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Queensland
Legal Profession Bill 2007
Queensland
Legal Profession Bill 2007
Contents
Page
Chapter 1 Introduction
Part 1.1 Preliminary
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3 Main purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Part 1.2 Interpretation
Division 1 Dictionary
4 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Division 2 Meaning of various terms
5 Terms relating to lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6 Terms relating to legal practitioners . . . . . . . . . . . . . . . . . . . . . . . 35
7 Terms relating to associates and principals of law practices . . . . 36
8 Home jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9 Suitability matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
10 Information notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
11 References to convictions for offences. . . . . . . . . . . . . . . . . . . . . 40
12 Meaning of government legal officer and engaged in
government work and related matters . . . . . . . . . . . . . . . . . . . . . 41
Division 3 Jurisdiction of Supreme Court and related matters
13 Inherent jurisdiction of Supreme Court. . . . . . . . . . . . . . . . . . . . . 43
14 Jurisdiction of Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
15 Appeal period for appeal to Supreme Court or tribunal . . . . . . . . 44
16 Hearing and deciding particular action without a jury. . . . . . . . . . 44
Division 4 Other interpretation matters
17 Notes in text may indicate difference to language in
corresponding law .................................. 44
18 Timing for doing things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
19 Grounds that are reasonable in the circumstances . . . . . . . . . . . 45
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Legal Profession Bill 2007
20 References to parts in this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Chapter 2 General requirements for engaging in legal practice
Part 2.1 Preliminary
21 Simplified overview of ch 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Part 2.2 Reservation of legal work
Division 1 Preliminary
22 Main purposes for pt 2.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
23 Part does not apply to a person if authorised under a
Commonwealth law or a government legal officer . . . . . . . . . . . . 47
Division 2 Prohibitions
24 Prohibition on engaging in legal practice when not entitled . . . . . 48
25 Prohibition on representing or advertising entitlement to engage
in legal practice when not entitled . . . . . . . . . . . . . . . . . . . . . . . . 50
26 Associates who are disqualified or convicted persons . . . . . . . . . 50
Division 3 General
27 Professional discipline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Part 2.3 Admission of local lawyers
Division 1 Preliminary
28 Main purposes of pt 2.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
29 Definitions for pt 2.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Division 2 Eligibility and suitability for admission
30 Eligibility for admission to the legal profession under this Act . . . 53
31 Suitability for admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
32 Early consideration of suitability . . . . . . . . . . . . . . . . . . . . . . . . . . 54
33 Involvement of Supreme Court whether by referral or on appeal . 55
Division 3 Admission to the legal profession under this Act
34 Application for admission to the legal profession . . . . . . . . . . . . . 56
35 Role of Supreme Court relating to application for admission . . . . 56
36 Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
37 Roll of persons admitted to the legal profession as a lawyer . . . . 57
38 Local lawyer is officer of Supreme Court . . . . . . . . . . . . . . . . . . . 58
Division 4 Powers and functions of board
39 Role of the board relating to application for admission. . . . . . . . . 58
40 Consideration of applicant's eligibility and suitability . . . . . . . . . . 59
Division 5 Miscellaneous
41 Board may appear before Supreme Court . . . . . . . . . . . . . . . . . . 59
42 Fees payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
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Part 2.4 Legal practice by Australian legal practitioners
Division 1 Preliminary
43 Main purposes of pt 2.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Division 2 Legal practice in this jurisdiction by Australian legal
practitioners
44 Entitlement to practise in this jurisdiction . . . . . . . . . . . . . . . . . . . 60
Division 3 Local practising certificates generally
45 Local practising certificates generally. . . . . . . . . . . . . . . . . . . . . . 61
46 Suitability to hold local practising certificate . . . . . . . . . . . . . . . . . 61
47 Duration of local practising certificates. . . . . . . . . . . . . . . . . . . . . 63
48 Local legal practitioner is officer of Supreme Court . . . . . . . . . . . 63
Division 4 Grant or renewal of local practising certificates
49 Application for grant or renewal of local practising certificate. . . . 64
50 Manner of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
51 Grant or renewal of local practising certificate . . . . . . . . . . . . . . . 67
Division 5 Conditions on local practising certificates
52 Conditions generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
53 Conditions imposed by law society or bar association . . . . . . . . . 69
54 Applications relating to conditions . . . . . . . . . . . . . . . . . . . . . . . . 70
55 Statutory condition regarding conditions imposed on interstate
admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
56 Statutory condition regarding practice as solicitor . . . . . . . . . . . . 71
57 Statutory condition regarding notification of offence . . . . . . . . . . 72
58 Compliance with conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Division 6 Amendment, suspension or cancellation of local practising
certificates
59 Application of this division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
60 Grounds for amending, suspending or cancelling a local
practising certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
61 Amending, suspending or cancelling a local practising certificate 74
62 Operation of amendment, suspension or cancellation of local
practising certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
63 Immediate amendment or suspension of local practising
certificate ...................................... 76
64 Removal from local roll . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
65 Consensual amendment or cancellation etc. . . . . . . . . . . . . . . . . 78
66 Relationship of div 6 with ch 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
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Division 7 Special powers in relation to local practising
certificates--show cause events
67 Application for local practising certificate if show cause event
happened after first admission . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
68 Requirement if show cause event . . . . . . . . . . . . . . . . . . . . . . . . 81
69 Refusal, amendment, suspension or cancellation of local
practising certificate because of failure to show cause . . . . . . . . 81
70 Restriction on making further application . . . . . . . . . . . . . . . . . . . 82
71 Relationship of div 7 with ch 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Division 8 Further provisions relating to local practising certificate
72 Surrender and cancellation of local practising certificate . . . . . . . 83
73 Return of local practising certificate . . . . . . . . . . . . . . . . . . . . . . . 83
Division 9 Interstate legal practitioners
74 Requirement for interstate practising certificate and
professional indemnity insurance . . . . . . . . . . . . . . . . . . . . . . . . . 84
75 Extent of entitlement of interstate legal practitioner to practise in
this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
76 Additional condition on interstate legal practitioner engaging in
legal practice in this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . 86
77 Special provision about interstate legal practitioner engaging in
unsupervised legal practice in this jurisdiction . . . . . . . . . . . . . . . 86
78 Interstate legal practitioner is officer of Supreme Court . . . . . . . . 87
Division 10 Miscellaneous
79 Protocols . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
80 Consideration of applicant for local practising certificate and
certificate holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
81 Register of local practising certificates . . . . . . . . . . . . . . . . . . . . . 89
82 Supreme Court orders about conditions . . . . . . . . . . . . . . . . . . . 90
83 Regulatory authority may charge reasonable fees . . . . . . . . . . . . 90
Part 2.5 Suitability reports
Division 1 Preliminary
84 Main purpose of pt 2.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
85 Definitions for pt 2.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Division 2 Police reports
86 Relevant authority may ask for police report . . . . . . . . . . . . . . . . 92
Division 3 Health assessments
87 Health assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
88 Appointment of health assessor . . . . . . . . . . . . . . . . . . . . . . . . . . 93
89 Health assessment report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
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90 Payment for health assessment and report . . . . . . . . . . . . . . . . . 95
91 Use of health assessment report . . . . . . . . . . . . . . . . . . . . . . . . . 95
Division 4 General
92 Confidentiality of suitability report . . . . . . . . . . . . . . . . . . . . . . . . 96
93 Operation of pt 2.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Part 2.6 Inter-jurisdictional provisions regarding admission and
practising certificates
Division 1 Preliminary
94 Main purpose of pt 2.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
95 Relationship of this part with ch 4 . . . . . . . . . . . . . . . . . . . . . . . . 99
Division 2 Notifications to be given by local authorities to interstate
authorities
96 Notification to other jurisdictions about application for admission 99
97 Notification to other jurisdictions about removal from local roll. . . 99
98 Law society and bar association to notify other jurisdictions
about particular matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Division 3 Notifications to be given by lawyers to local authorities
99 Lawyer to give notice of removal in another jurisdiction . . . . . . . . 101
100 Lawyer to give notice of interstate orders . . . . . . . . . . . . . . . . . . . 101
101 Lawyer to give notice of foreign regulatory action . . . . . . . . . . . . 102
102 Provisions relating to requirement to notify . . . . . . . . . . . . . . . . . 102
Division 4 Taking of action by local authorities in response to
notifications received
103 Peremptory removal of local lawyer's name from local roll
following removal in another jurisdiction . . . . . . . . . . . . . . . . . . . . 103
104 Peremptory cancellation of local practising certificate following
removal of name from interstate roll . . . . . . . . . . . . . . . . . . . . . . . 103
105 Show cause procedure for removal of lawyer's name from local
roll following foreign regulatory action . . . . . . . . . . . . . . . . . . . . . 104
106 Show cause procedure for cancellation of local practising
certificate following foreign regulatory action . . . . . . . . . . . . . . . . 105
107 Order for non-removal of name or non-cancellation of local
practising certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
108 Local authority may give information to other local authority . . . . 107
Part 2.7 Incorporated legal practices and multi-disciplinary
partnerships
Division 1 Preliminary
109 Main purposes of pt 2.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
110 Definitions for pt 2.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
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Division 2 Incorporated legal practices providing legal services
111 Nature of incorporated legal practice . . . . . . . . . . . . . . . . . . . . . . 109
112 Non-legal services and businesses of incorporated legal
practices ...................................... 110
113 Corporations eligible to be incorporated legal practices. . . . . . . . 110
114 Notice of intention to start providing legal services . . . . . . . . . . . 111
115 Prohibition on corporations or directors etc. representing that
corporation is incorporated legal practice. . . . . . . . . . . . . . . . . . . 111
116 Notice of termination of provision of legal services . . . . . . . . . . . 112
Division 3 Legal practitioner directors, and other legal practitioners
employed by incorporated legal practices
117 Incorporated legal practice must have legal practitioner director . 113
118 Obligations of legal practitioner director relating to misconduct . . 114
119 Incorporated legal practice without legal practitioner director . . . 115
120 Obligations and privileges of an Australian legal practitioner who
is an officer or employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Division 4 Particular matters including application of other provisions
of relevant laws
121 Professional indemnity insurance. . . . . . . . . . . . . . . . . . . . . . . . . 117
122 Conflicts of interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
123 Disclosure obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
124 Effect of non-disclosure on provision of particular services . . . . . 119
125 Application of legal profession rules . . . . . . . . . . . . . . . . . . . . . . . 120
126 Requirements relating to advertising . . . . . . . . . . . . . . . . . . . . . . 120
127 Extension to incorporated legal practice of vicarious liability
relating to failure to account and dishonesty . . . . . . . . . . . . . . . . 121
128 Sharing of receipts, revenue or other income. . . . . . . . . . . . . . . . 121
129 Disqualified persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Division 5 Ensuring compliance with this Act by incorporated legal
practices
130 Commissioner or law society may audit incorporated legal
practice ....................................... 122
131 Application of chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
132 Banning of incorporated legal practices . . . . . . . . . . . . . . . . . . . . 123
133 Disqualification from managing incorporated legal practice . . . . . 125
134 Disclosure of information to the Australian Securities and
Investments Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Division 6 External administration
135 External administration proceedings under Corporations . . . . . . 127
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136 External administration proceedings under other legislation . . . . 128
137 Incorporated legal practice that is subject to receivership under
this Act and external administration under Corporations Act . . . . 128
138 Incorporated legal practice that is subject to receivership under
this Act and external administration under other legislation . . . . . 129
Division 7 Miscellaneous provisions relating to incorporated legal
practices
139 Cooperation between courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
140 Relationship of Act to constitution of incorporated legal
practice ..................................... 130
141 Relationship of Act to legislation establishing incorporated
legal practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
142 Relationship of Act to Corporations legislation and certain
other instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
143 Undue influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Division 8 Multi-disciplinary partnerships
144 Nature of multi-disciplinary partnership . . . . . . . . . . . . . . . . . . . . 132
145 Conduct of multi-disciplinary partnerships . . . . . . . . . . . . . . . . . . 132
146 Notice of intention to start practice in multi-disciplinary
partnership ..................................... 133
147 General obligations of legal practitioner partners. . . . . . . . . . . . . 133
148 Obligations of legal practitioner partner relating to misconduct . . 134
149 Actions of partner who is not an Australian legal practitioner. . . . 134
150 Obligations and privileges of Australian legal practitioner who
is partner or employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
151 Conflicts of interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
152 Disclosure obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
153 Effect of non-disclosure on provision of particular services . . . . . 137
154 Application of legal profession rules . . . . . . . . . . . . . . . . . . . . . . . 137
155 Requirements relating to advertising . . . . . . . . . . . . . . . . . . . . . . 137
156 Sharing of receipts, revenue or other income. . . . . . . . . . . . . . . . 138
157 Disqualified persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
158 Prohibition on partnership with particular partner who is not an
Australian legal practitioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
159 Undue influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Division 9 Miscellaneous
160 Obligations of practitioners not affected . . . . . . . . . . . . . . . . . . . . 140
161 Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
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Part 2.8 Legal practice by foreign lawyers
Division 1 Preliminary
162 Main purpose of pt 2.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
163 Definitions for pt 2.8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
164 This part does not apply to Australian legal practitioners . . . . . . . 142
Division 2 Practice of foreign law
165 Requirement for registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
166 Entitlement of Australian-registered foreign lawyer to practise in
this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
167 Scope of practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
168 Form of practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
169 Application of Australian professional ethical and practice
standards ....................................... 145
170 Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
171 Letterhead and other identifying documents . . . . . . . . . . . . . . . . 147
172 Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
173 Foreign lawyer employing Australian legal practitioner. . . . . . . . . 149
174 Trust money and trust accounts . . . . . . . . . . . . . . . . . . . . . . . . . . 149
175 Professional indemnity insurance. . . . . . . . . . . . . . . . . . . . . . . . . 150
176 Fidelity cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Division 3 Local registration of foreign lawyers generally
177 Local registration of foreign lawyers . . . . . . . . . . . . . . . . . . . . . . . 151
178 Duration of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
179 Local registered foreign lawyer is not officer of Supreme Court. . 152
Division 4 Application for grant or renewal of local registration
180 Application for grant or renewal of registration . . . . . . . . . . . . . . . 152
181 Manner of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
182 Requirements regarding applications for the grant or renewal
of registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Division 5 Grant or renewal of registration
183 Grant or renewal of local registration . . . . . . . . . . . . . . . . . . . . . . 155
184 Requirement to grant or renew registration if criteria satisfied . . . 156
185 Refusal to grant or renew registration . . . . . . . . . . . . . . . . . . . . . 157
Division 6 Amendment, suspension or cancellation of local
registration
186 Application of pt 2.8, div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
187 Grounds for amending, suspending or cancelling registration . . . 159
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188 Amending, suspending or cancelling registration . . . . . . . . . . . . . 160
189 Operation of amendment, suspension or cancellation of
registration ...................................... 161
190 Other ways of amending or cancelling registration. . . . . . . . . . . . 162
191 Relationship of this division with ch 4. . . . . . . . . . . . . . . . . . . . . . 163
Division 7 Special powers in relation to local registration--show cause
events
192 Applicant for local registration--show cause event . . . . . . . . . . . 163
193 Locally registered foreign lawyer--show cause event . . . . . . . . . 164
194 Refusal, amendment, suspension or cancellation of local
registration--failure to show cause . . . . . . . . . . . . . . . . . . . . . . . 164
195 Restriction on making further applications . . . . . . . . . . . . . . . . . . 165
196 Relationship of this division with pt 4.6 and ch 6 . . . . . . . . . . . . . 165
Division 8 Further provisions relating to local registration
197 Immediate suspension of registration. . . . . . . . . . . . . . . . . . . . . . 166
198 Surrender of local registration certificate and cancellation of
registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
199 Automatic cancellation of registration on grant of practising
certificate ........................................ 167
200 Suspension or cancellation of registration not to affect
disciplinary processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
201 Return of local registration certificate on amendment,
suspension or cancellation of registration . . . . . . . . . . . . . . . . . . 168
Division 9 Conditions on registration
202 Conditions generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
203 Conditions imposed by law society. . . . . . . . . . . . . . . . . . . . . . . . 169
204 Statutory condition regarding notification of offence . . . . . . . . . . 169
205 Conditions imposed by regulation . . . . . . . . . . . . . . . . . . . . . . . . 170
206 Compliance with conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Division 10 Interstate-registered foreign lawyers
207 Extent of entitlement of interstate-registered foreign lawyer to
practise in this jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
208 Additional conditions on practice of interstate-registered foreign
lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Division 11 Miscellaneous
209 Consideration and investigation of applicants and locally
registered foreign lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
210 Register of locally registered foreign lawyers . . . . . . . . . . . . . . . . 172
211 Publication of information about locally registered foreign
lawyers ....................................... 173
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212 Supreme Court orders about conditions . . . . . . . . . . . . . . . . . . . 173
213 Exemption by law society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
214 Membership of professional association . . . . . . . . . . . . . . . . . . . 173
215 Refund of fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Chapter 3 Conduct of legal practice
Part 3.1 Preliminary
216 Simplified outline of ch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Part 3.2 Manner of legal practice
Division 1 Preliminary
217 Main purposes of pt 3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
218 Definitions for pt 3.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Division 2 Rules for Australian legal practitioners and other
individuals
219 Rules for Australian legal practitioners engaged in practice as
solicitors and others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
220 Rules for Australian legal practitioners engaged in practice in the
manner of barristers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
221 Legal profession rules may provide for application to government
legal officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
222 Subject matter of legal profession rules . . . . . . . . . . . . . . . . . . . . 177
223 Public notice of proposed legal profession rules . . . . . . . . . . . . . 177
Division 3 Rules for incorporated legal practices and
multi-disciplinary partnerships
224 Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Division 4 Notice about making of legal professional rules and role of
committee
225 Minister to give notice of solicitors and barristers rules . . . . . . . . 179
226 Monitoring role of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
Division 5 General provisions for legal profession rules
227 Binding nature of legal profession rules . . . . . . . . . . . . . . . . . . . . 180
228 Legal profession rules may prohibit practices relating to
mortgage financing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
229 Relationship of legal profession rules to this Act and regulation . 181
230 Availability of rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Division 6 Administration rules
231 Rules other than legal profession rules . . . . . . . . . . . . . . . . . . . . 181
232 Indemnity rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
233 Relationship of administration rules to this Act and regulation. . . 187
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234 Relationship between legal profession rules and administration
rules ........................................... 187
235 Availability of administration rules . . . . . . . . . . . . . . . . . . . . . . . . 188
Part 3.3 Trust money and trust accounts
Division 1 Preliminary
236 Main purposes of pt 3.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
237 Definitions for pt 3.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
238 Money involved in financial services or investments . . . . . . . . . . 191
239 Decisions about status of money . . . . . . . . . . . . . . . . . . . . . . . . . 192
240 Application of part to law practices and trust money . . . . . . . . . . 192
241 Protocols for deciding where trust money is received . . . . . . . . . 193
242 When money is received . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
243 Discharge by legal practitioner associate of obligations of law
practice .......................................... 194
244 Liability of principals of law practice . . . . . . . . . . . . . . . . . . . . . . . 195
245 Former practices, principals and associates . . . . . . . . . . . . . . . . 195
246 Barristers not to receive trust money . . . . . . . . . . . . . . . . . . . . . . 195
Division 2 Trust accounts and trust money
247 Keeping general trust account . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
248 Certain trust money to be deposited in general trust account . . . 196
249 Holding, disbursing and accounting for trust money. . . . . . . . . . . 197
250 Withdrawing trust money from general trust account . . . . . . . . . . 198
251 Controlled money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
252 Withdrawing controlled money from controlled money account . . 200
253 Transit money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
254 Trust money subject to specific powers . . . . . . . . . . . . . . . . . . . . 201
255 Trust money received in the form of cash. . . . . . . . . . . . . . . . . . . 201
256 Protection of trust money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
257 Intermixing money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
258 Dealing with trust money--legal costs and unclaimed money . . . 203
259 Deficiency in trust account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
260 Reporting certain irregularities and suspected irregularities . . . . 204
261 Keeping trust records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
262 False names . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Division 3 Investigations
263 Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
264 Investigator's report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
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265 When costs of investigation are debt . . . . . . . . . . . . . . . . . . . . . . 206
266 Law society or commissioner may give information to
professional accounting association. . . . . . . . . . . . . . . . . . . . . . . 207
Division 4 External examinations
267 Appointment and qualifications of external examiner . . . . . . . . . . 208
268 Law practice must have trust records externally examined . . . . . 209
269 Restriction on appointment of associates as external examiner . 209
270 Law practice to give notice of external examiner . . . . . . . . . . . . . 210
271 Notice if person stops being external examiner . . . . . . . . . . . . . . 210
272 Examination of affairs in examining trust records. . . . . . . . . . . . . 210
273 Carrying out external examination . . . . . . . . . . . . . . . . . . . . . . . . 211
274 External examiner's report on external examination . . . . . . . . . . 211
275 External examiner to give other reports . . . . . . . . . . . . . . . . . . . . 211
276 Final examination of trust records . . . . . . . . . . . . . . . . . . . . . . . . 212
277 Law practice liable for costs of examination . . . . . . . . . . . . . . . . . 213
278 Disqualification of person as external examiner . . . . . . . . . . . . . . 213
279 Offence about carrying on external examination . . . . . . . . . . . . . 214
Division 5 Provisions relating to ADIs
280 Approval of ADIs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
281 ADIs not subject to certain obligations and liabilities . . . . . . . . . . 215
282 Reports, records and information . . . . . . . . . . . . . . . . . . . . . . . . . 215
Division 6 Prescribed accounts and Legal Practitioner Interest on
Trust Accounts Fund
Subdivision 1 Preliminary
283 Main purposes of pt 3.3, div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
284 Definitions for pt 3.3, div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
Subdivision 2 Prescribed accounts
285 Regulation for prescribed account . . . . . . . . . . . . . . . . . . . . . . . . 217
286 Deposits to prescribed account . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Subdivision 3 Interest on trust accounts paid to department
287 Arrangement with financial institution . . . . . . . . . . . . . . . . . . . . . . 218
Subdivision 4 Legal Practitioner Interest on Trust Accounts Fund
288 Establishment of fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
289 Payments from fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
290 Minister to decide distribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
291 Submission of budgets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
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Division 7 Miscellaneous
292 Restrictions on receipt of trust money . . . . . . . . . . . . . . . . . . . . . 222
293 Application of Act to incorporated legal practices and
multi-disciplinary partnerships . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
294 Disclosure to clients--money not received or held as trust
money ....................................... 223
295 Disclosure of accounts used to hold money entrusted to legal
practitioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
296 Report about law society's functions . . . . . . . . . . . . . . . . . . . . . . 224
297 Report about law practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
298 Regulation-making power relating to trust money and trust
accounts ....................................... 225
Part 3.4 Costs disclosure and assessment
Division 1 Preliminary
299 Main purposes of pt 3.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
300 Definitions for pt 3.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
301 Terms relating to third party payers . . . . . . . . . . . . . . . . . . . . . . . 228
Division 2 Application of this part
302 Application of part--first instructions rule. . . . . . . . . . . . . . . . . . . 229
303 Part also applies by agreement or at client's election. . . . . . . . . . 229
304 Displacement of part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
305 How and where does a client first instruct a law practice . . . . . . . 231
306 When does a matter have a substantial connection with this
jurisdiction ........................................ 231
307 What happens when different laws apply to a matter. . . . . . . . . . 231
Division 3 Costs disclosure
308 Disclosure of costs to clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
309 Disclosure if another law practice is to be retained . . . . . . . . . . . 234
310 How and when must disclosure be made to a client . . . . . . . . . . 235
311 Exceptions to requirement for disclosure . . . . . . . . . . . . . . . . . . . 235
312 Additional disclosure--settlement of litigious matters . . . . . . . . . 238
313 Additional disclosure--uplift fees . . . . . . . . . . . . . . . . . . . . . . . . . 238
314 Form of disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
315 Ongoing obligation to disclose . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
316 Effect of failure to disclose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
317 Progress reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240
318 Disclosure to associated third party payers . . . . . . . . . . . . . . . . . 241
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Division 4 Legal costs generally
319 On what basis are legal costs recoverable . . . . . . . . . . . . . . . . . . 242
320 Security for legal costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
321 Interest on unpaid legal costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Division 5 Costs agreements
322 Making costs agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
323 Conditional costs agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
324 Conditional costs agreements involving uplift fees . . . . . . . . . . . . 245
325 Contingency fees are prohibited. . . . . . . . . . . . . . . . . . . . . . . . . . 246
326 Effect of costs agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
327 Particular costs agreements are void . . . . . . . . . . . . . . . . . . . . . . 246
328 Setting aside costs agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Division 6 Billing
329 Legal costs can not be recovered unless bill has been served . . 250
330 Bills. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250
331 Notification of client's rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
332 Request for itemised bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
333 Interim bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Division 7 Costs assessment
334 Definition for div 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
335 Application by clients or third party payers for costs assessment 253
336 Application for costs assessment by law practice retaining
another law practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
337 Application for costs assessment by law practice giving bill. . . . . 257
338 Consequences of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
339 Persons to be notified of application. . . . . . . . . . . . . . . . . . . . . . . 258
340 Assessment of complying costs agreements . . . . . . . . . . . . . . . . 258
341 Criteria for assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
342 Costs of assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
343 Referral for disciplinary action . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
344 Contracting out of div 7 by sophisticated clients etc. . . . . . . . . . . 261
Division 8 Speculative personal injury claims
345 Main purpose of div 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
346 Definitions for div 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
347 Maximum payment for conduct of speculative personal injury
claim ......................................... 262
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Division 9 Miscellaneous
348 Application of part to incorporated legal practices and
multi-disciplinary partnerships . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
349 Imputed acts, omission or knowledge . . . . . . . . . . . . . . . . . . . . . 264
350 Preservation of confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
351 Preservation of privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
352 Ordinary protection and immunity allowed . . . . . . . . . . . . . . . . . . 265
Part 3.5 Professional indemnity insurance
353 Professional indemnity insurance. . . . . . . . . . . . . . . . . . . . . . . . . 266
354 Continuing obligation for professional indemnity insurance . . . . . 267
Part 3.6 Fidelity cover
Division 1 Preliminary
355 Main purpose of pt 3.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
356 Definitions for pt 3.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268
357 Application of pt 3.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
358 Time of default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
Division 2 Fidelity fund
359 Establishment of fidelity fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
360 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
361 Limitation on borrowing powers of law society for fidelity fund . . . 271
362 Fund to be kept in separate account . . . . . . . . . . . . . . . . . . . . . . 271
363 Moneys payable into fidelity fund . . . . . . . . . . . . . . . . . . . . . . . . . 272
364 Expenditure from fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
365 Audit of accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
366 Law society may delegate its powers in relation to the fidelity
fund to a committee of management . . . . . . . . . . . . . . . . . . . . . . 273
367 Minister may require report about fund . . . . . . . . . . . . . . . . . . . . 273
368 Contribution to fidelity fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274
369 Levy for benefit of fidelity fund . . . . . . . . . . . . . . . . . . . . . . . . . . . 274
370 Law society may advance moneys from its general funds to
fidelity fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275
Division 3 Defaults to which this part applies
371 Meaning of relevant jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . 275
372 Defaults to which this part applies . . . . . . . . . . . . . . . . . . . . . . . . 276
373 Defaults relating to financial services or investments. . . . . . . . . . 277
Division 4 Claims about defaults
374 Claims about defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
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375 Time limit for making claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
376 Advertisements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
377 Time limit for making claims following advertisement. . . . . . . . . . 280
378 Claims not affected by certain matters . . . . . . . . . . . . . . . . . . . . . 280
379 Investigation of claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
380 Advance payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
Division 5 Deciding claims
381 Law society to decide claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
382 Maximum amount allowable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
383 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
384 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284
385 Reduction of claim because of other benefits . . . . . . . . . . . . . . . 284
386 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
387 Proceedings brought under right of subrogation . . . . . . . . . . . . . 285
388 Repayment of surplus amount . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
389 Notification of delay in making decision . . . . . . . . . . . . . . . . . . . . 286
390 Notification of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
Division 6 Right of action against external examiner
391 External examiner guilty of neglect . . . . . . . . . . . . . . . . . . . . . . . 287
Division 7 Appeals
392 Appeal against decision on claim . . . . . . . . . . . . . . . . . . . . . . . . . 288
393 Appeal against failure to decide claim within 1 year. . . . . . . . . . . 289
394 Proceedings on appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290
Division 8 Payments from fidelity fund for defaults
395 Payments for defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290
396 Caps on payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
397 Sufficiency of fidelity fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
Division 9 Claims by law practices or associates
398 Claims by law practices or associates about defaults . . . . . . . . . 292
399 Claims by law practices or associates about notional defaults. . . 293
Division 10 Defaults involving interstate elements
400 Concerted interstate defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
401 Defaults involving interstate elements if committed by 1
associate only ..................................... 294
Division 11 Inter-jurisdictional provisions
402 Protocols . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
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403 Forwarding claims to corresponding authority in another
jurisdiction ..................................... 296
404 Investigation of defaults to which this part applies . . . . . . . . . . . . 296
405 Investigation of defaults to which a corresponding law applies . . 296
406 Investigation of concerted interstate defaults and other defaults
involving interstate elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
407 Recommendations by law society to corresponding authority . . . 297
408 Recommendations to and decisions by law society after
receiving recommendations from corresponding authority. . . . . . 298
409 Request to another jurisdiction to investigate aspects of claim . . 298
410 Request from another jurisdiction to investigate aspects of claim 299
411 Cooperation with other authorities . . . . . . . . . . . . . . . . . . . . . . . . 299
Division 12 Miscellaneous
412 Interstate legal practitioner becoming authorised to withdraw
from local trust account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299
413 Application of part to incorporated legal practices . . . . . . . . . . . . 300
414 Application of part to multi-disciplinary partnerships . . . . . . . . . . 301
415 Application of part to Australian lawyers whose practising
certificates have lapsed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301
Chapter 4 Complaints and discipline
Part 4.1 Preliminary
416 Main purposes of ch 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 302
417 Application of chapter to lawyers, former lawyers and former
practitioners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
Part 4.2 Key concepts
418 Meaning of unsatisfactory professional conduct. . . . . . . . . . . . . . 303
419 Meaning of professional misconduct . . . . . . . . . . . . . . . . . . . . . . 303
420 Conduct capable of constituting unsatisfactory professional
conduct or professional misconduct . . . . . . . . . . . . . . . . . . . . . . . 304
421 Meaning of respondent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305
Part 4.3 Application of this chapter
422 Practitioners to whom this chapter applies . . . . . . . . . . . . . . . . . . 306
423 Conduct to which this chapter applies--generally . . . . . . . . . . . . 306
424 Conduct to which this chapter applies--insolvency, serious
offences and tax offences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
425 Chapter also applies to law practice employees. . . . . . . . . . . . . . 308
426 Chapter also extends to other persons in particular
circumstances ................................. 308
427 Chapter also applies to unlawful operators . . . . . . . . . . . . . . . . . 309
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Part 4.4 Complaints about Australian legal practitioners
428 Conduct about which complaint may be made. . . . . . . . . . . . . . . 309
429 Making a complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
430 Complaints made over 3 years after conduct concerned . . . . . . . 310
431 Further information and verification . . . . . . . . . . . . . . . . . . . . . . . 311
432 Summary dismissal of complaints . . . . . . . . . . . . . . . . . . . . . . . . 312
433 Withdrawal of complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
434 Commissioner may delay dealing with complaint . . . . . . . . . . . . . 314
435 Referral by commissioner to law society or bar association . . . . . 314
436 Commissioner investigating a complaint or investigation matter . 315
437 Australian lawyer to be notified of complaint or investigation
matter ........................................ 316
438 Submissions by respondent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
439 Role of law society or bar association . . . . . . . . . . . . . . . . . . . . . 318
Part 4.5 Mediation for complaints involving consumer dispute
440 Definition for pt 4.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
441 Mediation of complaint involving consumer dispute solely . . . . . . 320
442 Mediation of hybrid complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
Part 4.6 Investigations
443 Powers for investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
444 Referral of costs for assessment . . . . . . . . . . . . . . . . . . . . . . . . . 322
445 Regulation may provide for covering cost of assessment under
s 443 or 444 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
446 Powers of commissioner relating to complaint or investigation
matter relating to unlawful operator . . . . . . . . . . . . . . . . . . . . . . . 323
Part 4.7 Decision of commissioner
447 Decision of commissioner to start proceeding under ch 4 . . . . . . 323
448 Dismissal of complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
449 Record of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
Part 4.8 General procedural matters
450 Duty to deal with complaints efficiently and expeditiously . . . . . . 324
451 Duty to inform complainant about action taken for complaint. . . . 325
Part 4.9 Proceedings in disciplinary body
452 Starting proceeding before a disciplinary body . . . . . . . . . . . . . . 325
453 Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
454 Joinder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326
455 Variation of discipline application . . . . . . . . . . . . . . . . . . . . . . . . . 326
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456 Decisions of tribunal about an Australian legal practitioner . . . . . 327
457 Orders to be filed in Supreme Court and information notices to
be given to parties etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
458 Decisions of committee about discipline application . . . . . . . . . . 330
459 Orders to be filed in Supreme Court and information notices to
be given to parties etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
460 Interlocutory and interim orders . . . . . . . . . . . . . . . . . . . . . . . . . . 332
461 Compliance with decisions and orders. . . . . . . . . . . . . . . . . . . . . 332
462 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
463 Other remedies not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
Part 4.10 Compensation orders
464 Meaning of compensation order. . . . . . . . . . . . . . . . . . . . . . . . . . 334
465 Compensation order relating to pecuniary loss . . . . . . . . . . . . . . 335
466 Effect of compensation order . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335
467 Other remedies not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
Part 4.10A Appeals from decisions of disciplinary bodies
468 Appeal may be made to Court of Appeal from tribunal's decision 336
469 Appeal to tribunal against committee's decision. . . . . . . . . . . . . . 336
470 Appeal to Court of Appeal in relation to a decision of committee. 337
Part 4.11 Publicising disciplinary action
471 Definition for pt 4.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
472 Discipline register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
473 Other means of publicising disciplinary action . . . . . . . . . . . . . . . 339
474 Quashing of disciplinary action. . . . . . . . . . . . . . . . . . . . . . . . . . . 340
475 Liability for publicising disciplinary action . . . . . . . . . . . . . . . . . . . 340
476 Disciplinary action taken because of infirmity, injury or illness . . . 341
477 General provisions about disclosure of information . . . . . . . . . . . 341
Part 4.12 Inter-jurisdictional provisions
478 Protocols . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342
479 Request to another jurisdiction to investigate complaint or
investigation matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
480 Request from another jurisdiction to investigate complaint . . . . . 343
481 Sharing of information with corresponding authorities . . . . . . . . . 343
482 Cooperation with other authorities . . . . . . . . . . . . . . . . . . . . . . . . 344
483 Request for information relevant to a complaint or investigation
matter ........................................... 344
484 Compliance with recommendations or orders made under
corresponding laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
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485 Other powers or functions not affected. . . . . . . . . . . . . . . . . . . . . 345
Part 4.13 Miscellaneous
486 Information about complaints procedure . . . . . . . . . . . . . . . . . . . 346
487 Protection from liability for notification of conduct or making a
complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
488 Failure to comply with order of a disciplinary body. . . . . . . . . . . . 347
489 Performance criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347
490 Annual and other reports to the Minister . . . . . . . . . . . . . . . . . . . 347
491 Confidentiality of client communications . . . . . . . . . . . . . . . . . . . 348
492 Waiver of legal professional privilege or benefit of duty of
confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
Chapter 5 External intervention
Part 5.1 Preliminary
493 Main purpose of ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349
494 Definitions for ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
495 Application of ch 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350
496 Application of chapter to other persons . . . . . . . . . . . . . . . . . . . . 351
Part 5.2 Starting external interventions
497 Circumstances warranting external intervention. . . . . . . . . . . . . . 351
498 Decision regarding external intervention . . . . . . . . . . . . . . . . . . . 353
Part 5.3 Supervisors of trust money
499 Appointment of supervisor of trust money . . . . . . . . . . . . . . . . . . 354
500 Notice of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355
501 Effect of service of notice of appointment . . . . . . . . . . . . . . . . . . 356
502 Role of supervisor of trust money. . . . . . . . . . . . . . . . . . . . . . . . . 357
503 Records of law practice under supervision. . . . . . . . . . . . . . . . . . 358
504 Termination of supervisor's appointment . . . . . . . . . . . . . . . . . . . 359
Part 5.4 Managers
505 Appointment of manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359
506 Notice of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360
507 Effect of service of notice of appointment . . . . . . . . . . . . . . . . . . 361
508 Role of manager. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362
509 Records and accounts of law practice under management . . . . . 364
510 Deceased estates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
511 Termination of manager's appointment . . . . . . . . . . . . . . . . . . . . 365
Part 5.5 Receivers
512 Appointment of receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
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513 Notice of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
514 Effect of service of notice of appointment . . . . . . . . . . . . . . . . . . 368
515 Role of receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
516 Records and accounts of law practice under receivership . . . . . . 371
517 Power of receiver to take possession of regulated property. . . . . 371
518 Power of receiver to take delivery of regulated property . . . . . . . 372
519 Power of receiver to deal with regulated property . . . . . . . . . . . . 372
520 Power of receiver to require documents or information . . . . . . . . 373
521 Examinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
522 Lien for costs on regulated property of the law practice . . . . . . . . 374
523 Regulated property of a law practice is not to be attached . . . . . 375
524 Recovery of regulated property where there has been a breach
of trust etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375
525 Improperly destroying property etc. . . . . . . . . . . . . . . . . . . . . . . . 377
526 Deceased estates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
527 Termination of receiver's appointment . . . . . . . . . . . . . . . . . . . . . 378
Part 5.6 General
528 Conditions on appointment of external intervener for a law
practice ....................................... 379
529 Status of acts of external intervener for a law practice . . . . . . . . . 380
530 Eligibility for reappointment or authorisation . . . . . . . . . . . . . . . . 380
531 Appeal against appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
532 Directions of Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
533 Manager and receiver appointed for law practice. . . . . . . . . . . . . 381
534 ADI disclosure requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
535 Fees, legal costs and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 382
536 Reports by external intervener for law practice . . . . . . . . . . . . . . 383
537 Confidentiality for external intervener for law practice . . . . . . . . . 384
538 Provisions relating to requirements under this chapter . . . . . . . . 385
539 Obstruction of external intervener . . . . . . . . . . . . . . . . . . . . . . . . 386
Chapter 6 Investigations
Part 6.1 Preliminary
540 Main purpose of ch 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
541 Definitions for ch 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
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Part 6.2 Requirements relating to documents, information and other
assistance
542 Requirements that may be imposed for investigations,
examinations and audits under parts 3.3 and 2.7 . . . . . . . . . . . . 387
543 Requirements that may be imposed for investigations under ch 4 387
544 Provisions relating to requirements under this part . . . . . . . . . . . 388
Part 6.3 Entry to places
545 Power to enter places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
546 Entry with consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390
547 Application for warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
548 Issue of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
549 Application by electronic communication and duplicate warrant . 392
550 Defect in relation to a warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . 394
551 Warrants--procedure before entry . . . . . . . . . . . . . . . . . . . . . . . . 395
Part 6.4 Powers of investigators after entry
552 General powers of investigator after entering places . . . . . . . . . . 395
553 Power to require reasonable help or information . . . . . . . . . . . . . 396
Part 6.5 Power of investigators to seize evidence
554 Seizing evidence at place entered under s 545 . . . . . . . . . . . . . . 397
555 Securing seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
556 Tampering with seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
557 Powers to support seizure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
558 Receipt for seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399
559 Forfeiture of seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399
560 Dealing with forfeited things etc.. . . . . . . . . . . . . . . . . . . . . . . . . . 400
561 Return of seized things. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400
562 Access to seized things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Part 6.6 General enforcement matters
563 Notice of damage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
564 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402
565 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . 402
566 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . 402
567 Obstructing investigators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403
568 Impersonation of investigators . . . . . . . . . . . . . . . . . . . . . . . . . . . 403
Part 6.7 Provisions about investigations relating to incorporated
legal practices
569 Definition for pt 6.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404
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570 Application of part to audits and investigations . . . . . . . . . . . . . . 404
571 Examination of persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
572 Inspection of books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
573 Power to hold hearings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
574 Failure to comply with investigation . . . . . . . . . . . . . . . . . . . . . . . 407
Part 6.8 Investigators
575 Appointment, qualifications etc. of investigators. . . . . . . . . . . . . . 408
576 Appointment conditions and limit on powers . . . . . . . . . . . . . . . . 409
577 Issue of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
578 Production or display of identity card . . . . . . . . . . . . . . . . . . . . . . 410
579 When investigator ceases to hold office . . . . . . . . . . . . . . . . . . . . 410
580 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
581 Return of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
Chapter 7 Establishment of entities for this Act, and related matters
Part 7.1 Legal Services Commissioner
Division 1 Preliminary
582 Main purposes of pt 7.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
Division 2 Appointment
583 Legal Services Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . 411
584 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412
585 Term of appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412
586 Remuneration and conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 412
587 Acting commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
588 Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
589 Resignation of commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
Division 3 Functions
590 Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414
Division 4 Legal Services Commission
591 Establishment of commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414
592 Staff and other resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 414
593 Preservation of rights if public service officer appointed or
engaged ....................................... 415
594 Preservation of rights if person becomes public service officer . . 415
595 Preservation of rights if public service officer seconded . . . . . . . 415
Division 5 Miscellaneous matters about the commissioner
596 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416
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597 Arrangements with regulatory authority about copies of
documents ..................................... 417
Part 7.2 Legal Practice Tribunal
Division 1 Preliminary
598 Main purpose of pt 7.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417
Division 2 Establishment of Legal Practice Tribunal and related
matters
599 Establishment, members and chairperson of tribunal . . . . . . . . . 417
600 Way tribunal is to operate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417
601 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
602 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
603 Rule-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
604 Practice directions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
605 Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419
606 Tribunal's seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419
Division 3 Panels, members of panels and related matters
607 Establishment of panels for helping the tribunal. . . . . . . . . . . . . . 419
608 Appointment of panel members . . . . . . . . . . . . . . . . . . . . . . . . . . 420
609 Remuneration and appointment conditions of panel members . . 420
610 Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421
611 Resignation of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421
Division 4 Role of tribunal members and panel members
612 Role of members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422
613 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422
Division 5 Constitution of tribunal for hearings
614 Constitution of tribunal for hearings . . . . . . . . . . . . . . . . . . . . . . . 423
Division 6 Other provisions
615 Institution of proceedings by the commissioner . . . . . . . . . . . . . . 423
616 Contempt of tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424
617 Conduct that is contempt and an offence . . . . . . . . . . . . . . . . . . . 424
618 Protection of members etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424
Part 7.3 Legal Practice Committee
Division 1 Preliminary
619 Main purpose of pt 7.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
620 Definitions for pt 7.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
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Division 2 Establishment, membership of committee, functions and
powers
621 Establishment of committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
622 Committee members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
623 Term of appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426
624 Functions and powers of committee. . . . . . . . . . . . . . . . . . . . . . . 426
625 Administrative support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426
Division 3 Provisions about committee members
626 Eligibility for membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
627 Termination of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
628 Resignation of committee member. . . . . . . . . . . . . . . . . . . . . . . . 427
629 Deputy chairperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428
630 Remuneration and allowances of lay members . . . . . . . . . . . . . . 428
Division 4 Provisions about committee performing advisory functions
631 Application of pt 7.3, div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428
632 Conduct of business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428
633 Time and place of meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428
634 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429
635 Presiding at meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429
636 Conduct of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 429
637 Minutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
638 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
Division 5 Provisions applying to committee for hearings
639 Constitution of committee for hearing. . . . . . . . . . . . . . . . . . . . . . 431
640 Conduct of committee for hearing and deciding discipline
applications ...................................... 432
641 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432
642 Protection of members etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433
Part 7.4 Provisions applying to each disciplinary body
Division 1 Parties to proceedings
643 Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434
Division 2 Conduct of proceedings
644 Public hearings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435
645 Procedure for hearing by a disciplinary body . . . . . . . . . . . . . . . . 435
646 Recording evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435
647 Disciplinary body may proceed in absence of party or may
adjourn hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436
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648 Matter may be decided on affidavit evidence . . . . . . . . . . . . . . . . 436
649 Standard of proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436
650 Prohibited publication about hearing of a disciplinary application 437
Division 3 Powers of disciplinary body
651 Power to disregard procedural lapses . . . . . . . . . . . . . . . . . . . . . 438
652 Directions for hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438
653 Attendance notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439
654 Authentication of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 439
Division 4 Offences
655 False or misleading information . . . . . . . . . . . . . . . . . . . . . . . . . . 440
656 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . 440
Part 7.5 Legal Practitioners Admissions Board
Division 1 Preliminary
657 Main purpose of pt 7.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441
658 Definitions for pt 7.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441
Division 2 Establishment and membership of board
659 Establishment of board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441
660 Members of board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441
Division 3 Board's functions and powers
661 Functions and powers of board etc. . . . . . . . . . . . . . . . . . . . . . . . 442
662 Administrative support of the board . . . . . . . . . . . . . . . . . . . . . . . 443
Division 4 Provisions about board members
663 Term of appointment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443
664 Chairperson and deputy chairperson . . . . . . . . . . . . . . . . . . . . . . 443
665 Eligibility for membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443
666 Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 443
667 Resignation of board member . . . . . . . . . . . . . . . . . . . . . . . . . . . 444
Division 5 Board business
668 Conduct of business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444
669 Times and places of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 445
670 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445
671 Presiding at meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445
672 Conduct of meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445
673 Minutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446
674 Disclosure of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446
27
Legal Profession Bill 2007
Division 6 Miscellaneous
675 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447
676 Application of particular Acts to board . . . . . . . . . . . . . . . . . . . . . 448
Part 7.6 Queensland Law Society Incorporated
Division 1 Preliminary
677 Main purpose of pt 7.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448
678 Definitions for pt 7.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448
Division 2 Constitution and related matters about the law society
679 Establishment of Queensland Law Society . . . . . . . . . . . . . . . . . 449
680 Functions of the law society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449
681 General powers of the law society . . . . . . . . . . . . . . . . . . . . . . . . 450
682 Status of the law society because of its establishment in Act . . . 450
683 Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451
Division 3 Membership of law society
684 Membership of law society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
Division 4 Council and its membership and officers of the law society
685 Council of the law society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
686 President, deputy president and vice-president of the law
society ...................................... 453
687 Dealing with casual vacancy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
688 No defect because of vacancy . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
689 Secretary and other staff of the law society . . . . . . . . . . . . . . . . . 454
Division 5 Council meetings
690 Conduct of business at meetings . . . . . . . . . . . . . . . . . . . . . . . . . 454
691 Presiding at meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454
692 Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454
693 Conduct of council meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
694 Minutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
695 Disclosure of interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455
Division 6 Law society may make rule
696 Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 457
697 Notice by Minister about law society making rules . . . . . . . . . . . . 457
698 Availability of society rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458
Division 7 Miscellaneous
699 Starting proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458
700 Recovery of unpaid amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458
28
Legal Profession Bill 2007
Chapter 8 General
Part 8.1 General provisions
Division 1 Liabilities, injunctions, protection of information etc.
701 Liability of principals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459
702 Executive officers must ensure corporation complies with Act. . . 459
703 Injunctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 461
704 Disclosure of information by commissioner, regulatory
authorities and other entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462
705 Confidentiality of personal information . . . . . . . . . . . . . . . . . . . . . 463
706 Duty of relevant entities to report suspected offences . . . . . . . . . 465
707 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467
Division 2 Offences, starting proceedings and evidentiary and other
matters
708 Offences are summary offences. . . . . . . . . . . . . . . . . . . . . . . . . . 468
709 Limitation on time for starting summary proceeding . . . . . . . . . . 468
710 Appointments and authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468
711 Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468
712 Evidentiary aids--documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 469
713 Dealing with particular trust money and trust property (Trust
Accounts Act, section 33). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469
Part 8.2 Machinery provisions
714 Approved forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471
715 Regulation-making power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472
Chapter 9 Transitional, savings and repeal provisions for Legal
Profession Act 2007
Part 9.1 Purposes, definitions and general approach
716 Main purposes of ch 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473
717 Definitions for ch 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474
718 Authorised actions and documents etc. under previous provision 474
719 Things continued in force under Legal Profession Act 2004 . . . . 475
720 Terminology in things mentioned in s 718(1) . . . . . . . . . . . . . . . . 475
721 Period stated in previous provision. . . . . . . . . . . . . . . . . . . . . . . . 476
722 Period or date stated in document given under previous
provision ..................................... 476
723 Acts Interpretation Act 1954, s 20 not limited. . . . . . . . . . . . . . . . 477
Part 9.2 Transitional provisions relating to chapter 2
724 Act or omission happening before commencement may be
relevant to proceeding for particular acts or omissions . . . . . . . . 477
29
Legal Profession Bill 2007
725 Examples for ch 2 of things under s 718 . . . . . . . . . . . . . . . . . . . 478
Part 9.3 Transitional provisions relating to chapter 3
Division 1 Examples for chapter 3
726 Examples for ch 3 of things under s 718 . . . . . . . . . . . . . . . . . . . 481
Division 2 Matters dealt with in part 3.3
727 Continued application of Trust Accounts Act 1973 . . . . . . . . . . . . 483
728 Provision about application of s 268. . . . . . . . . . . . . . . . . . . . . . . 484
729 Provision about application of s 270. . . . . . . . . . . . . . . . . . . . . . . 484
730 Provision about application of s 276. . . . . . . . . . . . . . . . . . . . . . . 484
731 Provision about application of s 278. . . . . . . . . . . . . . . . . . . . . . . 485
Division 3 Matters dealt with in part 3.4
Subdivision 1 Preliminary
732 Definitions for pt 9.3, div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485
733 General application of pt 3.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486
Subdivision 2 Client agreements
734 Client agreements may be entered into despite pt 3.4 . . . . . . . . . 486
735 Application of part 3.4 to client agreements etc. . . . . . . . . . . . . . 486
736 Failure to comply with Queensland Law Society Act 1952 after
commencement and before relevant day . . . . . . . . . . . . . . . . . . . 488
Subdivision 3 Billing
737 Application of pt 3.4, div 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488
Subdivision 4 Costs assessments
738 All costs assessments to be under pt 3.4, div 7 . . . . . . . . . . . . . . 489
739 Costs assessment started before commencement . . . . . . . . . . . 489
Division 4 Matters dealt with in part 3.6
740 Amounts payable to and from the fidelity fund before
commencement ................................... 490
741 Delegation to committee of management before
commencement ............................... 491
742 Claims for acts or omissions happening before commencement . 491
743 Reference in s 377 to previous sections. . . . . . . . . . . . . . . . . . . . 492
744 Right of subrogation to continue despite repeal . . . . . . . . . . . . . . 492
745 Payments for defaults under previous ch 2, pt 7. . . . . . . . . . . . . . 492
Part 9.4 Transitional provisions relating to chapter 4
746 Examples for ch 4 of things under s 718 . . . . . . . . . . . . . . . . . . . 493
Part 9.5 Transitional provisions relating to chapter 5
747 Examples for ch 5 of things under s 718 . . . . . . . . . . . . . . . . . . . 495
30
Legal Profession Bill 2007
Part 9.6 Transitional provisions relating to chapter 6
748 Examples for ch 6 of things under s 718 . . . . . . . . . . . . . . . . . . . 497
Part 9.7 Transitional provisions relating to chapter 7
749 Examples for ch 7 of things under s 718 . . . . . . . . . . . . . . . . . . . 498
Part 9.8 Transitional provisions relating to chapter 8
750 Examples for ch 8 of things under s 718 . . . . . . . . . . . . . . . . . . . 501
Part 9.9 Regulation-making power for transitional purposes
751 Transitional regulation-making power . . . . . . . . . . . . . . . . . . . . . . 502
Part 9.10 Repeal of the Legal Profession Act 2004
752 Repeal of Legal Profession Act 2004 . . . . . . . . . . . . . . . . . . . . . . 503
Part 9.11 Provisions relating to Trust Accounts Act 1973
753 Definitions for pt 9.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
754 Trust accounts and trust moneys under Trust Accounts Act. . . . . 504
755 Accounting and other records . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
756 Dealing with particular trust moneys . . . . . . . . . . . . . . . . . . . . . . 504
757 Provision about particular auditors and audits . . . . . . . . . . . . . . . 504
758 Continuing application of Trust Accounts Act, s 5 . . . . . . . . . . . . 505
759 Continuing application of Trust Accounts Act, ss 12 and 13. . . . . 505
760 Continuing application of Trust Accounts Act, s 14(2) and (3) . . . 505
761 Continuing application of Trust Accounts Act, ss 15 and 16. . . . . 506
762 Continuing application of Trust Accounts Act, s 17 . . . . . . . . . . . 506
763 Continuing application of Trust Accounts Act, s 19 . . . . . . . . . . . 506
764 Continuing application of Trust Accounts Act, s 28A . . . . . . . . . . 507
765 Continuing application of Trust Accounts Act, s 30 . . . . . . . . . . . 507
766 Continuing application of Trust Accounts Act, s 33 . . . . . . . . . . . 508
Part 9.12 Repeal of Queensland Law Society Act 1952
767 Repeal of the Queensland Law Society Act 1952 . . . . . . . . . . . . 508
768 Transitional provision about examination of accounts under
Queensland Law Society Act 1952 . . . . . . . . . . . . . . . . . . . . . . . 508
769 Another transitional provision for repeal of Queensland Law
Society Act 1952 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509
Part 9.13 Amendment of Acts
770 Acts amended in sch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510
Schedule 1 Acts amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 511
Criminal Law (Rehabilitation of Offenders) Act 1986 . . . . . . . . . . 511
Director of Public Prosecutions Act 1984 . . . . . . . . . . . . . . . . . . . 511
District Court of Queensland Act 1967. . . . . . . . . . . . . . . . . . . . . 512
31
Legal Profession Bill 2007
Justices Act 1886 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512
Justices of the Peace and Commissioners for Declarations Act
1991 .......................................... 513
Juvenile Justice Act 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
Land Sales Act 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
Land Title Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 516
Legal Aid Queensland Act 1997. . . . . . . . . . . . . . . . . . . . . . . . . . 517
Magistrates Courts Act 1921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 520
Personal Injuries Proceedings Act 2002. . . . . . . . . . . . . . . . . . . . 520
Police Service Administration Act 1990 . . . . . . . . . . . . . . . . . . . . 521
Property Agents and Motor Dealers Act 2000 . . . . . . . . . . . . . . . 522
Retail Shop Leases Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
Supreme Court Act 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
Supreme Court Library Act 1968 . . . . . . . . . . . . . . . . . . . . . . . . . 523
Supreme Court of Queensland Act 1991 . . . . . . . . . . . . . . . . . . . 523
Transport Operations (Marine Safety) Act 1994 . . . . . . . . . . . . . . 524
Trust Accounts Act 1973. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525
Schedule 2 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
2007
A Bill
for
An Act to provide for admission to, and the regulation of, the
legal profession, and for entities involving members of the legal
profession, and for other purposes
s1 34 s3
Legal Profession Bill 2007
The Parliament of Queensland enacts-- 1
Chapter 1 Introduction 2
Part 1.1 Preliminary 3
1 Short title 4
This Act may be cited as the Legal Profession Act 2007. 5
2 Commencement 6
This Act, other than sections 218, 219, 220, 221, 222, 224, 7
696, 714 and commences on day to be fixed by proclamation. 8
3 Main purposes 9
The main purposes of this Act are as follows-- 10
(a) to provide for the regulation of legal practice in this 11
jurisdiction in the interests of the administration of 12
justice and for the protection of consumers of the 13
services of the legal profession and the public generally; 14
(b) to facilitate the regulation of legal practice on a national 15
basis across State borders. 16
s4 35 s6
Legal Profession Bill 2007
Part 1.2 Interpretation 1
Division 1 Dictionary 2
4 Definitions 3
The dictionary in schedule 2 defines particular words used in 4
this Act. 5
Division 2 Meaning of various terms 6
5 Terms relating to lawyers 7
(1) An Australian lawyer is a person who is admitted to the legal 8
profession under this Act or a corresponding law. 9
(2) A local lawyer is a person who is admitted to the legal 10
profession under this Act, whether or not the person is also 11
admitted under a corresponding law. 12
(3) An interstate lawyer is a person who is admitted to the legal 13
profession under a corresponding law, but not under this Act. 14
(4) In this section-- 15
this Act includes a previous Act. 16
6 Terms relating to legal practitioners 17
(1) An Australian legal practitioner is an Australian lawyer who 18
holds a current local practising certificate or a current 19
interstate practising certificate. 20
(2) A local legal practitioner is an Australian lawyer who holds a 21
current local practising certificate. 22
(3) An interstate legal practitioner is an Australian lawyer who 23
holds a current interstate practising certificate, but not a local 24
practising certificate. 25
s7 36 s7
Legal Profession Bill 2007
7 Terms relating to associates and principals of law 1
practices 2
(1) An associate, of a law practice, is-- 3
(a) an Australian legal practitioner who is-- 4
(i) a sole practitioner if the law practice is constituted 5
by the practitioner; or 6
(ii) a partner in the law practice if the law practice is a 7
law firm; or 8
(iii) a legal practitioner director in the law practice if 9
the law practice is an incorporated legal practice; 10
or 11
(iv) a legal practitioner partner in the law practice if the 12
law practice is a multi-disciplinary partnership; or 13
(v) an employee of, or consultant to, the law practice; 14
or 15
(b) an agent of the law practice who is not an Australian 16
legal practitioner; or 17
(c) an employee of the law practice who is not an Australian 18
legal practitioner; or 19
(d) an Australian-registered foreign lawyer who is a partner 20
in the law practice; or 21
(e) a person who is a partner in the multi-disciplinary 22
partnership but who is not an Australian legal 23
practitioner; or 24
(f) an Australian-registered foreign lawyer who has a 25
relationship with the law practice, that is a class of 26
relationship prescribed under a regulation. 27
(2) A legal practitioner associate, of a law practice, is an 28
associate of the practice who is an Australian legal 29
practitioner. 30
(3) A lay associate, of a law practice, is an associate of the 31
practice who is not an Australian legal practitioner. 32
(4) A principal, of a law practice, is an Australian legal 33
practitioner who is-- 34
s8 37 s8
Legal Profession Bill 2007
(a) a sole practitioner if the law practice is constituted by 1
the practitioner; or 2
(b) a partner in the law practice if the law practice is a law 3
firm; or 4
(c) a legal practitioner director in the law practice if the law 5
practice is an incorporated legal practice; or 6
(d) a legal practitioner partner in the law practice if the law 7
practice is a multi-disciplinary partnership. 8
8 Home jurisdiction 9
(1) The home jurisdiction, for an Australian legal practitioner, is 10
the jurisdiction in which the practitioner's only or most recent 11
current Australian practising certificate was granted. 12
(2) The home jurisdiction, for an Australian-registered foreign 13
lawyer, is the jurisdiction in which the lawyer's only or most 14
recent current registration was granted. 15
(3) The home jurisdiction, for an associate of a law practice who 16
is neither an Australian legal practitioner nor an 17
Australian-registered foreign lawyer, is-- 18
(a) if only 1 jurisdiction is the home jurisdiction for the 19
only associate of the practice who is an Australian legal 20
practitioner or for all the associates of the practice who 21
are Australian legal practitioners--that jurisdiction; or 22
(b) if no 1 jurisdiction is the home jurisdiction for all the 23
associates of the practice who are Australian legal 24
practitioners-- 25
(i) the jurisdiction in which the office is situated at 26
which the associate performs most of his or her 27
duties for the practice; or 28
(ii) if a jurisdiction can not be decided under 29
subparagraph (i)--the jurisdiction in which the 30
associate is enrolled under a law of the jurisdiction 31
to vote at elections for the jurisdiction; or 32
(iii) if a jurisdiction can not be decided under 33
subparagraph (i) or (ii)--the jurisdiction decided 34
under criteria prescribed under a regulation. 35
s9 38 s9
Legal Profession Bill 2007
9 Suitability matters 1
(1) Each of the following is a suitability matter in relation to a 2
natural person-- 3
(a) whether the person is currently of good fame and 4
character; 5
(b) whether the person is or has been an insolvent under 6
administration; 7
(c) whether the person has been convicted of an offence in 8
Australia or a foreign country, and if so-- 9
(i) the nature of the offence; and 10
(ii) how long ago the offence was committed; and 11
(iii) the person's age when the offence was committed; 12
(d) whether the person engaged in legal practice in 13
Australia-- 14
(i) when not admitted to the legal profession, or not 15
holding a practising certificate, as required under a 16
relevant law or a corresponding law; or 17
(ii) if admitted to the legal profession, in contravention 18
of a condition on which admission was granted; or 19
(iii) if holding an Australian practising certificate, in 20
contravention of a condition applicable to the 21
certificate or while the certificate was suspended; 22
(e) whether the person has practised law in a foreign 23
country-- 24
(i) when not permitted under a law of that country to 25
do so; or 26
(ii) if permitted to do so, in contravention of a 27
condition of the permission; 28
(f) whether the person is currently subject to an unresolved 29
complaint, investigation, charge or order under any of 30
the following-- 31
(i) a relevant law; 32
(ii) a corresponding law; 33
(iii) a corresponding foreign law; 34
s9 39 s9
Legal Profession Bill 2007
(g) whether the person-- 1
(i) is the subject of current disciplinary action, 2
however expressed, in another profession or 3
occupation in Australia or a foreign country; or 4
(ii) has been the subject of disciplinary action, 5
however expressed, relating to another profession 6
or occupation that involved a finding of guilt; 7
(h) whether the person's name has been removed from-- 8
(i) a local roll but has not since been restored to or 9
entered on a local roll; or 10
(ii) an interstate roll, but has not since been restored to 11
or entered on an interstate roll; or 12
(iii) a foreign roll; 13
(i) whether the person's right to engage in legal practice has 14
been suspended or cancelled in Australia or a foreign 15
country; 16
(j) whether the person has contravened, in Australia or a 17
foreign country, a law about trust money or trust 18
accounts; 19
(k) whether, under a relevant law, a law of the 20
Commonwealth or a corresponding law, a supervisor, 21
manager or receiver, however described, is or has been 22
appointed in relation to any legal practice engaged in by 23
the person; 24
(l) whether the person is or has been subject to an order 25
under this Act, a previous Act, a law of the 26
Commonwealth or a corresponding law, disqualifying 27
the person from being employed by, or a partner of, an 28
Australian legal practitioner or from managing a 29
corporation that is an incorporated legal practice; 30
(m) whether the person currently is unable to satisfactorily 31
carry out the inherent requirements of practice as an 32
Australian legal practitioner. 33
(2) A matter under subsection (1) is a suitability matter even 34
though it happened before the commencement of this section. 35
s 10 40 s 11
Legal Profession Bill 2007
10 Information notices 1
(1) An information notice is a written notice to a person about a 2
decision relating to the person stating-- 3
(a) the decision; and 4
(b) the reasons for the decision; and 5
(c) if the person may appeal under this Act, that the person 6
may appeal against the decision to a stated court or 7
entity and the day by which the appeal must be started. 8
(2) A provision under this Act may provide that an information 9
notice relevant to the provision must include other stated 10
information. 11
(3) If a person may appeal within a number of days after the day 12
an information notice is given to the person, a defect in the 13
notice does not affect the person's right to appeal in relation to 14
the matters dealt with in the information notice. 15
11 References to convictions for offences 16
(1) A conviction, for an offence, includes either of the following 17
whether or not a conviction is recorded on sentence-- 18
(a) a finding of guilt; 19
(b) the acceptance of a guilty plea. 20
(2) Without limiting subsection (1), quashing a conviction, for an 21
offence-- 22
(a) includes quashing-- 23
(i) a finding of guilt for the offence; or 24
(ii) the acceptance of a guilty plea for the offence; and 25
(b) does not include quashing a conviction if-- 26
(i) a finding of guilt in relation to the offence remains 27
unaffected; or 28
(ii) the acceptance of a guilty plea in relation to the 29
offence remains unaffected. 30
(3) A conviction includes a conviction before the commencement 31
of this section. 32
s 12 41 s 12
Legal Profession Bill 2007
Note-- 1
See also the Criminal Law (Rehabilitation of Offenders) Act 1986, 2
section 9A, table, items 24 and 25. 3
12 Meaning of government legal officer and engaged in 4
government work and related matters 5
(1) A government legal officer is a person whose employment or 6
appointment in any of the following includes or may include 7
engaging in legal practice-- 8
(a) a department of this jurisdiction, the commission, or an 9
agency prescribed under a regulation; 10
(b) a department of government of the Commonwealth; 11
(c) a department of government of another jurisdiction; 12
(d) an agency of another jurisdiction if, under a 13
corresponding law of that jurisdiction, a person 14
engaging in legal practice for the agency is exempted 15
from holding a practising certificate or otherwise does 16
not require a practising certificate. 17
(2) A government legal officer is engaged in government work 18
when the government legal officer is engaged in legal practice 19
in the course of the officer's duties for the entity in relation to 20
which the person is an employee or appointee. 21
Example of engaged in government work-- 22
A public service officer employed by the Department of Justice and 23
Attorney-General is engaged in legal practice at the Department of 24
Education. The officer's duties for the Department of Justice and 25
Attorney-General while working at the Department of Education 26
include providing advice to that department as a client of the 27
Department of Justice and Attorney-General. 28
(3) For an agency prescribed for subsection (1)(a), a regulation 29
may state activities that are, or are not, government work. 30
(4) If a provision under this Act does not apply to a government 31
legal officer engaged in government work, the provision 32
applies to the person who is the government legal officer if the 33
person is engaging in legal practice other than being engaged 34
in government work. 35
s 12 42 s 12
Legal Profession Bill 2007
(5) If a government legal officer holds a practising certificate 1
from the bar association, a condition of the barrister's 2
practising certificate about only practising as a barrister does 3
not apply to the government legal officer to the extent that the 4
government legal officer practises as a solicitor as part of 5
engaging in government work. 6
(6) A government legal officer who is an Australian lawyer does 7
not have any fewer rights, privileges, protections or 8
immunities than an Australian lawyer who is not a 9
government legal officer. 10
(7) A government legal officer who is not an Australian lawyer is 11
subject to the same limitations and obligations to which a 12
government legal officer who is an Australian lawyer is 13
subject. 14
(8) The provisions of this Act about the fidelity fund do not apply 15
to a government legal officer in his or her capacity as a 16
government legal officer engaged in government work even if 17
the government legal officer is the holder of a practising 18
certificate. 19
(9) A government legal officer who is an Australian lawyer but 20
does not hold a current local practising certificate may-- 21
(a) if the officer was admitted to the legal profession as a 22
barrister before 1 July 2004 or engages in government 23
work in the manner of a barrister--call himself or 24
herself a barrister or another term that describes the way 25
the officer engages in government work; or 26
(b) if the officer was admitted to the legal profession as a 27
solicitor before 1 July 2004 or engages in government 28
work in the manner of a solicitor--call himself or 29
herself a solicitor or another term that describes the way 30
the officer engages in government work. 31
(10) Without limiting another subsection, if under an Act an 32
Australian lawyer is allowed to witness a document even 33
though the lawyer does not hold a current local practising 34
certificate-- 35
(a) nothing in this section prevents a government legal 36
officer who is an Australian lawyer but does not hold a 37
s 13 43 s 14
Legal Profession Bill 2007
current local practising certificate from witnessing the 1
document; and 2
(b) when witnessing the document, the government legal 3
officer may include a description or title that is correct at 4
the time, including, for example-- 5
(i) the title of lawyer or Australian lawyer; or 6
(ii) another title involving the government legal 7
officer's employment or appointment as mentioned 8
subsection (1). 9
(11) For a person whose employment or appointment in a 10
department of government of the Commonwealth includes or 11
may include engaging in legal practice as mentioned in 12
subsection (1)(b), this Act is subject to the Judiciary Act 1903 13
(Cwlth). 14
Division 3 Jurisdiction of Supreme Court and 15
related matters 16
13 Inherent jurisdiction of Supreme Court 17
(1) The inherent jurisdiction and power of the Supreme Court in 18
relation to the control and discipline of local lawyers and local 19
legal practitioners is not affected by anything in this Act. 20
(2) The inherent jurisdiction and power-- 21
(a) extends to an interstate legal practitioner as mentioned 22
in section 78;1 and 23
(b) may be exercised by making any order that a 24
disciplinary body may make under this Act. 25
14 Jurisdiction of Supreme Court 26
(1) The Supreme Court must hear and decide each application 27
and appeal made to it under this Act and may make the order 28
it considers appropriate for the application or appeal. 29
1 Section 78 (Interstate legal practitioner is officer of Supreme Court)
s 15 44 s 17
Legal Profession Bill 2007
(2) Subsection (1) is subject to a provision that states the orders 1
that may be made by the court on an application or appeal. 2
(3) This section does not limit section 13. 3
(4) An Australian lawyer is entitled to appear before and be heard 4
by the Supreme Court at a hearing about an application or 5
appeal as mentioned in subsection (1) that is made in relation 6
to the lawyer under this Act. 7
15 Appeal period for appeal to Supreme Court or tribunal 8
(1) This section applies if a provision of this Act provides that a 9
person has a stated number of days to appeal to the Supreme 10
Court or the tribunal (the appeal period). 11
(2) The court or tribunal may allow a person who may appeal 12
within the appeal period to appeal after that appeal period if 13
the court or tribunal considers it appropriate having regard to 14
the extent of, and reasons for, the delay. 15
16 Hearing and deciding particular action without a jury 16
(1) This section applies if an action in relation to any description 17
of civil liability arising out of the business of practising as an 18
Australian legal practitioner is before a court and any person 19
who may be made liable in that action is indemnified under a 20
contract of insurance under a relevant law. 21
(2) If, apart from this section, the action may be heard and 22
decided by a jury in that court, the action must be heard and 23
decided by a judge without a jury. 24
Division 4 Other interpretation matters 25
17 Notes in text may indicate difference to language in 26
corresponding law 27
A note in the text in this Act is sometimes used to indicate 28
why the language in this Act may be different to the language 29
used in corresponding laws. 30
s 18 45 s 19
Legal Profession Bill 2007
Example-- 1
This Act often refers to a law of this jurisdiction, including this Act. 2
Under the Acts Interpretation Act 1954, section 7, the reference to a law 3
includes a reference to statutory instruments made or in force under the 4
law. Accordingly, a reference to this Act includes, for example, a 5
regulation or legal profession rules made or in force under this Act. 6
18 Timing for doing things 7
If no time is provided or allowed for doing something under 8
this Act, the thing is to be done as soon as practicable, and as 9
often as is required. 10
19 Grounds that are reasonable in the circumstances 11
(1) If, under this Act, a person is required to be satisfied or not 12
satisfied of, or have a belief or suspicion about, a particular 13
matter before the person may do or refrain from doing an act, 14
or make a decision, the person must be satisfied or not 15
satisfied or have the belief or suspicion on grounds that are 16
reasonable in the circumstances. 17
(2) If, under this Act, a person who is satisfied or not satisfied of, 18
or has a belief or suspicion about, a particular matter is 19
required to do or refrain from doing an act, or make a 20
decision, the person must be satisfied or not satisfied, or have 21
the belief or suspicion, on grounds that are reasonable in the 22
circumstances. 23
(3) If, under this Act, an entity is required to consider that a 24
particular matter is appropriate before the entity may do or 25
refrain from doing an act or make a decision, the entity must 26
not do or refrain from doing the act, or make the decision, 27
unless the entity considers the particular matter is appropriate 28
on grounds that are reasonable in the circumstances. 29
(4) The following are examples of entities for subsection (3)-- 30
(a) a disciplinary body; 31
(b) the board; 32
(c) a regulatory authority; 33
(d) the commissioner; 34
(e) an investigator. 35
s 20 46 s 21
Legal Profession Bill 2007
20 References to parts in this Act 1
(1) A reference in this Act to a part by a number is a reference to 2
the part, designated by that number, of this Act. 3
(2) A reference under another Act to a part of this Act by a 4
number without reference to a chapter is a reference to the 5
part, designated by that number, in this Act. 6
Chapter 2 General requirements for 7
engaging in legal practice 8
Part 2.1 Preliminary 9
21 Simplified overview of ch 2 10
(1) Generally, this chapter seeks to achieve the main purposes of 11
this Act by providing that-- 12
(a) legal practice is engaged in only by persons who are 13
properly qualified and hold a current practising 14
certificate; and 15
(b) only persons who are eligible and fit and proper persons 16
for admission to the legal profession are admitted; and 17
(c) an Australian lawyer may obtain a local practising 18
certificate from the law society or bar association and 19
become a local legal practitioner; and 20
(d) police reports and health assessment reports may be 21
obtained for purposes stated in this Act; and 22
(e) the regulation of legal practice on a national basis is 23
promoted by providing for inter-jurisdictional 24
provisions regarding admission to the legal profession 25
and practising certificates; and 26
(f) a corporation may engage in legal practice as an 27
incorporated legal practice while it has a legal 28
practitioner director, and a partnership, consisting of at 29
least 1 partner who is not an Australian legal 30
s 22 47 s 23
Legal Profession Bill 2007
practitioner, may engage in providing legal services in 1
this jurisdiction if there is at least 1 legal practitioner 2
partner; and 3
(g) foreign lawyers may practice foreign law in this 4
jurisdiction as a recognised aspect of legal practice in 5
this jurisdiction to encourage and facilitate the 6
internationalisation of legal services and the legal 7
services sector. 8
(2) Subsection (1) is intended only as a guide to readers as to the 9
general scheme of this chapter. 10
Part 2.2 Reservation of legal work 11
Division 1 Preliminary 12
22 Main purposes for pt 2.2 13
The main purposes of this part are as follows-- 14
(a) to protect the public interest in the proper administration 15
of justice by ensuring that legal work is carried out only 16
by those who are properly qualified to do so; 17
(b) to protect consumers by ensuring that persons carrying 18
out legal work are entitled to do so. 19
23 Part does not apply to a person if authorised under a 20
Commonwealth law or a government legal officer 21
(1) This part does not apply to-- 22
(a) a person authorised to engage in legal practice under a 23
law of the Commonwealth; or 24
(b) a government legal officer engaged in government work. 25
(2) However, subsection (1) does not prevent this part applying to 26
a person only because the person has been enrolled as a 27
barrister or solicitor, as a barrister and solicitor or as a legal 28
practitioner, of the High Court of Australia. 29
s 24 48 s 24
Legal Profession Bill 2007
Division 2 Prohibitions 1
24 Prohibition on engaging in legal practice when not 2
entitled 3
(1) A person must not engage in legal practice in this jurisdiction 4
unless the person is an Australian legal practitioner. 5
Maximum penalty--300 penalty units or 2 years 6
imprisonment. 7
(2) Subsection (1) does not apply to engaging in legal practice of 8
the following kinds-- 9
(a) legal practice engaged in under the authority of a law of 10
this jurisdiction or the Commonwealth; 11
(b) legal practice engaged in by an incorporated legal 12
practice under part 2.7;2 13
(c) the practice of foreign law by an Australian-registered 14
foreign lawyer under part 2.8;3 15
(d) work performed by a trustee company, or a person 16
employed by a trustee company, in the course of-- 17
(i) preparing a will; or 18
(ii) carrying out any other activities involving the 19
administration of trusts, the estate of a living or 20
deceased person or the affairs of a living person; 21
(e) work performed by a PAMDA licensee, or by an 22
employee of a PAMDA licensee, if the licensee or 23
employee only fills in details in a preprinted contract or 24
other document as part of performing the work of a 25
PAMDA licensee and does not give advice about the 26
contract or other document or the details that are filled 27
in; 28
(f) legal practice prescribed under a regulation. 29
(3) Also, subsection (1) does not apply to an Australian lawyer if 30
the lawyer-- 31
2 Part 2.7 (Incorporated legal practices and multi-disciplinary partnerships)
3 Part 2.8 (Legal practice by foreign lawyers)
s 24 49 s 24
Legal Profession Bill 2007
(a) has applied under section 49 to the law society for a 1
local practising certificate and has not been given a 2
notice that the law society has refused to grant the 3
application, or refused to consider the application, as 4
mentioned in section 51; and 5
(b) is employed in or by a law practice and the lawyer has 6
informed the law practice that he or she has applied for, 7
but not yet been granted, a local practising certificate by 8
the law society. 9
(4) A person is not entitled to recover any amount in relation to 10
anything the person did in contravention of subsection (1). 11
(5) A person may recover from someone else (the other person), 12
as a debt due to the person, any amount the person paid to the 13
other person for anything the other person did in 14
contravention of subsection (1). 15
(6) A regulation may make provision about the application, with 16
or without stated changes, of provisions of this Act to persons 17
engaged in legal practice of a kind mentioned in subsection 18
(2) other than paragraphs (a) and (b). 19
(7) In this section-- 20
filling in, in relation to a contract or other document, if the 21
contract or other document is available in electronic form, 22
includes inserting information in the electronic form and 23
printing the contract or other document. 24
PAMDA licensee means the holder of any of the following 25
licences within the meaning of the Property Agents and Motor 26
Dealers Act 2000-- 27
(a) auctioneer's licence; 28
(b) motor dealer's licence; 29
(c) pastoral house director's licence; 30
(d) pastoral house licence; 31
(e) real estate agent's licence; 32
(f) restricted letting agent's licence. 33
trustee company see the Trustee Companies Act 1968, section 34
4. 35
s 25 50 s 26
Legal Profession Bill 2007
25 Prohibition on representing or advertising entitlement to 1
engage in legal practice when not entitled 2
(1) A person must not represent or advertise that the person is 3
entitled to engage in legal practice unless the person is an 4
Australian legal practitioner. 5
Maximum penalty--300 penalty units or 2 years 6
imprisonment. 7
(2) A director, officer, employee or agent of a body corporate 8
must not represent or advertise that the body corporate is 9
entitled to engage in legal practice unless the body corporate 10
is an incorporated legal practice. 11
Maximum penalty--300 penalty units or 2 years 12
imprisonment. 13
(3) Subsections (1) and (2) do not apply to a representation or 14
advertisement about a person being entitled to engage in legal 15
practice as mentioned in section 24(2). 16
(4) A reference in this section to a person-- 17
(a) representing or advertising that the person is entitled to 18
engage in legal practice; or 19
(b) representing or advertising that a body corporate is 20
entitled to engage in legal practice; 21
includes a reference to the person doing anything that states or 22
implies the person or the body corporate is entitled to engage 23
in legal practice. 24
26 Associates who are disqualified or convicted persons 25
(1) A law practice must not have a lay associate whom any 26
principal or legal practitioner associate of the practice knows 27
to be either of the following unless the lay associate is 28
approved by the law society under subsection (2)-- 29
(a) a disqualified person; 30
(b) a person who has been convicted of a serious offence. 31
(2) The law society may, on application, approve a person as a lay 32
associate for this section. 33
s 27 51 s 27
Legal Profession Bill 2007
(3) An approval under this section may be subject to stated 1
conditions. 2
(4) If the law society refuses an application mentioned in 3
subsection (2) or imposes a condition on the approval-- 4
(a) the law society must give the applicant an information 5
notice about the decision to refuse the application or to 6
impose the condition; and 7
(b) the applicant may appeal to the Supreme Court against 8
the refusal or imposition of the condition within 28 days 9
after the day the information notice is given to the 10
applicant. 11
(5) A disqualified person, or a person convicted of a serious 12
offence, must not seek to become a lay associate of a law 13
practice unless the person first informs the law practice of the 14
disqualification or conviction. 15
Maximum penalty--200 penalty units. 16
(6) This section does not apply in circumstances prescribed under 17
a regulation. 18
(7) In this section-- 19
lay associate, in relation to a law practice, includes a 20
consultant to the law practice, however described-- 21
(a) who is not an Australian legal practitioner; and 22
(b) who provides legal or related services to the law 23
practice, other than services prescribed under a 24
regulation. 25
Note-- 26
The term `lay associate' is also defined in section 7(3). 27
Division 3 General 28
27 Professional discipline 29
(1) A contravention of this part by an Australian lawyer who is 30
not an Australian legal practitioner is capable of constituting 31
unsatisfactory professional conduct or professional 32
misconduct. 33
s 28 52 s 29
Legal Profession Bill 2007
(2) Nothing in this part affects any liability that a person who is 1
an Australian lawyer but not an Australian legal practitioner 2
may have under chapter 4,4 and the person may be punished 3
for an offence under this part as well as being dealt with under 4
chapter 4 in relation to the same matter. 5
Part 2.3 Admission of local lawyers 6
Division 1 Preliminary 7
28 Main purposes of pt 2.3 8
The main purposes of this part are as follows-- 9
(a) in the interests of the administration of justice and for 10
the protection of consumers of legal services, to provide 11
a system under which only applicants who have 12
appropriate academic qualifications and practical legal 13
training and who are otherwise fit and proper persons to 14
be admitted to the legal profession are qualified for 15
admission to the legal profession under this Act; 16
(b) to provide for the recognition of equivalent 17
qualifications and training that apply to applicants for 18
admission to the legal profession in other jurisdictions. 19
29 Definitions for pt 2.3 20
In this part-- 21
admission rules means the rules under the Supreme Court of 22
Queensland Act 1991, section 118,5 for admission to the legal 23
profession under this Act and for associated matters. 24
applicant for admission means a person who makes an 25
application for admission. 26
4 Chapter 4 (Complaints and discipline)
5 Supreme Court of Queensland Act 1991, section 118 (Rule-making power)
s 30 53 s 30
Legal Profession Bill 2007
application for admission means an application under section 1
34 for admission to the legal profession under this Act. 2
Supreme Court, in relation to an exercise of power of the 3
court, means-- 4
(a) if the admission rules provide that the power may be 5
exercised by a single Supreme Court judge--a single 6
Supreme Court judge; or 7
(b) otherwise--the Court of Appeal. 8
Division 2 Eligibility and suitability for 9
admission 10
30 Eligibility for admission to the legal profession under this 11
Act 12
(1) A person is eligible for admission to the legal profession 13
under this Act only if the person-- 14
(a) is a natural person aged 18 years or more; and 15
(b) has attained approved academic qualifications or 16
corresponding academic qualifications; and 17
(c) has satisfactorily completed approved practical legal 18
training requirements or corresponding practical legal 19
training requirements. 20
(2) In this section-- 21
approved academic qualifications means academic 22
qualifications that are approved under the admission rules for 23
admission to the legal profession under this Act. 24
approved practical legal training requirements means legal 25
training requirements that are approved under the admission 26
rules for admission to the legal profession under this Act. 27
corresponding academic qualifications means academic 28
qualifications that would qualify the person for admission to 29
the legal profession in another jurisdiction if the board is 30
satisfied that substantially the same minimum criteria apply 31
for the approval of academic qualifications for admission in 32
the other jurisdiction as apply in this jurisdiction. 33
s 31 54 s 32
Legal Profession Bill 2007
corresponding practical legal training requirements means 1
legal training requirements that would qualify the person for 2
admission to the legal profession in another jurisdiction if the 3
board is satisfied that substantially the same minimum criteria 4
apply for the approval of legal training requirements for 5
admission in the other jurisdiction as apply in this jurisdiction. 6
Note-- 7
The board is the Legal Practitioners Admissions Board. 8
31 Suitability for admission 9
(1) A person is suitable for admission to the legal profession 10
under this Act only if the person is a fit and proper person to 11
be admitted. 12
(2) In deciding if the person is a fit and proper person to be 13
admitted, the Supreme Court must consider-- 14
(a) each of the suitability matters in relation to the person to 15
the extent a suitability matter is appropriate; and 16
(b) other matters that the Supreme Court considers relevant. 17
(3) However, the Supreme Court may consider a person to be a fit 18
and proper person to be admitted to the legal profession under 19
this Act despite a suitability matter because of the 20
circumstances relating to the matter. 21
32 Early consideration of suitability 22
(1) This section applies if a person considers a matter may 23
adversely affect an assessment as to whether the person is a fit 24
and proper person to be admitted to the legal profession under 25
this Act. 26
(2) The person may apply, in the approved form, to the board for 27
a declaration that a matter stated in the application, including, 28
for example, a suitability matter, will not, without more, 29
adversely affect the board's assessment as to whether the 30
person is a fit and proper person to be admitted to the legal 31
profession under this Act. 32
(3) The board must consider the application and do 1 of the 33
following-- 34
s 33 55 s 33
Legal Profession Bill 2007
(a) make the declaration; 1
(b) refer the application to the Supreme Court for a 2
direction if the board considers a direction would be 3
appropriate; 4
(c) refuse to make the declaration. 5
(4) A declaration made under subsection (3)(a), or under a 6
direction mentioned in subsection (3)(b), is binding on the 7
board unless the applicant failed to make a full and fair 8
disclosure of all matters relevant to the declaration sought. 9
(5) If the board decides to refuse to make the declaration 10
sought-- 11
(a) the board must give the applicant an information notice 12
about the refusal; and 13
(b) the applicant may appeal to the Supreme Court against 14
the refusal within 28 days after the day the information 15
notice is given to the applicant. 16
33 Involvement of Supreme Court whether by referral or on 17
appeal 18
(1) If an application under section 32(2) is referred to the 19
Supreme Court as mentioned in section 32(3)(b), the court 20
may give a direction to the board as the court considers 21
appropriate. 22
(2) If the applicant appeals to the Supreme Court against the 23
decision of the board to refuse to make the declaration, the 24
appeal is to be by way of rehearing, and fresh evidence or 25
evidence in addition to or in substitution for the evidence 26
before the board may be given on the appeal. 27
(3) On an appeal under this section, the Supreme Court may make 28
an order as it considers appropriate. 29
s 34 56 s 35
Legal Profession Bill 2007
Division 3 Admission to the legal profession 1
under this Act 2
34 Application for admission to the legal profession 3
(1) A person may apply to the Supreme Court to be admitted to 4
the legal profession under this Act. 5
(2) The application must be made in the approved form and under 6
the admission rules. 7
35 Role of Supreme Court relating to application for 8
admission 9
(1) The Supreme Court must hear and decide each application for 10
admission in the way the court considers appropriate. 11
(2) Without limiting subsection (1), the court may-- 12
(a) make an order admitting the applicant to the legal 13
profession as a lawyer if the court is satisfied the 14
applicant for admission is-- 15
(i) eligible for admission to the legal profession under 16
this Act; and 17
(ii) a fit and proper person to be admitted to the legal 18
profession under this Act; or 19
(b) refuse the application if the court is not satisfied as 20
mentioned in paragraph (a). 21
(3) The court's order as mentioned in subsection (2)(a) may be 22
made unconditionally or on conditions the court considers 23
appropriate. 24
(4) In deciding the application, the court may rely on a 25
recommendation of the board under section 39. 26
(5) Also, the court may hear and decide an application for a 27
direction as mentioned in section 32(3)(b) and give a direction 28
to the board as the court considers appropriate. 29
s 36 57 s 37
Legal Profession Bill 2007
36 Conditions 1
(1) This section applies to a person admitted to the legal 2
profession if-- 3
(a) the person's admission under this Act or a previous Act 4
was subject to a condition, whether or not the condition 5
has been amended since it was imposed; and 6
(b) the condition as imposed or amended has not lapsed or 7
been revoked. 8
(2) The Supreme Court may do any of the following in relation to 9
the condition-- 10
(a) revoke or vary the condition on which the person was 11
admitted to the legal profession, whether on application 12
of the person or on the court's own initiative; 13
(b) order the removal of the person's name from the local 14
roll for contravening the condition. 15
(3) Without limiting subsection (2)(b), a contravention of a 16
condition is capable of constituting unsatisfactory 17
professional conduct or professional misconduct. 18
37 Roll of persons admitted to the legal profession as a 19
lawyer 20
(1) The Supreme Court must keep a roll of persons admitted to 21
the legal profession, as a lawyer, under this Act. 22
(2) The local roll must include-- 23
(a) the roll of solicitors and roll of barristers, as kept by the 24
Supreme Court and as in existence immediately before 1 25
July 2004; and 26
(b) the roll of legal practitioners, as kept by the Supreme 27
Court from 1 July 2004 to immediately before the 28
commencement of this section. 29
(3) After the Supreme Court makes an order admitting a person to 30
the legal profession under this Act-- 31
(a) the registrar for the Supreme Court district at which the 32
Supreme Court is sitting must, under the admission 33
rules, enter the person's name on the local roll; and 34
s 38 58 s 39
Legal Profession Bill 2007
(b) the person must sign the local roll. 1
(4) The person's admission to the legal profession under this Act 2
takes effect when the person signs the local roll. 3
(5) Subject to the admission rules, the Brisbane registrar may give 4
written directions to any other registrar about keeping the 5
local roll. 6
38 Local lawyer is officer of Supreme Court 7
(1) A person becomes an officer of the Supreme Court on being 8
admitted to the legal profession under this Act. 9
(2) A person who immediately before the commencement of this 10
section was an officer of the Supreme Court, because of the 11
person's admission as a barrister, solicitor or legal practitioner 12
continues to be an officer of the court. 13
(3) A person ceases to be an officer of the Supreme Court under 14
this section if the person's name is removed from the local 15
roll. 16
Division 4 Powers and functions of board 17
39 Role of the board relating to application for admission 18
(1) The board's role is to help the Supreme Court by making a 19
recommendation about each application for admission. 20
(2) The board must consider each application and, in particular, 21
whether or not-- 22
(a) the application is made under the admission rules; and 23
(b) the applicant is eligible for admission to the legal 24
profession under this Act; and 25
(c) the applicant is a fit and proper person for admission to 26
the legal profession under this Act, including having 27
regard to all suitability matters in relation to the 28
applicant to the extent appropriate; and 29
(d) there are other matters the Supreme Court may consider 30
relevant. 31
s 40 59 s 42
Legal Profession Bill 2007
(3) The board makes a recommendation to the Supreme Court 1
about the application by giving the recommendation to the 2
Brisbane registrar and a copy of it to the applicant. 3
40 Consideration of applicant's eligibility and suitability 4
(1) To help the board to consider an application for admission, the 5
board may, by notice to the applicant for admission, require 6
the applicant-- 7
(a) to give the board stated documents or information; or 8
(b) to cooperate with any inquiries by the board that it 9
considers appropriate. 10
(2) An applicant's failure to comply with a notice under 11
subsection (1) by the date stated in, and in the way required 12
by, the notice is a ground for recommending to the Supreme 13
Court that the applicant not be admitted to the legal profession 14
under this Act. 15
(3) However, if the board considers it appropriate to apply to the 16
Supreme Court for a direction about a matter concerning an 17
application, the board may do so. 18
Division 5 Miscellaneous 19
41 Board may appear before Supreme Court 20
The board, by a member of the board or by an Australian legal 21
practitioner acting for the board, is entitled to appear before 22
and be heard by the Supreme Court at a hearing about any 23
application made under this part or a reference of an 24
application for a direction of the court. 25
42 Fees payable 26
The board must charge the fee prescribed under a regulation 27
for matters under this part or for matters dealt with in the 28
admission rules. 29
s 43 60 s 44
Legal Profession Bill 2007
Part 2.4 Legal practice by Australian 1
legal practitioners 2
Division 1 Preliminary 3
43 Main purposes of pt 2.4 4
The main purposes of this part are as follows-- 5
(a) to facilitate the national practice of law by ensuring that 6
Australian legal practitioners can engage in legal 7
practice in this jurisdiction and to provide for the 8
certification of Australian lawyers whether or not 9
admitted to the legal profession in this jurisdiction; 10
(b) to provide a system for the granting and renewing of 11
local practising certificates. 12
Division 2 Legal practice in this jurisdiction by 13
Australian legal practitioners 14
44 Entitlement to practise in this jurisdiction 15
(1) An Australian legal practitioner is, subject to this Act, entitled 16
to engage in legal practice in this jurisdiction. 17
(2) Also, a government legal officer engaged in government work 18
is, subject to this Act, entitled to engage in legal practice in 19
this jurisdiction as a government legal officer even though the 20
government legal officer is not an Australian legal 21
practitioner. 22
(3) Subsection (2) does not prevent a government legal officer 23
from being the holder of a local practising certificate. 24
s 45 61 s 46
Legal Profession Bill 2007
Division 3 Local practising certificates 1
generally 2
45 Local practising certificates generally 3
(1) Practising certificates may be granted under this part. 4
(2) A regulatory authority may decide the categories of local 5
practising certificates to be granted by it. 6
(3) It is a statutory condition of a local practising certificate that 7
the holder must not hold another local practising certificate, or 8
an interstate practising certificate, that is in force during the 9
currency of the first-mentioned certificate. 10
46 Suitability to hold local practising certificate 11
(1) This section has effect for the purposes of section 516 and any 12
other provision of this Act where the question of whether or 13
not a person is a fit and proper person to hold, or to continue 14
to hold, a local practising certificate is relevant. 15
(2) A regulatory authority of this jurisdiction, in considering 16
whether a person is, or is no longer, a fit and proper person to 17
hold a local practising certificate, may take into account any 18
suitability matter relating to the person, and any of the 19
following, whether happening before or after the 20
commencement of this section-- 21
(a) whether the person obtained an Australian practising 22
certificate because of incorrect or misleading 23
information; 24
(b) whether the person has contravened a condition of an 25
Australian practising certificate held by the person; 26
(c) whether the person has contravened a relevant law or a 27
corresponding law; 28
(d) whether the person has contravened-- 29
(i) an order of a disciplinary body or the Supreme 30
Court; or 31
6 Section 51 (Grant or renewal of local practising certificate)
s 46 62 s 46
Legal Profession Bill 2007
(ii) an order of a corresponding disciplinary body, or 1
of a court or tribunal of another jurisdiction 2
exercising jurisdiction or powers by way of appeal 3
or review of an order of a corresponding 4
disciplinary body; 5
(e) without limiting any other paragraph, whether the 6
person has failed to pay an amount for which the person 7
is or was liable under a relevant law or a corresponding 8
law, including, for example, an amount payable to the 9
fidelity fund or other costs or expenses for which the 10
person is liable under a relevant law; 11
(f) whether, without limiting paragraph (e), the person has 12
contravened a provision of a relevant law or a 13
corresponding law about professional indemnity 14
insurance; 15
(g) other matters the authority thinks are appropriate. 16
(3) A person may be considered a fit and proper person to hold, or 17
to continue to hold, a local practising certificate even though 18
the person is within any of the categories of the matters 19
mentioned in subsection (2), if the relevant authority 20
considers that the circumstances warrant the decision. 21
(4) If a matter was-- 22
(a) disclosed in an application for admission to the legal 23
profession in this or another jurisdiction; and 24
(b) decided by the Supreme Court or the board, or a 25
Supreme Court of another jurisdiction or corresponding 26
authority of another jurisdiction corresponding to the 27
board, not to be sufficient for refusing admission to the 28
legal profession; 29
the matter can not be taken into account as a ground for 30
refusing to grant or renew, or for suspending or cancelling, a 31
local practising certificate, but the matter may be taken into 32
account when considering other matters in relation to the 33
person concerned. 34
s 47 63 s 48
Legal Profession Bill 2007
47 Duration of local practising certificates 1
(1) A local practising certificate granted under this Act is in force 2
from the date stated in it until the end of the financial year in 3
which it is granted, unless the certificate is sooner suspended 4
or cancelled. 5
(2) A local practising certificate renewed under this Act is in 6
force until the end of the financial year following its previous 7
period of currency, unless the certificate is sooner suspended 8
or cancelled. 9
(3) If an application for the renewal of a local practising 10
certificate is received before the time stated in the regulatory 11
authority's administration rules for applying for a renewal but 12
the application has not been decided by the following 1 July, 13
the certificate-- 14
(a) continues in force on and from that 1 July until 1 of the 15
following happens-- 16
(i) the authority renews or refuses to renew the 17
certificate; 18
(ii) the local legal practitioner withdraws the 19
application for renewal; 20
(iii) the certificate is suspended or cancelled; and 21
(b) if renewed, is taken to have been renewed on and from 22
that 1 July. 23
48 Local legal practitioner is officer of Supreme Court 24
A person who is not already an officer of the Supreme Court 25
becomes an officer of the Supreme Court on being granted a 26
local practising certificate. 27
s 49 64 s 49
Legal Profession Bill 2007
Division 4 Grant or renewal of local practising 1
certificates 2
49 Application for grant or renewal of local practising 3
certificate 4
(1) An Australian lawyer may apply to a regulatory authority for 5
the grant or renewal of a local practising certificate if eligible 6
to do so under this section. 7
(2) An Australian lawyer is eligible to apply for the grant or 8
renewal of a local practising certificate if the lawyer complies 9
with all provisions of a regulation and the legal profession 10
rules relating to eligibility for the practising certificate and-- 11
(a) in the case of a lawyer who is not an Australian legal 12
practitioner at the time of making the application-- 13
(i) the lawyer reasonably expects to be engaged in 14
legal practice solely or principally in this 15
jurisdiction during the currency of the certificate or 16
renewal applied for; or 17
(ii) if subparagraph (i) does not apply to the lawyer or 18
it is not reasonably practical to decide whether it 19
applies to the lawyer--the lawyer's place of 20
residence in Australia is this jurisdiction or the 21
lawyer does not have a place of residence in 22
Australia; or 23
(b) in the case of a lawyer who is an Australian legal 24
practitioner at the time of making the application-- 25
(i) the jurisdiction in which the lawyer engages in 26
legal practice solely or principally is this 27
jurisdiction; or 28
(ii) the lawyer holds a current local practising 29
certificate and engages in legal practice in another 30
jurisdiction under an arrangement of a temporary 31
nature; or 32
(iii) the lawyer reasonably expects to be engaged in 33
legal practice solely or principally in this 34
jurisdiction during the currency of the certificate or 35
renewal applied for; or 36
s 49 65 s 49
Legal Profession Bill 2007
(iv) if subparagraphs (i), (ii) and (iii) do not apply to 1
the lawyer or it is not reasonably practical to 2
decide whether subparagraph (i), (ii) or (iii) applies 3
to the lawyer--the lawyer's place of residence in 4
Australia is this jurisdiction or the lawyer does not 5
have a place of residence in Australia. 6
(3) For subsection (2)(b), the jurisdiction in which an Australian 7
lawyer engages in legal practice solely or principally is to be 8
decided by reference to the lawyer's legal practice during the 9
certificate period current at the time-- 10
(a) the application is made; or 11
(b) in the case of a late application--the application should 12
have been made. 13
(4) An Australian lawyer is not eligible to apply for the grant or 14
renewal of a local practising certificate in relation to a 15
financial year if the lawyer would also be the holder of 16
another Australian practising certificate for that year, but this 17
subsection does not limit the factors deciding ineligibility to 18
apply for the grant or renewal of a local practising certificate. 19
(5) An Australian lawyer must not apply for the grant or renewal 20
of a local practising certificate if the lawyer is not eligible to 21
make the application. 22
(6) An Australian legal practitioner who-- 23
(a) engages in legal practice solely or principally in this 24
jurisdiction during a financial year; and 25
(b) reasonably expects to engage in legal practice solely or 26
principally in this jurisdiction in the following financial 27
year; 28
must apply for the grant or renewal of a local practising 29
certificate in relation to the following financial year. 30
(7) Subsection (6) does not apply to an interstate legal 31
practitioner who applied for the grant or renewal of an 32
interstate practising certificate on the basis that the 33
practitioner reasonably expected to engage in legal practice 34
solely or principally in this jurisdiction under an arrangement 35
that is of a temporary nature. 36
s 50 66 s 50
Legal Profession Bill 2007
(8) However, subsection (7) ceases to operate in relation to an 1
interstate legal practitioner at the end of the period prescribed 2
by a regulation for the subsection. 3
(9) A reference in this section to engaging in legal practice 4
principally in this or any other jurisdiction applies only to 5
legal practice in Australia and, accordingly, an Australian 6
lawyer who is engaged or expects to be engaged in legal 7
practice principally in a foreign country is nevertheless 8
eligible to apply for the grant or renewal of a local practising 9
certificate if the lawyer otherwise meets the requirements of 10
this section. 11
Note-- 12
The purpose of subsection (9) is to deal with a case where a person 13
practises both in Australia and overseas. In that case, overseas practice 14
is to be disregarded (even if it forms the principal portion of the person's 15
overall practice), so that eligibility is decided by reference to the 16
person's practice in Australia. 17
50 Manner of application 18
(1) An application for the grant or renewal of a local practising 19
certificate must be-- 20
(a) made in the approved form of the relevant regulatory 21
authority; and 22
(b) made in the way provided for under the administration 23
rules of the relevant regulatory authority; and 24
(c) for an application for renewal--made within the period 25
stated in the administration rules of the relevant 26
regulatory authority. 27
(2) The approved form may require the applicant to disclose 28
matters that may affect the applicant's eligibility for the grant 29
or renewal of a local practising certificate or the question 30
whether the applicant is a fit and proper person to hold a local 31
practising certificate. 32
(3) The approved form may indicate that particular kinds of 33
matters previously disclosed in a particular way need not be 34
disclosed for the purposes of the current application. 35
s 51 67 s 51
Legal Profession Bill 2007
51 Grant or renewal of local practising certificate 1
(1) A regulatory authority must consider an application that has 2
been made to it for the grant or renewal of a local practising 3
certificate and may-- 4
(a) grant or refuse to grant the certificate; or 5
(b) renew or refuse to renew the certificate. 6
(2) The regulatory authority may, when granting or renewing a 7
certificate, impose conditions as mentioned in section 53. 8
(3) The regulatory authority may refuse-- 9
(a) to consider an application if-- 10
(i) it is not made under this Act; or 11
(ii) fees and costs payable under this Act have not been 12
paid; or 13
(b) to grant or renew a local practising certificate if the 14
applicant has not complied with the administration rules 15
of the authority relating to the application. 16
(4) The regulatory authority must not grant a local practising 17
certificate unless it is satisfied that the applicant-- 18
(a) was eligible to apply for the grant when the application 19
was made; and 20
(b) is a fit and proper person to hold the certificate. 21
(5) The regulatory authority must not renew a local practising 22
certificate if it is satisfied that the applicant-- 23
(a) was not eligible to apply for the renewal of the 24
certificate when the application was made; or 25
(b) is not a fit and proper person to continue to hold the 26
certificate.7 27
(6) Also, the regulatory authority must not grant or renew a local 28
practising certificate if the authority considers the applicant's 29
circumstances have changed since the application was made 30
and the applicant would, having regard to information that has 31
come to the authority's attention, not have been eligible to 32
7 See section 46 (Suitability to hold local practising certificate).
s 52 68 s 52
Legal Profession Bill 2007
make the application when the application is being 1
considered. 2
(7) If the regulatory authority grants or renews a local practising 3
certificate, the authority must give the applicant-- 4
(a) for the grant of a certificate--a local practising 5
certificate; or 6
(b) for the renewal of a certificate--a new local practising 7
certificate or a notice of renewal. 8
(8) The regulatory authority must give the applicant an 9
information notice if the authority-- 10
(a) refuses to grant or renew a local practising certificate; or 11
(b) imposes a condition on the certificate and the applicant 12
does not agree to the condition. 13
(9) The applicant may appeal to the Supreme Court against a 14
refusal mentioned in subsection (8) within 28 days after the 15
day the information notice about the decision is given to the 16
applicant. 17
Note-- 18
For matters relevant to the imposition of conditions, see section 54. 19
Division 5 Conditions on local practising 20
certificates 21
52 Conditions generally 22
A local practising certificate is subject to the following-- 23
(a) a condition imposed by the relevant regulatory authority 24
at the time the certificate is granted unless the condition 25
is revoked at a later time; 26
(b) a statutory condition as mentioned in section 45, 55, 56 27
or 57; 28
s 53 69 s 53
Legal Profession Bill 2007
(c) a condition imposed or amended under division 6 or 7;8 1
(d) a condition imposed or amended under chapter 49 or 2
under a corresponding law; 3
(e) a condition imposed or amended under a regulation, the 4
legal profession rules or the administration rules. 5
53 Conditions imposed by law society or bar association 6
(1) At the time a regulatory authority grants a local practising 7
certificate, the authority may impose any reasonable and 8
relevant condition on the practising certificate. 9
(2) A condition may be about any of the following-- 10
(a) requiring the certificate holder to undertake or 11
complete-- 12
(i) continuing legal education; or 13
(ii) stated legal education or training; 14
(b) limiting the certificate holder to supervised legal 15
practice in the way stated in the condition or to the 16
practice of areas of law stated in the condition; 17
(c) controlling, restricting or prohibiting the operation of a 18
trust account; 19
(d) restricting the certificate holder to particular conditions 20
concerning employment or supervision; 21
(e) a matter agreed to by the certificate holder. 22
(3) Subsection (2) does not limit the matters about which a 23
condition may be imposed under this section. 24
(4) The regulatory authority must not impose a condition 25
requiring the certificate holder to undertake and complete 26
stated legal education or training unless-- 27
8 Division 6 (Amendment, suspension or cancellation of local practising certificates)
or 7 (Special powers in relation to local practising certificates--show cause events)
9 Chapter 4 (Complaints and discipline)
s 54 70 s 54
Legal Profession Bill 2007
(a) the regulatory authority is satisfied that it is reasonable 1
to require the stated legal education or training to be 2
undertaken, having regard to-- 3
(i) when the holder undertook his or her previous 4
academic studies or legal training, or obtained the 5
previous legal experience; or 6
(ii) the certificate holder's conduct; or 7
(b) the condition is 1 that is imposed generally on 8
certificates holders or a class of certificates holders. 9
(5) A regulatory authority's power to impose a condition 10
mentioned in subsection (2)(a) is not limited by, and does not 11
limit, the regulatory authority's power to impose a condition 12
under its administration rules about a matter mentioned in 13
section 231(2)(e).10 14
54 Applications relating to conditions 15
(1) This section applies if a regulatory authority imposes a 16
condition on a practising certificate, other than a condition 17
applying in relation to a practising certificate under the 18
authority's legal profession rules or administration rules. 19
(2) If the applicant did not apply for a practising certificate to be 20
subject to the condition-- 21
(a) the regulatory authority must give the applicant an 22
information notice about the decision to impose the 23
condition; and 24
(b) the applicant may appeal to the Supreme Court against 25
the imposition within 28 days after the day the 26
information notice is given to the applicant. 27
(3) The regulatory authority may revoke a condition imposed on a 28
practising certificate, on application of the certificate holder in 29
the approved form or on its own initiative, by giving written 30
notice about the revocation to the certificate holder. 31
10 Section 231 (Rules other than legal profession rules)
s 55 71 s 56
Legal Profession Bill 2007
(4) If a certificate holder applies for the revocation of a condition 1
and the relevant regulatory authority refuses to grant the 2
application-- 3
(a) the authority must give the applicant an information 4
notice about the decision refusing the application; and 5
(b) the applicant may appeal to the Supreme Court against 6
the imposition of the condition within 28 days after the 7
day the information notice is given to the applicant. 8
55 Statutory condition regarding conditions imposed on 9
interstate admission 10
It is a statutory condition of a local practising certificate that 11
the certificate holder must not contravene the following-- 12
(a) a condition that was imposed on the holder's admission 13
to the legal profession under a corresponding law (an 14
imposed condition) if the imposed condition is still in 15
force; 16
(b) an imposed condition as amended from time to time. 17
56 Statutory condition regarding practice as solicitor 18
(1) It is a statutory condition of a local practising certificate for a 19
solicitor that the certificate holder must engage in supervised 20
legal practice only, until the certificate holder has 21
completed-- 22
(a) if the certificate holder completed supervised legal 23
training to qualify for admission to the legal profession 24
in this or another jurisdiction--a period or periods 25
equivalent to 18 months supervised legal practice, 26
worked out under a regulation, after the day the holder's 27
first practising certificate was granted; or 28
(b) if the holder completed other practical legal training to 29
qualify for admission to the legal profession in this or 30
another jurisdiction--a period or periods equivalent to 2 31
years supervised legal practice, worked out under a 32
regulation, after the day the holder's first practising 33
certificate was granted. 34
s 57 72 s 57
Legal Profession Bill 2007
(2) Subsection (1) has effect subject to any other conditions that 1
relate to engaging in supervised legal practice as a solicitor 2
after a period or periods mentioned in that subsection. 3
(3) The law society may exempt a person or class of persons from 4
the requirement for supervised legal practice under subsection 5
(1) or may reduce a period mentioned in that subsection for a 6
person or class of persons, if satisfied the person or persons do 7
not need to be supervised or need to be supervised only for a 8
shorter period, having regard to-- 9
(a) the length and nature of any legal practice previously 10
engaged in by the person or persons; and 11
(b) the length and nature of any legal practice engaged in by 12
the supervisors, if any, who previously supervised the 13
legal practice engaged in by the person or persons. 14
(4) An exemption under subsection (3) may be given 15
unconditionally or subject to conditions the law society 16
considers appropriate. 17
(5) In this section-- 18
supervised legal training means practical legal training 19
principally under the supervision of an Australian lawyer, 20
whether involving articles of clerkship or otherwise. 21
57 Statutory condition regarding notification of offence 22
(1) It is a statutory condition of a local practising certificate that 23
the certificate holder must give notice to the relevant 24
regulatory authority if the certificate holder is-- 25
(a) convicted of an offence that would have to be disclosed 26
under the admission rules for an application for 27
admission; or 28
(b) charged with a serious offence. 29
(2) The notice must be in the approved form and given to the 30
regulatory authority within 7 days after-- 31
(a) if the certificate holder is convicted of an offence--the 32
day the person is convicted; or 33
(b) if the certificate holder is charged with an offence--the 34
day the person is charged. 35
s 58 73 s 60
Legal Profession Bill 2007
(3) The regulatory authority's administration rules may state the 1
person to whom, or the address to which, the notice is to be 2
given. 3
(4) This section does not apply to a show cause event to which 4
division 711 applies. 5
58 Compliance with conditions 6
The holder of a current local practising certificate must not 7
contravene, in this jurisdiction or elsewhere, a condition to 8
which the certificate is subject. 9
Example-- 10
If a person engages in unsupervised legal practice and the relevant 11
practising certificate states the certificate holder may only engage in 12
supervised legal practice, the person contravenes a condition of the 13
certificate. The contravention may constitute unsatisfactory professional 14
conduct or professional misconduct under section 420. 15
Division 6 Amendment, suspension or 16
cancellation of local practising 17
certificates 18
59 Application of this division 19
This division does not apply to a show cause event in relation 20
to which a regulatory authority may exercise a power under 21
division 7. 22
60 Grounds for amending, suspending or cancelling a local 23
practising certificate 24
Each of the following is a ground for amending, suspending or 25
cancelling a local practising certificate-- 26
11 Division 7 (Special powers in relation to local practising certificates--show cause
events)
s 61 74 s 61
Legal Profession Bill 2007
(a) the certificate holder is no longer a fit and proper person 1
to hold the certificate;12 2
(b) the certificate holder does not have, or no longer has, 3
professional indemnity insurance that complies with this 4
Act in relation to the certificate; 5
(c) if a condition of the certificate is that the certificate 6
holder is limited to legal practice stated in the 7
certificate--the certificate holder is, or has been, 8
engaging in legal practice that the holder is not entitled 9
to engage in under this Act. 10
61 Amending, suspending or cancelling a local practising 11
certificate 12
(1) If the relevant regulatory authority believes a ground exists to 13
amend, suspend or cancel a person's local practising 14
certificate (the proposed action), the authority must give the 15
person a notice (the show cause notice) that-- 16
(a) states the proposed action and-- 17
(i) if the proposed action is to amend the 18
certificate--states the proposed amendment; and 19
(ii) if the proposed action is to suspend the 20
certificate--states the proposed suspension period; 21
and 22
(b) states the grounds for proposing to take the proposed 23
action; and 24
(c) outlines the facts and circumstances that form the basis 25
for the authority's belief; and 26
(d) invites the certificate holder to make written 27
representations to the authority, within a stated time of 28
not less than 28 days, as to why the proposed action 29
should not be taken. 30
(2) If, after considering all written representations made within 31
the stated time or, in its discretion after the stated time, the 32
12 See section 46 (Suitability to hold local practising certificate).
s 61 75 s 61
Legal Profession Bill 2007
regulatory authority still believes a ground exists to take the 1
proposed action, the authority may-- 2
(a) if the show cause notice stated the proposed action was 3
to amend the practising certificate--amend the 4
certificate in the way stated, or in a less onerous way the 5
authority considers appropriate because of the written 6
representations; or 7
(b) if the show cause notice stated the proposed action was 8
to suspend the practising certificate for a stated period-- 9
(i) suspend the certificate for a period no longer than 10
the stated period; or 11
(ii) amend the certificate in a less onerous way the 12
authority considers appropriate because of the 13
written representations; or 14
(c) if the show cause notice stated the proposed action was 15
to cancel the practising certificate-- 16
(i) cancel the certificate; or 17
(ii) suspend the certificate for a period; or 18
(iii) amend the certificate in a less onerous way the 19
authority considers appropriate because of the 20
written representations. 21
(3) If the regulatory authority decides to amend, suspend or 22
cancel the local practising certificate-- 23
(a) the authority must give the certificate holder an 24
information notice about the decision; and 25
(b) the certificate holder may appeal to the Supreme Court 26
against the decision within 28 days after the day the 27
information notice is given to the certificate holder. 28
(4) In this section-- 29
amend, in relation to a local practising certificate, means 30
amend or impose a condition that a regulatory authority may 31
impose at the time of granting a local practising certificate, as 32
mentioned in section 53, otherwise than at the request of the 33
holder of the certificate. 34
s 62 76 s 63
Legal Profession Bill 2007
62 Operation of amendment, suspension or cancellation of 1
local practising certificate 2
(1) This section applies if a decision is made to amend, suspend 3
or cancel a local practising certificate under section 61 or 69. 4
(2) Subject to subsections (3) and (4), the amendment, suspension 5
or cancellation takes effect on the later of the following-- 6
(a) the day that the information notice about the decision is 7
given to the certificate holder; 8
(b) the day stated in the information notice. 9
(3) If the practising certificate is amended, suspended or 10
cancelled because the certificate holder has been convicted of 11
an offence-- 12
(a) the Supreme Court may, on application of the certificate 13
holder, order that the amendment, suspension or 14
cancellation be stayed until-- 15
(i) the end of the time to appeal against the 16
conviction; or 17
(ii) if an appeal is made against the conviction--the 18
appeal is finally decided, lapses or otherwise ends; 19
and 20
(b) the amendment, suspension or cancellation does not 21
have effect during any period for which the stay is in 22
force. 23
(4) If the practising certificate is amended, suspended or 24
cancelled because the certificate holder has been convicted of 25
an offence and a court quashes the conviction-- 26
(a) the amendment or suspension ceases to have effect when 27
the court quashes the conviction; or 28
(b) the cancellation ceases to have effect when the court 29
quashes the conviction and the certificate is restored as 30
if it had merely been suspended. 31
63 Immediate amendment or suspension of local practising 32
certificate 33
(1) This section applies if the relevant regulatory authority in 34
relation to a local legal practitioner considers it necessary in 35
s 63 77 s 63
Legal Profession Bill 2007
the public interest to take action under this section in relation 1
to that legal practitioner, whether or not action in relation to 2
the legal practitioner has been started otherwise than under 3
this division or division 7. 4
(2) The relevant regulatory authority may immediately amend a 5
local practising certificate of the legal practitioner to provide 6
for either of the following-- 7
(a) imposing or amending conditions about controlling or 8
otherwise regulating conditions about the legal 9
practitioner's trust account; 10
(b) suspending stated operations in relation to the certificate 11
holder's trust account or directing the certificate holder 12
not to operate the account. 13
(3) The relevant regulatory authority may immediately suspend 14
the local practising certificate of the legal practitioner for any 15
of the following reasons, whether it happened before or after 16
the commencement of this section-- 17
(a) there is a show cause event in relation to the legal 18
practitioner; 19
(b) the regulatory authority believes there is any ground 20
mentioned in section 60 that would justify the 21
suspension or cancellation of the local practising 22
certificate under section 61; 23
(c) any other ground that the regulatory authority considers 24
warrants suspension of the local practising certificate in 25
the public interest. 26
(4) The relevant regulatory authority amends or suspends a local 27
practising certificate by giving an information notice to the 28
local legal practitioner about the regulatory authority's 29
decision to amend or suspend. 30
(5) The information notice must also state that the local legal 31
practitioner may make written representations to the 32
regulatory authority about the amendment or suspension. 33
(6) Subject to subsection (9), the practising certificate continues 34
to be subject to the amendment or suspension until the earlier 35
of the following-- 36
s 64 78 s 65
Legal Profession Bill 2007
(a) the time at which the regulatory authority informs the 1
local legal practitioner of the authority's decision by 2
information notice under section 61(3); 3
(b) the end of 56 days after the information notice is given 4
to the local legal practitioner under this section. 5
(7) If the local legal practitioner makes written representations to 6
the regulatory authority about the amendment or suspension, 7
the authority must consider the written representations. 8
(8) The regulatory authority may revoke the amendment or 9
suspension at any time, whether or not because of written 10
representations made to it by the local legal practitioner. 11
(9) Also, the regulatory authority may apply to the Supreme 12
Court for an order extending the period of the amendment or 13
suspension and, if the court considers it appropriate and the 14
amendment or suspension has not ended under subsection (6), 15
the court may extend the period of the amendment or 16
suspension for a further period of not more than 56 days after 17
the date of the court order. 18
(10) The regulatory authority must give the certificate holder an 19
information notice about its decision to apply under 20
subsection (9) for an order extending the period of the 21
suspension or amendment. 22
64 Removal from local roll 23
(1) If a local legal practitioner's name is removed from the local 24
roll or a local legal practitioner ceases to be an Australian 25
lawyer, the regulatory authority must cancel the practising 26
certificate by information notice given to the legal 27
practitioner. 28
(2) Section 61 does not apply in a case to which this section 29
applies. 30
65 Consensual amendment or cancellation etc. 31
(1) Subsection (2) applies if-- 32
(a) a local legal practitioner applies, in the approved form, 33
to the regulatory authority to amend or cancel the 34
practitioner's practising certificate; or 35
s 66 79 s 66
Legal Profession Bill 2007
(b) the regulatory authority proposes to amend a local legal 1
practitioner's practising certificate-- 2
(i) only for a formal or clerical reason or in another 3
way that does not adversely affect the practitioner's 4
interests; and 5
(ii) the practitioner agrees in writing to the 6
amendment. 7
(2) The authority may amend or cancel the local practising 8
certificate as mentioned in subsection (1) by written notice 9
given to the legal practitioner. 10
(3) Section 61 does not apply in a case to which this section 11
applies. 12
66 Relationship of div 6 with ch 6 13
(1) An investigator appointed by a regulatory authority may 14
exercise powers under chapter 6 for a matter under this 15
division, as if the matter were the subject of a complaint. 16
(2) Accordingly, the provisions of chapter 6 apply in relation to a 17
matter under this division, and so apply with any necessary 18
changes. 19
(3) Nothing in this division prevents-- 20
(a) a regulatory authority from making a complaint about a 21
matter to which this division relates; or 22
(b) the commissioner from investigating or referring a 23
matter for investigation as mentioned in section 435.13 24
13 Section 435 (Referral by commissioner to law society or bar association)
s 67 80 s 67
Legal Profession Bill 2007
Division 7 Special powers in relation to local 1
practising certificates--show cause 2
events 3
67 Application for local practising certificate if show cause 4
event happened after first admission 5
(1) This section applies if-- 6
(a) a person is applying for the grant of a local practising 7
certificate under this Act; and 8
(b) a show cause event in relation to the person happened, 9
whether before or after the commencement of this 10
section, after the person was first admitted to the legal 11
profession, however the admission was expressed at the 12
time of that admission. 13
(2) As part of the application, the person must give to the relevant 14
regulatory authority a written statement-- 15
(a) about the show cause event; and 16
(b) explaining why, despite the event, the person considers 17
himself or herself to be a fit and proper person to hold a 18
local practising certificate. 19
(3) However, a person need not give a statement under subsection 20
(2) if the person (as a previous applicant for a local practising 21
certificate or as the holder of a local practising certificate 22
previously in force) has previously given the regulatory 23
authority-- 24
(a) a statement under this section or under the Legal 25
Profession Act 2004, section 62; or 26
(b) a notice and statement under section 68, or under the 27
Legal Profession Act 2004, section 63, for the show 28
cause event; 29
explaining why, despite the event, the person considers 30
himself or herself to be a fit and proper person to hold a local 31
practising certificate. 32
(4) The regulatory authority must give a copy of a statement 33
under subsection (2) to the commissioner. 34
s 68 81 s 69
Legal Profession Bill 2007
68 Requirement if show cause event 1
(1) If a show cause event happens in relation to a local legal 2
practitioner, the practitioner must give to the relevant 3
regulatory authority both of the following-- 4
(a) within 7 days after the date of the event--notice, in the 5
approved form, that the event happened; 6
(b) within 28 days after the date of the event--a written 7
statement explaining why, despite the event, the 8
practitioner continues to be a fit and proper person to 9
hold a local practising certificate. 10
(2) The regulatory authority must give a copy of the notice and 11
the statement under subsection (1) to the commissioner. 12
(3) However, if a written statement is given after the 28 days 13
mentioned in subsection (1)(b), the regulatory authority may 14
accept the statement and take it into consideration. 15
69 Refusal, amendment, suspension or cancellation of local 16
practising certificate because of failure to show cause 17
(1) The relevant regulatory authority may refuse to grant or 18
renew, or may amend, suspend or cancel, a local practising 19
certificate if the applicant or certificate holder-- 20
(a) is required by section 67 or 68 to give a written 21
statement relating to a matter to the regulatory authority 22
and the applicant or certificate holder has not done so; or 23
(b) has given a written statement under section 67 or 68 but 24
the authority does not consider that the applicant or 25
certificate holder has shown in the statement that the 26
person is a fit and proper person to hold or to continue to 27
hold a local practising certificate. 28
(2) For subsection (1)(b), a written statement accepted by the 29
regulatory authority as mentioned in section 68(3) is taken to 30
be given under section 67. 31
(3) If the regulatory authority decides to refuse to grant or renew, 32
or to amend, suspend or cancel, a local practising certificate-- 33
(a) the authority must give the applicant or certificate 34
holder an information notice about the decision; and 35
s 70 82 s 71
Legal Profession Bill 2007
(b) the applicant or certificate holder may appeal to the 1
Supreme Court against the decision within 28 days after 2
the day the information notice is given to the applicant 3
or certificate holder. 4
(4) Also, the regulatory authority must give a copy of the 5
information notice to the commissioner. 6
70 Restriction on making further application 7
(1) This section applies if a regulatory authority decides under 8
section 69 to refuse to grant or renew a local practising 9
certificate or to cancel a local practising certificate. 10
(2) The authority may also decide that the applicant or certificate 11
holder is not entitled to apply for the grant of a local practising 12
certificate for a stated period of not more than 5 years. 13
(3) If the authority makes a decision under subsection (2), the 14
authority must include the decision in the information notice 15
required under section 69(3)(a) and the applicant or certificate 16
holder may also appeal to the Supreme Court against the 17
decision within 28 days after the day the information notice is 18
given to the applicant or certificate holder. 19
(4) Subject to a successful appeal against a decision under this 20
section, the Legal Profession Act 2004, section 65, or under a 21
corresponding law, a person against whom the decision has 22
been made is not entitled to apply for the grant of a local 23
practising certificate during the period stated in the decision. 24
71 Relationship of div 7 with ch 6 25
(1) An investigator appointed by a regulatory authority may 26
exercise powers under chapter 6 for a matter under this 27
division, as if the matter were the subject of a complaint. 28
(2) Accordingly, the provisions of chapter 6 apply in relation to a 29
matter under this division, and so apply with any necessary 30
changes. 31
(3) Nothing in this division prevents-- 32
(a) a regulatory authority from making a complaint about a 33
matter to which this division relates; or 34
s 72 83 s 73
Legal Profession Bill 2007
(b) the commissioner from investigating or referring a 1
matter for investigation as mentioned in section 435.14 2
Division 8 Further provisions relating to local 3
practising certificate 4
72 Surrender and cancellation of local practising certificate 5
(1) The holder of a local practising certificate may surrender the 6
certificate to the relevant regulatory authority. 7
(2) The relevant regulatory authority to which the local practising 8
certificate is surrendered may cancel the certificate. 9
73 Return of local practising certificate 10
(1) This section applies if a local practising certificate is 11
amended, suspended or cancelled by a relevant regulatory 12
authority under division 6 or 7.15 13
(2) The regulatory authority may-- 14
(a) give the certificate holder a notice requiring the holder 15
to return the certificate to the authority in the way stated 16
in the notice within a stated period of not less than 14 17
days; or 18
(b) include in an information notice that the authority must 19
give to the certificate holder under division 6 or 7 a 20
further notice requiring the holder to return the 21
certificate to the authority in the way stated in the notice 22
within a stated period of not less than 14 days. 23
(3) The certificate holder must comply with the requirement, 24
unless the holder has a reasonable excuse. 25
Maximum penalty--50 penalty units. 26
(4) The regulatory authority must return the practising certificate 27
to the certificate holder-- 28
14 Section 435 (Referral by commissioner to law society or bar association)
15 Division 6 (Amendment, suspension or cancellation of local practising certificates)
or 7 (Special powers in relation to local practising certificates--show cause events)
s 74 84 s 74
Legal Profession Bill 2007
(a) if the certificate is amended--after amending it; or 1
(b) if the certificate is suspended and is still current at the 2
end of the suspension period--at the end of the 3
suspension period. 4
Division 9 Interstate legal practitioners 5
74 Requirement for interstate practising certificate and 6
professional indemnity insurance 7
(1) An interstate legal practitioner must not engage in legal 8
practice in this jurisdiction, or represent or advertise that the 9
practitioner is entitled to engage in legal practice in this 10
jurisdiction, unless the practitioner-- 11
(a) is covered by professional indemnity insurance that-- 12
(i) covers legal practice in this jurisdiction; and 13
(ii) has been approved under, or complies with the 14
requirements of, the corresponding law of the 15
practitioner's home jurisdiction; and 16
(iii) is for at least $1.5 million inclusive of defence 17
costs unless, without affecting subparagraph (i) or 18
(ii), the practitioner engages in legal practice solely 19
as or in the manner of a barrister; or 20
(b) is employed by a corporation, other than an incorporated 21
legal practice, and the only legal services provided by 22
the practitioner in this jurisdiction are in-house legal 23
services. 24
Maximum penalty--300 penalty units or 2 years 25
imprisonment. 26
(2) A regulation may require an interstate legal practitioner to 27
disclose information about professional indemnity insurance 28
to clients or prospective clients. 29
(3) This section does not apply to an interstate legal practitioner 30
who-- 31
(a) is a government legal officer; and 32
s 75 85 s 75
Legal Profession Bill 2007
(b) is engaged in legal practice in this jurisdiction only to 1
the extent that the practitioner is engaging in 2
government work; and 3
(c) has an indemnity or immunity, whether provided by law 4
or governmental policy, that is applicable in relation to 5
that practice. 6
75 Extent of entitlement of interstate legal practitioner to 7
practise in this jurisdiction 8
(1) This part does not authorise an interstate legal practitioner to 9
engage in legal practice in this jurisdiction to a greater extent 10
than a local legal practitioner could be authorised under a 11
local practising certificate. 12
(2) Also, an interstate legal practitioner's right to engage in legal 13
practice in this jurisdiction-- 14
(a) is subject to-- 15
(i) specific provisions under this Act applying to 16
interstate legal practitioners; and 17
(ii) any conditions imposed by the relevant regulatory 18
authority under section 76 in relation to the 19
interstate legal practitioner; and 20
(b) is, to the greatest practicable extent and with all 21
necessary changes-- 22
(i) the same as the practitioner's right to engage in 23
legal practice in the practitioner's home 24
jurisdiction; and 25
(ii) subject to any condition applicable to the 26
practitioner's right to engage in legal practice in 27
that jurisdiction, including any conditions imposed 28
on his or her admission to the legal profession in 29
this or another jurisdiction. 30
(3) If there is an inconsistency between conditions mentioned in 31
subsection (2)(a) and conditions mentioned in subsection 32
(2)(b), the conditions the relevant regulatory authority 33
considers more onerous prevail to the extent of the 34
inconsistency. 35
s 76 86 s 77
Legal Profession Bill 2007
(4) An interstate legal practitioner must not engage in legal 1
practice in this jurisdiction in a way that is not authorised 2
under this Act or in contravention of any condition mentioned 3
in this section. 4
76 Additional condition on interstate legal practitioner 5
engaging in legal practice in this jurisdiction 6
(1) The relevant regulatory authority may impose a condition on 7
an interstate legal practitioner engaged in legal practice in this 8
jurisdiction that the authority may impose under this Act on a 9
local practising certificate at the time it is granted or renewed. 10
(2) However, conditions imposed under this section must not be 11
more onerous than conditions applying to local legal 12
practitioners. 13
(3) If the regulatory authority imposes a condition on an interstate 14
legal practitioner engaged in legal practice in this 15
jurisdiction-- 16
(a) the authority must give the interstate legal practitioner 17
an information notice about the decision to impose the 18
condition; and 19
(b) the interstate legal practitioner may appeal to the 20
Supreme Court against the decision within 28 days after 21
the day the information notice is given to the certificate 22
holder. 23
(4) An interstate legal practitioner must not contravene a 24
condition imposed under this section. 25
77 Special provision about interstate legal practitioner 26
engaging in unsupervised legal practice in this 27
jurisdiction 28
(1) An interstate legal practitioner must not engage in 29
unsupervised legal practice in this jurisdiction unless-- 30
(a) if the practitioner completed supervised legal training to 31
qualify for admission to the legal profession--the 32
practitioner has undertaken a period or periods 33
equivalent to 18 months supervised legal practice, 34
s 78 87 s 79
Legal Profession Bill 2007
worked out under a regulation, after the date the 1
practitioner's first practising certificate was granted; or 2
(b) if the interstate legal practitioner completed other 3
practical legal training to qualify for admission to the 4
legal profession in this or another jurisdiction--the 5
practitioner has undertaken a period or periods 6
equivalent to 2 years supervised legal practice, worked 7
out under a regulation, after the date the practitioner's 8
first practising certificate was granted. 9
(2) However, subsection (1)-- 10
(a) does not apply if the interstate legal practitioner is 11
exempt from the requirement for supervised legal 12
practice in the practitioner's home jurisdiction; or 13
(b) applies to the interstate legal practitioner only to the 14
extent of a shorter period if the required period of 15
supervised legal practice has been reduced for the 16
practitioner in the practitioner's home jurisdiction. 17
(3) In this section-- 18
supervised legal training means practical legal training 19
principally under the supervision of an Australian lawyer, 20
whether involving articles of clerkship or otherwise. 21
78 Interstate legal practitioner is officer of Supreme Court 22
An interstate legal practitioner engaged in legal practice in 23
this jurisdiction has all the duties and obligations of an officer 24
of the Supreme Court, and for those duties and obligations, is 25
subject to the jurisdiction of the Supreme Court. 26
Division 10 Miscellaneous 27
79 Protocols 28
(1) A regulatory authority may enter into arrangements 29
(jurisdiction protocols) with regulatory authorities of other 30
jurisdictions about deciding-- 31
s 80 88 s 80
Legal Profession Bill 2007
(a) the jurisdiction in which an Australian lawyer practises 1
law principally or can reasonably expect to practise law 2
principally; or 3
(b) the circumstances in which an arrangement under which 4
an Australian legal practitioner practises in a 5
jurisdiction-- 6
(i) may be regarded as being of a temporary nature; or 7
(ii) ceases to be of a temporary nature; or 8
(c) the circumstances in which an Australian legal 9
practitioner may reasonably expect to practise law 10
principally in a jurisdiction during the currency of the 11
practitioner's practising certificate. 12
(2) For this Act, and to the extent that jurisdiction protocols are 13
relevant, a matter mentioned in subsection (1)(a), (b) or (c) 14
must be decided under the jurisdiction protocols. 15
(3) The regulatory authority may enter into an arrangement that 16
amends, revokes or replaces a jurisdiction protocol. 17
(4) A jurisdiction protocol, or an amendment, revocation or 18
replacement of a jurisdiction protocol, has effect in this 19
jurisdiction only to the extent it is approved under a 20
regulation. 21
80 Consideration of applicant for local practising certificate 22
and certificate holder 23
(1) The purpose of this section is to enable a regulatory authority 24
to obtain a document or information, or a person's 25
cooperation, to the extent necessary for the authority to 26
consider whether or not-- 27
(a) to grant or renew a local practising certificate; or 28
(b) to amend, suspend or cancel a local practising 29
certificate. 30
(2) The relevant regulatory authority may, by written notice to the 31
applicant or certificate holder, ask the applicant or certificate 32
holder-- 33
s 81 89 s 81
Legal Profession Bill 2007
(a) to give it a stated document or information that the 1
authority believes is necessary for the authority's 2
consideration about a local practising certificate; or 3
(b) to cooperate in a stated way with the authority in an 4
investigation or inquiry that the authority believes is 5
necessary for the authority's consideration about a local 6
practising certificate. 7
(3) The regulatory authority may decide not to grant or renew a 8
local practising certificate, or to amend, suspend or cancel a 9
local practising certificate, if the applicant or the certificate 10
holder fails-- 11
(a) to give the stated documents or information as requested 12
under subsection (2); or 13
(b) to cooperate with the authority in its investigations or 14
inquiries as requested under subsection (2). 15
81 Register of local practising certificates 16
(1) A regulatory authority must, in the way it considers 17
appropriate, keep a register of the names of Australian 18
lawyers to whom it grants local practising certificates. 19
(2) The register must-- 20
(a) state conditions, if any, imposed on a local practising 21
certificate relating to the certificate holder engaging in 22
legal practice; and 23
(b) include other particulars prescribed under a regulation. 24
(3) A regulatory authority must ensure that an up-to-date version 25
of its register is available, without charge, for public 26
inspection-- 27
(a) at the authority's principal place of business during 28
normal working hours; or 29
(b) on the authority's internet site or an internet site 30
identified on the authority's internet site. 31
(4) However, a regulation may provide for a person's name not to 32
be included in the register or for that person's name as it 33
appears in the register not to be available for public 34
inspection. 35
s 82 90 s 83
Legal Profession Bill 2007
Example of a regulation-- 1
A regulation may provide for a system of applying to a regulatory 2
authority for the suppression of a person's name if the person is being 3
stalked by a previous client or has been otherwise threatened with 4
violence by someone. 5
82 Supreme Court orders about conditions 6
(1) A regulatory authority may apply to the Supreme Court for an 7
order that an Australian lawyer not contravene a condition 8
imposed under this part. 9
(2) The Supreme Court may make any order it considers 10
appropriate on the application. 11
83 Regulatory authority may charge reasonable fees 12
(1) A regulatory authority may charge fees for services that it 13
provides, including, for example, the services provided by the 14
authority as part of performing its functions under this Act. 15
Example of a service that a regulatory authority provides as part of 16
performing its functions under this Act-- 17
granting or renewing a practising certificate 18
(2) The fee for a service must be reasonable having regard to the 19
cost to the regulatory authority of performing all of its 20
functions under this Act and the funding that the authority has 21
received under this Act, and a fee for a service is not 22
unreasonable only because the particular fee is more than the 23
cost of providing the specific service. 24
(3) The fees set by a regulatory authority must be included in its 25
administration rules. 26
(4) Despite subsection (1), a regulatory authority may not charge 27
a fee for a service provided to another entity that has functions 28
under this Act except so far as the other entity has arranged, 29
on a commercial basis, for the regulatory authority to perform 30
a service associated with the functions of the other entity. 31
s 84 91 s 85
Legal Profession Bill 2007
Part 2.5 Suitability reports 1
Division 1 Preliminary 2
84 Main purpose of pt 2.5 3
The main purpose of this part is to ensure police reports and 4
health assessment reports may be obtained when this Act has 5
provided for the reports or assessments. 6
85 Definitions for pt 2.5 7
In this part-- 8
commissioner of police means the commissioner of the police 9
service. 10
interstate registration means registration under a 11
corresponding law as a locally registered foreign lawyer under 12
that law. 13
Note-- 14
A person granted interstate registration would be an interstate-registered 15
foreign lawyer under this Act. 16
legal practice includes the practice of foreign law in this 17
jurisdiction by a foreign lawyer. 18
local registration means registration under this Act as a 19
locally registered foreign lawyer. 20
registration means local registration or interstate registration. 21
relevant authority means-- 22
(a) for an applicant for admission--the board; or 23
(b) for an applicant for the grant or renewal of a local 24
practising certificate or local registration, for the holder 25
of a local practising certificate or for a locally registered 26
foreign lawyer--the relevant regulatory authority. 27
subject person means-- 28
(a) an applicant for admission; or 29
s 86 92 s 86
Legal Profession Bill 2007
(b) an applicant for the grant or renewal of a local practising 1
certificate; or 2
(c) the holder of a local practising certificate; or 3
(d) an applicant for registration as a locally registered 4
foreign lawyer; or 5
(e) a locally registered foreign lawyer. 6
suitability report means a police report or health assessment 7
report prepared under this part, the Legal Profession Act 2004, 8
chapter 7, part 1, or a corresponding law, and includes a copy 9
of a report or a part of a report or copy. 10
Division 2 Police reports 11
86 Relevant authority may ask for police report 12
(1) A relevant authority may ask the commissioner of police for a 13
written report about whether a subject person has any 14
convictions for offences. 15
(2) However, a regulatory authority must not ask for a report 16
about a local legal practitioner or a locally registered foreign 17
lawyer unless the authority considers it appropriate. 18
(3) Subsection (2) applies to the regulatory authority in relation to 19
a local legal practitioner whether or not the practitioner is 20
applying for the renewal of the local practising certificate or 21
applying for another practising certificate. 22
(4) The commissioner of police must give the report to the 23
authority. 24
(5) The report must contain only information in the possession of 25
the commissioner of police or to which the commissioner has 26
access. 27
s 87 93 s 88
Legal Profession Bill 2007
Division 3 Health assessments 1
87 Health assessment 2
(1) This section applies if a relevant authority believes a subject 3
person currently is unable to satisfactorily carry out the 4
inherent requirements of practice as an Australian legal 5
practitioner. 6
(2) The relevant authority may require the subject person to 7
undergo a health assessment by a person appointed by the 8
relevant authority. 9
(3) If the relevant authority decides to require the health 10
assessment, the authority must give the subject person an 11
information notice about the decision to require the 12
assessment that includes-- 13
(a) the name and qualifications of the person appointed by 14
the authority to conduct the assessment; and 15
(b) a stated date, and a stated time and place, for the 16
assessment that must be reasonable having regard to the 17
circumstances of the subject person as known to the 18
relevant authority. 19
(4) The stated date must be no sooner than 28 days after the 20
information notice is given to the subject person unless the 21
person and the relevant authority agree, in writing, to an 22
earlier date. 23
(5) The subject person may appeal to the Supreme Court against 24
the decision within 28 days after the day the information 25
notice is given to the subject person. 26
88 Appointment of health assessor 27
(1) The relevant authority may appoint 1 or more appropriately 28
qualified persons (health assessors) to conduct all or part of a 29
health assessment under this division of a subject person. 30
(2) At least 1 health assessor must be a registered medical 31
practitioner. 32
s 89 94 s 89
Legal Profession Bill 2007
(3) If the relevant authority considers the subject person's 1
criminal history is relevant to the assessment, the authority 2
may disclose the history to the health assessor. 3
(4) The Criminal Law (Rehabilitation of Offenders) Act 1986 4
does not apply to the disclosure. 5
(5) Before appointing a person as a health assessor, the relevant 6
authority must be satisfied the person does not have a personal 7
or professional connection with the subject person that may 8
prejudice the way in which the person conducts the 9
assessment. 10
(6) In this section-- 11
appropriately qualified, in relation to a registered medical 12
practitioner or other person conducting a health assessment, 13
includes having the qualifications, experience, skills or 14
knowledge appropriate to conduct the assessment. 15
89 Health assessment report 16
(1) A health assessor conducting all or part of a health assessment 17
of a subject person must prepare a report about the assessment 18
(health assessment report). 19
(2) The health assessment report must include-- 20
(a) the health assessor's findings as to whether the person is 21
currently unable to satisfactorily carry out the inherent 22
requirements of practice as an Australian legal 23
practitioner; and 24
(b) if the health assessor finds that the person is unable to do 25
so, the health assessor's recommendations, if any, as to a 26
condition-- 27
(i) the Supreme Court could impose on the person's 28
admission to the legal profession that would make, 29
or would be likely to make, the person suitable to 30
engage in legal practice; or 31
(ii) the relevant authority could impose on the person's 32
practising certificate or local registration that 33
would make, or would be likely to make, the 34
person suitable to engage in legal practice. 35
s 90 95 s 91
Legal Profession Bill 2007
(3) The health assessor must give the health assessment report to 1
the relevant authority and a copy to the subject person. 2
90 Payment for health assessment and report 3
(1) The relevant authority that appoints a health assessor to 4
conduct all or part of a health assessment is liable for the cost 5
of the assessment conducted by, and the report prepared by, 6
the health assessor. 7
(2) However, if the report of the health assessor is adverse to a 8
person, the relevant authority may ask the person, by written 9
notice, to pay the authority the amount of the cost of the 10
assessment. 11
(3) The amount requested is a debt to the regulatory authority. 12
91 Use of health assessment report 13
(1) A report about a subject person is not admissible in any 14
proceeding, and a person can not be compelled to produce the 15
report or to give evidence about the report or its contents in 16
any proceeding. 17
(2) Subsection (1) does not apply in relation to-- 18
(a) a proceeding relating to an application by the subject 19
person for admission to the legal profession under this 20
Act, for local registration, for admission to the legal 21
profession in another jurisdiction or for interstate 22
registration; or 23
(b) a proceeding on an appeal by the subject person against 24
a decision of a relevant authority of this or another 25
jurisdiction-- 26
(i) refusing to grant or renew a practising certificate or 27
registration; or 28
(ii) imposing conditions on a practising certificate or 29
registration; or 30
(iii) amending or cancelling a practising certificate or 31
registration. 32
s 92 96 s 92
Legal Profession Bill 2007
(3) Subsection (1) does not apply if the report is admitted or 1
produced, or evidence about the report or its contents is given, 2
in a proceeding with the consent of-- 3
(a) the health assessor who prepared the report; and 4
(b) the subject person to whom the report relates. 5
(4) In this section-- 6
report means a health assessment report prepared under this 7
division, the Legal Profession Act 2004, chapter 7, part 1, 8
division 3, or a corresponding law, and includes a copy of a 9
report or a part of a report or copy. 10
Division 4 General 11
92 Confidentiality of suitability report 12
(1) A member, officer, employee or agent of a relevant authority 13
must not, directly or indirectly, disclose to anyone else a 14
suitability report, or information in a suitability report, given 15
to the relevant authority whether before or after the 16
commencement of this section. 17
Maximum penalty--200 penalty units. 18
(2) A member, officer, employee or agent of the board does not 19
contravene subsection (1) if-- 20
(a) disclosure of the suitability report or information in it to 21
someone else is authorised by the board to the extent 22
necessary to perform a function or exercise a power 23
under this Act relating to an application for admission; 24
or 25
(b) disclosure of the report or information in it is made to 26
the corresponding authority for the board of another 27
jurisdiction in which the person has applied for 28
admission to the legal profession; or 29
(c) the disclosure is made with the consent of the person to 30
whom it relates and, in the case of a health assessment, 31
the health assessor; or 32
(d) the disclosure is otherwise required or permitted by law. 33
s 92 97 s 92
Legal Profession Bill 2007
(3) A member, officer, employee or agent of a regulatory 1
authority does not contravene subsection (1) if-- 2
(a) disclosure of the suitability report or information in it to 3
someone else is authorised by the regulatory authority to 4
the extent necessary to perform a function or exercise a 5
power under this Act in relation to-- 6
(i) an application for the grant or renewal of a local 7
practising certificate or for the grant or renewal of 8
local registration; or 9
(ii) the imposition or proposed imposition of 10
conditions on a local practising certificate or local 11
registration; or 12
(iii) the amendment, suspension or cancellation or the 13
proposed amendment, suspension or cancellation, 14
of a local practising certificate or local registration; 15
or 16
(b) disclosure of the suitability report or information in it is 17
made to the regulatory authority of another jurisdiction 18
when the person to whom it relates is an applicant for 19
the grant or renewal of a practising certificate or the 20
grant or renewal of interstate registration, or the holder 21
of an interstate practising certificate or an 22
interstate-registered foreign lawyer, under a 23
corresponding law of the other jurisdiction; or 24
(c) the disclosure is made with the consent of the person to 25
whom it relates and, in the case of a health assessment, 26
the health assessor; or 27
(d) the disclosure is otherwise required or permitted by law. 28
(4) The relevant authority must ensure a suitability report is 29
destroyed after-- 30
(a) the application concerned is finally decided or is 31
withdrawn; or 32
(b) other action relating to the imposition of conditions on a 33
practising certificate or local registration, or the 34
amendment, suspension or cancellation of a practising 35
certificate or local registration, is taken or a decision is 36
taken not to proceed with any other action. 37
s 93 98 s 94
Legal Profession Bill 2007
(5) Subsection (1) does not apply to information in a suitability 1
report if that information was given or obtained by the 2
relevant authority other than as part of the suitability report. 3
Example for subsection (5)-- 4
A suitability report may contain information that an applicant may have 5
already disclosed, including name, address, or some information about 6
previous convictions or a previous disqualification from being a lawyer. 7
93 Operation of pt 2.5 8
(1) Nothing in this part authorises the board to seek a suitability 9
report about-- 10
(a) an applicant for the grant or renewal of a local practising 11
certificate; or 12
(b) the holder of a local practising certificate. 13
(2) Nothing in this part authorises a relevant authority to seek a 14
suitability report about an applicant for admission. 15
Part 2.6 Inter-jurisdictional provisions 16
regarding admission and 17
practising certificates 18
Division 1 Preliminary 19
94 Main purpose of pt 2.6 20
The main purpose of this part is to provide for the notification 21
of and response to action taken by courts and other regulatory 22
authorities in relation to the admission of persons to the legal 23
profession and their right to engage in legal practice in 24
Australia. 25
s 95 99 s 97
Legal Profession Bill 2007
95 Relationship of this part with ch 4 1
This part does not affect a function or power under chapter 2
4.16 3
Division 2 Notifications to be given by local 4
authorities to interstate authorities 5
96 Notification to other jurisdictions about application for 6
admission 7
(1) This section applies to each application for admission. 8
(2) The board may give the corresponding authority of another 9
jurisdiction written notice of any of the following to the extent 10
that it is relevant to the corresponding authority's functions or 11
powers-- 12
(a) the making of the application; 13
(b) the board's recommendation under section 3917 in 14
relation to the application; 15
(c) the withdrawal of the application after an investigation 16
or inquiry is made or started, or a suitability report is 17
sought or obtained, in relation to the application or the 18
applicant; 19
(d) the refusal of the Supreme Court to admit the applicant 20
to the legal profession under this Act. 21
(3) The notice must state the applicant's name and address as last 22
known to the board and may contain other relevant 23
information. 24
97 Notification to other jurisdictions about removal from 25
local roll 26
(1) This section applies if a person's name is removed from the 27
local roll, except if the removal happens under section 103. 28
16 Chapter 4 (Complaints and discipline)
17 Section 39 (Role of the board relating to application for admission)
s 98 100 s 98
Legal Profession Bill 2007
(2) The Brisbane registrar must give the corresponding authority 1
of each other jurisdiction, and the registrar or other proper 2
officer of the High Court of Australia, written notice of the 3
removal. 4
(3) The notice must state the following-- 5
(a) the person's name and address as last known to the 6
Brisbane registrar; 7
(b) the date the person's name was removed from the roll; 8
(c) the reason for removing the person's name; 9
(d) other information prescribed under a regulation. 10
98 Law society and bar association to notify other 11
jurisdictions about particular matters 12
(1) Subsection (2) applies if-- 13
(a) a regulatory authority takes any of the following actions 14
in relation to an Australian lawyer-- 15
(i) a refusal to grant or renew a local practising 16
certificate for the lawyer; 17
(ii) a suspension or cancellation of the lawyer's local 18
practising certificate; or 19
(b) the lawyer successfully appeals against the taking of an 20
action mentioned in paragraph (a). 21
(2) The regulatory authority must give the corresponding 22
authorities written notice of the action taken or the result of 23
the appeal. 24
(3) The notice must state each of the following-- 25
(a) the lawyer's name and address as last known to the 26
regulatory authority; 27
(b) particulars of-- 28
(i) the action taken and the reasons for it; or 29
(ii) the result of the appeal; 30
(c) other relevant information that the authority considers 31
should be included in the notice. 32
s 99 101 s 100
Legal Profession Bill 2007
(4) The regulatory authority may give the corresponding 1
authorities written notice of a condition imposed on an 2
Australian lawyer's local practising certificate. 3
Division 3 Notifications to be given by lawyers 4
to local authorities 5
99 Lawyer to give notice of removal in another jurisdiction 6
(1) If a local lawyer's name has been removed from an interstate 7
roll, the lawyer must give the Brisbane registrar written notice 8
of the removal. 9
Maximum penalty--100 penalty units. 10
(2) If a local legal practitioner's name has been removed from an 11
interstate roll, the practitioner must give the relevant 12
regulatory authority written notice of the removal. 13
Maximum penalty--100 penalty units. 14
(3) This section does not apply if the name has been removed 15
from an interstate roll under a corresponding law to section 16
103. 17
100 Lawyer to give notice of interstate orders 18
(1) This section applies if an order is made under a corresponding 19
law recommending that the name of a local lawyer be 20
removed from the local roll. 21
(2) As soon as practicable (but not more than 7 days) after the 22
local lawyer is given notice of the action or otherwise 23
becomes aware of it, the lawyer must give the Brisbane 24
registrar written notice of the order. 25
Maximum penalty--200 penalty units. 26
(3) If an order is made under a corresponding law in relation to a 27
local legal practitioner that-- 28
(a) the practitioner's local practising certificate be 29
suspended or cancelled; or 30
s 101 102 s 102
Legal Profession Bill 2007
(b) a local practising certificate not be granted to the 1
practitioner for a period, or 2
(c) an order that conditions be imposed on the practitioner's 3
local practising certificate; 4
the practitioner must, as soon as practicable (but not more 5
than 7 days) after the practitioner is given notice of the order 6
or otherwise becomes aware of it, give the regulatory 7
authority who granted or renewed the practitioner's local 8
practising certificate written notice of the order. 9
Maximum penalty--200 penalty units. 10
101 Lawyer to give notice of foreign regulatory action 11
(1) This section applies if a foreign regulatory action has been 12
taken in relation to a person. 13
(2) If the person is a local lawyer, as soon as practicable (but not 14
more than 7 days) after the person is given notice of the action 15
or otherwise becomes aware of it, the person must give the 16
Brisbane registrar written notice of the action taken. 17
Maximum penalty--200 penalty units. 18
(3) If the person is a local legal practitioner, as soon as practicable 19
(but not more than 7 days) after the person is given notice of 20
the action or otherwise becomes aware of it, the person must 21
give the regulatory authority who granted or renewed the 22
practitioner's local practising certificate written notice of the 23
action taken. 24
Maximum penalty--200 penalty units. 25
102 Provisions relating to requirement to notify 26
A notice to be given under this division by a person must-- 27
(a) state his or her name and address; and 28
(b) disclose full details of the action to which the notice 29
relates, including the date on which that action was 30
taken; and 31
(c) be accompanied by a copy of any official notification 32
given to him or her in connection with the action. 33
s 103 103 s 104
Legal Profession Bill 2007
Division 4 Taking of action by local authorities 1
in response to notifications 2
received 3
103 Peremptory removal of local lawyer's name from local roll 4
following removal in another jurisdiction 5
(1) This section applies if the Brisbane registrar is satisfied that-- 6
(a) a local lawyer's name has been removed from an 7
interstate roll; and 8
(b) no order under section 107(1)(a) is, at the time of that 9
removal, in force in relation to the lawyer's name. 10
(2) The Brisbane registrar must remove, or arrange with another 11
registrar for the removal of, the lawyer's name from the local 12
roll. 13
(3) The Brisbane registrar may, but need not, give the lawyer 14
written notice of the date on which the registrar proposes to 15
remove the name from the local roll. 16
(4) The Brisbane registrar must give the former local lawyer 17
written notice of the removal of the name from the local roll, 18
unless notice of the date of the proposed removal was 19
previously given. 20
(5) The name of the former local lawyer is, on his or her 21
application to the Brisbane registrar or on the registrar's own 22
initiative, to be restored to the local roll if the name is restored 23
to the interstate roll. 24
(6) Nothing in this section prevents the former local lawyer from 25
afterwards making an application for admission. 26
104 Peremptory cancellation of local practising certificate 27
following removal of name from interstate roll 28
(1) This section applies if-- 29
(a) a person's name is removed from an interstate roll but he 30
or she remains an Australian lawyer; and 31
(b) the person is the holder of a local practising certificate; 32
and 33
s 105 104 s 105
Legal Profession Bill 2007
(c) no order under section 107(1)(b) is, at the time of that 1
removal, in force in relation to the person's local 2
practising certificate. 3
(2) The relevant regulatory authority must cancel the local 4
practising certificate. 5
(3) The relevant regulatory authority may, but need not, give the 6
person notice of the date on which it proposes to cancel the 7
local practising certificate. 8
(4) The relevant regulatory authority must give the person notice 9
of the cancellation, unless notice of the date of the proposed 10
cancellation was previously given. 11
(5) Nothing in this section prevents the former local lawyer from 12
applying for a local practising certificate at a later time. 13
105 Show cause procedure for removal of lawyer's name from 14
local roll following foreign regulatory action 15
(1) This section applies if the appropriate authority is satisfied 16
that-- 17
(a) foreign regulatory action has been taken in relation to a 18
local lawyer, whether before or after the commencement 19
of this section; and 20
(b) no order mentioned in section 107(1)(a) is in force in 21
relation to the action taken. 22
(2) The appropriate authority may give the local lawyer a notice 23
stating that the appropriate authority will apply to the 24
Supreme Court for an order that the local lawyer's name be 25
removed from the local roll unless the lawyer shows cause to 26
the appropriate authority why his or her name should not be 27
removed. 28
(3) If the local lawyer does not satisfy the appropriate authority 29
that his or her name should not be removed from the local roll, 30
the appropriate authority may apply to the Supreme Court for 31
an order that the local lawyer's name be removed from the 32
local roll. 33
(4) Before applying for an order that the local lawyer's name be 34
removed, the appropriate authority must afford the local 35
s 106 105 s 106
Legal Profession Bill 2007
lawyer a reasonable opportunity to show cause why his or her 1
name should not be removed. 2
(5) The Supreme Court may, on application made under this 3
section, order the local lawyer's name be removed from the 4
local roll or may refuse to do so. 5
(6) The local lawyer is entitled to appear before and be heard by 6
the Supreme Court at a hearing relating to an application 7
under this section. 8
(7) In this section-- 9
appropriate authority means-- 10
(a) if the local lawyer holds a local practising 11
certificate--the relevant regulatory authority in relation 12
to the local lawyer; or 13
(b) if the local lawyer does not hold a local practising 14
certificate but holds an interstate practising 15
certificate--the regulatory authority as agreed between 16
the regulatory authorities; or 17
(c) if the local lawyer holds neither a local practising 18
certificate nor an interstate practising certificate--the 19
law society. 20
106 Show cause procedure for cancellation of local practising 21
certificate following foreign regulatory action 22
(1) This section applies if a regulatory authority that granted or 23
renewed a practising certificate is satisfied that-- 24
(a) foreign regulatory action has been taken in relation to a 25
the local legal practitioner, whether before or after the 26
commencement of this section; and 27
(b) no order mentioned in section 107(1)(b) is in force in 28
relation to the foreign regulatory action. 29
(2) The regulatory authority may give the local legal practitioner 30
a notice stating that the regulatory authority proposes to 31
cancel the local practising certificate unless the practitioner 32
shows cause to the authority why the certificate should not be 33
cancelled. 34
s 107 106 s 107
Legal Profession Bill 2007
(3) The regulatory authority must afford the person a reasonable 1
opportunity to show cause why his or her practising certificate 2
should not be cancelled. 3
(4) If the local legal practitioner does not satisfy the regulatory 4
authority that the practising certificate should not be 5
cancelled, the regulatory authority may cancel the certificate. 6
(5) The regulatory authority must give the local legal practitioner 7
an information notice about its decision to cancel the 8
practising certificate. 9
(6) The person may appeal to the Supreme Court against a 10
decision of the relevant regulatory authority to cancel his or 11
her practising certificate. 12
(7) The Supreme Court may make any order it considers 13
appropriate on the appeal. 14
107 Order for non-removal of name or non-cancellation of 15
local practising certificate 16
(1) If an Australian lawyer reasonably expects his or her name 17
will be removed from an interstate roll or foreign regulatory 18
action will be taken against him or her, the lawyer may apply 19
to the Supreme Court for either or both of the following-- 20
(a) an order that his or her name not be removed from the 21
local roll under section 103 or 105; 22
(b) an order that his or her local practising certificate not be 23
cancelled under section 104 or 106. 24
(2) The Supreme Court-- 25
(a) may make the order or orders applied for if satisfied 26
about each of the following-- 27
(i) the Australian lawyer's name is likely to be 28
removed from the interstate roll or the foreign 29
regulatory action is likely to be taken; 30
(ii) the reason for the removal of the name, or the 31
taking of the foreign regulatory action, will not 32
involve disciplinary action or the possibility of 33
disciplinary action; or 34
(b) may refuse to make an order. 35
s 108 107 s 109
Legal Profession Bill 2007
(3) An order under this section may be made subject to any 1
conditions the Supreme Court considers appropriate and 2
remains in force for the period stated in it. 3
(4) The Supreme Court may revoke an order made under this 4
section. 5
(5) If the Supreme Court revokes an order made under this 6
section, to the extent relevant, when the revocation takes 7
effect the other provisions of this division apply as if the 8
Australian lawyer's name were removed from the interstate 9
roll or the foreign regulatory action were taken. 10
(6) Nothing in this section affects action being taken in relation to 11
the Australian lawyer under other provisions of this Act. 12
108 Local authority may give information to other local 13
authority 14
(1) A local authority that receives information from an authority 15
of another jurisdiction under provisions of a corresponding 16
law that correspond to this part may give the information to 17
any other local authority. 18
(2) In this section-- 19
local authority means an entity relevant to this jurisdiction 20
that has functions or powers under this Act. 21
Part 2.7 Incorporated legal practices 22
and multi-disciplinary 23
partnerships 24
Division 1 Preliminary 25
109 Main purposes of pt 2.7 26
The main purposes of this part are as follows-- 27
s 110 108 s 110
Legal Profession Bill 2007
(a) to regulate the provision of legal services by 1
corporations in this jurisdiction; 2
(b) to regulate the provision of legal services in this 3
jurisdiction in conjunction with the provision of other 4
services, whether by a corporation or persons acting in 5
partnership together. 6
110 Definitions for pt 2.7 7
In this part-- 8
corporation means-- 9
(a) a company within the meaning of the Corporations Act; 10
or 11
(b) a body corporate prescribed under a regulation. 12
director means-- 13
(a) in relation to a company within the meaning of the 14
Corporations Act--a director as defined in section 9 of 15
that Act; or 16
(b) in relation to another body corporate prescribed under a 17
regulation--a person stated or described in the 18
regulation as a director. 19
legal practitioner director means a director of an incorporated 20
legal practice who is an Australian legal practitioner holding a 21
practising certificate entitling the practitioner to practise as a 22
principal of a law practice. 23
legal practitioner partner means a partner of a 24
multi-disciplinary partnership who is an Australian legal 25
practitioner holding a practising certificate entitling the 26
practitioner to practise as a principal of a law practice. 27
officer means-- 28
(a) in relation to a company within the meaning of the 29
Corporations Act--an officer as defined in section 9 of 30
that Act; or 31
(b) in relation to any other body corporate, or a body 32
corporate of a kind, prescribed under a regulation--a 33
person stated or described in the regulation. 34
s 111 109 s 111
Legal Profession Bill 2007
professional obligations, of an Australian legal practitioner, 1
include-- 2
(a) duties to the Supreme Court; and 3
(b) obligations in connection with conflicts of interest; and 4
(c) duties to clients, including disclosure; and 5
(d) ethical rules the legal practitioner must observe. 6
related body corporate means-- 7
(a) in relation to a company within the meaning of the 8
Corporations Act--a related body corporate within the 9
meaning of section 50 of that Act; or 10
(b) in relation to another body corporate prescribed under a 11
regulation--a person prescribed under a regulation as a 12
related body corporate. 13
Division 2 Incorporated legal practices 14
providing legal services 15
111 Nature of incorporated legal practice 16
(1) A corporation is an incorporated legal practice if it engages 17
in legal practice in this jurisdiction, whether or not it provides 18
services that are not legal services. 19
(2) However, a corporation is not an incorporated legal practice if 20
the only legal services that the corporation provides are either 21
or both of the following-- 22
(a) in-house legal services; 23
(b) services that are not legally required to be provided by 24
an Australian legal practitioner and that are provided by 25
an officer or employee of the corporation who is not an 26
Australian legal practitioner. 27
(3) Also, a corporation that provides legal services is not an 28
incorporated legal practice if the corporation is prescribed 29
under a regulation as a corporation that is not an incorporated 30
legal practice. 31
s 112 110 s 113
Legal Profession Bill 2007
(4) Despite subsection (2) and (3), a corporation that is not an 1
incorporated legal practice as mentioned in those subsections 2
must comply with any regulation applying provisions of this 3
part, with or without changes, to that corporation. 4
(5) Nothing in this part affects or applies to the provision by an 5
incorporated legal practice of legal services in 1 or more other 6
jurisdictions. 7
112 Non-legal services and businesses of incorporated legal 8
practices 9
(1) An incorporated legal practice may provide any service and 10
conduct any business that the corporation may lawfully 11
provide or conduct, except as provided by this section. 12
(2) An incorporated legal practice, or a related body corporate of 13
an incorporated legal practice, must not conduct a managed 14
investment scheme. 15
(3) Also, if a regulation prohibits an incorporated legal practice, 16
or a related body corporate of the practice, from providing a 17
service or conducting a business of a kind stated in the 18
regulation, the practice must not provide the service or 19
conduct the business. 20
Note-- 21
Contravention of this section or a regulation mentioned in subsection (3) 22
is a ground for banning an incorporated legal practice under section 23
132.18 24
113 Corporations eligible to be incorporated legal practices 25
(1) Subject to this part, a corporation is eligible to be an 26
incorporated legal practice. 27
(2) This section does not authorise a corporation to provide legal 28
services if the corporation is prohibited from doing so under 29
an Act or law, whether of this jurisdiction, the Commonwealth 30
or another jurisdiction, under which the corporation is 31
incorporated or its affairs are regulated. 32
18 Section 132 (Banning of incorporated legal practices)
s 114 111 s 115
Legal Profession Bill 2007
(3) An incorporated legal practice is not required to hold an 1
Australian practising certificate. 2
114 Notice of intention to start providing legal services 3
(1) Before a corporation starts to engage in legal practice in this 4
jurisdiction, the corporation must give the law society notice, 5
in the law society approved form, of its intention to do so. 6
(2) A corporation must not engage in legal practice in this 7
jurisdiction if it has not given a notice under subsection (1). 8
Maximum penalty-- 9
(a) for a person guilty under the Criminal Code, chapter 2, 10
of an offence or for section 702--300 penalty units; or 11
(b) for a corporation--1500 penalty units. 12
(3) A corporation that starts to engage in legal practice in this 13
jurisdiction without giving a notice under subsection (1) is in 14
default of this section until it gives the law society notice, in 15
the law society approved form, of the failure to comply with 16
that subsection and the fact that it has started to engage in 17
legal practice. 18
(4) The giving of a notice under subsection (3) does not affect a 19
liability under subsection (1) or (2). 20
(5) A corporation is not entitled to recover any amount for 21
anything the corporation did in contravention of subsection 22
(2). 23
(6) A person may recover from a corporation, as a debt due to the 24
person, any amount the person paid to or at the direction of 25
the corporation for anything the corporation did in 26
contravention of subsection (2). 27
(7) This section does not apply to a corporation mentioned in 28
section 111(2) or (3). 29
115 Prohibition on corporations or directors etc. representing 30
that corporation is incorporated legal practice 31
(1) A corporation must not, without a reasonable excuse, 32
represent or advertise that the corporation is an incorporated 33
s 116 112 s 116
Legal Profession Bill 2007
legal practice unless a notice in relation to the corporation has 1
been given under section 114. 2
Maximum penalty--300 penalty units. 3
(2) A director, officer, employee or agent of a corporation must 4
not, without a reasonable excuse, represent or advertise that 5
the corporation is an incorporated legal practice unless a 6
notice in relation to the corporation has been given under 7
section 114. 8
Maximum penalty--300 penalty units or 2 years 9
imprisonment. 10
(3) A reference in this section to representing or advertising that a 11
corporation is an incorporated legal practice includes-- 12
(a) for the corporation--the corporation doing anything that 13
states or implies that the corporation is entitled to 14
engage in legal practice; or 15
(b) for a director, officer, employee or agent of a 16
corporation--the director, officer, employee or agent of 17
the corporation doing anything that states or implies that 18
the corporation is entitled to engage in legal practice. 19
116 Notice of termination of provision of legal services 20
(1) A corporation must, within the period prescribed under a 21
regulation after it stops engaging in legal practice in this 22
jurisdiction as an incorporated legal practice, give the law 23
society notice, in the law society approved form, of that fact. 24
Maximum penalty-- 25
(a) for a person guilty under the Criminal Code, chapter 2, 26
of an offence or for section 702--20 penalty units; or 27
(b) for a corporation--100 penalty units. 28
(2) A regulation may make provision about circumstances that 29
may be taken into account when deciding whether and when a 30
corporation stops engaging in legal practice in this 31
jurisdiction. 32
(3) Circumstances prescribed under a regulation are examples, 33
and do not limit, whether and when a corporation stops 34
engaging in legal practice in this jurisdiction. 35
s 117 113 s 117
Legal Profession Bill 2007
Division 3 Legal practitioner directors, and 1
other legal practitioners employed 2
by incorporated legal practices 3
117 Incorporated legal practice must have legal practitioner 4
director 5
(1) An incorporated legal practice is required to have at least 1 6
legal practitioner director. 7
(2) Each legal practitioner director of an incorporated legal 8
practice is, for the purposes of this Act, responsible for the 9
management of the legal services provided in this jurisdiction 10
by the practice. 11
(3) Each legal practitioner director of an incorporated legal 12
practice must ensure that appropriate management systems 13
are implemented and kept to enable the provision of legal 14
services by the practice-- 15
(a) under the professional obligations of Australian legal 16
practitioners and other obligations imposed under this 17
Act; and 18
(b) so that the obligations of the Australian legal 19
practitioners who are officers or employees of the 20
practice are not affected by other officers or employees 21
of the practice. 22
(4) If it ought reasonably to be apparent to a legal practitioner 23
director of an incorporated legal practice that the provision of 24
legal services by the practice will result in breaches of the 25
professional obligations of an Australian legal practitioner or 26
other obligations imposed under this Act, the director must 27
take all reasonable action available to the director to ensure 28
that-- 29
(a) the breaches do not happen; and 30
(b) if a breach has happened--appropriate remedial action 31
is taken in relation to the breach. 32
(5) Nothing in this part derogates from the obligations or 33
liabilities of a director of an incorporated legal practice under 34
another law. 35
s 118 114 s 118
Legal Profession Bill 2007
(6) The reference in subsection (1) to a legal practitioner director 1
does not include a reference to a person who is not validly 2
appointed as a director, but this subsection does not affect the 3
meaning of the expression `legal practitioner director' in other 4
provisions of this Act. 5
118 Obligations of legal practitioner director relating to 6
misconduct 7
(1) Each of the following is capable of constituting unsatisfactory 8
professional conduct or professional misconduct by a legal 9
practitioner director-- 10
(a) unsatisfactory professional conduct or professional 11
misconduct of an Australian legal practitioner employed 12
by the incorporated legal practice; 13
(b) conduct of another director, not being an Australian 14
legal practitioner, of the incorporated legal practice that 15
adversely affects the provision of legal services by the 16
practice; 17
(c) the unsuitability of another director, not being an 18
Australian legal practitioner, of the incorporated legal 19
practice to be a director of a corporation that provides 20
legal services. 21
(2) A legal practitioner director is not guilty of unsatisfactory 22
professional conduct or professional misconduct under 23
subsection (1) if the director establishes that he or she took all 24
reasonable steps to ensure the following as the case requires-- 25
(a) Australian legal practitioners employed by the 26
incorporated legal practice did not engage in conduct or 27
misconduct mentioned in subsection (1)(a); 28
(b) directors, other than Australian legal practitioners, of the 29
incorporated legal practice did not engage in conduct 30
mentioned in subsection (1)(b); 31
(c) unsuitable directors, not being Australian legal 32
practitioners, of the incorporated legal practice were not 33
appointed or holding office as mentioned in subsection 34
(1)(c). 35
s 119 115 s 119
Legal Profession Bill 2007
(3) A legal practitioner director of an incorporated legal practice 1
must ensure that all reasonable action available to the legal 2
practitioner director is taken to deal with any unsatisfactory 3
professional conduct or professional misconduct of an 4
Australian legal practitioner employed by the practice. 5
119 Incorporated legal practice without legal practitioner 6
director 7
(1) An incorporated legal practice contravenes this subsection if it 8
does not have a legal practitioner director for the corporation 9
for a period exceeding 7 days. 10
(2) If an incorporated legal practice stops having a legal 11
practitioner director, the practice must give notice to the law 12
society of that fact, in the law society approved form, as soon 13
as possible after the practice stops having a legal practitioner 14
director. 15
Maximum penalty-- 16
(a) for a person guilty under the Criminal Code, chapter 2, 17
of an offence or for section 702--60 penalty units; or 18
(b) for a corporation--300 penalty units. 19
(3) An incorporated legal practice must not provide legal services 20
in this jurisdiction during any period it is taken to be in default 21
of legal practitioner director requirements as mentioned in 22
subsection (4). 23
Maximum penalty-- 24
(a) for a person guilty under the Criminal Code, chapter 2, 25
of an offence or for section 702--180 penalty units; or 26
(b) for a corporation--900 penalty units. 27
(4) An incorporated legal practice that contravenes subsection (1) 28
is taken to be in default of legal practitioner director 29
requirements under this section for the period from the end of 30
the period of 7 days until-- 31
(a) it has at least 1 legal practitioner director; or 32
(b) a person is appointed under this section, or the 33
provisions of a corresponding law, in relation to the 34
practice. 35
s 120 116 s 120
Legal Profession Bill 2007
(5) The law society may, if it considers it appropriate, appoint an 1
Australian legal practitioner who is an employee of the 2
incorporated legal practice or another person nominated by 3
the law society, in the absence of a legal practitioner director, 4
to perform or discharge the functions or duties conferred or 5
imposed on a legal practitioner director under this part. 6
(6) An Australian legal practitioner is not eligible to be appointed 7
under this section unless the legal practitioner holds an 8
unrestricted practising certificate. 9
(7) The appointment under this section of a person to perform or 10
discharge functions or duties of a legal practitioner director 11
does not, for any other purpose, confer or impose on the 12
person any of the other functions or duties of a director of the 13
incorporated legal practice. 14
(8) An incorporated legal practice does not contravene subsection 15
(1) during any period during which a person holds an 16
appointment under subsection (5) in relation to the practice. 17
(9) The reference in this section to a legal practitioner director 18
does not include a reference to a person who is not validly 19
appointed as a director, but this subsection does not affect the 20
meaning of the expression `legal practitioner director' in other 21
provisions of this Act. 22
120 Obligations and privileges of an Australian legal 23
practitioner who is an officer or employee 24
(1) An Australian legal practitioner who provides legal services 25
for an incorporated legal practice in the capacity of an officer 26
or employee of the incorporated legal practice-- 27
(a) is not excused from compliance with the professional 28
obligations, or any obligations under any law, of an 29
Australian legal practitioner; and 30
(b) does not lose the professional privileges of an Australian 31
legal practitioner. 32
(2) For the purpose only of subsection (1), the professional 33
obligations and professional privileges of an Australian legal 34
practitioner apply as if-- 35
s 121 117 s 121
Legal Profession Bill 2007
(a) for an incorporated legal practice with 2 or more legal 1
practitioner directors--the practice were a partnership 2
of the legal practitioner directors and the employees of 3
the practice were employees of the legal practitioner 4
directors; and 5
(b) for an incorporated legal practice with only 1 legal 6
practitioner director--the practice were a sole 7
practitioner and the employees of the practice were 8
employees of the legal practitioner director. 9
(3) To remove any doubt, it is declared that the law relating to 10
client legal privilege, or other legal professional privilege, is 11
not excluded or otherwise affected because an Australian legal 12
practitioner is acting in the capacity of an officer or employee 13
of an incorporated legal practice. 14
(4) The directors of an incorporated legal practice do not breach 15
their duties as directors merely because legal services are 16
provided pro bono by the Australian legal practitioners 17
employed by the practice. 18
Division 4 Particular matters including 19
application of other provisions of 20
relevant laws 21
121 Professional indemnity insurance 22
(1) An incorporated legal practice must not engage in legal 23
practice in this jurisdiction unless it has professional 24
indemnity insurance that complies with the requirements 25
prescribed under a regulation about professional indemnity 26
insurance for an incorporated legal practice. 27
Maximum penalty-- 28
(a) for a person guilty under the Criminal Code, chapter 2, 29
of an offence or for section 702--300 penalty units or 2 30
years imprisonment; or 31
(b) for a corporation--1500 penalty units. 32
s 122 118 s 123
Legal Profession Bill 2007
(2) An incorporated legal practice engaging in legal practice in 1
this jurisdiction must comply with its obligations under the 2
indemnity rules. 3
Maximum penalty-- 4
(a) for a person guilty under the Criminal Code, chapter 2, 5
of an offence or for section 702--300 penalty units or 2 6
years imprisonment; or 7
(b) for a corporation--1500 penalty units. 8
(3) Failure by a legal practitioner director of an incorporated legal 9
practice to ensure that the incorporated legal practice 10
complies with subsection (1) or (2) is capable of constituting 11
professional misconduct. 12
122 Conflicts of interest 13
(1) For the application of any law (including the common law) or 14
the legal profession rules relating to conflicts of interest to the 15
conduct of an Australian legal practitioner who is-- 16
(a) a legal practitioner director of an incorporated legal 17
practice; or 18
(b) an officer or employee of an incorporated legal practice; 19
the interests of the incorporated legal practice or any related 20
body corporate are also taken to be those of the practitioner 21
(in addition to any interests that the practitioner has apart from 22
this subsection). 23
(2) Legal profession rules may be made for or in relation to 24
additional duties and obligations in connection with conflicts 25
of interest arising out of the conduct of an incorporated legal 26
practice. 27
123 Disclosure obligations 28
(1) This section applies if a person engages an incorporated legal 29
practice to provide services that the person might reasonably 30
assume to be legal services, but does not apply if the practice 31
provides only legal services in this jurisdiction. 32
(2) Each legal practitioner director of the incorporated legal 33
practice, and any employee who is an Australian legal 34
s 124 119 s 124
Legal Profession Bill 2007
practitioner and who provides the services for the practice, 1
must ensure that a disclosure, complying with the 2
requirements of this section and a regulation, is made for this 3
section to the person about the services. 4
Maximum penalty--100 penalty units. 5
(3) The disclosure must be made by giving the person a written 6
notice-- 7
(a) setting out the services to be provided; and 8
(b) stating whether or not all the legal services will be 9
provided by an Australian legal practitioner; and 10
(c) if some or all of the legal services to be provided will 11
not be provided by an Australian legal 12
practitioner--identifying those services and indicating 13
the status or qualifications of the person or persons who 14
will provide the legal services; and 15
(d) stating that this Act applies to the provision of legal 16
services but not to the provision of the non-legal 17
services. 18
(4) A regulation may provide for the following matters-- 19
(a) the way in which a disclosure is to be made; 20
(b) additional matters required to be disclosed in connection 21
with the provision of legal services or non-legal services 22
by an incorporated legal practice. 23
(5) Without limiting subsection (4), the additional matters may 24
include the kind of services provided by the incorporated legal 25
practice and whether those services are or are not covered by 26
the provisions of this Act, including, for example, provisions 27
about insurance. 28
(6) A disclosure under this section to a person about the provision 29
of legal services may relate to the provision of legal services 30
on 1 occasion, on more than 1 occasion or on an on-going 31
basis. 32
124 Effect of non-disclosure on provision of particular 33
services 34
(1) This section applies if-- 35
s 125 120 s 126
Legal Profession Bill 2007
(a) section 123 applies to a service that is provided to a 1
person who has engaged an incorporated legal practice 2
to provide the service and that the person might 3
reasonably assume to be a legal service; and 4
(b) a disclosure has not been made under that section about 5
the service. 6
(2) The standard of care owed by the practice in relation to the 7
service is the standard that would be applicable if the service 8
had been provided by an Australian legal practitioner. 9
125 Application of legal profession rules 10
Legal profession rules, so far as they apply to an Australian 11
legal practitioner, apply to an Australian legal practitioner 12
who is an officer or employee of an incorporated legal 13
practice, unless the rules otherwise provide. 14
126 Requirements relating to advertising 15
(1) A restriction imposed under this Act or another Act in 16
connection with advertising by Australian legal practitioners 17
applies to advertising by an incorporated legal practice in 18
relation to the provision of legal services. 19
(2) If a restriction mentioned in subsection (1) is limited to a 20
particular branch of the legal profession or persons who 21
practise in a particular style of legal practice, the restriction 22
applies only to the extent that the incorporated legal practice 23
carries on the business of that branch of the legal profession or 24
in that particular style of legal practice. 25
(3) An advertisement made in contravention of a restriction under 26
this section is, for the purposes of a disciplinary proceeding 27
taken against an Australian legal practitioner, taken to have 28
been authorised by each legal practitioner director of the 29
incorporated legal practice. 30
(4) This section does not apply if the provision by which the 31
restriction is imposed expressly excludes the application of 32
the restriction to incorporated legal practices. 33
s 127 121 s 128
Legal Profession Bill 2007
127 Extension to incorporated legal practice of vicarious 1
liability relating to failure to account and dishonesty 2
(1) This section applies to any of the following, being a 3
proceeding based on the vicarious liability of an incorporated 4
legal practice-- 5
(a) a civil proceeding relating to a failure to account for, pay 6
or deliver money or other property received by, or 7
entrusted to, the practice or to any officer or employee 8
of the practice in the course of the provision of legal 9
services by the practice, being money or other property 10
under the direct or indirect control of the practice; 11
(b) a civil proceeding for any other debt owed, or damages 12
payable, to a client because of a dishonest act or 13
omission by an Australian legal practitioner who is an 14
employee of the practice in connection with the 15
provision of legal services to the client. 16
(2) If the incorporated legal practice would not, apart from this 17
section, be vicariously liable for any acts or omissions of its 18
officers and employees in the proceeding, but would be liable 19
for those acts or omissions if the practice and those officers 20
and employees were carrying on business in partnership, the 21
practice is taken to be vicariously liable for those acts or 22
omissions. 23
128 Sharing of receipts, revenue or other income 24
(1) Nothing under this Act prevents an Australian legal 25
practitioner from sharing with an incorporated legal practice 26
receipts, revenue or other income arising from the provision 27
of legal services by the practitioner. 28
(2) This section does not extend to the sharing of receipts, 29
revenue or other income in contravention of section 129, and 30
has effect subject to section 220.19 31
19 Section 220 (Rules for Australian legal practitioners engaged in practice in the
manner of barristers)
s 129 122 s 130
Legal Profession Bill 2007
129 Disqualified persons 1
(1) An incorporated legal practice commits an offence if a person 2
who is a disqualified person-- 3
(a) is an officer or employee of the incorporated legal 4
practice, whether or not the person provides legal 5
services, or is an officer or employee of a related body 6
corporate; or 7
(b) is a partner of the incorporated legal practice in a 8
business that includes the provision of legal services; or 9
(c) shares the receipts, revenue or other income arising from 10
the provision of legal services by the incorporated legal 11
practice; or 12
(d) is engaged or paid for the provision of legal services by 13
the incorporated legal practice. 14
Maximum penalty-- 15
(a) for a person guilty under the Criminal Code, chapter 2, 16
of an offence or for section 702--60 penalty units; or 17
(b) for a corporation--300 penalty units. 18
(2) Failure by a legal practitioner director of an incorporated legal 19
practice to ensure that the incorporated legal practice 20
complies with subsection (1) is capable of constituting 21
unsatisfactory professional conduct or professional 22
misconduct. 23
Division 5 Ensuring compliance with this Act 24
by incorporated legal practices 25
130 Commissioner or law society may audit incorporated 26
legal practice 27
(1) An ILP authority may conduct an audit of an incorporated 28
legal practice about-- 29
(a) the compliance of the practice, and of its officers and 30
employees, with the requirements of-- 31
(i) this part; or 32
s 131 123 s 132
Legal Profession Bill 2007
(ii) a regulation, the legal profession rules or the 1
administration rules, so far as they apply to 2
incorporated legal practices; and 3
(b) the management of the provision of legal services by the 4
incorporated legal practice, including the supervision of 5
officers and employees providing the services. 6
(2) An audit may be conducted whether or not a complaint has 7
been made against a person in relation to the provision of 8
legal services by the incorporated legal practice. 9
(3) A report of the audit-- 10
(a) must be given to the incorporated legal practice 11
concerned; and 12
(b) may be given to another ILP authority; and 13
(c) may be provided by an ILP authority to a corresponding 14
authority; and 15
(d) may be taken into account for-- 16
(i) a discipline application involving legal practitioner 17
directors or other persons; or 18
(ii) the grant, renewal, amendment, suspension or 19
cancellation of a practising certificate. 20
131 Application of chapter 6 21
Chapter 6 applies to an audit under this division. 22
132 Banning of incorporated legal practices 23
(1) The Supreme Court may, on application of an ILP authority, 24
make an order disqualifying a corporation from providing 25
legal services in this jurisdiction for the period the court 26
considers appropriate if the court is satisfied that-- 27
(a) a ground for disqualifying the corporation under this 28
section has been established; and 29
(b) the disqualification is justified. 30
(2) If the Supreme Court considers it appropriate, an order under 31
this section may be made-- 32
s 132 124 s 132
Legal Profession Bill 2007
(a) subject to conditions as to the conduct of the 1
incorporated legal practice; or 2
(b) subject to conditions as to when or in what 3
circumstances the order is to take effect; or 4
(c) together with orders to safeguard the interests of clients 5
or employees of the incorporated legal practice. 6
(3) Action may be taken against an incorporated legal practice on 7
any of the following grounds-- 8
(a) a legal practitioner director or an Australian legal 9
practitioner who is an officer or employee of the 10
corporation is found guilty of professional misconduct 11
under a law of this jurisdiction or another jurisdiction; 12
(b) an ILP authority is satisfied, after conducting an audit of 13
the incorporated legal practice, that the incorporated 14
legal practice has failed to implement satisfactory 15
management and supervision of its provision of legal 16
services; 17
(c) the incorporated legal practice, or a related body 18
corporate, has contravened section 11220 or a regulation 19
made under that section; 20
(d) the incorporated legal practice has contravened section 21
129;21 22
(e) an officer of the incorporated legal practice who is 23
acting in the management of the incorporated legal 24
practice is the subject of an order-- 25
(i) under section 133 or provisions of a corresponding 26
law that correspond to that section; or 27
(ii) under section 15822 or provisions of a 28
corresponding law that correspond to that section. 29
20 Section 112 (Non-legal services and businesses of incorporated legal practices)
21 Section 129 (Disqualified persons)
22 Section 158 (Prohibition on partnership with particular partner who is not an
Australian legal practitioner)
s 133 125 s 133
Legal Profession Bill 2007
(4) If a corporation is disqualified under this section, the ILP 1
authority that applied for the order must notify the 2
corresponding authority of every other jurisdiction. 3
(5) If a corporation is disqualified from providing legal services 4
in another jurisdiction under a corresponding law, the 5
commissioner may decide that the corporation is taken to be 6
disqualified from providing legal services in this jurisdiction 7
for the same period, but nothing in this subsection prevents an 8
ILP authority from instead applying for an order under this 9
section. 10
(6) A corporation that provides legal services in contravention of 11
a disqualification under this section commits an offence. 12
Maximum penalty-- 13
(a) for a person guilty under the Criminal Code, chapter 2, 14
of an offence or for section 702--180 penalty units; or 15
(b) for a corporation--900 penalty units. 16
(7) A corporation that is disqualified under this section ceases to 17
be an incorporated legal practice. 18
(8) Conduct of an Australian legal practitioner who provides legal 19
services on behalf of a corporation in the capacity of an officer 20
or employee of the corporation is capable of being 21
unsatisfactory professional conduct or professional 22
misconduct if the practitioner ought reasonably to have known 23
that the corporation is disqualified under this section. 24
(9) A regulation may provide for the publication and notification 25
of orders made under this section, including notification of 26
corresponding authorities of other jurisdictions. 27
133 Disqualification from managing incorporated legal 28
practice 29
(1) The Supreme Court may, on application of an ILP authority, 30
make an order disqualifying a person from managing a 31
corporation that is an incorporated legal practice for the 32
period the court considers appropriate if the court is satisfied 33
that-- 34
s 134 126 s 134
Legal Profession Bill 2007
(a) the person is a person who could be disqualified under 1
the Corporations Act, section 206C, 206D, 206E or 2
206F,23 from managing corporations; and 3
(b) the disqualification is justified. 4
(2) The Supreme Court may, on application of a person subject to 5
a disqualification order under this section, revoke the order. 6
(3) A disqualification order made under subsection (1) has effect 7
for the purposes only of this Act and does not affect the 8
application or operation of the Corporations Act. 9
(4) A regulation may provide for the publication and notification 10
of orders made under this section. 11
(5) A person who is disqualified from managing a corporation 12
under provisions of a corresponding law that correspond to 13
this section is taken to be disqualified from managing a 14
corporation under this section. 15
134 Disclosure of information to the Australian Securities and 16
Investments Commission 17
(1) This section applies if an ILP authority, in connection with 18
performing functions or exercising powers under this Act, 19
acquired information concerning a corporation that is or was 20
an incorporated legal practice. 21
(2) The ILP authority may disclose to the Australian Securities 22
and Investments Commission information concerning the 23
corporation that is relevant to the commission's functions. 24
(3) Information may be provided under subsection (2) despite any 25
law relating to secrecy or confidentiality, including any 26
provisions of this Act. 27
23 Corporations Act, section 206C (Court power of disqualification--contravention of
civil penalty provision), 206D (Court power of disqualification--insolvency and
non-payment of debts), 206E (Court power of disqualification--repeated
contraventions of Act) or 206F (ASIC's power of disqualification)
s 135 127 s 135
Legal Profession Bill 2007
Division 6 External administration 1
135 External administration proceedings under Corporations 2
(1) This section applies to a proceeding in any court under the 3
Corporations Act, chapter 524-- 4
(a) relating to a corporation that is an 5
externally-administered body corporate under that Act 6
and that is or was an incorporated legal practice; or 7
(b) relating to a corporation that is or was an incorporated 8
legal practice becoming an externally-administered 9
body corporate under that Act. 10
(2) Each ILP authority is entitled to intervene in the proceeding, 11
unless the court decides that the proceeding does not concern 12
or affect the provision of legal services by the incorporated 13
legal practice. 14
(3) The court may, when exercising its jurisdiction in the 15
proceeding, have regard to the interests of the clients of the 16
incorporated legal practice who have been or are to be 17
provided with legal services by the practice. 18
(4) Subsection (3) does not authorise the court to make any 19
decision that is contrary to a specific provision of the 20
Corporations Act. 21
(5) Subsections (2) and (3) are declared to be Corporations 22
legislation displacement provisions for the purposes of the 23
Corporations Act, section 5G,25 in relation to the provisions of 24
chapter 5 of that Act. 25
Note-- 26
The Corporations Act, section 5G, provides that if a State law declares a 27
provision of a State law to be a Corporations legislation displacement 28
provision, any provision of the Corporations legislation with which the 29
State provision would otherwise be inconsistent does not apply to the 30
extent necessary to avoid the inconsistency. 31
24 Corporations Act, chapter 5 (External administration)
25 Corporations Act, section 5G (Avoiding direct inconsistency arising between the
Corporations legislation and State and Territory laws)
s 136 128 s 137
Legal Profession Bill 2007
136 External administration proceedings under other 1
legislation 2
(1) This section applies to a proceeding for the external 3
administration, however expressed, of an incorporated legal 4
practice but does not apply to a proceeding to which section 5
135 applies. 6
(2) Each ILP authority is entitled to intervene in the proceeding, 7
unless the court decides that the proceeding does not concern 8
or affect the provision of legal services by the incorporated 9
legal practice. 10
(3) The court may, when exercising its jurisdiction in the 11
proceeding, have regard to the interests of the clients of the 12
incorporated legal practice who have been or are to be 13
provided with legal services by the practice. 14
(4) Subsection (3) does not authorise the court to make any 15
decision that is contrary to a specific provision of any 16
legislation applicable to the incorporated legal practice. 17
137 Incorporated legal practice that is subject to receivership 18
under this Act and external administration under 19
Corporations Act 20
(1) This section applies if an incorporated legal practice is the 21
subject of both-- 22
(a) the appointment of a chapter 5 receiver; and 23
(b) the appointment of a Corporations Act administrator. 24
(2) The chapter 5 receiver is under a duty to notify the 25
Corporations Act administrator of the appointment of the 26
chapter 5 receiver, whether the appointment precedes, follows 27
or is contemporaneous with the appointment of the 28
Corporations Act administrator. 29
(3) The chapter 5 receiver or the Corporations Act administrator, 30
or both of them jointly, may apply to the Supreme Court for 31
the resolution of issues arising from or in connection with the 32
dual appointments and their respective powers, except if a 33
proceeding mentioned in section 135 has been started. 34
(4) The Supreme Court may make any orders it considers 35
appropriate, and no liability attaches to the chapter 5 receiver 36
s 138 129 s 138
Legal Profession Bill 2007
or the Corporations Act administrator for any act or omission 1
done by the receiver or administrator in good faith for the 2
purpose of carrying out or acting under the orders. 3
(5) Each ILP authority is entitled to intervene in the proceeding, 4
unless the court decides that the proceeding does not concern 5
or affect the provision of legal services by the incorporated 6
legal practice. 7
(6) The provisions of subsections (3) and (4) are declared to be 8
Corporations legislation displacement provisions for the 9
purposes of the Corporations Act, section 5G, in relation to 10
the provisions of chapter 5 of that Act. 11
(7) In this section-- 12
Corporations Act administrator means-- 13
(a) a receiver, receiver and manager, liquidator (including a 14
provisional liquidator), controller, administrator or deed 15
administrator appointed under the Corporations Act; or 16
(b) a person who is appointed to exercise powers under that 17
Act and who is prescribed under a regulation for this 18
definition. 19
chapter 5 receiver means a receiver appointed under section 20
512.26 21
138 Incorporated legal practice that is subject to receivership 22
under this Act and external administration under other 23
legislation 24
(1) This section applies if an incorporated legal practice is the 25
subject of both-- 26
(a) the appointment of a chapter 5 receiver; and 27
(b) the appointment of an external administrator. 28
(2) The chapter 5 receiver is under a duty to notify the external 29
administrator of the appointment of the chapter 5 receiver, 30
whether the appointment precedes, follows or is 31
contemporaneous with the appointment of the external 32
administrator. 33
26 Section 512 (Appointment of receiver)
s 139 130 s 140
Legal Profession Bill 2007
(3) The chapter 5 receiver or the external administrator, or both of 1
them jointly, may apply to the Supreme Court for the 2
resolution of issues arising from or in connection with the 3
dual appointments and their respective powers. 4
(4) The Supreme Court may make any orders it considers 5
appropriate, and no liability attaches to the chapter 5 receiver 6
or the external administrator for any act or omission done by 7
the receiver or administrator in good faith for the purpose of 8
carrying out or acting under the orders. 9
(5) Each ILP authority is entitled to intervene in the proceeding, 10
unless the court decides that the proceeding does not concern 11
or affect the provision of legal services by the incorporated 12
legal practice. 13
(6) In this section-- 14
external administrator means a person who is-- 15
(a) appointed to exercise powers under an Act other than 16
this Act, or under an Act of the Commonwealth or 17
another jurisdiction; and 18
(b) prescribed under a regulation for this definition. 19
chapter 5 receiver means a receiver appointed under section 20
512. 21
Division 7 Miscellaneous provisions relating 22
to incorporated legal practices 23
139 Cooperation between courts 24
Courts of this jurisdiction may make arrangements for 25
communicating and cooperating with other courts or tribunals 26
in connection with the exercise of powers under this part. 27
140 Relationship of Act to constitution of incorporated legal 28
practice 29
A provision under this Act that applies in relation to an 30
incorporated legal practice prevails, to the extent of any 31
s 141 131 s 142
Legal Profession Bill 2007
inconsistency, over the constitution or other constituent 1
documents of the practice. 2
141 Relationship of Act to legislation establishing 3
incorporated legal practice 4
(1) This section applies to a corporation, established by or under a 5
law whether or not of this jurisdiction, that is an incorporated 6
legal practice but is not a company under the Corporations 7
Act. 8
(2) The provisions of this Act that apply to an incorporated legal 9
practice prevail, to the extent of any inconsistency, over 10
provisions of the legislation under which the corporation is 11
established or regulated that are prescribed under a regulation. 12
142 Relationship of Act to Corporations legislation and 13
certain other instruments 14
(1) A regulation may declare a provision under this Act that 15
relates to an incorporated legal practice to be a Corporations 16
legislation displacement provision for the purposes of the 17
Corporations Act, section 5G.27 18
(2) A regulation may declare a matter relating to an incorporated 19
legal practice that is prohibited, required, authorised or 20
permitted under this Act to be an excluded matter for the 21
purposes of the Corporations Act, section 5F,28 in relation 22
to-- 23
(a) the whole of the Corporations legislation; or 24
(b) a stated provision of the Corporations legislation; or 25
(c) the Corporations legislation other than a stated 26
provision; or 27
(d) the Corporations legislation other than to a stated extent. 28
27 Corporations Act, section 5G (Avoiding direct inconsistency arising between the
Corporations legislation and State and Territory laws)
28 Corporations Act, section 5F (Corporations legislation does not apply to matters
declared by State or Territory law to be an excluded matter)
s 143 132 s 145
Legal Profession Bill 2007
(3) In this section-- 1
matter includes act, omission, body, person or thing. 2
143 Undue influence 3
A person, whether or not an officer or employee of an 4
incorporated legal practice, must not cause or induce, or 5
attempt to cause or induce, a legal practitioner director, or 6
another Australian legal practitioner who provides legal 7
services for the practice, to contravene this Act or the 8
practitioner's professional obligations as an Australian legal 9
practitioner. 10
Maximum penalty--300 penalty units. 11
Division 8 Multi-disciplinary partnerships 12
144 Nature of multi-disciplinary partnership 13
(1) A partnership is a multi-disciplinary partnership if it is a 14
partnership between 1 or more Australian legal practitioners 15
and 1 or more other persons who are not Australian legal 16
practitioners, and the partnership business includes the 17
provision of legal services in this jurisdiction as well as other 18
services. 19
(2) However, a partnership consisting only of 1 or more 20
Australian legal practitioners and 1 or more 21
Australian-registered foreign lawyers is not a 22
multi-disciplinary partnership. 23
(3) Nothing in this part affects or applies to the provision by a 24
multi-disciplinary partnership of legal services in 1 or more 25
other jurisdictions. 26
145 Conduct of multi-disciplinary partnerships 27
(1) An Australian legal practitioner may be in partnership with a 28
person who is not an Australian legal practitioner, if the 29
partnership business includes the provision of legal services. 30
s 146 133 s 147
Legal Profession Bill 2007
(2) Subsection (1) does not prevent an Australian legal 1
practitioner from being in partnership with a person who is 2
not an Australian legal practitioner, if the partnership business 3
does not include the provision of legal services. 4
(3) A regulation may prohibit an Australian legal practitioner 5
from being in partnership with a person providing a service or 6
conducting a business of a kind stated under the regulation, if 7
the partnership business includes the provision of legal 8
services. 9
146 Notice of intention to start practice in multi-disciplinary 10
partnership 11
(1) Before an Australian legal practitioner starts to provide legal 12
services in this jurisdiction as a partner in a multi-disciplinary 13
partnership, the practitioner must give the law society notice, 14
in the law society approved form, of his or her intention to do 15
so. 16
Maximum penalty--100 penalty units. 17
(2) A regulation may prescribe particulars to be included in the 18
law society approved form. 19
147 General obligations of legal practitioner partners 20
(1) Each legal practitioner partner of a multi-disciplinary 21
partnership is, for the purposes only of this Act, responsible 22
for the management of the legal services provided in this 23
jurisdiction by the partnership. 24
(2) Each legal practitioner partner must ensure that appropriate 25
management systems are implemented and kept to enable the 26
provision of legal services by the multi-disciplinary 27
partnership-- 28
(a) under the professional obligations of Australian legal 29
practitioners and other obligations imposed under this 30
Act; and 31
(b) so that the obligations of legal practitioner partners, and 32
employees who are Australian legal practitioners, are 33
not affected by other partners and employees of the 34
partnership. 35
s 148 134 s 149
Legal Profession Bill 2007
148 Obligations of legal practitioner partner relating to 1
misconduct 2
(1) Each of the following is capable of constituting unsatisfactory 3
professional conduct or professional misconduct by a legal 4
practitioner partner of a multi-disciplinary partnership-- 5
(a) unsatisfactory professional conduct or professional 6
misconduct of an Australian legal practitioner employed 7
by the multi-disciplinary partnership; 8
(b) conduct of another partner, not being an Australian legal 9
practitioner, of the multi-disciplinary partnership that 10
adversely affects the provision of legal services by the 11
partnership; 12
(c) the unsuitability of another partner, not being an 13
Australian legal practitioner, of the multi-disciplinary 14
partnership to be a member of a partnership that 15
provides legal services. 16
(2) A legal practitioner partner of a multi-disciplinary partnership 17
must ensure that all reasonable action available to the legal 18
practitioner partner is taken to deal with any unsatisfactory 19
professional conduct or professional misconduct of an 20
Australian legal practitioner employed by the partnership. 21
149 Actions of partner who is not an Australian legal 22
practitioner 23
(1) A partner of a multi-disciplinary partnership who is not an 24
Australian legal practitioner does not contravene a provision 25
of this Act merely because of any of the following-- 26
(a) the partner is a member of a partnership and the 27
partnership business includes the provision of legal 28
services; 29
(b) the partner receives a fee, gain or reward for business of 30
the partnership that is the business of an Australian legal 31
practitioner; 32
(c) the partner holds out, advertises or represents himself or 33
herself as a member of a partnership where the 34
partnership business includes the provision of legal 35
services; 36
s 150 135 s 151
Legal Profession Bill 2007
(d) the partner shares with another partner the receipts of 1
business of the partnership that is the business of an 2
Australian legal practitioner. 3
(2) Subsection (1) is subject to any other provision that expressly 4
applies to a partner of a multi-disciplinary partnership who is 5
not an Australian legal practitioner. 6
150 Obligations and privileges of Australian legal practitioner 7
who is partner or employee 8
(1) An Australian legal practitioner who provides legal services in 9
the capacity of a partner or an employee of a 10
multi-disciplinary partnership-- 11
(a) is not excused from compliance with the professional 12
obligations, or other obligations under any law, of an 13
Australian legal practitioner; and 14
(b) does not lose the professional privileges of an Australian 15
legal practitioner. 16
(2) To remove any doubt, it is declared that the law relating to 17
client legal privilege, or other legal professional privilege, is 18
not excluded or otherwise affected because an Australian legal 19
practitioner is acting in the capacity of a partner or employee 20
of a multi-disciplinary partnership. 21
151 Conflicts of interest 22
(1) For the application of any law (including the common law) or 23
the legal profession rules relating to conflicts of interest to the 24
conduct of an Australian legal practitioner who is-- 25
(a) a legal practitioner partner of a multi-disciplinary 26
partnership; or 27
(b) an employee of a multi-disciplinary partnership; 28
the interests of the partnership or any partner of the 29
multi-disciplinary partnership are also taken to be the interests 30
of the practitioner concerned (in addition to any interests that 31
the practitioner has apart from this subsection). 32
(2) Legal profession rules may be made for or in relation to 33
additional duties and obligations in connection with conflicts 34
s 152 136 s 152
Legal Profession Bill 2007
of interest arising out of the conduct of a multi-disciplinary 1
partnership. 2
152 Disclosure obligations 3
(1) This section applies if a person engages a multi-disciplinary 4
partnership to provide services that the person might 5
reasonably assume to be legal services. 6
(2) Each legal practitioner partner of the multi-disciplinary 7
partnership, and any employee of the partnership who is an 8
Australian legal practitioner and who provides the services on 9
behalf of the partnership, must ensure that a disclosure that 10
complies with the requirements of this section and a 11
regulation made for this section is made to the person about 12
the services. 13
Maximum penalty--100 penalty units. 14
(3) The disclosure must be made by giving the person a written 15
notice-- 16
(a) setting out the services to be provided; and 17
(b) stating whether or not all the legal services will be 18
provided by an Australian legal practitioner; and 19
(c) if some or all of the legal services to be provided will 20
not be provided by an Australian legal 21
practitioner--identifying those services and indicating 22
the status or qualifications of the person or persons who 23
will provide the legal services; and 24
(d) stating that this Act applies to the provision of legal 25
services but not to the provision of the non-legal 26
services. 27
(4) A regulation may provide for the following matters-- 28
(a) the way in which a disclosure is to be made; 29
(b) additional matters required to be disclosed in connection 30
with the provision of legal services or non-legal services 31
by a multi-disciplinary partnership. 32
(5) Without limiting subsection (4), the additional matters may 33
include the kind of services provided by the multi-disciplinary 34
partnership and whether those services are or are not covered 35
s 153 137 s 155
Legal Profession Bill 2007
by the provisions of this Act, including, for example, 1
provisions about insurance. 2
(6) A disclosure under this section to a person about the provision 3
of legal services may relate to the provision of legal services 4
on 1 occasion, on more than 1 occasion or on an on-going 5
basis. 6
153 Effect of non-disclosure on provision of particular 7
services 8
(1) This section applies if-- 9
(a) section 152 applies in relation to a service that is 10
provided to a person who has engaged a 11
multi-disciplinary partnership to provide the service and 12
that the person might reasonably assume to be a legal 13
service; and 14
(b) a disclosure has not been made under that section in 15
relation to the service. 16
(2) The standard of care owed by the multi-disciplinary 17
partnership in relation to the service is the standard that would 18
be applicable if the service had been provided by an 19
Australian legal practitioner. 20
154 Application of legal profession rules 21
Legal profession rules, so far as they apply to an Australian 22
legal practitioner, apply to the following unless the rules 23
otherwise provide-- 24
(a) an Australian legal practitioner who is a legal 25
practitioner partner of a multi-disciplinary partnership; 26
(b) an Australian legal practitioner who is an employee of a 27
multi-disciplinary partnership. 28
155 Requirements relating to advertising 29
(1) A restriction imposed under this Act or another Act in 30
connection with advertising by Australian legal practitioners 31
applies to advertising by a multi-disciplinary partnership in 32
relation to the provision of legal services. 33
s 156 138 s 157
Legal Profession Bill 2007
(2) If a restriction mentioned in subsection (1) is limited to a 1
particular branch of the legal profession or persons who 2
practise in a particular style of legal practice, the restriction 3
applies only to the extent that the multi-disciplinary 4
partnership carries on the business of that branch of the legal 5
profession or that particular style of legal practice. 6
(3) An advertisement by a multi-disciplinary partnership about 7
the provision of services that include legal services is, for the 8
purposes of a disciplinary proceeding against an Australian 9
legal practitioner, taken to have been authorised by each legal 10
practitioner partner of the multi-disciplinary partnership. 11
(4) This section does not apply if the provision by which the 12
restriction is imposed expressly excludes its application to 13
multi-disciplinary partnerships. 14
156 Sharing of receipts, revenue or other income 15
(1) Nothing under this Act prevents a legal practitioner partner of 16
a multi-disciplinary partnership, or an Australian legal 17
practitioner who is an employee of a multi-disciplinary 18
partnership, from sharing with a partner of the partnership 19
who is not an Australian legal practitioner, receipts, revenue 20
or other income arising from the provision of legal services by 21
the partner or practitioner. 22
(2) This section does not extend to the sharing of receipts, 23
revenue or other income in contravention of section 157, and 24
has effect subject to section 220.29 25
157 Disqualified persons 26
A legal practitioner partner of a multi-disciplinary partnership 27
must not knowingly-- 28
(a) be a partner of a disqualified person in the 29
multi-disciplinary partnership; or 30
29 Section 220 (Rules for Australian legal practitioners engaged in practice in the
manner of barristers)
s 158 139 s 158
Legal Profession Bill 2007
(b) share with a disqualified person the receipts, revenue or 1
other income arising from the provision of legal services 2
by the multi-disciplinary partnership; or 3
(c) employ or pay a disqualified person in connection with 4
the provision of legal services by the multi-disciplinary 5
partnership. 6
158 Prohibition on partnership with particular partner who is 7
not an Australian legal practitioner 8
(1) This section applies to a person who-- 9
(a) is not an Australian legal practitioner; and 10
(b) is or was a partner of an Australian legal practitioner. 11
(2) The Supreme Court may, on application by the commissioner 12
or the law society, make an order prohibiting an Australian 13
legal practitioner from being a partner of a person to whom 14
this section applies and who is stated in the order in relation to 15
a business that includes the provision of legal services if the 16
court is satisfied that-- 17
(a) the person is not a fit and proper person to be a partner; 18
or 19
(b) the person has been found guilty of conduct that, if the 20
person were an Australian legal practitioner, would have 21
constituted unsatisfactory professional conduct or 22
professional misconduct; or 23
(c) for a corporation--the corporation has, under section 24
132,30 been disqualified from providing legal services in 25
this jurisdiction or there are grounds for disqualifying 26
the corporation from providing legal services in this 27
jurisdiction. 28
(3) An order made under this section may be revoked by the 29
Supreme Court on application by the law society, the 30
commissioner or by the person against whom the order was 31
made. 32
30 Section 132 (Banning of incorporated legal practices)
s 159 140 s 160
Legal Profession Bill 2007
(4) The death of an Australian legal practitioner does not prevent 1
an application being made for, or the making of, an order 2
under this section in relation to a person who was a partner of 3
the practitioner. 4
(5) A regulation may make provision about the publication and 5
notification of orders made under this section. 6
159 Undue influence 7
A person, whether or not a partner or employee of a 8
multi-disciplinary partnership, must not cause or induce, or 9
attempt to cause or induce, either of the following persons to 10
contravene this Act or the person's professional obligations as 11
an Australian legal practitioner-- 12
(a) a legal practitioner partner of a multi-disciplinary 13
partnership; 14
(b) an employee of a multi-disciplinary partnership who 15
provides legal services and who is an Australian legal 16
practitioner. 17
Maximum penalty--300 penalty units. 18
Division 9 Miscellaneous 19
160 Obligations of practitioners not affected 20
Except as provided by this part, nothing in this part affects an 21
obligation imposed on-- 22
(a) a legal practitioner director of an incorporated legal 23
practice, or an Australian legal practitioner who is an 24
employee of an incorporated legal practice, under this 25
Act or another Act in his or her capacity as an 26
Australian legal practitioner; or 27
(b) a legal practitioner partner of, or an Australian legal 28
practitioner who is an employee of, a multi-disciplinary 29
partnership under this Act or another Act in his or her 30
capacity as an Australian legal practitioner. 31
s 161 141 s 162
Legal Profession Bill 2007
161 Regulation 1
(1) A regulation may provide for the following-- 2
(a) the legal services provided by incorporated legal 3
practices or legal practitioner partners or employees of 4
multi-disciplinary partnerships; 5
(b) other services provided by incorporated legal practices 6
or legal practitioner partners or employees of 7
multi-disciplinary partnerships in circumstances where a 8
conflict of interest relating to the provision of legal 9
services may arise. 10
(2) A regulation prevails over any inconsistent provision of the 11
legal profession rules. 12
(3) A regulation may provide that a breach of a provision of a 13
regulation is capable of constituting unsatisfactory 14
professional conduct or professional misconduct-- 15
(a) for an incorporated legal practice--by a legal 16
practitioner director, or by the Australian legal 17
practitioner responsible for the breach, or both; or 18
(b) for a multi-disciplinary partnership--by a legal 19
practitioner partner of the multi-disciplinary 20
partnership, or by the Australian legal practitioner 21
responsible for the breach, or both. 22
Part 2.8 Legal practice by foreign 23
lawyers 24
Division 1 Preliminary 25
162 Main purpose of pt 2.8 26
The main purpose of this part is to encourage and facilitate the 27
internationalisation of legal services and the legal services 28
sector by providing a framework for regulation of the practice 29
s 163 142 s 164
Legal Profession Bill 2007
of foreign law in this jurisdiction by foreign lawyers as a 1
recognised aspect of legal practice in this jurisdiction. 2
163 Definitions for pt 2.8 3
In this part-- 4
Australia includes the external Territories. 5
Australian law means law of the Commonwealth or of a 6
jurisdiction. 7
foreign law practice means a partnership or corporate entity 8
that is entitled to engage in legal practice in a foreign country. 9
foreign registration authority means an entity in a foreign 10
country having the function, conferred by the law of the 11
foreign country, of registering persons to engage in legal 12
practice in the foreign country. 13
local registration certificate means a registration certificate 14
given under this part. 15
overseas-registered foreign lawyer means an individual who 16
is properly registered to engage in legal practice in a foreign 17
country by the foreign registration authority for the country. 18
practise foreign law means doing work, or transacting 19
business, in this jurisdiction concerning foreign law, being 20
work or business of a kind that, if it concerned the law of this 21
jurisdiction, would ordinarily be done or transacted by an 22
Australian legal practitioner. 23
registered, when used in connection with a foreign country, 24
means having all necessary licences, approvals, admissions, 25
certificates or other forms of authorisation (including 26
practising certificates) required under legislation for engaging 27
in legal practice in that country. 28
164 This part does not apply to Australian legal practitioners 29
(1) This part does not apply to an Australian legal practitioner, 30
including an Australian legal practitioner who is also an 31
overseas-registered foreign lawyer. 32
(2) Accordingly, nothing in this part requires or enables an 33
Australian legal practitioner, including an Australian legal 34
s 165 143 s 166
Legal Profession Bill 2007
practitioner who is also an overseas-registered foreign lawyer, 1
to be registered as a foreign lawyer under this Act in order to 2
practise foreign law in this jurisdiction. 3
Division 2 Practice of foreign law 4
165 Requirement for registration 5
(1) A person must not practise foreign law in this jurisdiction 6
unless the person is-- 7
(a) an Australian-registered foreign lawyer; or 8
(b) an Australian legal practitioner. 9
Maximum penalty--200 penalty units. 10
(2) However, a person does not contravene subsection (1) if the 11
person is an overseas-registered foreign lawyer-- 12
(a) who-- 13
(i) practises foreign law in this jurisdiction for 1 or 14
more periods that do not exceed in aggregate 90 15
days in any period of 12 months; or 16
(ii) is subject to a restriction imposed under the 17
Migration Act 1958 (Cwlth) that has the effect of 18
limiting the period during which work may be 19
done, or business transacted, in Australia by the 20
person; and 21
(b) who-- 22
(i) does not keep an office for the purpose of 23
practising foreign law in this jurisdiction; or 24
(ii) does not become a partner or director of a law 25
practice. 26
166 Entitlement of Australian-registered foreign lawyer to 27
practise in this jurisdiction 28
An Australian-registered foreign lawyer is, subject to this Act, 29
entitled to practise foreign law in this jurisdiction. 30
s 167 144 s 168
Legal Profession Bill 2007
167 Scope of practice 1
(1) An Australian-registered foreign lawyer may provide only the 2
following legal services in this jurisdiction-- 3
(a) doing work, or transacting business, concerning the law 4
of a foreign country if the lawyer is registered by the 5
foreign registration authority for the country; 6
(b) legal services, including appearances, in relation to an 7
arbitration proceeding of a kind prescribed under a 8
regulation; 9
(c) legal services, including appearances, in relation to a 10
proceeding before a body other than a court, being a 11
proceeding in which the body concerned is not required 12
to apply the rules of evidence and in which knowledge 13
of the foreign law of a country mentioned in paragraph 14
(a) is essential; 15
(d) legal services for conciliation, mediation and other 16
forms of consensual dispute resolution of a kind 17
prescribed under a regulation. 18
(2) Nothing in this part authorises an Australian-registered 19
foreign lawyer to appear in any court, except on the lawyer's 20
own behalf, or to practise Australian law in this jurisdiction. 21
(3) Despite subsection (2), an Australian-registered foreign 22
lawyer may advise on the effect of an Australian law if-- 23
(a) the giving of advice on Australian law is necessarily 24
incidental to the practice of foreign law; and 25
(b) the advice is expressly based on advice given on the 26
Australian law by an Australian legal practitioner who is 27
not an employee of the foreign lawyer. 28
168 Form of practice 29
(1) An Australian-registered foreign lawyer may, subject to any 30
conditions attaching to the foreign lawyer's registration, 31
practise foreign law-- 32
(a) on the foreign lawyer's own account; or 33
(b) in partnership with 1 or more Australian-registered 34
foreign lawyers or 1 or more Australian legal 35
s 169 145 s 169
Legal Profession Bill 2007
practitioners, or both, in circumstances where, if the 1
Australian-registered foreign lawyer were an Australian 2
legal practitioner, the partnership would be permitted 3
under a law of this jurisdiction; or 4
(c) as a director or employee of an incorporated legal 5
practice or a partner or employee of a multi-disciplinary 6
partnership that is permitted by a law of this jurisdiction; 7
or 8
(d) as an employee of an Australian legal practitioner or law 9
firm in circumstances where, if the Australian-registered 10
foreign lawyer were an Australian legal practitioner, the 11
employment would be permitted under a law of this 12
jurisdiction; or 13
(e) as an employee of an Australian-registered foreign 14
lawyer. 15
(2) An affiliation mentioned in subsection (1)(b) to (e) does not 16
entitle the Australian-registered foreign lawyer to practise 17
Australian law in this jurisdiction. 18
169 Application of Australian professional ethical and 19
practice standards 20
(1) An Australian-registered foreign lawyer must not engage in 21
any conduct in practising foreign law that would, if the 22
conduct were engaged in by an Australian legal practitioner in 23
practising Australian law in this jurisdiction, be capable of 24
constituting unsatisfactory professional conduct or 25
professional misconduct. 26
(2) Chapter 431 applies to a person who-- 27
(a) is an Australian-registered foreign lawyer; or 28
(b) was an Australian-registered foreign lawyer when the 29
relevant conduct allegedly happened, but is no longer an 30
Australian-registered foreign lawyer (in which case 31
chapter 4 applies as if the person were an 32
Australian-registered foreign lawyer); 33
31 Chapter 4 (Complaints and discipline)
s 170 146 s 170
Legal Profession Bill 2007
and so applies as if references in chapter 3 to an Australian 1
legal practitioner were references to a person of that kind. 2
(3) A regulation may make provision in relation to the 3
application, with or without changes, of the provisions of 4
chapter 4 for the purposes of this section. 5
(4) Without limiting the matters that may be taken into account in 6
deciding whether a person should be disciplined for a 7
contravention of subsection (1), the following matters may be 8
taken into account-- 9
(a) whether the conduct of the person was consistent with 10
the standard of professional conduct of the legal 11
profession in any foreign country where the person is 12
registered; 13
(b) whether the person contravened the subsection wilfully 14
or without reasonable excuse. 15
(5) Without limiting another provision of this section or the 16
orders that may be made under chapter 4 as applied by this 17
section, the following orders may be made under that chapter 18
as applied by this section-- 19
(a) an order that a person's registration under this Act as a 20
foreign lawyer be cancelled; 21
(b) an order that a person's registration under a 22
corresponding law as a foreign lawyer be cancelled. 23
170 Designation 24
(1) An Australian-registered foreign lawyer may use only the 25
following designations-- 26
(a) the lawyer's own name; 27
(b) a title or business name that the lawyer is authorised by 28
law to use in a foreign country where the lawyer is 29
registered by a foreign registration authority; 30
(c) subject to this section, the name of a foreign law 31
practice with which the lawyer is affiliated or associated 32
whether as a partner, director, employee or otherwise; 33
(d) if the lawyer is a principal of any law practice in 34
Australia whose principals include both 1 or more 35
s 171 147 s 171
Legal Profession Bill 2007
Australian-registered foreign lawyers and 1 or more 1
Australian legal practitioners--a description of the 2
practice that includes reference to both Australian legal 3
practitioners and Australian-registered foreign lawyers. 4
Examples for paragraph (d)-- 5
· solicitors and locally registered foreign lawyers 6
· Australian solicitors and US attorneys 7
(2) An Australian-registered foreign lawyer who is a principal of 8
a foreign law practice may use the practice's name in or in 9
connection with practising foreign law in this jurisdiction only 10
if-- 11
(a) the lawyer indicates, on the lawyer's letterhead or 12
another document used in this jurisdiction to identify the 13
lawyer as an overseas-registered foreign lawyer, that the 14
foreign law practice practises only foreign law in this 15
jurisdiction; and 16
(b) the lawyer has provided the law society with acceptable 17
evidence that the lawyer is a principal of the foreign law 18
practice. 19
(3) An Australian-registered foreign lawyer who is a principal of 20
a foreign law practice may use the name of the practice as 21
mentioned in this section whether or not other principals of 22
the practice are Australian-registered foreign lawyers. 23
(4) This section does not authorise the use of a name or other 24
designation that contravenes any requirements of the law of 25
this jurisdiction concerning the use of business names or that 26
is likely to lead to any confusion with the name of any 27
established domestic law practice or foreign law practice in 28
this jurisdiction. 29
171 Letterhead and other identifying documents 30
(1) An Australian-registered foreign lawyer must indicate, in each 31
public document distributed by the lawyer in connection with 32
the lawyer's practice of foreign law, the fact that the lawyer is 33
an Australian-registered foreign lawyer and is restricted to the 34
practice of foreign law. 35
s 172 148 s 172
Legal Profession Bill 2007
(2) Subsection (1) is satisfied if the lawyer includes in the public 1
document the words-- 2
(a) `registered foreign lawyer' or `registered foreign 3
practitioner'; and 4
(b) `entitled to practise foreign law only'. 5
(3) An Australian-registered foreign lawyer may, but need not, 6
include any or all of the following on any public document-- 7
(a) an indication of all foreign countries in which the lawyer 8
is registered to engage in legal practice; 9
(b) a description of himself or herself, and any law practice 10
with which the lawyer is affiliated or associated, in any 11
of the ways designated in section 170. 12
(4) In this section-- 13
public document includes any business letter, statement of 14
account, invoice, business card, and promotional and 15
advertising material. 16
172 Advertising 17
(1) An Australian-registered foreign lawyer is required to comply 18
with any advertising restrictions imposed by the law society or 19
by law on the legal practice engaged in by an Australian legal 20
practitioner that are relevant to the practice of law in this 21
jurisdiction. 22
(2) Without limiting subsection (1), an Australian-registered 23
foreign lawyer must not advertise, or use any description on 24
the lawyer's letterhead or another document used in this 25
jurisdiction to identify the lawyer as a lawyer, in any way 26
that-- 27
(a) might reasonably be regarded as-- 28
(i) false, misleading or deceptive; or 29
(ii) suggesting that the Australian-registered foreign 30
lawyer is an Australian legal practitioner; or 31
(b) contravenes a regulation. 32
s 173 149 s 174
Legal Profession Bill 2007
173 Foreign lawyer employing Australian legal practitioner 1
(1) An Australian-registered foreign lawyer may employ 1 or 2
more Australian legal practitioners. 3
(2) Employment of an Australian legal practitioner does not 4
entitle an Australian-registered foreign lawyer to practise 5
Australian law in this jurisdiction. 6
(3) An Australian legal practitioner employed by an 7
Australian-registered foreign lawyer may practise foreign law. 8
(4) An Australian legal practitioner employed by an 9
Australian-registered foreign lawyer must not do either of the 10
following-- 11
(a) provide advice on Australian law to, or for use by, the 12
Australian-registered foreign lawyer; 13
(b) otherwise practise Australian law in this jurisdiction in 14
the course of that employment. 15
(5) Subsection (4) does not apply to an Australian legal 16
practitioner employed by a law firm, a partner of which is an 17
Australian-registered foreign lawyer, if at least 1 other partner 18
is an Australian legal practitioner. 19
(6) Any period of employment of an Australian legal practitioner 20
by an Australian-registered foreign lawyer can not be used to 21
satisfy a requirement imposed by a condition on a local 22
practising certificate to complete a period of supervised legal 23
practice. 24
174 Trust money and trust accounts 25
(1) Subject to this section, the provisions of part 3.3 and any other 26
provisions under this Act relating to requirements about trust 27
money and trust accounts apply to Australian-registered 28
foreign lawyers in the same way as they apply to law practices 29
and Australian legal practitioners. 30
(2) A regulation may make provision in relation to the 31
application, with or without changes, of the provisions of this 32
Act relating to trust money and trust accounts for the purposes 33
of this section. 34
s 175 150 s 175
Legal Profession Bill 2007
(3) In this section-- 1
money includes money other than in this jurisdiction. 2
175 Professional indemnity insurance 3
(1) An Australian-registered foreign lawyer must, at all times 4
while practising foreign law in this jurisdiction, comply with 5
1 of the following-- 6
(a) the foreign lawyer must have professional indemnity 7
insurance that conforms with the requirements for 8
professional indemnity insurance applicable for 9
Australian legal practitioners in any jurisdiction; 10
(b) if the foreign lawyer does not have professional 11
indemnity insurance that complies with paragraph (a), 12
the foreign lawyer-- 13
(i) must have professional indemnity insurance that 14
covers the practice of foreign law in this 15
jurisdiction and that complies with the relevant 16
requirements of a foreign law or foreign 17
registration authority; and 18
(ii) if the insurance is for less than $1.5 million 19
(inclusive of defence costs), must provide a 20
disclosure statement to each client disclosing the 21
level of cover; 22
(c) if the foreign lawyer does not have professional 23
indemnity insurance that complies with paragraph (a) or 24
(b), the foreign lawyer must provide a disclosure 25
statement to each client stating that the lawyer does not 26
have complying professional indemnity insurance. 27
(2) A disclosure statement must be made in writing before, or as 28
soon as practicable after, the foreign lawyer is retained in the 29
matter. 30
(3) A disclosure statement provided to a person before the foreign 31
lawyer is retained in a matter is taken to be provided to the 32
person as a client for the purposes of this section. 33
(4) A disclosure statement is not valid unless it is given under, 34
and complies with, any applicable requirements of a 35
regulation. 36
s 176 151 s 178
Legal Profession Bill 2007
176 Fidelity cover 1
A regulation may provide that provisions of part 3.6 apply to
32
2
prescribed classes of Australian-registered foreign lawyers 3
and so apply with any changes stated in the regulation. 4
Division 3 Local registration of foreign lawyers 5
generally 6
177 Local registration of foreign lawyers 7
Overseas-registered foreign lawyers may be registered as 8
foreign lawyers under this Act. 9
178 Duration of registration 10
(1) Registration as a foreign lawyer granted under this Act is in 11
force from the day stated in the local registration certificate 12
until the end of the financial year in which it is granted, unless 13
the registration is sooner suspended or cancelled. 14
(2) Registration as a foreign lawyer renewed under this Act is in 15
force until the end of the financial year following its previous 16
period of currency, unless the registration is sooner suspended 17
or cancelled. 18
(3) If an application for the renewal of registration as a foreign 19
lawyer has not been decided by the following 1 July, the 20
registration-- 21
(a) continues in force on and from that 1 July until the law 22
society renews or refuses to renew the registration or the 23
holder withdraws the application for renewal, unless the 24
registration is sooner suspended or cancelled; and 25
(b) if renewed, is taken to have been renewed on and from 26
that 1 July. 27
32 Part 3.6 (Fidelity cover)
s 179 152 s 181
Legal Profession Bill 2007
179 Local registered foreign lawyer is not officer of Supreme 1
Court 2
A locally registered foreign lawyer is not an officer of the 3
Supreme Court. 4
Division 4 Application for grant or renewal of 5
local registration 6
180 Application for grant or renewal of registration 7
An overseas-registered foreign lawyer may apply to the law 8
society for the grant or renewal of registration as a foreign 9
lawyer under this Act. 10
181 Manner of application 11
(1) An application for the grant or renewal of registration as a 12
foreign lawyer must be-- 13
(a) made in the law society approved form; and 14
(b) accompanied by the fees prescribed under a regulation. 15
(2) Different fees may be set according to different factors 16
decided by the law society. 17
(3) The fees are not to be greater than the maximum fees for a 18
local practising certificate. 19
(4) The law society may also require the applicant to pay any 20
reasonable costs and expenses incurred by it in considering 21
the application, including, for example, costs and expenses of 22
making inquiries and obtaining information or documents 23
about whether the applicant meets the criteria for registration. 24
(5) The fees and costs must not include any component for 25
compulsory membership of any professional association. 26
(6) The law society approved form may require the applicant to 27
disclose-- 28
(a) matters that may affect the law society's consideration 29
of the application for the grant or renewal of 30
registration; and 31
s 182 153 s 182
Legal Profession Bill 2007
(b) particulars of any offences for which the applicant has 1
been convicted in Australia or a foreign country, 2
whether before or after the commencement of this 3
section. 4
(7) The law society approved form may indicate that convictions 5
of a particular kind need not be disclosed for the purposes of 6
the current application. 7
(8) The law society approved form may indicate that stated kinds 8
of matters or particulars previously disclosed in a particular 9
way need not be disclosed for the purposes of the current 10
application. 11
182 Requirements regarding applications for the grant or 12
renewal of registration 13
(1) An application for the grant of registration as a foreign lawyer 14
under this Act must state the applicant's educational and 15
professional qualifications. 16
(2) An application for the grant or renewal of registration must-- 17
(a) state that the applicant is registered to engage in legal 18
practice by 1 or more stated foreign registration 19
authorities in 1 or more foreign countries; and 20
(b) state that the applicant is not an Australian legal 21
practitioner; and 22
(c) state that the applicant is not the subject of any 23
disciplinary proceeding in Australia or a foreign 24
country, including any preliminary investigations or 25
action that might lead to a disciplinary proceeding in his 26
or her capacity as-- 27
(i) an overseas-registered foreign lawyer; or 28
(ii) an Australian-registered foreign lawyer; or 29
(iii) an Australian lawyer; and 30
(d) state whether the applicant has been convicted of an 31
offence in Australia or a foreign country, and if so-- 32
(i) the nature of the offence; and 33
(ii) how long ago the offence was committed; and 34
s 182 154 s 182
Legal Profession Bill 2007
(iii) the applicant's age when the offence was 1
committed; and 2
(e) state that the applicant's registration is not cancelled or 3
currently suspended in any place as a result of any 4
disciplinary action in Australia or a foreign country; and 5
(f) state-- 6
(i) that the applicant is not otherwise personally 7
prohibited from engaging in legal practice in any 8
place or bound by any undertaking not to engage in 9
legal practice in any place; and 10
(ii) whether or not the applicant is subject to any 11
special conditions in engaging in legal practice in 12
any place; 13
as a result of any criminal, civil or disciplinary 14
proceeding in Australia or a foreign country; and 15
(g) state any special conditions imposed in Australia or a 16
foreign country as a restriction on legal practice engaged 17
in by the applicant or any undertaking given by the 18
applicant restricting the applicant's practice of law; and 19
(h) give consent to the making of inquiries of, and the 20
exchange of information with, any foreign registration 21
authorities that the law society considers appropriate 22
regarding the applicant's activities in engaging in legal 23
practice in the places concerned or otherwise regarding 24
matters relevant to the application; and 25
(i) state which provisions under section 175(1) the 26
applicant proposes to rely on and be accompanied by 27
supporting proof of the relevant matters; and 28
(j) provide the information, or be accompanied by the other 29
information or documents, or both, that is stated in the 30
application form or in material accompanying the 31
application form. 32
(3) The application must, if the law society so requires, be 33
accompanied by an original instrument, or a copy of an 34
original instrument, from each foreign registration authority 35
stated in the application that-- 36
s 183 155 s 183
Legal Profession Bill 2007
(a) verifies the applicant's educational and professional 1
qualifications; and 2
(b) verifies the applicant's registration by the authority to 3
engage in legal practice in the foreign country 4
concerned and the date of registration; and 5
(c) describes anything done by the applicant in engaging in 6
legal practice in that foreign country of which the 7
authority is aware and that the authority believes has had 8
or is likely to have had an adverse effect on the 9
applicant's professional standing within the legal 10
profession of that place. 11
(4) The applicant must, if the law society so requires, certify in 12
the application that the accompanying instrument is the 13
original or a complete and accurate copy of the original. 14
(5) The law society may require the applicant to verify the 15
statements in the application by statutory declaration or by 16
other proof acceptable to the law society. 17
(6) If the accompanying instrument is not in English, it must be 18
accompanied by a translation in English that is authenticated 19
or certified to the satisfaction of the law society. 20
Division 5 Grant or renewal of registration 21
183 Grant or renewal of local registration 22
(1) The law society must consider an application that has been 23
made for the grant or renewal of registration as a foreign 24
lawyer and may-- 25
(a) grant or refuse to grant the registration; or 26
(b) renew or refuse to renew the registration. 27
(2) The law society may, when granting or renewing registration, 28
impose conditions as mentioned in section 203.33 29
33 Section 203 (Conditions imposed by law society)
s 184 156 s 184
Legal Profession Bill 2007
(3) If the law society grants or renews the registration, the law 1
society must give the applicant a registration certificate or a 2
notice of renewal. 3
(4) If the law society decides not to grant or renew the 4
registration, or imposes a condition on the registration that the 5
applicant has not agreed to as part of the grant or renewal of 6
the registration-- 7
(a) the law society must give the person an information 8
notice about the law society's decision; and 9
(b) the person may appeal to the Supreme Court against the 10
decision within 28 days after the day the information 11
notice is given to the person. 12
(5) A notice of renewal may be in the form of a new registration 13
certificate or another form the law society considers 14
appropriate. 15
184 Requirement to grant or renew registration if criteria 16
satisfied 17
(1) The law society must grant an application for registration as a 18
foreign lawyer if the law society-- 19
(a) is satisfied the applicant is registered to engage in legal 20
practice in 1 or more foreign countries and is not an 21
Australian legal practitioner; and 22
(b) considers an effective system exists for regulating 23
engaging in legal practice in 1 or more of the foreign 24
countries; and 25
(c) considers the applicant is not, as a result of a criminal, 26
civil or disciplinary proceeding, subject to-- 27
(i) any special conditions in engaging in legal practice 28
in any of the foreign countries; and 29
(ii) any undertakings concerning engaging in legal 30
practice in any of the foreign countries; 31
that would make it inappropriate to register the person; 32
and 33
s 185 157 s 185
Legal Profession Bill 2007
(d) is satisfied the applicant demonstrates an intention to 1
commence practising foreign law in this jurisdiction 2
within a reasonable period if registration were granted; 3
unless the law society refuses the application under this part. 4
(2) The law society must grant an application for renewal of an 5
applicant's registration, unless the law society refuses renewal 6
under this part. 7
(3) Residence or domicile in this jurisdiction is not to be a 8
prerequisite for or a factor in entitlement to the grant or 9
renewal of registration. 10
185 Refusal to grant or renew registration 11
(1) The law society may refuse to consider an application that 12
purports to be an application if it is not made under this Act. 13
(2) The law society may refuse to grant or renew an applicant's 14
registration if-- 15
(a) the application is not accompanied by, or does not 16
contain, the information required under this part; or 17
(b) the applicant has contravened this Act or a 18
corresponding law; or 19
(c) the applicant has contravened an order of a disciplinary 20
body or a corresponding disciplinary body, including 21
but not limited to an order to pay any fine or costs; or 22
(d) the applicant has contravened an order of a regulatory 23
authority of any jurisdiction to pay any fine or costs; or 24
(e) the applicant has failed to comply with a requirement 25
under this Act to pay a contribution to, or levy for, the 26
fidelity fund; or 27
(f) the applicant has contravened a requirement under this 28
Act about professional indemnity insurance; or 29
(g) the applicant has failed to pay any expenses of external 30
intervention payable under this Act; or 31
(h) the applicant's foreign legal practice is in receivership 32
(however described). 33
s 185 158 s 185
Legal Profession Bill 2007
(3) The law society may refuse to grant or renew an applicant's 1
registration if the regulatory authority of another jurisdiction 2
has under a corresponding law-- 3
(a) refused to grant or renew the applicant's registration; or 4
(b) suspended or cancelled the applicant's registration. 5
(4) The law society may refuse to grant registration if satisfied 6
that the applicant is not a fit and proper person to be registered 7
after considering-- 8
(a) the nature of any offence for which the applicant has 9
been convicted in Australia or a foreign country, 10
whether before or after the commencement of this 11
section; and 12
(b) how long ago the offence was committed; and 13
(c) the person's age when the offence was committed. 14
(5) The law society may refuse to renew registration if satisfied 15
that the applicant is not a fit and proper person to continue to 16
be registered after considering-- 17
(a) the nature of any offence for which the applicant has 18
been convicted in Australia or a foreign country, 19
whether before or after the commencement of this 20
section, other than an offence disclosed in a previous 21
application to the law society; and 22
(b) how long ago the offence was committed; and 23
(c) the person's age when the offence was committed. 24
(6) The law society may refuse to grant or renew registration on 25
any ground on which registration could be suspended or 26
cancelled. 27
(7) If the law society refuses to grant or renew an application for 28
registration as a locally registered foreign lawyer under this 29
section-- 30
(a) the law society must give the person an information 31
notice about the law society's decision; and 32
s 186 159 s 187
Legal Profession Bill 2007
(b) the person may appeal to the Supreme Court against the 1
decision within 28 days after the day the information 2
notice is given to the person. 3
(8) Nothing in this section affects the operation of division 7.34 4
Division 6 Amendment, suspension or 5
cancellation of local registration 6
186 Application of pt 2.8, div 6 7
This part does not apply to a matter mentioned in division 7. 8
187 Grounds for amending, suspending or cancelling 9
registration 10
(1) Each of the following is a ground for amending, suspending or 11
cancelling a person's registration as a foreign lawyer-- 12
(a) the registration was obtained because of incorrect or 13
misleading information; 14
(b) the person fails to comply with a requirement of this 15
part; 16
(c) the person fails to comply with a condition imposed on 17
the person's registration; 18
(d) the person becomes the subject of disciplinary 19
proceedings, including any preliminary investigations or 20
action that might lead to disciplinary proceedings, in 21
Australia or a foreign country in his or her capacity as-- 22
(i) an overseas-registered foreign lawyer; or 23
(ii) an Australian-registered foreign lawyer; or 24
(iii) an Australian lawyer; 25
(e) the person has been convicted of an offence in Australia 26
or a foreign country; 27
34 Division 7 (Special powers in relation to local registration--show cause events)
s 188 160 s 188
Legal Profession Bill 2007
(f) the person's registration is cancelled or currently 1
suspended in any place as a result of any disciplinary 2
action in Australia or a foreign country; 3
(g) the person does not meet the requirements of section 4
175;35 5
(h) another ground the law society considers sufficient. 6
(2) Subsection (1) does not limit the grounds on which conditions 7
may be imposed on registration as a foreign lawyer under 8
section 203.36 9
188 Amending, suspending or cancelling registration 10
(1) If the law society believes a ground exists to amend, suspend 11
or cancel a person's registration in this jurisdiction as a 12
foreign lawyer (the proposed action), the law society must 13
give the person a notice (the show cause notice) that-- 14
(a) states the proposed action and-- 15
(i) if the proposed action is to amend the person's 16
registration--the proposed amendment; or 17
(ii) if the proposed action is to suspend the person's 18
registration--the proposed suspension period; and 19
(b) states the grounds for proposing to take the proposed 20
action; and 21
(c) states an outline of the facts and circumstances that form 22
the basis for the law society's belief; and 23
(d) invites the person to make written representations to the 24
law society, within a stated time of not less than 28 days, 25
as to why the proposed action should not be taken. 26
(2) If, after considering all written representations made within 27
the stated time or, in its discretion, after the stated time, the 28
law society still believes a ground exists to take the proposed 29
action, the law society may-- 30
35 Section 175 (Professional indemnity insurance)
36 Section 203 (Conditions imposed by law society)
s 189 161 s 189
Legal Profession Bill 2007
(a) if the show cause notice stated the proposed action was 1
to amend the person's registration--amend the 2
registration in the way stated, or in another way the law 3
society considers appropriate because of the written 4
representations; or 5
(b) if the show cause notice stated the proposed action was 6
to suspend the person's registration for a stated 7
period--suspend the registration for a period no longer 8
than the stated period; or 9
(c) if the show cause notice stated the proposed action was 10
to cancel the person's registration-- 11
(i) cancel the registration; or 12
(ii) suspend the registration for a period; or 13
(iii) amend the registration in a less onerous way the 14
law society considers appropriate because of the 15
written representations. 16
(3) If the law society decides to amend, suspend or cancel the 17
person's registration-- 18
(a) the law society must give the person an 19
information notice about the law society's 20
decision; and 21
(b) the person may appeal to the Supreme Court 22
against the decision within 28 days after the day 23
the information notice is given to the person. 24
(4) In this section-- 25
amend, in relation to registration, means amend the 26
registration under section 203 during its currency, otherwise 27
than at the request of the foreign lawyer concerned. 28
189 Operation of amendment, suspension or cancellation of 29
registration 30
(1) This section applies if a decision is made to amend, suspend 31
or cancel a person's registration under section 188. 32
(2) Subject to subsections (3) and (4), the amendment, suspension 33
or cancellation of the person's registration takes effect on the 34
later of the following-- 35
s 190 162 s 190
Legal Profession Bill 2007
(a) the day the information notice about the decision is 1
given to the person; 2
(b) the day stated in the information notice. 3
(3) If the person's registration is amended, suspended or 4
cancelled because the person has been convicted of an 5
offence-- 6
(a) the Supreme Court may, on application of the person, 7
order that the amendment, suspension or cancellation be 8
stayed until-- 9
(i) the end of the time to appeal against the 10
conviction; or 11
(ii) if an appeal is made against the conviction--the 12
appeal is finally decided, lapses or otherwise ends; 13
and 14
(b) the amendment, suspension or cancellation does not 15
have effect during any period for which the stay is in 16
force. 17
(4) If the person's registration is amended, suspended or 18
cancelled because the person has been convicted of an offence 19
and the conviction is quashed-- 20
(a) the amendment or suspension ceases to have effect when 21
the conviction is quashed; or 22
(b) the cancellation ceases to have effect when the 23
conviction is quashed and the person's registration is 24
restored as if it had merely been suspended. 25
190 Other ways of amending or cancelling registration 26
(1) This section applies if-- 27
(a) a locally registered foreign lawyer requests the law 28
society to amend or cancel the person's registration and 29
the law society proposes to give effect to the request; or 30
(b) the law society proposes to amend a locally registered 31
foreign lawyer's registration only for a formal or clerical 32
reason or in another way that does not adversely affect 33
the person's interests. 34
s 191 163 s 192
Legal Profession Bill 2007
(2) The law society may amend or cancel the registration as 1
mentioned in subsection (1) by written notice given to the 2
person. 3
(3) Section 188 does not apply to an amendment or cancellation 4
under this section. 5
191 Relationship of this division with ch 4 6
Nothing in this division prevents a complaint being made or 7
an investigation matter being started under chapter 437 about a 8
matter to which this division relates. 9
Division 7 Special powers in relation to local 10
registration--show cause events 11
192 Applicant for local registration--show cause event 12
(1) This section applies if-- 13
(a) a person is applying for registration as a foreign lawyer 14
under this Act; and 15
(b) a show cause event in relation to the person happened, 16
whether before or after the commencement of this 17
section, after the person first became an 18
overseas-registered foreign lawyer. 19
(2) As part of the application, the applicant must give the law 20
society a written statement, as required under a regulation-- 21
(a) about the show cause event; and 22
(b) explaining why, despite the event, the applicant is a fit 23
and proper person to be a locally registered foreign 24
lawyer. 25
(3) However, the applicant need not give a statement under 26
subsection (2) if the applicant has previously given the law 27
society a statement under this section, or a notice and 28
statement under section 193, for the event explaining why, 29
37 Chapter 4 (Complaints and discipline)
s 193 164 s 194
Legal Profession Bill 2007
despite the event, the applicant is a fit and proper person to be 1
a locally registered foreign lawyer. 2
193 Locally registered foreign lawyer--show cause event 3
(1) This section applies to a show cause event that happens in 4
relation to a locally registered foreign lawyer. 5
(2) The locally registered foreign lawyer must give the law 6
society both of the following-- 7
(a) within 7 days after the day of the event--notice, in the 8
law society approved form, that the event happened; 9
(b) within 28 days after the day of the event--a written 10
statement explaining why, despite the event, the person 11
considers himself or herself to be a fit and proper person 12
to be a locally registered foreign lawyer. 13
(3) However, if a written statement is provided after the 28 days 14
mentioned in subsection (2)(b), the law society may accept the 15
statement and take it into consideration. 16
194 Refusal, amendment, suspension or cancellation of local 17
registration--failure to show cause 18
(1) The law society may refuse to grant or renew, or may amend, 19
suspend or cancel, local registration if the applicant for 20
registration or the locally registered foreign lawyer-- 21
(a) is required by section 192 or 193 to give a written 22
statement relating to a matter to the law society and the 23
applicant or foreign lawyer has not done so; or 24
(b) has given a written statement under section 192 or 193 25
but the law society does not consider the applicant or 26
foreign lawyer has shown in the statement that, despite 27
the show cause event concerned, he or she is a fit and 28
proper person to be a locally registered foreign lawyer. 29
(2) For subsection (1)(b), a written statement accepted by the law 30
society as mentioned in section 193(3) is taken to have been 31
given under section 193. 32
(3) If the law society decides to refuse to grant or renew an 33
application for local registration, or to amend, suspend or 34
s 195 165 s 196
Legal Profession Bill 2007
cancel the registration of, a locally registered foreign 1
lawyer-- 2
(a) the law society must give the person an information 3
notice about the decision; and 4
(b) the person may appeal to the Supreme Court against the 5
decision within 28 days after the day the information 6
notice is given to the person. 7
195 Restriction on making further applications 8
(1) If the law society decides under this division to cancel a 9
person's registration, the law society may also decide that the 10
person is not entitled to apply for registration under this part 11
for a stated period of not more than 5 years. 12
(2) A person in relation to whom a decision has been made under 13
this section, or under a provision of a corresponding law that 14
corresponds to this section, is not entitled to apply for 15
registration under this part during the period stated in the 16
decision. 17
(3) If the law society makes a decision under this section-- 18
(a) the law society must give the person an information 19
notice about the decision; and 20
(b) the person may appeal to the Supreme Court against the 21
decision within 28 days after the day the information 22
notice is given to the person. 23
196 Relationship of this division with pt 4.6 and ch 6 24
(1) The law society has and may exercise powers under part 4.6 25
and chapter 6, in relation to a matter under this division, as if 26
the matter were the subject of a complaint under chapter 4. 27
(2) Accordingly, the provisions of part 4.6 and chapter 6, apply in 28
relation to a matter under this division, and so apply with any 29
necessary changes. 30
(3) Nothing in this division prevents a complaint being made or 31
an investigation matter being started under chapter 4 about a 32
matter to which this part relates. 33
s 197 166 s 197
Legal Profession Bill 2007
Division 8 Further provisions relating to local 1
registration 2
197 Immediate suspension of registration 3
(1) This section applies, despite sections 188 and 189,38 if the law 4
society considers it necessary in the public interest to 5
immediately suspend a person's registration as a foreign 6
lawyer. 7
(2) The law society may immediately suspend the person's 8
registration for any of the following reasons, whether they 9
happened before or after the commencement of this section-- 10
(a) the locally registered foreign lawyer has become an 11
insolvent under administration; 12
(b) the locally registered foreign lawyer has been convicted 13
of a serious offence or tax offence; 14
(c) a ground exists on which the certificate could be 15
suspended or cancelled under section 188. 16
(3) The law society suspends the person's registration by giving 17
an information notice to the person about the law society's 18
decision to suspend. 19
(4) The information notice must also state that the person may 20
make written representations to the law society about the 21
suspension. 22
(5) Subject to subsection (8), the person's registration continues 23
to be suspended until the earlier of the following-- 24
(a) the time at which the law society informs the person of 25
the law society's decision by information notice under 26
section 188; 27
(b) the end of 56 days after the information notice is given 28
to the person under this section. 29
(6) If the person makes written representations to the law society 30
about the suspension, the law society must consider the 31
written representations. 32
38 Sections 188 (Amending, suspending or cancelling registration) and 189 (Operation
of amendment, suspension or cancellation of registration)
s 198 167 s 200
Legal Profession Bill 2007
(7) The law society may revoke the suspension at any time, 1
whether or not because of written representations made to it 2
by the person. 3
(8) Also, the law society may apply to the Supreme Court for an 4
order extending the period of the suspension and, if the court 5
considers it appropriate and the suspension has not ended 6
under subsection (5), the court may extend the period of the 7
suspension for a further period of not more than a further 56 8
days after the date of the court order. 9
(9) The law society must give the person written notice about its 10
decision to apply under subsection (8) for an order extending 11
the period of the suspension. 12
198 Surrender of local registration certificate and 13
cancellation of registration 14
(1) A person registered as a foreign lawyer under this part may 15
surrender the local registration certificate or notice of renewal 16
to the law society. 17
(2) If a local registration certificate or notice of renewal is 18
surrendered, the law society may cancel the registration. 19
199 Automatic cancellation of registration on grant of 20
practising certificate 21
A person's registration under this part is taken to be cancelled 22
if the person becomes an Australian legal practitioner. 23
200 Suspension or cancellation of registration not to affect 24
disciplinary processes 25
The suspension or cancellation of a person's registration as a 26
foreign lawyer under this part does not affect any disciplinary 27
processes in relation to matters happening before the 28
suspension or cancellation. 29
s 201 168 s 202
Legal Profession Bill 2007
201 Return of local registration certificate on amendment, 1
suspension or cancellation of registration 2
(1) This section applies if a person's registration as a foreign 3
lawyer under this part is amended, suspended or cancelled. 4
(2) The law society may-- 5
(a) give the person a notice requiring the person to return 6
the registration certificate or notice of renewal to the law 7
society in the way stated in the notice within a stated 8
period of not less than 14 days; or 9
(b) include in an information notice, that the law society 10
must give to the person under this part, further notice 11
requiring the person to return the registration certificate 12
or notice of renewal to the law society in the way stated 13
in the notice within a stated period of not less than 14 14
days. 15
(3) The person must comply with the requirement, unless the 16
person has a reasonable excuse. 17
Maximum penalty--50 penalty units. 18
(4) The law society must return the registration certificate or 19
notice of renewal to the person-- 20
(a) if the certificate or notice is amended--after amending 21
it; or 22
(b) if the certificate or notice is suspended and is still 23
current at the end of the suspension period--at the end 24
of the suspension period. 25
Division 9 Conditions on registration 26
202 Conditions generally 27
The registration of a person as a foreign lawyer under this part 28
is subject to the following-- 29
(a) any conditions imposed by the law society; 30
(b) any statutory conditions imposed under this Act or 31
another Act; 32
s 203 169 s 204
Legal Profession Bill 2007
(c) any conditions imposed under the legal profession rules; 1
(d) any conditions imposed under chapter 4 or under 2
provisions of a corresponding law that correspond to 3
chapter 4. 4
203 Conditions imposed by law society 5
(1) The law society may impose conditions on a person's 6
registration as a foreign lawyer-- 7
(a) when it is granted or renewed; or 8
(b) at any time during its currency. 9
(2) A condition imposed under this section-- 10
(a) may be about any matter in relation to which a condition 11
could be imposed on a local practising certificate or any 12
other matter agreed to by the foreign lawyer; and 13
(b) must be reasonable and relevant. 14
(3) The law society must not impose a condition under subsection 15
(2)(a) that is more onerous than a condition that it would 16
impose on a local practising certificate of a local legal 17
practitioner in the same or similar circumstances. 18
(4) The law society may vary or revoke a condition imposed by it 19
under this section. 20
204 Statutory condition regarding notification of offence 21
(1) It is a statutory condition of a registration as a foreign lawyer 22
that the lawyer must give notice, in a law society approved 23
form, to the law society if the lawyer is-- 24
(a) convicted of an offence that would have to be disclosed 25
in relation to an application for registration as a foreign 26
lawyer; or 27
(b) charged with a serious offence. 28
(2) The notice must be given to the law society within 7 days after 29
the conviction or the day the lawyer is charged. 30
(3) A regulation may state the person to whom, or the address to 31
which, the notice is to be given. 32
s 205 170 s 207
Legal Profession Bill 2007
(4) This section does not apply to an offence to which division 739 1
applies. 2
205 Conditions imposed by regulation 3
A regulation may make provision in relation to an 4
Australian-registered foreign lawyer, including, for 5
example-- 6
(a) imposing conditions on the registration of persons as 7
foreign lawyers or any class of foreign lawyers; or 8
(b) authorising conditions to be imposed on the registration 9
of persons as foreign lawyers or any class of foreign 10
lawyers. 11
206 Compliance with conditions 12
A locally registered foreign lawyer must not contravene a 13
condition to which the person's registration is subject. 14
Maximum penalty--50 penalty units. 15
Division 10 Interstate-registered foreign 16
lawyers 17
207 Extent of entitlement of interstate-registered foreign 18
lawyer to practise in this jurisdiction 19
(1) This part does not authorise an interstate-registered foreign 20
lawyer to practise foreign law in this jurisdiction to a greater 21
extent than a locally registered foreign lawyer could be 22
authorised under a local registration certificate. 23
(2) Also, an interstate-registered foreign lawyer's right to practise 24
foreign law in this jurisdiction-- 25
(a) is subject to any conditions imposed by the law society 26
under section 208, and any conditions imposed under 27
the legal profession rules as mentioned under that 28
section; and 29
39 Division 7 (Special powers in relation to local registration--show cause events)
s 208 171 s 208
Legal Profession Bill 2007
(b) is to the greatest extent and with all necessary 1
changes-- 2
(i) the same as the interstate-registered foreign 3
lawyer's right to practise foreign law in the 4
lawyer's home jurisdiction; and 5
(ii) subject to any condition on the interstate-registered 6
foreign lawyer's right to practise foreign law in 7
that jurisdiction. 8
(3) If there is an inconsistency between conditions mentioned in 9
subsection (2)(a) and conditions mentioned in subsection 10
(2)(b), the conditions that the law society believes are the 11
more onerous prevail to the extent of the inconsistency. 12
(4) An interstate-registered foreign lawyer must not practise 13
foreign law in this jurisdiction in a way that is not authorised 14
by this Act or in contravention of any condition mentioned in 15
this section. 16
208 Additional conditions on practice of interstate-registered 17
foreign lawyers 18
(1) An interstate-registered foreign lawyer's right to practise 19
foreign law in this jurisdiction is subject to any condition 20
imposed under this Act. 21
(2) Without limiting subsection (1), the law society may impose 22
any condition on the interstate-registered foreign lawyer's 23
practice of foreign law in this jurisdiction that it may impose 24
under this Act in relation to a locally registered foreign 25
lawyer. 26
(3) Conditions imposed under a regulation, the legal profession 27
rules or subsection (2) must not be more onerous than 28
conditions applying to locally registered foreign lawyers in 29
the same or similar circumstances. 30
(4) If the law society imposes a condition under subsection (1)-- 31
(a) the law society must give the interstate-registered 32
foreign lawyer an information notice about the law 33
society's decision; and 34
s 209 172 s 210
Legal Profession Bill 2007
(b) the person may appeal to the Supreme Court against the 1
decision within 28 days after the day the information 2
notice is given to the person. 3
Division 11 Miscellaneous 4
209 Consideration and investigation of applicants and locally 5
registered foreign lawyers 6
(1) To help it consider whether or not to grant, renew, amend, 7
suspend or cancel registration under this part, the law society 8
may, by notice to the applicant or a locally registered foreign 9
lawyer, require the applicant or locally registered foreign 10
lawyer-- 11
(a) to give it stated documents or information; or 12
(b) to cooperate with any inquiries that it considers 13
appropriate. 14
(2) A failure to comply with a notice under subsection (1) by the 15
date stated in the notice and in the way required by the notice 16
is a ground for making an adverse decision in relation to the 17
action being considered by the law society. 18
210 Register of locally registered foreign lawyers 19
(1) The law society must keep a register of the names of locally 20
registered foreign lawyers. 21
(2) The register must-- 22
(a) state any conditions imposed by it on a foreign lawyer's 23
registration; and 24
(b) otherwise include the particulars prescribed under a 25
regulation. 26
(3) The register may be kept in the way the law society decides. 27
(4) The law society must ensure that an up-to-date version of the 28
register is available, without charge, for public inspection-- 29
(a) at the law society's principal place of business during 30
normal working hours; or 31
s 211 173 s 214
Legal Profession Bill 2007
(b) on the law society's internet site or an internet site 1
identified on the law society's internet site. 2
211 Publication of information about locally registered 3
foreign lawyers 4
The law society may publish, in circumstances that it 5
considers appropriate, the names of persons registered by it as 6
foreign lawyers under this part and any relevant particulars 7
concerning those persons. 8
212 Supreme Court orders about conditions 9
(1) The law society may apply to the Supreme Court for an order 10
that an Australian-registered foreign lawyer not contravene a 11
condition imposed under this part. 12
(2) The Supreme Court may make any order it considers 13
appropriate relating to the application. 14
213 Exemption by law society 15
(1) The law society may exempt an Australian-registered foreign 16
lawyer, or class of Australian-registered foreign lawyers, from 17
compliance with a stated provision under this Act that would 18
otherwise apply to the Australian-registered foreign lawyer or 19
class of Australian-registered foreign lawyers. 20
(2) An exemption may be granted unconditionally or subject to 21
conditions stated in writing. 22
(3) The law society may revoke or vary a condition imposed 23
under this section or impose new conditions. 24
214 Membership of professional association 25
(1) An Australian-registered foreign lawyer is not required to join 26
any professional association. 27
(2) However, subsection (1) does not prevent an 28
Australian-registered foreign lawyer joining a professional 29
association if the person is eligible to do so. 30
s 215 174 s 216
Legal Profession Bill 2007
215 Refund of fees 1
(1) A regulation may provide for the refund of a portion of a fee 2
paid in relation to registration as a foreign lawyer if the 3
registration is suspended or cancelled during its currency. 4
(2) Without limiting subsection (1), a regulation may state-- 5
(a) the circumstances in which a refund is to be made; and 6
(b) the amount of the refund or the way in which the 7
amount of the refund is to be decided. 8
Chapter 3 Conduct of legal practice 9
Part 3.1 Preliminary 10
216 Simplified outline of ch 3 11
(1) This chapter contains provisions regulating various aspects of 12
the legal profession with the aim of ensuring that law 13
practices and lawyers operate effectively in the interests of 14
justice, their clients and the public interest. 15
(2) The following is a general outline of the contents of this 16
chapter-- 17
(a) part 3.2 provides for the making of legal profession 18
rules to regulate persons who may engage in legal 19
practice, or the practice of foreign law, in this 20
jurisdiction and for the regulatory bodies to provide for 21
administrative matters in administration rules (including 22
indemnity rules); 23
(b) part 3.3 regulates the receipt, handling of and 24
accounting for trust money by law practices; 25
(c) part 3.4 sets out the requirements for law practices for 26
disclosures to clients regarding legal costs, the making 27
and setting aside of costs agreements in relation to legal 28
services, the billing of costs for legal services and the 29
assessment of legal costs; 30
s 217 175 s 218
Legal Profession Bill 2007
(d) part 3.5 requires particular lawyers and foreign lawyers 1
to obtain professional indemnity insurance covering 2
their legal practice in this jurisdiction; 3
(e) part 3.6 establishes a system for compensation for 4
defaults by law practices arising from acts or omissions 5
of associates. 6
(3) Sub-section (2) is intended only as a guide to readers as to the 7
general scheme of this chapter. 8
Part 3.2 Manner of legal practice 9
Division 1 Preliminary 10
217 Main purposes of pt 3.2 11
The main purposes of this part are as follows-- 12
(a) to promote the maintenance of high standards of 13
professional conduct by providing for legal profession 14
rules to regulate persons who may engage in legal 15
practice, or the practice of foreign law, in this 16
jurisdiction; 17
(b) to allow each regulatory authority to provide for 18
administrative matters by providing for administration 19
rules. 20
218 Definitions for pt 3.2 21
In this section-- 22
barristers rules means rules made by the bar association 23
under this part. 24
legal profession rules means solicitors rules or barristers 25
rules. 26
solicitors rules means rules made by the law society under 27
this part. 28
s 219 176 s 221
Legal Profession Bill 2007
Division 2 Rules for Australian legal 1
practitioners and other individuals 2
219 Rules for Australian legal practitioners engaged in 3
practice as solicitors and others 4
(1) The law society may make rules about legal practice in this 5
jurisdiction engaged in by Australian legal practitioners as 6
solicitors. 7
(2) The law society may make rules about engaging in legal 8
practice in this jurisdiction as an Australian-registered foreign 9
lawyer. 10
220 Rules for Australian legal practitioners engaged in 11
practice in the manner of barristers 12
(1) The bar association may make rules about legal practice in 13
this jurisdiction engaged in by Australian legal practitioners as 14
barristers. 15
(2) The barristers rules may provide for a barrister to be 16
prohibited from any or all of the following-- 17
(a) engaging in legal practice-- 18
(i) otherwise than as a sole practitioner; or 19
(ii) in partnership with any person; or 20
(iii) as the employee of an entity; 21
(b) holding office as a legal practitioner director of an 22
incorporated legal practice; 23
(c) being a legal practitioner partner in a multi-disciplinary 24
partnership. 25
221 Legal profession rules may provide for application to 26
government legal officers 27
Legal profession rules may provide that the rules apply to 28
government legal officers. 29
s 222 177 s 223
Legal Profession Bill 2007
222 Subject matter of legal profession rules 1
(1) Legal profession rules may make provision about any aspect 2
of legal practice, including standards of conduct expected of 3
the following persons to whom they apply-- 4
(a) for solicitors rules--Australian legal practitioners, 5
government legal officers and Australian-registered 6
foreign lawyers; 7
(b) for barristers rules--Australian legal practitioners and 8
government legal officers. 9
(2) The power to make legal profession rules is not limited to 10
matters for which this Act specifically authorises the making 11
of legal profession rules or administration rules. 12
223 Public notice of proposed legal profession rules 13
(1) A regulatory authority that proposes to make a legal 14
profession rule under this division must ensure that a notice is 15
published in a daily newspaper circulating in this 16
jurisdiction-- 17
(a) explaining the object of the proposed rule; and 18
(b) advising where or how a copy of the proposed rule may 19
be accessed, obtained or inspected; and 20
(c) inviting comments and submissions within a stated 21
period of not less than 21 days from the date of first 22
publication of the notice. 23
(2) The regulatory authority must ensure that a copy of the 24
proposed rule is given to the Minister and the commissioner 25
before the notice is published. 26
(3) The regulatory authority must-- 27
(a) ensure that any comments and submissions received 28
within the period stated in the notice for making 29
comments and submissions are appropriately 30
considered; and 31
(b) give advice to the Minister about the comments and 32
submissions and, if requested, give copies of the 33
submission to the Minister. 34
s 224 178 s 224
Legal Profession Bill 2007
(4) After the end of the period stated in the notice for making 1
comments and submissions, the regulatory authority may 2
make legal profession rules. 3
(5) However, subsections (1) to (4) do not apply if the Minister is 4
consulted about the proposal and decides, by written notice to 5
the regulatory authority, that publication is not warranted 6
because of the urgent nature, or minor or technical nature, of 7
the proposed legal profession rules. 8
Division 3 Rules for incorporated legal 9
practices and multi-disciplinary 10
partnerships 11
224 Rules 12
(1) The law society may make legal profession rules in relation to 13
the following matters-- 14
(a) the provision of legal services by or in connection with 15
incorporated legal practices or multi-disciplinary 16
partnerships, and in particular the provision of legal 17
services by-- 18
(i) officers or employees of incorporated legal 19
practices; or 20
(ii) partners or employees of multi-disciplinary 21
partnerships; 22
(b) the provision of services that are not legal services by or 23
in connection with incorporated legal practices or 24
multi-disciplinary partnerships, but only if the provision 25
of those services by-- 26
(i) officers or employees of incorporated legal 27
practices; or 28
(ii) partners or employees of multi-disciplinary 29
partnerships; 30
may give rise to a conflict of interest relating to the 31
provision of legal services. 32
s 225 179 s 225
Legal Profession Bill 2007
(2) Without limiting subsection (1), legal profession rules may be 1
made in relation to professional obligations relating to legal 2
services provided by or in connection with incorporated legal 3
practices or multi-disciplinary partnerships. 4
(3) However, the legal profession rules can not-- 5
(a) regulate any services that an incorporated legal practice 6
may provide or conduct (other than the provision of 7
legal services or other services that may give rise to a 8
conflict of interest relating to the provision of legal 9
services); or 10
(b) regulate or prohibit the conduct of officers or employees 11
of an incorporated legal practice (other than in 12
connection with the provision of legal services or other 13
services that may give rise to a conflict of interest 14
relating to the provision of legal services); or 15
(c) regulate any services that a multi-disciplinary 16
partnership or partners or employees of a 17
multi-disciplinary partnership may provide or conduct 18
(other than the provision of legal services or other 19
services that may give rise to a conflict of interest 20
relating to the provision of legal services); or 21
(d) regulate or prohibit the conduct of partners or 22
employees of a multi-disciplinary partnership (other 23
than in connection with the provision of legal services or 24
other services that may give rise to a conflict of interest 25
relating to the provision of legal services). 26
(4) The power to make rules is not limited to matters for which 27
this Act specifically authorises the making of legal profession 28
rules or administration rules. 29
Division 4 Notice about making of legal 30
professional rules and role of 31
committee 32
225 Minister to give notice of solicitors and barristers rules 33
(1) The following have no effect unless the Minister notifies the 34
making of them-- 35
s 226 180 s 228
Legal Profession Bill 2007
(a) solicitors rules; 1
(b) barrister rules. 2
(2) A notice under subsection (1) is subordinate legislation. 3
226 Monitoring role of committee 4
(1) The committee may make a recommendation to the Minister 5
in relation to legal profession rules. 6
(2) For subsection (1), the committee is-- 7
(a) to monitor the adequacy of legal profession rules; and 8
(b) to consider any particular matter about which the 9
Minister asks the committee to make a recommendation 10
for legal profession rules. 11
Division 5 General provisions for legal 12
profession rules 13
227 Binding nature of legal profession rules 14
(1) Legal profession rules are binding on Australian legal 15
practitioners, Australian-registered foreign lawyers and 16
government legal officers to whom they apply. 17
(2) Failure to comply with legal profession rules is capable of 18
constituting unsatisfactory professional conduct or 19
professional misconduct. 20
228 Legal profession rules may prohibit practices relating to 21
mortgage financing 22
(1) Legal professional rules may prohibit Australian legal 23
practitioners and Australian-registered foreign lawyers from 24
engaging in mortgage financing and activities and practices 25
relating to mortgage financing. 26
(2) Subsection (1) applies despite anything to the contrary in this 27
Act, including, for example, section 224. 28
s 229 181 s 231
Legal Profession Bill 2007
229 Relationship of legal profession rules to this Act and 1
regulation 2
(1) A regulation may be made in relation to any matter for which 3
legal profession rules may be made. 4
(2) A provision of legal profession rules does not have effect to 5
the extent that it is inconsistent with this Act or a regulation. 6
230 Availability of rules 7
A regulatory authority must ensure that an up-to-date version 8
of the legal profession rules made by it, and about which 9
notice has been given under section 225, is available, without 10
charge, for public inspection-- 11
(a) at the authority's principal place of business during 12
normal working hours; or 13
(b) on the authority's internet site or on an internet site 14
identified on the authority's internet site. 15
Division 6 Administration rules 16
231 Rules other than legal profession rules 17
(1) To the extent a regulatory authority does not have power under 18
another Act or otherwise to make rules for a matter mentioned 19
in subsection (2) and no provision under another Act prevents 20
rules being made about the matter, the regulatory authority 21
may make rules about the matter that apply to-- 22
(a) Australian legal practitioners, including interstate legal 23
practitioners practising in this jurisdiction; and 24
(b) if the regulatory authority is the law society--an 25
incorporated legal practice, a multi-disciplinary 26
partnership or Australian-registered foreign lawyers. 27
(2) The matters about which a regulatory authority may make 28
rules are as follows-- 29
(a) types of practising certificates that the regulatory 30
authority may grant or renew; 31
s 231 182 s 231
Legal Profession Bill 2007
(b) the courses of study that an Australian lawyer is 1
required to complete for different types of practising 2
certificates, including, for example-- 3
(i) a practising certificate by the law society for 4
unsupervised legal practice or for practice as a 5
principal; or 6
(ii) a practising certificate by the bar association for 7
practice as a barrister; 8
(c) matters relating to the courses of study mentioned in 9
paragraph (b) including enrolment procedures, fees 10
payable, minimum course attendance requirements, 11
examinations, assessments and procedures for the 12
review of assessments, and appeals against assessments; 13
(d) exempting a person who applies for a type of practising 14
certificate from the requirement to have completed a 15
course of study for the type, as mentioned in paragraph 16
(b), given the length and nature of the person's 17
experience in legal practice; 18
(e) requiring a local legal practitioner to undertake 19
education or training for the purpose of continuing 20
professional development as a condition for the grant or 21
renewal of a type of practising certificate; 22
(f) the nature of, and the standards for, education or training 23
required under paragraph (e), and by whom and when it 24
may be provided; 25
(g) exempting, in whole or part, a local legal practitioner 26
from a requirement to undertake education or training 27
required under paragraph (e); 28
(h) exempting a person who applies for the grant or renewal 29
of a practising certificate from requirements under 30
section 56 to complete supervised legal practice or 31
reducing the required period of supervised legal 32
practice; 33
(i) approved forms to be used for an application to the 34
regulatory authority and the way an approved form is to 35
be given to the authority, including the time for giving 36
the form to it; 37
s 231 183 s 231
Legal Profession Bill 2007
(j) setting fees, contributions and levies, other than levies 1
imposed by the law society as mentioned in section 2
369,40 the payment of the fees, contributions and levies 3
including the levies imposed by the law society under 4
that section, and other matters relating to payments, 5
including the timing and way of making payments; 6
(k) other matters that may be approved by the regulatory 7
authority under this Act; 8
(l) matters relating to indemnity against loss arising from 9
claims in relation to every description of civil liability 10
incurred by any of the following-- 11
(i) a local legal practitioner in connection with the 12
practitioner's practice or in connection with any 13
trust of which the practitioner is or was a trustee; 14
(ii) a former local legal practitioner, including a person 15
who was a solicitor at any time before the 16
commencement of this section, in connection with 17
the practitioner's practice or in connection with 18
any trust of which the practitioner is or was a 19
trustee; 20
(iii) an incorporated legal practice in connection with it 21
engaging in legal practice in this jurisdiction or in 22
connection with any trust of which it, or 1 of its 23
associates, is or was a trustee; 24
(iv) an incorporated legal practice in connection with it 25
formerly engaging in legal practice in this 26
jurisdiction or in connection with any trust of 27
which it, or 1 of its associates, is or was a trustee; 28
(v) an Australian-registered foreign lawyer in 29
connection with the lawyer's practice of foreign 30
law in this jurisdiction or in connection with any 31
trust of which the lawyer is or was a trustee; 32
(vi) a former Australian-registered foreign lawyer in 33
connection with the lawyer's practice of foreign 34
law in this jurisdiction or in connection with any 35
trust of which the lawyer is or was a trustee. 36
40 Section 369 (Levy for benefit of fidelity fund)
s 231 184 s 231
Legal Profession Bill 2007
(3) Rules about a matter mentioned in subsection (2) are 1
administration rules, whether or not the rules are made-- 2
(a) under this section; or 3
(b) if the regulatory authority has power under another Act 4
or otherwise to make the rules for the matter--under 5
that other Act or otherwise. 6
(4) Administration rules about a matter mentioned in subsection 7
(2)(l) are indemnity rules. 8
(5) This division does not affect a regulatory authority's power 9
under another Act or otherwise to make rules but rules made 10
under another Act or otherwise that are administration rules 11
are taken to be made under this Act. 12
Example for subsection (5)-- 13
If a provision of this Act provides that the right to engage in legal 14
practice is subject to provisions under this Act, the right of practice is 15
subject to relevant administration rules. 16
(6) To remove any doubt, it is declared that administration rules 17
are statutory instruments under the Statutory Instruments Act 18
1992. 19
Note-- 20
Under the Statutory Instruments Act 1992, sections 24 and 25,41 21
administration rules may provide for a fee in relation to specified 22
exceptions and factors or different persons or matters. 23
(7) Rules made under subsection (2)(b) or (f) must allow for the 24
provision of educational or training programs to be open to all 25
service providers meeting a standard approved by the 26
regulatory authority. 27
(8) Rules made under subsection (2) about education or training 28
for the purpose of continuing professional development must 29
have-- 30
(a) sufficient regard to opportunities for participation by 31
legal practitioners in rural and regional areas; and 32
(b) provisions for exemptions having regard to hardship. 33
41 Statutory Instruments Act 1992, sections 24 (Statutory instrument may be of general
or limited application) and 25 (Statutory instrument may make different provision
for different categories)
s 232 185 s 232
Legal Profession Bill 2007
232 Indemnity rules 1
(1) Indemnity rules-- 2
(a) may authorise or require the regulatory authority to 3
establish and keep a fund or funds; or 4
(b) may authorise or require the regulatory authority to take 5
out and keep insurance with insurers carrying on 6
insurance business and approved by the authority for the 7
purposes of the insurance; or 8
(c) may require local legal practitioners holding practising 9
certificates granted or renewed by the authority, or a 10
class of certificate holders, to take out and keep 11
insurance with insurers carrying on insurance business 12
and approved by the authority for the purposes of the 13
insurance; or 14
(d) may require any of the following to take out and keep 15
insurance with insurers carrying on insurance business 16
and approved by the law society for the purposes of the 17
insurance-- 18
(i) an incorporated legal practice engaged in legal 19
practice in this jurisdiction; 20
(ii) a legal practitioner director of the incorporated 21
legal practice; 22
(iii) an Australian legal practitioner who is an officer or 23
employee of the incorporated legal practice; or 24
(e) may make provision in relation to insurance for 25
Australian-registered foreign lawyers engaged in the 26
practice of foreign law in this jurisdiction. 27
(2) Indemnity rules-- 28
(a) may state the terms and conditions on which indemnity 29
is to be available and any circumstances in which the 30
right to indemnity is to be excluded or modified; and 31
(b) may provide for the management, administration and 32
protection of any fund established and kept under the 33
indemnity rules, and require certificate holders of 34
practising certificates granted or renewed by the 35
authority, or a class of certificate holders, to make 36
payments to a fund; and 37
s 232 186 s 232
Legal Profession Bill 2007
(c) may require certificate holders of practising certificates 1
granted or renewed by the regulatory authority, or a 2
class of certificate holders, to make payments (by way 3
of levy) on any insurance policy taken out and kept by 4
the authority under the indemnity rules; and 5
(d) may require an Australian legal practitioner or 6
incorporated legal practice required to be insured under 7
the rule, or an Australian-registered foreign lawyer with 8
or applying for insurance under the rule, to disclose the 9
following-- 10
(i) information about professional indemnity 11
insurance to clients or prospective clients; 12
(ii) information to the regulatory authority that is 13
necessary for the regulatory authority to calculate 14
insurance levies applicable to the practitioner, 15
practice or lawyer; and 16
(e) may prescribe terms and conditions with which an 17
insurance policy, required by the indemnity rules made 18
for the purposes of subsection (1)(c), must comply; and 19
(f) may authorise the regulatory authority to decide the 20
amount of a payment required by the indemnity rules, 21
subject to limits under the rules; and 22
(g) may authorise the regulatory authority or insurer to take 23
a proceeding against a certificate holder or former 24
certificate holder for amounts paid by way of indemnity 25
in connection with a matter in relation to which he or 26
she has failed to comply with the indemnity rules, and 27
may state circumstances in which the proceeding may 28
be taken; and 29
(h) may empower the regulatory authority to take steps as it 30
considers necessary or expedient to find out whether or 31
not the indemnity rules are being complied with. 32
(3) Indemnity rules may provide in relation to an incorporated 33
legal practice for any matter that it may, under subsection (2), 34
provide in relation to a certificate holder. 35
(4) Insurance levies or other amounts payable under the 36
indemnity rules by an incorporated legal practice may be 37
decided by reference to the total number of Australian legal 38
s 233 187 s 234
Legal Profession Bill 2007
practitioners employed by the practice and other relevant 1
matters. 2
(5) This section does not limit section 230(2)(l). 3
233 Relationship of administration rules to this Act and 4
regulation 5
(1) A regulation may be made in relation to any matter mentioned 6
in section 231(2) for which administration rules may be made. 7
(2) A provision of a regulatory authority's administration rules 8
does not have effect to the extent that it is inconsistent with 9
this Act, a regulation or legal profession rules relevant to the 10
authority. 11
(3) Despite another Act, administration rules can not provide that 12
a contravention of the rules-- 13
(a) is an offence; or 14
(b) is capable of constituting unsatisfactory professional 15
conduct or professional misconduct. 16
Note-- 17
Under the Statutory Instruments Act 1992, section 23,42 a regulation 18
may apply, adopt or incorporate administration rules. 19
234 Relationship between legal profession rules and 20
administration rules 21
(1) A regulation may identify a provision of administration rules 22
as a provision that the holder of a practising certificate, 23
granted or renewed by the regulatory authority that made the 24
administration rules, must comply with. 25
(2) If a provision is identified as mentioned in subsection (1), a 26
contravention of the provision is capable of constituting 27
unsatisfactory professional conduct or professional 28
misconduct. 29
42 Statutory Instruments Act 1992, section 23 (Statutory instrument may make
provision by applying another document)
s 235 188 s 237
Legal Profession Bill 2007
235 Availability of administration rules 1
A regulatory authority must ensure that an up-to-date version 2
of the administration rules of the regulatory authority is 3
available, without charge, for public inspection-- 4
(a) at the authority's principal place of business during 5
normal working hours; or 6
(b) on the authority's internet site or an internet site 7
identified on the authority's internet site. 8
Part 3.3 Trust money and trust 9
accounts 10
Division 1 Preliminary 11
236 Main purposes of pt 3.3 12
The main purposes of this part are as follows-- 13
(a) to ensure trust money is held by law practices in a way 14
that protects the interests of persons for whom money is 15
held, both inside and outside this jurisdiction; 16
(b) to minimise compliance requirements for law practices 17
that provide legal services within and outside this 18
jurisdiction; 19
(c) to ensure the law society can work effectively with 20
corresponding authorities in other jurisdictions in 21
relation to the regulation of trust money and trust 22
accounts. 23
237 Definitions for pt 3.3 24
(1) In this part-- 25
approved ADI means an ADI approved under section 280 by 26
the law society. 27
s 237 189 s 237
Legal Profession Bill 2007
controlled money means money received or held by a law 1
practice for which the practice has a written direction to 2
deposit the money in an account, other than a general trust 3
account, over which the practice has or will have exclusive 4
control. 5
Note-- 6
Section 251(6) prevents pooling of controlled money. 7
controlled money account means an account kept by a law 8
practice with an ADI for the holding of controlled money 9
received by the practice. 10
deposit record includes a deposit slip or duplicate deposit slip. 11
general trust account means an account kept by a law 12
practice with an approved ADI for the holding of trust money 13
received by the practice, other than controlled money or 14
transit money. 15
permanent form, in relation to a trust record, means printed 16
or, on request, capable of being printed, in English on paper or 17
other material. 18
transit money means money received by a law practice 19
subject to instructions to pay or deliver it to a third party, other 20
than an associate of the practice. 21
trust account means an account kept by a law practice with an 22
approved ADI to hold trust money. 23
trust money means money entrusted to a law practice in the 24
course of or in connection with the provision of legal services 25
by the practice, and includes-- 26
(a) money received by the practice on account of legal costs 27
in advance of providing the services; and 28
(b) controlled money received by the practice; and 29
(c) transit money received by the practice; and 30
(d) money received by the practice, that is the subject of a 31
power, exercisable by the practice or an associate of the 32
practice, to deal with the money for another person. 33
trust records includes the following documents-- 34
(a) receipts; 35
s 237 190 s 237
Legal Profession Bill 2007
(b) cheque butts or cheque requisitions; 1
(c) records of authorities to withdraw by electronic funds 2
transfer; 3
(d) deposit records; 4
(e) trust account ADI statements; 5
(f) trust account receipts and payments cash books; 6
(g) trust ledger accounts; 7
(h) records of monthly trial balances; 8
(i) records of monthly reconciliations; 9
(j) trust transfer journals; 10
(k) statements of account required to be given under a 11
regulation; 12
(l) registers required to be kept under a regulation; 13
(m) monthly statements required to be kept under a 14
regulation; 15
(n) files relating to trust transactions or bills of costs or 16
both; 17
(o) written directions, authorities or other documents 18
required to be kept under this Act or a regulation; 19
(p) supporting information required to be kept under a 20
regulation in relation to powers to deal with trust money. 21
(2) A reference in this part to a law practice's trust account or 22
trust records includes a reference to an associate's trust 23
account or trust records. 24
(3) A reference in this part to a power given to a law practice or 25
an associate of the practice to deal with money for another 26
person is a reference to a power given to the practice or 27
associate that is exercisable by-- 28
(a) the practice alone; or 29
(b) an associate of the practice alone, otherwise than in a 30
private and personal capacity; or 31
s 238 191 s 238
Legal Profession Bill 2007
(c) the practice or an associate of the practice jointly or 1
severally, or jointly and severally, with either or both of 2
the following-- 3
(i) 1 or more associates of the practice; 4
(ii) the person, or 1 or more nominees of the person, 5
for whom or on whose behalf the money may or is 6
to be dealt with under the power. 7
238 Money involved in financial services or investments 8
(1) Money that is entrusted to or held by a law practice in 9
connection with either of the following is not trust money 10
under this Act-- 11
(a) a financial service provided by the practice or an 12
associate of the practice in circumstances in which the 13
practice or associate is required to hold an Australian 14
financial services licence covering the provision of the 15
service (whether or not the licence is held at any relevant 16
time); 17
(b) a financial service provided by the practice or an 18
associate of the practice in circumstances in which the 19
practice or associate provides the service as a 20
representative of another person who carries on a 21
financial services business (whether or not the practice 22
or associate is an authorised representative at any 23
relevant time). 24
(2) Without limiting subsection (1), money that is entrusted to or 25
held by a law practice for a managed investment scheme, or 26
mortgage financing, undertaken by the practice is not trust 27
money under this Act. 28
(3) Without limiting subsections (1) and (2), money that is 29
entrusted to or held by a law practice for investment purposes, 30
whether on its own account or as agent, is not trust money 31
under this Act, unless-- 32
(a) the money was entrusted to or held by the practice-- 33
(i) in the ordinary course of legal practice; and 34
(ii) primarily in connection with the provision of legal 35
services to or at the direction of the client; and 36
s 239 192 s 240
Legal Profession Bill 2007
(b) the investment is or is to be made-- 1
(i) in the ordinary course of legal practice; and 2
(ii) for the ancillary purpose of keeping or enhancing 3
the value of the money or property pending 4
completion of the matter or further stages of the 5
matter or pending payment or delivery of the 6
money or property to or at the direction of the 7
client. 8
239 Decisions about status of money 9
(1) This section applies to money received by a law practice if the 10
law society considers that there is doubt or a dispute as to 11
whether the money is trust money. 12
(2) The law society may decide that the money is or is not trust 13
money. 14
(3) Under the Acts Interpretation Act 1954, section 24AA, the law 15
society may amend or repeal a decision under this section. 16
(4) While a decision under this section is in force that money is 17
trust money, the money is taken to be trust money under this 18
Act. 19
(5) While a decision under this section is in force that money is 20
not trust money, the money is taken not to be trust money 21
under this Act. 22
(6) This section has effect subject to a decision of a court made in 23
relation to the money concerned. 24
240 Application of part to law practices and trust money 25
(1) This part applies to the following law practices in relation to 26
trust money received by them in this jurisdiction-- 27
(a) a law practice that has an office in this jurisdiction, 28
whether or not the practice has an office in another 29
jurisdiction; 30
(b) a law practice that does not have an office in any 31
jurisdiction at all. 32
s 241 193 s 241
Legal Profession Bill 2007
Note-- 1
It is intended that a law practice that receives trust money in this 2
jurisdiction, that does not have an office in this jurisdiction, but 3
has an office in another jurisdiction, must deal with the money 4
under the corresponding law of the other jurisdiction. 5
(2) This part applies to the following law practices in relation to 6
trust money received by them in another jurisdiction-- 7
(a) a law practice that has an office in this jurisdiction and 8
in no other jurisdiction; 9
(b) a law practice that has an office in this jurisdiction and 10
in one or more other jurisdictions but not in the 11
jurisdiction in which the trust money was received, 12
unless the money is dealt with under the corresponding 13
law of another jurisdiction. 14
(3) However, this part does not apply to law practices or kinds of 15
trust money prescribed under a regulation. 16
(4) A reference in this section to having an office in a jurisdiction 17
is a reference to having, or engaging in legal practice from, an 18
office or business address in the jurisdiction. 19
Note-- 20
Section 174 applies this part to Australian-registered foreign lawyers. 21
241 Protocols for deciding where trust money is received 22
(1) The law society may enter into arrangements (trust money 23
protocols) with corresponding authorities about any or all of 24
the following-- 25
(a) deciding the jurisdiction where a law practice receives 26
trust money; 27
(b) sharing information about whether, and if so how, trust 28
money is being dealt with under this Act or a 29
corresponding law. 30
(2) For this Act, to the extent that a trust money protocol is 31
relevant, the jurisdiction where a law practice receives trust 32
money must be decided under the relevant protocol. 33
(3) The law society may enter into arrangements that amend, 34
revoke or replace a trust money protocol. 35
s 242 194 s 243
Legal Profession Bill 2007
(4) A trust money protocol, or an amendment, revocation or 1
replacement of a trust money protocol, has effect in this 2
jurisdiction only to the extent it is approved under a 3
regulation. 4
242 When money is received 5
(1) For this Act, a law practice receives money when-- 6
(a) the practice obtains possession or control of it directly; 7
or 8
(b) the practice obtains possession or control of it indirectly 9
as a result of its delivery to an associate of the practice; 10
or 11
(c) the practice, or an associate of the practice (otherwise 12
than in a private and personal capacity) is given a power 13
to deal with the money on behalf of another person. 14
(2) For this Act, a law practice or associate is taken to have 15
received money if the money is available to the practice or 16
associate by means of an instrument or other way of 17
authorising an ADI to credit or debit an amount to an account 18
with the ADI, including, for example, an electronic funds 19
transfer, credit card transaction or telegraphic transfer. 20
243 Discharge by legal practitioner associate of obligations 21
of law practice 22
(1) The following actions, if taken by a legal practitioner 23
associate of a law practice on behalf of the practice in relation 24
to trust money received by the practice, discharge the 25
corresponding obligations of the practice in relation to the 26
money-- 27
(a) the establishment of a trust account; 28
(b) the keeping of a trust account; 29
(c) the payment of trust money into and out of a trust 30
account and other dealings with trust money; 31
(d) the keeping of trust records; 32
(e) engaging an external examiner to examine trust records; 33
s 244 195 s 246
Legal Profession Bill 2007
(f) the payment of an amount into a prescribed account 1
under section 285; 2
(g) an action of a kind prescribed under a regulation. 3
(2) If the legal practitioner associate keeps a trust account in 4
relation to trust money received by the law practice, this part 5
and a regulation made under this part apply to the associate in 6
the same way as they apply to a law practice. 7
(3) Subsection (1) does not apply to the extent that the associate is 8
prevented under a regulation from taking any action 9
mentioned in that subsection. 10
244 Liability of principals of law practice 11
(1) A provision of this part or a regulation made under this part 12
expressed as imposing an obligation on a law practice 13
imposes the same obligation on the principals of the law 14
practice jointly and severally, but discharge of the practice's 15
obligation also discharges the corresponding obligation 16
imposed on the principals. 17
(2) A reference in this part or a regulation made under this part to 18
a law practice includes a reference to the principals of the law 19
practice. 20
245 Former practices, principals and associates 21
This part applies in relation to former law practices and 22
former principals and associates of law practices in relation to 23
conduct occurring while they were respectively law practices, 24
principals and associates in the same way as it applies to law 25
practices, principals and associates, and so applies with any 26
necessary changes. 27
246 Barristers not to receive trust money 28
(1) A barrister is not, in the course of practising as a barrister, to 29
receive trust money. 30
(2) Subsection (1) does not-- 31
(a) prevent a barrister receiving money in payment of legal 32
services that the barrister has performed; and 33
s 247 196 s 248
Legal Profession Bill 2007
(b) limit the bar association's power to make legal 1
profession rules in relation to banking arrangements for 2
fees received in advance by a barrister. 3
Division 2 Trust accounts and trust money 4
247 Keeping general trust account 5
(1) A law practice that receives trust money to which this part 6
applies must keep a general trust account in this jurisdiction. 7
Maximum penalty--100 penalty units. 8
(2) A law practice that is required to keep a general trust account 9
in this jurisdiction must establish and keep the account in the 10
way prescribed under a regulation. 11
Maximum penalty--100 penalty units. 12
(3) Subsection (1) does not apply to a law practice in relation to 13
any period during which the practice receives or holds only 14
either or both of the following-- 15
(a) controlled money; 16
(b) transit money received in a form other than cash. 17
(4) Subject to any requirements under a regulation, a requirement 18
of this section for a law practice to keep, or establish and 19
keep, a general trust account in this jurisdiction does not 20
prevent the practice from keeping, or establishing and 21
keeping, more than one general trust account in this 22
jurisdiction, whether during the same period or during 23
different periods. 24
(5) Without limiting the other provisions of this section, a 25
regulation may provide that a law practice must not close a 26
general trust account except as permitted under the regulation. 27
248 Certain trust money to be deposited in general trust 28
account 29
(1) Subject to section 255, as soon as practicable after receiving 30
trust money, a law practice must deposit the money in a 31
general trust account of the practice unless-- 32
s 249 197 s 249
Legal Profession Bill 2007
(a) the practice has a written direction by an appropriate 1
person to deal with it otherwise than by depositing it in 2
the account; or 3
(b) the money is controlled money; or 4
(c) the money is transit money; or 5
(d) the money is the subject of a power given to the practice 6
or an associate of the practice to deal with the money for 7
or on behalf of another person. 8
Maximum penalty--100 penalty units. 9
(2) Subject to section 255, a law practice that has received money 10
that is the subject of a written direction mentioned in 11
subsection (1)(a) must deal with the money in accordance 12
with the direction-- 13
(a) within the period, if any, stated in the direction; or 14
(b) subject to paragraph (a), as soon as practicable after it is 15
received. 16
Maximum penalty--100 penalty units. 17
(3) The law practice must keep a written direction mentioned in 18
subsection (1)(a) for the period prescribed under a regulation. 19
Maximum penalty--100 penalty units. 20
(4) A person is an appropriate person for this section if the 21
person is legally entitled to give the law practice directions in 22
relation to dealings with the trust money. 23
249 Holding, disbursing and accounting for trust money 24
(1) A law practice must-- 25
(a) hold trust money deposited in a general trust account of 26
the practice exclusively for the person on whose behalf 27
it is received; and 28
(b) disburse the trust money only under a direction given by 29
the person. 30
Maximum penalty--50 penalty units. 31
(2) Subsection (1) applies subject to an order of a court of 32
competent jurisdiction or as authorised by law. 33
s 250 198 s 250
Legal Profession Bill 2007
(3) The law practice must account for the trust money in the way 1
prescribed under a regulation. 2
Maximum penalty--50 penalty units. 3
250 Withdrawing trust money from general trust account 4
(1) A law practice must not withdraw trust money from a general 5
trust account otherwise than by-- 6
(a) cheque; or 7
(b) if the practice is authorised by the law society to 8
withdraw trust money from a general trust account by 9
electronic funds transfer--electronic funds transfer. 10
Maximum penalty--50 penalty units. 11
(2) Without limiting subsection (1), the following are specifically 12
prohibited by the subsection-- 13
(a) cash withdrawals; 14
(b) ATM withdrawals or transfers; 15
(c) telephone banking withdrawals or transfers; 16
(d) unless the law practice is authorised by the law society 17
to withdraw trust money from a general trust account by 18
electronic funds transfer--withdrawals by electronic 19
funds transfer. 20
(3) A regulation may make provision in relation to withdrawals 21
by cheque or electronic funds transfer, including, for example, 22
the matters the law society must have regard to in deciding to 23
authorise a law practice to withdraw trust money from a 24
general trust account by electronic funds transfer. 25
(4) This section has effect despite anything to the contrary in a 26
direction given to the law practice concerned, even if the 27
direction is given by a person who is otherwise legally entitled 28
to give the law practice directions in relation to dealings with 29
the trust money. 30
s 251 199 s 251
Legal Profession Bill 2007
251 Controlled money 1
(1) As soon as practicable after receiving controlled money, a law 2
practice must deposit the money in the account stated in the 3
written direction relating to the money. 4
Maximum penalty--50 penalty units. 5
(2) The law practice must hold controlled money deposited in a 6
controlled money account under subsection (1) exclusively for 7
the person on whose behalf it was received. 8
Maximum penalty--50 penalty units. 9
(3) The law practice that holds controlled money deposited in a 10
controlled money account under subsection (1) must not 11
disburse the money other than under-- 12
(a) the written direction mentioned in that subsection; or 13
(b) a later written direction given by or on behalf of the 14
person on whose behalf the money was received. 15
Maximum penalty--50 penalty units. 16
(4) The law practice must keep the controlled money account, and 17
account for the controlled money, in the way prescribed under 18
a regulation. 19
Maximum penalty--50 penalty units. 20
(5) The law practice must keep a written direction mentioned in 21
this section for the period prescribed under a regulation. 22
Maximum penalty--50 penalty units. 23
(6) The law practice must ensure that the controlled money 24
account is used for the deposit of controlled money received 25
on behalf of the person mentioned in subsection (2), and not 26
for the deposit of controlled money received on behalf of any 27
other person, except to the extent that a regulation otherwise 28
permits. 29
Maximum penalty--50 penalty units. 30
(7) Subsection (3) applies subject to an order of a court of 31
competent jurisdiction or as authorised by law. 32
s 252 200 s 253
Legal Profession Bill 2007
252 Withdrawing controlled money from controlled money 1
account 2
(1) A law practice must not withdraw controlled money from a 3
controlled money account otherwise than by-- 4
(a) cheque; or 5
(b) if the practice is authorised by the law society to 6
withdraw controlled money from a controlled money 7
account by electronic funds transfer--electronic funds 8
transfer. 9
Maximum penalty--50 penalty units. 10
(2) Without limiting subsection (1), the following are specifically 11
prohibited by the subsection-- 12
(a) cash withdrawals; 13
(b) ATM withdrawals or transfers; 14
(c) telephone banking withdrawals or transfers; 15
(d) unless the law practice is authorised by the law society 16
to withdraw controlled money from a controlled money 17
account by electronic funds transfer--withdrawals by 18
electronic funds transfer. 19
(3) A regulation may make provision in relation to withdrawals 20
by cheque or electronic funds transfer, including, for example, 21
the matters the law society must have regard to in deciding to 22
authorise a law practice to withdraw controlled money from a 23
controlled money account by electronic funds transfer. 24
(4) This section has effect despite anything to the contrary in a 25
direction given to the law practice concerned even if the 26
direction is given by a person who is otherwise legally entitled 27
to give the law practice directions in relation to dealings with 28
the controlled money. 29
253 Transit money 30
(1) Subject to section 255, a law practice that has received transit 31
money must pay or deliver the money as required by the 32
instructions relating to the money-- 33
(a) within the period, if any, stated in the instructions; or 34
s 254 201 s 255
Legal Profession Bill 2007
(b) subject to paragraph (a), as soon as practicable after it is 1
received. 2
Maximum penalty--50 penalty units. 3
(2) The law practice must account for the money in the way 4
prescribed under a regulation. 5
Maximum penalty--50 penalty units. 6
254 Trust money subject to specific powers 7
(1) Subject to section 255, a law practice must ensure that trust 8
money that is the subject of a power given to the practice or an 9
associate of the practice is dealt with by the practice or 10
associate only under the power relating to the money. 11
Maximum penalty--50 penalty units. 12
(2) The law practice must account for the money in the way 13
prescribed under a regulation. 14
Maximum penalty--50 penalty units. 15
255 Trust money received in the form of cash 16
(1) A law practice must deposit general trust money received in 17
the form of cash in a general trust account of the practice. 18
Maximum penalty--100 penalty units. 19
(2) If the law practice has a written direction by an appropriate 20
person to deal with general trust money received in the form 21
of cash otherwise than by first depositing it in a general trust 22
account of the practice-- 23
(a) the money must nevertheless be deposited in a general 24
trust account of the practice under subsection (1); and 25
(b) after it is deposited in the general trust account, the 26
money is to be dealt with under the applicable terms of 27
the direction so far as those terms are not inconsistent 28
with paragraph (a). 29
(3) Controlled money received in the form of cash must be 30
deposited in a controlled money account under section 251. 31
s 256 202 s 256
Legal Profession Bill 2007
(4) A law practice must deposit transit money received in the 1
form of cash in a general trust account of the practice before 2
the money is otherwise dealt with under the instructions 3
relating to the money. 4
Maximum penalty--100 penalty units. 5
(5) A law practice must deposit trust money that is received in the 6
form of cash and is the subject of a power in a general trust 7
account, or a controlled money account in the case of 8
controlled money, of the practice before the money is 9
otherwise dealt with under the power. 10
Maximum penalty--100 penalty units. 11
(6) This section has effect despite anything to the contrary in any 12
relevant direction, instruction or power. 13
(7) In this section-- 14
appropriate person, in relation to trust money, means a person 15
who is legally entitled to give the law practice concerned 16
directions in relation to dealings with the money. 17
general trust money means trust money, other than-- 18
(a) controlled money; and 19
(b) transit money; and 20
(c) money that is the subject of a power. 21
256 Protection of trust money 22
(1) Money standing to the credit of a trust account kept by a law 23
practice is not available for the payment of debts of the 24
practice or any of its associates. 25
(2) Money standing to the credit of a trust account kept by a law 26
practice is not liable to be attached or taken in execution for 27
satisfying a judgment against the practice or any of its 28
associates. 29
(3) This section does not apply to money to which a law practice 30
or associate is entitled. 31
s 257 203 s 259
Legal Profession Bill 2007
257 Intermixing money 1
(1) A law practice must not, otherwise than as permitted under 2
subsection (2), mix trust money with other money. 3
Maximum penalty--100 penalty units. 4
(2) A law practice is permitted to mix trust money with other 5
money to the extent only that is authorised by the law society 6
and under any conditions imposed by the law society in 7
relation to the authorisation. 8
258 Dealing with trust money--legal costs and unclaimed 9
money 10
(1) A law practice may do any of the following in relation to trust 11
money held in a general trust account or controlled money 12
account of the practice for a person-- 13
(a) exercise a lien, including a general retaining lien, for the 14
amount of legal costs reasonably due and owing by the 15
person to the practice; 16
(b) withdraw money for payment to the practice's account 17
for legal costs owing to the practice if the relevant 18
procedures or requirements under this Act or prescribed 19
under a regulation are complied with; 20
(c) after deducting any legal costs properly owing to the 21
practice, deal with the balance as unclaimed money 22
under section 713. 23
(2) Subsection (1) applies despite any other provision of this part 24
but has effect subject to part 3.4. 25
259 Deficiency in trust account 26
(1) An Australian legal practitioner must not, without reasonable 27
excuse, cause-- 28
(a) a deficiency in any trust account or trust ledger account; 29
or 30
(b) a failure to pay or deliver any trust money. 31
Maximum penalty--200 penalty units. 32
s 260 204 s 260
Legal Profession Bill 2007
(2) A reference in subsection (1) to an account includes a 1
reference to an account of the practitioner or of the law 2
practice of which the practitioner is an associate. 3
(3) In this section-- 4
cause includes be responsible for. 5
deficiency, in a trust account or trust ledger account, includes 6
the non-inclusion or exclusion of the whole or any part of an 7
amount that is required to be included in the account. 8
260 Reporting certain irregularities and suspected 9
irregularities 10
(1) As soon as practicable after a legal practitioner associate of a 11
law practice becomes aware that there is an irregularity in any 12
of the practice's trust accounts or trust ledger accounts, the 13
associate must give written notice of the irregularity to-- 14
(a) the law society; and 15
(b) if a corresponding authority is responsible for the 16
regulation of the accounts concerned--the 17
corresponding authority. 18
Maximum penalty--50 penalty units. 19
(2) If an Australian legal practitioner believes on reasonable 20
grounds that there is an irregularity in connection with the 21
receipt, recording or disbursement of any trust money 22
received by a law practice of which the practitioner is not a 23
legal practitioner associate, the practitioner must, as soon as 24
practicable after forming the belief, give written notice of it 25
to-- 26
(a) the law society; and 27
(b) if a corresponding authority is responsible for the 28
regulation of the accounts relating to the trust money 29
concerned--the corresponding authority. 30
Maximum penalty--50 penalty units. 31
(3) An Australian legal practitioner is not liable for any loss or 32
damage suffered by another person as a result of the 33
practitioner's compliance with subsection (1) or (2). 34
s 261 205 s 263
Legal Profession Bill 2007
261 Keeping trust records 1
(1) A law practice must keep in permanent form trust records in 2
relation to trust money received by the practice. 3
Maximum penalty--100 penalty units. 4
(2) The law practice must keep the trust records-- 5
(a) in the way prescribed under a regulation; and 6
(b) in a way that at all times discloses the true position in 7
relation to trust money received for any person; and 8
(c) in a way that enables the trust records to be conveniently 9
and properly investigated or externally examined; and 10
(d) for the period prescribed under a regulation. 11
Maximum penalty--100 penalty units. 12
262 False names 13
(1) A law practice must not knowingly receive money or record 14
receipt of money in the practice's trust records under a false 15
name. 16
Maximum penalty--100 penalty units. 17
(2) If a person on whose behalf trust money is received by a law 18
practice is commonly known by more than one name, the 19
practice must ensure that the practice's trust records record all 20
names by which the person is known. 21
Maximum penalty--100 penalty units. 22
Division 3 Investigations 23
263 Investigations 24
(1) The law society may, on its own initiative or if asked by the 25
commissioner, investigate the affairs of a law practice under 26
this division. 27
(2) The investigation may be in relation to particular allegations 28
or suspicions regarding trust money, trust property, trust 29
accounts or any other aspect of the affairs of the law practice. 30
s 264 206 s 265
Legal Profession Bill 2007
(3) The principal purposes of an investigation are-- 1
(a) to find out whether the law practice has complied with 2
or is complying with this part; and 3
(b) to detect and prevent defaults in relation to the law 4
practice. 5
(4) Subsection (3) does not limit the scope of the investigation or 6
the powers of the investigator conducting the investigation. 7
(5) An investigation of the affairs of a law practice under this 8
division is a trust account investigation. 9
Note-- 10
Chapter 6 applies to a trust account investigation--see section 540. 11
264 Investigator's report 12
(1) As soon as practicable after completing a trust account 13
investigation, the investigator must give a written report of the 14
investigation to the law society. 15
(2) If the trust account investigation relates to a complaint or 16
investigation matter, or was started at the request of the 17
commissioner, the law society must as soon as practicable 18
give a copy of the report to the commissioner. 19
265 When costs of investigation are debt 20
(1) If-- 21
(a) an investigator states in his or her report of a trust 22
account investigation that there is evidence that a breach 23
of this Act has been committed or that a default has 24
happened in relation to the law practice whose affairs 25
are under investigation; and 26
(b) the law society is satisfied that the breach or default is 27
wilful or of a substantial nature; 28
the law society may decide that the whole or part of the costs 29
of carrying out the investigation is payable to the society and 30
may decide the amount payable. 31
s 266 207 s 266
Legal Profession Bill 2007
(2) The amount decided by the law society is a debt payable to the 1
society by the law practice whose affairs are under 2
investigation. 3
(3) The law society must, before seeking to recover the amount 4
payable, give the law practice an information notice about the 5
decision and the amount payable. 6
(4) The law practice may appeal, to a court having jurisdiction for 7
the amount payable, against the decision within 28 days after 8
the day the information notice is given to the practice. 9
266 Law society or commissioner may give information to 10
professional accounting association 11
(1) This section applies if, on considering a report given under 12
section 264 about a law practice, the law society or the 13
commissioner is satisfied the report discloses conduct that 14
shows an external examiner may have breached the 15
professional accounting or audit standards in relation to an 16
external examination of the practice's trust records. 17
(2) The law society or commissioner may give to the professional 18
accounting association of which the external examiner is, or 19
was, a member-- 20
(a) a copy of the report or the part of the report relevant to 21
the disclosure of the conduct; or 22
(b) another document the law society or commissioner 23
considers relevant to the disclosure of the conduct. 24
(3) If the professional accounting association investigates the 25
conduct of the external examiner-- 26
(a) the investigator who gave the report may, with the 27
approval of the law society, give information to the 28
association about the trust account investigation to 29
which the report relates; and 30
(b) an officer or employee of the law society may, with the 31
approval of the law society, give information to the 32
association about the content of the report. 33
(4) However, a report or a part of a report, or another document or 34
information given under subsection (2) or (3), must not 35
include confidential information about a law practice. 36
s 267 208 s 267
Legal Profession Bill 2007
(5) In this section-- 1
confidential information, about a law practice, means 2
information that identifies a client of the practice or a party to 3
a matter in which the practice acts. 4
professional accounting association means-- 5
(a) CPA Australia ACN 008 392 452; or 6
(b) The Institute of Chartered Accountants in Australia 7
ARBN 084 642 571; or 8
(c) another entity prescribed under a regulation. 9
professional accounting or audit standards means-- 10
(a) the accounting standards issued by the Australian 11
Accounting Standards Board; or 12
(b) the auditing standards issued by the Auditing and 13
Assurance Standards Board. 14
Division 4 External examinations 15
267 Appointment and qualifications of external examiner 16
(1) A law practice must, within 14 days after becoming a law 17
practice to which this part applies, appoint an individual as the 18
external examiner for the practice. 19
Maximum penalty--50 penalty units. 20
(2) If an individual appointed as a law practice's external 21
examiner stops being the practice's external examiner, the law 22
practice must, within 14 days after the individual stops being 23
the external examiner, appoint another individual as the 24
external examiner for the practice. 25
Maximum penalty--50 penalty units. 26
(3) A law practice may appoint an individual as an external 27
examiner for the practice under this section only if satisfied 28
the individual-- 29
(a) has the qualifications or experience prescribed under a 30
regulation; and 31
s 268 209 s 269
Legal Profession Bill 2007
(b) is not disqualified from being an external examiner 1
under section 278. 2
268 Law practice must have trust records externally 3
examined 4
(1) A law practice must, for each financial period for the practice 5
and within 60 days after the end of the period, have its trust 6
records externally examined by the practice's external 7
examiner. 8
Maximum penalty--100 penalty units. 9
(2) If the law society is satisfied a law practice has not had its 10
trust records externally examined under this section or that an 11
external examination of the practice's trust records has not 12
been carried out in the way prescribed under a regulation, the 13
law society may appoint an external examiner to examine the 14
practice's trust records. 15
(3) Without limiting the generality of section 298, this section has 16
effect subject to any exemptions provided by or given under a 17
regulation from the requirement to have trust records 18
examined as otherwise required by this section. 19
(4) In this section-- 20
financial period, for an entity that is a law practice, means-- 21
(a) for the first period after the entity becomes a law 22
practice--the period of not more than 12 months 23
starting on the day the entity becomes a law practice and 24
ending on 31 March; or 25
(b) otherwise--12 months ending on 31 March. 26
269 Restriction on appointment of associates as external 27
examiner 28
(1) The law society may appoint an associate of a law practice as 29
an external examiner under this division only if satisfied it is 30
appropriate to do so. 31
(2) However, an associate of a law practice can not be appointed 32
as an external examiner under this division to examine the 33
practice's trust records. 34
s 270 210 s 272
Legal Profession Bill 2007
270 Law practice to give notice of external examiner 1
(1) A law practice must, within 30 days after becoming a law 2
practice to which this part applies, give the law society notice 3
in the approved form of the practice's external examiner. 4
Maximum penalty--50 penalty units. 5
(2) A law practice must, immediately after an individual stops 6
being the practice's external examiner, give the law society 7
written notice of the fact. 8
Maximum penalty--50 penalty units. 9
(3) A law practice must, within 30 days after an individual stops 10
being the practice's external examiner, give the law society 11
notice in the approved form of the practice's external 12
examiner appointed under section 267(2) (the replacement 13
external examiner). 14
Maximum penalty--50 penalty units. 15
(4) A notice given under subsection (1) or (3) must be signed by 16
the external examiner or replacement external examiner. 17
271 Notice if person stops being external examiner 18
If an individual stops being the external examiner for a law 19
practice, the individual must immediately give the law society 20
notice of the fact in the approved form. 21
Maximum penalty--50 penalty units. 22
272 Examination of affairs in examining trust records 23
(1) An external examiner appointed to examine a law practice's 24
trust records may, in carrying out an examination of the trust 25
records, examine the affairs of the practice. 26
(2) If the law practice is an incorporated legal practice or 27
multi-disciplinary partnership, the reference in subsection (1) 28
to the affairs of the law practice extends to the affairs of the 29
incorporated legal practice or multi-disciplinary partnership 30
or of an associate, so far as they are relevant to trust money, 31
trust records and associated matters. 32
s 273 211 s 275
Legal Profession Bill 2007
(3) A reference in this division to trust records includes a 1
reference to the affairs of a law practice that may be examined 2
under this section in the carrying out of an examination of the 3
practice's trust records. 4
273 Carrying out external examination 5
(1) An external examination of a law practice's trust records is to 6
be carried out in the way prescribed under a regulation. 7
(2) Without limiting subsection (1), a regulation may provide for 8
the following-- 9
(a) the standards to be adopted and the procedures to be 10
followed by external examiners; 11
(b) the form and content of an external examiner's report on 12
an external examination. 13
274 External examiner's report on external examination 14
(1) If a law practice has its trust records examined by an external 15
examiner under section 268(1), the practice must, within 60 16
days after the end of the period to which the examination 17
relates, give to the law society a copy of the external 18
examiner's report on the examination, unless the practice has 19
a reasonable excuse. 20
Maximum penalty--50 penalty units. 21
(2) If an external examiner appointed by the law society carries 22
out an external examination of a law practice's trust records, 23
the external examiner must give to the law society a copy of 24
the external examiner's report on the examination. 25
Maximum penalty--50 penalty units. 26
275 External examiner to give other reports 27
(1) This section applies if, in carrying out an external examination 28
of a law practice's trust records, an external examiner 29
becomes aware of a matter that-- 30
(a) is reasonably likely-- 31
s 276 212 s 276
Legal Profession Bill 2007
(i) to adversely affect the financial position of the law 1
practice to a material extent; or 2
(ii) to constitute a breach of this part by the law 3
practice; or 4
(b) is otherwise an irregularity in relation to the trust 5
records or trust accounts of the law practice of which the 6
law society ought reasonably to be made aware. 7
(2) The external examiner must, within 7 days after becoming 8
aware of the matter, give the law society a written report on 9
the matter. 10
Maximum penalty--100 penalty units. 11
276 Final examination of trust records 12
(1) This section applies if a law practice-- 13
(a) ceases to be authorised to receive trust money; or 14
(b) ceases to engage in legal practice in this jurisdiction. 15
(2) The law practice must appoint an individual as an external 16
examiner to examine the practice's trust records-- 17
(a) in relation to the period since an external examination of 18
the practice's trust records was last conducted; and 19
(b) in relation to each period after the period mentioned in 20
paragraph (a), comprising a completed period of 12 21
months or any remaining partly completed period, 22
during which the practice continued to hold trust money. 23
Maximum penalty--50 penalty units. 24
(3) The law practice must give to the law society-- 25
(a) a report of each examination under subsection (2) within 26
60 days after the end of the period to which the 27
examination relates; and 28
(b) a statutory declaration in the law society approved form 29
within 60 days of ceasing to hold trust money. 30
Maximum penalty--20 penalty units. 31
s 277 213 s 278
Legal Profession Bill 2007
(4) If an Australian legal practitioner dies, the practitioner's legal 1
personal representative must comply with this section as if the 2
representative were the practitioner. 3
(5) Nothing in this section affects any other requirements under 4
this part. 5
277 Law practice liable for costs of examination 6
(1) A law practice whose trust accounts have been externally 7
examined must pay the costs of the examination. 8
(2) If the law society appointed the external examiner to carry out 9
the examination, the law society may decide the reasonable 10
amount payable as the costs of the examination, and the 11
amount is a debt payable to it by the law practice. 12
(3) The law society must, before seeking to recover an amount 13
mentioned in subsection (2), give the law practice an 14
information notice about the decision stating the amount 15
payable. 16
(4) The law practice may appeal, to a court having jurisdiction for 17
the amount payable, against the decision within 28 days after 18
the day the information notice is given to the practice. 19
278 Disqualification of person as external examiner 20
(1) This section applies if the law society is satisfied that an 21
individual who is an external examiner-- 22
(a) has not carried out an external examination in an 23
appropriate way; or 24
(b) does not have the qualifications or experience prescribed 25
under a regulation for section 267(3)(a). 26
(2) The law society may, by information notice given to the 27
individual, disqualify the individual from being an external 28
examiner. 29
(3) The disqualification has effect on the day the individual 30
receives the information notice. 31
(4) If the disqualification is for a period, the information notice 32
must state the period of the disqualification. 33
s 279 214 s 280
Legal Profession Bill 2007
(5) If an individual who is disqualified under subsection (2) was 1
appointed as an external examiner by a law practice, the law 2
society must give the practice a notice stating-- 3
(a) the individual has been disqualified from being an 4
external examiner under this section; and 5
(b) if the disqualification is for a period--the period of the 6
disqualification. 7
(6) An individual who is disqualified under subsection (2) may 8
appeal to the District Court against the decision within 28 9
days after receiving the information notice. 10
279 Offence about carrying on external examination 11
An individual who is disqualified from being an external 12
examiner under section 278 must not carry out, or help 13
another person to carry out, an external examination. 14
Maximum penalty--50 penalty units. 15
Division 5 Provisions relating to ADIs 16
280 Approval of ADIs 17
(1) The law society may approve ADIs at which trust accounts to 18
hold trust money may be kept. 19
(2) However, the law society may give an ADI an approval under 20
subsection (1) only if the ADI has entered into an arrangement 21
with the chief executive under section 287. 22
(3) In giving an approval under subsection (1), the law society 23
may have regard to, and impose conditions on the approval, 24
about-- 25
(a) the way in which the law society is informed of amounts 26
held in trust accounts; and 27
(b) the auditing of trust accounts; and 28
(c) other matters relating to the law society's supervision of 29
trust accounts under this Act; and 30
(d) other relevant matters prescribed under a regulation. 31
s 281 215 s 282
Legal Profession Bill 2007
(4) The law society-- 1
(a) may impose a condition under subsection (3) when the 2
approval is given or during the currency of the approval; 3
and 4
(b) may amend or revoke any conditions imposed. 5
281 ADIs not subject to certain obligations and liabilities 6
(1) An ADI at which a trust account is kept by a law practice-- 7
(a) is not under an obligation to control or supervise 8
transactions in relation to the account or to oversee the 9
application of money disbursed from the account; and 10
(b) does not have, in relation to any liability of the law 11
practice to the ADI, any recourse or right, whether by 12
way of set-off counterclaim, charge or otherwise, 13
against money in the account. 14
(2) Subsection (1) does not relieve an ADI from any liability to 15
which it is subject apart from this Act. 16
282 Reports, records and information 17
(1) An ADI at which a trust account is kept must, as soon as 18
practicable after becoming aware that the account is 19
overdrawn, report the fact to the law society. 20
Maximum penalty--50 penalty units. 21
(2) An ADI at which a trust account is kept must report a 22
suspected offence in relation to the trust account to the law 23
society as soon as practicable after forming the suspicion. 24
Maximum penalty--50 penalty units. 25
(3) An ADI must give to the law society reports about trust 26
accounts as required under a regulation. 27
Maximum penalty--50 penalty units. 28
(4) An ADI at which a law practice's trust account is kept must, if 29
asked by an investigator or external examiner and on 30
production to the ADI of evidence of the appointment of the 31
investigator or external examiner in relation to the law 32
practice-- 33
s 283 216 s 283
Legal Profession Bill 2007
(a) produce for inspection or copying by the investigator or 1
external examiner any records relating to the trust 2
account or trust money deposited in the trust account; 3
and 4
(b) provide the investigator or external examiner with full 5
details of any transactions relating to the trust account or 6
trust money. 7
Maximum penalty--50 penalty units. 8
(5) An ADI must produce the records and provide the details 9
under subsection (4) without charge. 10
(6) Subsections (1) to (4) apply despite any duty of confidence to 11
the contrary. 12
(7) An ADI or an officer or employee of an ADI is not liable to 13
any action for any loss or damage suffered by another person 14
as a result of-- 15
(a) reporting a matter under subsection (1); or 16
(b) making or giving a report under subsection (2) or (3); or 17
(c) producing records or providing details under subsection 18
(4). 19
Division 6 Prescribed accounts and Legal 20
Practitioner Interest on Trust 21
Accounts Fund 22
Subdivision 1 Preliminary 23
283 Main purposes of pt 3.3, div 6 24
The main purposes of this division are as follows-- 25
(a) to provide for the making of a regulation requiring 26
particular law practices to deposit amounts into 27
prescribed accounts; 28
(b) to allow the chief executive to enter into agreements 29
with ADIs, with which law practices have deposited 30
s 284 217 s 285
Legal Profession Bill 2007
amounts under a regulation, for the payment of interest 1
on the trust accounts; 2
(c) to establish the Legal Practitioner Interest on Trust 3
Accounts Fund into which amounts received as interest 4
must be paid; 5
(d) to ensure the interest paid into the fund, and other 6
moneys received for the fund, do not become part of the 7
consolidated fund; 8
(e) to provide for persons to whom or purposes for which 9
amounts may be paid from the fund. 10
284 Definitions for pt 3.3, div 6 11
In this division-- 12
fund means the Legal Practitioner Interest on Trust Accounts 13
Fund established under section 288. 14
law practice means a law practice to which part 3.3 applies. 15
Note-- 16
See section 240. 17
prescribed account means an account prescribed under a 18
regulation as an account into which a law practice must 19
deposit moneys. 20
Subdivision 2 Prescribed accounts 21
285 Regulation for prescribed account 22
(1) A regulation may make provision for, and for matters relating 23
to, prescribed accounts. 24
(2) Without limiting subsection (1), the regulation may prescribe 25
as follows-- 26
(a) a law practice to whom the regulation applies must 27
deposit an amount into a prescribed account; 28
(b) the way to work out an amount mentioned in paragraph 29
(a), including, for example, on the basis of the minimum 30
s 286 218 s 287
Legal Profession Bill 2007
amount held by a law practice in the law practice's trust 1
account for a calendar month or year; 2
(c) the way in which amounts may be paid to a law practice 3
from a prescribed account; 4
(d) the way in which the law society may supervise 5
compliance with the regulation; 6
(e) the way in which the chief executive of the department 7
may ensure compliance with this Act, including, for 8
example, provisions about the law society giving the 9
chief executive information about prescribed accounts. 10
286 Deposits to prescribed account 11
(1) No action at law or in equity may lie against any law practice 12
relating to a matter or thing done by the law practice for 13
complying with a regulation as mentioned in section 285 that 14
applied to the law practice. 15
(2) However, this section does not affect in any way the rights and 16
remedies of a claimant against the law practice in the event of 17
negligence or dishonesty of the law practice in relation to trust 18
money. 19
Subdivision 3 Interest on trust accounts paid to 20
department 21
287 Arrangement with financial institution 22
The chief executive may enter into an arrangement with an 23
ADI about the ADI paying interest to the department on-- 24
(a) prescribed accounts; and 25
(b) trust accounts kept by law practices. 26
s 288 219 s 288
Legal Profession Bill 2007
Subdivision 4 Legal Practitioner Interest on Trust 1
Accounts Fund 2
288 Establishment of fund 3
(1) The Legal Practitioner Interest on Trust Accounts Fund 4
established under the Legal Profession Act 2004, section 208, 5
is continued in existence under this Act. 6
(2) Accounts for the fund must be kept as part of the departmental 7
accounts of the department. 8
(3) Amounts received for the fund must be deposited in a 9
departmental financial-institution account of the department 10
used only for amounts received for the fund. 11
(4) Amounts received for the fund include-- 12
(a) all interest payable to the department under an 13
arrangement entered into under section 287; and 14
(b) other amounts payable for the fund under an Act. 15
(5) For the Financial Administration and Audit Act 1977, the 16
amounts received for the fund are not received or held for the 17
State. 18
Note-- 19
The amounts are other moneys under the Financial Administration and 20
Audit Act 1977. 21
(6) An amount is payable from the fund only under section 289. 22
(7) In this section-- 23
departmental accounts, of a department, means the accounts 24
of the department kept under the Financial Administration 25
and Audit Act 1977, section 12.43 26
departmental financial-institution account, of a department, 27
means an account of the department kept under the Financial 28
Administration and Audit Act 1977, section 18.44 29
43 Financial Administration and Audit Act 1977, section 12 (Departmental accounts)
44 Financial Administration and Audit Act 1977, section 18 (Departmental
financial-institution accounts)
s 289 220 s 289
Legal Profession Bill 2007
289 Payments from fund 1
(1) The chief executive may make payments from the fund to or 2
for any of the following-- 3
(a) Legal Aid Queensland; 4
(b) the fidelity fund; 5
(c) the Supreme Court Library; 6
(d) the commissioner; 7
(e) a disciplinary body; 8
(f) the board; 9
(g) part of the cost of the regulatory functions of the law 10
society or bar association, including costs associated 11
with implementing a relevant law whether incurred 12
before or after the commencement of this section; 13
(h) grants approved by the Minister for any of the following 14
purposes-- 15
(i) the advancement of law reform; 16
(ii) the collection, assessment and dissemination of 17
information concerning legal education, the law, 18
the legal system, law reform, the legal profession 19
and legal services; 20
(iii) facilitating access to the legal system, legal 21
information and education and legal services for 22
members of the community, particularly 23
economically or socially disadvantaged members 24
of the community; 25
(i) the department for any of the following-- 26
(i) the cost of administering this part; 27
(ii) liabilities of the department attributable to the costs 28
and expenses relating to the fund before or after the 29
commencement of this section; 30
(iii) expenses of the department associated with the 31
replacement of the Solicitors Board, Barristers 32
Board and Office of the Legal Ombudsman, 33
whether the expenses were incurred before or after 34
the commencement of this section. 35
s 290 221 s 291
Legal Profession Bill 2007
(2) The chief executive must not make a payment under 1
subsection (1) unless the Minister has decided the amount 2
may be paid and has given written authority to the chief 3
executive to pay the amount. 4
290 Minister to decide distribution 5
(1) The Minister must decide-- 6
(a) whether a payment is to be made under section 289; and 7
(b) if the Minister decides a payment is to be made, the 8
amount of the payment and any conditions applicable to 9
the payment. 10
(2) For subsection (1), the chief executive must make 11
recommendations to the Minister. 12
(3) The amount used for each of the following must not be more 13
than the amount prescribed for it under a regulation for this 14
subsection-- 15
(a) the fidelity fund as mentioned in section 289(1)(b); 16
(b) grants approved by the Minister as mentioned in section 17
289(1)(h). 18
291 Submission of budgets 19
(1) To help the Minister in making decisions under section 290, 20
the chief executive may ask a potential beneficiary to prepare 21
and submit a budget to the chief executive, for the period the 22
chief executive directs, concerning the income and 23
expenditure of the potential beneficiary, including projected 24
income and expenditure. 25
(2) The budget is to include the information the chief executive 26
directs. 27
(3) In particular, the chief executive may require the provision of 28
information about the administration of the potential 29
beneficiary. 30
(4) In this section-- 31
s 292 222 s 292
Legal Profession Bill 2007
potential beneficiary, of a payment, means the entity to which 1
or in relation to which a payment would be paid for a purpose 2
mentioned in section 289(1). 3
Division 7 Miscellaneous 4
292 Restrictions on receipt of trust money 5
(1) A law practice, other than an incorporated legal practice, must 6
not receive trust money unless a principal holds an Australian 7
practising certificate authorising the receipt of trust money. 8
Maximum penalty--200 penalty units. 9
(2) An incorporated legal practice must not receive trust money 10
unless-- 11
(a) at least one legal practitioner director of the practice 12
holds an Australian practising certificate authorising the 13
receipt of trust money; or 14
(b) a person is holding an appointment under section 11945 15
in relation to the practice and the person holds an 16
Australian practising certificate authorising the receipt 17
of trust money; or 18
(c) if money is received during a period in which the 19
practice does not have a legal practitioner director-- 20
(i) the practice is not in default of director 21
requirements under section 119; and 22
(ii) there was, immediately before the start of that 23
period, at least one legal practitioner director of the 24
practice who held an Australian practising 25
certificate authorising the receipt of trust money. 26
Maximum penalty--200 penalty units. 27
45 Section 119 (Incorporated legal practice without legal practitioner director)
s 293 223 s 294
Legal Profession Bill 2007
293 Application of Act to incorporated legal practices and 1
multi-disciplinary partnerships 2
(1) The obligations imposed on a law practice under this Act 3
relating to trust money and trust accounts apply to an 4
incorporated legal practice or multi-disciplinary partnership 5
only in relation to legal services provided by the practice or 6
partnership. 7
(2) A regulation may provide that a provision of this Act, a 8
regulation or the legal profession rules, relating to trust money 9
and trust accounts, does not apply to incorporated legal 10
practices or multi-disciplinary partnerships or both or applies 11
to them with stated changes. 12
294 Disclosure to clients--money not received or held as 13
trust money 14
(1) If money entrusted to a law practice is or becomes non-trust 15
money, the practice must notify the person who entrusted the 16
money to the practice that-- 17
(a) the money is not treated as trust money under this Act 18
and is not subject to any supervision, investigation or 19
audit requirements of this Act; and 20
(b) a claim against the fidelity fund can not be made in 21
relation to the money. 22
Maximum penalty--50 penalty units. 23
(2) The notification must be in writing and given to the person-- 24
(a) if the money is non-trust money when it is entrusted to 25
the law practice--when the money is entrusted to the 26
practice; or 27
(b) if the money was trust money when it was entrusted to 28
the practice but becomes non-trust money because of a 29
decision under section 239--as soon as practicable after 30
the decision is made. 31
(3) The notification must be given in the way, and contain the 32
information, prescribed under a regulation, if any, for this 33
section. 34
(4) In this section-- 35
s 295 224 s 297
Legal Profession Bill 2007
non-trust money means money that is not trust money under 1
this Act because of section 238 or because of a decision under 2
section 239. 3
295 Disclosure of accounts used to hold money entrusted to 4
legal practitioners 5
(1) A law practice must notify the law society of each account 6
kept at an ADI in which the law practice or a legal practitioner 7
associate of the law practice holds money entrusted to the law 8
practice or legal practitioner associate. 9
Maximum penalty--50 penalty units. 10
(2) The notification must be given to the law society in the way, 11
and include the details about the account, prescribed under a 12
regulation. 13
(3) Subsection (1) applies to a law practice whether or not the 14
money is trust money and whether or not section 238 or 239 15
applies to the money. 16
296 Report about law society's functions 17
(1) The Minister may, by written notice, ask the law society to 18
give to the Minister or commissioner a report at any time, for 19
a period stated in the Minister's request, about the law 20
society's functions under this part. 21
(2) The report must include the information the Minister 22
considers appropriate, including, for example, information 23
about a law practice's compliance with section 268. 24
(3) If the Minister makes a request under subsection (1), the law 25
society must comply with the request and give the relevant 26
report to the Minister or commissioner by the day stated in the 27
notice for that purpose. 28
297 Report about law practice 29
(1) The commissioner may, by written notice, ask the law society 30
to give to the commissioner a report about a law practice's 31
compliance with this part. 32
s 298 225 s 298
Legal Profession Bill 2007
(2) The report must be prepared from relevant information in the 1
law society's possession. 2
(3) If the commissioner makes a request under subsection (1), the 3
law society must comply with the request and give the report 4
to the commissioner by the day stated in the notice for that 5
purpose. 6
298 Regulation-making power relating to trust money and 7
trust accounts 8
(1) The Governor in Council may make regulations about a 9
matter to which this part applies. 10
(2) A regulation may provide for the following-- 11
(a) the establishment, keeping and closure of general trust 12
accounts and controlled money accounts; 13
(b) the manner of receiving, depositing, withdrawing, 14
making records about and otherwise dealing with and 15
accounting for trust money; 16
(c) without limiting paragraph (a) or (b)-- 17
(i) the keeping and reconciliation of trust records; and 18
(ii) the establishment and keeping of trust ledger 19
accounts; and 20
(iii) the establishment and keeping of records about 21
controlled money and transit money; and 22
(iv) the establishment and keeping of registers of 23
powers and estates in relation to trust money; and 24
(v) the recording of information about the investment 25
of trust money; and 26
(vi) the giving of statements regarding trust money; 27
(d) the notification to the law society of information relating 28
directly or indirectly to matters to which this part 29
relates, including information about-- 30
(i) trust accounts, trust money and trust records; and 31
(ii) the proposed or actual termination of a law practice 32
that holds trust money; and 33
s 299 226 s 299
Legal Profession Bill 2007
(iii) the proposed or actual termination of engaging in 1
legal practice in this jurisdiction by a law practice 2
that holds trust money; and 3
(iv) the proposed or actual restructuring of the business 4
of a law practice so that it no longer holds or no 5
longer will hold trust money; 6
(e) the carrying out of unannounced examinations of a law 7
practice's trust records by an external examiner; 8
(f) the creation and exercise of liens over trust money; 9
(g) exemptions, or the giving of exemptions, from all or any 10
stated requirements of this part. 11
Part 3.4 Costs disclosure and 12
assessment 13
Division 1 Preliminary 14
299 Main purposes of pt 3.4 15
The main purposes of this part are as follows-- 16
(a) to provide for law practices to make disclosures to 17
clients regarding legal costs; 18
(b) to regulate the making of costs agreements relating to 19
legal services, including conditional costs agreements; 20
(c) to regulate the billing of costs for legal services; 21
(d) to provide a mechanism for the assessment of legal costs 22
and the setting aside of particular costs agreements; 23
(e) to provide for the maximum payment for a law 24
practice's conduct of a speculative personal injury 25
claim, other than practice as or in the manner of a 26
barrister. 27
s 300 227 s 300
Legal Profession Bill 2007
300 Definitions for pt 3.4 1
In this part-- 2
associated third party payer see section 301(2). 3
conditional costs agreement means a costs agreement that 4
provides that the payment of some or all of the legal costs is 5
conditional on the successful outcome of the matter to which 6
those costs relate, as mentioned in section 323, but does not 7
include a costs agreement to the extent to which section 8
325(1) applies. 9
costs agreement means an agreement about the payment of 10
legal costs. 11
costs application means an application under section 335, 336 12
or 337 for an assessment of the whole or any part of legal 13
costs. 14
costs assessment means an assessment of legal costs under 15
division 7. 16
costs assessor means a person appointed under the Uniform 17
Civil Procedure Rules as a cost assessor. 18
disbursements includes outlays. 19
itemised bill means a bill stating, in detail, how the legal costs 20
are made up in a way that would allow the legal costs to be 21
assessed under division 7. 22
litigious matter means a matter that involves, or is likely to 23
involve, the issue of proceedings in a court or tribunal. 24
Note-- 25
A matter is litigious matter when proceedings are initiated or at any 26
stage when proceedings are reasonably likely. 27
lump sum bill means a bill that describes the legal services to 28
which it relates and specifies the total amount of the legal 29
costs. 30
non-associated third party payer see section 301(3). 31
public authority means an authority or body, whether a body 32
corporate or not, established or incorporated for a public 33
purpose by a law of a jurisdiction or of the Commonwealth, 34
and includes a body corporate incorporated under a law of a 35
s 301 228 s 301
Legal Profession Bill 2007
jurisdiction or of the Commonwealth in which a jurisdiction 1
or the Commonwealth has a controlling interest. 2
scale of costs includes the costs for a court prescribed under 3
the Supreme Court of Queensland Act 1991 in relation to a 4
matter. 5
sophisticated client means a client to whom, because of 6
section 311(1)(c) or (d), disclosure under section 308 or 7
309(1) is not or was not required. 8
third party payer see section 301(1). 9
uplift fee means additional legal costs, excluding 10
disbursements, payable under a costs agreement on the 11
successful outcome of the matter to which the agreement 12
relates. 13
301 Terms relating to third party payers 14
(1) A person is a third party payer, in relation to a client of a law 15
practice, if the person is not the client and-- 16
(a) is under a legal obligation to pay all or any part of the 17
legal costs for legal services provided to the client; or 18
(b) being under that obligation, has already paid all or a part 19
of those legal costs. 20
(2) A third party payer is an associated third party payer if the 21
legal obligation mentioned in subsection (1)(a) is owed to the 22
law practice, whether or not it is also owed to the client or 23
another person. 24
(3) A third payer is a non-associated third party payer if the legal 25
obligation mentioned in subsection (1)(a) is owed to the client 26
or another person but not the law practice. 27
(4) A legal obligation mentioned in subsection (1) can arise by or 28
under contract or legislation or otherwise. 29
(5) A law practice that retains another law practice on behalf of a 30
client is not on that account a third party payer in relation to 31
that client. 32
s 302 229 s 303
Legal Profession Bill 2007
Division 2 Application of this part 1
302 Application of part--first instructions rule 2
This part applies to a matter if the client first instructs the law 3
practice in relation to the matter in this jurisdiction. 4
303 Part also applies by agreement or at client's election 5
(1) This part applies to a matter if-- 6
(a) either-- 7
(i) this part does not currently apply to the matter; or 8
(ii) it is not possible to decide the jurisdiction in which 9
the client first instructs the law practice in relation 10
to the matter; and 11
(b) either or both of the following-- 12
(i) the legal services are or will be provided wholly or 13
primarily in this jurisdiction; 14
(ii) the matter has a substantial connection with this 15
jurisdiction; and 16
(c) either-- 17
(i) the client accepts, in writing or by other conduct, a 18
written offer to enter into an agreement under 19
subsection (2)(a) for the matter; or 20
(ii) the client gives notice under subsection (2)(b) for 21
the matter. 22
(2) For subsection (1)(c), the client may-- 23
(a) accept, in writing or by other conduct, a written offer 24
that complies with subsection (3) to enter into an 25
agreement with the law practice that this part is to apply 26
to the matter; or 27
(b) notify the law practice in writing that the client requires 28
this part to apply to the matter. 29
(3) An offer mentioned in subsection (2)(a) must clearly state-- 30
s 304 230 s 304
Legal Profession Bill 2007
(a) that it is an offer to enter into an agreement that this part 1
is to apply to the matter; and 2
(b) that the client may accept it in writing or by other 3
conduct; and 4
(c) the type of conduct that will constitute acceptance. 5
(4) A notice has no effect for subsection (2)(b) if it is given after 6
the period of 28 days after the law practice discloses to the 7
client, under a corresponding law, information about the 8
client's right to give notice of that kind, but nothing in this 9
subsection prevents an agreement mentioned in subsection 10
(2)(a) from coming into effect at any time. 11
304 Displacement of part 12
(1) This section applies if this part applies to a matter under 13
section 302 or 303. 14
(2) This part ceases to apply to the matter if-- 15
(a) either or both of the following apply-- 16
(i) the legal services are or will be provided wholly or 17
primarily in another jurisdiction; 18
(ii) the matter has a substantial connection with 19
another jurisdiction; and 20
(b) either-- 21
(i) the client, under the corresponding law of the other 22
jurisdiction, enters into an agreement with the law 23
practice that the corresponding provisions of the 24
corresponding law apply to the matter; or 25
(ii) the client notifies, under the corresponding law of 26
the other jurisdiction and within the time allowed 27
by the corresponding law, the law practice in 28
writing that the client requires the corresponding 29
provisions of the corresponding law to apply to the 30
matter. 31
(3) Nothing in this section prevents the application of this part to 32
the matter by means of a later agreement or notice under 33
section 303. 34
s 305 231 s 307
Legal Profession Bill 2007
305 How and where does a client first instruct a law practice 1
A client first instructs a law practice in relation to a matter in a 2
particular jurisdiction if the law practice first receives 3
instructions from or on behalf of the client in relation to the 4
matter in that jurisdiction, whether in person or by post, 5
telephone, fax, email or other form of communication. 6
306 When does a matter have a substantial connection with 7
this jurisdiction 8
A regulation may prescribe the circumstances in which, or the 9
rules to be used to decide whether, a matter has or does not 10
have a substantial connection with this jurisdiction for the 11
purposes of this part. 12
307 What happens when different laws apply to a matter 13
(1) This section applies if this part applies to a matter for a period 14
and a corresponding law applies for another period. 15
(2) If this part applied to a matter for a period and a 16
corresponding law applies to the matter afterwards, this part 17
continues to apply in relation to legal costs, if any, incurred 18
while this part applied to the matter. 19
(3) If a corresponding law applied to a matter for a period and this 20
part applies to the matter afterwards, this part does not apply 21
in relation to legal costs, if any, incurred while the 22
corresponding law applied to the matter, so long as the 23
corresponding law continues to apply in relation to those 24
costs. 25
(4) However-- 26
(a) the client may enter into a written agreement with the 27
law practice that the cost assessment provisions of this 28
part are to apply in relation to all legal costs incurred in 29
relation to the matter, and division 746 accordingly 30
applies in relation to those legal costs; or 31
(b) if the client enters into a written agreement with the law 32
practice that the cost assessment provisions of a 33
46 Division 7 (Costs assessment)
s 308 232 s 308
Legal Profession Bill 2007
corresponding law are to apply in relation to all legal 1
costs incurred in relation to the matter, division 7 2
accordingly does not apply in relation to those legal 3
costs. 4
(5) A written agreement mentioned in subsection (4) need not be 5
signed by the client but in that case the client's acceptance 6
must be communicated to the law practice by fax, email or 7
some other written form. 8
(6) If a corresponding law applied to a matter for a period and this 9
part applies to the matter afterwards, this part does not require 10
disclosure of any matters to the extent that they have already 11
been disclosed under a corresponding law. 12
(7) This section has effect despite any other provisions of this 13
part. 14
Division 3 Costs disclosure 15
308 Disclosure of costs to clients 16
(1) A law practice must disclose to a client under this division-- 17
(a) the basis on which legal costs will be calculated, 18
including whether a scale of costs applies to any of the 19
legal costs; and 20
(b) the client's right to-- 21
(i) negotiate a costs agreement with the law practice; 22
and 23
(ii) receive a bill from the law practice; and 24
(iii) request an itemised bill after receipt of a lump sum 25
bill; and 26
(iv) be notified under section 315 of any substantial 27
change to the matters disclosed under this section; 28
and 29
(c) an estimate of the total legal costs if reasonably 30
practicable or, if that is not reasonably practicable, a 31
range of estimates of the total legal costs and an 32
s 308 233 s 308
Legal Profession Bill 2007
explanation of the major variables that will affect the 1
calculation of those costs; and 2
(d) details of the intervals, if any, at which the client will be 3
billed; and 4
(e) the rate of interest, if any, that the law practice charges 5
on overdue legal costs, whether that rate is a stated rate 6
of interest or is a benchmark rate of interest as 7
mentioned in subsection (2); and 8
(f) if the matter is a litigious matter, an estimate of-- 9
(i) the range of costs that may be recovered if the 10
client is successful in the litigation; and 11
(ii) the range of costs the client may be ordered to pay 12
if the client is unsuccessful; and 13
(g) the client's right to progress reports under section 317; 14
and 15
(h) details of the person whom the client may contact to 16
discuss the legal costs; and 17
(i) the following avenues that are open under this Act to the 18
client in the event of a dispute in relation to legal 19
costs-- 20
(i) costs assessment under division 7; 21
(ii) the setting aside of a costs agreement under section 22
328;47 and 23
(j) any time limits that apply to the taking of any action 24
mentioned in paragraph (i); and 25
(k) that the law of this jurisdiction applies to legal costs in 26
relation to the matter; and 27
(l) information about the client's right-- 28
(i) to accept under a corresponding law a written offer 29
to enter into an agreement with the law practice 30
that the corresponding provisions of the 31
corresponding law apply to the matter; or 32
47 Section 328 (Setting aside costs agreements)
s 309 234 s 309
Legal Profession Bill 2007
(ii) to notify under a corresponding law, and within the 1
time allowed by the corresponding law, the law 2
practice in writing that the client requires the 3
corresponding provisions of the corresponding law 4
to apply to the matter. 5
Note for paragraph (l)-- 6
The client's right to enter into an agreement or give a notification 7
as mentioned in paragraph (l) will be under provisions of the law 8
of the other jurisdiction that correspond to section 303. 9
(2) For subsection (1)(e), a benchmark rate of interest is a rate of 10
interest for the time being equal to or calculated by reference 11
to a rate of interest that is stated or decided from time to time 12
by an ADI or another body or organisation, or by or under 13
other legislation, and that is publicly available. 14
(3) A regulation may make provision for the use of benchmark 15
rates of interest, and in particular in relation to permitting, 16
regulating or preventing the use of particular benchmark rates 17
or particular kinds of benchmark rates. 18
(4) For subsection (1)(f), the disclosure must include-- 19
(a) a statement that an order by a court for the payment of 20
costs in favour of the client will not necessarily cover 21
the whole of the client's legal costs; and 22
(b) if applicable, a statement that disbursements may be 23
payable by the client even if the client enters a 24
conditional costs agreement. 25
(5) A law practice may disclose any or all of the details 26
mentioned in subsection (1)(b)(i), (ii) and (iii), (g), (i), (j) and 27
(l) in or to the effect of a form approved by the chief executive 28
for this subsection, and if it does so the practice is taken to 29
have complied with this section in relation to the details so 30
disclosed. 31
309 Disclosure if another law practice is to be retained 32
(1) If a law practice intends to retain another law practice on 33
behalf of a client, the first law practice must disclose to the 34
client the details mentioned in section 308(1)(a), (c) and (d) in 35
relation to the other law practice, in addition to any 36
s 310 235 s 311
Legal Profession Bill 2007
information required to be disclosed to the client under 1
section 308. 2
(2) A law practice retained or to be retained on behalf of a client 3
by another law practice is not required to make disclosure to 4
the client under section 308, but must disclose to the other law 5
practice the information necessary for the other law practice 6
to comply with subsection (1). 7
(3) This section does not apply if the first law practice ceases to 8
act for the client in the matter when the other law practice is 9
retained. 10
Example-- 11
If a barrister is retained by a firm of solicitors on behalf of a client of the 12
firm, the barrister must disclose to the firm details of the barrister's legal 13
costs and billing arrangements, and the firm must disclose those details 14
to the client. The barrister is not required to make a disclosure directly 15
to the client. 16
310 How and when must disclosure be made to a client 17
(1) Disclosure under section 308 must be made in writing before, 18
or as soon as practicable after, the law practice is retained in 19
the matter. 20
(2) Disclosure under section 309(1) must be made in writing 21
before, or as soon as practicable after, the other law practice is 22
retained. 23
(3) Disclosure made to a person before the law practice is 24
retained in a matter is taken to be disclosure to the client for 25
sections 308 and 309. 26
311 Exceptions to requirement for disclosure 27
(1) Disclosure under section 308 or 309(1) is not required to be 28
made in any of the following circumstances-- 29
(a) if the total legal costs in the matter, excluding 30
disbursements, are not likely to exceed $750 exclusive 31
of GST or, if a higher amount is prescribed under a 32
regulation, the prescribed amount; 33
(b) if-- 34
s 311 236 s 311
Legal Profession Bill 2007
(i) the client has received 1 or more disclosures under 1
section 308 or 309(1) from the law practice in the 2
previous 12 months; and 3
(ii) the client has agreed in writing to waive the right to 4
disclosure; and 5
(iii) a principal of the law practice decides on 6
reasonable grounds that, having regard to the 7
nature of the previous disclosures and the relevant 8
circumstances, the further disclosure is not 9
warranted; 10
(c) if the client is-- 11
(i) a law practice or an Australian legal practitioner; 12
or 13
(ii) a public company, a subsidiary of a public 14
company, a large proprietary company, a foreign 15
company, a subsidiary of a foreign company or a 16
registered Australian body, each within the 17
meaning of the Corporations Act; or 18
(iii) a financial services licensee within the meaning of 19
the Corporations Act; or 20
(iv) a liquidator, administrator or receiver, as 21
mentioned in the Corporations Act; or 22
(v) a partnership that carries on the business of 23
providing professional services if the partnership 24
consists of more than 20 members or if the 25
partnership would be a large proprietary company, 26
within the meaning of the Corporations Act, if it 27
were a company; or 28
(vi) a proprietary company, within the meaning of the 29
Corporations Act, formed for the purpose of 30
carrying out a joint venture, if any shareholder of 31
the company is a person to whom disclosure of 32
costs is not required; or 33
(vii) an unincorporated group of participants in a joint 34
venture, if-- 35
s 311 237 s 311
Legal Profession Bill 2007
(A) 1 or more members of the group are persons 1
to whom disclosure of costs is not required; 2
and 3
(B) 1 or more members of the group (the 4
relevant members) are persons to whom 5
disclosure is required; and 6
(C) all relevant members have indicated that they 7
waive their right to disclosure; or 8
(viii) a Minister of the Crown in right of a jurisdiction or 9
the Commonwealth acting in his or her capacity as 10
a Minister, or a government department or public 11
authority of a jurisdiction or the Commonwealth; 12
(d) if the legal costs or the basis on which they will be 13
calculated have or has been agreed as a result of a tender 14
process; 15
(e) if the client will not be required to pay the legal costs or 16
they will not otherwise be recovered by the law practice; 17
Example of paragraph (e)-- 18
if the law practice acts in the matter on a pro bono basis 19
(f) in any circumstances prescribed under a regulation. 20
(2) Despite subsection (1)(a), if a law practice becomes aware 21
that the total legal costs are likely to exceed $750 or a higher 22
prescribed amount, the law practice must disclose the matters 23
under section 308 or 309, as required, to the client as soon as 24
practicable. 25
(3) A law practice must ensure that a written record of a 26
principal's decision that further disclosure is not warranted as 27
mentioned in subsection (1)(b) is made and kept with the files 28
relating to the matter concerned. 29
(4) The reaching of a decision mentioned in subsection (3) 30
otherwise than on reasonable grounds is capable of 31
constituting unsatisfactory professional conduct or 32
professional misconduct on the part of the principal. 33
(5) Nothing in this section affects or takes away from any client's 34
right-- 35
s 312 238 s 314
Legal Profession Bill 2007
(a) to progress reports under section 317, unless section 1
317(5) applies; or 2
(b) to obtain reasonable information from the law practice 3
in relation to any of the matters stated in section 308; or 4
(c) to negotiate a costs agreement with a law practice and to 5
obtain a bill from the law practice. 6
312 Additional disclosure--settlement of litigious matters 7
(1) If a law practice negotiates the settlement of a litigious matter 8
on behalf of a client, before the settlement is executed, the law 9
practice must disclose the following to the client-- 10
(a) a reasonable estimate of the amount of legal costs 11
payable by the client if the matter is settled, including 12
any legal costs of another party that the client is to pay; 13
(b) a reasonable estimate of any contributions towards those 14
costs likely to be received from another party. 15
(2) However, a regulation may provide for matters relevant to 16
subsection (1) when there is more than 1 law practice acting 17
on behalf of a client. 18
313 Additional disclosure--uplift fees 19
(1) If a costs agreement involves an uplift fee, the law practice 20
must, before entering into the agreement, disclose to the client 21
in writing-- 22
(a) the law practice's legal costs; and 23
(b) the uplift fee, or the basis of calculation of the uplift fee; 24
and 25
(c) the reasons why the uplift fee is warranted. 26
(2) A law practice is not required to make a disclosure under 27
subsection (1) to a sophisticated client. 28
314 Form of disclosure 29
(1) Written disclosures to a client under this division-- 30
(a) must be expressed in clear plain language; and 31
s 315 239 s 316
Legal Profession Bill 2007
(b) may be in a language other than English if the client is 1
more familiar with that language. 2
(2) If the law practice is aware that the client is unable to read, the 3
law practice must arrange for the information required to be 4
given to a client under this division to be conveyed orally to 5
the client in addition to providing the written disclosure. 6
315 Ongoing obligation to disclose 7
A law practice must, in writing, disclose to a client any 8
substantial change to anything included in a disclosure 9
already made under this division as soon as is reasonably 10
practicable after the law practice becomes aware of that 11
change. 12
316 Effect of failure to disclose 13
(1) If a law practice does not disclose to a client or an associated 14
third party payer anything required by this division to be 15
disclosed, the client or associated third party payer, as the case 16
may be, need not pay the legal costs unless they have been 17
assessed under division 7. 18
Note-- 19
Under section 341, the costs of an assessment in these circumstances are 20
generally payable by the law practice. 21
(2) A law practice that does not disclose to a client or an 22
associated third party payer anything required by this division 23
to be disclosed may not maintain proceedings against the 24
client or associated third party payer, as the case may be, for 25
the recovery of legal costs unless the costs have been assessed 26
under division 7. 27
(3) If a law practice does not disclose to a client or an associated 28
third party payer anything required by this division to be 29
disclosed and the client or associated third party payer has 30
entered into a costs agreement with the law practice, the client 31
or associated third party payer may also apply under section 32
328 for the costs agreement to be set aside. 33
(4) If a law practice does not disclose to a client or an associated 34
third party payer anything required by this division to be 35
s 317 240 s 317
Legal Profession Bill 2007
disclosed, then, on an assessment of the relevant legal costs, 1
the amount of the costs may be reduced by an amount 2
considered by the costs assessor to be proportionate to the 3
seriousness of the failure to disclose. 4
(5) If a law practice retains another law practice on behalf of a 5
client and the first law practice fails to disclose something to 6
the client solely because the retained law practice failed to 7
disclose relevant information to the first law practice as 8
required by section 309(2), then subsections (1) to (4)-- 9
(a) do not apply to the legal costs owing to the first law 10
practice on account of legal services provided by it, to 11
the extent that the non-disclosure by the first law 12
practice was caused by the failure of the retained law 13
practice to disclose the relevant information; and 14
(b) do apply to the legal costs owing to the retained law 15
practice. 16
(6) In a matter involving both a client and an associated third 17
party payer if disclosure has been made to 1 of them but not 18
the other-- 19
(a) subsection (1) does not affect the liability of the 1 to 20
whom disclosure was made to pay the legal costs; and 21
(b) subsection (2) does not prevent proceedings being 22
maintained against the 1 to whom the disclosure was 23
made for the recovery of those legal costs. 24
(7) Failure by a law practice to comply with this division is 25
capable of constituting unsatisfactory professional conduct or 26
professional misconduct on the part of any Australian legal 27
practitioner, or Australian-registered foreign lawyer, involved 28
in the failure. 29
317 Progress reports 30
(1) A law practice must give a client, on reasonable request-- 31
(a) a written report of the progress of the matter in which 32
the law practice is retained; and 33
(b) a written report of the legal costs incurred by the client 34
to date, or since the last bill (if any), in the matter. 35
s 318 241 s 318
Legal Profession Bill 2007
(2) A law practice may charge a client a reasonable amount for a 1
report under subsection (1)(a) but must not charge a client for 2
a report under subsection (1)(b). 3
(3) A law practice retained on behalf of a client by another law 4
practice is not required to give a report to the client under 5
subsection (1), but must disclose to the other law practice any 6
information necessary for the other law practice to comply 7
with that subsection. 8
(4) Subsection (3) does not apply if the other law practice ceases 9
to act for the client in the matter when the law practice is 10
retained. 11
(5) A law practice is not required to give a report under 12
subsection (1) to a sophisticated client. 13
318 Disclosure to associated third party payers 14
(1) If a law practice is required to make a disclosure to a client of 15
the practice under this division, the law practice must, under 16
subsections (2) and (3), also make the same disclosure to any 17
associated third party payer for the client, but only to the 18
extent that the details or matters disclosed are relevant to the 19
associated third party payer and relate to costs that are payable 20
by the associated third party payer in relation to legal services 21
provided to the client. 22
(2) A disclosure under subsection (1) must be made in writing-- 23
(a) at the time the disclosure to the client is required under 24
this division; or 25
(b) if the law practice only afterwards becomes aware of the 26
legal obligation of the associated third party payer to 27
pay legal costs of the client--as soon as practicable after 28
the law practice became aware of the obligation. 29
(3) Section 314 applies to a disclosure to an associated third party 30
payer under subsection (1) in the same way as it applies to a 31
client. 32
(4) An associated third party payer for a client of a law practice 33
has the same right to obtain reports under section 317(1)(b) of 34
legal costs incurred by the client, but only to the extent that 35
the costs are payable by the associated third party payer in 36
s 319 242 s 321
Legal Profession Bill 2007
relation to legal services provided to the client, and the law 1
practice must comply with that section accordingly. 2
Division 4 Legal costs generally 3
319 On what basis are legal costs recoverable 4
Subject to division 2, legal costs are recoverable-- 5
(a) under a costs agreement made under division 5 or the 6
corresponding provisions of a corresponding law; or 7
(b) if paragraph (a) does not apply--under the applicable 8
scale of costs; or 9
(c) if neither paragraph (a) nor (b) applies--according to 10
the fair and reasonable value of the legal services 11
provided. 12
Note for paragraph (c)-- 13
See section 341(2) for the criteria that are to be applied on a 14
costs assessment to decide whether legal costs are fair and 15
reasonable. 16
320 Security for legal costs 17
A law practice may-- 18
(a) take reasonable security from a client for legal costs, 19
including security for the payment of interest on unpaid 20
legal costs; and 21
(b) refuse to act, or stop acting, for a client who does not 22
provide reasonable security. 23
321 Interest on unpaid legal costs 24
(1) A law practice may charge interest on unpaid legal costs-- 25
(a) if a costs agreement provides for charging interest on 26
unpaid legal costs--under the costs agreement; or 27
(b) otherwise--if the costs are unpaid 30 days or more after 28
the law practice has given a bill for the costs under this 29
part. 30
s 322 243 s 322
Legal Profession Bill 2007
(2) However, a law practice must not charge interest under 1
subsection (1) on unpaid legal costs unless the bill for the 2
costs contains a statement that interest is payable and of the 3
rate of interest. 4
(3) A law practice may not charge interest under this section, 5
including under a costs agreement, at a rate that is more than 6
the rate prescribed under a regulation. 7
Division 5 Costs agreements 8
322 Making costs agreements 9
(1) A costs agreement may be made between-- 10
(a) a client and a law practice retained by the client; or 11
(b) a client and a law practice retained on behalf of the 12
client by another law practice; or 13
(c) a law practice and another law practice that retained that 14
law practice on behalf of a client; or 15
(d) a law practice and an associated third party payer. 16
(2) The costs agreement must be written or evidenced in writing. 17
(3) The costs agreement may consist of a written offer under 18
subsection (4) that is accepted in writing or by other conduct. 19
Note-- 20
Acceptance by other conduct is not permitted for conditional costs 21
agreements--see section 323(3)(c)(i). 22
(4) The offer must clearly state-- 23
(a) that it is an offer to enter into a costs agreement; and 24
(b) that the offer can be accepted in writing or by other 25
conduct; and 26
(c) the type of conduct that will constitute acceptance. 27
s 323 244 s 323
Legal Profession Bill 2007
(5) Except as provided by section 344,48 a costs agreement can 1
not provide that the legal costs to which it relates are not 2
subject to costs assessment under division 7. 3
Note-- 4
Under section 327(1), if a costs agreement attempts to provide that the 5
legal costs are not subject to a costs assessment, the costs agreement will 6
be void. 7
(6) A reference in section 328, or in a provision of this part 8
prescribed under a regulation, to a client is, in relation to a 9
costs agreement that is entered into between a law practice 10
and an associated third party payer as mentioned in subsection 11
(1)(d) and to which a client of the law practice is not a party, a 12
reference to the associated third party payer. 13
323 Conditional costs agreements 14
(1) A costs agreement may provide that the payment of some or 15
all of the legal costs is conditional on the successful outcome 16
of the matter to which those costs relate. 17
(2) A conditional costs agreement may relate to any matter, 18
except a matter that involves criminal proceedings or 19
proceedings under the Family Law Act 1975 (Cwlth). 20
(3) A conditional costs agreement-- 21
(a) must set out the circumstances that constitute the 22
successful outcome of the matter to which it relates; and 23
(b) may provide for disbursements to be paid irrespective of 24
the outcome of the matter; and 25
(c) must be-- 26
(i) in writing; and 27
(ii) in clear plain language; and 28
(iii) signed by the client; and 29
(d) must contain a statement that the client has been 30
informed of the client's right to seek independent legal 31
advice before entering into the agreement; and 32
48 Section 344 (Contracting out of div 7 by sophisticated clients etc.)
s 324 245 s 324
Legal Profession Bill 2007
(e) must contain a cooling-off period of not less than 5 clear 1
business days during which the client, by written notice, 2
may terminate the agreement. 3
(4) Subsection (3)(c)(iii), (d) and (e) do not apply to either of the 4
following-- 5
(a) a conditional costs agreement as mentioned in section 6
322(1)(c); 7
(b) a conditional costs agreement made with a sophisticated 8
client. 9
(5) If a client terminates an agreement within the period 10
mentioned in subsection (3)(e), the law practice-- 11
(a) may recover only those legal costs for legal services 12
performed for the client before that termination that 13
were performed on the instructions of the client and 14
with the client's knowledge that the legal services would 15
be performed during that period; and 16
(b) without affecting the generality of paragraph (a), may 17
not recover the uplift fee (if any). 18
324 Conditional costs agreements involving uplift fees 19
(1) A conditional costs agreement may provide for the payment 20
of an uplift fee. 21
(2) The basis of calculation of the uplift fee must be separately 22
identified in the agreement. 23
(3) The agreement must contain an estimate of the uplift fee or, if 24
that is not reasonably practicable, both of the following-- 25
(a) a range of estimates of the uplift fee; 26
(b) an explanation of the major variables that will affect the 27
calculation of the uplift fee. 28
(4) If a conditional costs agreement relates to a litigious matter, 29
the uplift fee must not exceed 25% of the legal costs, 30
excluding disbursements, otherwise payable. 31
(5) However, this Act does not affect the right of a law practice to 32
discount its fees and, if a law practice does discount its fees, 33
the reference in subsection (4) to legal costs is the fees the law 34
s 325 246 s 327
Legal Profession Bill 2007
practice would have charged if the law practice's fees had not 1
been discounted. 2
(6) A law practice must not enter into a costs agreement in 3
contravention of this section. 4
Maximum penalty--100 penalty units. 5
325 Contingency fees are prohibited 6
(1) A law practice must not enter into a costs agreement under 7
which the amount payable to the law practice, or any part of 8
that amount, is calculated by reference to the amount of any 9
award or settlement or the value of any property that may be 10
recovered in any proceedings to which the agreement relates. 11
Maximum penalty--100 penalty units. 12
(2) Subsection (1) does not apply to the extent that the costs 13
agreement adopts an applicable scale of costs. 14
(3) A law practice must not enter into a costs agreement under 15
which all or part of the client's interest in any proceedings to 16
which the agreement relates is transferred to the law practice 17
instead of the client being required to pay an amount payable 18
to the law practice. 19
Maximum penalty--100 penalty units. 20
326 Effect of costs agreement 21
Subject to this division and division 7, a costs agreement may 22
be enforced in the same way as any other contract. 23
327 Particular costs agreements are void 24
(1) A costs agreement that contravenes, or is entered into in 25
contravention of, any provision of this division is void. 26
(2) Subject to this section and division 7, legal costs under a void 27
costs agreement are recoverable as set out in section 319(b) or 28
(c). 29
(3) However, a law practice is not entitled to recover, as set out in 30
section 319(b) or (c), any amount in excess of the amount the 31
law practice would have been entitled to recover if the costs 32
s 328 247 s 328
Legal Profession Bill 2007
agreement had not been void and must repay any excess 1
amount received. 2
(4) A law practice that has entered into a costs agreement in 3
contravention of section 324 is not entitled to recover the 4
whole or any part of the uplift fee and must repay the amount 5
received in relation to the uplift fee to the person from whom 6
it was received. 7
(5) A law practice that has entered into a costs agreement in 8
contravention of section 325 is not entitled to recover any 9
amount relating to the provision of legal services in the matter 10
to which the costs agreement related and must repay any 11
amount received relating to those services to the person from 12
whom it was received. 13
(6) If a law practice does not repay an amount required by 14
subsection (3), (4) or (5) to be repaid, the person entitled to be 15
repaid may recover the amount from the law practice as a debt 16
in a court of competent jurisdiction. 17
328 Setting aside costs agreements 18
(1) On application by a client, the Supreme Court may order that 19
a costs agreement be set aside if satisfied the agreement is not 20
fair or reasonable. 21
(2) In deciding whether or not a costs agreement is fair or 22
reasonable, and without limiting the matters to which the 23
Supreme Court can have regard, the Supreme Court may have 24
regard to any or all of the following matters-- 25
(a) whether the client was induced to enter into the 26
agreement by the fraud or misrepresentation of the law 27
practice or of any representative of the law practice; 28
(b) whether any Australian legal practitioner or 29
Australian-registered foreign lawyer acting on behalf of 30
the law practice has been found guilty of unsatisfactory 31
professional conduct or professional misconduct in 32
relation to the provision of legal services to which the 33
agreement relates; 34
(c) whether the law practice failed to make any of the 35
disclosures required under division 3; 36
s 328 248 s 328
Legal Profession Bill 2007
(d) the circumstances and conduct of the parties before and 1
when the agreement was made; 2
(e) the circumstances and the conduct of the parties in the 3
matters after the agreement was made; 4
(f) whether and how the agreement addresses the effect on 5
costs of matters and changed circumstances that might 6
foreseeably arise and affect the extent and nature of 7
legal services provided under the agreement; 8
(g) whether and how billing under the agreement addresses 9
changed circumstances affecting the extent and nature 10
of legal services provided under the agreement. 11
(3) The Supreme Court may adjourn the hearing of an application 12
under this section pending the completion of any investigation 13
or decision concerning a complaint or investigation matter 14
about the conduct of any Australian legal practitioner or 15
Australian-registered foreign lawyer. 16
(4) If the Supreme Court orders a costs agreement be set aside, it 17
may make an order as it considers appropriate in relation to 18
the payment of legal costs the subject of the agreement. 19
(5) Without limiting subsection (4), in making an order under that 20
subsection, the Supreme Court may-- 21
(a) apply the applicable scale of costs, if any; or 22
(b) decide the fair and reasonable legal costs in relation to 23
the work to which the agreement related, taking into 24
account-- 25
(i) the seriousness of the conduct of the law practice 26
or any Australian legal practitioner or 27
Australian-registered foreign lawyer acting on its 28
behalf; and 29
(ii) whether or not it was reasonable to carry out the 30
work; and 31
(iii) whether or not the work was carried out in a 32
reasonable manner. 33
(6) However, in making an order under subsection (4), the 34
Supreme Court may not order the payment of an amount in 35
excess of the amount the law practice would have been 36
s 328 249 s 328
Legal Profession Bill 2007
entitled to recover if the costs agreement had not been set 1
aside. 2
(7) For subsection (5)(b), the Supreme Court may have regard to 3
any or all of the following matters-- 4
(a) whether the law practice and any Australian legal 5
practitioner or Australian-registered foreign lawyer 6
acting on its behalf complied with this Act; 7
(b) any disclosures made by the law practice under division 8
3, or the failure to make a disclosure required under that 9
division; 10
(c) any relevant advertisement as to-- 11
(i) the law practice's costs; or 12
(ii) the skills of the law practice or of any Australian 13
legal practitioner or Australian-registered foreign 14
lawyer acting on its behalf; 15
(d) the skill, labour and responsibility displayed on the part 16
of the Australian legal practitioner or 17
Australian-registered foreign lawyer responsible for the 18
matter; 19
(e) the retainer and whether the work done was within the 20
scope of the retainer; 21
(f) the complexity, novelty or difficulty of the matter; 22
(g) the quality of the work done; 23
(h) the place where, and circumstances in which, the work 24
was done; 25
(i) the time within which the work was required to be done; 26
(j) any other relevant matter. 27
(8) The Supreme Court may decide whether or not a costs 28
agreement exists. 29
(9) The Supreme Court may order the payment of the costs of and 30
incidental to a hearing under this section. 31
(10) In this section-- 32
client means a person to whom or for whom legal services are 33
or have been provided. 34
s 329 250 s 330
Legal Profession Bill 2007
Note-- 1
See also section 322(6) which extends the application of this section to 2
associated third parties. 3
Division 6 Billing 4
329 Legal costs can not be recovered unless bill has been 5
served 6
(1) A law practice must not start legal proceedings to recover 7
legal costs from a person until at least 30 days after the law 8
practice has given a bill to the person under sections 330 and 9
331 or under provisions of a corresponding law that 10
correspond to sections 330 and 331. 11
(2) A court of competent jurisdiction may make an order 12
authorising a law practice to start legal proceedings against a 13
person sooner if satisfied the person is about to leave this 14
jurisdiction. 15
(3) A court of competent jurisdiction before which any 16
proceedings are brought in contravention of subsection (1) 17
must stay those proceedings on the application of a party or on 18
its own initiative. 19
(4) This section applies whether or not the legal costs are the 20
subject of a costs agreement. 21
330 Bills 22
(1) A bill may be in the form of a lump sum bill or an itemised 23
bill. 24
(2) A bill must be signed on behalf of a law practice by an 25
Australian legal practitioner or an employee of the law 26
practice. 27
(3) It is sufficient compliance with subsection (2) if a letter signed 28
on behalf of a law practice by an Australian legal practitioner 29
or an employee of the law practice is attached to, or enclosed 30
with, the bill. 31
(4) A bill or letter is taken to have been signed by a law practice 32
that is an incorporated legal practice if it-- 33
s 330 251 s 330
Legal Profession Bill 2007
(a) has the practice's seal affixed to it; or 1
(b) is signed by a legal practitioner director of the practice 2
or an officer or employee of the practice who is an 3
Australian legal practitioner. 4
(5) A bill is to be given to a person-- 5
(a) by delivering it personally to the person or to an agent of 6
the person; or 7
(b) by sending it by post to the person or agent at-- 8
(i) the usual or last known business or residential 9
address of the person or agent; or 10
(ii) an address nominated for the purpose by the person 11
or agent; or 12
(c) by leaving it for the person or agent at-- 13
(i) the usual or last known business or residential 14
address of the person or agent; or 15
(ii) an address nominated for the purpose by the person 16
or agent; 17
with a person on the premises who is apparently at least 18
16 years old and apparently employed or residing there; 19
or 20
(d) if the legal costs or the basis on which they have been 21
calculated have or has been agreed as a result of a tender 22
process--in a way provided as part of the tender process 23
or by later agreement between the client and the law 24
practice. 25
(6) A reference in subsection (5) to a way of giving a bill to a 26
person includes a reference to arranging for the bill to be 27
given to that person by that way, including, for example, by 28
delivery by courier. 29
(7) Despite anything in subsections (2) to (6), a bill may be given 30
to a client electronically-- 31
(a) if the client is a sophisticated client and requested the 32
bill to be given electronically; or 33
(b) in other circumstances prescribed under a regulation. 34
(8) In this section-- 35
s 331 252 s 332
Legal Profession Bill 2007
agent, of a person, means an agent, law practice or Australian 1
legal practitioner who has authority to accept service of legal 2
process on behalf of the person. 3
331 Notification of client's rights 4
(1) A bill must include or be accompanied by a written statement 5
setting out-- 6
(a) the following avenues that are open under this Act to the 7
client in the event of a dispute in relation to legal 8
costs-- 9
(i) costs assessment under division 7; 10
(ii) the setting aside of a costs agreement under section 11
328; and 12
(b) any time limits that apply to the taking of any action 13
mentioned in paragraph (a). 14
(2) Subsection (1) does not apply in relation to a sophisticated 15
client. 16
(3) A law practice may provide the written statement mentioned 17
in subsection (1) in or to the effect of a form approved by the 18
chief executive for this subsection, and if it does so the 19
practice is taken to have complied with this section in relation 20
to the statement. 21
332 Request for itemised bill 22
(1) If a bill is given by a law practice in the form of a lump sum 23
bill, any person who is entitled to apply for an assessment of 24
the legal costs to which the bill relates may request the law 25
practice to give the person an itemised bill. 26
Note-- 27
A bill in the form of a lump sum bill includes a bill other than an 28
itemised bill. 29
(2) The law practice must comply with the request within 28 days 30
after the date on which the request is made. 31
(3) If the person making the request is liable to pay only a part of 32
the legal costs to which the bill relates, the request for an 33
s 333 253 s 335
Legal Profession Bill 2007
itemised bill may only be made in relation to those costs that 1
the person is liable to pay. 2
(4) Subject to subsection (5), a law practice must not commence 3
legal proceedings to recover legal costs from a person who has 4
been given a lump sum bill until at least 30 days after the date 5
on which the person is given the bill. 6
(5) If the person makes a request for an itemised bill within 30 7
days after receiving the lump sum bill, the law practice must 8
not commence proceedings to recover the legal costs from the 9
person until 30 days after complying with the request. 10
(6) A law practice is not entitled to charge a person for the 11
preparation of an itemised bill requested under this section. 12
(7) Section 330(2) to (8) apply to the giving of an itemised bill 13
under this section. 14
333 Interim bills 15
(1) A law practice may give a person an interim bill covering part 16
only of the legal services the law practice was retained to 17
provide. 18
(2) Legal costs that are the subject of an interim bill may be 19
assessed under division 7, either at the time of the interim bill 20
or at the time of the final bill, whether or not the interim bill 21
has previously been assessed or paid. 22
Division 7 Costs assessment 23
334 Definition for div 7 24
In this division-- 25
client means a person to whom or for whom legal services are 26
or have been provided. 27
335 Application by clients or third party payers for costs 28
assessment 29
(1) A client may apply for an assessment of the whole or any part 30
of legal costs. 31
s 335 254 s 335
Legal Profession Bill 2007
(2) A third party payer may apply for an assessment of the whole 1
or any part of legal costs payable by the third party payer. 2
(3) The costs application may be made even if the legal costs have 3
been wholly or partly paid. 4
(4) If any legal costs have been paid without a bill, the client or 5
third party payer may nevertheless make the costs application. 6
(5) A costs application by a client or a third party payer must be 7
made within 12 months after-- 8
(a) the bill was given, or the request for payment was made, 9
to the client or third party payer; or 10
(b) the costs were paid if neither a bill was given nor a 11
request was made. 12
(6) However, a costs application made out of time, otherwise than 13
by any of the following, may be dealt with by a costs assessor 14
or a court if, under the Uniform Civil Procedure Rules, the 15
assessor or the court decides to deal with it after considering 16
the reasons for delay-- 17
(a) a sophisticated client; 18
(b) a third party payer who would be a sophisticated client 19
if the third party payer were a client of the law practice 20
concerned. 21
(7) If the third party payer is a non-associated third party payer, 22
the law practice must provide the third party payer, on the 23
written request of the third party payer, with sufficient 24
information to allow the third party payer to consider making, 25
and if thought fit to make, a costs application. 26
(8) If there is an associated third party payer for a client of a law 27
practice-- 28
(a) nothing in this section prevents-- 29
(i) the client from making 1 or more costs applications 30
in relation to costs for which the client is solely 31
liable; and 32
(ii) the associated third party payer from making 1 or 33
more costs applications in relation to costs for 34
which the associated third party payer is solely 35
liable; 36
s 335 255 s 335
Legal Profession Bill 2007
and those costs applications may be made by them at the 1
same time or at different times and may be dealt with 2
jointly or separately; and 3
(b) the client or the associated third party payer-- 4
(i) may participate in the costs assessment process 5
where the other of them makes a costs application 6
in relation to costs for which they are both liable; 7
and 8
(ii) is taken to be a party to the assessment and is 9
bound by the assessment; and 10
(c) the law practice-- 11
(i) must participate in the costs assessment process if 12
a costs application is made under subsection (2) by 13
the associated third party payer in the same way as 14
the law practice must participate in the process if 15
an application is made under subsection (1) by a 16
client; and 17
(ii) is taken to be a party to the assessment and is 18
bound by the costs assessment. 19
(9) If there is a non-associated third party payer for a client of a 20
law practice-- 21
(a) nothing in this section prevents-- 22
(i) the client from making 1 or more costs applications 23
in relation to costs for which the client is liable; 24
and 25
(ii) the non-associated third party payer from making 1 26
or more costs applications in relation to costs for 27
which the non-associated third party payer is 28
liable; 29
and those applications may be made by them at the same 30
time or at different times but must be dealt with 31
separately; and 32
(b) the client-- 33
(i) may participate in the costs assessment process if 34
the non-associated third party payer makes a costs 35
application under subsection (2) in relation to the 36
s 336 256 s 336
Legal Profession Bill 2007
legal costs for which the non-associated third party 1
is liable; and 2
(ii) is taken to be a party to the assessment and is 3
bound by the assessment; and 4
(c) the law practice-- 5
(i) must participate in the costs assessment process; 6
and 7
(ii) is taken to be a party to the assessment; and 8
(d) despite any other provision of this division, the 9
assessment of the costs payable by the non-associated 10
third party payer does not affect the amount of legal 11
costs payable by the client to the law practice. 12
(10) Subject to this section, a costs application under subsection 13
(1) or (2) must be made in the way provided under the 14
Uniform Civil Procedure Rules. 15
(11) In this section-- 16
client includes the following-- 17
(a) an executor or administrator of a client; 18
(b) a trustee of the estate of a client. 19
third party payer includes the following-- 20
(a) an executor or administrator of a third party payer; 21
(b) a trustee of the estate of a third party payer. 22
336 Application for costs assessment by law practice 23
retaining another law practice 24
(1) A law practice that retains another law practice to act on 25
behalf of a client may apply for an assessment of the whole or 26
any part of the legal costs. 27
(2) If any legal costs have been paid without a bill, the law 28
practice may nevertheless apply for the costs assessment. 29
(3) The costs application may be made even if the legal costs have 30
been wholly or partly paid. 31
(4) The costs application must be made within 60 days after-- 32
s 337 257 s 338
Legal Profession Bill 2007
(a) the bill was given or the request for payment was made; 1
or 2
(b) the costs were paid if neither a bill was given nor a 3
request was made. 4
(5) A costs application can not be made if there is a costs 5
agreement between the client and the other law practice. 6
(6) Subject to this section, the costs application under subsection 7
(1) must be made in the way provided under the Uniform Civil 8
Procedure Rules. 9
337 Application for costs assessment by law practice giving 10
bill 11
(1) A law practice that has given a bill under division 649 may 12
apply for an assessment of the whole or any part of the legal 13
costs to which the bill relates. 14
(2) If any legal costs have been paid without a bill, the law 15
practice may nevertheless apply for a costs assessment. 16
(3) The costs application may be made even if any of the legal 17
costs have been paid without a bill. 18
(4) A costs application may not be made unless at least 30 days 19
have passed since-- 20
(a) the bill was given or the request for payment was made; 21
or 22
(b) the costs were paid if neither a bill was given nor a 23
request was made; or 24
(c) a costs application has been made under this division by 25
another person relating to the legal costs. 26
(5) Subject to this section, a costs application under subsection 27
(1) must be made in the way provided for under the Uniform 28
Civil Procedure Rules. 29
338 Consequences of application 30
If a costs application is made-- 31
49 Division 6 (Billing)
s 339 258 s 340
Legal Profession Bill 2007
(a) a person liable for the legal costs concerned can not be 1
required to pay money into court on account of the legal 2
costs; and 3
(b) subject to the leave of the court, the law practice must 4
not start any proceedings to recover the legal costs until 5
the costs assessment has been completed. 6
339 Persons to be notified of application 7
(1) The applicant for a costs assessment must, under the Uniform 8
Civil Procedure Rules, give notice of the costs application to 9
any other person the applicant knows is 1 of the following-- 10
(a) a law practice to whom the legal costs have been paid or 11
are payable; 12
(b) the law practice that retained a law practice to whom the 13
legal costs have been paid or are payable; 14
(c) the client; 15
(d) a third party payer. 16
(2) A person given notice of the costs application under 17
subsection (1)-- 18
(a) is entitled to participate in the costs assessment process; 19
and 20
(b) is taken to be a party to the assessment; and 21
(c) if the costs assessor so decides, is bound by the 22
assessment. 23
340 Assessment of complying costs agreements 24
(1) A costs assessor for a costs application must assess any 25
disputed costs that are subject to a costs agreement by 26
reference to the provisions of the costs agreement if-- 27
(a) a relevant provision of the costs agreement specifies the 28
amount, or a rate or other means for calculating the 29
amount, of the costs; and 30
(b) the agreement has not been set aside under section 328; 31
unless the costs assessor is satisfied that-- 32
s 341 259 s 341
Legal Profession Bill 2007
(c) the costs agreement does not comply in a material 1
respect with any disclosure requirements of division 3; 2
or 3
(d) division 5 precludes the law practice concerned from 4
recovering the amount of the costs; or 5
(e) the parties otherwise agree. 6
(2) The costs assessor is not required to initiate an examination of 7
the matters mentioned in subsection (1)(c) and (d). 8
341 Criteria for assessment 9
(1) In conducting a costs assessment, the costs assessor must 10
consider-- 11
(a) whether or not it was reasonable to carry out the work to 12
which the legal costs relate; and 13
(b) whether or not the work was carried out in a reasonable 14
way; and 15
(c) the fairness and reasonableness of the amount of legal 16
costs in relation to the work, except to the extent that 17
section 340 applies to any disputed costs. 18
(2) In considering what is a fair and reasonable amount of legal 19
costs, the costs assessor may have regard to any or all of the 20
following matters-- 21
(a) whether the law practice and any Australian legal 22
practitioner or Australian-registered foreign lawyer 23
acting on its behalf complied with this Act; 24
(b) any disclosures made by the law practice under division 25
3; 26
(c) any relevant advertisement as to-- 27
(i) the law practice's costs; or 28
(ii) the skills of the law practice, or of any Australian 29
legal practitioner or Australian-registered foreign 30
lawyer acting on its behalf; 31
(d) the skill, labour and responsibility displayed on the part 32
of the Australian legal practitioner or 33
s 342 260 s 343
Legal Profession Bill 2007
Australian-registered foreign lawyer responsible for the 1
matter; 2
(e) the retainer and whether the work done was within the 3
scope of the retainer; 4
(f) the complexity, novelty or difficulty of the matter; 5
(g) the quality of the work done; 6
(h) the place where, and circumstances in which, the legal 7
services were provided; 8
(i) the time within which the work was required to be done; 9
(j) any other relevant matter. 10
(3) In conducting an assessment of legal costs payable by a 11
non-associated third party payer, the costs assessor must also 12
consider whether it is fair and reasonable in the circumstances 13
for the non-associated third party payer to be charged the 14
amount claimed. 15
342 Costs of assessment 16
Unless a costs assessor otherwise decides-- 17
(a) the law practice to which the costs of the costs 18
assessment are payable or were paid must pay the costs 19
if-- 20
(i) the legal costs in dispute are reduced by 15% or 21
more on the costs assessment; or 22
(ii) the costs assessor is satisfied the law practice failed 23
to comply with division 3; and 24
(b) if not, the applicant or applicants must the pay the costs 25
of the costs assessment as stated by the costs assessor in 26
the costs assessment. 27
343 Referral for disciplinary action 28
(1) This section applies to-- 29
(a) a costs assessor deciding a costs assessment under the 30
Uniform Civil Procedure Rules; or 31
(b) a court reviewing a costs assessment under the rules. 32
s 344 261 s 346
Legal Profession Bill 2007
(2) If the costs assessor or court reduces the legal costs payable 1
by 15% or more, the costs assessor may, or the court may 2
direct the registrar for the court to, refer the matter to the 3
commissioner to consider whether disciplinary action should 4
be taken against an Australian legal practitioner or 5
Australian-registered foreign lawyer involved in the matter. 6
(3) Also, if the costs assessor or a court considers-- 7
(a) the legal costs charged by a law practice are grossly 8
excessive; or 9
(b) the costs assessment raises another matter that may 10
amount to professional misconduct on the part of an 11
Australian legal practitioner or Australian-registered 12
foreign lawyer involved in the matter; 13
the costs assessor must, or the court may direct the registrar 14
for the court to, refer the matter to the commissioner to 15
consider whether disciplinary action should be taken against 16
the practitioner or foreign lawyer. 17
344 Contracting out of div 7 by sophisticated clients etc. 18
A sophisticated client of a law practice, or an associated third 19
party payer who would be a sophisticated client if the third 20
party payer were a client of the law practice concerned, may 21
contract out of this division. 22
Division 8 Speculative personal injury claims 23
345 Main purpose of div 8 24
The main purpose of this division is to provide for the 25
maximum payment for a law practice's conduct of a 26
speculative personal injury claim. 27
346 Definitions for div 8 28
In this division-- 29
legal costs means amounts that a person has been or may be 30
charged by, or is or may become liable to pay to, a law 31
s 347 262 s 347
Legal Profession Bill 2007
practice for the provision of legal services including interest 1
on the amounts, but excluding disbursements and interest on 2
disbursements. 3
speculative personal injury claim means a claim for, or 4
substantially for, damages for personal injury if the right of a 5
law practice to charge and recover legal costs from a client for 6
work done is dependent on the client's success in pursuing the 7
claim. 8
347 Maximum payment for conduct of speculative personal 9
injury claim 10
(1) The maximum amount of legal costs (inclusive of GST) that a 11
law practice may charge and recover from a client for work 12
done in relation to a speculative personal injury claim must be 13
worked out under the costs agreement with the client for the 14
claim or this Act but in no case can those legal costs be more 15
than the amount worked out using the formula-- 16
[ E - ( R + D ) ] × 0.5 17
where-- 18
E means the amount to which the client is entitled under a 19
judgment or settlement, including an amount the client is 20
entitled to receive for costs under the judgment or settlement. 21
R means the total amount the client must, under an Act, a law 22
of the Commonwealth or another jurisdiction, or otherwise, 23
refund on receipt of the amount to which the client is entitled 24
under the judgment or settlement. 25
D means the total amount of disbursements or expenses for 26
which the client is liable if that liability is incurred by or on 27
behalf of the client either by the law practice or on the advice 28
or recommendation of the law practice, in obtaining goods or 29
services (other than legal services from that law practice) for 30
the purpose of investigating or progressing the client's claim, 31
regardless of how or by whom those disbursements or 32
expenses are paid, but does not include interest on the 33
disbursements or expenses. 34
s 347 263 s 347
Legal Profession Bill 2007
Examples for D-- 1
1 The disbursements or expenses may be paid by the client direct or 2
through a law practice or by a person funding the client for those 3
disbursements or expenses. 4
2 If a client obtains a loan to fund the payment of disbursements and 5
expenses on the firm's recommendation and pays for medical and 6
expert reports direct to the provider, the expenses fall within D (but 7
the interest payable by the client on those expenses do not). 8
(2) If-- 9
(a) the amount of legal costs that a law practice may charge 10
and recover from a client is more than the amount 11
calculated under subsection (1); and 12
(b) the law practice wishes to charge and recover the 13
amount (the greater amount) from the client; 14
the law practice may apply under subsection (3) for approval 15
to charge and recover the greater amount. 16
(3) The application must be made in writing to-- 17
(a) if the law practice is a barrister--the bar association; or 18
(b) otherwise--the law society. 19
(4) A relevant regulatory authority may, in writing, approve an 20
application made to it for an amount up to the greater amount. 21
(5) This section applies to a barrister only if the barrister has not 22
been retained by another law practice. 23
(6) This section applies despite section 319 and division 5.50 24
(7) Also, this section applies to any request for payment made on 25
or after the day this section commences, whether or not a 26
client agreement was entered into before that date. 27
50 Section 319 (On what basis are legal costs recoverable) and division 5 (Costs
agreements)
s 348 264 s 349
Legal Profession Bill 2007
Division 9 Miscellaneous 1
348 Application of part to incorporated legal practices and 2
multi-disciplinary partnerships 3
A regulation may provide that stated provisions of this part-- 4
(a) do not apply to incorporated legal practices or 5
multi-disciplinary partnerships; or 6
(b) apply, with stated changes, to incorporated legal 7
practices or multi-disciplinary partnerships. 8
349 Imputed acts, omission or knowledge 9
For this part-- 10
(a) anything done or omitted by, to or in relation to-- 11
(i) an Australian legal practitioner; or 12
(ii) an Australian-registered foreign lawyer, except for 13
the purposes of section 324(4)51 or for the purposes 14
of any provision of this part prescribed under a 15
regulation; 16
in the course of acting on behalf of a law practice is 17
taken to have been done or omitted by, to or in relation 18
to the law practice; and 19
(b) without limiting paragraph (a), the law practice is taken 20
to become or be aware of, or to have a belief as to, any 21
matter if-- 22
(i) an Australian legal practitioner; or 23
(ii) an Australian-registered foreign lawyer (except for 24
the purposes of section 324(4) or for the purposes 25
of any provision of this part prescribed under a 26
regulation); 27
becomes or is aware of, or has a belief as to, the matter 28
in the course of acting on behalf of the law practice. 29
51 Section 324 (Conditional costs agreements involving uplift fees)
s 350 265 s 352
Legal Profession Bill 2007
350 Preservation of confidentiality 1
(1) If a person gains confidential information because of being, or 2
an opportunity given by being, a costs assessor, the person 3
must not make a record of the information or intentionally or 4
recklessly disclose the information other than under 5
subsection (2). 6
(2) The person may make a record of confidential information, or 7
disclose it to someone else-- 8
(a) for this Act; or 9
(b) to discharge a function under another law; or 10
(c) for a proceeding in a court or tribunal; or 11
(d) if authorised under a regulation or another law; or 12
(e) if authorised by the person to whom the confidential 13
information relates. 14
(3) In this section-- 15
confidential information includes information about a 16
person's affairs, but does not include-- 17
(a) information already publicly disclosed unless further 18
disclosure of the information is prohibited by law; or 19
(b) statistical or other information that could not reasonably 20
be expected to result in the identification of the person 21
to whom the information relates. 22
351 Preservation of privilege 23
Privilege attaching to a document or thing, including, for 24
example, legal professional privilege, continues despite 25
disclosure of the document or thing to a costs assessor. 26
352 Ordinary protection and immunity allowed 27
(1) In performing the functions of costs assessor, the person 28
appointed as a costs assessor has the same protection and 29
immunity as a judge performing the functions of a judge. 30
(2) A party appearing in a costs assessment, and the party's 31
lawyer or agent, has the same protection and immunity the 32
s 353 266 s 353
Legal Profession Bill 2007
party would have if the dispute were being heard before the 1
Supreme Court. 2
(3) A witness attending in an costs assessment has the same 3
protection and immunity as a witness attending before the 4
Supreme Court. 5
(4) A document produced at, or used for, a costs application or 6
costs assessment has the same protection during the costs 7
assessment it would have if produced before the Supreme 8
Court. 9
Part 3.5 Professional indemnity 10
insurance 11
353 Professional indemnity insurance 12
(1) This section applies to each of the following persons who 13
makes an application for the grant or renewal of a local 14
practising certificate-- 15
(a) an Australian lawyer who is a government legal officer 16
and who, in the lawyer's application for the grant or 17
renewal of the certificate, stated the lawyer did not 18
intend to engage in legal practice other than engaging in 19
government work; 20
(b) an Australian lawyer who is employed by a corporation, 21
that is not an incorporated legal practice, and who 22
provides only in-house legal services to the corporation 23
or a related body corporate; 24
(c) another Australian lawyer, other than an Australian 25
lawyer to whom this section applies under paragraph (a) 26
or (b). 27
(2) A relevant regulatory authority must not grant or renew a local 28
practising certificate unless the authority-- 29
(a) for an application by an Australian lawyer mentioned in 30
subsection (1)(a)--imposes a condition on the 31
certificate that the lawyer is not to engage in legal 32
s 354 267 s 354
Legal Profession Bill 2007
practice other than as a government legal officer 1
engaged in government work; or 2
(b) for an application by an Australian lawyer mentioned in 3
subsection (1)(b)--imposes a condition on the 4
certificate that the lawyer is not to engage in legal 5
practice other than for providing in-house legal services; 6
or 7
(c) for an application by an Australian lawyer mentioned in 8
subsection (1)(c)--is satisfied the lawyer will, during 9
the currency of the practising certificate, be covered by 10
professional indemnity insurance that complies with this 11
Act. 12
(3) Professional indemnity insurance complies with this Act in 13
relation to a practising certificate if it complies with the 14
requirements prescribed under a regulation. 15
(4) A regulation may, for example, require professional indemnity 16
insurance in relation to a practising certificate to be of a kind 17
approved, or provided under a scheme approved, or provided 18
by an insurer approved, or arranged, by the relevant regulatory 19
authority for the practising certificate. 20
(5) An approval mentioned in subsection (4) may relate to 21
professional indemnity insurance approved under a 22
corresponding law. 23
354 Continuing obligation for professional indemnity 24
insurance 25
(1) A local legal practitioner must not engage in legal practice in 26
this jurisdiction, or represent or advertise that the practitioner 27
is entitled to engage in legal practice in this jurisdiction, 28
unless-- 29
(a) if conditions are imposed under section 353 on the 30
practitioner's practising certificate--the practitioner 31
complies with the conditions; and 32
(b) if the practitioner must, under that section, have 33
professional indemnity insurance--the practitioner 34
complies with the requirements prescribed under a 35
regulation mentioned in section 353(3) for professional 36
indemnity insurance. 37
s 355 268 s 356
Legal Profession Bill 2007
Maximum penalty--300 penalty units or 2 years 1
imprisonment. 2
(2) If a person must, under section 353, have professional 3
indemnity insurance and the person becomes aware that the 4
person will not be covered by professional indemnity 5
insurance that complies with the requirements prescribed 6
under a regulation mentioned in section 353(3), the person 7
must notify the regulatory authority of that fact, in the 8
approved form. 9
(3) A contravention of subsection (1) or (2) is capable of 10
constituting unsatisfactory professional conduct or 11
professional misconduct. 12
Part 3.6 Fidelity cover 13
Division 1 Preliminary 14
355 Main purpose of pt 3.6 15
The main purpose of this part is to establish and keep a fund to 16
provide a source of compensation for defaults by law practices 17
arising from, or constituted by, acts or omissions of associates. 18
356 Definitions for pt 3.6 19
In this part-- 20
capping and sufficiency provisions means-- 21
(a) for this jurisdiction--sections 396 and 397;52 or 22
(b) for another jurisdiction--the provisions of the 23
corresponding law of that jurisdiction that correspond to 24
those sections. 25
claim means a claim under this part. 26
52 Sections 396 (Caps on payments) and 397 (Sufficiency of fidelity fund)
s 357 269 s 357
Legal Profession Bill 2007
claimant means a person who makes a claim. 1
concerted interstate default means a default of a law practice 2
arising from or constituted by an act or omission-- 3
(a) that was committed jointly by 2 or more associates of 4
the practice; or 5
(b) parts of which were committed by different associates of 6
the practice or different combinations of associates of 7
the practice; 8
if this jurisdiction is the relevant jurisdiction for at least 1 of 9
the associates and another jurisdiction is the relevant 10
jurisdiction for at least 1 of the associates. 11
default, in relation to a law practice, means-- 12
(a) a failure of the practice to pay or deliver trust money or 13
trust property that was received by the practice in the 14
course of legal practice by the practice, if the failure 15
arises from an act or omission of an associate that 16
involves dishonesty; or 17
(b) a fraudulent dealing with trust property that was 18
received by the law practice in the course of legal 19
practice by the practice, if the fraudulent dealing arises 20
from or is constituted by an act or omission of an 21
associate that involves dishonesty. 22
pecuniary loss, in relation to a default, means-- 23
(a) the amount of trust money, or the value of trust property, 24
that is not paid or delivered; or 25
(b) the amount of money that a person loses or is deprived 26
of, or the loss of value of trust property, as a result of a 27
fraudulent dealing. 28
relevant jurisdiction, for division 3, see section 371. 29
357 Application of pt 3.6 30
(1) This part does not apply to a default of a law practice 31
consisting of a barrister. 32
s 358 270 s 360
Legal Profession Bill 2007
(2) A regulation may provide that this part applies to an entity 1
prescribed under the regulation as a community legal service 2
as if it were a law practice and how the part applies. 3
358 Time of default 4
(1) This section applies for the purpose of deciding which 5
jurisdiction's law applies in relation to a default. 6
(2) A default of a law practice is taken to have happened when the 7
act or omission giving rise to, or constituting, the default 8
happened. 9
(3) An omission is taken to have happened on-- 10
(a) the date on or by which the act not performed ought 11
reasonably to have been performed; or 12
(b) if a date can not be decided under paragraph (a)--on 13
another date decided under a regulation. 14
Division 2 Fidelity fund 15
359 Establishment of fidelity fund 16
(1) The Legal Practitioners' Fidelity Guarantee Fund established 17
under the Queensland Law Society Act 1952, section 12, and 18
continued in existence under the Legal Profession Act 2004, 19
section 147, is continued in existence under this Act. 20
(2) The fund continued in existence under subsection (1) (the 21
fidelity fund) continues to be vested in the law society. 22
(3) Subject to section 366, the law society must manage and 23
administer the fidelity fund. 24
360 Insurance 25
(1) The law society may arrange with an insurer for insurance in 26
relation to claims, and liabilities arising out of claims, against 27
the fidelity fund. 28
s 361 271 s 362
Legal Profession Bill 2007
(2) Without limiting subsection (1), the law society may arrange 1
for insurance relating to particular claims or particular classes 2
of claims. 3
(3) The proceeds paid under a policy of insurance against 4
particular claims or particular classes of claims are to be paid 5
into the fidelity fund, and a claimant is not entitled to have 6
direct recourse to the proceeds or any part of the proceeds. 7
(4) No liability, including liability in defamation, is incurred by a 8
protected person in relation to anything done or omitted to be 9
done in good faith for the purpose of arranging for insurance 10
of the fidelity fund. 11
(5) In this section-- 12
protected person means-- 13
(a) the law society or a council member; or 14
(b) a person acting at the direction of the law society or a 15
council member. 16
361 Limitation on borrowing powers of law society for fidelity 17
fund 18
(1) Despite the Statutory Bodies Financial Arrangements Act 19
1982, the law society can not borrow money for the purposes 20
of the fidelity fund. 21
(2) Subsection (1) does not apply to an advance to the fund by the 22
law society under section 370.53 23
362 Fund to be kept in separate account 24
All moneys constituting the fund, pending the investment or 25
application of that money under this Act or another Act, must 26
continue to be kept in, or paid or transferred into, an ADI to 27
the credit of a separate account to be called `The Legal 28
Practitioners' Fidelity Guarantee Fund Account'. 29
53 Section 370 (Law society may advance moneys from its general funds to fidelity
fund)
s 363 272 s 364
Legal Profession Bill 2007
363 Moneys payable into fidelity fund 1
The fidelity fund consists of the following-- 2
(a) all amounts paid to or on account of the fund by 3
Australian legal practitioners under this Act as 4
contributions or levies; 5
(b) the interest accruing from the investment of the amount 6
of all or part of the fund under the Statutory Bodies 7
Financial Arrangements Act 1982; 8
(c) all amounts given or advanced to the fund by the law 9
society under section 370; 10
(d) all amounts properly payable to the fund and recovered 11
for the law society in the exercise of any right of action 12
conferred under this Act; 13
(e) all other amounts that may be lawfully paid into the 14
fund. 15
364 Expenditure from fund 16
Subject to this Act, the following may be paid out of the fund 17
as required-- 18
(a) the amount of all claims, including costs and interest 19
allowed or established against the fund under a relevant 20
law; 21
(b) all legal expenses and costs incurred in defending claims 22
made against the fund or otherwise incurred in relation 23
to the fund; 24
(c) all premiums payable in relation to contracts of 25
insurance entered into by the law society under section 26
360; 27
(d) the expenses incurred in the administration of the fund; 28
(e) the amount of repayments for amounts given or 29
advanced to the fund by the law society under section 30
370; 31
s 365 273 s 367
Legal Profession Bill 2007
(f) all unpaid charges on the fund, and liabilities of the 1
fund, as mentioned in section 397;54 2
(g) all other moneys payable out of the fund under this Act. 3
365 Audit of accounts 4
(1) This section applies in addition to the Financial 5
Administration and Audit Act 1977, section 73.55 6
(2) At least once a year, the auditor-general must audit the 7
accounts of the fidelity fund separately to the audit of the law 8
society. 9
(3) However, the auditor-general may audit the accounts more 10
often than required under subsection (2). 11
(4) For an audit of the accounts of the fidelity fund, the 12
auditor-general may perform the functions and exercise the 13
powers of the auditor-general under the Financial 14
Administration and Audit Act 1977, part 6. 15
366 Law society may delegate its powers in relation to the 16
fidelity fund to a committee of management 17
(1) This section applies if the law society establishes a committee 18
of management for the fidelity fund and delegates any or all of 19
its powers in relation to the fidelity fund to the committee of 20
management. 21
(2) The committee must consist of not less than 3 nor more than 5 22
council members. 23
(3) The majority of members of the committee must be council 24
members. 25
367 Minister may require report about fund 26
(1) This section applies if, at any time, the Minister believes that 27
the fidelity fund is not sufficient to satisfy the liabilities of the 28
fund at or about that time. 29
54 Section 397 (Sufficiency of fidelity fund)
55 Financial Administration and Audit Act 1977, section 73 (Auditor-general to audit
consolidated fund and public sector entities unless exempted)
s 368 274 s 369
Legal Profession Bill 2007
(2) The Minister may, by written notice to the council, require the 1
law society to give the Minister a written report about the fund 2
on the matters stated in the notice. 3
(3) The law society must comply with the requirement within 14 4
days after receiving the notice or within the further time 5
allowed by the Minister. 6
368 Contribution to fidelity fund 7
(1) A person who applies to the law society for the grant or 8
renewal of a local practising certificate in relation to a 9
financial year must pay a contribution for the financial year to 10
the fidelity fund under the administration rules of the law 11
society. 12
(2) A payment of a contribution under this section is in addition 13
to all other fees payable in relation to the application. 14
(3) Without limiting section 231,56 the administration rules of the 15
law society may provide for different contributions to be 16
payable by different classes of local legal practitioners or law 17
practices. 18
(4) This section does not apply to-- 19
(a) a government legal officer whose local practising 20
certificate is subject to a condition that the officer is not 21
to engage in legal practice other than as a government 22
legal officer engaged in government work; or 23
(b) local legal practitioners of a particular class prescribed 24
under a regulation. 25
369 Levy for benefit of fidelity fund 26
(1) This section applies if, at a particular time, the law society 27
believes that the fidelity fund is not sufficient to satisfy the 28
liabilities of the fidelity fund at or about that time. 29
(2) The law society may, by resolution, impose on each local 30
legal practitioner who must pay a contribution under section 31
368 for the relevant financial year, or local legal practitioners 32
56 Section 231 (Rules other than legal professional rules)
s 370 275 s 371
Legal Profession Bill 2007
of a particular class, a levy of an amount that the law society 1
considers reasonable. 2
(3) Without limiting section 231, the administration rules of the 3
law society may provide for different levies to be payable by 4
different classes of local legal practitioners or law practices. 5
(4) The amount of the levy is payable into the fidelity fund by a 6
date and in a way stated in the resolution. 7
370 Law society may advance moneys from its general funds 8
to fidelity fund 9
The law society may, from its general funds, give or advance 10
on terms as the law society considers reasonable an amount 11
for the fidelity fund. 12
Division 3 Defaults to which this part applies 13
371 Meaning of relevant jurisdiction 14
(1) The relevant jurisdiction, for an associate of a law practice 15
whose act or omission, whether alone or with 1 or more other 16
associates of the practice, gives rise to or constitutes a default 17
of the practice, is the relevant jurisdiction decided under this 18
section. 19
(2) For a default involving trust money received in Australia, 20
whether or not it was paid into an Australian trust account, the 21
relevant jurisdiction for the associate is-- 22
(a) if the trust money was paid into an Australian trust 23
account and the associate, whether alone or with a 24
co-signatory, was authorised to withdraw any or all of 25
the trust money from the only or last Australian trust 26
account in which the trust money was held before the 27
default--the jurisdiction under whose law that trust 28
account was kept; or 29
(b) otherwise--the associate's home jurisdiction. 30
(3) For a default involving trust money received outside Australia 31
and paid into an Australian trust account, the relevant 32
jurisdiction for the associate is-- 33
s 372 276 s 372
Legal Profession Bill 2007
(a) if the associate, whether alone or with a co-signatory, 1
was authorised to withdraw any or all of the trust money 2
from the only or last Australian trust account in which 3
the trust money was held before the default--the 4
jurisdiction under whose law that trust account was 5
kept; or 6
(b) otherwise--the associate's home jurisdiction. 7
(4) For a default involving trust property received in Australia, or 8
received outside Australia and brought into Australia, the 9
relevant jurisdiction for the associate is the associate's home 10
jurisdiction. 11
Note-- 12
Section 40157 provides that the law society may treat the default as 13
consisting of 2 or more defaults for the purpose of deciding the liability 14
of the fidelity fund. 15
372 Defaults to which this part applies 16
(1) This part applies to a default of a law practice arising from or 17
constituted by an act or omission of 1 or more associates of 18
the practice, if this jurisdiction is the relevant jurisdiction for 19
the only associate or 1 or more of the associates involved. 20
(2) Each of the following is immaterial-- 21
(a) the jurisdiction where the default happened; 22
(b) that the act or omission giving rise to or constituting a 23
default does not constitute a crime or other offence 24
under the law of this jurisdiction, the Commonwealth or 25
another jurisdiction; 26
(c) that a proceeding has not been started, or if started has 27
not ended, in relation to a crime or other offence of that 28
kind. 29
57 Section 401 (Defaults involving interstate elements if committed by 1 associate
only)
s 373 277 s 373
Legal Profession Bill 2007
373 Defaults relating to financial services or investments 1
(1) This part does not apply to a default of a law practice to the 2
extent that the default happens in relation to money or 3
property that is entrusted to or held by the practice for or in 4
connection with-- 5
(a) a financial service provided by the practice, or an 6
associate of the practice, in circumstances where the 7
practice or associate-- 8
(i) is required to hold an Australian financial services 9
licence covering the provision of the service, 10
whether or not an Australian financial services 11
licence is held at any relevant time; or 12
(ii) provides the service as a representative of another 13
person who carries on a financial services business, 14
whether or not the practice or associate is an 15
authorised representative at any relevant time; or 16
(b) a managed investment scheme, or mortgage financing, 17
undertaken by the practice. 18
(2) Without limiting subsection (1), this part does not apply to a 19
default of a law practice if the default happens in relation to 20
money or property that was entrusted to or held by the 21
practice for an investment purpose, whether or not on its own 22
account or as agent, unless-- 23
(a) the money or property was entrusted to or held by the 24
practice-- 25
(i) in the ordinary course of legal practice; and 26
(ii) primarily in connection with the provision of legal 27
services to or at the direction of the client; and 28
(b) the investment is or is to be made-- 29
(i) in the ordinary course of legal practice; and 30
(ii) for the ancillary purpose of keeping or enhancing 31
the value of the money or property pending 32
completion of the matter or further stages of the 33
matter or pending payment or delivery of the 34
money or property to or at the direction of the 35
client. 36
s 374 278 s 375
Legal Profession Bill 2007
Division 4 Claims about defaults 1
374 Claims about defaults 2
(1) A person who suffers pecuniary loss because of a default to 3
which this part applies may make a claim against the fidelity 4
fund to the law society about the default. 5
(2) The claim must be made in the law society approved form. 6
(3) The law society may require the person who makes a claim to 7
do either or both of the following-- 8
(a) to give further information about the claim or any 9
dispute to which the claim relates; 10
(b) to verify the claim, or any further information, by 11
statutory declaration. 12
375 Time limit for making claims 13
(1) Subject to section 377, a claim does not lie against the fidelity 14
fund unless the prospective claimant notifies the law society 15
of the default concerned-- 16
(a) within 6 months after the prospective claimant becomes 17
aware of the default; or 18
(b) within a further period allowed by the law society; or 19
(c) if, on appeal to the Supreme Court against the refusal of 20
the law society to allow a further period for the claim, 21
the court allows a further period for making the 22
claim--within the period allowed by the court. 23
(2) The Supreme Court or law society may allow a further period 24
mentioned in subsection (1) only if satisfied that-- 25
(a) it would be reasonable to do so after taking into account 26
all ascertained and contingent liabilities of the fidelity 27
fund; and 28
(b) it would be appropriate to do so in the particular case 29
having regard to matters the Supreme Court or law 30
society considers relevant. 31
s 376 279 s 376
Legal Profession Bill 2007
376 Advertisements 1
(1) If the law society considers that there has been, or may have 2
been, a default by a law practice, it may publish either or both 3
of the following-- 4
(a) a notice that seeks information about the default; 5
(b) a notice that invites claims relating to the default and 6
fixes a final date after which claims relating to the 7
default can not be made. 8
(2) The final date fixed by the notice must be a date that is-- 9
(a) at least 3 months after the date of the first or only 10
publication of the notice; and 11
(b) not more than 1 year after the date of that first or only 12
publication. 13
(3) The notice must be published-- 14
(a) in a newspaper circulating generally throughout 15
Australia; and 16
(b) in a newspaper circulating generally in each jurisdiction 17
where the law society believes the law practice has an 18
office or, at any relevant time, had an office; and 19
(c) on the law society internet site. 20
(4) The law society may provide information to persons making 21
inquiries in response to the notice published under this 22
section. 23
(5) Apart from extending the period during which claims can be 24
made under this part, if relevant, publication of the notice 25
under this section does not confer any entitlements in relation 26
to any claim, or the default to which it relates, or provide any 27
grounds affecting the decision of any claim. 28
(6) Neither the publication in good faith of the notice under this 29
section, nor the provision of information in good faith under 30
this section, subjects a protected person to any liability 31
including liability in defamation. 32
(7) In this section-- 33
protected person means-- 34
(a) the law society or a council member; or 35
s 377 280 s 378
Legal Profession Bill 2007
(b) the proprietor, editor or publisher of a newspaper; or 1
(c) an internet service provider or internet content host; or 2
(d) a person acting at the direction of a person or entity 3
mentioned in paragraph (a), (b) or (c). 4
377 Time limit for making claims following advertisement 5
(1) This section applies if the law society publishes a notice under 6
section 376 fixing a final date after which claims relating to a 7
default of a law practice can not be made. 8
(2) A claim may be made-- 9
(a) up to and including the final date fixed under the notice; 10
or 11
(b) within a further period allowed by the law society; or 12
(c) if the Supreme Court allows a further period after the 13
law society refuses to do so--within the period allowed 14
by the court. 15
(3) A claim may be made under subsection (2) even though it 16
would have been barred under section 375 had the notice not 17
been published. 18
(4) The Supreme Court or law society may allow a further period 19
mentioned in subsection (2) only if satisfied that-- 20
(a) it would be reasonable to do so after taking into account 21
all ascertained and contingent liabilities of the fidelity 22
fund; and 23
(b) it would be appropriate to do so in the particular case 24
having regard to matters the Supreme Court or law 25
society considers relevant. 26
378 Claims not affected by certain matters 27
(1) A claim may be made about a law practice's default despite a 28
change in the status of the practice or the associate concerned 29
after the happening of the act or omission giving rise to or 30
constituting the default. 31
(2) A claim that has been made is not affected by a later change in 32
the status of the practice or associate. 33
s 379 281 s 380
Legal Profession Bill 2007
(3) In this section-- 1
change in status includes-- 2
(a) for a partnership--a change in the membership or 3
staffing of, or the dissolution of, the partnership; and 4
(b) for an incorporated legal practice--a change in the 5
directorship or staffing of, or the winding-up or 6
dissolution of, the practice; and 7
(c) for an associate who was an Australian legal 8
practitioner--the fact that the associate has ceased to 9
practise or to hold an Australian practising certificate; 10
and 11
(d) for an associate who was an individual--the associate's 12
death. 13
379 Investigation of claims 14
The law society may investigate a claim made to it in the same 15
way it may investigate a complaint referred to it by the 16
commissioner.58 17
380 Advance payments 18
(1) The law society may, at its absolute discretion, make 19
payments to a claimant in advance of the decision of a claim if 20
satisfied that-- 21
(a) the claim is likely to be allowed; and 22
(b) payment is warranted to alleviate hardship. 23
(2) Any payments made in advance are to be taken into account 24
when the claim is decided. 25
(3) Payments under this section are to be made from the fidelity 26
fund. 27
(4) If the claim is disallowed, the amounts paid under this section 28
are recoverable by the law society as a debt due to the fidelity 29
fund. 30
58 Complaints may be referred by the commissioner to the law society under section
435.
s 381 282 s 381
Legal Profession Bill 2007
(5) If the claim is allowed but the amount payable is less than the 1
amount paid under this section, the excess paid under this 2
section is recoverable by the law society as a debt due to the 3
fidelity fund. 4
Division 5 Deciding claims 5
381 Law society to decide claim 6
(1) The law society may decide a claim by wholly or partly 7
allowing or disallowing it. 8
(2) The law society may disallow a claim to the extent that the 9
claim does not relate to a default of a law practice for which 10
the fidelity fund is liable. 11
(3) The law society may wholly or partly disallow a claim, or 12
reduce a claim, to the extent that-- 13
(a) the claimant knowingly assisted in or contributed 14
towards, or was a party or accessory to, the act or 15
omission giving rise to the claim; or 16
(b) for a claim mentioned in section 398(2)--the negligence 17
of the claimant contributed to the loss; or 18
(c) the conduct of the transaction with the law practice in 19
relation to which the claim is made was illegal, and the 20
claimant knew or ought reasonably to have known of 21
that illegality; or 22
(d) proper and usual records were not brought into existence 23
during the conduct of the transaction, or were destroyed, 24
and the claimant knew or ought reasonably to have 25
known that records of that kind would not be kept or 26
would be destroyed; or 27
(e) the claimant has unreasonably refused to disclose 28
information or documents to or cooperate with-- 29
(i) the law society in the investigation of the claim; or 30
(ii) another entity in the investigation of the claim, 31
including, for example, an investigator or a police 32
officer. 33
s 382 283 s 383
Legal Profession Bill 2007
(4) Subsections (2) and (3) do not limit the law society's power to 1
disallow a claim on another ground. 2
(5) Without limiting subsection (2) or (3), the law society may 3
reduce the amount otherwise payable on a claim to the extent 4
the law society considers appropriate if satisfied that the 5
claimant-- 6
(a) assisted in or contributed towards, or was a party or 7
accessory to, the act or omission giving rise to the claim; 8
or 9
(b) unreasonably failed to mitigate losses arising from the 10
act or omission giving rise to the claim; or 11
(c) has unreasonably hindered the investigation of the 12
claim. 13
(6) The law society must, in allowing a claim, state the amount 14
payable. 15
382 Maximum amount allowable 16
(1) The amount payable in relation to a default of a law practice 17
must not be more than the pecuniary loss resulting from the 18
default. 19
(2) This section does not apply to costs payable under section 383 20
or to interest payable under section 384. 21
383 Costs 22
(1) If the law society wholly or partly allows a claim, it must pay 23
the claimant's reasonable legal costs involved in making and 24
proving the claim, unless the law society considers that 25
special circumstances exist warranting-- 26
(a) a reduction in the amount of costs; or 27
(b) a decision that no amount should be paid for costs. 28
(2) If the law society wholly disallows a claim, the law society 29
may pay the whole or part of the claimant's reasonable legal 30
costs involved in making and attempting to prove the claim, if 31
the law society considers it is appropriate to make the 32
payment. 33
s 384 284 s 385
Legal Profession Bill 2007
(3) The amount of a payment under subsection (1) or (2) is 1
payable from the fidelity fund. 2
384 Interest 3
(1) In deciding the amount of pecuniary loss resulting from a 4
default of a law practice, the law society is to add interest on 5
the amount payable (excluding interest), unless it considers 6
that special circumstances exist warranting-- 7
(a) a reduction in the amount of interest; or 8
(b) a decision that no amount should be paid by way of 9
interest. 10
(2) The interest is to be calculated from the date on which the 11
claim was made to the date the law society notifies the 12
claimant that the claim has been allowed at the rate stated in 13
or prescribed under a regulation. 14
(3) To the extent a regulation does not provide for a rate for 15
subsection (2), interest is to be calculated at the rate of 5% per 16
year. 17
(4) The interest is payable from the fidelity fund. 18
385 Reduction of claim because of other benefits 19
(1) A person is not entitled to recover from the fidelity fund any 20
amount equal to amounts, or to the value of other benefits, 21
from other sources relating to the pecuniary loss to which a 22
claim relates-- 23
(a) that have already been paid to or received by the person, 24
whether before or after the commencement of this 25
section; or 26
(b) that have already been decided and are payable to or 27
receivable by the person; or 28
(c) that the law society believes are likely to be paid to or 29
received by the person; or 30
(d) that the law society believes might, but for neglect or 31
failure on the person's part, have been paid or payable to 32
or received or receivable by the person. 33
s 386 285 s 387
Legal Profession Bill 2007
(2) The law society may, at its absolute discretion, pay to a person 1
the whole or part of an amount mentioned in subsection (1)(c) 2
if satisfied that payment is warranted to alleviate hardship, but 3
nothing in this subsection affects section 388. 4
386 Subrogation 5
(1) On payment of a claim from the fidelity fund, the law society 6
is subrogated to the rights and remedies of the claimant 7
against any person in relation to the default to which the claim 8
relates. 9
(2) Without limiting subsection (1), that subsection extends to a 10
right or remedy against-- 11
(a) the associate about whom the claim is made; or 12
(b) the person authorised to administer the estate of the 13
associate about whom the claim is made and who is 14
deceased or an insolvent under administration. 15
(3) Subsection (1) does not apply to a right or remedy against an 16
associate if, had the associate been a claimant in relation to 17
the default, the claim would not be disallowed on any of the 18
grounds set out in section 381(3). 19
(4) The law society may exercise its rights and remedies under 20
this section in its own name or in the name of the claimant. 21
(5) If the law society brings a proceeding under this section in the 22
name of the claimant, it must indemnify the claimant against 23
any costs awarded against the claimant in the proceeding. 24
(6) The law society may exercise its rights and remedies under 25
this section even though any limitation periods under this part 26
have expired. 27
(7) The law society must pay into the fidelity fund any money 28
recovered in exercising its rights and remedies under this 29
section. 30
387 Proceedings brought under right of subrogation 31
In any proceeding brought in a court under section 386-- 32
(a) evidence of any admission or confession by, or other 33
evidence that would be admissible against, an Australian 34
s 388 286 s 389
Legal Profession Bill 2007
legal practitioner or other person in relation to an act or 1
omission giving rise to a claim is admissible to prove the 2
act or omission despite the fact that the practitioner or 3
other person is not a defendant in, or a party to, the 4
proceeding; and 5
(b) any defence that would have been available to the 6
practitioner or other person is available to the law 7
society. 8
388 Repayment of surplus amount 9
(1) This section applies if a claimant-- 10
(a) receives a payment from the fidelity fund relating to a 11
claim; and 12
(b) receives or recovers from another source or sources a 13
payment on account of the pecuniary loss; and 14
(c) there is a surplus after deducting the amount of the 15
pecuniary loss from the total amount received or 16
recovered by the claimant from both or all sources. 17
(2) The amount of the surplus is a debt payable by the claimant to 18
the fidelity fund. 19
(3) However, the amount payable by the claimant can not be more 20
than the amount the claimant received from the fidelity fund 21
in relation to the claim. 22
(4) This section applies whether or not-- 23
(a) the claim was made before or after the commencement 24
of this section; and 25
(b) a payment mentioned in subsection (1)(a) or (b) was 26
received before or after the commencement of this 27
section. 28
389 Notification of delay in making decision 29
(1) If the law society considers that a claim is not likely to be 30
decided within 1 year after the claim was made, the law 31
society must give written notice to the claimant that the claim 32
is not likely to be decided within that period. 33
s 390 287 s 391
Legal Profession Bill 2007
(2) The notice must contain a brief statement of reasons for the 1
delay. 2
390 Notification of decision 3
After the law society makes a decision mentioned in this 4
division about a claim, the law society must give the claimant 5
an information notice about the decision. 6
Division 6 Right of action against external 7
examiner 8
391 External examiner guilty of neglect 9
(1) This section applies if-- 10
(a) an external examiner is guilty of neglect in relation to an 11
external examination of the trust records of a law 12
practice and there has been a default in relation to the 13
law practice; and 14
(b) the law society pays an amount from the fidelity fund to 15
reimburse persons who suffered loss because of the 16
default. 17
(2) The law society has an action for damages against the external 18
examiner in relation to the external examination. 19
(3) The right of action is similar to the action for damages that the 20
law practice, or any legal practitioner associate of the practice, 21
would have had against the external examiner. 22
(4) If the default arises from or is constituted by an act or 23
omission of the law practice, or 1 or more legal practitioner 24
associates of the law practice, subsection (2) applies as if the 25
default arises from or is constituted by an act or omission of a 26
lay associate of the law practice. 27
(5) The amount of damages the law society may claim under this 28
section must not be more than the total amount paid from the 29
fidelity fund to reimburse all persons who suffered loss 30
because of the default. 31
s 392 288 s 392
Legal Profession Bill 2007
Division 7 Appeals 1
392 Appeal against decision on claim 2
(1) A claimant may appeal to the Supreme Court against either of 3
the following decisions of the law society but not a decision to 4
limit the amount payable, or to decline to pay an amount, 5
made under the capping and sufficiency provisions of this 6
jurisdiction-- 7
(a) a decision to wholly or partly disallow a claim; 8
(b) a decision to reduce the amount allowed in relation to a 9
claim. 10
(2) An appeal against a decision must be lodged within 30 days of 11
receiving the information notice about the decision. 12
(3) On an appeal under this section-- 13
(a) the appellant must establish that all or part of the 14
amount sought to be recovered from the fidelity fund is 15
not reasonably available from other sources, unless the 16
law society waives that requirement; and 17
(b) the court may, on application by the law society, stay the 18
appeal pending further action being taken to seek 19
recovery of that amount from other sources. 20
(4) The Supreme Court may review the merits of the law society's 21
decision. 22
(5) The Supreme Court may-- 23
(a) affirm the decision; or 24
(b) if satisfied there are reasons for varying or setting aside 25
the law society's decision-- 26
(i) vary the decision; or 27
(ii) set aside the decision and make a decision in 28
substitution for the decision set aside; or 29
(iii) set aside the decision and remit the matter for 30
reconsideration by the law society under a 31
direction or recommendation of the court. 32
s 393 289 s 393
Legal Profession Bill 2007
(6) For subsection (5), the Supreme Court may make other orders 1
as it considers appropriate. 2
(7) However, an order for costs is not to be made on an appeal 3
under this section unless the Supreme Court is satisfied that an 4
order for costs should be made in the interests of justice. 5
393 Appeal against failure to decide claim within 1 year 6
(1) A claimant may appeal to the Supreme Court against a failure 7
of the law society to decide a claim after 1 year after the claim 8
was made. 9
(2) An appeal against a failure to decide a claim may be made at 10
any time after the period of 1 year after the claim was made 11
and while the failure continues. 12
(3) On an appeal under this section-- 13
(a) the appellant must establish that the whole or part of the 14
amount sought to be recovered from the fidelity fund is 15
not reasonably available from other sources, unless the 16
law society waives that requirement; and 17
(b) the Supreme Court may, on application by the law 18
society, stay the appeal pending further action being 19
taken to seek recovery of that amount from other 20
sources. 21
(4) The Supreme Court may decide the appeal-- 22
(a) by giving directions to the law society to decide the 23
matter expeditiously and-- 24
(i) if the court is satisfied that there has been 25
unreasonable delay--ordering that interest be paid 26
at a stated rate that is higher than the rate 27
applicable under section 384,59 until further order 28
or the decision for the claim; or 29
(ii) otherwise--ordering that, if delay continues in 30
circumstances of a stated kind, interest be paid for 31
a stated period at a stated rate that is higher than 32
59 Section 384 (Interest)
s 394 290 s 395
Legal Profession Bill 2007
the rate applicable under section 384, until further 1
order or the decision for the claim; or 2
(b) by deciding not to give a direction or make an order 3
under paragraph (a). 4
(5) An order for costs must not be made on an appeal under this 5
section unless the Supreme Court is satisfied that an order for 6
costs should be made in the interests of justice. 7
394 Proceedings on appeal 8
In any proceeding brought in a court under section 392-- 9
(a) evidence of any admission or confession by, or other 10
evidence that would be admissible against, an Australian 11
legal practitioner or other person in relation to an act or 12
omission giving rise to a claim is admissible to prove the 13
act or omission despite the fact that the practitioner or 14
other person is not a defendant in, or a party to, the 15
proceeding; and 16
(b) any defence that would have been available to the 17
practitioner or other person is available to the law 18
society. 19
Division 8 Payments from fidelity fund for 20
defaults 21
395 Payments for defaults 22
(1) The fidelity fund is to be applied by the law society for 23
compensating claimants in relation to claims allowed under 24
this part for defaults to which this part applies. 25
(2) An amount payable from the fidelity fund in relation to a 26
claim is payable to-- 27
(a) the claimant; or 28
(b) another person at the claimant's direction. 29
s 396 291 s 397
Legal Profession Bill 2007
396 Caps on payments 1
(1) A regulation may fix either or both of the following-- 2
(a) the maximum amounts, or the method of calculating 3
maximum amounts, that may be paid from the fidelity 4
fund for individual claims or classes of individual 5
claims; 6
(b) the maximum aggregate amount, or the method of 7
calculating the maximum aggregate amount, that may 8
be paid from the fidelity fund for all claims made in 9
relation to individual law practices or classes of law 10
practices. 11
(2) Amounts must not be paid from the fidelity fund that are more 12
than the amounts fixed, or calculated by a method fixed, under 13
subsection (1). 14
(3) Payments from the fidelity fund under subsection (2) are 15
made in full and final settlement of the claims concerned. 16
(4) Despite subsection (2), the law society may authorise payment 17
of a larger amount if satisfied that it would be reasonable to do 18
so after taking into account the position of the fidelity fund 19
and the circumstances of the particular case. 20
(5) No proceeding can be brought, by way of appeal or otherwise, 21
to require the payment of a larger amount or to require the law 22
society to consider payment of a larger amount. 23
397 Sufficiency of fidelity fund 24
(1) If the law society believes that the fidelity fund is likely to be 25
insufficient to meet the fund's ascertained and contingent 26
liabilities, it may do any or all of the following-- 27
(a) postpone all payments relating to all or any class of 28
claims out of the fund; 29
(b) impose a levy under section 369;60 30
(c) make partial payments of the amounts of 1 or more 31
allowed claims out of the fund with payment of the 32
balance being a charge on the fund; 33
60 Section 369 (Levy for benefit of fidelity fund)
s 398 292 s 398
Legal Profession Bill 2007
(d) make partial payments of the amounts of 2 or more 1
allowed claims out of the fund on a pro rata basis, with 2
payment of the balance ceasing to be a liability of the 3
fund. 4
(2) In deciding whether to do any or all of the things mentioned in 5
subsection (1), the law society-- 6
(a) must have regard to cases of hardship if it knows 7
relevant information; and 8
(b) must endeavour to treat outstanding claims equally and 9
equitably, but may make special adjustments in cases of 10
hardship. 11
(3) If the law society declares that a decision is made under 12
subsection (1)(d)-- 13
(a) the balance stated in the declaration ceases to be a 14
liability of the fidelity fund; and 15
(b) the law society may, but need not, revoke the declaration 16
in relation to either all or a stated part of the balance, 17
and the balance or that part of the balance again 18
becomes a liability of the fund. 19
(4) A decision of the law society made under this section is final 20
and not subject to appeal or review. 21
Division 9 Claims by law practices or 22
associates 23
398 Claims by law practices or associates about defaults 24
(1) This section applies to a default of a law practice arising from 25
or constituted by an act or omission of an associate of the 26
practice. 27
(2) A claim may be made under section 37461 by-- 28
(a) the law practice, if the practice is an incorporated legal 29
practice and it suffers pecuniary loss because of the 30
default; or 31
61 Section 374 (Claims about defaults)
s 399 293 s 400
Legal Profession Bill 2007
(b) another associate of the law practice, if the other 1
associate suffers pecuniary loss because of the default. 2
399 Claims by law practices or associates about notional 3
defaults 4
(1) This section applies if a default of a law practice arising from 5
or constituted by an act or omission of an associate of the 6
practice was avoided, remedied or reduced by a financial 7
contribution made by the practice or by 1 or more other 8
associates. 9
(2) The default, to the extent that it was avoided, remedied or 10
reduced, is a notional default. 11
(3) This part applies to a notional default in the same way as it 12
applies to other defaults of law practices, but only the law 13
practice or the other associate or associates concerned are 14
eligible to make claims about the notional default. 15
Division 10 Defaults involving interstate 16
elements 17
400 Concerted interstate defaults 18
(1) The law society may treat a concerted interstate default as if 19
the default consisted of 2 or more separate defaults-- 20
(a) 1 of which is a default to which this part applies, if this 21
jurisdiction is the relevant jurisdiction for 1 or more of 22
the associates involved; and 23
(b) the other or others of which are defaults to which this 24
part does not apply, if another jurisdiction or 25
jurisdictions are the relevant jurisdictions for 1 or more 26
of the associates involved. 27
(2) The law society may treat a claim about a concerted interstate 28
default as if the claim consisted of-- 29
(a) 1 or more claims made under this part; and 30
(b) 1 or more claims made under a corresponding law or 31
laws. 32
s 401 294 s 401
Legal Profession Bill 2007
(3) A claim about a concerted interstate default is to be assessed 1
on the basis that the fidelity funds of the relevant jurisdictions 2
involved are to contribute-- 3
(a) in equal shares in relation to the default, regardless of 4
the number of associates involved in each of those 5
jurisdictions, and disregarding the capping and 6
sufficiency provisions of those jurisdictions; or 7
(b) in other shares as agreed by the law society and the 8
corresponding authority or authorities involved. 9
(4) Subsection (3) does not affect the application of the capping 10
and sufficiency requirements of this jurisdiction in relation to 11
the amount payable from the fidelity fund after the claim has 12
been assessed. 13
401 Defaults involving interstate elements if committed by 1 14
associate only 15
(1) This section applies to a default of a law practice arising from 16
or constituted by an act or omission that was committed by 17
only 1 associate of the practice, if the default involves more 18
than 1 of the cases mentioned in section 371(2) to (4).62 19
(2) The law society may treat the default to which this section 20
applies as if the default consisted of 2 or more separate 21
defaults-- 22
(a) 1 of which is a default to which this part applies, if this 23
jurisdiction is the relevant jurisdiction; and 24
(b) the other or others of which are defaults to which this 25
part does not apply, if another jurisdiction or 26
jurisdictions are the relevant jurisdictions. 27
(3) The law society may treat a claim about the default to which 28
this section applies as if the claim consisted of-- 29
(a) 1 or more claims made under this part; and 30
(b) 1 or more claims made under a corresponding law or 31
laws. 32
62 Section 371 (Meaning of relevant jurisdiction)
s 402 295 s 402
Legal Profession Bill 2007
(4) A claim about a default to which this section applies is to be 1
assessed on the basis that the fidelity funds of the relevant 2
jurisdictions involved are to contribute-- 3
(a) in equal shares in relation to the default, and 4
disregarding the capping and sufficiency provisions of 5
those jurisdictions; or 6
(b) in other shares as agreed by the law society and the 7
corresponding authority or authorities involved. 8
(5) Subsection (4) does not affect the application of the capping 9
and sufficiency requirements of this jurisdiction in relation to 10
the amount payable from the fidelity fund after the claim has 11
been assessed. 12
Division 11 Inter-jurisdictional provisions 13
402 Protocols 14
(1) A regulation may authorise the law society to enter into 15
arrangements (fidelity protocols) with corresponding 16
authorities in relation to matters to which this part relates. 17
(2) Without limiting subsection (1), a regulation may authorise 18
the making of a fidelity protocol that provides that the law 19
society is taken to have-- 20
(a) requested a corresponding authority to act as agent of 21
the law society in stated classes of cases; or 22
(b) agreed to act as agent of a corresponding authority in 23
stated classes of cases. 24
(3) A regulation may provide for the amendment, revocation or 25
replacement of a fidelity protocol. 26
(4) A fidelity protocol, or an amendment, revocation or 27
replacement of a fidelity protocol, has effect in this 28
jurisdiction only to the extent it is approved under a 29
regulation. 30
s 403 296 s 405
Legal Profession Bill 2007
403 Forwarding claims to corresponding authority in another 1
jurisdiction 2
(1) If a claim is made to the law society about a default of a law 3
practice that appears to be a default to which a corresponding 4
law applies, the law society must give the claim or a copy of it 5
to a corresponding authority of the jurisdiction concerned. 6
(2) If a claim is made to a corresponding authority about a default 7
that appears to be a default to which this part applies and the 8
claim or a copy of it is given under a corresponding law to the 9
law society by the corresponding authority, the claim is 10
taken-- 11
(a) to have been made under this part; and 12
(b) to have been so made when the claim was received by 13
the corresponding authority. 14
404 Investigation of defaults to which this part applies 15
(1) This section applies if a default of a law practice appears to be 16
a default to which this part applies and to have happened-- 17
(a) solely in another jurisdiction; or 18
(b) in more than 1 jurisdiction; or 19
(c) in circumstances in which it can not be decided 20
precisely in which jurisdiction the default happened. 21
(2) The law society may request a corresponding authority of 22
another jurisdiction, or corresponding authorities of other 23
jurisdictions, to act as agent or agents for the law society, for 24
processing or investigating a claim about the default or 25
aspects of the claim. 26
405 Investigation of defaults to which a corresponding law 27
applies 28
(1) This section applies if a default of a law practice appears to be 29
a default to which a corresponding law applies and to have-- 30
(a) happened solely in this jurisdiction; or 31
(b) happened in more than 1 jurisdiction including this 32
jurisdiction; or 33
s 406 297 s 407
Legal Profession Bill 2007
(c) happened in circumstances in which it can not be 1
decided precisely in which jurisdiction the default 2
happened. 3
(2) The law society may act as agent of a corresponding authority 4
of another jurisdiction, if requested to do so by the 5
corresponding authority, for the purpose of processing or 6
investigating a claim about the default or aspects of the claim. 7
(3) If the law society agrees to act as agent of a corresponding 8
authority under subsection (2), the law society may exercise 9
any of its functions or powers in relation to processing or 10
investigating the claim or aspects of the claim as if the claim 11
had been made under this part. 12
406 Investigation of concerted interstate defaults and other 13
defaults involving interstate elements 14
(1) This section applies if either of the following appears to have 15
happened-- 16
(a) a concerted interstate default; 17
(b) a default to which section 401 applies. 18
(2) The law society may request a corresponding authority or 19
corresponding authorities to act as agent or agents for the law 20
society, for processing or investigating a claim about the 21
default or aspects of the claim. 22
(3) The law society may act as agent of a corresponding authority, 23
if requested to do so by the corresponding authority, for 24
processing or investigating a claim about the default or 25
aspects of the claim. 26
(4) If the law society agrees to act as agent of a corresponding 27
authority under subsection (3), the law society may perform 28
and exercise any of its functions and powers in relation to 29
processing or investigating the claim or aspects of the claim as 30
if the claim had been made wholly under this part. 31
407 Recommendations by law society to corresponding 32
authority 33
If the law society is acting as agent of a corresponding 34
authority in relation to a claim made under a corresponding 35
s 408 298 s 409
Legal Profession Bill 2007
law, the law society may make recommendations about the 1
decision that the corresponding authority might make about 2
the claim. 3
408 Recommendations to and decisions by law society after 4
receiving recommendations from corresponding 5
authority 6
(1) If a corresponding authority makes recommendations about 7
the decision the law society might make about a claim in 8
relation to which the corresponding authority was acting as 9
agent of the law society, the law society may-- 10
(a) make its decision about the claim in conformity with the 11
recommendations, whether with or without further 12
consideration, investigation or inquiry; or 13
(b) disregard the recommendations. 14
(2) A corresponding authority can not, as agent of the law society, 15
make a decision about the claim under division 5.63 16
409 Request to another jurisdiction to investigate aspects of 17
claim 18
(1) The law society may request a corresponding authority to 19
arrange for the investigation of any aspect of a claim being 20
dealt with by the law society and to provide a report on the 21
result of the investigation. 22
(2) A report on the result of the investigation received from either 23
of the following may be used and taken into consideration by 24
the law society in the course of dealing with the claim under 25
this part-- 26
(a) the corresponding authority; 27
(b) a person or entity authorised by the corresponding 28
authority to conduct the investigation. 29
63 Division 5 (Deciding claims)
s 410 299 s 412
Legal Profession Bill 2007
410 Request from another jurisdiction to investigate aspects 1
of claim 2
(1) If a request, made under a corresponding law, is received by 3
the law society from a corresponding authority to arrange for 4
the investigation of any aspect of a claim being dealt with 5
under a corresponding law, the law society may conduct the 6
investigation. 7
(2) The provisions of this part relating to the investigation of a 8
claim apply, with any necessary changes, in relation to the 9
investigation of the relevant aspect of the claim that is the 10
subject of the request. 11
(3) The law society must provide a report on the result of the 12
investigation to the corresponding authority. 13
411 Cooperation with other authorities 14
(1) When dealing with a claim under this part involving a law 15
practice or an Australian legal practitioner, the law society 16
may consult and cooperate with an entity that has functions or 17
powers under the corresponding law of another jurisdiction in 18
relation to the law practice or the practitioner. 19
(2) For subsection (1), the law society and the entity may 20
exchange information concerning the claim. 21
Division 12 Miscellaneous 22
412 Interstate legal practitioner becoming authorised to 23
withdraw from local trust account 24
(1) This section applies to an interstate legal practitioner who, 25
whether alone or with a co-signatory, becomes authorised to 26
withdraw money from a local trust account. 27
(2) A regulation may do either or both of the following-- 28
(a) require the practitioner to notify the law society of the 29
authorisation; 30
(b) require the practitioner to make contributions and pay 31
levies to the fidelity fund as if the practitioner were a 32
local legal practitioner. 33
s 413 300 s 413
Legal Profession Bill 2007
(3) Without limiting subsection (2), a regulation may provide 1
for-- 2
(a) the way in which the notice is to be given and the 3
information or material that is to be included in or to 4
accompany the notice; and 5
(b) the amount of the contributions, their frequency and the 6
way in which they are to be made. 7
413 Application of part to incorporated legal practices 8
(1) A regulation may provide that stated provisions of this part, 9
and other provisions of this Act relating to the fidelity fund, 10
do not apply to incorporated legal practices or apply with 11
stated changes. 12
(2) For the application to an incorporated legal practice of the 13
provisions of this part and other provisions of this Act relating 14
to the fidelity fund, a reference in those provisions to a default 15
of a law practice extends to a default of an incorporated legal 16
practice, but only if it happens in connection with the 17
provision of legal services. 18
(3) Nothing in this section affects any obligation of an Australian 19
legal practitioner who is an officer or employee of an 20
incorporated legal practice to comply with the provisions of 21
this Act relating to the fidelity fund. 22
(4) An incorporated legal practice is required to make payments 23
to or on account of the fidelity fund under this Act as if it were 24
an Australian lawyer applying for or holding a local practising 25
certificate from the law society. 26
(5) The incorporated legal practice must not engage in legal 27
practice in this jurisdiction if any payment is not made by the 28
due date and while the practice remains in default of 29
subsection (4). 30
(6) The law society may suspend the local practising certificate of 31
a legal practitioner director of the practice if any payment is 32
not made by the due date. 33
(7) The amounts payable to the fidelity fund by an incorporated 34
legal practice may be decided by reference to the total number 35
s 414 301 s 415
Legal Profession Bill 2007
of Australian legal practitioners employed by the practice and 1
other relevant matters. 2
414 Application of part to multi-disciplinary partnerships 3
(1) A regulation may provide that stated provisions of this part, 4
and other provisions of this Act relating to the fidelity fund, 5
do not apply to multi-disciplinary partnerships or apply with 6
stated changes. 7
(2) For the application to a multi-disciplinary partnership of the 8
provisions of this part and other provisions of this Act relating 9
to the fidelity fund, a reference in those provisions to a default 10
of a law practice extends to a default of a multi-disciplinary 11
partnership, or a partner or employee of a multi-disciplinary 12
partnership, whether or not any person involved is an 13
Australian legal practitioner, but only if it happens in 14
connection with the provision of legal services. 15
(3) Nothing in this section affects any obligation of an Australian 16
legal practitioner who is a partner or employee of a 17
multi-disciplinary partnership to comply with the provisions 18
of this Act relating to the fidelity fund. 19
(4) The amounts payable to the fidelity fund by the legal 20
practitioner partners of a multi-disciplinary partnership may 21
be decided by reference to the total number of Australian legal 22
practitioners employed by the partnership and other relevant 23
matters. 24
415 Application of part to Australian lawyers whose 25
practising certificates have lapsed 26
(1) This section applies if an Australian lawyer is not an 27
Australian legal practitioner because his or her Australian 28
practising certificate has lapsed and the lawyer was a sole 29
practitioner immediately before the certificate lapsed, but 30
does not apply where-- 31
(a) the certificate has been suspended or cancelled under 32
this Act or a corresponding law; or 33
(b) the lawyer's application for the grant or renewal of an 34
Australian practising certificate has been refused under 35
s 416 302 s 416
Legal Profession Bill 2007
this Act or a corresponding law and the lawyer would be 1
an Australian legal practitioner had it been granted. 2
(2) For other provisions of this part, the practising certificate is 3
taken not to have lapsed, and accordingly the lawyer is taken 4
to continue to be an Australian legal practitioner. 5
(3) Subsection (2) ceases to apply whenever the first of the 6
following happens-- 7
(a) a manager or receiver is appointed under this Act or a 8
corresponding law for the law practice; 9
(b) the end of 6 months after the practising certificate 10
actually lapses; 11
(c) the lawyer's application for the grant or renewal of an 12
Australian practising certificate is refused under this Act 13
or a corresponding law. 14
Chapter 4 Complaints and discipline 15
Part 4.1 Preliminary 16
416 Main purposes of ch 4 17
The main purposes of this chapter are as follows-- 18
(a) to provide for the discipline of the legal profession; 19
(b) to promote and enforce the professional standards, 20
competence and honesty of the legal profession; 21
(c) to provide a means of redress for complaints about 22
lawyers; 23
(d) to otherwise protect members of the public from 24
unlawful operators. 25
s 417 303 s 419
Legal Profession Bill 2007
417 Application of chapter to lawyers, former lawyers and 1
former practitioners 2
(1) This chapter applies to Australian lawyers and former 3
Australian lawyers in relation to conduct happening while 4
they were Australian lawyers (but not Australian legal 5
practitioners) in the same way as it applies to Australian legal 6
practitioners and former Australian legal practitioners, and so 7
applies with any necessary changes. 8
(2) This chapter applies to former Australian legal practitioners in 9
relation to conduct happening while they were Australian 10
legal practitioners in the same way as it applies to persons 11
who are Australian legal practitioners, and so applies with any 12
necessary changes. 13
(3) In this section-- 14
former Australian legal practitioner includes a person who 15
was a solicitor or barrister in this jurisdiction before 1 July 16
2004. 17
Part 4.2 Key concepts 18
418 Meaning of unsatisfactory professional conduct 19
Unsatisfactory professional conduct includes conduct of an 20
Australian legal practitioner happening in connection with the 21
practice of law that falls short of the standard of competence 22
and diligence that a member of the public is entitled to expect 23
of a reasonably competent Australian legal practitioner. 24
419 Meaning of professional misconduct 25
(1) Professional misconduct includes-- 26
(a) unsatisfactory professional conduct of an Australian 27
legal practitioner, if the conduct involves a substantial or 28
consistent failure to reach or keep a reasonable standard 29
of competence and diligence; and 30
s 420 304 s 420
Legal Profession Bill 2007
(b) conduct of an Australian legal practitioner, whether 1
happening in connection with the practice of law or 2
happening otherwise than in connection with the 3
practice of law that would, if established, justify a 4
finding that the practitioner is not a fit and proper person 5
to engage in legal practice. 6
(2) For finding that an Australian legal practitioner is not a fit and 7
proper person to engage in legal practice as mentioned in 8
subsection (1), regard may be had to the suitability matters 9
that would be considered if the practitioner were an applicant 10
for admission to the legal profession under this Act or for the 11
grant or renewal of a local practising certificate. 12
420 Conduct capable of constituting unsatisfactory 13
professional conduct or professional misconduct 14
The following conduct is capable of constituting 15
unsatisfactory professional conduct or professional 16
misconduct-- 17
(a) conduct consisting of a contravention of a relevant law, 18
whether the conduct happened before or after the 19
commencement of this section; 20
Note-- 21
Under the Acts Interpretation Act 1954, section 7, and the 22
Statutory Instruments Act 1992, section 7, a contravention in 23
relation to this Act would include a contravention of a regulation 24
or legal profession rules and a contravention in relation to a 25
previous Act would include a contravention of a legal profession 26
rule under the Legal Profession Act 2004. 27
(b) charging of excessive legal costs in connection with the 28
practice of law; 29
(c) conduct for which there is a conviction for-- 30
(i) a serious offence; or 31
(ii) a tax offence; or 32
(iii) an offence involving dishonesty; 33
(d) conduct of an Australian legal practitioner as or in 34
becoming an insolvent under administration; 35
s 421 305 s 421
Legal Profession Bill 2007
(e) conduct of an Australian legal practitioner in becoming 1
disqualified from managing or being involved in the 2
management of any corporation under the Corporations 3
Act; 4
(f) conduct of an Australian legal practitioner in failing to 5
comply with an order of a disciplinary body made under 6
this Act or an order of a corresponding disciplinary 7
body made under a corresponding law, including a 8
failure to pay wholly or partly a fine imposed under this 9
Act or a corresponding law; 10
(g) conduct of an Australian legal practitioner in failing to 11
comply with a compensation order made under this Act 12
or a corresponding law. 13
(2) Also, conduct that happened before the commencement of 14
this subsection that, at the time it happened, consisted of a 15
contravention of a relevant law or a corresponding law is 16
capable of constituting unsatisfactory professional conduct or 17
professional misconduct. 18
(3) This section does not limit section 418 or 419. 19
421 Meaning of respondent 20
A respondent is any of the following-- 21
(a) if a complaint is made about an Australian legal 22
practitioner to whom this chapter applies--the 23
practitioner; 24
(b) if a complaint is made about a law practice employee in 25
relation to conduct to which this chapter applies--the 26
law practice concerned and the law practice employee; 27
(c) if a complaint is made about an unlawful operator--the 28
unlawful operator; 29
(d) otherwise--a person to whom this chapter applies and 30
about whom the commissioner, on his or her own 31
initiative, starts an investigation under section 435.64 32
64 Section 435 (Referral by commissioner to law society or bar association)
s 422 306 s 423
Legal Profession Bill 2007
Part 4.3 Application of this chapter 1
422 Practitioners to whom this chapter applies 2
This chapter applies to an Australian legal practitioner for 3
conduct to which this chapter applies, whether or not-- 4
(a) the practitioner is a local lawyer; or 5
(b) the practitioner holds a local practising certificate; or 6
(c) the practitioner holds an interstate practising certificate; 7
or 8
(d) the practitioner resides or has an office in this 9
jurisdiction; or 10
(e) if a complaint is made about the practitioner--the 11
complainant resides, works or has an office in this 12
jurisdiction. 13
423 Conduct to which this chapter applies--generally 14
(1) Subject to subsection (3), this chapter applies to conduct of an 15
Australian legal practitioner happening in this jurisdiction 16
whether before or after the commencement of this section. 17
(2) Also, this chapter applies to an Australian legal practitioner's 18
conduct happening outside this jurisdiction, whether or not 19
the conduct was engaged in before or after the 20
commencement of this section, but only-- 21
(a) if the conduct is part of a course of conduct that 22
happened partly in this jurisdiction and partly in another 23
jurisdiction, and either-- 24
(i) the corresponding authority of each other 25
jurisdiction in which the conduct happened 26
consents to it being dealt with under this Act; or 27
(ii) the practitioner and, if a complaint is made by a 28
person about the practitioner, the complainant 29
consent to it being dealt with under this Act; or 30
(b) if the conduct happened in Australia but entirely outside 31
this jurisdiction and the practitioner is a local lawyer or 32
a local legal practitioner, and either-- 33
s 424 307 s 424
Legal Profession Bill 2007
(i) the corresponding authority of each jurisdiction in 1
which the conduct happened consents to it being 2
dealt with under this Act; or 3
(ii) the practitioner and, if a complaint is made by a 4
person about the practitioner, the complainant 5
consent to it being dealt with under this Act; or 6
(c) if the conduct happened entirely or partly outside 7
Australia and the practitioner is a local lawyer or a local 8
legal practitioner. 9
(3) This chapter does not apply to conduct happening in this 10
jurisdiction if-- 11
(a) the commissioner consents to the conduct being dealt 12
with under a corresponding law; or 13
(b) the Australian legal practitioner and, if a complaint is 14
made by a person about the practitioner, the complainant 15
consent to the conduct being dealt with under a 16
corresponding law. 17
(4) Subsection (3) does not apply if the conduct is not capable of 18
being dealt with under a corresponding law. 19
(5) The commissioner may give consent for subsection (3)(a), and 20
may do so conditionally or unconditionally. 21
Note-- 22
Conduct before the commencement of this provision, that contravened 23
the Personal Injuries Proceedings Act 2002, chapter 3, part 1, and had 24
not been dealt with, or finally dealt with, under that Act, may be dealt 25
with under this Act. See the Personal Injuries Proceedings Act 2002, 26
section 85 (Provision for advertising of personal injury services and 27
touting). 28
424 Conduct to which this chapter applies--insolvency, 29
serious offences and tax offences 30
(1) This chapter applies to the following conduct of a local legal 31
practitioner whether happening in Australia or elsewhere or 32
whether engaged in before or after the commencement of this 33
section-- 34
(a) conduct of the practitioner in relation to which there is a 35
conviction for-- 36
s 425 308 s 426
Legal Profession Bill 2007
(i) a serious offence; or 1
(ii) a tax offence; or 2
(iii) an offence involving dishonesty; 3
(b) conduct of the practitioner as or in becoming an 4
insolvent under administration; 5
(c) conduct of the practitioner in becoming disqualified 6
from managing or being involved in the management of 7
any corporation under the Corporations Act. 8
(2) This section has effect despite anything in section 423. 9
425 Chapter also applies to law practice employees 10
(1) This chapter applies to the conduct of a law practice employee 11
in relation to the relevant practice whether or not-- 12
(a) the conduct is part of a course of conduct that happened 13
partly in this jurisdiction and partly in another 14
jurisdiction; or 15
(b) the conduct was engaged in before or after the 16
commencement of this section. 17
(2) Also, this chapter applies to former law practice employees in 18
relation to conduct happening while they were law practice 19
employees in the same way as it applies to persons who are 20
law practice employees, and so applies with necessary 21
changes. 22
(3) In this section-- 23
former law practice employee includes a person who was a 24
law practice employee in this jurisdiction before the 25
commencement of this section but is not a law practice 26
employee on the commencement. 27
426 Chapter also extends to other persons in particular 28
circumstances 29
This chapter applies to the conduct of all persons, including 30
Australian legal practitioners and law practice employees, 31
s 427 309 s 429
Legal Profession Bill 2007
suspected of contravening the Personal Injuries Proceedings 1
Act 2002, chapter 3, part 1.65 2
427 Chapter also applies to unlawful operators 3
This chapter applies to the conduct of an unlawful operator, 4
constituting a contravention of section 24 or 25, whether or 5
not the conduct was engaged in before or after the 6
commencement of this section. 7
Part 4.4 Complaints about Australian 8
legal practitioners 9
428 Conduct about which complaint may be made 10
(1) A complaint may be made under this chapter about-- 11
(a) an Australian legal practitioner's conduct to which this 12
chapter applies; or 13
(b) the conduct of a law practice employee to which this 14
chapter applies; or 15
(c) the conduct of an unlawful operator in relation to 16
conduct that constitutes a contravention of section 24 or 17
25. 18
(2) A complaint may be made under this chapter about conduct 19
happening outside this jurisdiction, but the complaint must not 20
be dealt with under this chapter unless this chapter is or 21
becomes applicable to the conduct. 22
429 Making a complaint 23
(1) Subject to subsection (4), an entity may make a complaint in 24
the approved form to the commissioner about the conduct of 25
65 Personal Injuries Proceedings Act 2002, chapter 3 (Other matters), part 1
(Restriction on advertising of personal injury services and touting)
s 430 310 s 430
Legal Profession Bill 2007
an Australian legal practitioner, law practice employee or 1
unlawful operator, including, for example, an entity that-- 2
(a) is or was a client of the law practice; or 3
(b) is the relevant regulatory authority. 4
(2) However for a government legal officer, only the following 5
entities may make a complaint about the conduct of the officer 6
in relation to the government work engaged in by the officer-- 7
(a) an Australian legal practitioner; 8
(b) a relevant regulatory authority; 9
(c) the chief executive officer, however expressed, of the 10
department or agency in which the officer is a 11
government legal officer or, if the chief executive officer 12
may delegate that power, a delegate. 13
(3) The complaint must-- 14
(a) identify the complainant; and 15
(b) if possible, identify the person about whom the 16
complaint is made; and 17
(c) describe the alleged conduct the subject of the 18
complaint. 19
(4) The approved form for a complaint may only be approved by 20
the commissioner. 21
(5) The commissioner may accept a complaint made in writing 22
other than in the approved form. 23
430 Complaints made over 3 years after conduct concerned 24
(1) This section applies if a complaint is received by the 25
commissioner more than 3 years after the conduct happened 26
that is the subject of the complaint, including conduct that 27
happened before the commencement of this section. 28
(2) The commissioner may-- 29
(a) refer the complaint to mediation; or 30
(b) dismiss the complaint unless the commissioner decides 31
that-- 32
s 431 311 s 431
Legal Profession Bill 2007
(i) it is just and fair to deal with the complaint having 1
regard to the extent of, and reasons for, the delay; 2
or 3
(ii) the complaint involves conduct of the following 4
type and it is in the public interest to deal with the 5
complaint-- 6
(A) conduct of an Australian legal practitioner 7
that the commissioner considers may be 8
professional misconduct; 9
(B) conduct of a law practice employee that the 10
commissioner considers may be misconduct 11
of the employee in relation to the relevant 12
practice. 13
(3) If the commissioner dismisses the complaint, the 14
commissioner must give an information notice to the 15
complainant about the decision. 16
(4) For working out whether it is more than 3 years since conduct 17
that is the subject of the complaint happened, the 18
commissioner must calculate from the last day that the 19
conduct happened. 20
(5) This section does not limit the commissioner's power to 21
dismiss a complaint under section 424. 22
(6) In this section-- 23
complaint does not include a complaint about the conduct of 24
an unlawful operator. 25
431 Further information and verification 26
(1) The commissioner may, by written notice to a complainant, 27
require the complainant to do 1 or more of the following-- 28
(a) give further information about the complaint; 29
(b) verify the complaint, or any further information, by 30
statutory declaration; 31
s 432 312 s 432
Legal Profession Bill 2007
(c) sign an approved form that acknowledges the waiver of 1
legal professional privilege, or the benefit of a duty of 2
confidentiality, as mentioned in section 492.66 3
(2) The notice must state a date, that is reasonable, by which the 4
complainant must comply with the notice. 5
(3) The commissioner may extend the time for the complainant to 6
comply with subsection (1) on application by the complainant 7
whether before or after the date stated in the notice. 8
432 Summary dismissal of complaints 9
(1) The commissioner may dismiss a complaint for 1 or more of 10
the following reasons-- 11
(a) the commissioner has given the complainant a notice 12
under section 431 and, within the time stated in the 13
notice or under an extension under that section, the 14
complainant has not complied with the notice; 15
(b) the complaint does not disclose conduct that the 16
commissioner considers may be-- 17
(i) conduct to which this chapter applies; or 18
(ii) unsatisfactory professional conduct or professional 19
misconduct of an Australian legal practitioner or 20
misconduct of a law practice employee in relation 21
to the relevant practice; 22
(c) the commissioner considers the complaint is vexatious, 23
misconceived, frivolous or lacking in substance; 24
(d) the conduct complained about has been the subject of a 25
previous complaint that has been dismissed or dealt 26
with, and the commissioner considers that the complaint 27
discloses no reason to reconsider the matter; 28
(e) it is not in the public interest to deal with the complaint 29
having regard to the fact that the name of the Australian 30
legal practitioner to whom the complaint relates has 31
66 Section 492 (Waiver of legal professional privilege or benefit of duty of
confidentiality)
s 433 313 s 433
Legal Profession Bill 2007
already been removed from any Australian roll in which 1
he or she was enrolled. 2
(2) The commissioner may dismiss a complaint under this section 3
without completing an investigation if, having considered the 4
complaint, the commissioner forms the view that the 5
complaint requires no further investigation. 6
(3) If a complaint is dismissed for the reason mentioned in 7
subsection (1)(a), the dismissal does not prevent the 8
complainant from making a fresh complaint under section 9
429. 10
(4) In this section-- 11
complaint does not include a complaint about the conduct of 12
an unlawful operator. 13
previous complaint includes-- 14
(a) a complaint under the Queensland Law Society Act 1952 15
or the Legal Profession Act 2004, if the complaint was 16
made under that Act before the commencement of this 17
section; and 18
(b) a complaint made to the bar association if the complaint 19
was made before 1 July 2004. 20
433 Withdrawal of complaints 21
(1) The complainant may withdraw the complaint by notice to the 22
commissioner. 23
(2) If the notice about the withdrawal is oral, the commissioner 24
must do each of the following unless the complainant gives 25
the commissioner written confirmation of the withdrawal-- 26
(a) make a written record of the withdrawal; 27
(b) give the complainant a copy of the record, or send a 28
copy of it addressed to the complainant at the 29
complainant's address last known to the commissioner. 30
(3) However, the withdrawal of the complaint does not prevent 31
action being taken on a complaint by another person, or by the 32
commissioner on the commissioner's own initiative. 33
s 434 314 s 435
Legal Profession Bill 2007
(4) In this section-- 1
complaint does not include a complaint about the conduct of 2
an unlawful operator. 3
withdrawal, of a complaint, includes withdrawal of some only 4
or part only of the matters that form the subject of the 5
complaint. 6
434 Commissioner may delay dealing with complaint 7
(1) The commissioner may delay dealing with a complaint for 1 8
or more of the following reasons-- 9
(a) the complainant has asked for a delay and the 10
commissioner considers the request reasonable; 11
(b) for a complaint about an Australian legal 12
practitioner--the practitioner is under investigation in 13
this jurisdiction or another jurisdiction and, under this 14
Act or a corresponding law of that other jurisdiction, the 15
practitioner's name may be removed from the local roll 16
or interstate roll; 17
(c) the matter that is the subject of the complaint is being or 18
about to be dealt with in another way; 19
(d) the commissioner considers that it is in the public 20
interest to delay dealing with the complaint. 21
(2) Subsection (1) applies despite sections 18 and 450.67 22
435 Referral by commissioner to law society or bar 23
association 24
(1) This section applies if-- 25
(a) a complaint is received by the commissioner and is not 26
dismissed under section 430(2)(b) or 432 or withdrawn 27
under section 433;68 or 28
67 Sections 18 (Timing for doing things) and 450 (Duty to deal with complaints
efficiently and expeditiously)
68 Section 430 (Complaints made over 3 years after conduct concerned), 432
(Summary dismissal of complaints) or 433 (Withdrawal of complaints)
s 436 315 s 436
Legal Profession Bill 2007
(b) a complaint is withdrawn under section 433 but the 1
commissioner has continued to investigate the matter on 2
the commissioner's own initiative; or 3
(c) the commissioner believes that an investigation about a 4
matter (an investigation matter) should be started into 5
the conduct of-- 6
(i) an Australian legal practitioner, law practice 7
employee or unlawful operator; or 8
(ii) any person, including an Australian legal 9
practitioner, a law practice employee in relation to 10
a relevant practice or an unlawful operator, 11
suspected of contravening the Personal Injuries 12
Proceedings Act 2002, chapter 3, part 1.69 13
(2) The commissioner may refer the complaint or the 14
investigation matter to the relevant regulatory authority. 15
(3) The referral may state a date by which the regulatory authority 16
is to report to the commissioner about the complaint or 17
investigation matter and directions to the authority about the 18
way in which the authority is to conduct the investigation. 19
(4) The commissioner may extend the date for the report but may 20
require the authority to give the commissioner an interim 21
report. 22
(5) At any time while the regulatory authority is carrying out its 23
investigation, including after the commissioner is given an 24
interim report, the commissioner may give directions or 25
further directions about the way in which the authority is to 26
conduct the investigation. 27
436 Commissioner investigating a complaint or investigation 28
matter 29
(1) The commissioner must investigate a complaint or an 30
investigation matter if the commissioner is satisfied-- 31
69 Personal Injuries Proceedings Act 2002, chapter 3 (Other matters), part 1
(Restriction on advertising of personal injury services and touting)
s 437 316 s 437
Legal Profession Bill 2007
(a) it is inconsistent with the public interest for the relevant 1
regulatory authority to investigate the complaint or 2
investigation matter; or 3
(b) it is in the public interest for the commissioner to 4
investigate the complaint or investigation matter. 5
(2) Also, the commissioner must investigate a complaint or 6
investigation matter that is not mentioned in subsection (1) but 7
is not referred to a regulatory authority under section 435(2). 8
(3) If the commissioner considers it appropriate to start or 9
continue an investigation into a complaint or investigation 10
matter that was referred to a regulatory authority under 11
section 435(2), the commissioner may do so by giving a 12
written notice of the commissioner's decision to the authority. 13
(4) A regulatory authority given a notice under subsection (3) 14
must give to the commissioner all documents relating to the 15
investigation into the complaint or investigation matter. 16
437 Australian lawyer to be notified of complaint or 17
investigation matter 18
(1) The entity carrying out an investigation as mentioned in 19
section 435 or 436 must ensure that written notice of the 20
following is given to the respondent-- 21
(a) the making of the complaint or the investigation into an 22
investigation matter; 23
(b) the nature of the complaint or investigation matter; 24
(c) for a complaint, the identity of the complainant; 25
(d) action taken by the entity in relation to the complaint or 26
investigation matter before giving the notice. 27
(2) Also, the notice must advise the respondent that he or she may 28
make submissions to the entity by a stated date that is 29
reasonable. 30
(3) However, subsection (1) does not apply if the entity believes 31
giving the notice will or is likely to-- 32
(a) prejudice the investigation of the complaint or 33
investigation matter; or 34
s 437 317 s 437
Legal Profession Bill 2007
(b) prejudice an investigation by the police, or another 1
investigatory or law enforcement body, of a matter with 2
which the complaint or investigation matter is 3
concerned; or 4
(c) place the complainant or another person at risk of 5
intimidation or harassment; or 6
(d) prejudice pending court proceedings. 7
(4) If the entity has a belief mentioned in subsection (3), the 8
entity-- 9
(a) may postpone giving the respondent the written notice 10
mentioned in subsection (1) until the entity believes it is 11
appropriate to do so; or 12
(b) may give the respondent a written notice that states-- 13
(i) the general nature of the complaint or investigation 14
matter; and 15
(ii) if the entity believes the respondent has sufficient 16
information to make submissions about the 17
complaint or investigation matter--the 18
respondent's right to make submissions within a 19
stated period. 20
(5) Nothing in this section requires the entity to give written 21
notice to the respondent until the entity has had time to do the 22
following to its satisfaction-- 23
(a) consider the complaint or investigation matter; 24
(b) seek further information about the complaint from the 25
complainant or otherwise seek further information about 26
the investigation matter; 27
(c) otherwise undertake preliminary enquiries into the 28
complaint or investigation matter; 29
(d) properly prepare the notice. 30
s 438 318 s 439
Legal Profession Bill 2007
438 Submissions by respondent 1
(1) A respondent given a notice under section 453 may, by the 2
date stated in that notice, make written submissions to the 3
commissioner or the stated relevant regulatory authority about 4
the complaint or investigation matter. 5
(2) At the request of the respondent or the regulatory authority, 6
the commissioner may substitute a later date by which 7
submissions may be made. 8
(3) The commissioner or regulatory authority must consider the 9
submissions made before the stated date or any later date 10
before deciding whether to make a discipline application 11
relating to the complaint or investigation matter. 12
439 Role of law society or bar association 13
(1) If a complaint or investigation matter is referred to a 14
regulatory authority, it must investigate the complaint or 15
investigation matter and report to the commissioner about the 16
complaint or matter by the stated date or a later date stated in 17
an extension by the commissioner. 18
(2) For subsection (1), the regulatory authority may investigate a 19
complaint or investigation matter by an investigator 20
investigating the complaint or matter and presenting evidence 21
to the authority for its consideration and report. 22
(3) The report to the commissioner by the regulatory authority 23
must-- 24
(a) be in an approved form approved by the commissioner; 25
and 26
(b) include a recommendation about whether a proceeding 27
before a disciplinary body in relation to the complaint or 28
investigation matter should be started. 29
(4) Without limiting the matters to which the regulatory authority 30
may have regard when making a recommendation as 31
mentioned in subsection (3)(b), the authority may have regard 32
to the following-- 33
(a) the public interest in the complaint or investigation 34
matter being heard and decided by a disciplinary body; 35
s 440 319 s 440
Legal Profession Bill 2007
(b) the likelihood of a finding of-- 1
(i) unsatisfactory professional conduct or professional 2
misconduct against an Australian legal 3
practitioner; or 4
(ii) misconduct of a law practice employee in relation 5
to a relevant practice; 6
(c) any other action or proceeding that may have started or 7
finished in relation to the conduct the subject of the 8
complaint or investigation matter or to the same 9
practitioner or law practice employee. 10
(5) If the regulatory authority recommends making a discipline 11
application, the report must also include a draft of the 12
application and the evidence to support the application. 13
Part 4.5 Mediation for complaints 14
involving consumer dispute 15
440 Definition for pt 4.5 16
In this part-- 17
consumer dispute means a dispute between a person and a 18
law practice about conduct of-- 19
(a) an Australian legal practitioner to the extent the 20
commissioner considers that the dispute does not 21
involve an issue of unsatisfactory professional conduct 22
or professional misconduct; or 23
(b) a law practice employee of a relevant practice to the 24
extent the commissioner considers that the dispute does 25
not involve an issue of misconduct in relation to the 26
relevant practice. 27
s 441 320 s 442
Legal Profession Bill 2007
441 Mediation of complaint involving consumer dispute 1
solely 2
(1) This section applies to a complaint that involves a consumer 3
dispute. 4
(2) The commissioner may-- 5
(a) suggest to the complainant and the respondent that they 6
enter into a process of mediation; and 7
(b) refer the matter to the relevant regulatory authority to 8
see if the authority may help in the mediation or 9
otherwise in the resolution of the complaint. 10
(3) The commissioner is then not required to take further action 11
on the complaint. 12
442 Mediation of hybrid complaint 13
(1) This section applies to a complaint that involves both of the 14
following-- 15
(a) a consumer dispute; 16
(b) an issue of unsatisfactory professional conduct or 17
professional misconduct by an Australian legal 18
practitioner or of misconduct by a law practice 19
employee in relation to the relevant practice. 20
(2) The commissioner may-- 21
(a) suggest to the complainant and the respondent that they 22
enter into a process of mediation; and 23
(b) refer the matter to the relevant regulatory authority to 24
see if the authority may help in the mediation or 25
otherwise in the resolution of the complaint. 26
(3) The complaint must continue to be dealt with under this 27
chapter after or during the mediation or attempt at mediation. 28
s 443 321 s 443
Legal Profession Bill 2007
Part 4.6 Investigations 1
443 Powers for investigations 2
(1) The entity carrying out an investigation as mentioned in 3
section 435 or 43670 may, for the investigation-- 4
(a) require an Australian legal practitioner who is the 5
subject of the investigation-- 6
(i) to give the entity, in writing or personally, within a 7
stated reasonable time a full explanation of the 8
matter being investigated; or 9
(ii) to appear before the entity at a stated reasonable 10
time and place; or 11
(iii) to produce to the entity within a stated reasonable 12
time any document in the practitioner's custody, 13
possession or control that the practitioner is 14
entitled at law to produce; or 15
(b) engage a person, whom the entity considers is qualified 16
because the person has the necessary expertise or 17
experience, to report on the reasonableness of an 18
Australian legal practitioner's bill of costs. 19
(2) Subject to subsection (6), the Australian legal practitioner 20
must comply with a requirement under subsection (1)(a). 21
Maximum penalty--50 penalty units. 22
(3) If the practitioner fails to comply with the requirement, the 23
entity may give the practitioner written notice that, if the 24
failure continues for a further 14 days after the notice is given, 25
the practitioner may be dealt with for professional 26
misconduct. 27
(4) If notice under subsection (3) is given and the failure 28
continues for the 14 day period-- 29
(a) the Australian legal practitioner is taken to have 30
committed professional misconduct, unless the 31
70 Section 435 (Referral by commissioner to law society or bar association) or 436
(Commissioner investigating a complaint or investigation matter)
s 444 322 s 444
Legal Profession Bill 2007
practitioner has a reasonable excuse for not complying 1
with the requirement within the period; and 2
(b) the commissioner may apply to the tribunal for an order 3
in relation to the charge that the practitioner has 4
committed professional misconduct as stated in 5
paragraph (a) as if the application were an application in 6
relation to a complaint against the practitioner. 7
(5) In a hearing before the tribunal about a charge of professional 8
misconduct, a copy of the notice mentioned in subsection (3) 9
and any enclosures with the notice are evidence of the matters 10
in the notice and the enclosures. 11
(6) An Australian legal practitioner may refuse to give the entity 12
an explanation of a matter being investigated if-- 13
(a) the practitioner satisfies the entity that to give the 14
explanation would contravene, or invalidate, a policy for 15
professional indemnity insurance held by the 16
practitioner; or 17
(b) the explanation would tend to incriminate the 18
practitioner. 19
(7) A regulation may provide for how part 4.9 applies to an 20
application to the tribunal for an order in relation to a charge 21
that a legal practitioner has committed professional 22
misconduct as stated in subsection (4)(a) and may be dealt 23
with under that part as an application in relation to a 24
complaint against the practitioner. 25
444 Referral of costs for assessment 26
For the purpose of investigating a complaint, the entity 27
carrying out an investigation as mentioned in section 435 or 28
436 may refer a matter to a person, whom the entity considers 29
is qualified because the person has the necessary expertise or 30
experience, to assess costs charged or claimed by a law 31
practice. 32
s 445 323 s 447
Legal Profession Bill 2007
445 Regulation may provide for covering cost of assessment 1
under s 443 or 444 2
A regulation may provide for the way in which the cost of an 3
assessment under section 443 or 444 is to be met, including 4
requiring an amount to be paid before the assessment or 5
recovering the amount of the assessment as a debt. 6
446 Powers of commissioner relating to complaint or 7
investigation matter relating to unlawful operator 8
(1) This section applies after a complaint or investigation matter 9
about an unlawful operator has been investigated. 10
(2) As the commissioner considers it appropriate, the 11
commissioner may-- 12
(a) start proceedings to prosecute the unlawful operator 13
under this Act; or 14
(b) give to the commissioner of police the results of the 15
investigation; or 16
(c) refer the complaint or investigation matter to the law 17
society for further investigation; or 18
(d) decide to no longer deal with the matter the subject of 19
the complaint or investigation matter. 20
(3) Subsection (2)(a) does not limit the Acts Interpretation Act 21
1954, section 42.71 22
(4) For subsection (2)(b), the commissioner may enter into 23
arrangements with the commissioner of police. 24
Part 4.7 Decision of commissioner 25
447 Decision of commissioner to start proceeding under ch 4 26
As the commissioner considers appropriate in relation to a 27
complaint or investigation matter that has been or continues to 28
71 Acts Interpretation Act 1954, section 42 (Any person may prosecute etc.)
s 448 324 s 450
Legal Profession Bill 2007
be investigated, other than a complaint or investigation matter 1
about the conduct of an unlawful operator, the commissioner 2
may start a proceeding under this chapter before a disciplinary 3
body. 4
448 Dismissal of complaint 5
(1) The commissioner may dismiss the complaint or investigation 6
matter if satisfied that-- 7
(a) there is no reasonable likelihood of a finding by a 8
disciplinary body of-- 9
(i) for an Australian legal practitioner--either 10
unsatisfactory professional conduct or professional 11
misconduct; or 12
(ii) for a law practice employee--misconduct in 13
relation to the relevant practice; or 14
(b) it is in the public interest to do so. 15
(2) The commissioner must give the respondent and any 16
complainant written notice about the commissioner's decision 17
to dismiss the complaint or investigation matter. 18
449 Record of decision 19
The commissioner must cause a record of his or her decision 20
about a complaint or an investigation matter, together with 21
reasons for the decision, to be kept for each complaint or 22
investigation matter dealt with under this part. 23
Part 4.8 General procedural matters 24
450 Duty to deal with complaints efficiently and expeditiously 25
The commissioner must, under this Act, deal with complaints 26
as efficiently and expeditiously as is practicable.72 27
72 See section 434 (Commissioner may delay dealing with complaint).
s 451 325 s 452
Legal Profession Bill 2007
451 Duty to inform complainant about action taken for 1
complaint 2
(1) The commissioner must keep a complainant informed about 3
the way the complaint is dealt with. 4
(2) Without limiting subsection (1), the commissioner must give 5
the complainant-- 6
(a) notice of the receipt of the complaint by the 7
commissioner; and 8
(b) a copy of any discipline application made because of the 9
complaint; and 10
(c) written notice of the date set down for starting the 11
hearing for the discipline application; and 12
(d) written notice of a decision of a disciplinary body 13
relating to the complaint. 14
(3) This section is subject to section 650.73 15
Part 4.9 Proceedings in disciplinary 16
body 17
452 Starting proceeding before a disciplinary body 18
(1) The commissioner may apply-- 19
(a) to the tribunal for an order against an Australian legal 20
practitioner in relation to a complaint against the legal 21
practitioner or an investigation matter; or 22
(b) to the committee for an order-- 23
(i) against an Australian legal practitioner in relation 24
to a complaint against the legal practitioner or an 25
investigation matter; or 26
73 Section 650 (Prohibited publication about hearing of a disciplinary application)
s 453 326 s 455
Legal Profession Bill 2007
(ii) against a law practice employee in relation to a 1
complaint against the employee or an investigation 2
matter involving the employee. 3
(2) An application under subsection (1) is a discipline 4
application. 5
453 Hearings 6
The disciplinary body must hear and decide each allegation 7
stated in the discipline application. 8
454 Joinder 9
A disciplinary body may, subject to its rules, order the joinder 10
of more than 1 discipline application involving the same 11
Australian legal practitioner or law practice employee or 12
different Australian legal practitioners or law practice 13
employees. 14
455 Variation of discipline application 15
(1) The disciplinary body may, on the commissioner's 16
application, vary a discipline application by omitting 17
allegations or including additional allegations, if the body is 18
satisfied that it is reasonable to do so having regard to all the 19
circumstances. 20
(2) Without limiting subsection (1), when considering whether or 21
not it is reasonable to vary a discipline application, the 22
disciplinary body must have regard to whether varying the 23
application will affect the fairness of the proceeding. 24
(3) The inclusion of an additional allegation is not precluded on 25
any or all of the following grounds-- 26
(a) the additional allegation has not been the subject of a 27
complaint; 28
(b) the additional allegation has not been the subject of an 29
investigation; 30
(c) the alleged conduct happened more than 3 years ago, 31
including conduct that happened before the 32
commencement of section 430. 33
s 456 327 s 456
Legal Profession Bill 2007
456 Decisions of tribunal about an Australian legal 1
practitioner 2
(1) If, after the tribunal has completed a hearing of a discipline 3
application in relation to a complaint or an investigation 4
matter against an Australian legal practitioner, the tribunal is 5
satisfied that the practitioner is guilty of unsatisfactory 6
professional conduct or professional misconduct, the tribunal 7
may make any order as it thinks fit, including any 1 or more of 8
the orders stated in this section. 9
(2) The tribunal may, under this subsection, make 1 or more of 10
the following in a way it considers appropriate-- 11
(a) an order recommending that the name of the Australian 12
legal practitioner be removed from the local roll; 13
(b) an order that the practitioner's local practising certificate 14
be suspended for a stated period or cancelled; 15
(c) an order that a local practising certificate not be granted 16
to the practitioner before the end of a stated period; 17
(d) an order that-- 18
(i) imposes stated conditions on the practitioner's 19
practising certificate granted or to be issued under 20
this Act; and 21
(ii) imposes the conditions for a stated period; and 22
(iii) specifies the time, if any, after which the 23
practitioner may apply to the tribunal for the 24
conditions to be amended or removed; 25
(e) an order publicly reprimanding the practitioner or, if 26
there are special circumstances, privately reprimanding 27
the practitioner; 28
(f) an order that no law practice in this jurisdiction may, for 29
a period stated in the order of not more than 5 years-- 30
(i) employ or continue to employ the practitioner in a 31
law practice in this jurisdiction; or 32
(ii) employ or continue to employ the practitioner in 33
this jurisdiction unless the conditions of 34
employment are subject to conditions stated in the 35
order. 36
s 456 328 s 456
Legal Profession Bill 2007
(3) The tribunal may, under this subsection, make 1 or more of 1
the following-- 2
(a) an order recommending that the name of the Australian 3
legal practitioner be removed under a corresponding law 4
from an interstate roll; 5
(b) an order recommending that the practitioner's interstate 6
practising certificate be suspended for a stated period or 7
cancelled under a corresponding law; 8
(c) an order recommending that an interstate practising 9
certificate not be, under a corresponding law, granted to 10
the practitioner until the end of a stated period; 11
(d) an order recommending-- 12
(i) that stated conditions be imposed on the 13
practitioner's interstate practising certificate; and 14
(ii) that the conditions be imposed for a stated period; 15
and 16
(iii) a stated time, if any, after which the practitioner 17
may apply to the tribunal for the conditions to be 18
amended or removed. 19
(4) The tribunal may, under this subsection, make 1 or more of 20
the following-- 21
(a) an order that the Australian legal practitioner pay a 22
penalty of a stated amount, not more than $100000; 23
(b) a compensation order; 24
(c) an order that the practitioner undertake and complete a 25
stated course of further legal education; 26
(d) an order that, for a stated period, the practitioner engage 27
in legal practice under supervision as stated in the order; 28
(e) an order that the practitioner do or refrain from doing 29
something in connection with the practitioner engaging 30
in legal practice; 31
(f) an order that the practitioner stop accepting instructions 32
as a public notary in relation to notarial services; 33
s 457 329 s 457
Legal Profession Bill 2007
(g) an order that engaging in legal practice by the 1
practitioner is to be managed for a stated period in a 2
stated way or subject to stated conditions; 3
(h) an order that engaging in legal practice by the 4
practitioner is to be subject to periodic inspection by a 5
person nominated by the relevant regulatory authority 6
for a stated period; 7
(i) an order that the practitioner seek advice from a stated 8
person in relation to the practitioner's management of 9
engaging in legal practice; 10
(j) an order that the practitioner must not apply for a local 11
practising certificate for a stated period. 12
(5) To remove any doubt, it is declared that the tribunal may make 13
any number of orders mentioned in any or all of subsections 14
(2), (3) and (4). 15
(6) Also, the tribunal may make ancillary orders, including an 16
order for payment by the Australian legal practitioner of 17
expenses associated with orders under subsection (4), as 18
assessed in or under the order or as agreed. 19
(7) The tribunal may find a person guilty of unsatisfactory 20
professional conduct even though the discipline application 21
alleged professional misconduct. 22
457 Orders to be filed in Supreme Court and information 23
notices to be given to parties etc. 24
(1) This section applies to the Brisbane registrar after the tribunal 25
makes-- 26
(a) an order under section 456 or 462 or part 4.1074 in 27
relation to a discipline application; or 28
(b) an order under section 46975 in relation to a discipline 29
application that the tribunal dealt with on an appeal from 30
the committee. 31
74 Section 456 (Decisions of tribunal about an Australian legal practitioner) or 462
(Costs) or part 4.10 (Compensation orders)
75 Section 469 (Appeal to tribunal against committee's decision)
s 458 330 s 458
Legal Profession Bill 2007
(2) The Brisbane registrar must-- 1
(a) file the order in a Supreme Court registry; and 2
(b) give the parties in relation to the discipline application a 3
copy of the order and an information notice about the 4
final decision about the discipline application; and 5
(c) give the Minister a copy of the order. 6
(3) On being filed, the order is an order of the Supreme Court and 7
may be enforced accordingly. 8
(4) Subsection (3) is subject to section 463.76 9
458 Decisions of committee about discipline application 10
(1) This section applies if, after a committee has completed a 11
hearing of a discipline application in relation to a complaint or 12
an investigation matter against an Australian legal practitioner 13
or law practice employee, the committee is satisfied-- 14
(a) for the practitioner--that the practitioner is guilty of 15
unsatisfactory professional conduct; or 16
(b) for the employee--that the employee is guilty of 17
misconduct in relation to the relevant practice. 18
(2) The committee may make 1 or more of the following in 19
relation to an Australian legal practitioner-- 20
(a) an order publicly reprimanding the practitioner or, if 21
there are special circumstances, privately reprimanding 22
the practitioner; 23
(b) an order that the practitioner pay a penalty of a stated 24
amount, not more than $10000; 25
(c) a compensation order; 26
(d) an order that the practitioner do or refrain from doing 27
something in connection with the practitioner engaging 28
in legal practice; 29
76 Section 463 (Other remedies not affected)
s 459 331 s 459
Legal Profession Bill 2007
(e) an order that engaging in legal practice by the 1
practitioner is to be managed for a stated period in a 2
stated way or subject to stated conditions; 3
(f) an order that engaging in legal practice by the 4
practitioner is to be subject to periodic inspection by a 5
person nominated by the relevant regulatory authority 6
for a stated period; 7
(g) an order that the practitioner seek advice from a person 8
nominated by the relevant regulatory authority in 9
relation to the practitioner's management of engaging in 10
legal practice. 11
(3) Also, the committee may make ancillary orders, including an 12
order for payment by the Australian legal practitioner of 13
expenses associated with orders under subsection (2), as 14
assessed in or under the order or as agreed. 15
(4) For a law practice employee, the committee may order that the 16
law practice concerned and all other law practices in this 17
jurisdiction must not, for a period stated in the order of not 18
more than 5 years-- 19
(a) continue to employ or employ the employee in a law 20
practice in this jurisdiction; or 21
(b) employ or continue to employ the employee in this 22
jurisdiction unless the conditions of employment are 23
subject to conditions stated in the order. 24
(5) In this section-- 25
law practice employee includes a person who was a law 26
practice employee. 27
459 Orders to be filed in Supreme Court and information 28
notices to be given to parties etc. 29
(1) This section applies after the committee makes an order under 30
section 458 or 462 or part 4.10 in relation to a discipline 31
application. 32
(2) The commissioner must-- 33
(a) give the other party or parties in relation to the discipline 34
application a copy of the order and an information 35
s 460 332 s 461
Legal Profession Bill 2007
notice about the final decision about the discipline 1
application; and 2
(b) give the Minister a copy of the order. 3
(3) If there is no appeal from the decision within the 28 days 4
allowed for the appeal, the commissioner must file the order 5
in a Supreme Court registry. 6
(4) On being filed, the order is an order of the Supreme Court and 7
may be enforced accordingly. 8
(5) Subsection (4) is subject to section 463. 9
460 Interlocutory and interim orders 10
(1) A disciplinary body may make an interlocutory or interim 11
order as it considers appropriate before making its final 12
decision about a discipline application. 13
(2) Without limiting subsection (1), an order under section 456 or 14
474 may be made as an interlocutory or interim order. 15
461 Compliance with decisions and orders 16
(1) To the extent an entity has a function or power under this Act 17
relevant to an order of a disciplinary body, the entity must-- 18
(a) give effect to an order made under section 456(2), 19
458(2) or 460; and 20
(b) enforce an order made under section 456(4) or (6), 21
458(2), (3) or (4) or 460 so far as the order relates to the 22
legal practice of, or other matters affecting, the 23
Australian legal practitioner concerned in this 24
jurisdiction. 25
(2) The commissioner must ensure that entities having functions 26
or powers under a corresponding law of another jurisdiction 27
are notified of the making and contents of-- 28
(a) an order of the tribunal made under section 456(3) or 29
460 in relation to that corresponding law; and 30
(b) an order of the body made under section 456(4) or (6), 31
458(2), (3) or (4) or 460 so far as the order relates to the 32
legal practice of, or other matters affecting, the 33
s 462 333 s 462
Legal Profession Bill 2007
Australian legal practitioner concerned in that other 1
jurisdiction. 2
(3) If the tribunal makes an order recommending that the name of 3
an Australian legal practitioner be removed from the local 4
roll, the Brisbane registrar must remove, or arrange with 5
another registrar for the removal of, the name from the local 6
roll. 7
462 Costs 8
(1) A disciplinary body must make an order requiring a person 9
whom it has found guilty to pay costs, including costs of the 10
commissioner and the complainant, unless the disciplinary 11
body is satisfied exceptional circumstances exist. 12
(2) A disciplinary body may make an order requiring a person 13
whom it has not found guilty to pay costs, including costs of 14
the commissioner and the complainant, if the disciplinary 15
body is satisfied that-- 16
(a) the sole or principal reason why the proceeding was 17
started in the disciplinary body was the person's failure 18
to cooperate with the commissioner or a relevant 19
regulatory authority; or 20
(b) there is some other reason warranting the making of an 21
order in the particular circumstances. 22
(3) Without limiting subsection (2), a disciplinary body that 23
makes an order under section 460 may make a further order 24
requiring an Australian legal practitioner, in relation to whom 25
the order under section 460 relates, to pay costs in relation to 26
the order. 27
(4) A disciplinary body may make an order requiring the 28
commissioner to pay costs, but may do so only if it is satisfied 29
that-- 30
(a) the Australian legal practitioner or law practice 31
employee is not guilty; and 32
(b) the body considers that special circumstances warrant 33
the making of the order. 34
(5) An order for costs-- 35
s 463 334 s 464
Legal Profession Bill 2007
(a) may be for a stated amount; or 1
(b) may be for an unstated amount but must state the basis 2
on which the amount must be decided. 3
(6) An order for costs may state the terms on which costs must be 4
paid. 5
(7) In this section-- 6
guilty means guilty of unsatisfactory professional conduct or 7
professional misconduct, or of misconduct in relation to a 8
relevant practice, as mentioned in section 456(1) or 458(1). 9
463 Other remedies not affected 10
This part does not affect any other remedy available to a 11
complainant. 12
Part 4.10 Compensation orders 13
464 Meaning of compensation order 14
A compensation order is 1 or more of the following-- 15
(a) an order that a law practice can not recover or must 16
repay the whole or a stated part of the amount that the 17
law practice charged a complainant for stated legal 18
services; 19
(b) an order discharging a lien possessed by a law practice 20
in relation to a stated document or class of documents; 21
(c) an order that a law practice carry out stated work for a 22
stated person without a fee or for a stated fee; 23
(d) an order that a law practice pay to a complainant an 24
amount by way of compensation for pecuniary loss 25
suffered because of conduct that has been found to be-- 26
(i) unsatisfactory professional conduct or professional 27
misconduct of an Australian legal practitioner 28
involved in the relevant practice; or 29
s 465 335 s 466
Legal Profession Bill 2007
(ii) misconduct of a law practice employee in relation 1
to the relevant practice. 2
465 Compensation order relating to pecuniary loss 3
(1) Unless the parties agree, a compensation order that is the type 4
of order mentioned in section 464(d) must not be made unless 5
the disciplinary body making the order is satisfied-- 6
(a) if there is a complainant in relation to the discipline 7
application--that the complainant has suffered 8
pecuniary loss because of the conduct concerned; and 9
(b) that it is in the interests of justice that an order of that 10
type be made. 11
(2) Also, a compensation order of the type mentioned in section 12
464(d) for a pecuniary loss for which the relevant complainant 13
has received or is entitled to receive either of the following 14
must not be made-- 15
(a) compensation under an order that has been made by a 16
court; 17
(b) compensation from the fidelity fund, or a fund of 18
another jurisdiction under a corresponding law of that 19
jurisdiction, if a claim for payment from the fidelity 20
fund or other fund has been made or decided. 21
466 Effect of compensation order 22
(1) A compensation order preventing recovery of an amount of 23
the type mentioned in section 464(a) is effective even if a 24
proceeding to recover the amount, or any part of it, has been 25
started by or for the law practice. 26
(2) A compensation order requiring repayment of an amount of 27
the type mentioned in section 464(a) is effective even if a 28
court has ordered payment of the amount, or an amount of 29
which it is part, in a proceeding brought by or for the law 30
practice. 31
(3) A compensation order requiring payment of an amount of 32
more than $7500 by way of monetary compensation of the 33
type mentioned in section 464(d) must not be made unless the 34
complainant and the law practice both consent to the order. 35
s 467 336 s 469
Legal Profession Bill 2007
467 Other remedies not affected 1
The recovery of an amount awarded by a compensation order 2
does not affect any other remedy available to a complainant, 3
but an amount so awarded must be taken into account in 4
another proceeding by or for the complainant in relation to the 5
same loss. 6
Part 4.10A Appeals from decisions of 7
disciplinary bodies 8
468 Appeal may be made to Court of Appeal from tribunal's 9
decision 10
(1) The following may appeal a decision of the tribunal to the 11
Court of Appeal-- 12
(a) a party dissatisfied with the tribunal's decision; 13
(b) the Minister. 14
(2) The appeal is by way of a rehearing on the evidence given in 15
the matter before the tribunal. 16
(3) However, subsection (2) does not prevent the Court of Appeal 17
from giving leave to introduce further evidence, whether 18
fresh, additional or substituted, if the court considers the 19
further evidence may be material to the appeal. 20
(4) The appeal must be made-- 21
(a) if the appeal is being made by the Minister--within 28 22
days after a copy of the tribunal's order is given to the 23
Minister; or 24
(b) otherwise--within 28 days after the tribunal's order is 25
made. 26
469 Appeal to tribunal against committee's decision 27
(1) A party dissatisfied with a final decision of the committee 28
about a discipline application may appeal to the tribunal 29
against the decision within 28 days after the day the 30
s 470 337 s 471
Legal Profession Bill 2007
information notice mentioned in section 459(2)77 is given to 1
the party. 2
(2) If a party appeals to the tribunal against the decision of the 3
committee, the appeal is to be by way of rehearing, and fresh 4
evidence or evidence in addition to or in substitution for the 5
evidence before the committee may be given on the appeal. 6
(3) On an appeal under this section, the tribunal may make an 7
order, including an order for costs, as it considers appropriate 8
to decide the discipline application. 9
470 Appeal to Court of Appeal in relation to a decision of 10
committee 11
(1) This section applies to a decision of the committee that, under 12
section 459(4), has become an order of the Supreme Court. 13
(2) A person may, with the leave of the Court of Appeal, appeal 14
against the order by appealing to that court. 15
(3) The appeal is by way of a rehearing on the evidence given in 16
the matter before the committee. 17
(4) However, subsection (3) does not prevent the Court of Appeal 18
from giving leave to introduce further evidence, whether 19
fresh, additional or substituted, if the court considers the 20
further evidence may be material to the appeal. 21
Part 4.11 Publicising disciplinary action 22
471 Definition for pt 4.11 23
In this part-- 24
disciplinary action means-- 25
(a) the making of an order by a court or the tribunal that 26
finds an Australian legal practitioner guilty of 27
77 Section 459 (Orders to be filed in Supreme Court and information notices to be
given to parties etc.)
s 472 338 s 472
Legal Profession Bill 2007
professional misconduct under this Act, a previous Act 1
or under a corresponding law; or 2
(b) any of the following actions under this Act or under a 3
corresponding law, following a finding by a court or the 4
tribunal of unsatisfactory professional conduct or 5
professional misconduct by an Australian legal 6
practitioner-- 7
(i) the removal of the practitioner's name from an 8
Australian roll; 9
(ii) the suspension or cancellation of an Australian 10
practising certificate of the practitioner; 11
(iii) the refusal to grant or renew an Australian 12
practising certificate to the practitioner; 13
(iv) the appointment of a receiver of all or any of the 14
practitioner's property or the appointment of a 15
manager for the practitioner's law practice; or 16
(c) the making of an order by the committee under section 17
458(4).78 18
472 Discipline register 19
(1) The commissioner must keep a register (the discipline 20
register) about the following-- 21
(a) disciplinary action taken under this Act against an 22
Australian legal practitioner or in relation to a law 23
practice employee; 24
(b) disciplinary action taken under a corresponding law 25
against an Australian legal practitioner who is or was 26
admitted to the legal profession under this Act or a 27
previous Act or practising in this jurisdiction, when the 28
conduct that is the subject of the disciplinary action 29
happened. 30
(2) The discipline register must include-- 31
78 Section 458 (Decisions of committee about discipline application)
s 473 339 s 473
Legal Profession Bill 2007
(a) the full name of the person against whom the 1
disciplinary action was taken and the law practice who 2
employs or employed the person; and 3
(b) the person's business address or former business 4
address; and 5
(c) for an Australian legal practitioner--the practitioner's 6
home jurisdiction; and 7
(d) particulars of the disciplinary action taken; and 8
(e) other particulars prescribed under a regulation. 9
(3) The discipline register may be kept in a form decided by the 10
commissioner, including forming part of other registers. 11
(4) The discipline register must be available for public inspection 12
on-- 13
(a) the internet site of the commissioner; or 14
(b) an internet site identified on the internet site of the 15
commissioner. 16
(5) Information recorded in the discipline register may be given to 17
members of the public in another way approved by the 18
commissioner. 19
(6) The commissioner may cause any error in or omission from 20
the discipline register to be corrected. 21
(7) The requirement to keep the discipline register applies only in 22
relation to disciplinary action taken after the commencement 23
of this section, but details relating to earlier disciplinary action 24
may be included in the register. 25
473 Other means of publicising disciplinary action 26
(1) The commissioner may publicise disciplinary action taken 27
against a person in any way the commissioner considers 28
appropriate. 29
(2) Nothing in this section affects the provisions of this part 30
relating to the discipline register. 31
s 474 340 s 475
Legal Profession Bill 2007
474 Quashing of disciplinary action 1
(1) If disciplinary action is quashed on appeal or review, any 2
reference to that disciplinary action must be removed from the 3
discipline register. 4
(2) If disciplinary action is quashed on appeal or review after the 5
action was publicised by the commissioner under section 473, 6
the result of the appeal or review must be publicised in the 7
same way by the commissioner. 8
475 Liability for publicising disciplinary action 9
(1) No liability is incurred by a protected person in relation to 10
anything done or omitted to be done in good faith for the 11
purpose of-- 12
(a) publicising disciplinary action taken against a person or 13
relating to a law practice; or 14
(b) performing the functions or exercising the powers of the 15
commissioner under this chapter; or 16
(c) keeping, publishing or enabling access to the discipline 17
register. 18
(2) Without limiting subsection (1), no liability, including liability 19
in defamation, is incurred by a protected person publishing in 20
good faith-- 21
(a) information about disciplinary action-- 22
(i) recorded in the discipline register; or 23
(ii) otherwise publicised by the commissioner under 24
this part; or 25
(b) matter containing that information, or matter purporting 26
to contain that information where the matter is incorrect; 27
or 28
(c) a fair report or summary of that information. 29
(3) In this section-- 30
protected person means-- 31
(a) the State; or 32
(b) the commissioner; or 33
s 476 341 s 477
Legal Profession Bill 2007
(c) a regulatory authority; or 1
(d) a person responsible for keeping a record about 2
disciplinary action, or information about disciplinary 3
action, under a corresponding law; or 4
(e) an internet service provider or internet content host; or 5
(f) a person acting at the direction of the State or any person 6
or body mentioned in paragraphs (b) to (d). 7
476 Disciplinary action taken because of infirmity, injury or 8
illness 9
(1) Disciplinary action taken against a person because of 10
infirmity, injury or mental or physical illness is not to be 11
recorded in the discipline register or otherwise publicised 12
under this part. 13
(2) Subsection (1) does not apply if the disciplinary action 14
involves-- 15
(a) the suspension or cancellation of the person's practising 16
certificate; or 17
(b) a refusal to grant or renew an Australian practising 18
certificate applied for by the person; or 19
(c) a regulation of the person's right to engage in legal 20
practice; 21
but in that case the reason for the disciplinary action, and 22
other information relating to the infirmity, injury or mental or 23
physical illness, must not be recorded in the register or 24
otherwise publicised under this part without the person's 25
consent. 26
477 General provisions about disclosure of information 27
(1) The provisions of this part are subject to any order made by 28
any of the following if the order regulates the disclosure of 29
information-- 30
(a) a disciplinary body in relation to disciplinary action 31
taken under this chapter; 32
s 478 342 s 478
Legal Profession Bill 2007
(b) a corresponding disciplinary body in relation to 1
disciplinary action taken under a corresponding law; 2
(c) a court or tribunal of this or another jurisdiction. 3
(2) However, despite the order mentioned in subsection (1), the 4
name and other identifying particulars of the person against 5
whom the disciplinary action was taken and the law practice 6
who employs or employed the person, and the kind of 7
disciplinary action taken-- 8
(a) must be recorded in the discipline register; and 9
(b) may be otherwise publicised under this part. 10
(3) Section 70579 is subject to this part. 11
Part 4.12 Inter-jurisdictional provisions 12
478 Protocols 13
(1) The commissioner may enter into arrangements (cross-border 14
protocols) with corresponding authorities about investigating 15
and dealing with conduct that appears to have happened in 16
more than 1 jurisdiction. 17
(2) In particular, a cross-border protocol may provide for-- 18
(a) principles to help in deciding where conduct happens, 19
either generally or in stated classes of cases; and 20
(b) giving and receiving consent for conduct happening in a 21
jurisdiction to be dealt with under a law of another 22
jurisdiction; and 23
(c) procedures to be adopted for requesting and conducting 24
the investigation of an aspect of complaints or 25
investigation matters under this part. 26
79 Section 705 (Confidentiality of personal information)
s 479 343 s 481
Legal Profession Bill 2007
479 Request to another jurisdiction to investigate complaint 1
or investigation matter 2
(1) The commissioner may request a corresponding authority to 3
arrange for the investigation of an aspect of a complaint or an 4
investigation matter that is being dealt with by the 5
commissioner and to give the commissioner a report on the 6
result of the investigation. 7
(2) A report on the result of the investigation received from-- 8
(a) the corresponding authority; or 9
(b) a person or body authorised by the corresponding 10
authority to conduct the investigation; 11
may be used and considered by the commissioner and a 12
disciplinary body in the course of dealing with a discipline 13
application under this chapter. 14
480 Request from another jurisdiction to investigate 15
complaint 16
(1) This section applies in relation to a request received by the 17
commissioner from a corresponding authority to arrange for 18
the investigation of an aspect of a complaint under a 19
corresponding law being dealt with under that law. 20
(2) The commissioner may conduct the investigation or authorise 21
another entity to conduct it. 22
(3) The provisions of this chapter relating to the investigation of a 23
complaint or investigation matter apply, with any necessary 24
changes, in relation to the investigation that is the subject of 25
the request. 26
(4) The commissioner must give a report on the result of the 27
investigation to the corresponding authority. 28
481 Sharing of information with corresponding authorities 29
(1) This section applies to each of the following entities-- 30
(a) the commissioner; 31
(b) the law society; 32
(c) the bar association. 33
s 482 344 s 483
Legal Profession Bill 2007
(2) Each entity may, either separately or jointly with another 1
entity or entities, enter into arrangements with a 2
corresponding authority for providing information to the 3
corresponding authority about-- 4
(a) complaints and investigations under this chapter; and 5
(b) any action taken in relation to complaints made or 6
investigations conducted under this chapter, including 7
decisions of a disciplinary body under this chapter. 8
(3) The arrangement must include the following-- 9
(a) the purposes for which the corresponding authority is 10
given the information; 11
(b) how the corresponding authority will protect the privacy 12
of the information. 13
482 Cooperation with other authorities 14
(1) This section applies when a prescribed entity is dealing with a 15
complaint or investigating an investigation matter. 16
(2) The prescribed entity may, either separately or jointly with 17
another prescribed entity or prescribed entities, consult and 18
cooperate with another person or body, whether in Australia 19
or a foreign county, who or that has or may have relevant 20
information or powers in relation to the person against whom 21
the complaint was made or the person under investigation. 22
(3) For subsection (2), the prescribed entity and the other person 23
or body may exchange information concerning the complaint 24
or investigation. 25
(4) In this section-- 26
prescribed entity means an entity to which section 481 27
applies. 28
483 Request for information relevant to a complaint or 29
investigation matter 30
(1) The commissioner may ask a person or body in Australia or 31
elsewhere that may have information relevant to a complaint 32
or investigation matter for information. 33
s 484 345 s 485
Legal Profession Bill 2007
(2) Before asking for the information, the commissioner must 1
decide the way in which the request is to be phrased having 2
regard to the respondent's right to privacy in relation to the 3
matter the subject of the complaint or investigation matter. 4
(3) For the purpose of asking for information, the commissioner 5
may give information to a foreign registration authority if the 6
commissioner considers it necessary to do so to establish the 7
matters relevant to the investigation of the complaint or 8
investigation matter. 9
484 Compliance with recommendations or orders made 10
under corresponding laws 11
(1) Entities having relevant functions or powers under this Act 12
must-- 13
(a) give effect to or enforce any recommendation or order of 14
a corresponding disciplinary body, or other 15
corresponding authority, made under a corresponding 16
law in relation to functions or powers exercisable under 17
this Act; and 18
(b) give effect to or enforce any recommendation or order of 19
a corresponding disciplinary body, or other 20
corresponding authority, made under a corresponding 21
law so far as the recommendation or order relates to the 22
practice of law by the Australian legal practitioner or 23
law practice concerned in this jurisdiction. 24
(2) If a corresponding disciplinary body makes a 25
recommendation or order that a person's name be removed 26
from the local roll of this jurisdiction, the Brisbane registrar 27
must remove, or arrange with another registrar for the removal 28
of, the name from the local roll. 29
(3) If a corresponding disciplinary body makes an order that a 30
local Australian legal practitioner pay a fine, a copy of the 31
order may be filed in the Supreme Court and the order may be 32
enforced as if it were an order of the court. 33
485 Other powers or functions not affected 34
Nothing in this part affects any functions or powers that a 35
person or body has apart from this part. 36
s 486 346 s 487
Legal Profession Bill 2007
Part 4.13 Miscellaneous 1
486 Information about complaints procedure 2
The commissioner must-- 3
(a) produce information about the making of complaints 4
and the procedure for dealing with complaints; and 5
(b) ensure that information is available to members of the 6
public on request; and 7
(c) give help to members of the public in making 8
complaints. 9
487 Protection from liability for notification of conduct or 10
making a complaint 11
(1) This section applies if a person makes a complaint or 12
otherwise gives information to the commissioner, the law 13
society or the bar association about conduct that is-- 14
(a) conduct of an Australian lawyer or a law practice 15
employee; or 16
(b) a possible contravention of section 24 or 25. 17
(2) The person is not liable, civilly (including in an action for 18
defamation), criminally or under an administrative process for 19
making the complaint, giving the notice or otherwise giving 20
information to the commissioner, the law society or the bar 21
association relating to the complaint or notice, including, for 22
example, giving further information under section 431. 23
(3) Also, merely because the person makes the complaint, gives 24
the notice or otherwise gives information as mentioned in 25
subsection (2), the person can not be held to have-- 26
(a) breached any code of professional etiquette or ethics; or 27
(b) departed from accepted standards of professional 28
conduct. 29
s 488 347 s 490
Legal Profession Bill 2007
488 Failure to comply with order of a disciplinary body 1
A failure by a person to comply with an order of a disciplinary 2
body under this Act, or an order of a corresponding 3
disciplinary body under a corresponding law, is capable of 4
being unsatisfactory professional conduct or professional 5
misconduct. 6
489 Performance criteria 7
(1) The commissioner must develop performance criteria relating 8
to the handling of complaints under this chapter. 9
(2) The commissioner must include the relevant criteria in the 10
commissioner's annual report under this Act, together with an 11
assessment of the commissioner's performance against the 12
criteria in the period to which the report relates. 13
490 Annual and other reports to the Minister 14
(1) By 31 October after the end of each financial year, the 15
commissioner must give to the Minister a report for the 16
immediately preceding financial year. 17
(2) The report must deal with the system established under this 18
Act or a previous Act for dealing with complaints. 19
(3) Also the Minister may, by written notice, ask the 20
commissioner to provide a report at any time for a period 21
stated in the Minister's request about the system or about an 22
aspect of the system stated in the notice. 23
(4) If the Minister makes a request under subsection (3), the 24
commissioner must comply with the request and give the 25
relevant report to the Minister by the date stated in the notice. 26
(5) The commissioner may include other matters the 27
commissioner considers appropriate in a report under this 28
section, including, for example, recommendations about the 29
system. 30
(6) The Minister must table in the Legislative Assembly a report 31
given to the Minister under subsection (1), within 14 days 32
after receiving the report. 33
s 491 348 s 492
Legal Profession Bill 2007
491 Confidentiality of client communications 1
(1) An Australian legal practitioner must comply with a 2
requirement under this chapter or a requirement under part 3
7.2,80 to answer a question or to produce information or a 4
document, despite any duty of confidentiality about a 5
communication between the legal practitioner and a client, but 6
only if the client is the complainant or consents to its 7
disclosure. 8
(2) A provision of an agreement with a client in settlement of a 9
matter that involves conduct that may be the subject of a 10
complaint under this chapter is not enforceable to prevent the 11
client disclosing, or consenting to the disclosure of, 12
information or a document for an investigation of the 13
complaint, whether or not the complaint has been withdrawn, 14
or an investigation matter. 15
(3) It is a reasonable excuse for the Australian legal practitioner 16
not to comply with a requirement mentioned in subsection (1) 17
if complying with the requirement might tend to incriminate 18
the practitioner. 19
(4) For this section, the commissioner may give an undertaking to 20
a person regarding non-disclosure of information or a 21
document given under subsection (3). 22
492 Waiver of legal professional privilege or benefit of duty of 23
confidentiality 24
(1) This section applies if a person signs a document waiving the 25
person's legal professional privilege, or the benefit of a duty 26
of confidentiality, about a matter (the waived matter) relating 27
to the subject of a complaint or an investigation matter. 28
(2) An Australian legal practitioner can not refuse to disclose to 29
the commissioner or relevant regulatory authority any 30
information about the waived matter on the grounds of legal 31
professional privilege or the duty of confidentiality. 32
80 Chapter 7 (Establishment of entities for this Act, and related matters), part 7.2
(Legal Practice Tribunal)
s 493 349 s 493
Legal Profession Bill 2007
(3) However, the Australian legal practitioner may refuse to 1
disclose the information on the grounds that it might tend to 2
incriminate the practitioner. 3
Chapter 5 External intervention 4
Part 5.1 Preliminary 5
493 Main purpose of ch 5 6
(1) The main purpose of this chapter is to ensure that an 7
appropriate range of options is available for intervention in the 8
business and professional affairs of law practices and 9
Australian-registered foreign lawyers for the purpose of 10
protecting the interests of-- 11
(a) the general public; and 12
(b) clients; and 13
(c) lawyers, including the owners and employees of law 14
practices, so far as their interests are not inconsistent 15
with the interests of the general public and clients. 16
(2) It is intended that interventions happen consistently with-- 17
(a) similar interventions in other jurisdictions, especially if 18
a law practice operates in this jurisdiction and 1 or more 19
other jurisdictions; and 20
(b) other provisions of this Act. 21
Note-- 22
This chapter-- 23
(a) applies to all law practices, regardless of whether they are 24
incorporated under the Corporations Act; and 25
(b) is intended to apply so that it, rather than the Corporations Act or 26
the Bankruptcy Act 1966 (Cwlth), applies in relation to the 27
winding-up of trust property and the carrying on of a law practice 28
by an external intervener. 29
s 494 350 s 495
Legal Profession Bill 2007
494 Definitions for ch 5 1
(1) In this chapter-- 2
external intervener means a supervisor, manager or receiver 3
under this chapter. 4
external intervention means the appointment of, and the 5
exercise of the functions and powers of, a supervisor, manager 6
or receiver under this chapter. 7
regulated property, of a law practice, means the following-- 8
(a) trust money or trust property received, receivable or held 9
by the law practice; 10
(b) interest, dividends or other income or anything else 11
derived from or acquired with money or property 12
mentioned in paragraph (a); 13
(c) documents or records of any description relating to 14
anything mentioned in paragraph (a) or (b); 15
(d) any computer hardware or software, or other devices, in 16
the custody or control of the law practice by which any 17
records mentioned in paragraph (c) may be produced or 18
reproduced in visible form. 19
(2) Other expressions used in this chapter have the same 20
meanings as in part 3.3.81 21
495 Application of ch 5 22
(1) This chapter does not apply to the holder of a current local 23
practising certificate granted or renewed by the bar 24
association. 25
(2) A regulation may provide whether or not, and if so to what 26
extent, this chapter applies to an interstate legal practitioner. 27
(3) Also this chapter applies, with any necessary changes, to an 28
Australian-registered foreign lawyer and a former 29
Australian-registered foreign lawyer in the same way as it 30
applies to a law practice. 31
81 Part 3.3 (Trust money and trust accounts)
s 496 351 s 497
Legal Profession Bill 2007
496 Application of chapter to other persons 1
(1) This chapter applies, with any necessary changes, to each of 2
the following in the same way as it applies to a law practice-- 3
(a) a former law practice or former Australian legal 4
practitioner; 5
(b) the executor (original or by representation) or 6
administrator for the time being of a deceased 7
Australian legal practitioner or of his or her estate; 8
(c) the administrator or receiver, or receiver and manager, 9
of the property of an incorporated legal practice; 10
(d) the liquidator of an incorporated legal practice that is 11
being or has been wound up. 12
(2) In this section-- 13
former Australian legal practitioner includes a person who 14
was a solicitor or barrister in this jurisdiction before 1 July 15
2004. 16
Part 5.2 Starting external interventions 17
497 Circumstances warranting external intervention 18
External intervention in relation to a law practice may take 19
place in any of the following circumstances-- 20
(a) if a legal practitioner associate involved in the practice 21
has died, ceases to be an Australian legal practitioner, 22
has become an insolvent under administration or is in 23
prison; 24
(b) if a firm--the partnership has been wound up or 25
dissolved; 26
(c) if an incorporated legal practice-- 27
(i) ceases to be an incorporated legal practice; or 28
(ii) is being or has been wound up; or 29
(iii) has been deregistered or dissolved; 30
s 497 352 s 497
Legal Profession Bill 2007
(d) if the law society believes that the law practice or an 1
associate of the law practice-- 2
(i) is not dealing adequately with trust money or trust 3
property or is not properly attending to the affairs 4
of the practice; or 5
(ii) has committed a serious irregularity, or a serious 6
irregularity has happened, in relation to trust 7
money or trust property or the affairs of the 8
practice; or 9
(iii) has failed properly to account in a timely way to 10
any person for trust money or trust property 11
received by the practice for that person; or 12
(iv) has failed properly to make a payment of trust 13
money, or a transfer of trust property, when 14
required to do so by a person entitled to that money 15
or property or entitled to give a direction for 16
payment or transfer; or 17
(v) is in breach of a regulation, or the legal profession 18
rules, with the result that the record-keeping for the 19
practice's trust account is inadequate; or 20
(vi) has been or is likely to be convicted of an offence 21
relating to trust money or trust property; or 22
(vii) is the subject of a complaint relating to trust money 23
or trust property received by the practice; or 24
(viii) has failed to comply with any requirement of an 25
investigator, an ILP investigator or an external 26
examiner, under this Act; or 27
(ix) has ceased to be engaged in legal practice without 28
making provision for properly dealing with trust 29
money or trust property received by the practice or 30
for properly winding up the affairs of the practice; 31
(e) if the law society believes proper cause exists in relation 32
to the practice. 33
s 498 353 s 498
Legal Profession Bill 2007
498 Decision regarding external intervention 1
(1) This section applies if the law society becomes aware that 1 or 2
more of the circumstances mentioned in section 497 exist in 3
relation to a law practice and decides that, having regard to the 4
interests of the clients of the practice and to other matters that 5
it considers appropriate, external intervention is warranted. 6
(2) The law society may-- 7
(a) appoint a supervisor of trust money of the law practice, 8
if the law society considers-- 9
(i) that external intervention is required because of 10
issues relating to the practice's trust accounts; and 11
(ii) that it is not appropriate that the provision of legal 12
services by the practice be wound up and 13
terminated because of those issues; or 14
(b) appoint a manager for the law practice, if the law society 15
believes that-- 16
(i) external intervention is required because of issues 17
relating to the practice's trust records; or 18
(ii) the appointment is necessary to protect the 19
interests of clients in relation to trust money or 20
trust property; or 21
(iii) there is a need for an independent person to be 22
appointed to take over professional and operational 23
responsibility for the practice; or 24
(c) appoint a receiver for the law practice, if the law society 25
considers-- 26
(i) that the appointment is necessary to protect the 27
interests of clients in relation to trust money or 28
trust property; or 29
(ii) that it may be appropriate that the provision of 30
legal services by the practice be wound up and 31
terminated. 32
(3) The law society may make further appointments under 33
subsection (2) in relation to the law practice and for that 34
purpose may revoke a previous appointment with effect from 35
s 499 354 s 499
Legal Profession Bill 2007
a date or event stated by it in an instrument of revocation or 1
instrument of further appointment. 2
(4) A further appointment may be made under subsection (3) 3
whether or not there has been any change in the circumstances 4
in consequence of which the original appointment was made 5
and whether or not any further circumstances have come into 6
existence in relation to the law practice after the original 7
appointment was made. 8
(5) An appointment of an external intervener for a law practice 9
may be made in relation to the practice generally or may be 10
limited in any way the law society considers appropriate, 11
including, for example, to matters connected with a particular 12
legal practitioner associate, legal office or subject-matter. 13
Part 5.3 Supervisors of trust money 14
499 Appointment of supervisor of trust money 15
(1) This section applies if the law society decides to appoint a 16
supervisor of trust money of a law practice. 17
(2) The law society may, in the law society approved form, 18
appoint a person as supervisor of trust money. 19
(3) The appointee must be-- 20
(a) an Australian legal practitioner who holds an 21
unrestricted practising certificate; or 22
(b) a person holding accounting qualifications with 23
experience in law practices' trust accounts; 24
and may, but need not, be an employee of the law society. 25
(4) The instrument of appointment must-- 26
(a) identify the law practice and the supervisor; and 27
(b) indicate that the external intervention is by way of 28
appointment of a supervisor of trust money; and 29
(c) state the term of the appointment; and 30
s 500 355 s 500
Legal Profession Bill 2007
(d) state any conditions imposed by the law society when 1
the appointment is made; and 2
(e) state any fees payable by way of remuneration to the 3
supervisor specifically for carrying out his or her duties 4
in relation to the external intervention; and 5
(f) provide for legal costs and the expenses that may be 6
incurred by the supervisor in relation to the external 7
intervention. 8
(5) The instrument of appointment may state reporting 9
requirements to be observed by the supervisor. 10
500 Notice of appointment 11
(1) After appointment of a supervisor of trust money of a law 12
practice is made, the law society must give a notice of 13
appointment to each of the following-- 14
(a) the practice; 15
(b) any other persons authorised to operate a trust account 16
of the practice; 17
(c) any external examiner appointed to examine the 18
practice's trust records; 19
(d) the ADI with which any trust account of the practice is 20
kept; 21
(e) any person whom the law society believes should be 22
given a notice. 23
(2) The notice must-- 24
(a) identify the law practice and the supervisor; and 25
(b) indicate that the external intervention is by way of 26
appointment of a supervisor of trust money; and 27
(c) state the term of the appointment; and 28
(d) state any reporting requirements to be observed by the 29
supervisor; and 30
(e) state any conditions imposed by the law society when 31
the appointment is made; and 32
s 501 356 s 501
Legal Profession Bill 2007
(f) include a statement that the law practice may appeal 1
against the appointment of the supervisor under section 2
531; and 3
(g) contain or be accompanied by other information or 4
material prescribed under a regulation. 5
501 Effect of service of notice of appointment 6
(1) After an ADI is given a notice of the appointment of a 7
supervisor of trust money of a law practice and until the 8
appointment is terminated, the ADI must ensure that no funds 9
are withdrawn or transferred from a trust account of the 10
practice unless-- 11
(a) the withdrawal or transfer is made by cheque or other 12
instrument drawn on that account and signed by the 13
supervisor or a nominee of the supervisor; or 14
(b) the withdrawal or transfer is made by the supervisor or a 15
nominee of the supervisor by means of electronic or 16
internet banking facilities; or 17
(c) the withdrawal or transfer is made in accordance with an 18
authority to withdraw or transfer funds from the account 19
signed by the supervisor or a nominee of the supervisor. 20
(2) After a person, other than the supervisor or an ADI, is given a 21
notice of the appointment of a supervisor of trust money of a 22
law practice and until the appointment is terminated, the 23
person must not-- 24
(a) deal with any of the practice's trust money; or 25
(b) sign any cheque or other instrument drawn on a trust 26
account of the practice; or 27
(c) authorise the withdrawal or transfer of funds from a trust 28
account of the practice. 29
Maximum penalty--100 penalty units. 30
(3) If approved by the law society, the supervisor of trust money 31
may, for subsection (1)(b), enter into arrangements with an 32
ADI for withdrawing money from a trust account of the law 33
practice concerned by means of electronic or internet banking 34
facilities. 35
s 502 357 s 502
Legal Profession Bill 2007
(4) Any money that is withdrawn or transferred in contravention 1
of subsection (1) may be recovered from the ADI concerned 2
by the supervisor as a debt and any amount recovered is to be 3
paid into a trust account of the law practice. 4
502 Role of supervisor of trust money 5
(1) The supervisor of trust money of a law practice has the powers 6
and duties of the practice in relation to the trust money of the 7
law practice, including powers-- 8
(a) to receive trust money entrusted to the practice; and 9
(b) to open and close trust accounts. 10
(2) For performing the functions of a supervisor of trust money of 11
a law practice, the supervisor may do any or all of the 12
following-- 13
(a) enter and remain on premises used by the law practice in 14
connection with its engaging in legal practice; 15
(b) require the law practice or an associate or former 16
associate of the law practice, or another person who has 17
or had control of files or documents relating to trust 18
money received by the practice, to give the supervisor 19
either or both of the following-- 20
(i) access to the files or documents that the supervisor 21
reasonably requires; 22
(ii) information relating to the trust money that the 23
supervisor reasonably requires; 24
(c) operate equipment or facilities on the premises, or 25
require a person on the premises to operate equipment 26
or facilities on the premises, for a purpose relevant to the 27
supervisor's appointment; 28
(d) take possession of any relevant material and retain it for 29
as long as may be necessary; 30
(e) secure any relevant material found on the premises 31
against interference, if the material can not be 32
conveniently removed; 33
s 503 358 s 503
Legal Profession Bill 2007
(f) take possession of any computer equipment or computer 1
program reasonably required for a purpose relevant to 2
the supervisor's appointment. 3
(3) If the supervisor takes anything from the premises, the 4
supervisor must issue a receipt, in a law society approved 5
form, and-- 6
(a) if the occupier or a person apparently responsible to the 7
occupier is present at or near the premises--give the 8
receipt to the occupier or person; or 9
(b) otherwise--leave the receipt at the premises in an 10
envelope addressed to the occupier. 11
(4) This section applies to trust money held by the practice before 12
the supervisor is appointed, as well as to trust money received 13
afterwards. 14
(5) The supervisor does not have a role in the management of the 15
affairs of the law practice except in so far as the affairs relate 16
to a trust account of the practice. 17
(6) If the supervisor is refused access to the premises or the 18
premises are unoccupied, the supervisor must advise the law 19
society about the refusal. 20
(7) For this section, the supervisor is declared to be a public 21
official for the Police Powers and Responsibilities Act 2000, 22
chapter 1, part 3, division 2. 23
503 Records of law practice under supervision 24
(1) The supervisor of trust money of a law practice must keep 25
records of the supervisor's dealings with the trust money-- 26
(a) separately from records relating to dealings with trust 27
money before the supervisor's appointment; and 28
(b) separately from the affairs of another law practice in 29
relation to which the supervisor is also a supervisor of 30
trust money; and 31
(c) in the way prescribed under a regulation. 32
(2) Subject to subsection (1), a supervisor of trust money of a law 33
practice must deal with trust money of the practice in the same 34
way as a law practice must deal with trust money. 35
s 504 359 s 505
Legal Profession Bill 2007
504 Termination of supervisor's appointment 1
(1) The appointment of a supervisor of trust money of a law 2
practice terminates in the following circumstances-- 3
(a) the term of the appointment comes to an end; 4
(b) the appointment is declared invalid or terminated under 5
section 531; 6
(c) the appointment of a manager for the practice takes 7
effect; 8
(d) the appointment of a receiver for the practice takes 9
effect; 10
(e) the supervisor has distributed all trust money received 11
by the practice and wound up all trust accounts; 12
(f) a termination of the appointment by the law society 13
takes effect. 14
(2) The law society may, by written notice to the supervisor, 15
terminate the supervisor's appointment on or after a day stated 16
in the notice. 17
(3) The law society must give a copy of the notice under 18
subsection (2) to the persons originally given a notice of 19
appointment. 20
Part 5.4 Managers 21
505 Appointment of manager 22
(1) This section applies if the law society decides to appoint a 23
manager for a law practice. 24
(2) The law society must, in a law society approved form, appoint 25
a person as the manager who is an Australian legal 26
practitioner holding an unrestricted practising certificate. 27
(3) The manager may, but need not, be an employee of the law 28
society. 29
(4) The instrument of appointment must-- 30
s 506 360 s 506
Legal Profession Bill 2007
(a) identify the law practice and the manager; and 1
(b) indicate that the external intervention is by way of 2
appointment of a manager; and 3
(c) state the term of the appointment; and 4
(d) state any conditions imposed by the law society when 5
the appointment is made; and 6
(e) state the fees payable by way of remuneration to the 7
manager for carrying out his or her duties for the 8
external intervention; and 9
(f) provide for the legal costs and expenses that may be 10
incurred by the manager for the external intervention; 11
and 12
(g) include any other information required under a 13
regulation to be included in the instrument of 14
appointment. 15
(5) The instrument of appointment may state any reporting 16
requirements to be observed by the manager 17
506 Notice of appointment 18
(1) After an appointment of a manager for a law practice is made, 19
the law society must give a notice of the appointment to-- 20
(a) the practice; and 21
(b) any other person authorised to operate any trust account 22
of the practice; and 23
(c) any external examiner appointed to examine the 24
practice's trust records; and 25
(d) the ADI with which any trust account of the practice is 26
kept; and 27
(e) any person whom the law society believes should be 28
given the notice. 29
(2) The notice must-- 30
(a) identify the law practice and the manager; and 31
(b) indicate that the external intervention is by way of 32
appointment of a manager; and 33
s 507 361 s 507
Legal Profession Bill 2007
(c) state the term of the appointment; and 1
(d) state any reporting requirements to be observed by the 2
manager; and 3
(e) state any conditions imposed by the law society when 4
the appointment is made; and 5
(f) include a statement that the law practice may appeal 6
against the appointment of the manager under section 7
531; and 8
(g) contain or be accompanied by other information or 9
material prescribed under a regulation. 10
507 Effect of service of notice of appointment 11
(1) After a law practice is given a notice of appointment of the 12
manager for the practice and until the appointment is 13
terminated, a legal practitioner associate of the practice who is 14
stated or mentioned in the notice must not participate in the 15
affairs of the practice except under the direct supervision of 16
the manager. 17
Maximum penalty--100 penalty units. 18
(2) After an ADI is given a notice of appointment of the manager 19
for the law practice and until the appointment is terminated, 20
the ADI must ensure that no funds are withdrawn or 21
transferred from a trust account of the practice unless the 22
withdrawal or transfer is made-- 23
(a) by cheque or other instrument drawn on that account 24
and signed by-- 25
(i) the manager; or 26
(ii) a receiver for the practice; or 27
(iii) a nominee of the manager or receiver; or 28
(b) by means of electronic or internet banking facilities 29
by-- 30
(i) the manager; or 31
(ii) a receiver for the practice; or 32
(iii) a nominee of the manager or receiver; or 33
s 508 362 s 508
Legal Profession Bill 2007
(c) under an authority to withdraw or transfer funds from 1
the account signed by-- 2
(i) the manager; or 3
(ii) a receiver for the practice; or 4
(iii) a nominee of the manager or receiver. 5
(3) After a person is given a notice of appointment of the manager 6
for the law practice and until the appointment is terminated, 7
the person must not-- 8
(a) deal with any of the practice's trust money; or 9
(b) sign any cheque or other instrument drawn on a trust 10
account of the practice; or 11
(c) authorise the withdrawal or transfer of funds from a trust 12
account of the practice. 13
Maximum penalty--100 penalty units. 14
(4) Subsection (3) does not apply to a legal practitioner associate 15
mentioned in subsection (1), an ADI or the manager or 16
receiver for the practice. 17
(5) If approved by the law society, the manager may, for 18
subsection (2)(b), enter into arrangements with an ADI for 19
withdrawing money from a trust account of the law practice 20
by means of electronic or internet banking facilities. 21
(6) If an amount is withdrawn or transferred in contravention of 22
subsection (2), that amount may be recovered from the ADI 23
concerned by the manager, or a receiver for the law practice, 24
as a debt and, if recovered, must be paid into a trust account of 25
the law practice or another trust account nominated by the 26
manager or receiver. 27
508 Role of manager 28
(1) The manager for a law practice may carry on the practice and 29
may do all things that the practice, or a legal practitioner 30
associate of the practice, might lawfully have done, including 31
but not limited to the following-- 32
(a) transacting any urgent business of the practice; 33
s 508 363 s 508
Legal Profession Bill 2007
(b) transacting, with the approval of any or all of the 1
existing clients of the practice, any business on their 2
behalf, including-- 3
(i) starting, continuing, defending or settling any 4
proceeding; and 5
(ii) receiving, retaining and disposing of property; 6
(c) accepting instructions from new clients and transacting 7
any business on their behalf, including-- 8
(i) starting, continuing, defending or settling any 9
proceeding; and 10
(ii) receiving, retaining and disposing of regulated 11
property of the law practice; 12
(d) charging and recovering legal costs, including legal 13
costs for work in progress at the time of the appointment 14
of the manager; 15
(e) entering into, executing or performing any agreement; 16
(f) dealing with trust money under this Act; 17
(g) winding up the affairs of the practice. 18
(2) For performing the functions of the manager for the law 19
practice, the manager may do any or all of the following-- 20
(a) enter and remain on premises used by the law practice in 21
connection with its engaging in legal practice; 22
(b) require the law practice or an associate or former 23
associate of the law practice, or another person who has 24
or had control of files (including documents relating to 25
trust money received by the practice) to give the 26
supervisor either or both of the following-- 27
(i) access to the files or documents that the supervisor 28
reasonably requires; 29
(ii) information relating to client matters the manager 30
reasonably requires; 31
(c) operate equipment or facilities on the premises, or 32
require a person on the premises to operate equipment 33
or facilities on the premises, for a purpose relevant to the 34
manager's appointment; 35
s 509 364 s 509
Legal Profession Bill 2007
(d) take possession of any relevant material and retain it for 1
as long as may be necessary; 2
(e) secure any relevant material found on the premises 3
against interference, if the material can not be 4
conveniently removed; 5
(f) take possession of any computer equipment or computer 6
program reasonably required for a purpose relevant to 7
the manager's appointment. 8
(3) If the manager takes something from the premises, the 9
manager must issue a receipt, in a law society approved form, 10
and-- 11
(a) if the occupier or a person apparently responsible to the 12
occupier is present at or near the premises--give the 13
receipt to the occupier or person; or 14
(b) otherwise--leave the receipt at the premises in an 15
envelope addressed to the occupier. 16
(4) If the manager is refused access to the premises or the 17
premises are unoccupied, the manager must advise the law 18
society about the refusal. 19
(5) For this section, the manager is declared to be a public official 20
for the Police Powers and Responsibilities Act 2000, chapter 21
1, part 3, division 2. 22
509 Records and accounts of law practice under 23
management 24
(1) The manager for a law practice must keep records and 25
accounts relating to the management of the practice-- 26
(a) separately from the management of the affairs of the law 27
practice before the manager's appointment; and 28
(b) separately from the affairs of another law practice that 29
the manager is managing; and 30
(c) in the way prescribed under a regulation. 31
(2) Subject to subsection (1), the manager for a law practice must 32
deal with trust money of the practice in the same way as a law 33
practice must deal with trust money. 34
s 510 365 s 511
Legal Profession Bill 2007
510 Deceased estates 1
(1) It is the duty of the manager for a law practice to cooperate 2
with the legal personal representative relating to a deceased 3
legal practitioner associate of the practice for the orderly 4
winding-up of the estate. 5
(2) The manager is not, in the performance of functions or the 6
exercise of powers as manager, a legal personal representative 7
of the deceased legal practitioner associate, but nothing in this 8
subsection prevents the manager from performing functions or 9
exercising powers as a legal personal representative if 10
otherwise appointed as representative. 11
(3) Subject to subsections (1) and (2) and to the terms of the 12
manager's appointment, if the manager was appointed before 13
the death of the legal practitioner associate, the manager's 14
appointment, functions and powers are not affected by the 15
death. 16
511 Termination of manager's appointment 17
(1) The appointment of a manager for a law practice terminates in 18
the following circumstances-- 19
(a) the term of the appointment comes to an end; 20
(b) the appointment is declared invalid or terminated under 21
section 531; 22
(c) the appointment of a receiver for the practice takes 23
effect, if the terms of the receiver's appointment indicate 24
that the receiver is authorised to exercise the functions 25
and powers of a manager; 26
(d) the manager has wound up the affairs of the practice; 27
(e) a termination of the appointment by the law society 28
takes effect. 29
(2) The law society may, by written notice to the manager, 30
terminate the manager's appointment on or after a day stated 31
in the notice. 32
(3) If the appointment terminates in the circumstances mentioned 33
in subsection (1)(a), (b), (c) or (e), the former manager must, 34
s 512 366 s 512
Legal Profession Bill 2007
after the termination, transfer and deliver the regulated 1
property and client files of the law practice to-- 2
(a) if there is another external intervener for the law 3
practice--the other external intervener; or 4
(b) otherwise--the practice. 5
(4) However, the former manager need not transfer the regulated 6
property and client files of the law practice under subsection 7
(3) unless the manager's expenses for the external intervention 8
have been paid. 9
(5) The law society must give a copy of the notice under 10
subsection (2) to the persons originally given a notice of 11
appointment. 12
Part 5.5 Receivers 13
512 Appointment of receiver 14
(1) This section applies if the law society decides to appoint a 15
receiver for a law practice. 16
(2) The law society may, in the law society approved form, 17
appoint a person as receiver. 18
(3) The appointee must be-- 19
(a) an Australian legal practitioner who holds an 20
unrestricted practising certificate; or 21
(b) a person holding accounting qualifications with 22
experience in law practices' trust accounts; 23
and may, but need not, be an employee of the law society. 24
(4) The instrument of appointment must-- 25
(a) identify the law practice and the receiver; and 26
(b) indicate that the external intervention is by way of 27
appointment of a receiver; and 28
(c) state any conditions imposed by the law society when 29
the appointment is made; and 30
s 513 367 s 513
Legal Profession Bill 2007
(d) state any fees payable by way of remuneration to the 1
receiver for carrying out his or her duties for the external 2
intervention; and 3
(e) provide for any legal costs and expenses that may be 4
incurred by the receiver for the external intervention. 5
(5) The instrument of appointment may state-- 6
(a) the term, if any, of the appointment; and 7
(b) any reporting requirements to be observed by the 8
receiver. 9
513 Notice of appointment 10
(1) After an appointment of a receiver for a law practice is made, 11
the law society must give a notice of the appointment to-- 12
(a) the practice; and 13
(b) any other person authorised to operate any trust account 14
of the practice; and 15
(c) any external examiner appointed to examine the 16
practice's trust records; and 17
(d) the ADI with which any trust account of the practice is 18
kept; and 19
(e) any person whom the law society believes should be 20
given the notice. 21
(2) The notice must-- 22
(a) identify the law practice and the receiver; and 23
(b) indicate that the external intervention is by way of 24
appointment of a receiver; and 25
(c) state the term of the appointment; and 26
(d) state any reporting requirements to be observed by the 27
receiver; and 28
(e) state any conditions imposed by the law society when 29
the appointment is made; and 30
(f) include a statement that the law practice may appeal 31
against the appointment of the receiver under section 32
520; and 33
s 514 368 s 514
Legal Profession Bill 2007
(g) contain or be accompanied by other information or 1
material prescribed under a regulation. 2
514 Effect of service of notice of appointment 3
(1) After a law practice is given a notice of appointment of a 4
receiver for the practice and until the appointment is 5
terminated, a legal practitioner associate of the practice who is 6
stated or mentioned in the notice must not participate in the 7
affairs of the practice. 8
Maximum penalty--100 penalty units. 9
(2) After an ADI is given a notice of appointment of the receiver 10
for the law practice and until the appointment is terminated, 11
the ADI must ensure that no funds are withdrawn or 12
transferred from a trust account of the practice unless the 13
withdrawal or transfer is made-- 14
(a) by cheque or other instrument drawn on that account 15
and signed by-- 16
(i) the receiver; or 17
(ii) a manager for the practice; or 18
(iii) a nominee of the receiver or manager; or 19
(b) by means of electronic or internet banking facilities 20
by-- 21
(i) the receiver; or 22
(ii) a manager for the practice; or 23
(iii) a nominee of the receiver or manager; or 24
(c) under an authority to withdraw or transfer funds from 25
the account signed by-- 26
(i) the receiver; or 27
(ii) a manager for the practice; or 28
(iii) a nominee of the receiver or manager. 29
(3) After a person, other than an ADI or a receiver or manager for 30
the practice, is given a notice of appointment of the receiver 31
for the law practice and until the appointment is terminated, 32
the person must not-- 33
s 515 369 s 515
Legal Profession Bill 2007
(a) deal with any of the practice's trust money; or 1
(b) sign any cheque or other instrument drawn on a trust 2
account of the practice; or 3
(c) authorise the withdrawal or transfer of funds from a trust 4
account of the practice. 5
Maximum penalty--100 penalty units. 6
(4) If approved by the law society, the receiver may, for 7
subsection (2)(b), enter into arrangements with an ADI for 8
withdrawing money from a trust account of the law practice 9
by means of electronic or internet banking facilities. 10
(5) If an amount is withdrawn or transferred in contravention of 11
subsection (2), that amount may be recovered from the ADI 12
concerned by the receiver, or a manager for the practice, as a 13
debt and, if recovered, is to be paid into a trust account of the 14
law practice or another trust account nominated by the 15
receiver or manager. 16
515 Role of receiver 17
(1) The role of a receiver for a law practice is-- 18
(a) to be the receiver of regulated property of the law 19
practice; and 20
(b) to wind up and terminate the affairs of the practice. 21
(2) For the purpose of winding up the affairs of the law practice 22
and in the interests of the practice's clients, the law society 23
may, in a law society approved form, authorise-- 24
(a) the receiver to carry on the legal practice engaged in by 25
the law practice, if the receiver is an Australian legal 26
practitioner who holds an unrestricted practising 27
certificate; or 28
(b) an Australian legal practitioner who holds an 29
unrestricted practising certificate, or a law practice 30
whose principals are or include 1 or more Australian 31
legal practitioners who hold unrestricted practising 32
certificates, as stated in the approved form, to carry on 33
the legal practice on behalf of the receiver. 34
s 515 370 s 515
Legal Profession Bill 2007
(3) Subject to a direction given by the law society and stated in 1
the approved form, the person authorised to carry on a legal 2
practice has all the powers of a manager under this chapter 3
and is taken to have been appointed as the manager for the law 4
practice. 5
(4) The law society may, by written notice to the receiver, 6
terminate an authorisation to carry on a legal practice granted 7
under this section. 8
(5) For the purpose of exercising a power mentioned in this 9
section, the receiver may do 1, more than 1 or all of the 10
following-- 11
(a) enter and remain on premises used by the law practice 12
for or in connection with its engaging in legal practice; 13
(b) require the practice, an associate or former associate of 14
the practice or any other person who has or had control 15
of client files and associated documents (including 16
documents relating to trust money received by the 17
practice) to give the receiver-- 18
(i) access to the files and documents the receiver 19
reasonably requires; and 20
(ii) information relating to client matters the receiver 21
reasonably requires; 22
(c) operate equipment or facilities on the premises, or 23
require any person on the premises to operate equipment 24
or facilities on the premises, for a purpose relevant to the 25
appointment as receiver; 26
(d) take possession of relevant material and retain it for as 27
long as the receiver considers is necessary; 28
(e) secure relevant material found on the premises against 29
interference, if the material can not be conveniently 30
removed; 31
(f) take possession of any computer equipment or computer 32
program reasonably required for a purpose relevant to 33
the appointment as receiver. 34
(6) If the receiver takes a thing from the premises, the receiver 35
must issue a receipt in the law society approved form and-- 36
s 516 371 s 517
Legal Profession Bill 2007
(a) if the occupier or a person apparently responsible to the 1
occupier is present at or near the premises, give the 2
receipt to the occupier or person; or 3
(b) otherwise, leave it at the premises in an envelope 4
addressed to the occupier. 5
(7) If the receiver is refused access to the premises or the 6
premises are unoccupied, the receiver may use whatever 7
appropriate force is necessary to enter the premises. 8
516 Records and accounts of law practice under receivership 9
(1) The receiver for a law practice must keep records and 10
accounts relating to the management of the practice-- 11
(a) separately from the management of the affairs of the 12
practice before the appointment of the receiver; and 13
(b) separately from the affairs of another law practice that 14
the receiver is managing; and 15
(c) in a way prescribed under a regulation. 16
(3) Subject to subsection (1), the receiver for a law practice must 17
deal with trust money of the practice in the same way as the 18
law practice must deal with the trust money. 19
517 Power of receiver to take possession of regulated 20
property 21
(1) The receiver for a law practice may take possession of 22
regulated property of the law practice. 23
(2) A person in possession or having control of regulated property 24
of the law practice must permit the receiver to take possession 25
of the regulated property if required by the receiver to do so. 26
(3) If a person contravenes subsection (2), the Supreme Court 27
may, on application by the receiver, order the person to deliver 28
the regulated property to the receiver. 29
(4) If, on application made by the receiver, the Supreme Court is 30
satisfied that an order made under subsection (3) has not been 31
complied with, the court may order the seizure of any 32
regulated property of the law practice that is located on the 33
s 518 372 s 519
Legal Profession Bill 2007
premises stated in the order and make any further orders it 1
considers appropriate. 2
(5) An order under subsection (4) operates to authorise the 3
receiver, or a person authorised by the receiver, to enter the 4
premises stated in the order and search for, seize and remove 5
anything that appears to be regulated property of the law 6
practice. 7
(6) The receiver must return anything seized under this section if 8
it transpires that it is not regulated property of the law 9
practice. 10
(7) For an order under subsection (4), the manager is declared to 11
be a public official for the Police Powers and Responsibilities 12
Act 2000, chapter 1, part 3, division 2. 13
518 Power of receiver to take delivery of regulated property 14
(1) If the receiver for a law practice believes that another person 15
is under an obligation, or will later be under an obligation, to 16
deliver regulated property of the law practice to the practice, 17
the receiver may, by written notice, require that other person 18
to deliver the property to the receiver. 19
(2) If a person has notice that a receiver has been appointed for a 20
law practice and the person is under an obligation to deliver 21
regulated property of the law practice to the practice, the 22
person must deliver the property to the receiver. 23
Maximum penalty--100 penalty units. 24
(3) A document signed by the receiver acknowledging the receipt 25
of regulated property of the law practice delivered to the 26
receiver is as valid and effectual as if it had been given by the 27
law practice. 28
519 Power of receiver to deal with regulated property 29
(1) This section applies if the receiver for a law practice acquires 30
or takes possession of regulated property of the law practice. 31
(2) The receiver may deal with the regulated property in a way in 32
which the law practice might lawfully have dealt with the 33
property. 34
s 520 373 s 521
Legal Profession Bill 2007
520 Power of receiver to require documents or information 1
(1) A receiver for a law practice may require-- 2
(a) a person who is an associate or former associate of the 3
practice; or 4
(b) a person who has or has had control of documents 5
relating to the affairs of the practice; or 6
(c) a person who has information relating to regulated 7
property of the practice or property that the receiver 8
believes to be regulated property of the practice; 9
to give the receiver either or both of the following-- 10
(d) access to documents relating to the affairs of the practice 11
that the receiver reasonably requires; 12
(e) information relating to the affairs of the practice that the 13
receiver reasonably requires and, if stated in the 14
requirement, verified by statutory declaration. 15
(2) A person who is subject to a requirement under subsection (1) 16
must comply with the requirement unless the person has a 17
reasonable excuse. 18
Maximum penalty--100 penalty units. 19
(3) When making the requirement, the receiver must warn the 20
person it is an offence to fail to give the information unless the 21
person has a reasonable excuse. 22
(4) It is, for example, a reasonable excuse for an individual to fail 23
to comply with the requirement if complying with the 24
requirement might tend to incriminate the person. 25
521 Examinations 26
(1) The Supreme Court may, on application of the receiver for a 27
law practice or on its own initiative, make an order directing 28
that an associate or former associate of the practice, or another 29
person, appear before the court for examination on oath or 30
affirmation in relation to the regulated property of the law 31
practice. 32
s 522 374 s 522
Legal Profession Bill 2007
(2) On an examination of a person under this section, the person 1
must answer all questions that the court allows to be put to the 2
person. 3
Maximum penalty--200 penalty units. 4
(3) An individual is not excused from answering a question on the 5
ground that the answer might tend to incriminate the person. 6
(4) However if, before answering the question, the individual 7
objects on the ground that answering may tend to incriminate 8
the individual and that ground is established, the answer is not 9
admissible in evidence, and derivative evidence is not 10
admissible, against the individual in any proceeding for an 11
offence, other than-- 12
(a) an offence against a relevant law; or 13
(b) a proceeding for perjury. 14
(5) In this section-- 15
derivative evidence means any information, document or 16
other evidence obtained as a direct or indirect result of the 17
evidence given by an individual mentioned in subsection (4). 18
proceeding for perjury means a criminal proceeding in which 19
the false or misleading nature of the evidence is in question. 20
522 Lien for costs on regulated property of the law practice 21
(1) This section applies if-- 22
(a) a receiver has been appointed for a law practice; and 23
(b) the law practice or a legal practitioner associate of the 24
practice claims a lien for costs on the regulated property 25
of the law practice. 26
(2) The receiver may serve on the law practice or legal 27
practitioner associate a written notice requiring the practice or 28
associate to give the receiver within a stated period of not less 29
than 1 month-- 30
(a) particulars sufficient to identify the regulated property; 31
and 32
(b) a detailed bill of costs. 33
s 523 375 s 524
Legal Profession Bill 2007
(3) If the law practice or legal practitioner associate requests the 1
receiver in writing to give access to the regulated property that 2
is reasonably necessary to enable the practice or associate to 3
prepare a bill of costs in compliance with subsection (2), the 4
time allowed does not start until the access is given. 5
(4) If a requirement of a notice under this section is not complied 6
with, the receiver may, in dealing with the regulated property 7
claimed to be subject to the lien, disregard the claim. 8
523 Regulated property of a law practice is not to be attached 9
Regulated property of a law practice for which a receiver has 10
been appointed, including regulated property held by the 11
receiver, is not liable to be taken, levied on or attached under 12
any judgment, order or process of any court or another 13
process. 14
524 Recovery of regulated property where there has been a 15
breach of trust etc. 16
(1) This section applies if regulated property of the law practice, 17
including regulated property under its control, has, before or 18
after the appointment of a receiver for the practice, been taken 19
by, paid to or transferred to a person (the transferee) in breach 20
of trust, improperly or unlawfully and the transferee-- 21
(a) knew or believed at the time of the taking, payment or 22
transfer that it was done in breach of trust, improperly or 23
unlawfully; or 24
(b) did not provide to the practice or another person any or 25
adequate consideration for the taking, payment or 26
transfer; or 27
(c) because of the taking, payment or transfer indebted or 28
otherwise liable to the practice or to a client of the 29
practice in the amount of the payment or in another 30
amount. 31
(2) The receiver is entitled to recover from the transferee-- 32
(a) if subsection (1)(a) applies--the amount of the payment 33
or the value of the regulated property taken or 34
transferred; or 35
s 524 376 s 524
Legal Profession Bill 2007
(b) if subsection (1)(b) applies--the amount of the 1
inadequacy of the consideration or, if there was no 2
consideration, the amount of the payment or the value of 3
the regulated property taken or transferred; or 4
(c) if subsection (1)(c) applies--the amount of the debt or 5
liability; 6
and, on the recovery of that amount from the transferee, the 7
transferee ceases to be liable for it to any other person. 8
(3) If any money of or under the control of a law practice has, 9
before or after the appointment of a receiver for the practice, 10
been paid in breach of trust, improperly or unlawfully to a 11
person (the prospective plaintiff) in relation to a cause of 12
action that the prospective plaintiff had, or claimed to have, 13
against a third party-- 14
(a) the receiver may prosecute the cause of action against 15
the third party in the name of the prospective plaintiff; 16
or 17
(b) if the prospective plaintiff did not have, at the time the 18
payment was made, a cause of action against the third 19
party, the receiver may recover the amount of that 20
money from the prospective plaintiff. 21
(4) If any regulated property of or under the control of a law 22
practice has, before or after the appointment of a receiver for 23
the practice, been used in breach of trust, improperly or 24
unlawfully so as to discharge a debt or liability of a person 25
(the debtor), the receiver may recover from the debtor the 26
amount of the debt or liability so discharged less any 27
consideration provided by the debtor for the discharge. 28
(5) A person authorised by the law society to do so may give a 29
certificate in relation to all or any of the following-- 30
(a) the receipt of regulated property by the law practice 31
concerned from any person, the nature and value of the 32
property, the date of receipt and the identity of the 33
person from whom it was received; 34
(b) the taking, payment or transfer of regulated property, the 35
nature and value of the property, the date of the taking, 36
payment or transfer and the identity of the person by 37
s 525 377 s 526
Legal Profession Bill 2007
whom it was taken or to whom it was paid or 1
transferred; 2
(c) the entries made in the trust account and in other 3
ledgers, books of account, vouchers or records of the 4
practice and the truth or falsity of those entries; 5
(d) the money and securities held by the practice at the 6
stated time. 7
(6) If the receiver brings a proceeding under subsection (2), (3) or 8
(4), a certificate given under subsection (5) is evidence and, in 9
the absence of evidence to the contrary, is proof of the facts 10
stated in it. 11
525 Improperly destroying property etc. 12
(1) Unless a person has a reasonable excuse for doing so, the 13
person must not conceal regulated property of a law 14
practice-- 15
(a) for which a receiver has been appointed; or 16
(b) in relation to which the person ought reasonably to have 17
known that a receiver is likely to be appointed. 18
Maximum penalty--200 penalty units. 19
(2) In this section-- 20
conceal regulated property includes the following-- 21
(a) destroy regulated property; 22
(b) remove regulated property from 1 place to another; 23
(c) deliver regulated property into the possession, or place 24
regulated property under the control, of someone else 25
other than the receiver. 26
526 Deceased estates 27
(1) It is the duty of the receiver for a law practice to cooperate 28
with the legal personal representative relating to a deceased 29
legal practitioner associate of the practice for the orderly 30
winding-up of the estate. 31
s 527 378 s 527
Legal Profession Bill 2007
(2) The receiver is not, in the performance of functions or 1
exercise of powers as receiver, a legal personal representative 2
of the deceased legal practitioner associate, but nothing in this 3
subsection prevents the receiver from performing functions or 4
exercising powers as a legal personal representative if 5
otherwise appointed as representative. 6
(3) Subject to subsections (1) and (2) and to the terms of the 7
receiver's appointment, if the receiver was appointed before 8
the death of the legal practitioner associate, the receiver's 9
appointment, functions and powers are not affected by the 10
death. 11
527 Termination of receiver's appointment 12
(1) The appointment of a receiver for a law practice terminates in 13
the following circumstances-- 14
(a) the term of the appointment, if any, comes to an end; 15
(b) the appointment is declared invalid or terminated under 16
section 531; 17
(c) a termination of the appointment by the law society 18
takes effect. 19
(2) The law society may, by written notice, terminate the 20
receiver's appointment on or after a date stated in the notice. 21
(3) After a receiver's appointment terminates, the former receiver 22
must transfer and deliver the regulated property of the law 23
practice to-- 24
(a) another external intervener for the law practice 25
appointed within 14 days after the day the termination 26
takes effect; or 27
(b) the practice, if another external intervener is not 28
appointed as mentioned in paragraph (a) and paragraph 29
(c) does not apply; or 30
(c) another person under arrangements approved by the law 31
society, if it is not practicable to transfer and deliver the 32
regulated property to the practice. 33
(4) However, the former receiver need not transfer and deliver 34
regulated property of the law practice under subsection (3) 35
s 528 379 s 528
Legal Profession Bill 2007
unless the receiver's expenses for the external intervention 1
have been paid. 2
(5) The law society must give a notice under subsection (2) to all 3
persons originally given a copy of the notice of appointment. 4
Part 5.6 General 5
528 Conditions on appointment of external intervener for a 6
law practice 7
(1) The appointment of an external intervener is subject to-- 8
(a) conditions imposed by the law society at the time of 9
appointment as mentioned in sections 499, 505 and 10
512,82 including an amendment of a condition during the 11
appointment; and 12
(b) new conditions imposed by the law society during the 13
appointment; and 14
(c) conditions imposed under a regulation. 15
(2) In relation to the appointment of an external intervener, the 16
law society may do any of the following-- 17
(a) impose new conditions during the term of the 18
appointment; 19
(b) revoke or vary a condition mentioned in subsection 20
(1)(a) or imposed under subsection (1)(b). 21
(3) This section is not limited by a power to appoint a person as 22
an external intervener under another part. 23
(4) If there is any inconsistency in relation to a condition imposed 24
at any time by the law society and a condition imposed under 25
a regulation, the condition imposed under a regulation prevails 26
to the extent of the inconsistency. 27
82 Sections 499 (Appointment of supervisor of trust money), 505 (Appointment of
manager) and 512 (Appointment of receiver)
s 529 380 s 531
Legal Profession Bill 2007
529 Status of acts of external intervener for a law practice 1
(1) An act done or omitted to be done by an external intervener 2
for a law practice is, for the purposes of any proceeding, or 3
any transaction that relies on that act or omission, taken to 4
have been done or omitted to be done by the practice. 5
(2) Nothing in this section subjects the law practice or an 6
associate of the law practice to any personal liability. 7
530 Eligibility for reappointment or authorisation 8
A person who has been appointed as an external intervener for 9
a law practice is eligible for re-appointment as an external 10
intervener for the practice, whether the later appointment is 11
made as the same type of external intervener for the law 12
practice or another type. 13
531 Appeal against appointment 14
(1) The following persons may appeal to the Supreme Court 15
against the appointment of an external intervener for a law 16
practice-- 17
(a) the practice; 18
(b) an associate of the practice; 19
(c) any person authorised to operate a trust account of the 20
practice; 21
(d) another person whose interests may be adversely 22
affected by the appointment. 23
(2) The appeal is to be started as follows-- 24
(a) if a notice of appointment is not required to be given to 25
the person who proposes to appeal--within 7 days after 26
a notice of appointment is given to the law practice; 27
(b) otherwise--within 7 days after a notice of appointment 28
is given to the person who proposes to appeal. 29
(3) The Supreme Court may make any order it considers 30
appropriate on the appeal, including, for example, declaring 31
the appointment of an external intervener for a law practice is 32
invalid or terminated. 33
s 532 381 s 534
Legal Profession Bill 2007
(4) The appointment of an external intervener for a law practice is 1
not stayed by the making of an appeal, and the external 2
intervener may perform his or her functions and exercise his 3
or her powers as an external intervener during the currency of 4
the appeal except to the extent, if any, that the Supreme Court 5
otherwise directs. 6
532 Directions of Supreme Court 7
On application by any of the following, the Supreme Court 8
may give directions about the functions and powers of an 9
external intervener for a law practice or a matter affecting an 10
external intervention-- 11
(a) an external intervener for the law practice; 12
(b) a principal of the law practice; 13
(c) the law society; 14
(d) another person affected by the external intervention. 15
533 Manager and receiver appointed for law practice 16
If a manager and a receiver are appointed for a law practice, 17
any decision of the receiver prevails over any decision of the 18
manager in the exercise of their respective powers, to the 19
extent of the inconsistency. 20
534 ADI disclosure requirements 21
(1) An ADI must, at the request of an external intervener for a law 22
practice, disclose to the intervener without charge-- 23
(a) whether or not the practice, or an associate of the 24
practice stated by the intervener, keeps or has kept an 25
account at the ADI during a period stated by the 26
intervener; and 27
(b) details identifying each account so kept. 28
Maximum penalty--100 penalty units 29
(2) An ADI at which an account of a law practice or associate of a 30
law practice is or has been kept must, at the request of an 31
external intervener for the law practice, and without charge-- 32
s 535 382 s 535
Legal Profession Bill 2007
(a) produce for inspection or copying by the intervener, or a 1
nominee of the intervener, any records relating to any 2
account so kept or money deposited in any account so 3
kept; and 4
(b) provide the intervener with full details of any 5
transactions relating to any account so kept or money 6
deposited in any account so kept. 7
Maximum penalty--100 penalty units 8
(3) If an external intervener believes that trust money has, without 9
the authorisation of the person who entrusted the trust money 10
to the law practice, been deposited into the account of a third 11
party who is not an associate of the law practice, the ADI at 12
which the account is kept must disclose to the intervener 13
without charge-- 14
(a) whether or not a person stated by the intervener keeps or 15
has kept an account at the ADI during a period stated by 16
the intervener; and 17
(b) the details of any account so kept. 18
Maximum penalty--100 penalty units 19
(4) An obligation imposed by this section on an ADI does not 20
apply unless the external intervener produces to the ADI 21
evidence of the appointment of the intervener in relation to the 22
law practice concerned. 23
(5) A request under this section may be general or limited to a 24
particular kind of account. 25
(6) This section applies despite any duty of confidence to the 26
contrary. 27
(7) An ADI or an officer or employee of an ADI is not liable to 28
any action for any loss or damage suffered by another person 29
as a result of producing records or providing details under this 30
section. 31
535 Fees, legal costs and expenses 32
(1) An external intervener for a law practice is entitled to be paid 33
all of the following under an agreement entered into with the 34
law society about the external intervention-- 35
s 536 383 s 536
Legal Profession Bill 2007
(a) fees by way of remuneration; 1
(b) the legal costs and expenses incurred in relation to the 2
external intervention. 3
(2) An account of the external intervener for fees, costs and 4
expenses may, on application of the law society, be taxed or 5
assessed. 6
(3) The fees, costs and expenses are payable by and recoverable 7
from the law practice. 8
(4) Fees, costs and expenses not paid to the external intervener by 9
the law practice are to be paid by the law society. 10
(5) The law society may recover the fees, costs and expenses 11
payable under subsection (4) from the fidelity fund to the 12
extent that the external intervention related to a default for 13
which the fidelity fund was, or may be, liable. 14
(6) The law society may recover any unpaid fees, costs and 15
expenses from the law practice. 16
(7) If an amount of fees, costs and expenses is paid by, or 17
recovered from, the law practice and an amount for the fees, 18
costs and expenses was paid from the fidelity fund, the 19
amount paid by or recovered from the law practice is to be 20
paid to the fidelity fund. 21
536 Reports by external intervener for law practice 22
(1) An external intervener for a law practice must give written 23
reports under any reporting requirements to be observed by 24
the external intervener under the instrument of appointment. 25
(2) If the appointment is not subject to stated reporting 26
requirements, the external intervener must give written reports 27
to the law society as follows-- 28
(a) when required at any time by the law society; 29
(b) at the termination of the appointment. 30
(3) Also, the external intervener must keep the law society 31
informed of the progress of the external intervention, 32
including by reporting to the law society about significant 33
events happening, or a significant state of affairs existing, in 34
s 537 384 s 537
Legal Profession Bill 2007
connection with the intervention or other matters relating to 1
the intervention. 2
(4) Nothing in this section affects another reporting obligation 3
that may exist in relation to the law practice concerned. 4
(5) A regulation may prescribe matters to be included in a report. 5
537 Confidentiality for external intervener for law practice 6
(1) A person who is or was an external intervener for a law 7
practice, or a person who helped the external intervener in the 8
intervention, must not disclose information obtained as a 9
result of the appointment or external intervention except so far 10
as is necessary for exercising the functions or powers of a 11
person who is or was an external intervener for the law 12
practice. 13
(2) However, the person may disclose information to any of the 14
following-- 15
(a) a court, tribunal or other person acting judicially; 16
(b) the law society or a regulatory authority of another 17
jurisdiction; 18
(c) the commissioner; 19
(d) an officer of, or an Australian legal practitioner 20
instructed by, any of the following in relation to a 21
proceeding, inquiry or other matter pending or 22
contemplated arising out of the external intervention-- 23
(i) the law society or another regulatory authority of 24
another jurisdiction; 25
(ii) the Commonwealth or a State; 26
(iii) an authority of the Commonwealth or a State; 27
(e) a member of the police service or police force of any 28
jurisdiction if, at the time of the disclosure, the person 29
believes that the information relates to an offence that 30
may have been committed by the law practice concerned 31
or by an associate of the law practice; 32
s 538 385 s 538
Legal Profession Bill 2007
(f) the law practice concerned or a principal of the law 1
practice or, if the practice is an incorporated legal 2
practice, a shareholder in the practice; 3
(g) a client or former client of the law practice concerned if 4
the information relates to the client or former client; 5
(h) another external intervener for the law practice, or an 6
Australian legal practitioner or accountant employed by 7
that other intervener; 8
(i) an external examiner exercising powers in relation to the 9
trust records of the law practice concerned. 10
538 Provisions relating to requirements under this chapter 11
(1) This section applies to a requirement imposed on a person 12
under this chapter to give an external intervener access to 13
documents or information. 14
(2) The validity of the requirement is not affected, and the person 15
is not excused from compliance with the requirement, on the 16
ground that a law practice or Australian legal practitioner has 17
a lien over a particular document or class of documents. 18
(3) The external intervener imposing the requirement may-- 19
(a) inspect any document provided under the requirement; 20
and 21
(b) make copies of the document or any part of the 22
document; and 23
(c) retain the document for a period the external intervener 24
considers necessary for the purposes of the external 25
intervention in relation to which it was produced. 26
(4) The person is not subject to any liability, claim or demand 27
only because of compliance with the requirement. 28
(5) A failure of an Australian lawyer to comply with the 29
requirement is capable of constituting unsatisfactory 30
professional conduct or professional misconduct. 31
(6) The law society may suspend a local legal practitioner's 32
practising certificate while a failure by the practitioner to 33
comply with the requirement continues. 34
s 539 386 s 541
Legal Profession Bill 2007
539 Obstruction of external intervener 1
(1) A person must not, without reasonable excuse, obstruct an 2
external intervener exercising a power under this Act. 3
Maximum penalty--100 penalty units. 4
(2) In this section-- 5
obstruct includes hinder, delay, resist and attempt to obstruct. 6
Chapter 6 Investigations 7
Part 6.1 Preliminary 8
540 Main purpose of ch 6 9
The main purpose of this chapter is to provide powers that are 10
exercisable in connection with-- 11
(a) trust account investigations--the investigation of the 12
affairs of law practices under part 3.3, division 3; and 13
(b) investigations for complaints and investigation 14
matters--the investigation of complaints and 15
investigation matters under chapter 4; and 16
(c) ILP compliance audits--the conduct of audits under 17
part 2.7 in relation to incorporated legal practices. 18
541 Definitions for ch 6 19
In this chapter-- 20
ILP audit means an audit conducted under part 2.7, division 21
5, in relation to an incorporated legal practice. 22
investigation means-- 23
(a) an investigation of a complaint or investigation matter; 24
or 25
(b) a trust account investigation. 26
s 542 387 s 543
Legal Profession Bill 2007
investigator means a person appointed under section 575 as an 1
investigator. 2
Part 6.2 Requirements relating to 3
documents, information and 4
other assistance 5
542 Requirements that may be imposed for investigations, 6
examinations and audits under parts 3.3 and 2.7 7
(1) For carrying out a trust account investigation or ILP 8
compliance audit in relation to a law practice, an investigator 9
may, on production of his or her identity card, require the 10
practice, an associate or former associate of the practice or 11
any other person who has or has had control of documents 12
relating to the affairs of the practice to give the investigator 13
either or both of the following-- 14
(a) access to the documents relating to the affairs of the 15
practice the investigator reasonably requires; 16
(b) information relating to the affairs of the practice the 17
investigator reasonably requires, verified by statutory 18
declaration if the requirement so states. 19
Examples of another person-- 20
auditor, external examiner, external intervener, liquidator 21
(2) A person who is subject to a requirement under subsection (1) 22
must comply with the requirement. 23
Maximum penalty--100 penalty units. 24
543 Requirements that may be imposed for investigations 25
under ch 4 26
(1) For carrying out an investigation of a complaint or 27
investigation matter in relation to an Australian lawyer, an 28
investigator may, by notice served on the lawyer, require the 29
lawyer to do any 1 or more of the following-- 30
s 544 388 s 544
Legal Profession Bill 2007
(a) to produce, at or before a stated time and at a stated 1
place, any stated document, or a copy of the document; 2
(b) to produce, at a stated time and stated place, any stated 3
document, or a copy of the document; 4
(c) to provide written information on or before a stated date, 5
verified by statutory declaration if the requirement so 6
states; 7
(d) to otherwise help in, or cooperate with, the investigation 8
of the complaint in a stated way. 9
(2) For carrying out an investigation of a complaint or 10
investigation matter in relation to an Australian lawyer, the 11
investigator may, on production of his or her identity card, 12
require an associate or former associate of a law practice of 13
which the lawyer is or was an associate, or any other person 14
(but not including the lawyer) who has or has had control of 15
documents relating to the affairs of the lawyer, to give the 16
investigator either or both of the following-- 17
(a) access to the documents relating to the affairs of the 18
lawyer the investigator reasonably requires; 19
(b) information relating to the affairs of the lawyer the 20
investigator reasonably requires, verified by statutory 21
declaration if the requirement so states. 22
Examples of another person-- 23
auditor, external examiner, external intervener, liquidator 24
(3) A person who is subject to a requirement under subsection (1) 25
or (2) must comply with the requirement unless the person has 26
a reasonable excuse for not complying with it. 27
Maximum penalty--100 penalty units 28
(4) A requirement imposed on a person under this section is to be 29
notified in writing to the person and is to state a reasonable 30
time for compliance. 31
544 Provisions relating to requirements under this part 32
(1) This section applies to a requirement imposed on a person 33
under this part. 34
(2) The investigator imposing the requirement may-- 35
s 545 389 s 545
Legal Profession Bill 2007
(a) inspect any document provided pursuant to the 1
requirement; and 2
(b) make copies of the document or any part of the 3
document; and 4
(c) retain the document for a period the investigator thinks 5
necessary for the purposes of the investigation in 6
relation to which it was produced. 7
(3) The person is not subject to any liability, claim or demand 8
only because of compliance with the requirement. 9
(4) A failure of an Australian lawyer to comply with the 10
requirement is capable of constituting unsatisfactory 11
professional conduct or professional misconduct. 12
(5) The law society or bar association, as is appropriate, may 13
suspend a local legal practitioner's practising certificate while 14
a failure by the legal practitioner to comply with the 15
requirement continues. 16
Part 6.3 Entry to places 17
545 Power to enter places 18
(1) An investigator may enter a place if-- 19
(a) its occupier consents to the entry; or 20
(b) it is a public place and the entry is made when it is open 21
to the public; or 22
(c) the entry is authorised by a warrant; or 23
(d) it is a place of business where an Australian lawyer is 24
generally engaged in legal practice, other than a 25
residence, and the place is open for carrying on business 26
or otherwise open for entry; or 27
(e) it is a place of business where a person purports to be 28
engaged in legal practice, or represents or advertises a 29
legal practice operates, and the place is open for 30
carrying on business or otherwise open for entry; or 31
s 546 390 s 546
Legal Profession Bill 2007
(f) the investigator reasonably suspects, because of 1
representations or advertisements about business 2
conducted at the place, that a person may be engaging in 3
legal practice at the place and the place is open for 4
carrying on business or otherwise open for entry. 5
(2) For the purpose of asking the occupier of a place for consent 6
to enter, an investigator may, without the occupier's consent 7
or a warrant-- 8
(a) enter land around premises at the place to an extent that 9
is reasonable to contact the occupier; or 10
(b) enter part of the place the investigator reasonably 11
considers members of the public ordinarily are allowed 12
to enter when they wish to contact the occupier. 13
(3) In this section-- 14
place of business-- 15
(a) includes a place where a government legal officer is 16
generally engaged in government work; but 17
(b) does not include any part of the place where a person 18
resides. 19
546 Entry with consent 20
(1) This section applies if an investigator intends to ask an 21
occupier of a place to consent to the investigator or another 22
investigator entering the place under section 545(1)(a). 23
(2) Before asking for the consent, the investigator must tell the 24
occupier-- 25
(a) the purpose of the entry; and 26
(b) that the occupier is not required to consent. 27
(3) If the consent is given, the investigator may ask the occupier 28
to sign an acknowledgment of the consent. 29
(4) The acknowledgment must state-- 30
(a) the occupier has been told-- 31
(i) the purpose of the entry; and 32
(ii) that the occupier is not required to consent; and 33
s 547 391 s 548
Legal Profession Bill 2007
(b) the purpose of the entry; and 1
(c) the occupier gives the investigator consent to enter the 2
place and exercise powers under this part; and 3
(d) the time and date the consent was given. 4
(5) If the occupier signs the acknowledgment, the investigator 5
must immediately give a copy to the occupier. 6
(6) If-- 7
(a) an issue arises in a proceeding about whether the 8
occupier consented to the entry; and 9
(b) an acknowledgment complying with subsection (4) for 10
the entry is not produced in evidence; 11
the onus of proof is on the person relying on the lawfulness of 12
the entry to prove the occupier consented. 13
547 Application for warrant 14
(1) An investigator may apply to a magistrate for a warrant for a 15
place. 16
(2) The investigator must prepare a written application that states 17
the grounds on which the warrant is sought. 18
(3) The written application must be sworn. 19
(4) The magistrate may refuse to consider the application until the 20
investigator gives the magistrate all the information the 21
magistrate requires about the application in the way the 22
magistrate requires. 23
Example for subsection (4)-- 24
The magistrate may require additional information supporting the 25
written application to be given by statutory declaration. 26
548 Issue of warrant 27
(1) The magistrate may issue the warrant for the place only if the 28
magistrate is satisfied there are reasonable grounds for 29
suspecting-- 30
(a) there is a particular thing or activity (the evidence) that 31
may provide evidence about a matter that is the subject 32
s 549 392 s 549
Legal Profession Bill 2007
of a complaint or investigation matter that the 1
investigator is investigating under this Act or evidence 2
(also the evidence) of an offence against this Act; and 3
(b) the evidence is at the place or, within the next 7 days, 4
will be at the place. 5
(2) The warrant must state-- 6
(a) the place to which the warrant applies; and 7
(b) that a stated investigator may, with necessary and 8
reasonable help and force-- 9
(i) enter the place and another place necessary for 10
entry to the place; and 11
(ii) exercise the investigator's powers under this part; 12
and 13
(c) particulars of the matter that is the subject of the 14
complaint or investigation matter, or particulars of the 15
offence, that the magistrate considers appropriate in the 16
circumstances; and 17
(d) the name of the person about whom the complaint is 18
made or who is the subject of the investigation matter, or 19
the person suspected of committing the offence, unless 20
the name is unknown or the magistrate considers it 21
inappropriate to state the name; and 22
(e) the evidence that may be seized under the warrant; and 23
(f) the hours of the day or night when the place may be 24
entered; and 25
(g) the magistrate's name; and 26
(h) the date and time of the warrant's issue; and 27
(i) the date, within 14 days after the warrant's issue, the 28
warrant ends. 29
549 Application by electronic communication and duplicate 30
warrant 31
(1) An application under section 547 may be made by phone, fax, 32
email, radio, videoconferencing or another form of electronic 33
s 549 393 s 549
Legal Profession Bill 2007
communication if the investigator considers it necessary 1
because of-- 2
(a) urgent circumstances; or 3
(b) other special circumstances, including, for example, the 4
investigator's remote location. 5
(2) The application-- 6
(a) may not be made before the investigator prepares the 7
written application under section 547(2); but 8
(b) may be made before the written application is sworn. 9
(3) The magistrate may issue the warrant (the original warrant) 10
only if the magistrate is satisfied-- 11
(a) it was necessary to make the application under 12
subsection (1); and 13
(b) the way the application was made under subsection (1) 14
was appropriate. 15
(4) After the magistrate issues the original warrant-- 16
(a) if there is a reasonably practicable way of immediately 17
giving a copy of the warrant to the investigator, for 18
example, by sending a copy by fax or email, the 19
magistrate must immediately give a copy of the warrant 20
to the investigator; or 21
(b) otherwise-- 22
(i) the magistrate must tell the investigator the date 23
and time the warrant is issued and the other terms 24
of the warrant; and 25
(ii) the investigator must complete a form of warrant, 26
including by writing on it-- 27
(A) the magistrate's name; and 28
(B) the date and time the magistrate issued the 29
warrant; and 30
(C) the other terms of the warrant. 31
(5) The copy of the warrant mentioned in subsection (4)(a), or the 32
form of warrant completed under subsection (4)(b) (in either 33
s 550 394 s 550
Legal Profession Bill 2007
case the duplicate warrant) is a duplicate of, and as effectual 1
as, the original warrant. 2
(6) The investigator must, at the first reasonable opportunity, send 3
to the magistrate-- 4
(a) the written application complying with section 547(2) 5
and (3); and 6
(b) if the investigator completed a form of warrant under 7
subsection (4)(b)--the completed form of warrant. 8
(7) The magistrate must keep the original warrant and, on 9
receiving the documents under subsection (6)-- 10
(a) attach the documents to the original warrant; and 11
(b) give the original warrant and documents to the clerk of 12
the court of the relevant magistrates court. 13
(8) Despite subsection (5), if-- 14
(a) an issue arises in a proceeding about whether an 15
exercise of a power was authorised by a warrant issued 16
under this section; and 17
(b) the original warrant is not produced in evidence; 18
the onus of proof is on the person relying on the lawfulness of 19
the exercise of the power to prove a warrant authorised the 20
exercise of the power. 21
(9) This section does limit section 547. 22
(10) In this section-- 23
relevant magistrates court, in relation to a magistrate, means 24
the Magistrates Court that the magistrate constitutes under the 25
Magistrates Act 1991. 26
550 Defect in relation to a warrant 27
(1) A warrant is not invalidated by a defect in the warrant or in 28
compliance with section 547, 548 or 549 unless the defect 29
affects the substance of the warrant in a material particular. 30
(2) In this section-- 31
warrant includes a duplicate warrant mentioned in section 32
549(5). 33
s 551 395 s 552
Legal Profession Bill 2007
551 Warrants--procedure before entry 1
(1) This section applies if an investigator named in a warrant 2
issued under this part for a place is intending to enter the place 3
under the warrant. 4
(2) Before entering the place, the investigator must do or make a 5
reasonable attempt to do the following things-- 6
(a) identify himself or herself to a person present at the 7
place who is an occupier of the place by producing a 8
copy of the investigator's identity card, or having the 9
identity card displayed, as mentioned in section 10
578(1);83 11
(b) give the person a copy of the warrant; 12
(c) tell the person the investigator is permitted by the 13
warrant to enter the place; 14
(d) give the person an opportunity to allow the investigator 15
immediate entry to the place without using force. 16
(3) However, the investigator need not comply with subsection 17
(2) if the investigator believes that immediate entry to the 18
place is required to ensure the effective execution of the 19
warrant is not frustrated. 20
(4) In this section-- 21
warrant includes a duplicate warrant mentioned in section 22
549(5). 23
Part 6.4 Powers of investigators after 24
entry 25
552 General powers of investigator after entering places 26
(1) This part applies to an investigator who enters a place. 27
83 Section 578 (Production or display of identity card)
s 553 396 s 553
Legal Profession Bill 2007
(2) However if an investigator, under section 545(2),84 enters a 1
place to ask the occupier's consent to enter premises, this 2
division applies to the investigator only if the consent is given 3
or the entry is otherwise authorised. 4
(3) For performing an investigator's function under this Act, an 5
investigator may do any of the following-- 6
(a) search any part of the place; 7
(b) inspect, measure, test, photograph or film any part of the 8
place or anything at the place; 9
(c) take a thing, or a sample of or from a thing, at the place 10
for analysis, measurement or testing; 11
(d) copy, or take an extract from, a document at the place; 12
(e) take into or onto the place any person, equipment and 13
materials the investigator reasonably requires for 14
exercising a power under this part. 15
553 Power to require reasonable help or information 16
(1) An investigator may require the occupier of the place, or a 17
person at the place, to give the investigator-- 18
(a) reasonable help to exercise a power under this part; or 19
(b) information to help the investigator in conducting the 20
investigation. 21
(2) When making a requirement under subsection (1), the 22
investigator must warn the person it is an offence to fail to 23
comply with the requirement unless the person has a 24
reasonable excuse. 25
(3) A person required to give reasonable help under subsection 26
(1)(a), or give information under subsection (1)(b), must 27
comply with the requirement, unless the person has a 28
reasonable excuse. 29
Maximum penalty--100 penalty units. 30
84 Section 545 (Power to enter places)
s 554 397 s 554
Legal Profession Bill 2007
(4) If the person is an individual, it is a reasonable excuse for the 1
person not to comply with the requirement if complying with 2
the requirement might tend to incriminate the person. 3
Part 6.5 Power of investigators to seize 4
evidence 5
554 Seizing evidence at place entered under s 545 6
(1) An investigator, who enters a place with the consent of the 7
occupier as mentioned in section 545(1)(a), may seize a thing 8
at the place if-- 9
(a) the investigator believes the thing is evidence that is 10
relevant to the investigation being conducted by the 11
investigator; and 12
(b) seizure of the thing is consistent with the purpose of 13
entry as told to the occupier when asking for the 14
occupier's consent. 15
(2) An investigator may seize a thing at a place if-- 16
(a) the investigator reasonably believes the thing is evidence 17
that is relevant to the investigation being conducted by 18
the investigator; and 19
(b) the place is-- 20
(i) a public place and the investigator entered the 21
public place as mentioned in section 545(1)(b); or 22
(ii) a place of business and the investigator entered the 23
place as mentioned in section 545(1)(d), (e), or (f). 24
(3) An investigator, who enters a place under a warrant as 25
mentioned in section 545(1)(c), may seize the evidence for 26
which the warrant was issued. 27
(4) Without limiting subsections (1), (2) or (3), the investigator 28
may also seize anything else at the place if the investigator 29
believes-- 30
s 555 398 s 557
Legal Profession Bill 2007
(a) the thing is evidence of unsatisfactory professional 1
conduct or professional misconduct of an Australian 2
lawyer, misconduct of a law practice employee or an 3
offence against a relevant law; and 4
(b) the seizure is necessary to prevent the thing being 5
hidden, lost or destroyed. 6
555 Securing seized things 7
Having seized a thing, an investigator may-- 8
(a) move the thing from the place where it was seized (the 9
place of seizure); or 10
(b) leave the thing at the place of seizure but take reasonable 11
action to restrict access to it. 12
Examples of restricting access to a thing-- 13
· sealing a thing and marking it to show access to it is 14
restricted 15
· sealing the entrance to a room where the seized thing is 16
situated and marking it to show access to it is restricted 17
556 Tampering with seized things 18
If an investigator restricts access to a seized thing, a person 19
must not tamper, or attempt to tamper, with the thing, or 20
something restricting access to the thing, without the 21
investigator's approval. 22
Maximum penalty--100 penalty units. 23
557 Powers to support seizure 24
(1) To enable a thing to be seized, an investigator may require the 25
person in control of it-- 26
(a) to take it to a stated reasonable place by a stated 27
reasonable time; and 28
(b) if necessary, to remain in control of it at the stated place 29
for a reasonable time. 30
(2) The requirement-- 31
s 558 399 s 559
Legal Profession Bill 2007
(a) must be made by written notice; or 1
(b) if for any reason it is not practicable to give the notice, 2
may be made orally and confirmed by written notice as 3
soon as practicable. 4
(3) A further requirement may be made under this section about 5
the thing if it is necessary and reasonable to make the further 6
requirement. 7
(4) A person of whom a requirement is made under subsection (1) 8
or (3) must comply with the requirement, unless the person 9
has a reasonable excuse. 10
Maximum penalty for subsection (4)--100 penalty units. 11
558 Receipt for seized things 12
(1) After an investigator seizes a thing, the investigator must give 13
a receipt for it to the person from whom it was seized. 14
(2) However, if for any reason it is not practicable to comply with 15
subsection (1), the investigator must leave the receipt at the 16
place of seizure in a conspicuous position and in a reasonably 17
secure way. 18
(3) The receipt must describe generally the thing seized and its 19
condition. 20
(4) This section does not apply to a thing if it is impracticable or 21
would be unreasonable to give the receipt having regard to the 22
thing's nature, condition and value. 23
559 Forfeiture of seized things 24
(1) A seized thing is forfeited to the State if the investigator who 25
seized the thing-- 26
(a) can not find its owner, after making reasonable 27
inquiries; or 28
(b) can not return it to its owner, after making reasonable 29
efforts. 30
(2) In applying subsection (1)-- 31
s 560 400 s 561
Legal Profession Bill 2007
(a) subsection (1)(a) does not require the investigator to 1
make inquiries if it would be unreasonable to make 2
inquiries to find the owner; and 3
(b) subsection (1)(b) does not require the investigator to 4
make efforts if it would be unreasonable to make efforts 5
to return the thing to its owner. 6
Example for paragraph (b)-- 7
The owner of the thing has migrated to another country. 8
(3) Regard must be had to a thing's nature, condition and value in 9
deciding-- 10
(a) whether it is reasonable to make inquiries or efforts; and 11
(b) if making inquiries or efforts--what inquiries or efforts, 12
including the period over which they are made, are 13
reasonable. 14
560 Dealing with forfeited things etc. 15
(1) On the forfeiture of a thing to the State, the thing becomes the 16
State's property and may be dealt with by the commissioner 17
as the commissioner considers appropriate. 18
(2) Without limiting subsection (1), the commissioner may 19
destroy or dispose of the thing. 20
561 Return of seized things 21
(1) If a seized thing has not been forfeited, the investigator must 22
return it to its owner-- 23
(a) at the end of 6 months; or 24
(b) if a proceeding involving the thing is started within 6 25
months--at the end of the proceeding and any appeal 26
from the proceeding. 27
(2) Despite subsection (1), unless the thing has been forfeited, the 28
investigator must immediately return a thing seized as 29
evidence to its owner if the investigator stops being satisfied 30
its continued retention as evidence is necessary. 31
s 562 401 s 563
Legal Profession Bill 2007
562 Access to seized things 1
(1) Until a seized thing is forfeited or returned, an investigator 2
must allow its owner to inspect it and, if it is a document, to 3
copy it. 4
(2) Subsection (1) does not apply if it is impracticable or would 5
be unreasonable to allow the inspection or copying. 6
Part 6.6 General enforcement matters 7
563 Notice of damage 8
(1) This section applies if-- 9
(a) an investigator damages property when exercising or 10
purporting to exercise a power; or 11
(b) a person (the other person) acting under the direction of 12
an investigator damages property. 13
(2) The investigator must promptly give written notice of 14
particulars of the damage to the person who appears to the 15
investigator to be the owner of the property. 16
(3) If the investigator believes the damage was caused by a latent 17
defect in the property or circumstances beyond the 18
investigator's or other person's control, the investigator may 19
state the belief in the notice. 20
(4) If, for any reason, it is impracticable to comply with 21
subsection (2), the investigator must leave the notice in a 22
conspicuous position and in a reasonably secure way where 23
the damage happened. 24
(5) This section does not apply to damage the investigator 25
reasonably believes is trivial. 26
(6) In subsection (2)-- 27
owner, of property, includes the person in possession or 28
control of it. 29
s 564 402 s 566
Legal Profession Bill 2007
564 Compensation 1
(1) A person may claim compensation-- 2
(a) from the law society if the person incurs loss or expense 3
because of the exercise or purported exercise of a power 4
under part 6.3, 6.4 or 6.585 in relation to a trust account 5
investigation that, at the time of the exercise or 6
purported exercise of a power, was not a trust account 7
investigation as part of investigation into a complaint or 8
investigation matter; or 9
(b) from the commissioner if the person incurs loss or 10
expense because of any other exercise or purported 11
exercise of a power under part 6.3, 6.4 or 6.5. 12
(2) Without limiting subsection (1), compensation may be 13
claimed for loss or expense incurred in complying with a 14
requirement of the person made or purported to have been 15
made under part 6.3, 6.4 or 6.5. 16
(3) Compensation may be claimed and ordered to be paid in a 17
proceeding brought in a court with jurisdiction for the 18
recovery of the amount of compensation claimed. 19
(4) A court may order compensation to be paid only if it is 20
satisfied it is fair to make the order in the circumstances of the 21
particular case. 22
565 False or misleading information 23
A person must not state anything to an investigator that the 24
person knows is false or misleading in a material particular. 25
Maximum penalty--100 penalty units. 26
566 False or misleading documents 27
(1) A person must not give to an investigator a document 28
containing information the person knows is false or 29
misleading in a material particular. 30
Maximum penalty--100 penalty units. 31
85 Part 6.3 (Entry to places), 6.4 (Powers of investigators after entry) or 6.5 (Power of
investigators to seize evidence)
s 567 403 s 568
Legal Profession Bill 2007
(2) Subsection (1) does not apply to a person who, when giving 1
the document-- 2
(a) informs the investigator, to the best of the person's 3
ability, how it is false or misleading; and 4
(b) gives the correct information to the investigator if the 5
person has, or can reasonably obtain, the correct 6
information. 7
567 Obstructing investigators 8
(1) A person must not obstruct an investigator in the exercise of a 9
power, unless the person has a reasonable excuse. 10
Maximum penalty--100 penalty units. 11
(2) If a person has obstructed an investigator and the investigator 12
decides to proceed with the exercise of the power, the 13
investigator must warn the person that-- 14
(a) it is an offence to obstruct the investigator, unless the 15
person has a reasonable excuse; and 16
(b) the investigator considers the person's conduct is an 17
obstruction. 18
(3) In this section-- 19
obstruct includes hinder, delay, resist and attempt to obstruct. 20
568 Impersonation of investigators 21
A person must not pretend to be an investigator. 22
Maximum penalty--100 penalty units. 23
s 569 404 s 570
Legal Profession Bill 2007
Part 6.7 Provisions about investigations 1
relating to incorporated legal 2
practices 3
569 Definition for pt 6.7 4
In this part-- 5
ILP investigator means any of the following persons who 6
conduct an audit or investigation to which this part applies-- 7
(a) the commissioner; 8
(b) the law society; 9
(c) an investigator appointed by the commissioner or the 10
law society. 11
570 Application of part to audits and investigations 12
(1) This part applies to each of the following-- 13
(a) an audit conducted under section 130;86 14
(b) an investigation under this Act relating to the trust 15
accounts of an incorporated legal practice; 16
(c) an investigation relating to a complaint made under this 17
Act involving legal services provided by an incorporated 18
legal practice, however that complaint is expressed. 19
(2) This section does not limit the powers under chapter 487 in 20
relation to a legal practitioner director, or an associate, of an 21
incorporated legal practice. 22
(3) A person conducting an audit or investigation to which this 23
part applies may exercise the powers set out in this part for the 24
audit or investigation. 25
(4) For subsection (3), in addition to the matters mentioned in 26
section 548(1),88 a magistrate may issue a warrant for a place 27
if the magistrate is satisfied that an ILP investigator has been 28
86 Section 130 (Commissioner or law society may audit incorporated legal practice)
87 Chapter 4 (Complaints and discipline)
88 Section 548 (Issue of warrant)
s 571 405 s 571
Legal Profession Bill 2007
unreasonably refused entry to the place for an audit as 1
mentioned in subsection (1)(a) and the provisions of this 2
chapter about warrants apply with necessary changes. 3
(5) A regulation may provide for how the provisions about 4
warrants apply in relation to the issue of a warrant for an 5
audit, and related matters. 6
571 Examination of persons 7
(1) An ILP investigator has and may exercise the same powers as 8
those conferred on the Australian Securities and Investments 9
Commission by the Australian Securities and Investments 10
Commission Act 2001 (Cwlth), part 3, division 2.89 11
(2) The Australian Securities and Investments Commission Act 12
2001 (Cwlth), part 3, division 2, applies to and in relation to 13
the exercise of those powers with the necessary changes, 14
including the following changes-- 15
(a) a reference to the Australian Securities and Investments 16
Commission, however expressed, is taken to be a 17
reference to an ILP investigator; 18
(b) a reference to a matter that is being or is to be 19
investigated under part 3, division 1,90 of that Act is 20
taken to be a reference to a matter that is being or is to 21
be investigated by an ILP investigator; 22
(c) a reference in section 1991 of that Act to a person is 23
taken to be a reference to an Australian legal practitioner 24
or an incorporated legal practice; 25
(d) a reference to an inspector is taken to be a reference to 26
an ILP investigator; 27
89 Australian Securities and Investments Commission Act 2001 (Cwlth), part 3
(Investigations and information-gathering), division 2 (Examination of persons)
90 Australian Securities and Investments Commission Act 2001 (Cwlth), part 3
(Investigations and information-gathering), division 1 (Investigations)
91 Australian Securities and Investments Commission Act 2001 (Cwlth), section 19
(Notice requiring appearance for examination)
s 572 406 s 572
Legal Profession Bill 2007
(e) a reference to a prescribed form is taken to be a 1
reference to an approved form that is approved by the 2
commissioner. 3
(3) The Australian Securities and Investments Commission Act 4
2001 (Cwlth), sections 22(2) and (3), 25(2) and (2A), 26 and 5
2792 do not apply in relation to the exercise of the powers 6
conferred on an ILP investigator under this section. 7
572 Inspection of books 8
(1) An ILP investigator has and may exercise the same powers as 9
those conferred on the Australian Securities and Investments 10
Commission by the Australian Securities and Investments 11
Commission Act 2001 (Cwlth), sections 30(1), 34 and 37 to 12
39.93 13
(2) Those provisions apply in relation to the exercise of those 14
powers, with the necessary changes, including the following 15
changes-- 16
(a) a reference to the Australian Securities and Investments 17
Commission, however expressed, is taken to be a 18
reference to an ILP investigator; 19
(b) a reference to a body corporate, including a body 20
corporate that is not an exempt public authority, is taken 21
to be a reference to an incorporated legal practice; 22
(c) a reference to an eligible person in relation to an 23
incorporated legal practice is taken to be a reference to 24
an officer or employee of the incorporated legal 25
practice; 26
(d) a reference to a member or staff member is taken to be a 27
reference to the ILP investigator or a person authorised 28
92 Australian Securities and Investments Commission Act 2001 (Cwlth), sections 22
(Examination to take place in private), 25 (Giving to other persons copies of record),
26 (Copies given subject to conditions) and 27 (Record to accompany report)
93 Australian Securities and Investments Commission Act 2001 (Cwlth), sections 30
(Notice to produce books about affairs of body corporate or registered scheme), 34
(ASIC may authorise persons to require production of books, giving of information
etc.), 37 (Powers where books produced or seized), 38 (Powers where books not
produced) and 39 (Power to require person to identify property of body corporate)
s 573 407 s 574
Legal Profession Bill 2007
by the ILP investigator who is an officer or employee of 1
the ILP investigator; 2
(e) a reference in section 37 of that Act to a proceeding is 3
taken to be a reference to an audit or investigation to 4
which this part applies or an examination under section 5
571. 6
573 Power to hold hearings 7
(1) An ILP investigator may hold hearings for the purposes of 8
audit or investigation to which this part applies or an 9
examination under section 571. 10
(2) The Australian Securities and Investments Commission Act 11
2001 (Cwlth), sections 52, 56(1), 58, 59(1), (2), (5), (6) and 12
(8) and 60 (paragraph (b) excepted)94 apply in relation to a 13
hearing with any necessary changes, including the following 14
changes-- 15
(a) a reference to the Australian Securities and Investments 16
Commission (however expressed) is taken to be a 17
reference to an ILP investigator; 18
(b) a reference to a member or staff member is taken to be a 19
reference to an ILP investigator, or a person authorised 20
by an ILP investigator who is an officer or employee of 21
the ILP investigator; 22
(c) a reference to a prescribed form is taken to be a 23
reference to a form approved by the commissioner. 24
574 Failure to comply with investigation 25
The following acts or omissions are capable of constituting 26
unsatisfactory professional conduct or professional 27
misconduct-- 28
94 Australian Securities and Investments Commission Act 2001 (Cwlth), sections 52
(General discretion to hold hearing in public or private), 56 (Who may be present
when hearing takes place in private), 58 (Power to summon witnesses and take
evidence), 59 (Proceedings at hearings) and 60 (ASIC to take account of evidence
and submissions)
s 575 408 s 575
Legal Profession Bill 2007
(a) a failure by an Australian legal practitioner to comply 1
with any requirement made by an ILP investigator, or a 2
person authorised by the ILP investigator, in the exercise 3
of powers conferred by this part; 4
(b) a contravention by an Australian legal practitioner of 5
any condition imposed by an ILP investigator in the 6
exercise of powers conferred by this part; 7
(c) a failure by a legal practitioner director of an 8
incorporated legal practice to ensure that the 9
incorporated legal practice, or any officer or employee 10
of the incorporated legal practice, complies with any of 11
the following-- 12
(i) any requirement made by an ILP investigator, or a 13
person authorised by the ILP investigator, in the 14
exercise of powers conferred by this part; 15
(ii) any condition imposed by an ILP investigator in 16
the exercise of powers conferred by this part. 17
Part 6.8 Investigators 18
575 Appointment, qualifications etc. of investigators 19
(1) The commissioner may appoint a member of the staff of the 20
commission, or a consultant to the commissioner as 21
mentioned in section 592(2),95 as an investigator only if the 22
commissioner is satisfied the person is qualified for 23
appointment because the person has the necessary expertise or 24
experience. 25
(2) A regulatory authority may appoint an employee of the 26
authority, or another person, as an investigator only if the 27
authority is satisfied the person is qualified for appointment 28
because the person has the necessary expertise or experience. 29
95 Section 592 (Staff and other resources)
s 576 409 s 577
Legal Profession Bill 2007
(3) This section does not limit the power of a regulatory authority 1
to delegate powers to a person who is an investigator 2
appointed by the regulatory authority. 3
(4) An investigator, other than a member of the staff of the 4
commission, is not employed and is not entitled to payments 5
under this Act or the Public Service Act 1996. 6
576 Appointment conditions and limit on powers 7
(1) An investigator holds office on any conditions stated in-- 8
(a) the investigator's instrument of appointment; or 9
(b) a signed notice given to the investigator; or 10
(c) a regulation. 11
(2) The instrument of appointment, a signed notice given to the 12
investigator or a regulation may limit the investigator's powers 13
under this Act. 14
(3) In this section-- 15
signed notice means a notice signed by the commissioner. 16
577 Issue of identity card 17
(1) If the commissioner or a regulatory authority appoints a 18
person as an investigator, the commissioner or the authority 19
appointing the person must issue an identity card to the 20
person. 21
(2) The identity card must-- 22
(a) contain a recent photo of the investigator; and 23
(b) contain a copy of the investigator's signature; and 24
(c) identify the person as an investigator under this Act; and 25
(d) state an expiry date for the card. 26
(3) This section does not prevent the issue of a single identity 27
card to a person for this Act and other purposes. 28
s 578 410 s 580
Legal Profession Bill 2007
578 Production or display of identity card 1
(1) In exercising a power under this Act in relation to a person, an 2
investigator must-- 3
(a) produce the investigator's identity card for the person's 4
inspection before exercising the power; or 5
(b) have the identity card displayed so it is clearly visible to 6
the person when exercising the power. 7
(2) However, if it is not practicable to comply with subsection (1), 8
the investigator must produce the identity card for the person's 9
inspection at the first reasonable opportunity. 10
(3) For subsection (1), an investigator does not exercise a power 11
in relation to a person only because the investigator has 12
entered a place as mentioned in section 545(1)(b) or (2).96 13
579 When investigator ceases to hold office 14
(1) An investigator ceases to hold office if any of the following 15
happens-- 16
(a) the term of office stated in a condition of office ends; 17
(b) under another condition of office, the investigator ceases 18
to hold office; 19
(c) the investigator's resignation under section 580 takes 20
effect. 21
(2) Subsection (1) does not limit the ways an investigator may 22
stop holding office. 23
(3) In this section-- 24
condition of office means a condition on which the 25
investigator holds office. 26
580 Resignation 27
An investigator may resign by signed notice given to-- 28
96 Section 545 (Power to enter places)
s 581 411 s 583
Legal Profession Bill 2007
(a) if the investigator was appointed by a regulatory 1
authority--the authority; or 2
(b) otherwise--the commissioner. 3
581 Return of identity card 4
A person who ceases to be an investigator must return the 5
person's identity card within 21 days after ceasing to be an 6
investigator, unless the person has a reasonable excuse, to-- 7
(a) if the investigator was appointed by a regulatory 8
authority--the authority; or 9
(b) otherwise--the commissioner. 10
Maximum penalty--10 penalty units. 11
Chapter 7 Establishment of entities for 12
this Act, and related matters 13
Part 7.1 Legal Services Commissioner 14
Division 1 Preliminary 15
582 Main purposes of pt 7.1 16
The main purposes of this part are to establish the Legal 17
Services Commissioner and to provide for matters relevant to 18
the commissioner. 19
Division 2 Appointment 20
583 Legal Services Commissioner 21
There is to be a Legal Services Commissioner. 22
s 584 412 s 586
Legal Profession Bill 2007
584 Appointment 1
(1) The Governor in Council may appoint a person as the 2
commissioner by gazette notice. 3
(2) Before recommending a person for appointment as the 4
commissioner, the Minister must be satisfied that the 5
appointee-- 6
(a) is familiar with the nature of the legal system and legal 7
practice; and 8
(b) possesses appropriate qualities of independence, 9
fairness and integrity. 10
(3) The Minister may recommend a person who is not an 11
Australian lawyer. 12
(4) The commissioner is appointed under this Act and not under 13
the Public Service Act 1996. 14
585 Term of appointment 15
(1) The commissioner holds office for the term, not longer than 5 16
years, stated in the gazette notice and may be reappointed. 17
(2) However, a person must not be reappointed if the total of the 18
person's term of appointment would be more than 10 years. 19
586 Remuneration and conditions 20
(1) The commissioner is entitled to be paid the remuneration and 21
allowances decided by the Governor in Council. 22
(2) The commissioner holds office-- 23
(a) on the conditions stated in this Act; and 24
(b) on other conditions decided by the Minister. 25
(3) In this section-- 26
commissioner includes a person appointed to act as 27
commissioner under section 587. 28
s 587 413 s 589
Legal Profession Bill 2007
587 Acting commissioner 1
(1) The Governor in Council may appoint a person to act as 2
commissioner-- 3
(a) during a vacancy in the office; or 4
(b) during any period, or during any periods, when the 5
commissioner is absent from duty or from the State or 6
is, for another reason, unable to perform the duties of 7
the office. 8
(2) The person appointed to act as commissioner must be eligible 9
for appointment as commissioner. 10
588 Termination of appointment 11
(1) The Governor in Council may end the appointment of the 12
commissioner if the commissioner-- 13
(a) becomes incapable of performing the commissioner's 14
functions because of physical or mental incapacity; or 15
(b) is an insolvent under administration; or 16
(c) is guilty of misconduct of a kind that could warrant 17
dismissal from the public service if the commissioner 18
were an officer of the public service. 19
(2) The Governor in Council must end the appointment of the 20
commissioner if the commissioner is convicted of a serious 21
offence or an offence against a relevant law or a 22
corresponding law. 23
589 Resignation of commissioner 24
(1) The commissioner may resign by giving a signed notice of 25
resignation to the Minister. 26
(2) A notice of resignation under subsection (1) takes effect when 27
the notice is given to the Minister or, if a later time is stated in 28
the notice, the later time. 29
s 590 414 s 592
Legal Profession Bill 2007
Division 3 Functions 1
590 Functions 2
(1) The commissioner has the functions conferred or imposed on 3
the commissioner under this Act or another Act. 4
(2) The commissioner may appear, by Australian legal 5
practitioner or government legal officer, and be heard by the 6
Supreme Court in relation to the court's jurisdiction, or an 7
exercise of the court's power, under a relevant law. 8
(3) Also, the commissioner may appear, by Australian legal 9
practitioner or government legal officer, for the purposes of 10
prosecuting a person as an unlawful operator. 11
Division 4 Legal Services Commission 12
591 Establishment of commission 13
(1) The Legal Services Commission established under the Legal 14
Profession Act 2004, section 421, is continued in existence 15
under this Act. 16
(2) The commission consists of the commissioner and the staff of 17
the commission. 18
(3) The commissioner controls the commission. 19
592 Staff and other resources 20
(1) The chief executive must provide the commission with the 21
resources the chief executive considers appropriate for the 22
commissioner to discharge the commissioner's functions 23
effectively and efficiently. 24
(2) The commission may, with the chief executive's approval, 25
consult with, employ and remunerate the Australian lawyers, 26
accountants, auditors or other professionals the commissioner 27
considers necessary to properly perform the commissioner's 28
functions. 29
(3) For subsection (1) or (2), a public service officer may be 30
seconded to the commission. 31
s 593 415 s 595
Legal Profession Bill 2007
(4) In this section-- 1
resources includes office accommodation and equipment, 2
staff and administrative support. 3
staff, in relation to the commission, means the staff that the 4
chief executive provides under subsection (1) and a person 5
employed under subsection (2). 6
593 Preservation of rights if public service officer appointed 7
or engaged 8
(1) A public service officer appointed to an office (whether under 9
this part or under the Legal Profession Act 2004, chapter 6, 10
part 1) is entitled or continues to be entitled to retain all 11
existing and accruing rights as if service in that office were a 12
continuation of service as a public service officer. 13
(2) If the person stops holding that office for a reason other than 14
misconduct, the person-- 15
(a) is entitled to be employed as a public service officer; 16
and 17
(b) is to be employed on the classification level and 18
remuneration that the public service commissioner or 19
another entity prescribed under a regulation considers 20
the person would have attained in the ordinary course of 21
progression if the person had continued in employment 22
as a public service officer. 23
594 Preservation of rights if person becomes public service 24
officer 25
(1) On the appointment of a person holding office under this part 26
as a public service officer, the person's service under this part 27
must be regarded as service as a public service officer. 28
(2) Subsection (1) does not apply to the commissioner if the 29
person is guilty of misconduct in office as commissioner. 30
595 Preservation of rights if public service officer seconded 31
(1) A public service officer seconded as mentioned in section 32
607(3)-- 33
s 596 416 s 596
Legal Profession Bill 2007
(a) is entitled to the person's existing and accruing rights as 1
if employment as a member of the staff of the 2
commission were a continuation of employment as a 3
public service officer; and 4
(b) may apply for positions, and be employed in, the public 5
service as if the person were a public service officer. 6
(2) When the secondment ends, the person's employment on 7
secondment as a member of the staff of the commission is 8
employment of the same nature in the public service for 9
working out the person's rights as a public service officer. 10
(3) If the secondment ended for a reason other than misconduct, 11
the person is entitled to be employed-- 12
(a) as a public service officer; and 13
(b) on the same, or a higher, classification level and 14
remuneration that the public service commissioner or 15
another entity prescribed under a regulation considers 16
the person would have attained in the ordinary course of 17
progression if the person had not been seconded. 18
Division 5 Miscellaneous matters about the 19
commissioner 20
596 Delegation 21
(1) The commissioner may delegate the commissioner's powers 22
under this Act, other than this power of delegation, to an 23
appropriately qualified member of the staff of the 24
commission. 25
(2) In this section-- 26
appropriately qualified, includes having the qualifications, 27
experience or standing appropriate to the exercise of the 28
power. 29
s 597 417 s 600
Legal Profession Bill 2007
597 Arrangements with regulatory authority about copies of 1
documents 2
If, under this Act, a regulatory authority must give a document 3
to the commissioner, the regulatory authority may, in an 4
electronic way, give the document to the commissioner if the 5
commissioner has entered into an arrangement with the 6
regulatory authority about giving documents to the 7
commissioner in that way. 8
Part 7.2 Legal Practice Tribunal 9
Division 1 Preliminary 10
598 Main purpose of pt 7.2 11
The main purpose of this part is to establish the Legal Practice 12
Tribunal to deal with matters it is empowered to deal with 13
under this Act. 14
Division 2 Establishment of Legal Practice 15
Tribunal and related matters 16
599 Establishment, members and chairperson of tribunal 17
(1) The Legal Practice Tribunal established under the Legal 18
Profession Act 2004, section 429, is continued in existence 19
under this Act. 20
(2) The members of the tribunal are the Supreme Court judges. 21
(3) The Chief Justice is the chairperson of the tribunal. 22
(4) The tribunal is constituted by any 1 of its members. 23
600 Way tribunal is to operate 24
(1) The chairperson is to allocate the work of the tribunal. 25
s 601 418 s 604
Legal Profession Bill 2007
(2) The tribunal, as constituted by any 1 of its members, may sit 1
in more than 1 place at the same time. 2
601 Jurisdiction 3
The tribunal's jurisdiction is to hear and decide a discipline 4
application made to the tribunal. 5
602 Powers 6
(1) The tribunal may do all things necessary or convenient to be 7
done for exercising its jurisdiction. 8
(2) Without limiting subsection (1), the tribunal has the powers 9
conferred on it under this Act or another Act. 10
603 Rule-making power 11
(1) The Governor in Council may, on the recommendation of the 12
chairperson, make rules for the practice and procedure of the 13
tribunal (tribunal rules). 14
(2) The tribunal rules may make provision for the practice and 15
procedure of the committee. 16
(3) The tribunal rules are subordinate legislation. 17
604 Practice directions 18
(1) To the extent a matter about the tribunal's procedure is not 19
provided for by this Act or the tribunal rules, the matter may 20
be dealt with by directions under this section. 21
(2) The chairperson may issue directions of general application 22
about the tribunal's procedures. 23
(3) The chairperson may delegate the chairperson's power under 24
subsection (2) to another member of the tribunal. 25
(4) A member constituting the tribunal may issue particular 26
directions for a hearing. 27
s 605 419 s 607
Legal Profession Bill 2007
605 Registrar 1
The registrar of the tribunal, as constituted by any 1 of its 2
members, is the registrar for the Supreme Court district in 3
which the tribunal is hearing the discipline application. 4
606 Tribunal's seal 5
(1) The tribunal must have a seal for each Supreme Court district. 6
(2) Each seal must be judicially noticed. 7
(3) The registrar for each Supreme Court district is to have 8
custody of the seal for the district. 9
Division 3 Panels, members of panels and 10
related matters 11
607 Establishment of panels for helping the tribunal 12
(1) The following panels established under the Legal Profession 13
Act 2004, section 437, are continued in existence under this 14
Act-- 15
(a) the lay panel; 16
(b) the practitioner panel. 17
(2) The practitioner panel is to consist of both barristers and 18
solicitors. 19
(3) One member of the lay panel and 1 member of the practitioner 20
panel are to sit with the tribunal and help the tribunal in 21
hearing and deciding a discipline application. 22
(4) However, if a panel member disqualifies himself or herself as 23
mentioned in section 613(2),97 the tribunal may continue with 24
the relevant hearing if the tribunal member considers it 25
appropriate to do so. 26
97 Section 613 (Disclosure of interests)
s 608 420 s 609
Legal Profession Bill 2007
608 Appointment of panel members 1
(1) The members of the panels are to be appointed under this Act 2
by the Governor in Council. 3
(2) A person is eligible for appointment as a member of the lay 4
panel only if the person-- 5
(a) has high level experience and knowledge of consumer 6
protection, business, public administration or another 7
relevant area; and 8
(b) is not, and has not been, an Australian lawyer, foreign 9
lawyer or otherwise legally qualified; and 10
(c) has not been convicted of a serious offence or an offence 11
against a relevant law or a corresponding law, including 12
before the commencement of this section; and 13
(d) is not an insolvent under administration. 14
(3) A person is eligible for appointment as a member of the 15
practitioner panel only if the person-- 16
(a) is an Australian legal practitioner who has held a 17
practising certificate for at least 5 years; and 18
(b) has not been convicted of a serious offence or an offence 19
against a relevant law or a corresponding law, including 20
before the commencement of this section; and 21
(c) is not an insolvent under administration. 22
(4) A member holds office for a term, of not longer than 5 years, 23
stated in the instrument of appointment. 24
(5) For subsection (3)(a), in relation to any part of the 5 year 25
period before 1 July 2004, a barrister is not required to have 26
held a practising certificate for that part of the period if the 27
barrister was practising as a barrister during that period. 28
609 Remuneration and appointment conditions of panel 29
members 30
(1) A member of the lay panel is entitled to be paid the 31
remuneration and allowances decided by the Governor in 32
Council for sitting with the tribunal in relation to hearing and 33
deciding a discipline application. 34
s 610 421 s 611
Legal Profession Bill 2007
(2) It is a condition of a lay member's appointment that if the 1
member's appointment is terminated under section 610, the 2
member is not entitled to any remuneration or allowances 3
applicable to any sitting after the date of the termination. 4
(3) To the extent that the conditions are not provided for by this 5
Act, a member of the lay panel or practitioner panel holds 6
office on the conditions decided by the Governor in Council. 7
610 Termination of appointment 8
(1) The Governor in Council may end the appointment of a panel 9
member if the panel member-- 10
(a) becomes incapable of performing the member's 11
functions because of physical or mental incapacity; or 12
(b) is an insolvent under administration; or 13
(c) is guilty of misconduct of a kind that could warrant 14
dismissal from the public service if the member were an 15
officer of the public service. 16
(2) The Governor in Council must terminate the appointment of a 17
panel member if the member-- 18
(a) is convicted of a serious offence or an offence against a 19
relevant law or a corresponding law; or 20
(b) for a member of the lay panel--becomes an Australian 21
lawyer or otherwise legally qualified; or 22
(c) for a member of the practitioner panel--stops holding a 23
practising certificate. 24
611 Resignation of members 25
(1) A panel member may resign by giving a signed notice of 26
resignation to the Minister. 27
(2) A notice of resignation under subsection (1) takes effect when 28
the notice is given to the Minister or, if a later time is stated in 29
the notice, the later time. 30
s 612 422 s 613
Legal Profession Bill 2007
Division 4 Role of tribunal members and panel 1
members 2
612 Role of members 3
(1) The chairperson may do all things necessary or convenient to 4
be done for the performance of the chairperson's role. 5
(2) The role of a tribunal member and panel member includes 6
professionally and efficiently performing the functions of the 7
tribunal assigned or given to the member under this Act or 8
another Act. 9
(3) Each tribunal member and panel member must comply with 10
the procedures and policies implemented by the chairperson 11
for the tribunal's adjudicative operations. 12
613 Disclosure of interests 13
(1) If a tribunal member, or a panel member helping the tribunal, 14
becomes aware that the member has a conflict of interest 15
about a proceeding before the tribunal, the member must 16
disclose the issue giving rise to the conflict-- 17
(a) if the member is the chairperson--to the parties to the 18
proceeding; or 19
(b) otherwise--to the chairperson and the parties to the 20
proceeding. 21
(2) After making the disclosure, the member must disqualify 22
himself or herself. 23
(3) A member has a conflict of interest about a proceeding if the 24
member has an interest, financial or otherwise, that could 25
conflict with the proper performance of the member's 26
functions for the proceeding. 27
(4) If the person who is disqualified is a panel member, the 28
tribunal member may decide it is appropriate to proceed with 29
the hearing with only 1 panel member. 30
s 614 423 s 615
Legal Profession Bill 2007
Division 5 Constitution of tribunal for hearings 1
614 Constitution of tribunal for hearings 2
(1) For hearing and deciding a discipline application made to the 3
tribunal, the tribunal is constituted by a tribunal member. 4
(2) However, although panel members do not constitute the 5
tribunal, the tribunal member is to be helped by 2 panel 6
members chosen by the Brisbane registrar and approved by 7
the tribunal member. 8
(3) The panel members mentioned in subsection (2) must consist 9
of-- 10
(a) 1 lay panel member; and 11
(b) 1 of the following members-- 12
(i) if the complaint is about the conduct of a person 13
who, at the time of performing the acts or omitting 14
to do the acts constituting the conduct complained 15
of, was a barrister or, in the opinion of the tribunal 16
member, was engaged in legal practice in the 17
manner of a barrister--a member of the 18
practitioner panel who is a barrister; 19
(ii) otherwise--a member of the practitioner panel 20
who is a solicitor. 21
(4) The registrar must keep a record of the name of the tribunal 22
member for each hearing, the names of the panel members 23
helping the tribunal and the discipline application for which 24
the hearing is held. 25
Division 6 Other provisions 26
615 Institution of proceedings by the commissioner 27
The commissioner may bring a proceeding under this part for 28
the imposition or enforcement of a penalty. 29
s 616 424 s 618
Legal Profession Bill 2007
616 Contempt of tribunal 1
(1) The tribunal has, for itself, the tribunal members and the panel 2
members, all the protection, powers, jurisdiction and authority 3
the Supreme Court has for that court in relation to contempt of 4
court. 5
(2) The tribunal must comply with the Uniform Civil Procedure 6
Rules relating to contempt of court, with necessary changes. 7
(3) The registrar may apply to the tribunal for an order that a 8
person be committed to prison for contempt of the tribunal. 9
(4) The tribunal's jurisdiction to punish a contempt of the tribunal 10
may be exercised on the tribunal's own initiative. 11
617 Conduct that is contempt and an offence 12
If conduct of a person is both contempt of the tribunal and an 13
offence, the person may be proceeded against for the 14
contempt or for the offence, but the person is not liable to be 15
punished twice for the same conduct. 16
618 Protection of members etc. 17
(1) A tribunal member or panel member has, in the performance 18
of the member's duties as a member, the same protection and 19
immunity as a Supreme Court judge carrying out the functions 20
of a judge. 21
(2) A person representing a person before the tribunal has the 22
same protection and immunity as an Australian legal 23
practitioner appearing for a party in a proceeding in the 24
Supreme Court. 25
(3) A person appearing before the tribunal as a witness has the 26
same protection as a witness in a proceeding in the Supreme 27
Court. 28
(4) A document produced at, or used for, a tribunal hearing has 29
the same protection it would have if produced before the 30
Supreme Court. 31
s 619 425 s 622
Legal Profession Bill 2007
Part 7.3 Legal Practice Committee 1
Division 1 Preliminary 2
619 Main purpose of pt 7.3 3
The main purpose of this part is to establish the Legal Practice 4
Committee to deal with matters it is empowered to deal with 5
under this Act. 6
620 Definitions for pt 7.3 7
In this part-- 8
barrister means a local legal practitioner who holds a current 9
practising certificate to practise as a barrister. 10
solicitor means a local legal practitioner who holds a current 11
local practising certificate to practise as a solicitor. 12
Division 2 Establishment, membership of 13
committee, functions and powers 14
621 Establishment of committee 15
The Legal Practice Committee established under the Legal 16
Profession Act 2004, section 451, is continued in existence 17
under this Act. 18
622 Committee members 19
(1) The committee is to consist of the following members 20
appointed by the Governor in Council-- 21
(a) a chairperson; 22
(b) 2 solicitors; 23
(c) 2 barristers; 24
(d) 2 lay members. 25
s 623 426 s 625
Legal Profession Bill 2007
(2) Before recommending a person for appointment as the 1
chairperson, the Minister must be satisfied the person has high 2
level experience and knowledge of the legal system and legal 3
practice. 4
(3) For choosing someone to recommend for appointment under 5
subsection (1)(b), the Minister may invite nominations from 6
the law society. 7
(4) For choosing someone to recommend for appointment under 8
subsection (1)(c), the Minister may invite nominations from 9
the bar association. 10
(5) Before recommending a person for appointment under 11
subsection (1)(d), the Minister must be satisfied the person 12
has high level experience and knowledge of consumer 13
protection, business, public administration or another relevant 14
area but is not an Australian lawyer or otherwise legally 15
qualified. 16
623 Term of appointment 17
The appointment of a member of the committee is for the term 18
stated in the member's appointment. 19
624 Functions and powers of committee 20
(1) The committee has the functions provided for under this Act. 21
(2) The committee has all the powers necessary or convenient for 22
performing its functions. 23
625 Administrative support 24
The commissioner must provide administrative support for the 25
committee, including secretariat support. 26
s 626 427 s 628
Legal Profession Bill 2007
Division 3 Provisions about committee 1
members 2
626 Eligibility for membership 3
A person can not become a member of the committee if the 4
person-- 5
(a) has been convicted of a serious offence or an offence 6
against a relevant law or a corresponding law; or 7
(b) is an insolvent under administration. 8
627 Termination of office 9
(1) The Governor in Council may terminate the appointment of a 10
committee member if the member-- 11
(a) becomes incapable of performing the member's 12
functions because of physical or mental incapacity; or 13
(b) is guilty of misconduct of a kind that could warrant 14
dismissal from the public service if the member were an 15
officer of the public service. 16
(2) The Governor in Council must end the appointment of a 17
committee member if the member-- 18
(a) is convicted of a serious offence or an offence against a 19
relevant law or a corresponding law; or 20
(b) is an insolvent under administration; or 21
(c) if the person was appointed because the person was a 22
solicitor--the person stops being a solicitor; or 23
(d) if the person was appointed because the person was a 24
barrister--the person stops being a barrister; or 25
(e) if the person was appointed as a lay member--the 26
person becomes an Australian lawyer or otherwise 27
legally qualified. 28
628 Resignation of committee member 29
(1) A committee member may resign by giving a signed notice of 30
resignation to the Minister. 31
s 629 428 s 633
Legal Profession Bill 2007
(2) A notice of resignation under subsection (1) takes effect when 1
the notice is given to the Minister or, if a later time is stated in 2
the notice, the later time. 3
629 Deputy chairperson 4
(1) The committee members must appoint a member, other than 5
the chairperson, as the deputy chairperson of the committee. 6
(2) The appointment of the deputy chairperson may be for a time 7
decided by the committee but not for longer than the deputy 8
chairperson's term of appointment as a member. 9
630 Remuneration and allowances of lay members 10
A lay member of the committee is entitled to be paid the 11
remuneration and allowances decided by the Governor in 12
Council. 13
Division 4 Provisions about committee 14
performing advisory functions 15
631 Application of pt 7.3, div 4 16
This division applies to the committee in performing its 17
advisory functions under this Act.98 18
632 Conduct of business 19
Subject to this division, the committee may conduct its 20
business, including its meetings, in the way it considers 21
appropriate. 22
633 Time and place of meeting 23
(1) Committee meetings are to be held at the times and places the 24
chairperson decides. 25
98 See section 226 (Monitoring role of committee) that provides the committee has
particular functions for advising the Minister about the legal profession rules.
s 634 429 s 636
Legal Profession Bill 2007
(2) However, the chairperson must call a meeting if asked, in 1
writing, to do so by at least 4 members. 2
(3) In the absence of the chairperson, the deputy chairperson may 3
exercise the powers of the chairperson under this section. 4
634 Quorum 5
A quorum for the committee is 4 members. 6
635 Presiding at meetings 7
(1) The chairperson is to preside at all meetings of the committee 8
at which the chairperson is present. 9
(2) If the chairperson is absent from a committee meeting, but the 10
deputy chairperson is present, the deputy chairperson is to 11
preside. 12
(3) If the chairperson and deputy chairperson are both absent 13
from a committee meeting, including because of a vacancy in 14
the office, a member chosen by the members present is to 15
preside at the committee meeting. 16
636 Conduct of meetings 17
(1) A question at a committee meeting is decided by a majority of 18
the votes of the members present. 19
(2) Each member present at the meeting has a vote on each 20
question to be decided and, if the votes are equal, the member 21
presiding also has a casting vote. 22
(3) A member present at the meeting who abstains from voting is 23
taken to be have voted for the negative. 24
(4) The committee may hold meetings, or allow members to take 25
part in its meetings, by using any technology that reasonably 26
allows members to hear and take part in discussions as they 27
happen. 28
Example of use of technology-- 29
teleconferencing 30
(5) A member who takes part in a committee meeting under 31
subsection (4) is taken to be present at the meeting. 32
s 637 430 s 638
Legal Profession Bill 2007
(6) A resolution is validly made by the committee, even if it is not 1
passed at a committee meeting, if-- 2
(a) notice of the resolution is given under procedures 3
approved by the committee; and 4
(b) a majority of the committee members give written 5
agreement to the resolution. 6
637 Minutes 7
(1) The committee must keep-- 8
(a) minutes of its meetings; and 9
(b) a record of any resolutions made under section 636(6). 10
(2) Subsection (3) applies if a resolution is passed at a committee 11
meeting by a majority of the members present. 12
(3) If asked by a member who voted against the passing of the 13
resolution, the committee must record in the minutes of the 14
meeting that the member voted against the resolution. 15
638 Disclosure of interests 16
(1) This section applies to a committee member (the interested 17
person) if-- 18
(a) the interested person has a direct or indirect interest in 19
an issue being considered, or about to be considered, by 20
the committee; and 21
(b) the interest could conflict with the proper performance 22
of the interested person's duties about the consideration 23
of the issue. 24
(2) After the relevant facts come to the interested person's 25
knowledge, the person must disclose the nature of the interest 26
to a committee meeting. 27
(3) Unless the committee otherwise directs, the interested person 28
must not-- 29
(a) be present when the committee considers the issue; or 30
(b) take part in a decision of the committee about the issue. 31
s 639 431 s 639
Legal Profession Bill 2007
(4) The interested person must not be present when the committee 1
is considering whether to give a direction under subsection 2
(3). 3
(5) If there is another person who must, under subsection (2), also 4
disclose an interest in the issue, the other person must not-- 5
(a) be present when the committee is considering whether 6
to give a direction under subsection (3) about the 7
interested person; or 8
(b) take part in making the decision about giving the 9
direction. 10
(6) If-- 11
(a) because of this section, a committee member is not 12
present at a committee meeting for considering or 13
deciding an issue, or for considering or deciding 14
whether to give a direction under subsection (3); and 15
(b) there would be a quorum if the member were present; 16
the remaining persons present are a quorum of the committee 17
for considering or deciding the issue, or for considering or 18
deciding whether to give the direction, at the meeting. 19
(7) A disclosure under subsection (2) must be recorded in the 20
committee's minutes. 21
Division 5 Provisions applying to committee 22
for hearings 23
639 Constitution of committee for hearing 24
(1) The chairperson must make arrangements about constituting 25
the committee for hearing and deciding discipline 26
applications. 27
(2) For hearing and deciding a discipline application made to the 28
committee, the committee is constituted by-- 29
(a) the chairperson; and 30
(b) a member of the committee who is a local legal 31
practitioner chosen by the chairperson; and 32
s 640 432 s 641
Legal Profession Bill 2007
(c) a lay member of the committee chosen by the 1
chairperson. 2
(3) In choosing a local legal practitioner as mentioned in 3
subsection (2), the chairperson must choose a person who is-- 4
(a) if the discipline application is about the conduct of a 5
person who, at the time of performing the acts or 6
omitting to do the acts constituting the conduct 7
complained of, was a barrister or, in the opinion of the 8
chairperson, was engaged in legal practice in the manner 9
of a barrister--a barrister; or 10
(b) otherwise--a solicitor. 11
(4) The chairperson is to preside at the hearing of a matter 12
referred to the committee. 13
(5) In this section-- 14
chairperson includes the deputy chairperson. 15
640 Conduct of committee for hearing and deciding discipline 16
applications 17
(1) To the extent a matter about the committee's procedure is not 18
provided for by this Act or the tribunal rules, the matter may 19
be dealt with by directions under this section. 20
(2) The chairperson may issue directions of general application 21
about the committee's procedures. 22
(3) The committee may issue particular directions for a hearing. 23
(4) Despite section 639(2), the committee may be constituted by 24
the chairperson or deputy chairperson of the committee for the 25
purpose of issuing particular directions for a hearing. 26
641 Disclosure of interests 27
(1) If a member of the committee becomes aware that the member 28
has a conflict of interest about a discipline application made to 29
the committee, the member must disclose the issue giving rise 30
to the conflict-- 31
(a) if the member is the chairperson--to the parties to the 32
proceeding in relation to the discipline application; or 33
s 642 433 s 642
Legal Profession Bill 2007
(b) otherwise--to the chairperson and the parties to the 1
proceeding. 2
(2) After making the disclosure, the member must disqualify 3
himself or herself. 4
(3) A member has a conflict of interest about a proceeding if the 5
member has an interest, financial or otherwise, that could 6
conflict with the proper performance of the member's 7
functions for the proceeding. 8
(4) If the parties agree, the remaining members of the committee 9
may continue with hearing and deciding the discipline 10
application. 11
(5) However, if the parties do not agree as mentioned in 12
subsection (4), the hearing of the discipline application must 13
stop and the committee must be reconstituted to hear and 14
decide the discipline application. 15
(6) If the committee can not be reconstituted under subsection 16
(5), the discipline application is to be transferred to the 17
tribunal under the tribunal rules. 18
642 Protection of members etc. 19
(1) A committee member has, in the performance of the 20
member's duties as a member of the committee hearing and 21
deciding a discipline application, the same protection and 22
immunity as a Supreme Court judge carrying out the functions 23
of a judge. 24
(2) A person representing a person before the committee has the 25
same protection and immunity as an Australian legal 26
practitioner appearing for a party in a proceeding in the 27
Supreme Court. 28
(3) A person appearing before the committee as a witness has the 29
same protection as a witness in a proceeding in the Supreme 30
Court. 31
(4) A document produced at, or used for, a hearing of the 32
committee has the same protection it would have if produced 33
before the Supreme Court. 34
s 643 434 s 643
Legal Profession Bill 2007
Part 7.4 Provisions applying to each 1
disciplinary body 2
Division 1 Parties to proceedings 3
643 Parties 4
(1) The parties to a proceeding in a disciplinary body for a 5
discipline application are-- 6
(a) the respondent in relation to the complaint or 7
investigation matter; and 8
(b) the commissioner. 9
(2) The parties are entitled to appear at the hearing of the 10
application. 11
(3) The complainant is entitled to appear at the hearing in relation 12
to-- 13
(a) those aspects of the hearing that relate to a request by 14
the complainant for a compensation order; and 15
(b) other aspects of the hearing, but only if the disciplinary 16
body grants leave to the complainant to appear in 17
relation to them. 18
(4) The disciplinary body may grant leave to another person to 19
appear at the hearing if the disciplinary body is satisfied it is 20
appropriate for that person to appear at the hearing. 21
(5) A person who is entitled to appear at the hearing or who is 22
granted leave to appear at the hearing may appear personally 23
or be represented by an Australian legal practitioner or a 24
government legal officer. 25
(6) In this section-- 26
Australian legal practitioner includes a person to whom 27
chapter 4 applies as mentioned in section 417.99 28
99 Section 417 (Application of chapter to lawyers, former lawyers and former
practitioners)
s 644 435 s 646
Legal Profession Bill 2007
Division 2 Conduct of proceedings 1
644 Public hearings 2
(1) A hearing before a disciplinary body must be open to the 3
public, unless the disciplinary body directs that the hearing or 4
a part of the hearing be closed to the public. 5
(2) A disciplinary body may not direct that a hearing or a part of a 6
hearing be closed to the public unless satisfied that it is 7
desirable to do so in the public interest for reasons connected 8
with-- 9
(a) the subject matter of the hearing; or 10
(b) the nature of the evidence to be given. 11
645 Procedure for hearing by a disciplinary body 12
(1) When conducting a hearing, a disciplinary body-- 13
(a) must comply with natural justice; and 14
(b) must act as quickly, and with as little formality and 15
technicality, as is consistent with a fair and proper 16
consideration of the issues before it; and 17
(c) is not bound by the rules of evidence; and 18
(d) may inform itself of anything in the way it considers 19
appropriate. 20
(2) Subsection (1) is subject to another provision of this Act that 21
states a particular way the disciplinary body must conduct the 22
hearing. 23
646 Recording evidence 24
(1) A disciplinary body for a discipline application may decide 25
whether or not a proceeding before it is to be recorded under 26
the Recording of Evidence Act 1962. 27
(2) Subject to an order made under section 650 and the 28
requirements of the Recording of Evidence Act 1962, anyone 29
is entitled to obtain a copy of the record under that Act. 30
s 647 436 s 649
Legal Profession Bill 2007
647 Disciplinary body may proceed in absence of party or 1
may adjourn hearing 2
(1) At a hearing, a disciplinary body may proceed in the absence 3
of a party if it reasonably believes the party has been given 4
sufficient notice of the hearing, including notice given before 5
the commencement of this section. 6
(2) A disciplinary body may adjourn the hearing from time to 7
time. 8
648 Matter may be decided on affidavit evidence 9
If a disciplinary body receives in evidence an affidavit of 1 10
party, the disciplinary body may decide all or part of a 11
discipline application or any relevant fact on the evidence 12
given in the affidavit-- 13
(a) with the written consent of the other party; or 14
(b) if the other party does not appear and-- 15
(i) the party filing the affidavit has given the other 16
party a copy of the affidavit and the name of the 17
person making the affidavit is included in a list of 18
documents given to the other party under the 19
tribunal rules; or 20
(ii) appropriate enquiries have been made as to the 21
other party's whereabouts and, in all the 22
circumstances, it is reasonable for the matter to be 23
decided in that party's absence. 24
649 Standard of proof 25
(1) If an allegation of fact is not admitted or is challenged when a 26
disciplinary body is hearing a discipline application, the body 27
may act on the allegation if the body is satisfied on the 28
balance of probabilities that the allegation is true. 29
(2) For subsection (1), the degree of satisfaction required varies 30
according to the consequences for the relevant Australian 31
legal practitioner or law practice employee of finding the 32
allegation to be true. 33
(3) In this section-- 34
s 650 437 s 650
Legal Profession Bill 2007
Australian legal practitioner includes a person to whom 1
chapter 4 applies as mentioned in section 417. 2
650 Prohibited publication about hearing of a disciplinary 3
application 4
(1) A disciplinary body for a discipline application, either before, 5
during or immediately after a hearing, may make an order 6
prohibiting the publication of information stated in the order 7
that relates to the discipline application, the hearing or an 8
order of the disciplinary body. 9
(2) A person must not contravene an order under subsection (1). 10
Maximum penalty--200 penalty units. 11
(3) A person must not publish or allow someone else to publish-- 12
(a) a question disallowed by the disciplinary body at the 13
hearing; or 14
(b) an answer given to a question disallowed by the 15
disciplinary body at the hearing. 16
Maximum penalty--200 penalty units. 17
(4) Also, the disciplinary body may make an order prohibiting-- 18
(a) the issue of the entire or part of a copy of the record 19
made under the Recording of Evidence Act 1962; or 20
(b) the publication of the entire or part of a copy of the 21
record made under that Act. 22
(5) A person must not contravene an order under subsection (4). 23
Maximum penalty--200 penalty units. 24
(6) In this section-- 25
publish includes publish on radio, television or the internet. 26
record includes make an audio recording. 27
s 651 438 s 652
Legal Profession Bill 2007
Division 3 Powers of disciplinary body 1
651 Power to disregard procedural lapses 2
(1) A disciplinary body may order that a failure by the 3
commissioner to observe a procedural requirement in relation 4
to a complaint, investigation matter or discipline application is 5
to be disregarded, if the disciplinary body is satisfied the 6
parties to the hearing have not been prejudiced by the failure. 7
(2) This section applies whether the failure happened-- 8
(a) before the making of the discipline application resulting 9
from the complaint or investigation matter; or 10
(b) after the making of the discipline application. 11
(3) Subsection (1) does not limit the disciplinary body's power to 12
disregard a failure by another person to observe a procedural 13
requirement. 14
652 Directions for hearings 15
(1) A disciplinary body may issue directions in relation to a 16
hearing before the disciplinary body. 17
(2) The disciplinary body may issue the directions-- 18
(a) on the body's own initiative; or 19
(b) at the request of a party or a person granted leave to 20
appear at the hearing; or 21
(c) at the request of another person who has a sufficient 22
interest in-- 23
(i) the hearing; or 24
(ii) another matter arising out of or relating to the 25
hearing. 26
(3) Subsection (1) is subject to the tribunal rules, and directions 27
under section 604.100 28
100 Section 604 (Practice directions)
s 653 439 s 654
Legal Profession Bill 2007
653 Attendance notice 1
(1) A disciplinary body may, on application of a party to a 2
hearing or on its own initiative, by written notice given to a 3
person (an attendance notice), require the person to attend the 4
hearing at a stated time and place to give evidence or to 5
produce stated documents or things. 6
(2) A person given an attendance notice must not fail, without 7
reasonable excuse-- 8
(a) to attend as required by the notice; or 9
(b) to continue to attend as required by the disciplinary 10
body until excused from further attendance. 11
Maximum penalty--100 penalty units. 12
(3) Also at a hearing, a person appearing as a witness must not-- 13
(a) fail to take an oath or make an affirmation when 14
required by the disciplinary body; or 15
(b) fail, without reasonable excuse, to answer a question the 16
person is required to answer by the disciplinary body; or 17
(c) fail, without reasonable excuse, to produce a document 18
or thing the person is required to produce by an 19
attendance notice. 20
Maximum penalty--100 penalty units. 21
(4) It is a reasonable excuse for an individual to fail to answer a 22
question or produce a document or other thing, if answering 23
the question or producing the document or other thing might 24
tend to incriminate the individual. 25
654 Authentication of documents 26
(1) A document relating to a proceeding for a discipline 27
application requiring authentication by a disciplinary body is 28
sufficiently authenticated if it is signed by the tribunal 29
member or the registrar for the proceeding, or the chairperson 30
or deputy chairperson of the committee. 31
(2) However, the tribunal rules may require that a document 32
issued by the tribunal is stamped with the tribunal's seal. 33
(3) Judicial notice must be taken of the signature of-- 34
s 655 440 s 656
Legal Profession Bill 2007
(a) a tribunal member or the registrar that appears on a 1
document issued by the tribunal; or 2
(b) the chairperson or deputy chairperson of the committee 3
that appears on a document issued by the tribunal. 4
Division 4 Offences 5
655 False or misleading information 6
A person must not state anything to a disciplinary body that 7
the person knows is false or misleading in a material 8
particular. 9
Maximum penalty--200 penalty units. 10
656 False or misleading documents 11
(1) A person must not give to a disciplinary body a document 12
containing information the person knows is false or 13
misleading in a material particular. 14
Maximum penalty--200 penalty units. 15
(2) Subsection (1) does not apply to a person who, when giving 16
the document-- 17
(a) informs the disciplinary body, to the best of the person's 18
ability, how the document is false or misleading; and 19
(b) gives the correct information to the disciplinary body if 20
the person has, or can reasonably obtain, the correct 21
information. 22
s 657 441 s 660
Legal Profession Bill 2007
Part 7.5 Legal Practitioners Admissions 1
Board 2
Division 1 Preliminary 3
657 Main purpose of pt 7.5 4
The main purpose of this part is to establish the Legal 5
Practitioners Admissions Board to deal with matters it is 6
empowered to deal with under this Act. 7
658 Definitions for pt 7.5 8
In this part-- 9
barrister means a local legal practitioner who holds a current 10
local practising certificate to practise as a barrister. 11
solicitor means a local legal practitioner who holds a current 12
local practising certificate to practise as a solicitor. 13
Division 2 Establishment and membership of 14
board 15
659 Establishment of board 16
The Legal Practitioners Admissions Board established under 17
the Legal Profession Act 2004, section 489, is continued in 18
existence under this Act. 19
660 Members of board 20
(1) The board is to consist of the following members-- 21
(a) 2 solicitors and 2 barristers; 22
(b) 1 solicitor nominated by the law society; 23
(c) 1 barrister nominated by the bar association; 24
(d) the Brisbane registrar; 25
s 661 442 s 661
Legal Profession Bill 2007
(e) a person nominated by the Minister. 1
(2) The Chief Justice must appoint the members of the board, 2
other than the Brisbane registrar or the Minister's nominee. 3
(3) A person mentioned in subsection (1)(a), (b) or (c) must not 4
be appointed unless the Chief Justice is satisfied the person is 5
an Australian lawyer of at least 5 years standing, including 6
before the commencement of this section. 7
(4) If the law society or bar association fails to nominate a 8
member within 14 days after being requested to do so by the 9
Chief Justice, the Chief Justice may appoint any person whom 10
the Chief Justice considers suitable to represent the interests 11
of the law society or the bar association as a member of the 12
board and the nomination is taken to have been made by the 13
law society or bar association. 14
(5) An appointment under this section must be for no longer than 15
1 year but a person may be reappointed. 16
Division 3 Board's functions and powers 17
661 Functions and powers of board etc. 18
(1) The board has the functions provided for under this Act and 19
the admission rules. 20
(2) The board has all the powers necessary or convenient for 21
performing its functions. 22
(3) Fees payable to the board under section 42101 are not moneys 23
payable to the Supreme Court Library Committee under the 24
Supreme Court Library Act 1968, section 11.102 25
(4) The board is a statutory body for the Financial Administration 26
and Audit Act 1977 and the Statutory Bodies Financial 27
Arrangements Act 1982. 28
101 Section 42 (Fees payable)
102 Supreme Court Library Act 1968, section 11 (Fees received relating to admission
and examinations)
s 662 443 s 666
Legal Profession Bill 2007
662 Administrative support of the board 1
(1) The law society must provide administrative support for the 2
board, including secretariat support. 3
(2) Under an agreement with the law society, the board must pay 4
the law society for the administrative support from fees 5
received by the board. 6
Division 4 Provisions about board members 7
663 Term of appointment 8
A member of the board, other than the Brisbane registrar, 9
holds office for the term stated in the member's appointment. 10
664 Chairperson and deputy chairperson 11
(1) The member of the board appointed by the Chief Justice as 12
chairperson is the chairperson of the board. 13
(2) The board members must appoint a member, other than the 14
chairperson, as the deputy chairperson of the board. 15
(3) The appointment of the deputy chairperson may be for a time 16
decided by the board but not for longer than the deputy 17
chairperson's term of appointment as a member. 18
665 Eligibility for membership 19
A person can not become a board member if the person-- 20
(a) is an insolvent under administration; or 21
(b) has been convicted of a serious offence; or 22
(c) has been convicted of an offence against a relevant law 23
or a corresponding law. 24
666 Termination of appointment 25
(1) The Chief Justice may end the appointment of a board 26
member if the member is absent without the board's 27
s 667 444 s 668
Legal Profession Bill 2007
permission from 3 consecutive meetings of the board of which 1
proper notice has been given. 2
(2) The Chief Justice must end the appointment of a board 3
member if the member-- 4
(a) is an insolvent under administration; or 5
(b) is convicted of a serious offence; or 6
(c) is convicted of an offence against a relevant law or a 7
corresponding law; or 8
(d) if the person was appointed because the person was a 9
solicitor--stops being a solicitor; or 10
(e) if the person was appointed because the person was a 11
barrister--stops being a barrister. 12
(3) In this section-- 13
meeting means-- 14
(a) if the member does not attend, a meeting with a quorum 15
present; or 16
(b) if the member attends, a meeting with or without a 17
quorum present. 18
667 Resignation of board member 19
(1) A board member, other than the Brisbane registrar, may resign 20
by giving a signed notice of resignation to the Chief Justice. 21
(2) A notice of resignation under subsection (1) takes effect when 22
the notice is given to the Chief Justice or, if a later time is 23
stated in the notice, the later time. 24
Division 5 Board business 25
668 Conduct of business 26
Subject to this division, the board may conduct its business, 27
including its meetings, in the way it considers appropriate. 28
s 669 445 s 672
Legal Profession Bill 2007
669 Times and places of meetings 1
(1) Board meetings are to be held at the times and places the 2
chairperson decides. 3
(2) However, the chairperson must call a meeting if asked, in 4
writing, to do so by the Chief Justice or at least 4 members. 5
(3) In the absence of the chairperson, the deputy chairperson may 6
exercise the powers of the chairperson under this section. 7
670 Quorum 8
A quorum for the board is 4 members. 9
671 Presiding at meetings 10
(1) The chairperson is to preside at all meetings of the board at 11
which the chairperson is present. 12
(2) If the chairperson is absent from a board meeting, but the 13
deputy chairperson is present, the deputy chairperson is to 14
preside. 15
(3) If the chairperson and deputy chairperson are both absent 16
from a board meeting, including because of a vacancy in the 17
office, a member chosen by the members present is to preside 18
at the meeting. 19
672 Conduct of meetings 20
(1) A question at a board meeting is decided by a majority of the 21
votes of the members present. 22
(2) Each member present at the meeting has a vote on each 23
question to be decided and, if the votes are equal, the member 24
presiding also has a casting vote. 25
(3) A member present at the meeting who abstains from voting is 26
taken to have voted for the negative. 27
(4) The board may hold meetings, or allow members to take part 28
in its meetings, by using any technology that reasonably 29
allows members to hear and take part in discussions as they 30
happen. 31
s 673 446 s 674
Legal Profession Bill 2007
Example of use of technology-- 1
teleconferencing 2
(5) A member who takes part in a board meeting under subsection 3
(4) is taken to be present at the meeting. 4
(6) A resolution is validly made by the board, even if it is not 5
passed at a board meeting, if-- 6
(a) notice of the resolution is given under procedures 7
approved by the board; and 8
(b) a majority of the board members gives written 9
agreement to the resolution. 10
673 Minutes 11
(1) The board must keep-- 12
(a) minutes of its meetings; and 13
(b) a record of any resolutions made under section 672(6). 14
(2) Subsection (3) applies if a resolution is passed at a board 15
meeting by a majority of the members present. 16
(3) If asked by a member who voted against the passing of the 17
resolution, the board must record in the minutes of the 18
meeting that the member voted against the resolution. 19
674 Disclosure of interests 20
(1) This section applies to a board member (the interested 21
person) if-- 22
(a) the interested person has a direct or indirect interest in 23
an issue being considered, or about to be considered, by 24
the board; and 25
(b) the interest could conflict with the proper performance 26
of the person's duties about the consideration of the 27
issue. 28
(2) After the relevant facts come to the interested person's 29
knowledge, the person must disclose the nature of the interest 30
to a board meeting. 31
s 675 447 s 675
Legal Profession Bill 2007
(3) Unless the board otherwise directs, the interested person must 1
not-- 2
(a) be present when the board considers the issue; or 3
(b) take part in a decision of the board about the issue. 4
(4) The interested person must not be present when the board is 5
considering whether to give a direction under subsection (3). 6
(5) If there is another person who must, under subsection (2), also 7
disclose an interest in the issue, the other person must not-- 8
(a) be present when the board is considering whether to 9
give a direction under subsection (3) about the interested 10
person; or 11
(b) take part in making the decision about giving the 12
direction. 13
(6) If-- 14
(a) because of this section, a board member is not present at 15
a board meeting for considering or deciding an issue, or 16
for considering or deciding whether to give a direction 17
under subsection (3); and 18
(b) there would be a quorum if the member were present; 19
the remaining persons present are a quorum of the board for 20
considering or deciding the issue, or for considering or 21
deciding whether to give the direction, at the meeting. 22
(7) A disclosure under subsection (2) must be recorded in the 23
board's minutes. 24
Division 6 Miscellaneous 25
675 Delegation 26
(1) The board may delegate financial powers under this Act to-- 27
(a) the chairperson; or 28
(b) a person appointed to or otherwise holding the position 29
referred to by the law society as chief executive of the 30
law society. 31
s 676 448 s 678
Legal Profession Bill 2007
(2) A delegation may be for the expenditure of a reasonable 1
amount of not more than the amount fixed by the board in the 2
delegation or for a purpose decided by the board and stated in 3
the delegation. 4
(3) In this section-- 5
financial powers means day-to-day expenditure and financial 6
activities. 7
676 Application of particular Acts to board 8
To remove any doubt, it is declared that the board is a public 9
authority for the purposes of-- 10
(a) the Freedom of Information Act 1992; and 11
(b) the Ombudsman Act 2001. 12
Part 7.6 Queensland Law Society 13
Incorporated 14
Division 1 Preliminary 15
677 Main purpose of pt 7.6 16
(1) The main purpose of this part is to continue in existence the 17
Queensland Law Society Incorporated. 18
(2) The main purpose is to be achieved in part by providing for 19
the council. 20
678 Definitions for pt 7.6 21
In this part-- 22
appointed member, for the council, see section 685(2)(a). 23
council meeting means a meeting of the council under this 24
part. 25
s 679 449 s 680
Legal Profession Bill 2007
council member means a member of the council, including 1
the following-- 2
(a) a presidential member; 3
(b) an immediate past president as mentioned in section 4
685. 5
presidential member means a person who is the president, 6
deputy president or vice-president of the law society. 7
society rules see section 696. 8
Division 2 Constitution and related matters 9
about the law society 10
679 Establishment of Queensland Law Society 11
(1) The body corporate in existence before 1 July 2004 by the 12
name of the Queensland Law Society Incorporated as 13
continued in existence under that name by the Legal 14
Profession Act 2004, section 508, is continued in existence 15
under this Act. 16
(2) The body may continue to refer to itself or be referred to as 17
the Queensland Law Society. 18
(3) The law society-- 19
(a) is a body corporate; and 20
(b) has perpetual succession; and 21
(c) has a common seal; and 22
(d) may sue and be sued in its corporate name. 23
(4) All courts and persons acting judicially must take judicial 24
notice of the imprint of the law society's seal appearing on a 25
document and, until the contrary is proved, must presume the 26
seal was properly affixed. 27
680 Functions of the law society 28
The law society's functions are-- 29
s 681 450 s 682
Legal Profession Bill 2007
(a) to perform the functions conferred on the law society 1
under this Act; and 2
(b) to manage the affairs, income and property of the law 3
society for the purposes and benefit of the law society; 4
and 5
(c) to perform other functions given to the law society 6
under another Act. 7
681 General powers of the law society 8
(1) The law society has all the powers of an individual and may, 9
for example-- 10
(a) enter into contracts; and 11
(b) acquire, hold, dispose of, and deal with property; and 12
(c) appoint agents and attorneys; and 13
(d) engage consultants; and 14
(e) fix charges, and other terms, for services and other 15
facilities it supplies; and 16
(f) do anything else necessary or convenient to be done for 17
its functions. 18
(2) Without limiting subsection (1), the law society has the 19
powers given to it under this Act or another Act. 20
(3) However, the law society's powers are subject to any 21
limitations under this Act or another Act. 22
(4) The law society may exercise its powers inside or outside 23
Queensland. 24
(5) Without limiting subsection (4), the law society may exercise 25
its powers outside Australia. 26
682 Status of the law society because of its establishment in 27
Act 28
(1) The law society is a statutory body for the Financial 29
Administration and Audit Act 1977 and the Statutory Bodies 30
Financial Arrangements Act 1982. 31
s 683 451 s 683
Legal Profession Bill 2007
(2) The Statutory Bodies Financial Arrangements Act 1982, part 1
2B103, sets out the way in which the law society's powers 2
under this Act are affected by the Statutory Bodies Financial 3
Arrangements Act 1982. 4
(3) The law society-- 5
(a) does not represent the State; and 6
(b) is not entitled to any immunities or privileges of the 7
State. 8
683 Delegation 9
(1) The law society may delegate its powers under this Act to the 10
following-- 11
(a) an Australian lawyer who is a council member; 12
(b) a committee that includes at least 1 council member 13
who is an Australian lawyer; 14
(c) an Australian lawyer who is a member of the law 15
society's staff; 16
(d) another Australian lawyer other than 1 mentioned in 17
paragraph (a) or (c); 18
(e) another person that the law society considers is an 19
appropriate person to exercise the powers of the law 20
society proposed to be delegated. 21
(2) A delegation of a power may permit the subdelegation of the 22
power. 23
(3) However, a subdelegation must be made in a way allowed 24
under a society rules. 25
(4) This section does not limit the power of the law society to 26
make the society rules relating to delegations and 27
subdelegations that may be made under this section. 28
103 Statutory Bodies Financial Arrangements Act 1982, part 2B (Powers under this Act
and relationship with other Acts)
s 684 452 s 685
Legal Profession Bill 2007
Division 3 Membership of law society 1
684 Membership of law society 2
(1) The law society consists of the individuals who, from time to 3
time, are enrolled as members of it. 4
(2) The following individuals are eligible to be enrolled as 5
members of the law society-- 6
(a) an individual who is entitled to engage in legal practice 7
in this jurisdiction or is an Australian-registered foreign 8
lawyer; 9
(b) an individual who is a member of a class stated under 10
the society rules as persons who are appropriate to be 11
members of the law society; 12
(c) an individual whom the council considers is a fit and 13
proper person to be a member having regard to that 14
person's involvement with the legal profession. 15
Division 4 Council and its membership and 16
officers of the law society 17
685 Council of the law society 18
(1) There is to be a council of the law society. 19
(2) The council is to consist of not less than 7 and not more than 20
12 council members, namely-- 21
(a) an Australian legal practitioner appointed by the 22
Minister (the appointed member); and 23
(b) the president, any deputy president and the 24
vice-president of the law society as mentioned in section 25
686; and 26
(c) members of the law society, elected or appointed under 27
the society rules. 28
(3) Each of the council members is to hold office for a term of 2 29
years and is eligible for re-election or reappointment under the 30
society rules. 31
s 686 453 s 688
Legal Profession Bill 2007
(4) In addition to the members under subsection (2), a person who 1
is the immediate past president of the law society is, without 2
further appointment, a council member for a term of not 3
longer than 1 year after the person stops being the president. 4
(5) This section is subject to section 686. 5
686 President, deputy president and vice-president of the law 6
society 7
(1) Subject to subsection (4), the law society is to have a 8
president, a deputy president and a vice-president, each of 9
whom is to be elected or appointed under the society rules. 10
(2) The term of office for the president of the law society is 1 11
year. 12
(3) If, at the end of the president's term of office, a person is the 13
deputy president, that person is to assume the office of 14
president. 15
(4) When the deputy president assumes the office of president, a 16
vacancy exists in the office of deputy president and that office 17
must not be filled until the next election or appointment of all 18
officers of the law society under the society rules. 19
(5) Subject to subsections (2) to (4), the term of office of the 20
presidential members is 2 years and each of those presidential 21
members is to be eligible for re-election or reappointment. 22
687 Dealing with casual vacancy 23
(1) This section applies despite the society rules about filling a 24
casual vacancy in the office of presidential member or elected 25
council member. 26
(2) If a vacancy happens in relation to the appointed member, the 27
Minister must appoint another person who is an Australian 28
lawyer to be the appointed member until the term of office of 29
the previous appointed member ends. 30
688 No defect because of vacancy 31
The performance of a function or the exercise of a power of 32
the law society is not affected by the fact that at the time of the 33
s 689 454 s 692
Legal Profession Bill 2007
performance or exercise a vacancy existed in the membership 1
of the council or that the election or appointment of a council 2
member was defective. 3
689 Secretary and other staff of the law society 4
The law society may appoint a secretary and other members 5
of the staff of the law society as it may consider necessary. 6
Division 5 Council meetings 7
690 Conduct of business at meetings 8
(1) Subject to this division, the law society may conduct its 9
business and proceedings at council meetings in the way it 10
decides. 11
(2) The council meetings must be held at the place and at the time 12
decided by a presidential member. 13
(3) However, the council must meet at least 6 times a year. 14
691 Presiding at meetings 15
(1) The president is to preside at council meetings at which the 16
president is present. 17
(2) If the president is not present at a council meeting, the deputy 18
president is to preside. 19
(3) If both the president and deputy president are not present at a 20
council meeting, the vice-president is to preside. 21
(4) If no presidential member is present at a council meeting, a 22
member chosen by the council members present at the 23
meeting is to preside. 24
692 Quorum 25
(1) A quorum of the council consists of a majority of council 26
members for the time being holding office. 27
(2) A council meeting at which a quorum is present may perform 28
the functions and exercise the powers of the law society. 29
s 693 455 s 695
Legal Profession Bill 2007
693 Conduct of council meetings 1
(1) A question at a council meeting is decided by a majority of the 2
votes of the council members present. 3
(2) Each council member present at a council meeting has a vote 4
on each question to be decided and, if the votes are equal, the 5
member presiding also has a casting vote. 6
(3) A council member present at a council meeting who abstains 7
from voting is taken to have voted for the negative. 8
(4) The council may hold its meetings, or allow council members 9
to take part in its meetings, by using any technology that 10
reasonably allows council members to hear and take part in 11
discussions as they happen. 12
Example of use of technology-- 13
teleconferencing 14
(5) A council member who takes part in a council meeting under 15
subsection (4) is taken to be present at the meeting. 16
(6) A resolution is validly made by the council, even if it is not 17
passed at a council meeting, if-- 18
(a) notice of the resolution is given under the society rules; 19
and 20
(b) a majority of the council members gives written 21
agreement to the resolution. 22
694 Minutes 23
The council must keep-- 24
(a) minutes of the council's meetings; and 25
(b) a record of resolutions made under section 693(6). 26
695 Disclosure of interest 27
(1) This section applies to a council member (the interested 28
member) if-- 29
(a) the member has a personal interest, or a direct or 30
indirect financial interest, in an issue being considered, 31
or about to be considered, by the council; and 32
s 695 456 s 695
Legal Profession Bill 2007
(b) the interest could conflict with the proper performance 1
of the member's duties about the consideration of the 2
issue. 3
(2) After the relevant facts come to the interested member's 4
knowledge, the member must disclose the nature of the 5
interest to a council meeting. 6
(3) Unless the council otherwise directs, the interested member 7
must not-- 8
(a) be present when the council considers the issue; or 9
(b) take part in a decision of the council about the issue. 10
(4) The interested member must not be present when the council 11
is considering whether to give a direction under subsection 12
(3). 13
(5) If there is another council member who must, under 14
subsection (2), also disclose an interest in the issue, the other 15
council member must not-- 16
(a) be present when the council is considering whether to 17
give a direction under subsection (3) about the interested 18
member; or 19
(b) take part in making the decision about giving the 20
direction. 21
(6) If-- 22
(a) because of this section, a council member is not present 23
at a council meeting for considering or deciding an 24
issue, or for considering or deciding whether to give a 25
direction under subsection (3); and 26
(b) there would be a quorum if the council member were 27
present; 28
the remaining council members present are a quorum of the 29
council for considering or deciding the issue, or for 30
considering or deciding whether to give the direction, at the 31
council meeting. 32
(7) A disclosure under subsection (2) must be recorded in the 33
minutes of the council meeting. 34
s 696 457 s 697
Legal Profession Bill 2007
Division 6 Law society may make rule 1
696 Rule 2
(1) The law society may make rules (the society rules) for the 3
following purposes-- 4
(a) to define, and carry out, the objects of the law society; 5
(b) for the regulation and good government of the law 6
society and its members; 7
(c) to provide for the way of electing or appointing the 8
presidential members and other council members, and 9
filling a vacancy of a council member, other than an 10
appointed member or person appointed because the 11
person is the immediate past president; 12
(d) to regulate council meetings and the conduct of business 13
at the meetings; 14
(e) the custody and use of the law society's common seal; 15
(f) the admission, re-admission, resignation, and expulsion 16
of members of the law society; 17
(g) to fix fees, levies and subscriptions in relation to 18
membership of the law society and to recover unpaid 19
fees, levies and subscriptions; 20
(h) to waive compliance with the society rules, in whole or 21
in part, absolutely or conditionally, in relation to a 22
member or a class of members. 23
(2) Society rules must be made by resolution of the council. 24
697 Notice by Minister about law society making rules 25
(1) Society rules have no effect unless the Minister notifies the 26
making of the rules. 27
(2) The notice is subordinate legislation. 28
s 698 458 s 700
Legal Profession Bill 2007
698 Availability of society rules 1
The law society must ensure that an up-to-date version of the 2
society rules is available, without charge, for public 3
inspection-- 4
(a) at the law society's principal place of business during 5
normal working hours; or 6
(b) on the law society's internet site or an internet site 7
identified on the authority's internet site. 8
Division 7 Miscellaneous 9
699 Starting proceedings 10
(1) The secretary, or another person authorised by resolution of 11
the law society, may start, carry on and defend any proceeding 12
in the name of the law society. 13
(2) In any proceeding on behalf of the law society, it is not 14
necessary to prove the election or appointment of the 15
presidential members, another council member or the 16
secretary. 17
700 Recovery of unpaid amount 18
(1) This section applies if there is a charge under a relevant law 19
and the charge or part of the charge is not paid by a person 20
required under the relevant law to pay it. 21
(2) The law society may recover from the person the unpaid 22
charge, or the unpaid part, as a debt. 23
(3) In this section-- 24
charge includes-- 25
(a) contributions, dues, fees, levies or subscriptions that 26
become payable on or after the commencement of this 27
section; and 28
(b) contributions, dues, fees, fines, levies or subscriptions 29
that became payable before the commencement of this 30
section. 31
s 701 459 s 702
Legal Profession Bill 2007
Chapter 8 General 1
Part 8.1 General provisions 2
Division 1 Liabilities, injunctions, protection of 3
information etc. 4
701 Liability of principals 5
(1) If a law practice contravenes, whether by act or omission, any 6
provision of this Act or a regulation imposing an obligation on 7
the practice, each principal of the practice is taken to have 8
contravened the same provision, unless the principal 9
establishes that-- 10
(a) the practice contravened the provision without the 11
knowledge actual, imputed or constructive of the 12
principal; or 13
(b) the principal was not in a position to influence the 14
conduct of the law practice in relation to its 15
contravention of the provision; or 16
(c) the principal, if in that position, used all due diligence to 17
prevent the contravention by the practice. 18
(2) Subsection (1) does not affect the liability of the law practice 19
for the contravention. 20
(3) A contravention of a requirement imposed on a law practice 21
by this Act is capable of constituting unsatisfactory 22
professional conduct or professional misconduct by a 23
principal of the practice. 24
702 Executive officers must ensure corporation complies 25
with Act 26
(1) The executive officers of a corporation must ensure that the 27
corporation complies with this Act. 28
s 702 460 s 702
Legal Profession Bill 2007
(2) If a corporation commits an offence against a provision of this 1
Act, each of the executive officers of the corporation also 2
commits an offence, namely, the offence of failing to ensure 3
that the corporation complies with the provision. 4
Maximum penalty--the penalty for the contravention of the 5
provision by a person or, if the penalty is expressed to be for 6
this section, the expressed penalty. 7
(3) Evidence that the corporation has been convicted of an 8
offence against a provision of this Act is evidence that each of 9
the executive officers committed the offence of failing to 10
ensure that the corporation complies with the provision. 11
(4) However, it is a defence for an executive officer to prove 12
that-- 13
(a) if the officer was in a position to influence the conduct 14
of the corporation in relation to the offence--the officer 15
took all reasonable steps to ensure the corporation 16
complied with the provision; or 17
(b) the officer was not in a position to influence the conduct 18
of the corporation in relation to the offence. 19
(5) For subsection (4)(a), it is sufficient for the executive officer 20
to prove that the act or omission that was the offence was 21
done or made without the officer's knowledge despite the 22
officer having taken all reasonable steps to ensure the 23
corporation complied with the provision. 24
(6) In addition to any other provision of this Act applying to a 25
person in the person's capacity as a legal practitioner director 26
of an incorporated legal practice, this section applies to the 27
person if the person is also an executive officer of the 28
corporation that is the incorporated legal practice. 29
(7) A defence available to a person under this section is available 30
to a person mentioned in subsection (6) in the person's 31
capacity as an executive officer but not in the person's 32
capacity as a legal practitioner director. 33
(8) In this section-- 34
executive officer, for a corporation, means any person, by 35
whatever name called and whether or not the person is a 36
s 703 461 s 703
Legal Profession Bill 2007
director of the corporation, who is concerned, or takes part, in 1
the management of the corporation. 2
703 Injunctions 3
(1) This section applies if a person (the subject person) has 4
engaged, is engaging or is proposing to engage in conduct that 5
constituted, constitutes or would constitute-- 6
(a) an offence against a relevant law; or 7
(b) attempting to contravene a relevant law; or 8
(c) aiding, abetting, counselling or procuring a person to 9
contravene a relevant law; or 10
(d) inducing or attempting to induce, whether by threats, 11
promises or otherwise, a person to contravene a relevant 12
law; or 13
(e) being in any way, directly or indirectly, knowingly 14
concerned in, or party to, an offence against a relevant 15
law by a person; or 16
(f) conspiring with others to contravene a relevant law. 17
(2) On application by the commissioner or the relevant regulatory 18
authority for the subject person, the Supreme Court may grant 19
an injunction, on terms the court considers appropriate-- 20
(a) restraining the subject person from engaging in the 21
conduct; and 22
(b) if the court considers it desirable to do so--requiring the 23
subject person to do any act or thing. 24
(3) If an application under subsection (2) has been made, the 25
Supreme Court may, if the court decides it to be appropriate, 26
grant an injunction by consent of all the parties to the 27
proceeding, whether or not the court is satisfied that 28
subsection applies. 29
(4) If the Supreme Court considers it desirable to do so, the court 30
may grant an interim injunction pending its decision of an 31
application under subsection (2). 32
(5) The Supreme Court may discharge or vary an injunction 33
granted under subsection (2) or (4). 34
s 704 462 s 704
Legal Profession Bill 2007
(6) The Supreme Court's power to grant an injunction restraining 1
the subject person from engaging in conduct may be exercised 2
whether or not-- 3
(a) it appears to the court that the subject person intends to 4
engage again, or to continue to engage, in conduct of 5
that kind; or 6
(b) the subject person has previously refused or failed to do 7
that act or thing; or 8
(c) there is an imminent danger of substantial damage to 9
anyone if the subject person refuses or fails to do that act 10
or thing. 11
(7) The Supreme Court must not require the commissioner or 12
another person, as a condition of granting an interim 13
injunction, to give an undertaking as to damages. 14
704 Disclosure of information by commissioner, regulatory 15
authorities and other entities 16
(1) This section applies to each of the following-- 17
(a) the commissioner; 18
(b) a regulatory authority; 19
(c) the board; 20
(d) the Brisbane registrar and other registrars; 21
(e) for an entity mentioned in paragraphs (a) to (d)-- 22
(i) a member of the entity; and 23
(ii) an employee of the entity; and 24
(iii) a person acting at the direction of the entity or of 25
the staff of the entity. 26
(2) An entity that holds a document or information (the 27
information holder) about a person may allow another entity 28
(the information seeker) access to the document or give the 29
information to the information seeker if-- 30
(a) the information holder considers allowing the access or 31
giving the information is consistent with the information 32
holder's or information seeker's functions under this 33
Act; and 34
s 705 463 s 705
Legal Profession Bill 2007
(b) allowing the access or giving the information is done 1
under a written arrangement between the information 2
holder and information seeker as mentioned in 3
subsection (3). 4
(3) An entity must have a written arrangement with another entity 5
providing for the way in which the entity, as an information 6
holder, and its officers may, under subsection (2), allow access 7
to a document or give information to the other entity, as an 8
information seeker, and its officers. 9
(4) Despite subsection (2), the information holder may not allow 10
access to a suitability report about a person, or give 11
information about a person in a suitability report, in 12
contravention of section 92(1).104 13
Note-- 14
Section 92 states when the board or a regulatory authority may disclose 15
a suitability report or information in a suitability report. 16
(5) This section does not limit a provision of this Act that 17
expressly allows an entity to give stated information to 18
another entity, including, for example, a report of an audit as 19
mentioned in section 130.105 20
705 Confidentiality of personal information 21
(1) A person who discloses information obtained in the 22
administration of this Act commits an offence, unless the 23
disclosure is-- 24
(a) authorised or required by this Act or another Act; or 25
(b) made in connection with the administration of this Act; 26
or 27
(c) made with the consent of the person to whom the 28
information relates; or 29
(d) made in connection with a legal proceeding under a 30
relevant law or any report of a proceeding, including a 31
proceeding before a disciplinary body relating to a 32
discipline application; or 33
104 Section 92 (Confidentiality of suitability report)
105 Section 130 (Commissioner or law society may audit incorporated legal practice)
s 705 464 s 705
Legal Profession Bill 2007
(e) otherwise made with a lawful excuse. 1
Maximum penalty--200 penalty units. 2
(2) For the purposes of and without limiting subsection (1), a 3
person who receives information directly or indirectly from a 4
corresponding authority is taken to have obtained the 5
information in the administration of this Act. 6
(3) This section does not apply to the following disclosures of 7
information-- 8
(a) a disclosure that does not identify or help in 9
identifying-- 10
(i) a complainant; or 11
(ii) an Australian legal practitioner or law practice 12
employee, who is the subject of a complaint or an 13
investigation matter, or a law practice that employs 14
the legal practitioner or employee; or 15
(iii) a person associated with the complainant, 16
Australian legal practitioner, law practice 17
employee or law practice; 18
(b) a disclosure by an investigator to the commissioner and, 19
if the investigator was appointed by a regulatory 20
authority, to the regulatory authority; 21
(c) a disclosure as prescribed under a regulation. 22
(4) This section is not limited by another provision of this Act-- 23
(a) allowing an entity to disclose information; or 24
(b) requiring an entity to protect information. 25
(5) In this section-- 26
Australian legal practitioner includes a person to whom 27
chapter 4 applies as mentioned in section 417.106 28
106 Section 417 (Application of chapter to lawyers, former lawyers and former
practitioners)
s 706 465 s 706
Legal Profession Bill 2007
706 Duty of relevant entities to report suspected offences 1
(1) This section applies if, in the course of the administration of 2
this Act, a relevant entity suspects a person has committed an 3
offence, other than-- 4
(a) an offence against part 3.3 or the Trust Accounts Act 5
1973 that the relevant entity considers is of a minor 6
nature; or 7
(b) a suspicion arising from an answer, information or a 8
document obtained under section 491 that is privileged 9
or confidential. 10
(2) The relevant entity must-- 11
(a) report the suspected offence to an appropriate authority; 12
and 13
(b) make available to the appropriate authority the 14
documents and information relevant to the suspected 15
offence in the relevant entity's possession or under its 16
control or other documents that, after it has made the 17
report, come into the entity's possession or under its 18
control. 19
(3) However, if the relevant entity's suspicion is based only on an 20
allegation by a person and the suspected offence is not in 21
relation to a relevant law, the relevant entity may advise the 22
person as follows-- 23
(a) that the relevant entity is not going to report the 24
suspected offence to an appropriate authority; 25
(b) that if the person wishes to pursue the matter of the 26
suspected offence, the person should raise it with an 27
appropriate authority. 28
(4) For this section but subject to subsections (5) and (6), it is 29
immaterial how the relevant entity gained the information that 30
caused it to suspect that the person has committed an offence, 31
including whether or not the relevant entity obtained 32
information or a document-- 33
(a) after a complaint or an investigation; or 34
(b) before the commencement of this section. 35
s 706 466 s 706
Legal Profession Bill 2007
(5) The obligation under subsection (2)(a) does not apply to a 1
suspicion formed on the basis of documents or information 2
that may be subject to privilege, or information derived from 3
documents or information subject to privilege, unless the 4
person to whom the privilege attaches gives written consent to 5
the relevant entity to report the suspected offence under that 6
provision. 7
(6) The obligation under subsection (2)(b) does not apply to 8
documents or information that may be subject to privilege, or 9
information derived from documents or information subject to 10
privilege, unless the person to whom the privilege attaches 11
gives written consent to the relevant entity to make available 12
to the appropriate authority the documents or information 13
under that provision. 14
(7) A relevant entity may apply to the Supreme Court for a 15
declaration as to whether documents or information are 16
subject to privilege. 17
(8) The commissioner must develop guidelines relating to 18
obligations under this section for the commission and for 19
other relevant entities. 20
(9) To remove any doubt, it is declared that the relevant entity is 21
not under an obligation to make inquiries for subsection (1) in 22
relation to information before it in order to have reasonable 23
grounds about a concern or to decide whether the suspicion is 24
correct. 25
(10) In this section-- 26
appropriate authority includes the following-- 27
(a) the commissioner of police; 28
(b) the Crime and Misconduct Commission; 29
(c) the director of public prosecutions; 30
(d) the chief executive of a department in which a 31
government legal officer is employed; 32
(e) a person in another jurisdiction corresponding to a 33
person mentioned in paragraph (a), (b), (c) or (d). 34
offence means an offence against either of the following-- 35
s 707 467 s 707
Legal Profession Bill 2007
(a) a relevant law; 1
(b) a law of the Commonwealth or another jurisdiction. 2
privilege means legal professional privilege or another 3
privilege. 4
relevant entity means-- 5
(a) the commissioner; or 6
(b) a regulatory authority. 7
707 Protection from liability 8
(1) An Act entity is not civilly liable to someone for an act done, 9
or omission made, honestly and without negligence under this 10
Act. 11
(2) If subsection (1) prevents a civil liability attaching to an Act 12
entity, the liability attaches instead to the State. 13
(3) This section does not apply to an act done, or omission made, 14
for which liability is excluded under section 475, 618 or 15
642.107 16
(4) In this section-- 17
Act entity means the following-- 18
(a) the commissioner; 19
(b) a disciplinary body, any member of the disciplinary 20
body or a panel member; 21
(c) the Brisbane registrar and other registrars; 22
(d) a regulatory authority; 23
(e) an external intervener; 24
(f) the board; 25
(g) an employee or member of the staff of an entity 26
mentioned in paragraphs (a) to (f), including, for 27
example, an investigator. 28
107 Section 475 (Liability for publicising disciplinary action), 618 (Protection of
members etc.) or 642 (Protection of members etc.)
s 708 468 s 711
Legal Profession Bill 2007
civil liability includes a liability for the payment of costs 1
ordered to be paid in a proceeding for an offence against this 2
Act. 3
Division 2 Offences, starting proceedings and 4
evidentiary and other matters 5
708 Offences are summary offences 6
An offence against this Act is a summary offence. 7
709 Limitation on time for starting summary proceeding 8
A proceeding for a summary offence against this Act by way 9
of summary proceeding under the Justices Act 1886 must 10
start-- 11
(a) within 1 year after the commission of the offence; or 12
(b) within 6 months after the offence comes to the 13
complainant's knowledge, but within 2 years after the 14
commission of the offence. 15
710 Appointments and authority 16
The following must be presumed unless a party to the 17
proceeding under this Act, by reasonable notice, requires 18
proof of it-- 19
(a) the appointment of the Minister, the chief executive, the 20
commissioner, a panel member, a committee member, a 21
member of the board, a registrar, the Brisbane registrar 22
or an investigator; 23
(b) the authority of a person mentioned in paragraph (a) or 24
the law society or bar association to do anything under 25
this Act. 26
711 Signatures 27
A signature purporting to be that of any of the following 28
persons is evidence of the signature that it purports to be-- 29
s 712 469 s 713
Legal Profession Bill 2007
(a) the Minister; 1
(b) the chief executive; 2
(c) the commissioner; 3
(d) a tribunal member; 4
(e) the chairperson or deputy chairperson of the committee; 5
(f) the chairperson of the board; 6
(g) the Brisbane registrar or another registrar; 7
(h) an investigator; 8
(i) the president of the law society or the bar association. 9
712 Evidentiary aids--documents 10
A document purporting to be a copy of a person's admission 11
to the legal profession, a person's practising certificate or 12
another document about a person made or given under this 13
Act or a previous Act, is evidence of the admission, practising 14
certificate or other document and of matters contained in it. 15
713 Dealing with particular trust money and trust property 16
(Trust Accounts Act, section 33) 17
(1) This section applies if, on 1 April in a year-- 18
(a) a law practice has in its possession or under its control 19
trust money or trust property of a person who, on that 20
day is, and for 12 months immediately preceding that 21
day was, absolutely entitled to the money or property; 22
and 23
(b) the person, or another person legally entitled to receive 24
the money or property, is not known to the practice or 25
can not be found by the practice. 26
(2) Also, this section applies if, on 1 April in a year-- 27
(a) a law practice has in its possession or under its control 28
trust money or trust property for which the law practice 29
can not, and could not for 2 years immediately 30
preceding that day, determine who is legally entitled to 31
receive the money or property; and 32
s 713 470 s 713
Legal Profession Bill 2007
(b) the law practice considers legal proceedings are 1
necessary to resolve who is legally entitled to receive the 2
money or property; and 3
(c) the persons who may be, or claim to be, entitled to 4
receive the money or property have not started legal 5
proceedings to resolve the matter. 6
(3) The law practice must, by 1 June in the year, give to the public 7
trustee a return about the trust money or trust property. 8
Maximum penalty--50 penalty units. 9
(4) The return must-- 10
(a) be signed by a principal or legal practitioner director of 11
the law practice; and 12
(b) include full details of the trust money or trust property; 13
and 14
(c) include details of any claim or lien of the law practice in 15
relation to the money or property, including, for 16
example, details of all costs, charges and expenses, if 17
any, claimed by the practice in relation to the money or 18
property; and 19
(d) include a statement of the reasons that the money or 20
property is in the possession of or under the control of 21
the practice; and 22
(e) include other information the public trustee reasonably 23
requires about the money or property and the person 24
who is, or the persons who may be, entitled to it. 25
(5) On receipt of a return under subsection (3), the public trustee 26
may, by signed notice given to the law practice, require the 27
practice to transfer to the public trustee the trust money or 28
trust property mentioned in the return within the period stated 29
in the notice. 30
(6) On the giving of a notice under subsection (5), any lien of the 31
law practice claimed in relation to the trust money or trust 32
property stops having effect. 33
(7) If a law practice does not comply with a requirement under 34
subsection (5), the public trustee may apply by motion to the 35
Supreme Court for an order that the practice immediately 36
transfer the trust money or trust property to the public trustee. 37
s 714 471 s 714
Legal Profession Bill 2007
(8) An order under subsection (7) may be made in the absence of 1
the law practice if the notice of motion has been duly served 2
on the practice, or the court is satisfied that reasonable efforts 3
have been made to serve the notice. 4
(9) If a law practice transfers trust money or trust property to the 5
public trustee under this section-- 6
(a) the practice is relieved from any further liability in 7
relation to the money or property; and 8
(b) for trust money--the public trustee must place the 9
money in the unclaimed moneys fund under the Public 10
Trustee Act 1978 and deal with it as unclaimed money 11
under that Act. 12
(10) In this section-- 13
transfer includes pay, assign and deliver. 14
Part 8.2 Machinery provisions 15
714 Approved forms 16
(1) A form may be approved under this Act. 17
(2) The form may be approved by-- 18
(a) if the form is to be used for an application to or another 19
purpose relating to the Supreme Court, or for a costs 20
assessment--the rules committee within the meaning of 21
the Supreme Court of Queensland Act 1991, section 22
118C;108 or 23
(b) if the form is to be used for an application to or another 24
purpose relating to a tribunal--the chairperson of the 25
tribunal; or 26
(c) if the form is to be used for an application to or another 27
purpose relating to the committee--the chairperson of 28
the committee; or 29
108 Supreme Court of Queensland Act 1991, section 118C (Rules Committee)
s 715 472 s 715
Legal Profession Bill 2007
(d) if the form is to be used for an application to or another 1
purpose relating to a regulatory authority, however 2
described--the regulatory authority; or 3
(e) if the form is to be used for a purpose relating to the 4
commissioner--the commissioner; or 5
(f) if the form is to be used for an application to or another 6
purpose relating to the board--the board. 7
(3) If a provision provides that an approved form may provide for 8
a matter, however expressed, the provision does not limit 9
other matters that may be included in the form. 10
(4) Subsection (2) is subject to a provision that expressly provides 11
who may approve a form. 12
715 Regulation-making power 13
(1) The Governor in Council may make regulations under this 14
Act. 15
(2) Without limiting subsection (1), a regulation may be made-- 16
(a) authorising the Brisbane registrar to give to a regulatory 17
authority of this jurisdiction or another jurisdiction the 18
date of a person's admission to the legal profession and 19
other relevant information about the person's admission; 20
and 21
(b) imposing a penalty, not exceeding 20 penalty units, for a 22
contravention of a regulation; and 23
(c) providing for fees; and 24
(d) allowing a law practice that is a sole practitioner to 25
continue to engage in legal practice after the death of the 26
sole practitioner and applying the provisions of this Act 27
to the law practice and the employees of that practice. 28
(3) A regulation mentioned in subsection (2)(c) may be made-- 29
(a) prescribing fees and costs payable as mentioned in the 30
regulation, including, for example, fees and costs 31
payable for matters dealt with by the Supreme Court or 32
an entity established under this Act; and 33
(b) providing for the refund or remission of fees and costs. 34
s 716 473 s 716
Legal Profession Bill 2007
(4) A regulation may provide that a contravention of the 1
regulation is capable of constituting unsatisfactory 2
professional conduct or professional misconduct of the person 3
who has contravened. 4
(5) Also, a regulation may be made about a matter for which a 5
regulatory authority may make rules and, if a regulation 6
provides for the matter, the regulation prevails to the extent of 7
any inconsistency. 8
Chapter 9 Transitional, savings and 9
repeal provisions for Legal 10
Profession Act 2007 11
Part 9.1 Purposes, definitions and 12
general approach 13
716 Main purposes of ch 9 14
The main purposes of this chapter are as follows-- 15
(a) to provide for provisions of this Act that are 16
substantially the same as provisions of the Legal 17
Profession Act 2004 to be dealt with as replacements of 18
the provisions of the Legal Profession Act 2004; 19
(b) without limiting paragraph (a), if a matter was dealt with 20
in the Legal Profession Act 2004, chapter 8, part 5, by 21
providing for something to be dealt with under that Act, 22
to provide for the matter to be dealt with under this Act; 23
(c) to provide for matters that were not dealt with in the 24
Legal Profession Act 2004 that are dealt with under this 25
Act. 26
s 717 474 s 718
Legal Profession Bill 2007
717 Definitions for ch 9 1
In this chapter-- 2
authorised action or document means an action done or a 3
document made or kept under a previous provision. 4
corresponding provision means a provision of this Act that is 5
substantially the same as a previous provision. 6
made includes given and issued. 7
obligation includes duty. 8
previous, in relation to a stated provision that includes a 9
number, means the provision of the Legal Profession Act 2004 10
with that number immediately before the repeal of the Legal 11
Profession Act 2004. 12
previous provision means a provision of the Legal Profession 13
Act 2004 as in force immediately before the commencement 14
of this section. 15
protection includes a statement that-- 16
(a) there is no liability; and 17
(b) there is no invalidity; and 18
(c) a person has an entitlement. 19
718 Authorised actions and documents etc. under previous 20
provision 21
(1) This section applies to the following-- 22
(a) an authorised action or document done, made or kept 23
under a previous provision if the authorised action or 24
document continued to have effect or was in force 25
immediately before the commencement; 26
(b) an entity's obligation under a previous provision if the 27
obligation applied to the entity immediately before the 28
commencement; 29
(c) a protection under a previous provision that applied to 30
an entity immediately before the commencement. 31
(2) Subject to a specific provision of this Act in relation to an 32
authorised action or document, obligation or protection under 33
s 719 475 s 720
Legal Profession Bill 2007
a previous provision, if there is a corresponding provision for 1
the previous provision, the authorised action or document, 2
obligation or protection-- 3
(a) continues in force or to have effect according to its 4
terms; but 5
(b) is taken to have been done, made, kept or applied under 6
the corresponding provision. 7
(3) Subsection (2) does not apply to a statutory instrument that is, 8
immediately before the commencement, subordinate 9
legislation. 10
(4) However subsection (2)(b) applies whether or not the previous 11
provision refers to the action or document, obligation or 12
protection by reference to a provision of the Legal Profession 13
Act 2004. 14
(5) Other provisions of this part include examples for this section. 15
Note-- 16
The examples are examples under the Acts Interpretation Act 1954, 17
section 14D. 18
719 Things continued in force under Legal Profession Act 19
2004 20
(1) This section applies to a thing (the thing) that happened under 21
an Act other than the Legal Profession Act 2004 but that, 22
under that Act and in particular under chapter 8, part 5, of that 23
Act, continued to have effect. 24
(2) If the thing has not ended before the commencement of this 25
section, the thing continues to have effect under this Act. 26
(3) Matters in relation to the thing are to be done under this Act 27
unless a provision of the Legal Profession Act 2004, chapter 8, 28
part 5, provides otherwise and for the purpose the provision 29
continues to have effect. 30
(4) This section does not limit section 718 or another provision of 31
this chapter about the thing. 32
720 Terminology in things mentioned in s 718(1) 33
(1) This section applies to a document that is-- 34
s 721 476 s 722
Legal Profession Bill 2007
(a) any of the things mentioned in section 718(1), including, 1
for example, an authorised action or document; or 2
(b) evidence of any of the things. 3
(2) A reference in the document to the thing is to be read, if the 4
context permits and with the necessary changes to 5
terminology, as if the thing were done, made or kept under 6
this Act. 7
Example for subsection (2)-- 8
A recommendation of the board that a person be admitted under the 9
Legal Profession Act 2004 as a legal practitioner is to be read as if the 10
recommendation were that the person be admitted to the legal 11
profession under this Act. 12
721 Period stated in previous provision 13
(1) This section applies if, in a previous provision, there is a 14
period for doing something, and the period for doing the thing 15
started before the commencement. 16
(2) If there is a corresponding provision to the previous provision 17
and both the corresponding provision and the previous 18
provision state the same period, the period for the thing 19
continues to have started from when the period started under 20
the previous provision. 21
(3) If there is a corresponding provision to the previous provision 22
and the corresponding provision and the previous provision 23
state different periods-- 24
(a) the period stated in the previous provision applies; and 25
(b) the period for the thing continues to have started from 26
when the period started under the previous provision. 27
722 Period or date stated in document given under previous 28
provision 29
(1) This section applies if-- 30
(a) there was a previous provision that provided for a 31
document to be made under it; and 32
(b) there is a corresponding provision to the previous 33
provision; and 34
s 723 477 s 724
Legal Profession Bill 2007
(c) under the previous provision and before the 1
commencement-- 2
(i) a document was given to a person, whether or not 3
the person had received the document before the 4
commencement; or 5
Example for subparagraph (i)-- 6
a notice under previous section 257 that states a date by 7
which a complainant must comply with the notice 8
(ii) a document was published before the 9
commencement. 10
Example for subparagraph (ii)-- 11
a notice under previous section 164 fixing a date after 12
which claims relating to a default can not be made 13
(2) If the document stated a period for doing something-- 14
(a) the stated period continues to apply for doing the thing; 15
and 16
(b) the period continues to have started from when the 17
period started under the previous provision. 18
(3) If the document stated a date before which, or by which, a 19
thing is to be done (however expressed), the thing must be 20
done by the stated date. 21
723 Acts Interpretation Act 1954, s 20 not limited 22
This chapter does not limit the Acts Interpretation Act 1954, 23
section 20. 24
Part 9.2 Transitional provisions relating 25
to chapter 2 26
724 Act or omission happening before commencement may 27
be relevant to proceeding for particular acts or omissions 28
(1) An act or omission that happened before the commencement 29
of this section may be relevant to a proceeding relating to a 30
s 725 478 s 725
Legal Profession Bill 2007
contravention of a provision of this Act involving an act or 1
omission that happened after the commencement, including, 2
for example, a contravention of section 24 or 25.109 3
(2) Also, an act or omission that happened before that 4
commencement may be relevant to whether conduct after that 5
commencement is unsatisfactory professional conduct or 6
professional misconduct. 7
(3) This section does not limit the Acts Interpretation Act 1954, 8
section 20C.110 9
(4) In this section-- 10
contravention includes an alleged contravention. 11
725 Examples for ch 2 of things under s 718 12
(1) In relation to chapter 2, the following are examples of 13
authorised actions or documents for section 718 in relation to 14
matters dealt with under the Legal Profession Act 2004-- 15
(a) an application under previous section 48 to a regulatory 16
authority for the grant or renewal of a practising 17
certificate; 18
(b) the granting or renewing of a practising certificate by a 19
regulatory authority under previous section 52; 20
(c) an information notice, including an information notice 21
requiring a health assessment under previous section 22
533; 23
(d) a written notice, other than an information notice, under 24
a previous provision; 25
(e) a referral under previous section 36(3) of an application 26
to the Supreme Court for a direction; 27
(f) a direction under previous section 34(5) by the Supreme 28
Court; 29
109 Section 24 (Prohibition on engaging in legal practice when not entitled) or 25
(Prohibition on representing or advertising entitlement to engage in legal practice
when not entitled)
110 Acts Interpretation Act 1954, section 20C (Creation of offences and changes in
penalties)
s 725 479 s 725
Legal Profession Bill 2007
(g) an appeal under a previous provision; 1
(h) an application under previous section 36 for a 2
declaration that a matter stated in an application will 3
not, without more, adversely affect the board's 4
assessment of the person's suitability for admission 5
(however expressed); 6
(i) a declaration by the Supreme Court in relation to an 7
application mentioned in paragraph (h); 8
(j) a recommendation under previous section 33 about an 9
application for admission; 10
(k) an application under the Supreme Court rules for 11
admission and an order in relation to the application, 12
including admission to the legal profession under a 13
previous Act; 14
(l) a show cause notice under previous section 68 and any 15
representation made in relation to the show cause notice; 16
(m) an agreement to amend a local practising certificate 17
under previous section 69(1)(b)(ii); 18
(n) a request to the commissioner of police for a written 19
report under previous section 532; 20
(o) an appointment of a person under previous section 534 21
to conduct all or part of a health assessment; 22
(p) a heath assessment report under previous section 535; 23
(q) an order of the Supreme Court, including, for example, 24
the following-- 25
(i) an order for the removal of a local lawyer's name 26
from the local roll under previous section 40(2)(b); 27
(ii) an order that a person's name not be removed from 28
the local roll or practising certificate not be 29
cancelled; 30
(r) jurisdictional protocols entered into under previous 31
section 80. 32
(2) Also, in relation to chapter 2 of this Act, the following are 33
examples of obligations for section 718 in relation to matters 34
dealt with under the Legal Profession Act 2004-- 35
s 725 480 s 725
Legal Profession Bill 2007
(a) an obligation to give notice of a particular conviction, or 1
a charge of a serious offence, if the conviction or charge 2
happened before the commencement; 3
(b) an obligation to pay a fee or charge or cost, including 4
the cost of an assessment by a health assessor; 5
(c) an obligation to give written notice of removal of a name 6
from an interstate roll or the taking of foreign regulatory 7
action; 8
(d) an obligation to comply with a requirement under 9
previous section 72 to return a local regulatory 10
certificate to a regulatory authority; 11
(e) an obligation under previous section 532(4) to give a 12
report to a regulatory authority; 13
(f) an obligation under previous section 536 to pay a person 14
appointed as a health assessor; 15
(g) an obligation under previous section 538 not to disclose 16
a suitability report or information in a suitability report 17
and to destroy a suitability report. 18
(3) Also, in relation to chapter 2, the following are examples of 19
protections for section 718 in relation to matters dealt with 20
under the Legal Profession Act 2004-- 21
(a) the statement in previous section 537 that a report 22
relating to a health assessment is not admissible in any 23
proceedings; 24
(b) the statement in previous section 537 that a person can 25
not be compelled to produce a suitability report or to 26
give evidence about a suitability report or its contents. 27
s 726 481 s 726
Legal Profession Bill 2007
Part 9.3 Transitional provisions relating 1
to chapter 3 2
Division 1 Examples for chapter 3 3
726 Examples for ch 3 of things under s 718 4
(1) In relation to chapter 3, the following are examples of 5
authorised actions or documents for section 718 in relation to 6
matters dealt with under the Legal Profession Act 2004-- 7
(a) an arrangement entered into under previous section 148 8
by the law society for insurance in relation to claims, 9
and liabilities arising out of claims, against the fidelity 10
fund; 11
(b) a notice under previous section 155 requiring the law 12
society to give the Minister a report on the fidelity fund 13
on matters stated in the notice; 14
(c) the giving or an advance under previous section 158 of 15
an amount for the fidelity fund; 16
(d) a claim against the fidelity fund under previous section 17
162, including a claim mentioned in previous section 18
184; 19
(e) an allowance of a further period, or a refusal to allow a 20
further period, under previous section 163; 21
(f) a notice under previous section 164 seeking information 22
about a default, or inviting claims relating to a default; 23
(g) an order relating to costs under previous section 170; 24
(h) a decision mentioned in previous section 178(1); 25
(i) a postponement, imposition or partial payment as 26
mentioned in previous section 183(1); 27
(j) the treatment of a concerted interstate default as 28
mentioned in previous section 186; 29
(k) a request to a corresponding authority under previous 30
section 195; 31
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Legal Profession Bill 2007
(l) an arrangement entered into under previous section 207 1
by the chief executive with a financial institution about 2
the financial institution paying interest to the 3
department; 4
(m) the keeping of accounts under previous section 208 for 5
the Legal Practitioner Interest on Trust Accounts Fund; 6
(n) an approval mentioned in previous section 209(1)(h); 7
(o) a decision and written authority by the Minister that an 8
amount may be paid from the Legal Practitioner Interest 9
on Trust Accounts Fund as mentioned in previous 10
section 209(2); 11
(p) a request to prepare and submit a budget as mentioned in 12
previous section 211. 13
(2) Also, in relation to chapter 3, the following are examples of 14
obligations for section 718 in relation to matters dealt with 15
under the Legal Profession Act 2004-- 16
(a) a continuing obligation under previous section 51 in 17
relation to professional indemnity insurance; 18
(b) a requirement for the auditor-general to audit the 19
accounts of the fidelity fund under previous section 153 20
if the auditor-general has not audited the accounts for 21
the 2007 calendar year before the commencement of 22
section 365; 23
(c) a requirement for the law society to give the Minister a 24
report about the fidelity fund under previous section 25
155; 26
(d) a requirement to pay a contribution or levy to the fidelity 27
fund under previous section 156 or 157; 28
(e) a requirement to pay costs from the fidelity fund under 29
an order under previous section 170. 30
(3) Also, in relation to chapter 3, the following are examples of 31
protections for section 718 in relation to matters dealt with 32
under the Legal Profession Act 2004-- 33
(a) the statement in previous section 148(4) that no liability 34
was incurred as mentioned in that subsection; 35
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Legal Profession Bill 2007
(b) the statement in previous section 164(6) that no liability 1
was incurred as mentioned in that subsection; 2
(c) the statement in previous section 206 that no action at 3
law or equity may lie as mentioned in that section. 4
Division 2 Matters dealt with in part 3.3 5
727 Continued application of Trust Accounts Act 1973 6
(1) Despite part 3.3, a law practice to which the part applies may, 7
for keeping or dealing with trust money or keeping records of 8
the trust money, comply with the Trust Accounts Act for the 9
relevant period as if-- 10
(a) the trust money were trust moneys under that Act; and 11
(b) the law practice were a trustee under that Act. 12
(2) For the purposes of subsection (1)-- 13
(a) the Trust Accounts Act is taken to apply in relation to 14
the law practice for the relevant period; and 15
(b) a reference in the Trust Accounts Act to a trustee or a 16
solicitor is taken to include-- 17
(i) a law practice that, immediately before the 18
commencement, was a trustee under that Act; and 19
(ii) a law practice that is an incorporated legal practice; 20
and 21
(iii) each legal practitioner partner of a law practice that 22
is a multi-disciplinary partnership; and 23
(c) a reference in the Trust Accounts Act to a provision of 24
the Legal Profession Act 2004 (the 2004 provision) is 25
taken to be a reference to a provision of the Legal 26
Profession Act 2007 that is substantially the same as the 27
2004 provision. 28
(3) If a law practice complies with a provision of the Trust 29
Accounts Act under subsection (1) (the trust provision)-- 30
(a) the law practice is taken to have complied with part 3.3 31
in relation to a provision of that part, about keeping or 32
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Legal Profession Bill 2007
dealing with trust money or keeping records of the trust 1
money, that is substantially the same as the trust 2
provision; and 3
(b) an obligation or requirement imposed on the law 4
practice as a trustee under that Act, about keeping or 5
dealing with the trust money or keeping records of the 6
trust money, continues to apply to the law practice 7
despite the ending of the relevant period. 8
(4) In this section-- 9
commencement means the commencement of this section. 10
relevant period means the period starting on the 11
commencement and ending on 31 March 2008. 12
Trust Accounts Act means the Trust Accounts Act 1973 as in 13
force immediately before the commencement. 14
728 Provision about application of s 268 15
For the first external examination of a law practice's trust 16
records under section 268, the financial period for the law 17
practice is 1 April 2007 to 31 March 2008. 18
729 Provision about application of s 270 19
(1) This section applies to an entity that, immediately after the 20
commencement of this section-- 21
(a) is a law practice to which part 3.3 applies; and 22
(b) is taken to have an external examiner for the practice 23
because of section 757. 24
(2) Despite section 270(1), the law practice need not give the law 25
society notice of the external examiner under the subsection. 26
730 Provision about application of s 276 27
(1) This section applies if section 276 applies to a law practice 28
before the first external examination of the practice's trust 29
records has been conducted. 30
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Legal Profession Bill 2007
(2) Section 276 applies to the law practice as if a reference in 1
section 276(2)(a) to an external examination of the practice's 2
trust records were a reference to an audit under the Trust 3
Accounts Act 1973 of the accounting and other records and 4
trust accounts of the practice under that Act. 5
731 Provision about application of s 278 6
For section 278, a reference in section 278(1)(a) to an external 7
examination is taken to include a reference to an audit of a 8
trustee's accounting and other records and trust accounts 9
under the Trust Accounts Act 1973. 10
Division 3 Matters dealt with in part 3.4 11
Subdivision 1 Preliminary 12
732 Definitions for pt 9.3, div 3 13
In this division-- 14
client agreement means a written agreement made under-- 15
(a) repealed section 48 before the commencement; or 16
(b) section 734 after the commencement. 17
commencement means the commencement of section 299. 18
relevant day means the day that is 6 months after the day of 19
commencement. 20
repealed, in relation to a numbered provision, means the 21
provision with that number in the repealed Queensland Law 22
Society Act 1952 as that provision was in force immediately 23
before the repeal. 24
Example-- 25
A reference to `repealed part 4A' means part 4A of the repealed 26
Queensland Law Society Act 1952, as that part was in force immediately 27
on its repeal. 28
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Legal Profession Bill 2007
733 General application of pt 3.4 1
The application of part 3.4 to a matter is subject to this 2
division. 3
Subdivision 2 Client agreements 4
734 Client agreements may be entered into despite pt 3.4 5
(1) Despite part 3.4 and the repeal of the Queensland Law Society 6
Act 1952, a law practice to which the part applies may-- 7
(a) make a client agreement as if the Queensland Law 8
Society Act 1952, section 48, had not been repealed; and 9
(b) perform urgent work that could have been performed, 10
under repealed section 48, even though there is no client 11
agreement or costs agreement for the work. 12
(2) Subsection (1) applies to the law practice even though a 13
reference to a law firm in the repealed Queensland Law 14
Society Act 1952 would not have included the law practice. 15
(3) However, on and after the relevant day, the law practice can 16
not rely on subsection (1) for not complying with part 3.4 in 17
relation to a matter to which that part applies after the relevant 18
day. 19
735 Application of part 3.4 to client agreements etc. 20
(1) This section applies if-- 21
(a) a client agreement under repealed section 48, including 22
after the commencement, is made between a client and a 23
law practice; or 24
(b) a law practice performs urgent work as mentioned in 25
section 734(1)(b) even though there is no client 26
agreement or costs agreement for the work. 27
(2) To the extent part 3.4 provides for any of the following, part 28
3.4 does not apply to the law practice in relation to the client 29
for the matter the subject of the client agreement or urgent 30
work-- 31
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Legal Profession Bill 2007
(a) a thing to be done before a costs agreement is made, 1
including, for example, disclosures under sections 308, 2
309 and 313; 3
(b) the form of a disclosure to be made under part 3.4, 4
including, for example, the requirements under section 5
314; 6
(c) the parties to, or a provision that must, may or may not 7
be included in, a costs agreement, including, for 8
example, matters stated in sections 322, 323, 324 and 9
325; 10
(d) a consequence for failing to do a thing before a costs 11
agreement is made, including, for example, the effect of 12
failure to make a disclosure as mentioned in section 316 13
or 327. 14
(3) However, subsection (2) does not prevent the application of 15
part 3.4 to other matters including the application of a 16
provision that refers to a costs agreement. 17
Note-- 18
The definition of costs agreement includes an agreement made under 19
repealed part 4A or section 734. 20
(4) Without limiting subsection (3), the following provisions 21
apply, in the way stated, to a law practice in relation to a client 22
for the matter the subject of a client agreement-- 23
(a) section 315 as if a reference to `under this division' 24
included `for a client agreement'; 25
(b) section 318 as if a reference to `under this division' 26
included `for a client agreement'; 27
(c) section 319 as if a reference to `a costs agreement made 28
under division 5' were to `a client agreement made 29
under the repealed Queensland Law Society Act 1952, 30
part 4A'; 31
(d) section 328 as if a reference to `disclosures required 32
under division 3' were to disclosures required under the 33
repealed Queensland Law Society Act 1952, section 48. 34
(5) Despite the repeal of the Queensland Law Society Act 1952, 35
repealed section 48F continues to apply to a client agreement. 36
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Legal Profession Bill 2007
736 Failure to comply with Queensland Law Society Act 1952 1
after commencement and before relevant day 2
(1) This section applies to a law practice in relation to a client for 3
a matter if-- 4
(a) the law practice may enter into a client agreement with 5
the client for the matter under section 734 but has not 6
done so, including a law practice that performed work as 7
urgent work before the relevant day; and 8
(b) work for the matter remains to be performed on the 9
relevant day. 10
(2) Part 3.4, division 3, applies to the law practice (the practice) 11
in relation to the client for the matter on and after the relevant 12
day with the following changes-- 13
(a) section 310(1) applies to the practice and the practice 14
must disclose to the client the matters required to be 15
disclosed by the subsection as soon as practicable after 16
the relevant day and before a costs agreement is entered 17
into; 18
(b) section 310(2) applies to the practice and the practice 19
must disclose to the law practice that retained the 20
practice and that requests the disclosures, the matters 21
required to be disclosed by the subsection as soon as 22
practicable after the relevant day and before a costs 23
agreement is entered into. 24
Subdivision 3 Billing 25
737 Application of pt 3.4, div 6 26
(1) This section applies to-- 27
(a) work performed under a client agreement; or 28
(b) urgent work performed before the commencement or as 29
mentioned in section 734(1)(b). 30
(2) A bill given to a client by a law practice for the work must 31
comply with the requirements of-- 32
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Legal Profession Bill 2007
(a) part 3.4, division 6, in relation to a bill and the giving of 1
a bill; or 2
(b) if the bill is given to the client before the relevant 3
day--repealed section 48J(1)(a) or (b). 4
(3) If a bill that complies with repealed section 48J(1)(a) or (b) is 5
given to a person before the relevant day-- 6
(a) the bill is a bill under part 3.4, division 6, even though it 7
does not comply with the requirements in section 330 or 8
331; and 9
(b) part 3.4, division 6, applies to the bill as if it were made 10
under the division, including, for example, sections 329 11
and 332. 12
Subdivision 4 Costs assessments 13
738 All costs assessments to be under pt 3.4, div 7 14
(1) On and after the commencement, a costs assessment must be 15
made under part 3.4, division 7, even if the application relates 16
to work performed under a client agreement or as urgent work 17
before the commencement or the relevant day. 18
(2) Subsection (1) is subject to section 739. 19
739 Costs assessment started before commencement 20
(1) This section applies if, before the commencement-- 21
(a) a person (the applicant) applied as mentioned in the 22
Queensland Law Society Act 1952, section 6ZA, for the 23
appointment of a costs assessor to assess an account 24
given to the person by a practitioner or firm; and 25
(b) the appointed costs assessor has not made the 26
assessment. 27
(2) The costs assessor must continue to deal with the costs 28
assessment under the repealed Queensland Law Society Act 29
1952. 30
(3) For subsection (2), repealed part 2A, division 6A, continues to 31
apply to the applicant, the practitioner or firm, the costs 32
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Legal Profession Bill 2007
assessor and the application, as if that division had not been 1
repealed, including, for example repealed sections 6ZD, 6ZE 2
and 6ZF. 3
(4) However, if the applicant and the relevant practitioner or firm 4
gives written notice to the costs assessor that they agree the 5
matter should be dealt with under this Act, the costs assessor 6
must not continue to deal with the costs assessment under the 7
repealed Queensland Law Society Act 1952. 8
(5) The applicant may apply for a costs assessment under this Act 9
in relation to the account despite the previous application. 10
(6) If an application is made under this Act within 1 year of the 11
date of the notice mentioned in subsection (4), a provision of 12
this Act, that provides that an application must be made 13
within a particular period, does not prevent the application 14
being made, including, for example, sections 335 and 336. 15
Division 4 Matters dealt with in part 3.6 16
740 Amounts payable to and from the fidelity fund before 17
commencement 18
(1) This section applies to an amount that was payable into, or 19
was payable from, the fidelity fund as it existed from time to 20
time before the commencement of this section. 21
(2) If the amount is payable into the fidelity fund and is received 22
by the law society after the commencement, the amount must 23
be paid into the fidelity fund. 24
(3) If the amount was payable from the fidelity fund before the 25
commencement but was not paid before the commencement, 26
it may be paid from the fidelity fund after the commencement. 27
(4) Also, if an amount becomes payable in relation to an act or 28
omission before the commencement that constituted a default 29
under a relevant law at the time that the act or omission 30
happened, the amount may be paid from the fidelity fund after 31
the commencement. 32
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Legal Profession Bill 2007
741 Delegation to committee of management before 1
commencement 2
(1) This section applies to a delegation as mentioned in the 3
Queensland Law Society Act 1952, section 18, as in force 4
immediately before the repeal of that section that continued to 5
have effect as if it were a valid delegation under the Legal 6
Profession Act 2004. 7
(2) If the delegation has not been revoked by the law society 8
before the commencement of this section, the delegation 9
continues to have effect as if it had been made under this Act. 10
(3) The delegation may be revoked by the law society. 11
742 Claims for acts or omissions happening before 12
commencement 13
(1) If a person made a claim against the fidelity fund as it existed 14
before the commencement of this section in relation to an act 15
or omission that also happened before the commencement-- 16
(a) the claim is to be dealt with under the repealed 17
provision; and 18
(b) the law governing the liability of the fidelity fund, and 19
the amount of the reimbursement, is the law as in force 20
under the repealed provision. 21
(2) If the person did not made a claim against the fidelity fund as 22
it existed before the commencement in relation to an act or 23
omission before the commencement-- 24
(a) the claim may be made under this Act; but 25
(b) the law governing the liability of the fidelity fund, and 26
the amount of the reimbursement, is the law as in force 27
immediately before the commencement. 28
(3) If section 397111 applies, the amount of a reimbursement may 29
be dealt with in the same way as a payment from the fidelity 30
fund after the commencement. 31
(4) In this section-- 32
111 Section 397 (Sufficiency of fidelity fund)
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Legal Profession Bill 2007
repealed provision means either of the following as was in 1
force at the time of the relevant act or omission-- 2
(a) the Queensland Law Society Act 1952, part 3,112 as in 3
force immediately before the commencement of 4
previous section 609; 5
(b) the Legal Profession Act 2004, chapter 2, part 7. 6
743 Reference in s 377 to previous sections 7
(1) A reference in section 377 to a notice under section 376 8
includes a notice under previous section 164. 9
(2) A reference in section 377(3) to section 375 includes previous 10
section 163. 11
744 Right of subrogation to continue despite repeal 12
(1) This section applies despite the repeal of previous sections 13
173 and 174. 14
(2) Previous section 173 continues to apply to payments made 15
from the fidelity fund before the commencement of section 16
397. 17
(3) Previous section 174 continues to apply to proceedings 18
brought in a court under previous section 173, whether before 19
or after the commencement. 20
745 Payments for defaults under previous ch 2, pt 7 21
A reference in section 395 to `this part' includes previous 22
chapter 2, part 7. 23
112 Queensland Law Society Act 1952, part 3 (Legal Practitioners' Fidelity Guarantee
Fund)
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Legal Profession Bill 2007
Part 9.4 Transitional provisions relating 1
to chapter 4 2
746 Examples for ch 4 of things under s 718 3
(1) In relation to chapter 4, the following are examples of 4
authorised actions or documents for section 718 in relation to 5
matters dealt with under the Legal Profession Act 2004-- 6
(a) a consent under previous section 250(2)(a) or (b); 7
(b) a complaint or delegation under previous section 256; 8
(c) a notice under previous section 257(1) requiring a 9
complainant to do a thing; 10
(d) an extension of time under previous section 257(3); 11
(e) a referral, dismissal, decision or information notice 12
under previous section 258; 13
(f) a dismissal under previous section 259; 14
(g) a withdrawal under previous section 260; 15
(h) a referral of a complaint or an investigation matter, or an 16
extension or direction in relation to a complaint or an 17
investigation matter, under previous section 265; 18
(i) a notice under previous section 266(3) or 267(1); 19
(j) an appointment of an investigator, or a report or 20
recommendation, under previous section 268; 21
(k) an engagement of a costs assessor, or a notice to an 22
Australian legal practitioner, under previous section 23
269; 24
(l) a written submission under previous section 270; 25
(m) a referral of a matter under previous section 271; 26
(n) a starting of proceedings under previous section 273; 27
(o) a dismissal of a complaint under previous section 274; 28
(p) a discipline application under previous section 276 or a 29
variation of a discipline application under previous 30
section 278; 31
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Legal Profession Bill 2007
(q) an order under previous section 279, 280, 282, 284 or 1
286; 2
(r) an appeal under previous section 292, 293 or 294; 3
(s) a register under previous section 296; 4
(t) an arrangement entered into under previous section 302 5
or 305; 6
(u) a request or report under previous section 303; 7
(v) an investigation, authorisation or report under previous 8
section 304; 9
(w) a waiver under previous section 313. 10
(2) Also, in relation to chapter 4 of this Act, the following are 11
examples of obligations for section 718 in relation to matters 12
dealt with under the Legal Profession Act 2004-- 13
(a) an obligation under previous section 267 to give written 14
notice to a respondent; 15
(b) an obligation under previous section 268 to investigate 16
and report about a complaint or investigation matter; 17
(c) an obligation of an Australian legal practitioner under 18
previous section 269 to comply with a requirement; 19
(d) an obligation under previous section 270(3) to consider 20
submissions; 21
(e) an obligation of the commissioner under previous 22
section 275 to record his or her decision about a 23
complaint; 24
(f) an obligation of a disciplinary body under previous 25
section 277 to hear and decide each allegation stated in a 26
discipline application; 27
(g) an obligation of the Brisbane registrar under previous 28
section 281 after the tribunal makes an order as 29
mentioned in that previous section; 30
(h) an obligation under an order under previous section 280, 31
282 or 284; 32
(i) an obligation under previous section 285 to give effect 33
to and notify an order as mentioned in that previous 34
section; 35
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Legal Profession Bill 2007
(j) an obligation of the commissioner under previous 1
section 296 to keep the discipline register; 2
(k) an obligation under previous section 299 to remove any 3
reference to disciplinary action that is quashed on an 4
appeal. 5
(3) Also, in relation to chapter 4, the statement in previous section 6
300 that no liability was incurred as mentioned in that section 7
is an example of a protection for section 718 in relation to 8
matters dealt with under the Legal Profession Act 2004. 9
Part 9.5 Transitional provisions relating 10
to chapter 5 11
747 Examples for ch 5 of things under s 718 12
(1) In relation to chapter 5, the following are examples of 13
authorised actions or documents for section 718 in relation to 14
matters dealt with under the Legal Profession Act 2004-- 15
(a) an appointment of external intervener for a law practice, 16
whether as a supervisor of trust money under previous 17
section 320, a manager for a law practice under previous 18
326 or as a receiver for a law practice under previous 19
section 333, unless the appointment was terminated 20
before the commencement; 21
(b) an instrument of appointment under previous section 22
320, 326 or 333, unless the appointment was terminated 23
before the commencement, and the conditions to which 24
the appointment is subject under previous section 349; 25
(c) an agreement entered into under previous section 26
320(5), 326(5) or 333(5); 27
(d) an arrangement for withdrawing money under previous 28
section 322(3), 328(5) or 335(4); 29
(e) records kept under previous section 324, 330 or 337; 30
(f) a termination of appointment under previous section 31
325, 332 or 348; 32
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Legal Profession Bill 2007
(g) an order of the Supreme Court under previous section 1
338(3) or (4) or 342; 2
(h) a notice to a legal practice associate under previous 3
section 343; 4
(i) an appeal under previous section 352 against the 5
appointment of an external intervener for a law practice; 6
(j) a direction of the Supreme Court under previous section 7
353 about a matter mentioned in that previous section. 8
(2) Also, in relation to chapter 5 of this Act, the following are 9
examples of obligations for section 718 in relation to matters 10
dealt with under the Legal Profession Act 2004-- 11
(a) a obligation, whether under previous section 321, 327 or 12
334, to give a copy of a notice of an appointment; 13
(b) an obligation of a financial institution or any other entity 14
under previous section 322, 328 or 335; 15
(c) an obligation under previous section 324, 330 or 337 to 16
keep records; 17
(d) an obligation under previous section 325(3), 332(5) or 18
348(5) to give a copy of a notice of termination; 19
(e) an obligation of a receiver under previous section 338(6) 20
to return anything seized under previous section 338; 21
(f) an obligation of a person under previous section 339 to 22
deliver property to a receiver; 23
(g) an obligation under previous section 341 to comply with 24
a requirement under that previous section; 25
(h) an obligation of a financial institution under previous 26
section 354 to disclose matters or permit copies or 27
extracts as mentioned in that section; 28
(i) an obligation of external intervener under previous 29
section 356 to give a written report; 30
(j) an obligation under previous section 357 not to disclose 31
information. 32
(3) Also, in relation to chapter 5 of this Act, the following are 33
examples of protections for section 718 in relation to matters 34
dealt with under the Legal Profession Act 2004-- 35
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Legal Profession Bill 2007
(a) a protection under section 342(4); 1
(b) a protection under section 344 in relation to regulated 2
property of a law practice. 3
Part 9.6 Transitional provisions relating 4
to chapter 6 5
748 Examples for ch 6 of things under s 718 6
(1) In relation to chapter 6 the following are examples of 7
authorised actions or documents for section 718 in relation to 8
matters dealt with under the Legal Profession Act 2004-- 9
(a) the appointment of a person as an investigator under 10
previous section 542; 11
(b) an identity card issued to an investigator under previous 12
section 544; 13
(c) an acknowledgment of consent to enter a place under 14
previous section 550; 15
(d) an application for a warrant for a place under previous 16
section 551; 17
(e) a warrant issued for a place under previous section 552; 18
(f) a receipt under previous section 562 for a thing seized; 19
(g) a notice of damage under previous section 567. 20
(2) Also, in relation to chapter 6 of this Act, the following are 21
examples of obligations for section 718 in relation to matters 22
dealt with under the Legal Profession Act 2004-- 23
(a) an obligation under previous section 548 for a person 24
who ceases to be an investigator to return an identity 25
card to the commissioner; 26
(b) an obligation of an investigator under previous section 27
553(6) to send documents relating to a warrant under the 28
previous section to a magistrate; 29
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Legal Profession Bill 2007
(c) an obligation under previous section 560 in relation to a 1
thing that is seized; 2
(d) an obligation under previous section 561 to comply with 3
a requirement under that previous section; 4
(e) an obligation under previous section 565 to return a 5
seized thing that has not been forfeited to the State; 6
(f) an obligation under previous section 566 to allow the 7
inspection or the copying of a document as mentioned in 8
that previous section. 9
(3) Also, in relation to chapter 6 of this Act, the statement in 10
previous section 554 that a warrant is not invalidated by a 11
defect is an example of a protection for section 718 in relation 12
to matters dealt with under the Legal Profession Act 2004. 13
Part 9.7 Transitional provisions relating 14
to chapter 7 15
749 Examples for ch 7 of things under s 718 16
(1) In relation to chapter 7, the following are examples of 17
authorised actions or documents for section 718 in relation to 18
matters dealt with under the Legal Profession Act 2004-- 19
(a) an appointment of a person as the Legal Services 20
Commissioner under previous section 414; 21
(b) a decision about the remuneration and allowances to be 22
paid to the commissioner under previous section 416; 23
(c) an appointment of a person as the acting commissioner 24
under previous section 417; 25
(d) an approval of the chief executive, or a secondment of a 26
public service officer to the commission, under previous 27
section 422; 28
(e) a delegation by the commissioner under previous section 29
426; 30
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Legal Profession Bill 2007
(f) an arrangement between the commissioner and a 1
regulatory authority under previous section 427; 2
(g) a direction about the tribunal's procedure issued, or a 3
delegation by the chairperson of the tribunal, under 4
previous section 434; 5
(h) an appointment of a person to the lay panel, or the 6
practitioner panel, under previous section 438; 7
(i) a decision about the remuneration and allowances to be 8
paid to a member of the lay panel under previous section 9
439; 10
(j) an appointment, an invitation to recommend for 11
appointment or a recommendation for appointment, of a 12
person under previous section 452; 13
(k) an appointment of a person as the deputy chairperson of 14
the Legal Practice Committee under previous section 15
459; 16
(l) a decision about the remuneration and allowances to be 17
paid to a lay member of the Legal Practice Committee 18
under previous section 460; 19
(m) minutes of a meeting of the Legal Practice Committee, 20
and resolutions made under previous section 466(6), 21
kept under previous section 467; 22
(n) a direction under previous section 468 or 482; 23
(o) an arrangement made about constituting a committee for 24
hearing and deciding a discipline application under 25
previous section 469; 26
(p) a direction about the committee's procedure issued 27
under previous section 470; 28
(q) a decision about recording a proceeding under previous 29
section 476; 30
(r) an order prohibiting publication of information under 31
previous section 480; 32
(s) an order of a disciplinary body about a failure to observe 33
a procedural requirement under previous section 481; 34
(t) a direction in relation to a hearing before a disciplinary 35
body issued under previous section 482; 36
s 749 500 s 749
Legal Profession Bill 2007
(u) a notice given to a person to attend a hearing of, or to 1
produce a stated document or thing to, a disciplinary 2
body under previous section 483; 3
(v) an appointment of a person, or a nomination of a person 4
for appointment, to the Legal Practitioners Admissions 5
Board under previous section 490; 6
(w) an appointment of a person as the chairperson or deputy 7
chairperson of the Legal Practitioners Admissions 8
Board under previous section 494; 9
(x) minutes of a meeting of the Legal Practitioners 10
Admissions Board, and resolutions passed at a board 11
meeting, kept under previous section 503; 12
(y) a delegation by the law society under previous section 13
512; 14
(z) an appointment for a casual vacancy under previous 15
section 516 and of the secretary and other persons under 16
previous section 518. 17
(2) Also, in relation to chapter 7 of this Act, the following are 18
examples of obligations for section 718 in relation to matters 19
dealt with under the Legal Profession Act 2004-- 20
(a) an obligation under previous section 418(2), 440(2), 21
457(2) or 496(2) to terminate the appointment of a 22
person; 23
(b) an obligation of the chairperson of the Legal Practice 24
Committee under previous section 463(2), or the 25
chairperson of the Legal Practitioners Admissions 26
Board under previous section 499(2), to call a meeting. 27
(3) Also, in relation to chapter 7 of this Act, the following are 28
examples of protections for section 718 in relation to matters 29
dealt with under the Legal Profession Act 2004-- 30
(a) a statement under previous section 423 relating to a 31
public service officer appointed to an office as 32
mentioned in that previous section; 33
(b) a statement under previous section 425 relating to a 34
seconded public service officer; 35
(c) a statement under previous section 446 about tribunal 36
members and panel members; 37
s 750 501 s 750
Legal Profession Bill 2007
(d) a statement under previous section 448 or 472 about 1
persons mentioned in that previous section; 2
(e) a statement under previous section 517 about the 3
performance of a function or exercise of a power of the 4
law society. 5
Part 9.8 Transitional provisions relating 6
to chapter 8 7
750 Examples for ch 8 of things under s 718 8
(1) In relation to chapter 8, the following are examples of 9
authorised actions or documents for section 718 in relation to 10
matters dealt with under the Legal Profession Act 2004-- 11
(a) an application or injunction under previous section 581; 12
(b) an application to the Supreme Court for a declaration as 13
mentioned in previous section 583(7); 14
(c) an approval of a person as an associate by a regulatory 15
authority under previous section 584; 16
(d) a written arrangement under previous section 591(3) 17
about allowing or giving access to information. 18
(2) Also, in relation to chapter 8 of this Act, an obligation under 19
previous section 583 to report a suspected offence is an 20
example of an obligation for section 733 in relation to matters 21
dealt with under the Legal Profession Act 2004. 22
(3) Also, in relation to chapter 8 of this Act, the statement in 23
previous section 593 that an Act official is not civilly liable is 24
an example of a protection for section 718 in relation to 25
matters dealt with under the Legal Profession Act 2004. 26
s 751 502 s 751
Legal Profession Bill 2007
Part 9.9 Regulation-making power for 1
transitional purposes 2
751 Transitional regulation-making power 3
(1) A regulation (a transitional regulation) may make provision 4
of a saving or transitional nature-- 5
(a) for which it is necessary to make provision to allow or 6
facilitate the doing of anything to achieve the change-- 7
(i) from the operation of a relevant law as in force 8
before the commencement of this section to the 9
operation of a relevant law as in force from time to 10
time after that commencement; or 11
(ii) from the operation of a relevant law, or another Act 12
in relation to the legal profession, as in force from 13
time to time after the commencement of this 14
section to the operation of a relevant law, or 15
another Act in relation to the legal profession, as in 16
force from time to time after that commencement; 17
and 18
(b) for which this Act does not make provision or sufficient 19
provision. 20
(2) Without limiting subsection (1), the power to make a 21
transitional regulation includes the power to provide for 22
changes under this Act to the law at different times. 23
(3) A transitional regulation may have retrospective operation to a 24
day not earlier than the commencement of this section. 25
(4) A transitional regulation must declare it is a transitional 26
regulation. 27
(5) This section and any transitional regulation expire 1 year after 28
the commencement of this section. 29
s 752 503 s 753
Legal Profession Bill 2007
Part 9.10 Repeal of the Legal Profession 1
Act 2004 2
752 Repeal of Legal Profession Act 2004 3
The Legal Profession Act 2004 No. 11 is repealed. 4
Part 9.11 Provisions relating to Trust 5
Accounts Act 1973 6
753 Definitions for pt 9.11 7
In this part-- 8
accounting and other records, of a trustee, means the 9
accounting and other records, relating to trust moneys, kept by 10
the trustee under the Trust Accounts Act. 11
auditor, of a trustee, means an individual who, under the Trust 12
Accounts Act, section 14 or 15, is appointed as an auditor to 13
audit the trustee's accounting and other records and trust 14
accounts. 15
commencement day means the day on which the provision in 16
which the term is used commences. 17
financial period, for a trustee, see the Trust Accounts Act, 18
section 4. 19
supervising entity means the law society. 20
Trust Accounts Act means the Trust Accounts Act 1973. 21
trustee means a person who, immediately before the 22
commencement day-- 23
(a) is a solicitor and trustee under the Trust Accounts Act; 24
or 25
(b) is a former solicitor who is a trustee under the Trust 26
Accounts Act, section 4C. 27
trust moneys see the Trust Accounts Act, section 4. 28
s 754 504 s 757
Legal Profession Bill 2007
754 Trust accounts and trust moneys under Trust Accounts 1
Act 2
On the commencement day-- 3
(a) a trust account kept by a trustee under the Trust 4
Accounts Act is taken to be a general trust account kept 5
by the trustee under this Act; and 6
(b) trust moneys held by a trustee are taken to be trust 7
money under this Act. 8
755 Accounting and other records 9
On the commencement day, the accounting and other records 10
of a trustee are taken to be trust records under this Act. 11
756 Dealing with particular trust moneys 12
(1) This section applies to trust moneys that-- 13
(a) were received by a trustee before the commencement 14
day; and 15
(b) on the commencement day, have not been paid into a 16
trust account under the Trust Accounts Act, section 7(3). 17
(2) The trustee must deal with the trust moneys under this Act as 18
if the trust moneys were trust money under this Act received 19
by the trustee immediately after the commencement day. 20
(3) This section applies subject to section 727. 21
757 Provision about particular auditors and audits 22
(1) On the commencement day, an individual who is a trustee's 23
auditor immediately before that day is taken to be appointed 24
as the external examiner for the trustee under section 267(1). 25
(2) Despite subsection (1), the external examiner is taken to 26
continue as the trustee's auditor under the Trust Accounts Act 27
for the purpose of doing, or continuing to do, any thing under 28
that Act as the trustee's auditor. 29
s 758 505 s 760
Legal Profession Bill 2007
758 Continuing application of Trust Accounts Act, s 5 1
(1) This section applies if, immediately before the 2
commencement day, a trustee or other person-- 3
(a) was subject to a requirement under the Trust Accounts 4
Act, section 5(1), (2), (3), (5) or (6), to lodge with or 5
give to the supervising entity notice of a matter 6
mentioned in the subsections; and 7
(b) has not complied with the requirement. 8
(2) The Trust Accounts Act, section 5, as in force immediately 9
before the commencement day continues to apply to the 10
trustee or person in relation to the matter. 11
759 Continuing application of Trust Accounts Act, ss 12 and 12
13 13
(1) This section applies if-- 14
(a) before the commencement day, a trustee received a 15
demand mentioned in the Trust Accounts Act, section 16
12(3) or 13; and 17
(b) on the commencement day, the trustee has not dealt with 18
the demand, or the trust moneys to which the demand 19
relates, under that Act. 20
(2) Despite section 754, the trustee must deal or continue to deal 21
with the demand and the trust moneys under the Trust 22
Accounts Act, section 12 or 13. 23
(3) For dealing or continuing to deal with the demand and the 24
trust moneys, the Trust Accounts Act as in force immediately 25
before the commencement day continues to apply to the 26
trustee. 27
760 Continuing application of Trust Accounts Act, s 14(2) and 28
(3) 29
(1) Subsection (2) applies if, immediately before the 30
commencement day, a trustee-- 31
(a) was subject to a requirement under the Trust Accounts 32
Act, section 14(2) or (3); and 33
s 761 506 s 763
Legal Profession Bill 2007
(b) has not complied with the requirement. 1
(2) The Trust Accounts Act, section 14(2) and (3), as in force 2
immediately before the commencement day continues to 3
apply to the trustee. 4
761 Continuing application of Trust Accounts Act, ss 15 and 5
16 6
(1) This section applies in relation to an audit, under the Trust 7
Accounts Act, of the accounting and other records and trust 8
accounts of a trustee. 9
(2) The Trust Accounts Act, section 15, as in force immediately 10
before the commencement day continues to apply in relation 11
to the performance of the audit by the trustee's auditor. 12
(3) The Trust Accounts Act, section 16, as in force immediately 13
before the commencement day continues to apply to the 14
trustee and the trustee's auditor in relation to the performance 15
of the audit. 16
(4) Without limiting subsection (2)-- 17
(a) an obligation imposed on the trustee's auditor under the 18
Trust Accounts Act, section 15(9) or (10), continues to 19
apply to the auditor; and 20
(b) the Trust Accounts Act, section 15(12) and (13), 21
continues to apply in relation to the audit. 22
762 Continuing application of Trust Accounts Act, s 17 23
The Trust Accounts Act, section 17, as in force immediately 24
before the commencement day continues to apply to a 25
trustee's auditor in relation to the performance of the auditor's 26
duties as auditor under the Trust Accounts Act, whether 27
before or after the commencement day, for the trustee. 28
763 Continuing application of Trust Accounts Act, s 19 29
(1) This section applies if-- 30
(a) a person ceased to carry on practice or business or to act 31
as a trustee before the commencement day; and 32
s 764 507 s 765
Legal Profession Bill 2007
(b) immediately before the commencement day, the person 1
or the person's personal representative has not complied 2
with a requirement under the Trust Accounts Act, 3
section 19. 4
(2) The Trust Accounts Act, section 19, continues to apply to the 5
person or the person's personal representative in relation to 6
ceasing to carry on practice or business or acting as a trustee. 7
764 Continuing application of Trust Accounts Act, s 28A 8
The Trust Accounts Act, section 28A, as in force immediately 9
before the commencement day continues to apply to the 10
supervising entity in relation to the performance of its 11
functions under the Trust Accounts Act before or after the 12
commencement day. 13
765 Continuing application of Trust Accounts Act, s 30 14
(1) This section applies to an auditor's report given under the 15
Trust Accounts Act to the supervising entity in relation to an 16
audit of the accounting and other records and trust accounts of 17
a trustee. 18
(2) The Trust Accounts Act, section 30(1), as in force 19
immediately before the commencement day continues to 20
apply to the supervising entity in relation to the report. 21
(3) Also, the supervising entity must make the report available for 22
inspection by-- 23
(a) an external examiner who first examines the trustee's 24
trust records under this Act after the commencement 25
day; and 26
(b) another person the supervising entity considers has a 27
genuine reason for inspecting the report. 28
(4) An external examiner or other person mentioned in subsection 29
(3) may, with the supervising entity's approval, make a copy 30
of, or take an extract from, the report. 31
s 766 508 s 768
Legal Profession Bill 2007
766 Continuing application of Trust Accounts Act, s 33 1
(1) Subsection (2) applies if, immediately before the 2
commencement day, a trustee-- 3
(a) was subject to a requirement under the Trust Accounts 4
Act, section 33(1), to lodge with the public trustee a 5
return in relation to property mentioned in that section; 6
and 7
(b) has not complied with the requirement. 8
(2) The Trust Accounts Act, section 33, as in force immediately 9
before the commencement day continues to apply to the 10
trustee in relation to the property. 11
(3) Also, the Trust Accounts Act, section 33, as in force 12
immediately before the commencement day continues to 13
apply for the purposes of dealing with any property to which a 14
return given to the public trustee under that section, whether 15
before or after the commencement day, relates. 16
Part 9.12 Repeal of Queensland Law 17
Society Act 1952 18
767 Repeal of the Queensland Law Society Act 1952 19
The Queensland Law Society Act 1952 is repealed.113 20
768 Transitional provision about examination of accounts 21
under Queensland Law Society Act 1952 22
(1) This section applies to an examination of accounts under the 23
Queensland Law Society Act 1952, section 31, if-- 24
(a) before the commencement of this section, a person (the 25
accountant) was appointed under that section to 26
examine an entity's accounts; and 27
113 The Queensland Law Society Acts 1927 to 1952 and Queensland Law Society Acts
1930 to 1952 were consolidated by authority of Queensland Law Society Acts
Amendment Act 1952 1 Eliz 2 No. 24 pt 4 [1952 Sess Vol p 421].
s 769 509 s 769
Legal Profession Bill 2007
(b) on the commencement, the accountant has not 1
completed the examination or has not given to the 2
council a report under that section. 3
(2) On the commencement-- 4
(a) the examination of the entity's accounts is taken to be a 5
trust account investigation; and 6
(b) the accountant is taken to be an investigator under this 7
Act for the purposes of the investigation. 8
769 Another transitional provision for repeal of Queensland 9
Law Society Act 1952 10
(1) On the repeal, the existing members-- 11
(a) stop holding office as members of the solicitors 12
complaints tribunal under the repealed Queensland Law 13
Society Act 1952; and 14
(b) are not entitled to any payments, remuneration or 15
allowances for a period after the repeal. 16
(2) The person who, immediately before the repeal, is the clerk of 17
the former tribunal must give-- 18
(a) to the Brisbane registrar the former tribunal's register of 19
costs assessors, and all related documents to that 20
register; and 21
(b) to the commissioner all other documents held 22
immediately before the repeal by the person as the clerk 23
of the former tribunal. 24
(3) A regulation may provide for how the Brisbane registrar or the 25
commissioner must deal with the documents given to the 26
Brisbane registrar or the commissioner under subsection (2) to 27
protect confidentiality, including creating an offence for 28
unauthorised disclosures. 29
(4) Also, a regulation may provide for a person to apply to the 30
Supreme Court for an order that allows the Brisbane registrar 31
or the commissioner to disclose information, including by 32
giving the person access to or a copy of a document. 33
(5) In this section-- 34
s 770 510 s 770
Legal Profession Bill 2007
existing members mean the members of the solicitors 1
complaints tribunal under the Queensland Law Society Act 2
1952 immediately before its repeal. 3
former tribunal means the solicitors complaints tribunal 4
under the Queensland Law Society Act 1952 before its repeal. 5
repeal means the repeal of the Queensland Law Society Act 6
1952. 7
Part 9.13 Amendment of Acts 8
770 Acts amended in sch 1 9
Schedule 1 amends the Acts mentioned in it. 10
511
Legal Profession Bill 2007
Schedule 1 Acts amended 1
section 770 2
Criminal Law (Rehabilitation of Offenders) Act 1986 3
1 Section 9A, table, column 1, item 24, `2004'-- 4
omit, insert-- 5
`2007'. 6
2 Section 9A, table, column 1, item 25-- 7
omit. 8
Director of Public Prosecutions Act 1984 9
1 Section 4, definition Australian lawyer, `2004, schedule 10
5'-- 11
omit, insert-- 12
`2007, schedule 2'. 13
2 Section 4, definition lawyer, `2004'-- 14
omit, insert-- 15
`2007'. 16
512
Legal Profession Bill 2007
Schedule 1 (continued)
District Court of Queensland Act 1967 1
1 Section 3, definition Australian lawyer, `2004, schedule 2
5'-- 3
omit, insert-- 4
`2007, schedule 2'. 5
2 Section 3, definition incorporated legal practice, `2004, 6
schedule 5'-- 7
omit, insert-- 8
`2007, schedule 2'. 9
3 Section 3, definition lawyer, `2004'-- 10
omit, insert-- 11
`2007'. 12
Justices Act 1886 13
1 Section 4, definition incorporated legal practice, `2004, 14
schedule 5'-- 15
omit, insert-- 16
`2007, schedule 2'. 17
2 Section 4, definition lawyer, `2004'-- 18
omit, insert-- 19
`2007'. 20
513
Legal Profession Bill 2007
Schedule 1 (continued)
Justices of the Peace and Commissioners for 1
Declarations Act 1991 2
1 Section 3, definition Australian lawyer, `2004, schedule 3
5'-- 4
omit, insert-- 5
`2007, schedule 2'. 6
Juvenile Justice Act 1992 7
1 Schedule 4, definition lawyer, `2004'-- 8
omit, insert-- 9
`2007'. 10
Land Sales Act 1984 11
1 Section 11(1)(a), after `practice'-- 12
insert-- 13
`at its office in Queensland'. 14
2 Section 11(1A), after `subsection (1)'-- 15
insert-- 16
`, other than moneys paid to a law practice,'. 17
3 Section 11-- 18
insert-- 19
514
Legal Profession Bill 2007
Schedule 1 (continued)
`(1B) Moneys paid to a law practice under subsection (1) must be 1
held by the law practice in a trust account kept for the 2
purposes of this Act by the practice and dealt with by the 3
practice under this part and the law governing the operation of 4
the practice's trust account. 5
Maximum penalty--200 penalty units or 1 year's 6
imprisonment.'. 7
4 Section 11(4), from `within the meaning of'-- 8
omit, insert-- 9
`under the Legal Profession Act 2007, part 3.3.'. 10
5 Section 11(5), definitions law practice and solicitor-- 11
omit, insert-- 12
`law practice means any of the following, within the meaning 13
of the Legal Profession Act 2007, that has an office in 14
Queensland-- 15
(a) an Australian legal practitioner who is a sole practitioner 16
but not a barrister under that Act; 17
(b) a law firm; 18
(c) an incorporated legal practice; 19
(d) a multi-disciplinary partnership.'. 20
6 Section 12(1), `A person, firm or agency who' 21
omit, insert-- 22
`An entity that'. 23
7 Section 12(1), `person's, firm's or agency's'-- 24
omit, insert-- 25
`entity's'. 26
515
Legal Profession Bill 2007
Schedule 1 (continued)
8 Section 23(1)(a), after `practice'-- 1
insert-- 2
`at its office in Queensland'. 3
9 Section 23(1A), after `subsection (1)'-- 4
insert-- 5
`, other than moneys paid to a law practice,'. 6
10 Section 23(1A)-- 7
insert-- 8
`Maximum penalty--200 penalty units or 1 year's 9
imprisonment.'. 10
11 Section 23-- 11
insert-- 12
`(1B) Moneys paid to a law practice under subsection (1) must be 13
held by the law practice in a trust account kept for the 14
purposes of this Act by the practice and dealt with by the 15
practice under this part and the law governing the operation of 16
the practice's trust account. 17
Maximum penalty--200 penalty units or 1 year's 18
imprisonment.'. 19
12 Section 23(5), from `within the meaning of'-- 20
omit, insert-- 21
`under the Legal Profession Act 2007, part 3.3.'. 22
13 Section 23(6), definitions law practice and solicitor-- 23
omit, insert-- 24
516
Legal Profession Bill 2007
Schedule 1 (continued)
`law practice means any of the following, within the meaning 1
of the Legal Profession Act 2007, that has an office in 2
Queensland-- 3
(a) an Australian legal practitioner who is a sole practitioner 4
but not a barrister under that Act; 5
(b) a law firm; 6
(c) an incorporated legal practice; 7
(d) a multi-disciplinary partnership.'. 8
14 Section 24(1), `A person, firm or agency who'-- 9
omit, insert-- 10
`An entity that'. 11
15 Section 24(1), `person's, firm's or agency's'-- 12
omit, insert-- 13
`entity's'. 14
Land Title Act 1994 15
1 Section 189(1)(c)-- 16
omit. 17
2 Section 189(2)-- 18
omit, insert-- 19
`(2) In this section-- 20
indemnified lawyer means a lawyer covered by indemnity 21
insurance (however described) under the Legal Profession Act 22
2007 or a law of another jurisdiction that corresponds to the 23
provisions about indemnity insurance under that Act.'. 24
517
Legal Profession Bill 2007
Schedule 1 (continued)
3 Schedule 2, definition lawyer, `2004'-- 1
omit, insert-- 2
`2007'. 3
Legal Aid Queensland Act 1997 4
1 Section 45(3), from `Trust Accounts' to `solicitors'-- 5
omit, insert-- 6
`Legal Profession Act 2007 about law practices'. 7
2 Section 45(4), `2004, chapter 2, part 8, division 2'-- 8
omit, insert-- 9
`2007, part 3.3, division 6, subdivision 2114'. 10
3 Section 45(4), `solicitor'-- 11
omit, insert-- 12
`law practice'. 13
4 Section 45(6), `2004, chapter 2, part 8, division 3'-- 14
omit, insert-- 15
`2007, part 3.3, division 6, subdivision 3115'. 16
114 Legal Profession Act 2007, chapter 3 (Conduct of legal practice), part 3.3 (Trust
money and trust accounts), division 6 (Prescribed accounts and Legal Practitioner
Interest on Trust Accounts Fund), subdivision 2 (Prescribed accounts)
115 Legal Profession Act 2007, chapter 3 (Conduct of legal practice), part 3.3 (Trust
money and trust accounts), division 6 (Prescribed accounts and Legal Practitioner
Interest on Trust Accounts Fund), subdivision 3 (Interest on trust accounts paid to
department)
518
Legal Profession Bill 2007
Schedule 1 (continued)
5 Section 72, heading, `2004'-- 1
omit, insert-- 2
`2007'. 3
6 Section 72, `2004, chapter 2, part 7 and chapter 4'-- 4
omit, insert-- 5
`2007, part 3.6 and chapter 5'. 6
7 Section 77, heading, from `Queensland' to `2004'-- 7
omit, insert-- 8
`the Legal Profession Act 2007'. 9
8 Section 77(1)-- 10
omit. 11
9 Section 77(2), all words before `2004'-- 12
omit, insert-- 13
`The provisions of the Legal Profession Act 2007'. 14
10 Section 82(5)(a) and (b), `2004'-- 15
omit, insert-- 16
`2007'. 17
11 Schedule, definition Australian legal practitioner, `2004, 18
schedule 5'-- 19
omit, insert-- 20
`2007, schedule 2'. 21
519
Legal Profession Bill 2007
Schedule 1 (continued)
12 Schedule, definition barrister-- 1
omit, insert-- 2
`barrister has the meaning given in the Legal Profession Act 3
2007, schedule 2, other than for parts 7.3 and 7.5 of that Act.'. 4
13 Schedule, definition government legal officer, `2004, 5
section 10'-- 6
omit, insert-- 7
`2007, section 12(1)'. 8
14 Schedule, definition law firm-- 9
omit, insert-- 10
`law firm see the Legal Profession Act 2007, schedule 2. 11
law practice see the Legal Profession Act 2007, schedule 2.'. 12
15 Schedule, definition lawyer, `2004'-- 13
omit, insert-- 14
`2007'. 15
16 Schedule, definition solicitor-- 16
omit, insert-- 17
`solicitor has the meaning given in the Legal Profession Act 18
2007, schedule 2, other than for parts 7.3 and 7.5 of that Act.'. 19
520
Legal Profession Bill 2007
Schedule 1 (continued)
Magistrates Courts Act 1921 1
1 Section 2, definition lawyer, `2004'-- 2
omit, insert-- 3
`2007'. 4
Personal Injuries Proceedings Act 2002 5
1 Section 63, definition incorporated legal practice, `2004, 6
schedule 5'-- 7
omit, insert-- 8
`2007, schedule 2'. 9
2 Section 63, definition law firm, `2004, schedule 5'-- 10
omit, insert-- 11
`2007, schedule 2'. 12
3 Section 63, definition law practice, `2004, schedule 5'-- 13
omit, insert-- 14
`2007, schedule 2'. 15
4 Section 63, definition legal practitioner director, `2004, 16
schedule 5'-- 17
omit, insert-- 18
`2007, schedule 2'. 19
521
Legal Profession Bill 2007
Schedule 1 (continued)
5 Section 63, definition legal practitioner partner, `2004, 1
schedule 5'-- 2
omit, insert-- 3
`2007, schedule 2'. 4
6 Section 63, definition misconduct, `2004'-- 5
omit, insert-- 6
`2007'. 7
7 Section 63, definition multi-disciplinary partnership, 8
`2004, schedule 5'-- 9
omit, insert-- 10
`2007, schedule 2'. 11
8 Section 63, definition sole practitioner, `2004, schedule 12
5'-- 13
omit, insert-- 14
`2007, schedule 2'. 15
9 Section 85(2)(a), `2004'-- 16
omit, insert-- 17
`2007'. 18
Police Service Administration Act 1990 19
1 Section 10.24(3), `2004'-- 20
omit, insert-- 21
`2007'. 22
522
Legal Profession Bill 2007
Schedule 1 (continued)
Property Agents and Motor Dealers Act 2000 1
1 Section 578(2), `2004'-- 2
omit, insert-- 3
`2007'. 4
2 Schedule 2, definition lawyer, `2004'-- 5
omit, insert-- 6
`2007'. 7
Retail Shop Leases Act 1994 8
1 Schedule, definition Australian lawyer, `2004, schedule 9
5'-- 10
omit, insert-- 11
`2007, schedule 2'. 12
2 Schedule, definition lawyer, `2004'-- 13
omit, insert-- 14
`2007'. 15
Supreme Court Act 1995 16
1 Sections 134(2), 139(3), 208(2), 209(3), 211(18), 219(2), 17
261(4) and 291(4), definition lawyer, `2004'-- 18
omit, insert-- 19
`2007'. 20
523
Legal Profession Bill 2007
Schedule 1 (continued)
2 Section 211(18), definition incorporated legal practice, 1
`2004, schedule 5'-- 2
omit, insert-- 3
`2007, schedule 2'. 4
Supreme Court Library Act 1968 5
1 Section 4(4)(c), `2004'-- 6
omit, insert-- 7
`2007'. 8
Supreme Court of Queensland Act 1991 9
1 Section 118(1)(b)-- 10
omit, insert-- 11
`(b) the admission of persons to the legal profession under 12
the Legal Profession Act 2007, including fees relating to 13
admission; or 14
(ba) the assessment of costs for the Legal Profession Act 15
2007, part 3.4, division 7; or'. 16
2 Section 118(2A), from `The rules' to `admission of legal 17
practitioners'-- 18
omit, insert-- 19
`Rules made under subsection (1)(b)'. 20
524
Legal Profession Bill 2007
Schedule 1 (continued)
3 Section 118(2A), from `2004, section 27'-- 1
omit, insert-- 2
`2007, section 28'. 3
4 Section 118(2A)(b)-- 4
omit, insert-- 5
`(b) other matters about admission dealt with under the 6
Legal Practitioners Act 1995 or the Legal Profession Act 7
2004, before the commencement of the Legal Profession 8
Act 2007, section 28, to the operation of the Legal 9
Profession Act 2007 after the commencement.'. 10
5 Schedule 2, definition lawyer, `2004'-- 11
omit, insert-- 12
`2007'. 13
Transport Operations (Marine Safety) Act 1994 14
1 Section 142(3), `2004'-- 15
omit, insert-- 16
`2007'. 17
2 Schedule, definition Australian legal practitioner, `2004, 18
schedule 5'-- 19
omit, insert-- 20
`2007, schedule 2'. 21
525
Legal Profession Bill 2007
Schedule 1 (continued)
3 Schedule, definition government legal officer, `2004, 1
schedule 5'-- 2
omit, insert-- 3
`2007, schedule 2'. 4
Trust Accounts Act 1973 5
1 Section 4, definitions Australian legal practitioner, 6
conveyancer and solicitor-- 7
omit. 8
2 Section 4, definition trustee, `solicitor, conveyancer or'-- 9
omit. 10
3 Section 4C, `solicitor, conveyancer or'-- 11
omit. 12
4 Sections 4D and 4F-- 13
omit. 14
5 Section 8(1)(a), after `person;'-- 15
insert-- 16
`or'. 17
6 Section 8(1)(b)-- 18
omit. 19
526
Legal Profession Bill 2007
Schedule 1 (continued)
7 Section 8(1)(c), from `held except'-- 1
omit, insert-- 2
`held; or'. 3
8 Section 8(1)(c) and (d)-- 4
renumber as section 8(1)(b) and (c). 5
9 Section 16(4)(a), after `correct;'-- 6
insert-- 7
`and'. 8
10 Section 16(4)(b), after `audit;'-- 9
insert-- 10
`and'. 11
11 Section 16(4)(c), from `(with the exception' to `section 12
206'-- 13
omit. 14
12 Section 21(4)-- 15
omit. 16
13 Section 25, from `or any proceedings' to `1952'-- 17
omit. 18
14 Section 27(2), from `except' to `division 2'-- 19
omit. 20
527
Legal Profession Bill 2007
Schedule 1 (continued)
15 Section 28B(2), from `If' to `entity must'-- 1
omit, insert-- 2
`The supervising entity must'. 3
16 Section 28B(4)-- 4
omit. 5
17 Section 29-- 6
omit. 7
18 Section 31(8)-- 8
omit. 9
19 Section 34(1), `(other than a solicitor)'-- 10
omit. 11
20 Section 35(1), `(other than a solicitor)'-- 12
omit. 13
21 Section 36, `solicitor, conveyancer or', first, second, third 14
and fourth mentions-- 15
omit. 16
22 Section 36(a) and (c), `solicitor, conveyancer or, as the 17
case may be,'-- 18
omit. 19
528
Legal Profession Bill 2007
Schedule 2 Dictionary 1
section 4 2
accounting and other records, for part 9.11, see section 753. 3
ADI means an authorised deposit-taking institution within the 4
meaning of the Banking Act 1959 (Cwlth). 5
administration rules see section 231(3). 6
admission rules see section 29. 7
admission to the legal profession means admission by a 8
Supreme Court as-- 9
(a) a lawyer; or 10
(b) a legal practitioner; or 11
(c) a barrister; or 12
(d) a solicitor; or 13
(e) a barrister and solicitor; or 14
(f) a solicitor and barrister; 15
under this Act, a previous Act or a corresponding law but does 16
not include the grant of a practising certificate under this Act, 17
a previous Act or a corresponding law. 18
affairs, of a law practice, include the following-- 19
(a) all accounts and records required under a relevant law to 20
be kept by the practice or an associate or former 21
associate of the practice; 22
(b) other records of the practice or an associate or former 23
associate of the practice; 24
(c) any transaction-- 25
(i) to which the practice or an associate or former 26
associate of the practice was or is a party; or 27
(ii) in which the practice or an associate or former 28
associate of the practice has acted for a party. 29
529
Legal Profession Bill 2007
Schedule 2 (continued)
amend includes-- 1
(a) in relation to a practising certificate-- 2
(i) impose a condition on the certificate; and 3
(ii) amend or revoke a condition already imposed on 4
the certificate; and 5
(b) in relation to registration as a foreign lawyer-- 6
(i) amend the lawyer's registration certificate; and 7
(ii) impose a condition on the registration; and 8
(iii) amend or revoke a condition already imposed on 9
the registration. 10
applicant for admission see section 29. 11
application for admission see section 29. 12
appointed member, for the council, see section 685(2)(a). 13
approved ADI, for part 3.3, see section 237(1). 14
approved form see section 714. 15
associate, of a law practice, see section 7(1). 16
associated third party payer see section 300. 17
auditor, of a trustee, for part 9.11, see section 753. 18
Australia, for chapter 2, see section 163. 19
Australian financial services licence see the Corporations 20
Act, section 761A. 21
Australian law, for chapter 2, see section 163. 22
Australian lawyer see section 5(1). 23
Australian legal practitioner see section 6(1). 24
Australian practising certificate means a local practising 25
certificate or an interstate practising certificate. 26
Australian-registered foreign lawyer means a locally 27
registered foreign lawyer or an interstate-registered foreign 28
lawyer. 29
Australian roll means the local roll or an interstate roll. 30
530
Legal Profession Bill 2007
Schedule 2 (continued)
Australian trust account means a local trust account or an 1
interstate trust account. 2
authorised action or document, for chapter 9, see section 3
717. 4
authorised representative see the Corporations Act, section 5
761A. 6
bar association means the Bar Association of Queensland 7
(ACN 009 717 739). 8
barrister-- 9
(a) for part 7.3--see section 620; and 10
(b) for part 7.5--see section 658; and 11
(c) otherwise means-- 12
(i) a local legal practitioner who holds a current local 13
practising certificate to practise as or in the manner 14
of a barrister; or 15
(ii) an interstate legal practitioner who holds a current 16
interstate practising certificate that entitles the 17
practitioner to practise only as or in the manner of 18
a barrister. 19
barristers rules see section 218(3). 20
board means the Legal Practitioners Admissions Board 21
established under the Legal Profession Act 2004, section 489, 22
as continued in existence under section 659. 23
Brisbane registrar means the registrar under the Supreme 24
Court of Queensland Act 1991 for the Brisbane Supreme 25
Court district. 26
capping and sufficiency provisions, for part 3.6, see section 27
356. 28
certificate holder means-- 29
(a) for a current local practising certificate or current 30
interstate practising certificate--the person who is 31
named in the certificate as the person to whom the 32
531
Legal Profession Bill 2007
Schedule 2 (continued)
certificate has been granted or in relation to whom the 1
certificate has been renewed; or 2
(b) for a practising certificate that is cancelled--the person 3
who was the holder of the certificate when it was 4
current. 5
change includes a modification whether the change is by way 6
of an addition, alteration, omission or substitution. 7
claim, for part 3.6, see section 356. 8
claimant, for part 3.6, see section 356. 9
client-- 10
(a) for part 3.4, division 7--see section 334; or 11
(b) otherwise--includes a person to whom or for whom 12
legal services are provided. 13
commencement day, for part 9.11, see section 753. 14
commission means the Legal Services Commission 15
established under the Legal Profession Act 2004, section 421, 16
as continued in existence under section 591. 17
commissioner means a person holding the appointment of the 18
Legal Services Commissioner. 19
commissioner of police, for part 2.5, see section 85. 20
committee means the Legal Practice Committee established 21
under the Legal Profession Act 2004, section 451, as 22
continued in existence under section 621. 23
committee member means a person holding an appointment to 24
the committee under section 622. 25
compensation order see section 464. 26
complaint means-- 27
(a) for part 4.5--a complaint made under section 429 other 28
than a complaint under that section about the conduct of 29
an unlawful operator; or 30
(b) otherwise--a complaint made under section 429. 31
concerted interstate default, for part 3.6, see section 356. 32
532
Legal Profession Bill 2007
Schedule 2 (continued)
conditional costs agreement see section 300. 1
conditions means conditions, limitations or restrictions. 2
conduct means conduct whether consisting of an act or 3
omission. 4
consumer dispute, for part 4.5, see section 440. 5
controlled money, for part 3.3, see section 237(1). 6
controlled money account, for part 3.3, see section 237(1). 7
conviction see section 11(1). 8
corporation see section 110. 9
corresponding authority means-- 10
(a) a person or body having functions or powers under a 11
corresponding law; or 12
(b) when used in the context of a person or body having 13
functions or powers under this Act (the local 14
authority)-- 15
(i) a person or body with corresponding functions or 16
powers under a corresponding law; and 17
(ii) without limiting subparagraph (i), if the functions 18
or powers of the local authority relate to local 19
lawyers or local legal practitioners generally or are 20
limited to any particular class of local lawyers or 21
local legal practitioners--a person or body having 22
corresponding functions or powers under a 23
corresponding law regardless of whether they 24
relate to interstate lawyers or interstate legal 25
practitioners generally or are limited to any 26
particular class of interstate lawyers or interstate 27
legal practitioners. 28
corresponding disciplinary body means-- 29
(a) a court or tribunal having functions or powers under a 30
corresponding law, that correspond to any of the 31
functions and powers of a disciplinary body under this 32
Act; or 33
533
Legal Profession Bill 2007
Schedule 2 (continued)
(b) the Supreme Court of another jurisdiction exercising-- 1
(i) its inherent jurisdiction or powers in relation to the 2
control and discipline of any Australian lawyers; or 3
(ii) its jurisdiction or powers to make orders under a 4
corresponding law of the other jurisdiction in 5
relation to any Australian lawyers. 6
corresponding foreign law means the following-- 7
(a) a law of a foreign country that corresponds to the 8
relevant provisions of this Act or, if a regulation is made 9
declaring a law of the foreign country to be a law that 10
corresponds to this Act, the law declared under that 11
regulation for the foreign country; 12
(b) if the term is used in relation to a matter that happened 13
before the commencement of the law of a foreign 14
country that, under paragraph (a), is the corresponding 15
law for the foreign country, a previous law applying to 16
legal practice in the foreign country. 17
corresponding law means the following-- 18
(a) a law of another jurisdiction that corresponds to the 19
relevant provisions of this Act or, if a regulation is made 20
declaring a law of the other jurisdiction to be a law that 21
corresponds to this Act, the law declared under that 22
regulation for the other jurisdiction; 23
(b) if the term is used in relation to a matter that happened 24
before the commencement of the law of another 25
jurisdiction that, under paragraph (a), is the 26
corresponding law for the jurisdiction, a previous law 27
applying to legal practice in the other jurisdiction. 28
corresponding provision, for chapter 9, see section 717. 29
costs agreement see section 300. 30
costs application see section 300. 31
costs assessment see section 300. 32
costs assessor see section 300. 33
534
Legal Profession Bill 2007
Schedule 2 (continued)
council means the council of the law society as mentioned in 1
section 685. 2
council meeting see section 678. 3
council member see section 678. 4
decide includes determine. 5
default, in relation to a law practice, see section 356. 6
defence costs means costs payable by an insurer in relation to 7
any claim, or notification that may lead to a claim, under the 8
relevant policy of insurance. 9
deposit record, for part 3.3, see section 237(1). 10
director see section 110. 11
disbursements see section 300. 12
disciplinary action see section 471. 13
disciplinary body means either of the following entities to 14
which the commissioner makes a discipline application-- 15
(a) the tribunal; 16
(b) the committee, other than the committee exercising 17
advisory functions as mentioned in part 7.3, division 4. 18
discipline application see section 452. 19
discipline register see section 472. 20
dishonesty includes fraud. 21
disqualified person means any of the following persons 22
whether the thing that has happened to the person happened 23
before or after the commencement of this definition-- 24
(a) a person whose name has, whether or not at his or her 25
own request, been removed from an Australian roll and 26
who has not subsequently been admitted or re-admitted 27
to the legal profession under this Act, a previous Act or 28
a corresponding law; 29
(b) a person whose Australian practising certificate has 30
been suspended or cancelled under this Act or a 31
corresponding law and who, because of the cancellation, 32
535
Legal Profession Bill 2007
Schedule 2 (continued)
is not an Australian legal practitioner or in relation to 1
whom that suspension has not finished; 2
(c) a person who has been refused a renewal of an 3
Australian practising certificate under this Act or a 4
corresponding law, and to whom an Australian 5
practising certificate has not been granted at a later time; 6
(d) a person who is the subject of an order under this Act or 7
a corresponding law prohibiting a law practice from 8
employing or paying the person in connection with the 9
relevant practice; 10
(e) a person who is the subject of an order under this Act or 11
a corresponding law prohibiting an Australian legal 12
practitioner from being a partner of the person in a 13
business that includes the practitioner's practice; 14
(f) a person who is the subject of an order under section 15
133 or 158, or under provisions of a corresponding law 16
that correspond to section 133 or 158. 17
document means any record of information, and includes-- 18
(a) anything on which there is writing; and 19
(b) anything on which there are marks, figures, symbols or 20
perforations having a meaning for persons qualified to 21
interpret them; and 22
(c) anything from which sounds, images or writings can be 23
reproduced with or without the aid of anything else; and 24
(d) a map, plan, drawing or photograph; 25
and a reference in this Act to a document, as so defined, 26
includes a reference to-- 27
(e) any part of the document; and 28
(f) any copy, reproduction or duplicate of the document or 29
of any part of the document; and 30
(g) any part of a copy, reproduction or duplicate mentioned 31
in paragraph (f). 32
Example of a document-- 33
register 34
536
Legal Profession Bill 2007
Schedule 2 (continued)
employee, of an entity, means a person who is employed or 1
engaged under a contract of service or contract for services in 2
or by the entity whether or not-- 3
(a) the person works full-time, part-time, or on a temporary 4
or casual basis; or 5
(b) the person is a law clerk or article clerk. 6
engaged in government work, in relation to a government 7
legal officer, see section 12(2). 8
engage in legal practice includes practise law. 9
external examination means an external examination under 10
part 3.3, division 4, of a law practice's trust records. 11
external examiner means a person holding an appointment as 12
an external examiner under part 3.3, division 4. 13
external intervener see section 494(1). 14
external intervention see section 494(1). 15
fidelity fund see section 359. 16
financial period, for a trustee, for part 9.11, see section 753. 17
financial service see the Corporations Act, section 766A. 18
financial services business see the Corporations Act, section 19
761A. 20
foreign country means-- 21
(a) a country other than Australia; or 22
(b) a state, province or other part of a country other than 23
Australia. 24
foreign law means the following-- 25
(a) for part 2.8--the law of a foreign country; 26
(b) otherwise--a law of a foreign country that corresponds 27
to the relevant provisions of this Act, and includes a law 28
of a foreign country that is declared under a regulation 29
to correspond to this Act. 30
foreign law practice, for part 2.8, see section 163. 31
537
Legal Profession Bill 2007
Schedule 2 (continued)
foreign registration authority see section 163. 1
foreign regulatory action means-- 2
(a) removal of a person's name from a foreign roll for 3
disciplinary reasons; or 4
(b) suspension or cancellation of, or refusal to renew, a 5
person's right to engage in legal practice in a foreign 6
country. 7
foreign roll means an official roll of lawyers, whether 8
admitted, practising or otherwise, kept in a foreign country, 9
but does not include a roll prescribed under a regulation for 10
this definition. 11
fund, for part 3.3, division 6, see section 284. 12
general trust account, for part 3.3, see section 237(1). 13
government legal officer see section 12(1). 14
grant, of an interstate practising certificate, includes the issue 15
of an interstate practising certificate. 16
happening includes occurring. 17
health assessment report see section 89. 18
health assessor see section 88. 19
home jurisdiction see section 8. 20
ILP audit see section 541. 21
ILP authority means-- 22
(a) the commissioner; or 23
(b) the law society; or 24
(c) the commissioner and the law society acting jointly 25
under an arrangement made between the commissioner 26
and law society. 27
ILP investigator see section 569. 28
incorporated legal practice see section 111. 29
indemnity rules see section 231(4). 30
information notice see section 10. 31
538
Legal Profession Bill 2007
Schedule 2 (continued)
in-house legal services mean legal services provided to a 1
corporation or a related body corporate by a person employed 2
by the corporation concerning a proceeding or transaction to 3
which the corporation or the related body corporate is a party. 4
insolvent under administration means-- 5
(a) a person who is an undischarged bankrupt within the 6
meaning of the Bankruptcy Act 1966 (Cwlth) or the 7
corresponding provisions of the law of a foreign country 8
or external territory; or 9
(b) a person who has executed a deed of arrangement under 10
the Bankruptcy Act 1966 (Cwlth), part X, or the 11
corresponding provisions of the law of a foreign country 12
or external territory, if the terms of the deed have not 13
been fully complied with; or 14
(c) a person whose creditors have accepted a composition 15
under the Bankruptcy Act 1966 (Cwlth), part X, or the 16
corresponding provisions of the law of a foreign country 17
or external territory, if a final payment has not been 18
made under that composition; or 19
(d) a person for whom a debt agreement has been made 20
under the Bankruptcy Act 1966 (Cwlth), part IX, or the 21
corresponding provisions of the law of a foreign country 22
or external territory, if the debt agreement has not ended 23
or has not been terminated; or 24
(e) a person who has executed a personal insolvency 25
agreement under the Bankruptcy Act 1966 (Cwlth), part 26
X, or the corresponding provisions of the law of a 27
foreign country or external territory, but not if the 28
agreement has been set aside or terminated or all of the 29
obligations that the agreement created have been 30
discharged. 31
interstate lawyer see section 5(3). 32
interstate legal practitioner see section 6(3). 33
interstate practising certificate means a current practising 34
certificate granted under a corresponding law. 35
539
Legal Profession Bill 2007
Schedule 2 (continued)
interstate-registered foreign lawyer means a person who is 1
registered as a foreign lawyer under a corresponding law. 2
interstate registration, for part 2.5, see section 85. 3
interstate roll means a roll of lawyers kept under a 4
corresponding law. 5
interstate trust account means a trust account kept under a 6
corresponding law. 7
investigation see section 541. 8
investigation matter means-- 9
(a) for chapter 4--an investigation matter under section 435 10
other than an investigation matter under that section 11
about the conduct of an unlawful operator; or 12
(b) otherwise--an investigation matter under section 435. 13
investigator see section 541. 14
issue includes grant or renew. 15
itemised bill see section 300. 16
jurisdiction means a State or Territory of the Commonwealth. 17
kept includes maintained. 18
law firm means a partnership consisting only of-- 19
(a) Australian legal practitioners; or 20
(b) 1 or more Australian legal practitioners and 1 or more 21
Australian-registered foreign lawyers. 22
law practice-- 23
(a) for part 3.3, division 6--see section 284; or 24
(b) otherwise means-- 25
(i) an Australian legal practitioner who is a sole 26
practitioner; or 27
(ii) a law firm; or 28
(iii) an incorporated legal practice; or 29
(iv) a multi-disciplinary partnership. 30
540
Legal Profession Bill 2007
Schedule 2 (continued)
law practice employee means an employee of a law practice 1
engaged in the activities associated with the practice, other 2
than an Australian legal practitioner who is an employee of 3
the practice. 4
law society means the Queensland Law Society Incorporated 5
established under the Queensland Law Society Act 1952, 6
section 4, and continued in existence under the Legal 7
Profession Act 2004, section 508, as continued in existence 8
under section 679. 9
law society approved form means a form approved under 10
section 714 by the law society. 11
lay associate-- 12
(a) generally--see section 7(3); and 13
(b) for section 26--see section 26(7). 14
lay panel means the lay panel established under the Legal 15
Profession Act 2004, section 437(1)(a), as continued in 16
existence under section 607(1)(a). 17
legal costs, for part 3.4, division 8, see section 346. 18
legal practice, for part 2.5, see section 85. 19
legal practitioner associate, of a law practice, see section 20
7(2). 21
legal practitioner director, in relation to an incorporated legal 22
practice, see section 110. 23
legal practitioner partner, in relation to a multi-disciplinary 24
partnership, see section 110. 25
legal profession rules see section 218. 26
legal services means work done, or business transacted, in the 27
ordinary course of legal practice. 28
levy means a levy under section 369. 29
litigious matter see section 300. 30
local lawyer see section 5(2). 31
local legal practitioner see section 6(2). 32
541
Legal Profession Bill 2007
Schedule 2 (continued)
locally registered foreign lawyer means a person who is 1
registered as a foreign lawyer under this Act. 2
local practising certificate means a practising certificate 3
granted, or another document that is evidence of the renewal 4
of a practising certificate granted, by the law society or by the 5
bar association under this Act. 6
local registration, for part 2.5, see section 85. 7
local registration certificate, for part 2.8, see section 163. 8
local roll means the roll of persons admitted to the legal 9
profession, under this Act or a previous Act, that is kept under 10
section 37. 11
local trust account means a trust account kept under this Act. 12
lump sum bill see section 300. 13
made, for chapter 9, see section 717. 14
managed investment scheme has the same meaning as in the 15
Corporations Act, chapter 5C. 16
manager means a person appointed under section 505 as a 17
manager for a law practice. 18
mentioned includes referred to. 19
misconduct, of a law practice employee, means misconduct, 20
whether consisting of an act or omission, by the law practice 21
employee. 22
mortgage means an instrument under which an interest in real 23
property is charged, encumbered or transferred as security for 24
the payment or repayment of money, and includes-- 25
(a) any instrument of a kind that is prescribed under a 26
regulation as a mortgage; and 27
(b) a proposed mortgage. 28
mortgage financing means facilitating a loan secured or 29
intended to be secured by mortgage by-- 30
(a) acting as an intermediary to match a prospective lender 31
and borrower; or 32
542
Legal Profession Bill 2007
Schedule 2 (continued)
(b) arranging a loan; or 1
(c) receiving or dealing with payments under the loan; 2
but does not include providing legal advice, or preparing an 3
instrument, for the loan. 4
multi-disciplinary partnership see section 144. 5
non-associated third party payer see section 300. 6
obligation, for chapter 9, see section 717. 7
officer see section 110. 8
overseas-registered foreign lawyer, for part 2.8, see section 9
163. 10
panel member means a person holding an appointment to the 11
lay panel or the practitioner panel under part 7.2, division 3. 12
pecuniary loss, in relation to a default, see section 356. 13
permanent form, for part 3.3, see section 237(1). 14
practical legal training means either, or a combination of 15
both, of the following-- 16
(a) legal training by participation in course work; 17
(b) legal training under the supervision of an Australian 18
lawyer, whether involving articles of clerkship or 19
otherwise. 20
practise foreign law, for part 2.8, see section 163. 21
practising certificate means a practising certificate granted, or 22
another document that is evidence of the granting of a renewal 23
of a practising certificate, under this Act or a corresponding 24
law. 25
practitioner panel means the practitioner panel established 26
under the Legal Profession Act 2004, section 437(1)(b), as 27
continued in existence under section 607(1)(b). 28
prescribed account see section 284. 29
presidential member see section 678. 30
previous, for chapter 9, see section 717. 31
543
Legal Profession Bill 2007
Schedule 2 (continued)
previous Act means-- 1
(a) in relation to admission, the following as in force from 2
time to time-- 3
(i) the Legal Profession Act 2004; 4
(ii) the Legal Practitioners Act 1995; 5
(iii) the previous admission rules; or 6
(b) otherwise--the Legal Profession Act 2004 or Legal 7
Practitioners Act 1995, as in force from time to time. 8
previous admission rules means either of the following as in 9
force at any time before 1 July 2004-- 10
(a) the repealed Barristers' Admission Rules 1975; 11
(b) the repealed Solicitors' Admission Rules 1968. 12
previous provision, for chapter 9, see section 717. 13
principal, of a law practice, see section 7(4). 14
pro bono means-- 15
(a) done for the public good; and 16
(b) without charge or at a reduced cost. 17
professional misconduct-- 18
(a) for dealing with a complaint about conduct that 19
happened before 1 July 2004--see chapter 9; or 20
(b) otherwise--see section 419. 21
professional obligations, of an Australian legal practitioner, 22
see section 110. 23
protections, for chapter 9, see section 717. 24
public authority see section 300. 25
quashing a conviction see section 11(2). 26
receiver means a person appointed under section 512 as a 27
receiver for a law practice. 28
registered, when used in conjunction with a foreign country, 29
see section 163. 30
544
Legal Profession Bill 2007
Schedule 2 (continued)
registrar see the Supreme Court of Queensland Act 1991, 1
schedule 2. 2
registration, for part 2.5, see section 85. 3
regulated property, of a law practice, see section 494(1). 4
regulatory authority means-- 5
(a) in relation to this jurisdiction--the law society or the bar 6
association; or 7
(b) in relation to another jurisdiction-- 8
(i) if there is only 1 regulatory authority for the other 9
jurisdiction--that regulatory authority, unless 10
subparagraph (iii) applies; or 11
(ii) if there are separate regulatory authorities for the 12
other jurisdiction for different branches of the legal 13
profession or for persons who practise in a 14
particular style of legal practice--the regulatory 15
authority relevant to the branch or style concerned, 16
unless subparagraph (iii) applies; or 17
(iii) if a regulation states, or provides for deciding, 1 or 18
more regulatory authorities for the other 19
jurisdiction either generally or for particular 20
purposes--the regulatory authority or authorities 21
stated, or decided, under the regulation. 22
related body corporate see section 110. 23
relevant authority, for part 2.5, see section 85. 24
relevant jurisdiction, for part 3.6, see section 371. 25
relevant law means-- 26
(a) this Act; or 27
(b) a previous Act; or 28
(c) the Queensland Law Society Act 1952 as in force at any 29
time before the commencement of this paragraph; or 30
(d) the Trust Accounts Act 1973 as in force at any time 31
before the commencement of this paragraph; or 32
545
Legal Profession Bill 2007
Schedule 2 (continued)
(e) the Personal Injuries Proceedings Act 2002, chapter 3, 1
part 1,116 as in force at any time before or after the 2
commencement of this paragraph. 3
relevant practice means legal services provided by a law 4
practice. 5
relevant regulatory authority means-- 6
(a) if the person in relation to whom the expression is used 7
practises, or intends to practise, only as a barrister--the 8
bar association; or 9
(b) otherwise--the law society. 10
respondent, for chapter 4, see section 421. 11
scale of costs see section 300. 12
serious offence means an offence whether committed in or 13
outside this jurisdiction that is-- 14
(a) an indictable offence against a law of the 15
Commonwealth or any jurisdiction, whether or not the 16
offence is or may be dealt with summarily; or 17
(b) an offence against a law of another jurisdiction that 18
would be an indictable offence against a law of this 19
jurisdiction if committed in this jurisdiction, whether or 20
not the offence could be dealt with summarily if 21
committed in this jurisdiction; or 22
(c) an offence against a law of a foreign country that would 23
be an indictable offence against a law of the 24
Commonwealth or this jurisdiction if committed in this 25
jurisdiction, whether or not the offence could be dealt 26
with summarily if committed in this jurisdiction. 27
show cause event, in relation to a person, means-- 28
(a) his or her becoming bankrupt or being served with 29
notice of a creditor's petition presented to the Court 30
under the Bankruptcy Act 1966 (Cwlth), section 43; or 31
116 Personal Injuries Proceedings Act 2002, chapter 3 (Other matters), part 1
(Restriction on advertising of personal injury services and touting)
546
Legal Profession Bill 2007
Schedule 2 (continued)
(b) his or her presentation, as a debtor, of a declaration to 1
the Official Receiver under the Bankruptcy Act 1966 2
(Cwlth), section 54A, of his or her intention to present a 3
debtor's petition or his or her presentation, as a debtor, 4
of a petition under section 55 of that Act; or 5
(c) his or her applying to take the benefit of any law for the 6
relief of bankrupt or insolvent debtors, compounding 7
with his or her creditors or making an assignment of his 8
or her remuneration for their benefit; or 9
(d) his or her conviction for a serious offence or a tax 10
offence, whether or not-- 11
(i) the offence was committed in or outside this 12
jurisdiction; or 13
(ii) the offence was committed while the person was 14
engaging in legal practice as an Australian legal 15
practitioner or was practising foreign law as an 16
Australian-registered foreign lawyer; or 17
(iii) other persons are prohibited from disclosing the 18
identity of the offender. 19
society rules see section 696. 20
sole practitioner means an Australian lawyer who engages in 21
legal practice on his or her own account. 22
solicitor-- 23
(a) for part 7.3--see section 620; and 24
(b) for part 7.5--see section 658; and 25
(c) otherwise means-- 26
(i) a local legal practitioner who holds a current local 27
practising certificate to practise as a solicitor; or 28
(ii) an interstate legal practitioner who holds a current 29
interstate practising certificate that does not restrict 30
the practitioner to engaging in legal practice only 31
as or in the manner of a barrister. 32
solicitors complaints tribunal see the Queensland Law 33
Society Act 1952, section 3. 34
547
Legal Profession Bill 2007
Schedule 2 (continued)
solicitors rules see section 218(1)(a). 1
sophisticated client see section 300. 2
speculative personal injury claim, for part 3.4, division 8, see 3
section 346. 4
staff, in relation to the office of the commissioner or the 5
commission, see section 592. 6
stated includes specified. 7
subject person, for part 2.5, see section 85. 8
suitability matter, in relation to a natural person, see section 9. 9
suitability report, for part 2.5, see section 85. 10
supervised legal practice means legal practice by a person 11
who is an Australian legal practitioner-- 12
(a) as an employee of a law practice if-- 13
(i) a least 1 partner, legal practitioner director or other 14
employee of the law practice is an Australian legal 15
practitioner who holds an unrestricted practising 16
certificate; and 17
(ii) the person engages in legal practice under the 18
supervision of an Australian legal practitioner 19
mentioned in subparagraph (i); or 20
(b) as a partner in a law firm if-- 21
(i) at least 1 other partner is an Australian legal 22
practitioner who holds an unrestricted practising 23
certificate; and 24
(ii) the person engages in legal practice under the 25
supervision of an Australian legal practitioner 26
mentioned in subparagraph (i); or 27
(c) in a capacity approved under administration rules. 28
supervising entity, for part 9.11, see section 753. 29
supervisor means a person appointed under section 499 as a 30
supervisor of trust money of a law practice. 31
Supreme Court, for part 2.3, see section 29. 32
548
Legal Profession Bill 2007
Schedule 2 (continued)
tax offence means an offence under the Taxation 1
Administration Act 1953 (Cwlth), whether committed in or 2
outside this jurisdiction. 3
third party payer see section 300. 4
this jurisdiction means this State. 5
transit money, for part 3.3, see section 237(1). 6
tribunal means the Legal Practice Tribunal established under 7
the Legal Profession Act 2004, section 429, as continued in 8
existence under section 599. 9
tribunal member means a member of the tribunal constituting 10
the tribunal to hear and decide a discipline application. 11
tribunal rules see section 603. 12
trust account see section 237(1). 13
trust account investigation see section 263(5). 14
Trust Accounts Act, for part 9.11, see section 753. 15
trustee, for part 9.11, see section 753. 16
trust money, other than trust moneys, see section 237(1). 17
trust moneys, for part 9.11, see section 753. 18
trust property means property entrusted to a law practice in 19
the course of or in connection with the provision of legal 20
services by the practice, but does not include trust money or 21
money mentioned in section 238. 22
trust records see section 237(1). 23
Uniform Civil Procedure Rules see the Supreme Court of 24
Queensland Act 1991, section 118(3). 25
unlawful operator means-- 26
(a) a person who engages in legal practice in this 27
jurisdiction even though the person must not do so under 28
section 24; or 29
(b) a person who represents or advertises that the person is 30
entitled to engage in legal practice even though the 31
person must not do so under section 25. 32
549
Legal Profession Bill 2007
Schedule 2 (continued)
unrestricted practising certificate means an Australian 1
practising certificate that is not subject to any condition under 2
this Act or a corresponding law requiring the holder to engage 3
in supervised legal practice or restricting the holder to practise 4
as or in the manner of a barrister. 5
unsatisfactory professional conduct-- 6
(a) for dealing with a complaint about conduct that 7
happened before 1 July 2004--see chapter 9; or 8
(b) otherwise--see section 418. 9
uplift fee see section 300. 10
© State of Queensland 2007
AMENDMENTS TO BILL
1
Legal Profession Bill 2007
Legal Profession Bill 2007
Amendments agreed to during Consideration
1 Clause 2 (Commencement)
At page 34, lines 7 and 8--
omit, insert--
`This Act, other than the following provisions, commences on
a day to be fixed by proclamation--
· part 3.2, divisions 1 to 4, other than sections 217, 223
and 226
· part 7.6, division 6, other than section 698.'.
2 Clause 223 (Public notice of proposed legal profession
rules)
At page 177, line 14, after `that'--
insert--
`, after the commencement of this section,'.
3 Clause 232 (Indemnity rules)
At page 186, lines 33 and 34, `an incorporated legal'--
omit, insert--
`a law'.
4 Clause 232 (Indemnity rules)
At page 186, line 37, `an incorporated legal'--
omit, insert--
`a law'.
2
Legal Profession Bill 2007
5 Clause 301 (Terms relating to third party payers)
At page 228, line 25, after `A third'--
insert--
`party'.
6 Clause 319 (On what basis are legal costs recoverable)
At page 242, line 5, `Subject'--
omit, insert--
`(1) Subject'.
7 Clause 319 (On what basis are legal costs recoverable)
At page 242, after line 16--
insert--
`(2) Subsection (1) does not apply in relation to the recovery of
legal costs for work by a barrister retained, before the relevant
day, to perform that work.
`(3) In this section--
relevant day means the day that is 6 months after the day of
commencement of this section.'.
8 Clause 352 (Ordinary protection and immunity allowed)
At page 265, lines 31 and 32, and page 266, lines 1 and 2--
omit, insert--
`(2) A party appearing in a costs assessment has the same
protection and immunity the party would have if the costs
assessment were a proceeding being heard before the
Supreme Court.'.
3
Legal Profession Bill 2007
9 Clause 352 (Ordinary protection and immunity allowed)
At page 266, after line 9--
insert--
`(5) In this section--
party includes a party's lawyer or agent.'.
10 Clause 736 (Failure to comply with Queensland Law
Society Act 1952 after commencement and before
relevant day)
At page 488, line 3, after `law practice'--
insert--
`, other than a barrister,'.
11 Schedule 1 (Acts amended)
At page 511, after line 2--
insert--
`Criminal Code
`1 Section 436(4)--
insert--
`(g) a legal practitioner associate of a law practice, within the
meaning of the Legal Profession Act 2007, if part 3.3 of
that Act applies to the law practice.'.
`2 Section 568--
insert--
`(2A) For subsection (2), the reference to a trustee to whom the
Trust Accounts Act 1973 applies includes a legal practitioner
associate of a law practice, within the meaning of the Legal
Profession Act 2007, if part 3.3 of the Legal Profession Act
2007 applies to the law practice.'.
4
Legal Profession Bill 2007
`3 Section 641--
insert--
`(4) For subsection (1) or (3), the reference to a trustee within the
meaning of the Trust Accounts Act 1973 includes a legal
practitioner associate of a law practice, within the meaning of
the Legal Profession Act 2007, if part 3.3 of the Legal
Profession Act 2007 applies to the law practice.'.'.
12 Schedule 1 (Acts amended)
At page 511, after line 3--
insert--
`1AA Section 9A(1), table, column 1, item 20, `as a legal
practitioner'--
omit, insert--
`to the legal profession'.'.
13 Schedule 1 (Acts amended)
At page 522, after line 1--
insert--
`1AA Sections 125(2), 160(4)(c) and 354(4)(b), `the Trust
Accounts Act 1973'--
omit, insert--
`the Legal Profession Act 2007'.
`1AB Section 372(1)(b)--
omit, insert--
`(b) a law practice; or'.
5
Legal Profession Bill 2007
`1AC Section 372--
insert--
`(5) In this section--
law practice means any of the following, within the meaning
of the Legal Profession Act 2007, that has an office in
Queensland--
(a) an Australian legal practitioner who is a sole practitioner
but not a barrister under that Act;
(b) a law firm;
(c) an incorporated legal practice;
(d) a multi-disciplinary partnership.'.'.
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