to the Board in the way
specified in the notice within a specified period of not less than
25 14 days.
(3) The person must comply with the notice, unless the person has a
reasonable excuse.
Penalty: a fine of $2 000.
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Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 9 Conditions on registration
s. 188
(4) The Board must return the registration certificate to the person
as soon as practicable --
(a) if the certificate is amended -- after amending it; or
(b) if the certificate is suspended and is still current at the
5 end of the suspension period -- at the end of the
suspension period.
Division 9 -- Conditions on registration
188. Conditions generally
Registration as a foreign lawyer under this Part is subject to --
10 (a) any conditions imposed by the Board; and
(b) any conditions imposed under the legal profession rules;
and
(c) any conditions imposed under Part 13 or under any
provisions of a corresponding law that correspond to
15 Part 13; and
(d) any other conditions imposed by this or any other Act.
189. Conditions imposed by Board
(1) The Board may impose conditions on registration as a foreign
lawyer --
20 (a) when the registration is granted or renewed; or
(b) during the currency of the registration.
(2) A condition imposed under this section must be reasonable and
relevant.
(3) A condition imposed under this section may be about any of the
25 following --
(a) any matter in respect of which a condition could be
imposed on a local practising certificate;
(b) a matter agreed to by the foreign lawyer.
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Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Conditions on registration Division 9
s. 190
(4) The Board must not impose a condition under subsection (3)(a)
that is more onerous than a condition that it would impose on a
local practising certificate of a local legal practitioner in the
same or similar circumstances.
5 (5) The Board may revoke or vary conditions imposed by it under
this section.
190. Imposition or variation of conditions pending criminal
proceedings
(1) If a person registered as a foreign lawyer under this Part has
10 been charged with an offence but the charge has not been
determined, the Board may apply to the State Administrative
Tribunal for an order under this section.
(2) On application under subsection (1), the State Administrative
Tribunal may make either or both of the following orders --
15 (a) an order varying the conditions on the foreign lawyer's
registration;
(b) an order imposing further conditions on the foreign
lawyer's registration.
(3) The State Administrative Tribunal may make an order under
20 this section only if the Tribunal considers it appropriate to do
so, having regard to --
(a) the seriousness of the offence; and
(b) the public interest.
(4) An order under this section has effect until the sooner of --
25 (a) the end of the period specified by the State
Administrative Tribunal;
(b) if the practitioner is convicted of the offence -- 28 days
after the day of the conviction;
(c) if the charge is dismissed -- the day of the dismissal.
30 (5) The State Administrative Tribunal, on application by any party,
may vary or revoke an order under this section at any time.
page 153
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 9 Conditions on registration
s. 191
191. Condition regarding notification of offence
(1) It is a condition of registration as a foreign lawyer that the
lawyer --
(a) must notify the Board that the lawyer has been --
5 (i) convicted of an offence that would have to be
disclosed in relation to an application for
registration as a foreign lawyer under this Act; or
(ii) charged with a serious offence;
and
10 (b) must do so within 7 days after the event and by a written
notice.
(2) The legal profession rules may specify the form of the notice to
be used and the person to whom or the address to which it is to
be given.
15 (3) This section does not apply to an offence to which Division 7
applies.
192. Conditions imposed by legal profession rules
The legal profession rules may --
(a) impose conditions on the registration of foreign lawyers
20 or any class of foreign lawyers; or
(b) authorise conditions to be imposed on the registration of
foreign lawyers or on the registration of any class of
foreign lawyers.
193. Compliance with conditions
25 A locally registered foreign lawyer must not contravene a
condition to which the registration is subject.
Penalty: a fine of $10 000.
page 154
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Interstate-registered foreign lawyers Division 10
s. 194
Division 10 -- Interstate-registered foreign lawyers
194. Extent of entitlement of interstate-registered foreign lawyer
to practise in this jurisdiction
(1) This Part does not authorise an interstate-registered foreign
5 lawyer to practise foreign law in this jurisdiction to a greater
extent than a locally registered foreign lawyer could be
authorised under a local registration certificate.
(2) Also, an interstate-registered foreign lawyer's right to practise
foreign law in this jurisdiction --
10 (a) is subject to --
(i) any conditions imposed by the Board under
section 195 in relation to the lawyer; and
(ii) any conditions imposed under the legal
profession rules as referred to in that section;
15 and
(b) is, to the greatest practicable extent and with all
necessary changes --
(i) the same as the interstate-registered foreign
lawyer's right to practise foreign law in the
20 lawyer's home jurisdiction; and
(ii) subject to any condition on the
interstate-registered foreign lawyer's right to
practise foreign law in that jurisdiction.
(3) If there is an inconsistency between conditions mentioned in
25 subsection (2)(a) and conditions mentioned in subsection (2)(b),
the conditions that are, in the opinion of the Board, more
onerous prevail to the extent of the inconsistency.
(4) An interstate-registered foreign lawyer must not practise foreign
law in this jurisdiction in a manner not authorised by this Act or
30 in contravention of any condition referred to in this section.
page 155
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 10 Interstate-registered foreign lawyers
s. 195
195. Additional conditions on practice of interstate-registered
foreign lawyers
(1) The Board may, by written notice to an interstate-registered
foreign lawyer practising foreign law in this jurisdiction, impose
5 any condition on the interstate-registered foreign lawyer's
practice that it may impose under this Act in relation to a locally
registered foreign lawyer.
(2) The legal profession rules may impose, or provide for the
imposition of, conditions on the registration of an
10 interstate-registered foreign lawyer.
(3) Conditions imposed under or referred to in this section must not
be more onerous than conditions applying to locally registered
foreign lawyers in the same or similar circumstances.
(4) A notice under this section must include an information notice
15 about the decision to impose a condition.
(5) An interstate-registered foreign lawyer may apply to the State
Administrative Tribunal for review of a decision of the Board to
impose a condition on the lawyer's registration under this
section or the legal profession rules.
20 196. Notification requirements for interstate-registered foreign
lawyers
(1) An interstate-registered foreign lawyer who establishes an office
in this jurisdiction must give written notice to the Board in
accordance with this section within 28 days after establishing
25 the office.
Penalty: a fine of $5 000.
(2) The notice must contain --
(a) the lawyer's name, date of birth and date of registration
to engage in legal practice in one or more foreign
30 countries; and
(b) the name of any law practice of which the lawyer is a
principal or employee, or any other person or body of
which the lawyer is an employee; and
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Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Interstate-registered foreign lawyers Division 10
s. 196
(c) if the lawyer practises on his or her own account, any
business names under which the lawyer practises foreign
law; and
(d) any condition to which the lawyer is subject in respect
5 of his or her practice of foreign law in the lawyer's
home jurisdiction or elsewhere; and
(e) an address in this jurisdiction for service of notices and
other documents on the lawyer; and
(f) a statement as to whether the lawyer has established, or
10 intends to establish, an office in this jurisdiction; and
(g) a statement as to whether the lawyer is entitled to
receive trust money, or to withdraw trust money from a
trust account; and
(h) the information prescribed by the regulations (if any).
15 (3) A notice under this section must be accompanied by --
(a) satisfactory evidence, in an approved form, that the
interstate-registered foreign lawyer has professional
indemnity insurance as required under this Act; and
(b) the required contribution to the Guarantee Fund under
20 this Act, if any.
(4) If an interstate-registered foreign lawyer who has indicated that
he or she does not intend to establish an office in this
jurisdiction subsequently establishes an office in this
jurisdiction, the lawyer must give notice to the Board within
25 14 days.
(5) For the purposes of this section, an interstate-registered foreign
lawyer establishes an office in this jurisdiction when the lawyer
first offers or provides legal services to the public in this
jurisdiction from an office maintained by the lawyer, or by a
30 principal of a law practice of which the practitioner is an
associate, for that purpose in this jurisdiction.
page 157
Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 11 Miscellaneous
s. 197
Division 11 -- Miscellaneous
197. Consideration and investigation of applicants and locally
registered foreign lawyers
(1) To help it consider whether or not to grant, renew, amend,
5 suspend or cancel registration under this Part, the Board may,
by notice to the applicant or locally registered foreign lawyer
require the applicant or lawyer --
(a) to give the Board specified documents or information; or
(b) to cooperate with any inquiries that the Board considers
10 appropriate.
(2) The Board may require the applicant or locally registered
foreign lawyer to verify documents or information by statutory
declaration or in another manner specified by the Board.
(3) A failure to comply with a notice under subsection (1) by the
15 date specified in the notice and in the way required by the notice
is a ground for making an adverse decision in relation to the
action being considered by the Board.
198. Register of locally registered foreign lawyers
(1) The Board must keep a register of the names of locally
20 registered foreign lawyers.
(2) The register must --
(a) state the conditions (if any) imposed on a foreign
lawyer's registration; and
(b) include other particulars prescribed by the regulations.
25 (3) The register may be kept in the way the Board decides.
(4) The register must be available for inspection, without charge, at
the Board's principal place of business during normal business
hours.
page 158
Legal Profession Bill 2007
Legal practice by foreign lawyers Part 8
Miscellaneous Division 11
s. 199
199. Publication of information about locally registered foreign
lawyers
The Board may publish, in circumstances that it considers
appropriate, the names of persons registered by it as foreign
5 lawyers under this Part and any relevant particulars concerning
those persons.
200. State Administrative Tribunal orders about conditions
The Board may apply to the State Administrative Tribunal for
an order that an Australian-registered foreign lawyer not
10 contravene a condition imposed under this Part.
201. Exemption by Board
(1) The Board may exempt an Australian-registered foreign lawyer
or class of Australian-registered foreign lawyers from
compliance with a specified provision of this Act or the
15 regulations, or from compliance with a specified rule or part of
a rule, that would otherwise apply to the foreign lawyer or class
of foreign lawyers.
(2) An exemption may be granted unconditionally or subject to
conditions specified in writing.
20 (3) The Board may revoke or vary any conditions imposed under
this section or impose new conditions.
202. Membership of professional association
An Australian-registered foreign lawyer is not required to join
(but may, if eligible, join) any professional association.
25 203. Review by State Administrative Tribunal
A foreign lawyer may apply to the State Administrative
Tribunal for review of a decision by the Board --
(a) to refuse to grant or renew registration under
section 170, 172 or 181; or
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Legal Profession Bill 2007
Part 8 Legal practice by foreign lawyers
Division 11 Miscellaneous
s. 203
(b) to impose a condition on registration under section 189;
or
(c) to amend, suspend or cancel registration under
section 175 or 181; or
5 (d) to suspend registration under section 184; or
(e) to impose a period under section 182 during which the
lawyer is not entitled to apply for registration.
page 160
Legal Profession Bill 2007
Trust money and trust accounts Part 9
Preliminary Division 1
s. 204
Part 9 -- Trust money and trust accounts
Division 1 -- Preliminary
204. Purposes
The purposes of this Part are as follows --
5 (a) to ensure trust money is held by law practices in a way
that protects the interests of person for or on whose
behalf money is held, both inside and outside this
jurisdiction;
(b) to minimise compliance requirement for law practices
10 that provide legal services within and outside this
jurisdiction;
(c) to ensure the Board can work effectively with
corresponding authorities in other jurisdictions in
relation to the regulation of trust money and trust
15 accounts.
205. Definitions
(1) In this Part --
"controlled money" means money received or held by a law
practice in respect of which the practice has a written
20 direction to deposit the money in an account (other than a
general trust account) over which the practice has or will
have exclusive control;
"controlled money account" means an account maintained by
a law practice with an ADI for the holding of controlled
25 money received by the practice;
"general trust account" means an account maintained in this
jurisdiction by a law practice with an ADI for the holding
of trust money received by the practice, other than
controlled money or transit money;
30 "investigation" means an investigation under Division 3 of the
affairs of a law practice;
page 161
Legal Profession Bill 2007
Part 9 Trust money and trust accounts
Division 1 Preliminary
s. 205
"investigator" means a person holding an appointment as an
investigator under Division 3;
"transit money" means money received by a law practice
subject to instructions to pay or deliver it to a third party,
5 other than an associate of the practice;
"trust account" means an account maintained by a law practice
with an ADI to hold trust money;
"trust money" means money entrusted to the law practice in
the course of or in connection with the provision of legal
10 services by the practice, and includes --
(a) money received by the practice on account of legal
costs in advance of providing the services; and
(b) controlled money received by the practice; and
(c) transit money received by the practice; and
15 (d) money received by the practice that is the subject of a
power, exercisable by the practice or an associate of
the practice, to deal with the money for or on behalf
of another person;
"trust records" includes the following --
20 (a) receipts;
(b) cheque butts or cheque requisitions;
(c) records of authorities to withdraw by electronic funds
transfer;
(d) deposit records (including deposit slips and duplicate
25 deposit slips);
(e) trust account ADI statements;
(f) trust account receipts and payments cash books;
(g) trust ledger accounts;
(h) records of monthly trial balances;
30 (i) records of monthly reconciliations;
(j) trust transfer journals;
page 162
Legal Profession Bill 2007
Trust money and trust accounts Part 9
Preliminary Division 1
s. 205
(k) statements of account as required to be furnished
under the regulations;
(l) registers required to be kept under the regulations;
(m) monthly statements required to be kept under the
5 regulations;
(n) files relating to trust transactions or bills of costs or
both;
(o) written directions, authorities or other documents
required to be kept under this Act;
10 (p) supporting information required to be kept under the
regulations in relation to powers to deal with trust
money.
(2) A reference in this Part to a law practice's trust account or trust
records includes a reference to an associate's trust account or
15 trust records.
(3) A reference in this Part to a power given to a law practice or an
associate of the practice to deal with money for or on behalf of
another person is a reference to a power given to the practice or
associate that is exercisable by --
20 (a) the practice alone; or
(b) an associate of the practice alone (otherwise than in a
private or personal capacity); or
(c) the practice or an associate of the practice jointly or
severally, or jointly and severally, with either or both of
25 the following --
(i) one or more associates of the practice;
(ii) the person or one or more nominees of the
person, for whom or on whose behalf the money
may or is to be dealt with under the power.
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Division 1 Preliminary
s. 206
206. Money involved in financial services or investments
(1) Money that is entrusted to or held by a law practice for or in
connection with --
(a) a financial service provided by the practice or an
5 associate of the practice in circumstances where the
practice or associate is required to hold an Australian
financial services licence covering the provision of the
service (whether or not such a licence is held at any
relevant time); or
10 (b) a financial service provided by the practice or an
associate of the practice in circumstances where the
practice or associate provides the service as a
representative of another person who carries on a
financial services business (whether or not the practice
15 or associate is an authorised representative at any
relevant time),
is not trust money for the purposes of this Act.
(2) Without limiting subsection (1), money that is entrusted to or
held by a law practice for or in connection with a managed
20 investment scheme, or mortgage financing, undertaken by the
practice is not trust money for the purposes of this Act.
(3) Without limiting subsections (1) and (2), money that is
entrusted to or held by a law practice for investment purposes,
whether on its own account or as agent, is not trust money for
25 the purposes of this Act, unless --
(a) the money was entrusted to or held by the practice --
(i) in the ordinary course of legal practice; and
(ii) primarily in connection with the provision of
legal services to or at the direction of the client;
30 and
(b) the investment is or is to be made --
(i) in the ordinary course of legal practice; and
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Trust money and trust accounts Part 9
Preliminary Division 1
s. 207
(ii) for the ancillary purpose of maintaining or
enhancing the value of the money pending
completion of the matter or further stages of the
matter or pending payment or delivery of the
5 money to or at the direction of the client.
(4) In this section --
"Australian financial services licence", "authorised
representative", "financial service" and "financial
services business" have the meanings given in the
10 Corporations Act Chapter 7.
207. Determinations about status of money
(1) This section applies to money received by a law practice if the
Board considers that there is doubt or a dispute as to whether
the money is trust money.
15 (2) The Board may determine that money is or is not trust money.
(3) The Board may revoke or modify a determination under this
section.
(4) While a determination under this section is in force that money
is trust money, the money is taken to be trust money for the
20 purposes of this Act.
(5) While a determination under this section is in force that money
is not trust money, the money is taken not to be trust money for
the purposes of this Act.
(6) This section has effect subject to a decision of a court or the
25 State Administrative Tribunal made in relation to the money
concerned.
208. Application of Part to law practices and trust money
(1) This Part applies to the following law practices in respect of
trust money received by them in this jurisdiction --
30 (a) a law practice that has an office in this jurisdiction,
whether or not the practice has an office in another
jurisdiction;
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Part 9 Trust money and trust accounts
Division 1 Preliminary
s. 209
(b) a law practice that does not have an office in any
jurisdiction at all.
(2) This Part applies to the following law practices in respect of
trust money received by them in another jurisdiction --
5 (a) a law practice that has an office in this jurisdiction and
in no other jurisdiction;
(b) a law practice that has an office in this jurisdiction and
in one or more other jurisdictions but not in the
jurisdiction in which the trust money was received,
10 unless the money is dealt with in accordance with the
corresponding law of another jurisdiction.
(3) However, this Part does not apply to --
(a) prescribed law practices or classes of law practices; or
(b) prescribed law practices or classes of law practices in
15 prescribed circumstances; or
(c) prescribed kinds of trust money; or
(d) prescribed kinds of trust money in prescribed
circumstances.
(4) A reference in this section to having an office in a jurisdiction is
20 a reference to having, or engaging in legal practice from, an
office or business address in the jurisdiction.
209. Trust money protocols
(1) The Board may enter into arrangements ("trust money
protocols") with corresponding authorities about any or all of
25 the following --
(a) determining the jurisdiction where a law practice
receives trust money;
(b) sharing information about whether, and (if so) how, trust
money is being dealt with under this Act or a
30 corresponding law.
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Trust money and trust accounts Part 9
Preliminary Division 1
s. 210
(2) For the purposes of this Act, to the extent that a trust money
protocol is relevant, the jurisdiction where a law practice
receives trust money is to be determined in accordance with the
protocols.
5 (3) The Board may enter into arrangements that amend, revoke or
replace a trust money protocol.
(4) A trust money protocol does not have effect in this jurisdiction
unless it is embodied or identified in the regulations.
210. When money is received
10 (1) For the purposes of this Act, a law practice receives money
when --
(a) the practice obtains possession or control of it directly;
or
(b) the practice obtains possession or control of it indirectly
15 as a result of its delivery to an associate of the practice;
or
(c) the practice, or an associate of the practice (otherwise
than in a private and personal capacity), is given a
power to deal with the money for or on behalf of another
20 person.
(2) For the purposes of this Act, a law practice or associate is taken
to have received money if the money is available to the practice
or associate by means of an instrument or other way of
authorising an ADI to credit or debit an amount to an account
25 with the ADI, including, for example, an electronic funds
transfer, credit card transaction or telegraphic transfer.
211. Discharge by legal practitioner associate of obligations of
law practice
(1) The following actions, if taken by a legal practitioner associate
30 of a law practice on behalf of the practice in relation to trust
money received by the practice, discharge the corresponding
obligations of the practice in relation to the money --
(a) the establishment of a trust account;
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Part 9 Trust money and trust accounts
Division 1 Preliminary
s. 212
(b) the maintenance of a trust account;
(c) the payment of trust money into and out of a trust
account and other dealings with trust money;
(d) the maintenance of trust records;
5 (e) engaging an external examiner to examine trust records;
(f) an action of a kind prescribed by the regulations.
(2) If the legal practitioner associate maintains a trust account in
relation to trust money received by the law practice, the
provisions of this Part and the regulations made for the purposes
10 of this Part apply to the associate in the same way as they apply
to a law practice.
(3) Subsection (1) does not apply to the extent that the associate is
prevented by the regulations from taking any action referred to
in that subsection.
15 212. Liability of principals of law practices
(1) A provision of this Part or the regulations 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
20 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 of the law practice.
25 213. Former practices, principals and associates
This Part applies in relation to former law practices and former
principals and associates of law practices in relation to conduct
occurring while they were respectively law practices, principals
and associates in the same way as it applies to law practices,
30 principals and associates, and so applies with any necessary
modifications.
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Trust money and trust accounts Part 9
Trust accounts and trust money Division 2
s. 214
Division 2 -- Trust accounts and trust money
214. Maintenance of general trust account
(1) A law practice that receives trust money to which this Part
applies must maintain a general trust account in this jurisdiction.
5 Penalty: a fine of $10 000.
(2) A law practice that is required to maintain a general trust
account in this jurisdiction must establish and maintain the
account in accordance with the regulations.
Penalty: a fine of $10 000.
10 (3) Subsection (1) does not apply to a law practice in respect of any
period during which the practice receives or holds only either or
both of the following --
(a) controlled money;
(b) transit money received in a form other than cash.
15 (4) Subject to the requirements of the regulations, a requirement of
this section for a law practice to maintain, or establish and
maintain, a general trust account in this jurisdiction does not
prevent the practice from maintaining, or establishing and
maintaining, more than one general trust account in this
20 jurisdiction, whether during the same period or during different
periods.
(5) Without limiting the other provisions of this section, the
regulations may provide that a law practice must not close a
general trust account except as permitted by the regulations,
25 either generally or in any prescribed circumstances.
215. Certain trust money to be deposited in general trust account
(1) In this section --
"appropriate person", in relation to trust money, means a
person legally entitled to give the law practice concerned
30 directions in respect of dealings with the trust money.
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Part 9 Trust money and trust accounts
Division 2 Trust accounts and trust money
s. 216
(2) Subject to section 222, as soon as practicable after receiving
trust money, a law practice must deposit the money in a general
trust account of the practice unless --
(a) the practice has a written direction by an appropriate
5 person to deal with it otherwise than by depositing it in
the account; or
(b) the money is controlled money; or
(c) the money is transit money; or
(d) the money is the subject of a power given to the practice
10 or an associate of the practice to deal with the money for
or on behalf of another person.
Penalty: a fine of $10 000.
(3) Subject to section 222, a law practice that has received money
that is the subject of a written direction mentioned in
15 subsection (2)(a) must deal with the money in accordance with
the direction --
(a) within the period (if any) specified in the direction; or
(b) subject to paragraph (a), as soon as practicable after it is
received.
20 Penalty: a fine of $10 000.
(4) The law practice must keep a written direction mentioned in
subsection (2)(a) for the period prescribed by the regulations.
Penalty: a fine of $5 000.
216. Holding, disbursing and accounting for trust money
25 (1) A law practice must --
(a) hold trust money deposited in a general trust account of
the practice exclusively for the person on whose behalf
it is received; and
(b) disburse the trust money only in accordance with a
30 direction given by the person.
Penalty: a fine of $5 000.
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Trust money and trust accounts Part 9
Trust accounts and trust money Division 2
s. 217
(2) Subsection (1) applies subject to an order of a court of
competent jurisdiction or as authorised by law.
(3) The law practice must account for the trust money as required
by the regulations.
5 Penalty: a fine of $5 000.
217. Manner of withdrawal of trust money from general trust
account
(1) A law practice must not withdraw trust money from a general
trust account otherwise than by cheque or electronic funds
10 transfer.
Penalty: a fine of $10 000.
(2) Without limiting subsection (1), the following are specifically
prohibited --
(a) cash withdrawals;
15 (b) ATM withdrawals or transfers;
(c) telephone banking withdrawals or 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 the contrary in any
20 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 money.
218. Controlled money
25 (1) As soon as practicable after receiving controlled money, a law
practice must deposit the money in the account specified in the
written direction relating to the money.
Penalty: a fine of $10 000.
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Part 9 Trust money and trust accounts
Division 2 Trust accounts and trust money
s. 219
(2) The law practice must hold controlled money deposited in a
controlled money account in accordance with subsection (1)
exclusively for the person on whose behalf it was received.
Penalty: a fine of $10 000.
5 (3) The law practice that holds controlled money deposited in a
controlled money account in accordance with subsection (1)
must not disburse the money except in accordance with --
(a) the written direction mentioned in that subsection; or
(b) a later written direction given by or on behalf of the
10 person on whose behalf the money was received.
Penalty: a fine of $10 000.
(4) The law practice must maintain the controlled money account,
and account for the controlled money, as required by the
regulations.
15 Penalty: a fine of $5 000.
(5) The law practice must keep a written direction mentioned in this
section for the period prescribed by the regulations.
Penalty: a fine of $5 000.
(6) The law practice must ensure that the controlled money account
20 is used for the deposit of controlled money received on behalf of
the person referred to in subsection (2), and not for the deposit
of controlled money received on behalf of any other person,
except to the extent that the regulations otherwise permit.
Penalty: a fine of $10 000.
25 (7) Subsection (3) applies subject to an order of a court of
competent jurisdiction or as authorised by law.
219. Manner of withdrawal of controlled money from controlled
money account
(1) A law practice must not withdraw controlled money from a
30 controlled money account otherwise than by cheque or
electronic funds transfer.
Penalty: a fine of $10 000.
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Trust money and trust accounts Part 9
Trust accounts and trust money Division 2
s. 220
(2) Without limiting subsection (1), the following are specifically
prohibited --
(a) cash withdrawals;
(b) ATM withdrawals or transfers;
5 (c) telephone banking withdrawals or 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 the contrary in any
directions given to the law practice concerned, even if the
10 directions are given by a person who is otherwise legally
entitled to give the law practice directions in respect of dealings
with the controlled money.
220. Transit money
(1) Subject to section 222, a law practice that has received transit
15 money must pay or deliver the money as required by the
instructions relating to the money --
(a) within the period (if any) specified in the instructions; or
(b) subject to paragraph (a), as soon as practicable after it is
received.
20 Penalty: a fine of $10 000.
(2) The law practice must account for the money as required by the
regulations.
Penalty: a fine of $5 000.
221. Trust money subject to specific powers
25 (1) Subject to section 222, a law practice must ensure that trust
money that is the subject of a power given to the practice or an
associate of the practice is dealt with by the practice or associate
only in accordance with the power relating to the money.
Penalty: a fine of $10 000.
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Part 9 Trust money and trust accounts
Division 2 Trust accounts and trust money
s. 222
(2) The law practice must account for the money in the way
prescribed by the regulations.
Penalty: a fine of $5 000.
222. Trust money received in the form of cash
5 (1) In this section --
"appropriate person", in relation to trust money, means a
person who is legally entitled to give the law practice
concerned directions in respect of dealings with the trust
money;
10 "general trust money" means trust money, other than --
(a) controlled money; and
(b) transit money; and
(c) money that is the subject of a power.
(2) A law practice must deposit general trust money received in the
15 form of cash in a general trust account of the practice.
Penalty: a fine of $10 000.
(3) If the law practice has a written direction by an appropriate
person to deal with general trust money received in the form of
cash otherwise than by first depositing it in a general trust
20 account of the practice --
(a) the money must nevertheless be deposited in a general
trust account of the practice in accordance with
subsection (2); and
(b) the money is thereafter to be dealt with in accordance
25 with any applicable terms of the direction so far as those
terms are not inconsistent with paragraph (a).
(4) Controlled money received in the form of cash must be
deposited in a controlled money account in accordance with
section 218.
30 (5) A law practice must deposit transit money received in the form
of cash in a general trust account of the practice before the
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Trust money and trust accounts Part 9
Trust accounts and trust money Division 2
s. 223
money is otherwise dealt with in accordance with the
instructions relating to the money.
Penalty: a fine of $10 000.
(6) A law practice must deposit trust money that is received in the
5 form of cash and is the subject of a power in a general trust
account (or a controlled money account in the case of controlled
money) of the practice before the money is otherwise dealt with
in accordance with the power.
Penalty: a fine of $10 000.
10 (7) This section has effect despite anything to the contrary in any
relevant direction, instruction or power.
223. Protection of trust money
(1) Money standing to the credit of a trust account maintained by a
law practice is not available for the payment of debts of the
15 practice or any of its associates.
(2) Money standing to the credit of a trust account maintained by a
law practice is not liable to be attached or taken in execution for
satisfying a judgment against the practice or any of its
associates.
20 (3) This section does not apply to money to which a law practice or
associate is entitled.
224. Intermixing money
(1) A law practice must not, otherwise than as permitted by
subsection (2), mix trust money with other money.
25 Penalty: a fine of $10 000.
(2) A law practice is 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.
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Part 9 Trust money and trust accounts
Division 2 Trust accounts and trust money
s. 225
225. Dealing with trust money: legal costs and unclaimed money
(1) A law practice may do any of the following, in relation to trust
money held in a general trust account or controlled money
account of the practice for a person --
5 (a) exercise a lien, including a general retaining lien, for the
amount of legal costs reasonably due and owing by the
person to the practice;
(b) withdraw money for payment to the practice's account
for legal costs owing to the practice if the relevant
10 procedures or requirements prescribed under this Act are
complied with;
(c) after deducting any legal costs properly owing to the
practice, deal with the balance as unclaimed money
under the Unclaimed Money Act 1990.
15 (2) Subsection (1) applies despite any other provision of this Part
(other than subsection (3)) but has effect subject to Part 10.
(3) Subsection (1) does not apply in relation to trust money that is
held by the person under another trust when it is paid into the
general trust account or controlled money account.
20 226. Deficiency in trust account
(1) An Australian legal practitioner commits an offence if the
practitioner, without reasonable excuse, causes --
(a) a deficiency in any trust account or trust ledger account;
or
25 (b) a failure to pay or deliver any trust money.
Penalty: a fine of $25 000.
(2) A reference in subsection (1) to an account includes a reference
to an account of the practitioner or of the practice of which the
practitioner is an associate.
30 (3) In subsection (1) --
"cause" includes to be responsible for;
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Trust money and trust accounts Part 9
Trust accounts and trust money Division 2
s. 227
"deficiency" in a trust account or trust ledger account includes
the non-inclusion or exclusion of the whole or any part of
an amount that is required to be included in the account.
227. Reporting certain irregularities and suspected irregularities
5 (1) As soon as practicable after a legal practitioner associate of a
law practice becomes aware that there is an irregularity in any
of the practice's trust accounts or trust ledger accounts, the
associate must give written notice of the irregularity to --
(a) the Board; and
10 (b) if a corresponding authority is responsible for the
regulation of the accounts concerned -- the
corresponding authority.
Penalty: a fine of $5 000.
(2) If an Australian legal practitioner believes on reasonable
15 grounds that there is an irregularity in connection with the
receipt, recording or disbursement of any trust money received
by a law practice of which the practitioner is not a legal
practitioner associate, the practitioner must, as soon as
practicable after forming the belief, give written notice of it
20 to --
(a) the Board; and
(b) if a corresponding authority is responsible for the
regulation of the accounts relating to the trust money
concerned -- the corresponding authority.
25 Penalty: a fine of $5 000.
(3) The validity of a requirement imposed on an Australian legal
practitioner under subsection (1) or (2) is not affected, and the
practitioner is not excused from complying with subsection (1)
or (2), on the ground that giving the notice may tend to
30 incriminate the practitioner.
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Part 9 Trust money and trust accounts
Division 2 Trust accounts and trust money
s. 228
(4) An Australian legal practitioner is not liable for any loss or
damage suffered by another person as a result of the
practitioner's compliance with subsection (1) or (2).
228. Keeping trust records
5 (1) A law practice must keep, in the form of a permanent record,
trust records in relation to trust money received by the practice.
Penalty: a fine of $5 000.
(2) In subsection (1) --
"permanent record", in relation to a trust record, means
10 printed or, on request, capable of being printed, in English
on paper or other material.
(3) The law practice must keep the trust records --
(a) in accordance with the regulations; and
(b) in a way that at all times discloses the true position in
15 relation to trust money received for or on behalf of any
person; and
(c) in a way that enables the trust records to be conveniently
and properly investigated or externally examined; and
(d) for a period determined in accordance with the
20 regulations.
Penalty: a fine of $5 000.
229. False names
(1) A law practice must not knowingly receive money or record
receipt of money in the practice's trust records under a false
25 name.
Penalty: a fine of $10 000.
(2) If a person on whose behalf trust money is received by a law
practice is commonly known by more than one name, the
practice must ensure that the practice's trust records record all
30 names by which the person is known.
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Trust money and trust accounts Part 9
Investigations Division 3
s. 230
Penalty: a fine of $10 000.
Division 3 -- Investigations
230. Appointment of investigators
(1) The Board, on its own initiative or at the request of the Trust, or
5 the Complaints Committee may, in writing, appoint a suitably
qualified person to investigate the affairs or specified affairs of
a law practice.
(2) The appointment may be made generally or for the law practice
specified in the instrument of appointment.
10 (3) The Board must notify the Complaints Committee, and the
Complaints Committee must notify the Board, when an
investigator it has appointed is investigating the affairs of a law
practice.
231. Investigations
15 (1) The instrument of appointment may authorise the investigator to
conduct either or both of the following --
(a) routine investigations on a regular or other basis;
(b) investigations in relation to particular allegations or
suspicions regarding trust money, trust property, trust
20 accounts or any other aspect of the affairs of the law
practice.
(2) The principal purposes of an investigation are to ascertain
whether the law practice has complied with or is complying
with the requirements of this Part and to detect and prevent
25 fraud and defaults (as defined in section 334), but this
subsection does not limit the scope of the investigation or the
powers of the investigator.
232. Application of Part 15
Part 15 applies to an investigation under this Division.
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Part 9 Trust money and trust accounts
Division 3 Investigations
s. 233
233. Investigator's report and confidentiality
(1) As soon as practicable after completing the investigation, the
investigator must give a written report of the investigation to the
Board or the Complaints Committee, whichever appointed the
5 investigator.
(2) The investigator must not disclose information included in the
report or acquired in carrying out the investigation except --
(a) to the practice that or person who is the subject of the
investigation or report; or
10 (b) as is necessary for properly conducting the investigation
and making the report of the investigation; or
(c) as provided in section 533.
Penalty: a fine of $10 000.
234. When costs of investigation are debt
15 (1) If --
(a) an investigator states in his or her report of an
investigation that there is evidence that a breach of this
Act has been committed or evidence that a default (as
defined in section 334) has occurred in relation to the
20 law practice whose affairs are under investigation; and
(b) the Board is satisfied that the breach or default is wilful
or of a substantial nature,
the Board may decide that the whole or part of the costs of
carrying out the investigation is payable to the Board and may
25 specify the amount payable.
(2) The amount specified by the Board is a debt owing to the Board
by the law practice whose affairs are under investigation.
(3) If an investigator is appointed under this Part at the request of
the Trust, the Board may require the Trust to pay part or all of
30 the costs of carrying out the investigation and the Trust must
comply with that requirement.
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Legal Profession Bill 2007
Trust money and trust accounts Part 9
External examinations Division 4
s. 235
Division 4 -- External examinations
235. Designation of external examiners
(1) The Board may, in writing, designate an accountant (a
"designated accountant") as being eligible to be appointed as
5 an external examiner.
(2) Only an accountant who is --
(a) a registered company auditor; or
(b) an employee or agent of the Board,
may be designated under subsection (1).
10 (3) Only designated accountants may be appointed as external
examiners.
(4) The Board may revoke an accountant's designation under this
section.
236. Designation and appointment of associates as external
15 examiners
(1) The Board may designate an associate of a law practice under
section 235 only if the Board is satisfied that it is appropriate to
do so.
(2) However, an associate of a law practice cannot be appointed as
20 an external examiner under this Division to examine the
practice's trust records.
237. Trust records to be externally examined
(1) A law practice must at least once in each financial year have its
trust records externally examined by an external examiner
25 appointed in accordance with the regulations.
Penalty: a fine of $10 000.
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Part 9 Trust money and trust accounts
Division 4 External examinations
s. 238
(2) The Board may appoint an external examiner to examine a law
practice's trust records if the Board is not satisfied --
(a) that the practice has had its trust records externally
examined as required by this section; or
5 (b) that an external examination of the practice's trust
records has been carried out in accordance with the
regulations.
(3) Without affecting the generality of section 250, this section has
effect subject to any exemptions provided by or given under the
10 regulations from the requirement to have trust records examined
as otherwise required by this section.
238. Examination of affairs in connection with examination of
trust records
(1) An external examiner appointed to examine a law practice's
15 trust records may examine the affairs of the practice for the
purposes of and in connection with an examination of the trust
records.
(2) If the law practice is an incorporated legal practice or
multi-disciplinary partnership, the reference in subsection (1) to
20 the affairs of the law practice extends to the affairs of the
incorporated legal practice or multi-disciplinary partnership or
of an associate, so far as they are relevant to trust money, trust
records and associated matters.
(3) A reference in this Division to "trust records" includes a
25 reference to the affairs of a law practice that may be examined
under this section for the purposes of and in connection with an
examination of the practice's trust records.
239. Final examination of trust records
(1) This section applies if a law practice --
30 (a) ceases to be authorised to receive trust money; or
(b) ceases to engage in legal practice in this jurisdiction.
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Trust money and trust accounts Part 9
External examinations Division 4
s. 240
(2) The law practice must appoint an external examiner to examine
the practice's trust records --
(a) in respect of the period since an external examination
was last conducted; and
5 (b) in respect of each period thereafter, comprising a
completed period of 12 months or any remaining partly
completed period, during which the practice continued
to hold trust money.
Penalty: a fine of $10 000.
10 (3) The law practice must lodge with the Board --
(a) a report of each examination under subsection (2) within
60 days after the end of the period to which the
examination relates; and
(b) a statutory declaration in the prescribed form within
15 60 days of ceasing to hold trust money.
Penalty: a fine of $10 000.
(4) If any Australian legal practitioner dies, the practitioner's legal
personal representative must comply with this section as if the
representative were the practitioner.
20 (5) Nothing in this section affects any other requirements under
this Part.
240. Carrying out examination
(1) Part 15 applies to an external examination.
(2) Subject to Part 15, an external examination of trust records must
25 be carried out in accordance with the regulations.
(3) Without limiting subsection (2), the regulations may provide for
the following --
(a) the standards to be adopted and the procedures to be
followed by external examiners;
30 (b) the form and content of an external examiner's report on
an external examination.
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s. 241
241. External examiner's report and confidentiality
(1) As soon as practicable after completing an external
examination, an external examiner must give a written report of
the examination to the Board.
5 (2) The examiner must not disclose information included in the
report or acquired in carrying out the examination except --
(a) to the law practice concerned or an associate of the law
practice; or
(b) as is necessary for properly conducting the examination
10 and making the report of the examination; or
(c) as provided in section 533.
Penalty: a fine of $10 000.
242. Law practice liable for costs of examination
(1) A law practice whose trust accounts have been externally
15 examined must pay the costs of the examination.
(2) If the Board appointed the external examiner to carry out the
examination, the Board may specify the amount payable as the
costs of the examination, and the specified amount is a debt
payable to it by the law practice.
20 Division 5 -- Provisions relating to ADIs
243. ADI not subject to certain obligations and liabilities
(1) An ADI at which a trust account is maintained by a law
practice --
(a) is not under any obligation to control or supervise
25 transactions in relation to the account or to see to the
application of money disbursed from the account; and
(b) does not have, in relation to any liability of the law
practice to the ADI, any recourse or right (whether by
way of set-off counterclaim, charge or otherwise)
30 against money in the account.
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s. 244
(2) Subsection (1) does not relieve an ADI from any liability to
which it is subject apart from this Act.
244. Reports, records and information
(1) An ADI at which a trust account is maintained must report any
5 deficiency in the account to the Board as soon as practicable
after becoming aware of the deficiency.
Penalty: a fine of $5 000.
(2) An ADI at which a trust account is maintained must report a
suspected offence in relation to the trust account to the Board as
10 soon as practicable after forming the suspicion.
Penalty: a fine of $5 000.
(3) An ADI must furnish to the Board reports about trust accounts
in accordance with the regulations.
Penalty: a fine of $5 000.
15 (4) An ADI at which a trust account is maintained must without
charge --
(a) produce for inspection or copying by an investigator or
external examiner any records relating to the trust
account or trust money deposited in the trust account;
20 and
(b) provide the investigator or external examiner with full
details of any transactions relating to the trust account or
trust money,
on demand by the investigator or external examiner and on
25 production to the ADI of evidence of the appointment of the
investigator or the external examiner in relation to the law
practice concerned.
Penalty: a fine of $5 000.
(5) Subsections (1) to (4) apply despite any legislation or duty of
30 confidence to the contrary.
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Division 6 Miscellaneous
s. 245
(6) An ADI or an officer or employee of an ADI is not liable to any
action for any loss or damage suffered by another person as a
result of --
(a) reporting a deficiency in accordance with subsection (1);
5 or
(b) making or furnishing a report in accordance with
subsection (2) or (3); or
(c) producing records or providing details in accordance
with subsection (4).
10 Division 6 -- Miscellaneous
245. 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
practising certificate authorising the receipt of trust money.
15 Penalty: a fine of $25 000.
(2) An incorporated legal practice must not receive trust money
unless --
(a) at least one legal practitioner director of the practice
holds an Australian practising certificate authorising the
20 receipt of trust money; or
(b) a person is holding an appointment under section 107 in
relation to the practice and the person holds an
Australian practising certificate authorising the receipt
of trust money; or
25 (c) the money is received during any period during which
the practice --
(i) does not have any legal practitioner directors;
and
(ii) is not in default of director requirements under
30 section 107,
so long as there was, immediately before the start of that
period, at least one legal practitioner director of the
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Miscellaneous Division 6
s. 246
practice who held an Australian practising certificate
authorising the receipt of trust money.
Penalty: a fine of $25 000.
246. Restrictions on receipt of trust money by interstate legal
5 practitioners
An interstate legal practitioner must not receive trust money in
this jurisdiction unless the practitioner --
(a) is authorised to receive trust money in the practitioner's
home jurisdiction; and
10 (b) has paid the required contributions (if any) to the
Guarantee Fund under this Act.
247. Application of Part to incorporated legal practices and
multi-disciplinary partnerships
(1) The obligations imposed on law practices by this Part, and any
15 other provisions of this Act relating to trust money and trust
accounts, apply to an incorporated legal practice or
multi-disciplinary partnership only in connection with legal
services provided by the practice or partnership.
(2) The regulations may provide that specified provisions of this
20 Part, and any other provisions of this Act relating to trust money
and trust accounts, do not apply to incorporated legal practices
or multi-disciplinary partnerships or both or apply to them with
specified modifications.
248. Disclosure to clients -- money not received or held as trust
25 money
(1) In this section --
"non-trust money" means money that is not trust money for
the purposes of this Act because of section 206 or because
of a determination under section 207.
30 (2) When money entrusted to a law practice is or becomes non-trust
money, the practice must, in accordance with this section and
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Division 6 Miscellaneous
s. 249
the regulations, notify the person who entrusted the money to
the practice that --
(a) the money is not treated as trust money for the purposes
of this Act and is not subject to any supervision,
5 investigation or audit requirements of this Act; and
(b) a claim against the Guarantee Fund cannot be made in
respect of the money.
Penalty: a fine of $5 000.
(3) The notification must be given, in writing, to the person at the
10 time --
(a) if the money was non-trust money when it was entrusted
to the law practice -- when the money is entrusted to
the practice; or
(b) if the money was trust money when it was entrusted to
15 the practice but becomes non-trust money because of a
determination under section 207 -- as soon as
practicable after the determination is made.
(4) The regulations may make provision for or with respect to the
form and manner in which notification required by this section
20 is to be given and the contents of the notification.
249. Disclosure of accounts used to hold money entrusted to law
practice or legal practitioner associate
(1) A law practice must in accordance with the regulations notify
the Board of the details required by the regulations of each
25 account maintained at any ADI in which the practice or any
legal practitioner associate of the practice holds money
entrusted to the practice or legal practitioner associate.
Penalty: a fine of $5 000.
(2) Subsection (1) applies whether or not the money is trust money
30 and whether or not section 206 or 207 applies to the money.
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Miscellaneous Division 6
s. 250
250. Regulations
(1) The regulations may make provision for or with respect to any
matter to which this Part relates, including for or with respect
to --
5 (a) the establishment, maintenance and closure of general
trust accounts and controlled money accounts; and
(b) the manner of receiving, depositing, withdrawing,
making records about and otherwise dealing with and
accounting for trust money; and
10 (c) without limiting paragraph (a) or (b) --
(i) the keeping and reconciliation of trust records;
and
(ii) the establishment and keeping of trust ledger
accounts; and
15 (iii) the establishment and keeping of records about
controlled money and transit money; and
(iv) the establishment and keeping of registers of
powers and estates where trust money is
involved; and
20 (v) the recording of information about the
investment of trust money; and
(vi) the furnishing of statements regarding trust
money;
and
25 (d) the notification to the Board of information relating
directly or indirectly to matters to which this Part
relates, including information about --
(i) trust accounts, trust money and trust records; and
(ii) the proposed or actual termination of a law
30 practice that holds trust money; and
(iii) the proposed or actual termination of engaging in
legal practice in this jurisdiction by a law
practice that holds trust money; and
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Division 6 Miscellaneous
s. 250
(iv) the proposed or actual restructuring of the
business of a law practice so that it no longer
holds or no longer will hold trust money;
and
5 (e) the creation and exercise of liens over trust money; and
(f) providing exemptions, or providing for the giving of
exemptions, from all or any specified requirements of
this Part.
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Costs disclosure and assessment Part 10
Preliminary Division 1
s. 251
Part 10 -- Costs disclosure and assessment
Division 1 -- Preliminary
251. Purposes
The purposes of this Part are as follows --
5 (a) to provide for law practices to make disclosures to
clients regarding legal costs;
(b) to regulate the making of costs agreements in respect of
legal services, including conditional costs agreements;
(c) to regulate the billing of costs for legal services;
10 (d) to provide a mechanism for the assessment of legal costs
and the setting aside of certain costs agreements.
252. Definitions
In this Part --
"bill" means a bill of costs for providing legal services;
15 "business day" means a day other than a Saturday, a Sunday or
a public holiday;
"conditional costs agreement" means a costs agreement that
provides that the payment of some or all of the legal costs
is conditional on the successful outcome of the matter to
20 which those costs relate, as referred to in section 283, but
does not include a costs agreement to the extent to which
section 285(1) applies;
"costs agreement" means an agreement about the payment of
legal costs;
25 "costs assessment" means an assessment of legal costs under
Division 8;
"costs determination" means a legal costs determination made
under section 275;
"disbursements" includes outlays;
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Division 1 Preliminary
s. 253
"itemised bill" means a bill that specifies in detail how the
legal costs are made up in a way that would allow them to
be assessed under Division 8;
"Legal Costs Committee" means the Legal Costs Committee
5 established under section 310;
"litigious matter" means a matter that involves, or is likely to
involve, the issue of proceedings in a court or tribunal;
"lump sum bill" means a bill that describes the legal services to
which it relates and specifies the total amount of the legal
10 costs;
"sophisticated client" means a client to whom because of
section 263(2)(c) or (d), disclosure under section 260
or 261(1) is or was not required;
"third party payer" has the meaning given in section 253;
15 "uplift fee" means additional legal costs (excluding
disbursements) payable under a costs agreement on the
successful outcome of the matter to which the agreement
relates.
253. Terms relating to third party payers
20 (1) For the purposes of this Part --
(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 for legal services provided to
25 the client; or
(ii) being under that obligation, has already paid all
or a part of those legal costs;
and
(b) a third party payer is an "associated third party payer"
30 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 person; and
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Application of this Part Division 2
s. 254
(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 to the law practice.
5 (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 practice on behalf of a
client is not on that account a third party payer in relation to that
client.
10 Division 2 -- Application of this Part
254. Application of Part -- first instructions rule
This Part applies to a matter if the client first instructs the law
practice in relation to the matter in this jurisdiction.
255. Part also applies by agreement or at client's election
15 (1) This Part applies to a matter if --
(a) either --
(i) this Part does not currently apply to the matter;
or
(ii) it is not possible to determine the jurisdiction in
20 which the client first instructs the law practice in
relation to the matter;
and
(b) either --
(i) the legal services are or will be provided wholly
25 or primarily in this jurisdiction; or
(ii) the matter has a substantial connection with this
jurisdiction,
or both; and
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Division 2 Application of this Part
s. 256
(c) either --
(i) the client accepts, in writing or by other conduct,
a written offer to enter into an agreement under
subsection (2)(a) in respect of the matter; or
5 (ii) the client gives a notification under
subsection (2)(b) in respect of the matter.
(2) For the purposes of subsection (1)(c), the client may --
(a) accept, in writing or by other conduct, a written offer
that complies with subsection (3) to enter into an
10 agreement with the law practice that this Part is to apply
to the matter; or
(b) notify the law practice in writing that the client requires
this Part to apply to the matter.
(3) An offer referred to in subsection (2)(a) must clearly state --
15 (a) that it is an offer to enter into an agreement that this Part
is to apply to 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.
20 (4) A notification has no effect for the purposes of subsection (2)(b)
if it is given after the period of 28 days after the law practice
discloses to the client (under a corresponding law) information
about the client's right to make a notification of that kind, but
nothing in this subsection prevents an agreement referred to in
25 subsection (2)(a) from coming into effect at any time.
256. Displacement of Part
(1) This section applies if this Part applies to a matter by the
operation of section 254 or 255.
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Application of this Part Division 2
s. 257
(2) This Part ceases to apply to a matter if --
(a) either --
(i) the legal services are or will be provided wholly
or primarily in another jurisdiction; or
5 (ii) the matter has a substantial connection with
another jurisdiction,
or both; and
(b) either --
(i) the client enters under the corresponding law of
10 the other jurisdiction into an agreement with the
law practice that the corresponding provisions of
the corresponding law apply to the matter; or
(ii) the client notifies under the corresponding law of
the other jurisdiction (and within the time
15 allowed by the corresponding law) the law
practice in writing that the client requires the
corresponding provisions of the corresponding
law to apply to the matter.
(3) Nothing in this section prevents the application of this Part to
20 the matter by means of a later agreement or notification under
section 255.
257. How and where a client first instructs a law practice
A client first instructs a law practice in relation to a matter in a
particular jurisdiction if the law practice first receives
25 instructions from or on behalf of the client in relation to the
matter in that jurisdiction, whether in person or by post,
telephone, fax, email or other form of communication.
258. When a matter has a substantial connection with this
jurisdiction
30 The regulations may prescribe the circumstances in which, or
the rules to be used to determine whether, a matter has or does
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Division 2 Application of this Part
s. 259
not have a substantial connection with this jurisdiction for the
purposes of this Part.
259. What happens when different laws apply to a matter
(1) This section applies if this Part applies to a matter for a period
5 and a corresponding law applies for another period.
(2) If this Part applied to a matter for a period and a corresponding
law applies to the matter afterwards, this Part continues to apply
in respect of legal costs (if any) incurred while this Part applied
to the matter.
10 (3) If a corresponding law applied to a matter for a period and this
Part applies to the matter afterwards, this Part does not apply in
respect of legal costs (if any) incurred while the corresponding
law applied to the matter, so long as the corresponding law
continues to apply in respect of those costs.
15 (4) However --
(a) the client may enter into a written agreement with the
law practice that the cost assessment provisions of this
Part are to apply in respect of all legal costs incurred in
relation to the matter, and Division 8 accordingly
20 applies in respect of those legal costs; or
(b) if the client enters into a written agreement with the law
practice that the cost assessment provisions of a
corresponding law are to apply in respect of all legal
costs incurred in relation to the matter, Division 8
25 accordingly does not apply in respect of those legal
costs.
(5) 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 facsimile transmission,
30 email or some other written form.
(6) If a corresponding law applied to a matter for a period and this
Part applies to the matter afterwards, this Part does not require
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Costs disclosure Division 3
s. 260
disclosure of any matters to the extent that they have already
been disclosed under a corresponding law.
(7) This section has effect despite any other provision of this Part.
Division 3 -- Costs disclosure
5 260. Disclosure of costs to clients
(1) A law practice must disclose to a client in accordance with this
Division --
(a) the basis on which legal costs will be calculated,
including whether a costs determination applies to any
10 of the legal costs; and
(b) the client's right to --
(i) negotiate a costs agreement with the law
practice; and
(ii) receive a bill from the law practice; and
15 (iii) request an itemised bill after receipt of a lump
sum bill; and
(iv) be notified under section 267 of any substantial
change to the matters disclosed under this
section;
20 and
(c) an estimate of the total legal costs if reasonably
practicable or, if that is not reasonably practicable --
(i) a range of estimates of the total legal costs; and
(ii) an explanation of the major variables that will
25 affect the calculation of those costs;
and
(d) details of the intervals (if any) at which the client will be
billed; and
(e) the rate of interest (if any) that the law practice charges
30 on overdue legal costs, whether that rate is a specific
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Division 3 Costs disclosure
s. 260
rate of interest or is a benchmark rate of interest (as
referred to in subsection (2)); and
(f) if the matter is a litigious matter, an estimate of --
(i) the range of costs that may be recovered if the
5 client is successful in the litigation; and
(ii) the range of costs the client may be ordered to
pay if the client is unsuccessful;
and
(g) the client's right to progress reports in accordance with
10 section 269; and
(h) details of the person whom the client may contact to
discuss the legal costs; and
(i) the following avenues that are open to the client in the
event of a dispute in relation to legal costs --
15 (i) costs assessment under Division 8;
(ii) the setting aside of a costs agreement under
section 288;
(iii) making a complaint under Part 13;
and
20 (j) any time limits that apply to the taking of any action
referred to in paragraph (i); and
(k) that the law of this jurisdiction applies to legal costs in
relation to the matter; and
(l) information about the client's right --
25 (i) to accept under a corresponding law a written
offer to enter into an agreement with the law
practice that the corresponding provisions of the
corresponding law apply to the matter; and
(ii) to notify under a corresponding law (and within
30 the time allowed by the corresponding law) the
law practice in writing that the client requires the
corresponding provisions of the corresponding
law to apply to the matter.
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s. 260
(2) For the purposes of subsection (1)(e), 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 or another body or
5 organisation, or by or under other legislation, and that is
publicly available.
(3) The regulations may make provision for or with respect to the
use of benchmark rates of interest, and in particular for or with
respect to permitting, regulating or preventing the use of
10 particular benchmark rates or particular kinds of benchmark
rates.
(4) For the purposes of subsection (1)(f), the disclosure must
include --
(a) a statement that an order by a court for the payment of
15 costs in favour of the client will not necessarily cover
the whole of the client's legal costs; and
(b) if applicable, a statement that disbursements may be
payable by the client even if the client enters into a
conditional costs agreement.
20 (5) A law practice is taken to have complied with the requirement
to disclose the details referred to in subsection (1)(b)(i), (ii)
and (iii), (g), (i), (j) and (l) if it provides a written statement in
or to the effect of a form prescribed by the regulations for the
purposes of this subsection at the same time as the other details
25 are disclosed as required by this section.
(6) A form prescribed for the purposes of subsection (5) may,
instead of itself containing details of the kind referred to in that
subsection, refer to publicly accessible sources of information
(such as an internet website) from which those details can be
30 obtained.
(7) The regulations may require the Board to develop a statement of
the relevant details and to revise it as necessary to keep it up to
date.
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Division 3 Costs disclosure
s. 261
261. Disclosure if another law practice is to be retained
(1) If a law practice intends to retain another law practice on behalf
of a client, the first law practice must disclose to the client the
details specified in section 260(1)(a), (c) and (d) in relation to
5 the other law practice, in addition to any information required to
be disclosed to the client under section 260.
(2) A law practice retained or to be retained on behalf of a client by
another law practice is not required to make disclosure to the
client under section 260, but must disclose to the other law
10 practice the information necessary for the other law practice to
comply with subsection (1).
(3) This section does not apply if the first law practice ceases to act
for the client in the matter when the other law practice is
retained.
15 262. How and when disclosure must be made
(1) Disclosure under section 260 must be made in writing before, or
as soon as practicable after, the law practice is retained in the
matter.
(2) Disclosure under section 261(1) must be made in writing before,
20 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 disclosure to the person as a client for
the purposes of sections 260 and 261.
263. Exceptions to requirement for disclosure
25 (1) In this section --
"GST" has the meaning given in the A New Tax System (Goods
and Services Tax) Act 1999 of the Commonwealth;
"public authority" means an authority or body (whether a body
corporate or not) established or incorporated for a public
30 purpose by a law of a jurisdiction or of the Commonwealth,
and includes a body corporate incorporated under a law of
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Costs disclosure Division 3
s. 263
a jurisdiction or of the Commonwealth in which a
jurisdiction or the Commonwealth has a controlling
interest.
(2) Disclosure under section 260 or 261(1) is not required to be
5 made in any of the following circumstances --
(a) if the total legal costs in the matter, excluding
disbursements, are not likely to exceed $1 500
(exclusive of GST) or the prescribed amount (whichever
is higher);
10 (b) if --
(i) the client has received one or more disclosures
under section 260 or 261(1) from the law
practice in the previous 12 months; and
(ii) the client has agreed in writing to waive the right
15 to disclosure; and
(iii) a principal of the law practice decides on
reasonable grounds that, having regard to the
nature of the previous disclosures and the
relevant circumstances, the further disclosure is
20 not warranted;
(c) if the client is --
(i) a law practice or an Australian legal practitioner;
or
(ii) a public company, a subsidiary of a public
25 company, a large proprietary company, a foreign
company, a subsidiary of a foreign company or a
registered Australian body (within the meaning
given to those terms in the Corporations Act); or
(iii) a financial services licensee (within the meaning
30 given in the Corporations Act); or
(iv) a liquidator, administrator or receiver (within the
meaning given to those terms in the Corporations
Act); or
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Division 3 Costs disclosure
s. 263
(v) a partnership that carries on the business of
providing professional services if the partnership
consists of more than 20 members or if the
partnership would be a large proprietary
5 company (within the meaning given in the
Corporations Act) if it were a company; or
(vi) a proprietary company (within the meaning given
in the Corporations Act) formed for the purpose
of carrying out a joint venture,