Legal Profession Act 2007

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

1Short title

This Act may be cited as the Legal Profession Act 2007.

2Commencement

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.

3Main purposes

The main purposes of this Act are as follows—

(a)to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;

(b)to facilitate the regulation of legal practice on a national basis across State borders.

4Definitions

The dictionary in schedule 2 defines particular words used in this Act.

5Terms relating to lawyers

(1)An Australian lawyer is a person who is admitted to the legal profession under this Act or a corresponding law.

(2)A local lawyer is a person who is admitted to the legal profession under this Act, whether or not the person is also admitted under a corresponding law.

(3)An interstate lawyer is a person who is admitted to the legal profession under a corresponding law, but not under this Act.

(4)In this section—

this Act includes a previous Act.

6Terms relating to legal practitioners

(1)An Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate.

(2)A local legal practitioner is an Australian lawyer who holds a current local practising certificate.

(3)An interstate legal practitioner is an Australian lawyer who holds a current interstate practising certificate, but not a local practising certificate.

7Terms relating to associates and principals of law practices

(1)An associate, of a law practice, is—

(a)an Australian legal practitioner who is—

(i)a sole practitioner if the law practice is constituted by the practitioner; or

(ii)a partner in the law practice if the law practice is a law firm; or

(iii)a legal practitioner director in the law practice if the law practice is an incorporated legal practice; or

(iv)a legal practitioner partner in the law practice if the law practice is a multi-disciplinary partnership; or

(v)an employee of, or consultant to, the law practice; or

(b)an agent of the law practice who is not an Australian legal practitioner; or

(c)an employee of the law practice who is not an Australian legal practitioner; or

(d)an Australian-registered foreign lawyer who is a partner in the law practice; or

(e)a person who is a partner in the multi-disciplinary partnership but who is not an Australian legal practitioner; or

(f)an Australian-registered foreign lawyer who has a relationship with the law practice, that is a class of relationship prescribed under a regulation.

(2)A legal practitioner associate, of a law practice, is an associate of the practice who is an Australian legal practitioner.

(3)A lay associate, of a law practice, is an associate of the practice who is not an Australian legal practitioner.

(4)A principal, of a law practice, is an Australian legal practitioner who is—

(a)a sole practitioner if the law practice is constituted by the practitioner; or

(b)a partner in the law practice if the law practice is a law firm; or

(c)a legal practitioner director in the law practice if the law practice is an incorporated legal practice; or

(d)a legal practitioner partner in the law practice if the law practice is a multi-disciplinary partnership.

8Home jurisdiction

(1)The home jurisdiction, for an Australian legal practitioner, is the jurisdiction in which the practitioner’s only or most recent current Australian practising certificate was granted.

(2)The home jurisdiction, for an Australian-registered foreign lawyer, is the jurisdiction in which the lawyer’s only or most recent current registration was granted.

(3)The home jurisdiction, for an associate of a law practice who is neither an Australian legal practitioner nor an Australian-registered foreign lawyer, is—

(a)if only 1 jurisdiction is the home jurisdiction for the only associate of the practice who is an Australian legal practitioner or for all the associates of the practice who are Australian legal practitioners—that jurisdiction; or

(b)if no 1 jurisdiction is the home jurisdiction for all the associates of the practice who are Australian legal practitioners—

(i)the jurisdiction in which the office is situated at which the associate performs most of his or her duties for the practice; or

(ii)if a jurisdiction can not be decided under subparagraph (i)—the jurisdiction in which the associate is enrolled under a law of the jurisdiction to vote at elections for the jurisdiction; or

(iii)if a jurisdiction can not be decided under subparagraph (i) or (ii)—the jurisdiction decided under criteria prescribed under a regulation.

9Suitability matters

(1)Each of the following is a suitability matter in relation to a natural person—

(a)whether the person is currently of good fame and character;

(b)whether the person is or has been an insolvent under administration;

(c)whether the person is or has been a legal practitioner director of an incorporated legal practice while the practice is or was a chapter 5 body corporate;

(d)whether the person is or has been a director of a corporation while the corporation is or was a chapter 5 body corporate;

(e)whether the person has been convicted of an offence in Australia or a foreign country, and if so—

(i)the nature of the offence; and

(ii)how long ago the offence was committed; and

(iii)the person’s age when the offence was committed;

(f)whether the person engaged in legal practice in Australia—

(i)when not admitted to the legal profession, or not holding a practising certificate, as required under a relevant law or a corresponding law; or

(ii)if admitted to the legal profession, in contravention of a condition on which admission was granted; or

(iii)if holding an Australian practising certificate, in contravention of a condition applicable to the certificate or while the certificate was suspended;

(g)whether the person has practised law in a foreign country—

(i)when not permitted under a law of that country to do so; or

(ii)if permitted to do so, in contravention of a condition of the permission;

(h)whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following—

(i)a relevant law;

(ii)a corresponding law;

(iii)a corresponding foreign law;

(i)whether the person—

(i)is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country; or

(ii)has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt;

(j)whether the person’s name has been removed from—

(i)a local roll but has not since been restored to or entered on a local roll; or

(ii)an interstate roll, but has not since been restored to or entered on an interstate roll; or

(iii)a foreign roll;

(k)whether the person’s right to engage in legal practice has been suspended or cancelled in Australia or a foreign country;

(l)whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts;

(m)whether, under a relevant law, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person;

(n)whether the person is or has been subject to an order under this Act, a previous Act, a law of the Commonwealth or a corresponding law, disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice;

(o)whether the person currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner;

(p)a matter declared under an Act to be a suitability matter.

(2)A matter under subsection (1) is a suitability matter even though it happened before the commencement of this section.

s 9 amd 2009 No. 53 s 157; 2016 No. 62 s 493 sch 1 pt 1; 2017 No. 17 s 157; 2020 No. 15 s 135

10Information notices

(1)An information notice is a written notice to a person about a decision relating to the person stating—

(a)if the person may apply to the tribunal for a review of the decision—the matters mentioned in the QCAT Act, section 157(2); or

(b)otherwise—

(i)the decision; and

(ii)the reasons for the decision; and

(iii)if the person may appeal under this Act, that the person may appeal against the decision to the Supreme Court and the day by which the appeal must be started.

(2)A provision under this Act may provide that an information notice relevant to the provision must include other stated information.

(3)If a person may apply for a review, or appeal, within a number of days after the day the information notice is given to the person, a defect in the notice does not affect the person’s right to apply for review or to appeal in relation to the matters dealt with in the information notice.

s 10 amd 2009 No. 24 s 1477

11References to convictions for offences

(1)A conviction, for an offence, includes either of the following whether or not a conviction is recorded on sentence—

(a)a finding of guilt;

(b)the acceptance of a guilty plea.

(2)Without limiting subsection (1), quashing a conviction, for an offence—

(a)includes quashing—

(i)a finding of guilt for the offence; or

(ii)the acceptance of a guilty plea for the offence; and

(b)does not include quashing a conviction if—

(i)a finding of guilt in relation to the offence remains unaffected; or

(ii)the acceptance of a guilty plea in relation to the offence remains unaffected.

(3)A conviction includes a conviction before the commencement of this section.

Note—

See also the Criminal Law (Rehabilitation of Offenders) Act 1986, section 9A, table, items 24 and 25.

12Meaning of government legal officer and engaged in government work and related matters

(1)A government legal officer is a person whose employment or appointment in any of the following includes or may include engaging in legal practice—

(a)a department of this jurisdiction, the commission, or an agency prescribed under a regulation;

Note—

Under the Public Service Act 2008, section 22, this Act applies to a public service office mentioned in schedule 1 of that Act and its public service employees as if the office were a department.

(b)a department of government of the Commonwealth;

(c)a department of government of another jurisdiction;

(d)an agency of another jurisdiction if, under a corresponding law of that jurisdiction, a person engaging in legal practice for the agency is exempted from holding a practising certificate or otherwise does not require a practising certificate.

(2)A government legal officer is engaged in government work when the government legal officer is engaged in legal practice in the course of the officer’s duties for the entity in relation to which the person is an employee or appointee.

Example of engaged in government work—

A public service officer employed by the Department of Justice and Attorney-General is engaged in legal practice at the Department of Education. The officer’s duties for the Department of Justice and Attorney-General while working at the Department of Education include providing advice to that department as a client of the Department of Justice and Attorney-General.

(3)For an agency prescribed for subsection (1)(a), a regulation may state activities that are, or are not, government work.

(4)If a provision under this Act does not apply to a government legal officer engaged in government work, the provision applies to the person who is the government legal officer if the person is engaging in legal practice other than being engaged in government work.

(5)If a government legal officer holds a practising certificate from the bar association, a condition of the barrister’s practising certificate about only practising as a barrister does not apply to the government legal officer to the extent that the government legal officer practises as a solicitor as part of engaging in government work.

(6)A government legal officer who is an Australian lawyer does not have any fewer rights, privileges, protections or immunities than an Australian lawyer who is not a government legal officer.

(7)A government legal officer who is not an Australian lawyer is subject to the same limitations and obligations to which a government legal officer who is an Australian lawyer is subject.

(8)The provisions of this Act about the fidelity fund do not apply to a government legal officer in his or her capacity as a government legal officer engaged in government work even if the government legal officer is the holder of a practising certificate.

(9)A government legal officer who is an Australian lawyer but does not hold a current local practising certificate may—

(a)if the officer was admitted to the legal profession as a barrister before 1 July 2004 or engages in government work in the manner of a barrister—call himself or herself a barrister or another term that describes the way the officer engages in government work; or

(b)if the officer was admitted to the legal profession as a solicitor before 1 July 2004 or engages in government work in the manner of a solicitor—call himself or herself a solicitor or another term that describes the way the officer engages in government work.

(10)Without limiting another subsection, if under an Act an Australian lawyer is allowed to witness a document even though the lawyer does not hold a current local practising certificate—

(a)nothing in this section prevents a government legal officer who is an Australian lawyer but does not hold a current local practising certificate from witnessing the document; and

(b)when witnessing the document, the government legal officer may include a description or title that is correct at the time, including, for example—

(i)the title of lawyer or Australian lawyer; or

(ii)another title involving the government legal officer’s employment or appointment as mentioned subsection (1).

(11)For a person whose employment or appointment in a department of government of the Commonwealth includes or may include engaging in legal practice as mentioned in subsection (1)(b), this Act is subject to the Judiciary Act 1903 (Cwlth).

s 12 amd 2017 No. 17 s 158

13Inherent jurisdiction of Supreme Court

(1)The inherent jurisdiction and power of the Supreme Court in relation to the control and discipline of local lawyers and local legal practitioners is not affected by anything in this Act.

(2)The inherent jurisdiction and power—

(a)extends to an interstate legal practitioner as mentioned in section 78; and

(b)may be exercised by making—

(i)any order the committee may make under this Act; or

(ii)any order or direction the tribunal may make under this Act or the QCAT Act.

s 13 amd 2009 No. 24 s 1478

14Jurisdiction of Supreme Court

(1)The Supreme Court must hear and decide each application and appeal made to it under this Act and may make the order it considers appropriate for the application or appeal.

(2)Subsection (1) is subject to a provision that states the orders that may be made by the court on an application or appeal.

(3)This section does not limit section 13.

(4)An Australian lawyer is entitled to appear before and be heard by the Supreme Court at a hearing about an application or appeal as mentioned in subsection (1) that is made in relation to the lawyer under this Act.

15Appeal period for appeal to Supreme Court

(1)This section applies if a provision of this Act provides that a person has a stated number of days to appeal to the Supreme Court (the appeal period).

(2)The court may allow a person who may appeal within the appeal period to appeal after that appeal period if the court considers it appropriate having regard to the extent of, and reasons for, the delay.

s 15 amd 2009 No. 24 s 1479

16Hearing and deciding particular action without a jury

(1)This section applies if an action in relation to any description of civil liability arising out of the business of practising as an Australian legal practitioner is before a court and any person who may be made liable in that action is indemnified under a contract of insurance under a relevant law.

(2)If, apart from this section, the action may be heard and decided by a jury in that court, the action must be heard and decided by a judge without a jury.

17Notes in text may indicate difference to language in corresponding law

A note in the text in this Act is sometimes used to indicate why the language in this Act may be different to the language used in corresponding laws.

Example—

This Act often refers to a law of this jurisdiction, including this Act. Under the Acts Interpretation Act 1954, section 7, the reference to a law includes a reference to statutory instruments made or in force under the law. Accordingly, a reference to this Act includes, for example, a regulation or legal profession rules made or in force under this Act.

18Timing for doing things

If no time is provided or allowed for doing something under this Act, the thing is to be done as soon as practicable, and as often as is required.

19Grounds that are reasonable in the circumstances

(1)If, under this Act, a person is required to be satisfied or not satisfied of, or have a belief or suspicion about, a particular matter before the person may do or refrain from doing an act, or make a decision, the person must be satisfied or not satisfied or have the belief or suspicion on grounds that are reasonable in the circumstances.

(2)If, under this Act, a person who is satisfied or not satisfied of, or has a belief or suspicion about, a particular matter is required to do or refrain from doing an act, or make a decision, the person must be satisfied or not satisfied, or have the belief or suspicion, on grounds that are reasonable in the circumstances.

(3)If, under this Act, an entity is required to consider that a particular matter is appropriate before the entity may do or refrain from doing an act or make a decision, the entity must not do or refrain from doing the act, or make the decision, unless the entity considers the particular matter is appropriate on grounds that are reasonable in the circumstances.

(4)The following are examples of entities for subsection (3)—

(a)a disciplinary body;

(b)the board;

(c)a regulatory authority;

(d)the commissioner;

(e)an investigator.

20References to parts in this Act

(1)A reference in this Act to a part by a number is a reference to the part, designated by that number, of this Act.

(2)A reference under another Act to a part of this Act by a number without reference to a chapter is a reference to the part, designated by that number, in this Act.

21Simplified overview of ch 2

(1)Generally, this chapter seeks to achieve the main purposes of this Act by providing that—

(a)legal practice is engaged in only by persons who are properly qualified and hold a current practising certificate; and

(b)only persons who are eligible and fit and proper persons for admission to the legal profession are admitted; and

(c)an Australian lawyer may obtain a local practising certificate from the law society or bar association and become a local legal practitioner; and

(d)police reports and health assessment reports may be obtained for purposes stated in this Act; and

(e)the regulation of legal practice on a national basis is promoted by providing for inter-jurisdictional provisions regarding admission to the legal profession and practising certificates; and

(f)a corporation may engage in legal practice as an incorporated legal practice while it has a legal practitioner director, and a partnership, consisting of at least 1 partner who is not an Australian legal practitioner, may engage in providing legal services in this jurisdiction if there is at least 1 legal practitioner partner; and

(g)foreign lawyers may practise foreign law in this jurisdiction as a recognised aspect of legal practice in this jurisdiction to encourage and facilitate the internationalisation of legal services and the legal services sector.

(2)Subsection (1) is intended only as a guide to readers as to the general scheme of this chapter.

22Main purposes for pt 2.2

The main purposes of this part are as follows—

(a)to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified to do so;

(b)to protect consumers by ensuring that persons carrying out legal work are entitled to do so.

23Part does not apply to a person if authorised under a Commonwealth law or a government legal officer

(1)This part does not apply to—

(a)a person authorised to engage in legal practice under a law of the Commonwealth; or

(b)a government legal officer engaged in government work.

(2)However, subsection (1) does not prevent this part applying to a person only because the person has been enrolled as a barrister or solicitor, as a barrister and solicitor or as a legal practitioner, of the High Court of Australia.

24Prohibition on engaging in legal practice when not entitled

(1)A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner.

Maximum penalty—300 penalty units or 2 years imprisonment.

(2)Subsection (1) does not apply to engaging in legal practice of the following kinds—

(a)legal practice engaged in under the authority of a law of this jurisdiction or the Commonwealth;

(b)legal practice engaged in by an incorporated legal practice under part 2.7;

(c)the practice of foreign law by an Australian-registered foreign lawyer under part 2.8;

(d)work performed by a trustee company, or a person employed by a trustee company, in the course of—

(i)preparing a will; or

(ii)carrying out any other activities involving the administration of trusts, the estate of a living or deceased person or the affairs of a living person;

(e)legal practice prescribed under a regulation.

(3)Also, subsection (1) does not apply to an Australian lawyer if the lawyer—

(a)has applied under section 49 to the law society for a local practising certificate and has not been given a notice that the law society has refused to grant the application, or refused to consider the application, as mentioned in section 51; and

(b)is employed in or by a law practice and the lawyer has informed the law practice that he or she has applied for, but not yet been granted, a local practising certificate by the law society.

(3A)It is declared that neither a POA licensee nor a POA employee is engaging in legal practice only because the licensee or employee provides, prepares or completes a property contract or other document as part of performing either of the following (each of which is a POA licensee’s work)—

(a)the work of a POA licensee;

(b)other work ancillary or incidental to the work of a POA licensee and part of the ordinary course of business undertaken generally by a POA licensee.

(3B)However, a POA licensee’s work does not include—

(a)giving legal advice in relation to a property contract or other document; or

(b)providing, preparing or completing a document prescribed under a regulation.

(3C)For subsection (3A), it is immaterial that a fee is charged by the POA licensee for a transaction in relation to which the POA licensee or POA employee provides, prepares or completes a property contract or other document.

(3D)However, it is material as to whether or not a person who is a POA licensee or POA employee is engaging in legal practice in this jurisdiction if the person commits an offence against the Property Occupations Act 2014, section 219.

(3E)A POA licensee or POA employee prepares or completes a property contract or other document—

(a)by inserting information in a blank space, or crossing or leaving out an alternative included, in the property contract or other document; or

(b)by inserting a term into, or altering a term of, the property contract or other document if—

(i)the insertion or alteration—

(A)is authorised by a party to the proposed property contract or other document as an insertion or alteration; or

(B)is given in writing to the licensee or employee by a party to the proposed property contract or other document as an insertion or alteration; or

(C)was previously prepared by an Australian legal practitioner, whether or not in connection with the property contract or other document; and

Note for subsubparagraph (C)—

The provision allows the use of a precedent.

(ii)the licensee or employee does not change the insertion or alteration except in relation to—

(A)changing a detail about the transaction that is the subject of the property contract or other document; or

(B)crossing or leaving out an alternative, or changing the grammatical form of words, of the insertion or alteration.

Example of preparing or completing a property contract—

A POA licensee gives a property contract to a seller to sign. The licensee has prepared or completed the property contract by printing the relevant form from the REIQ website and by filling in required details, including the names and addresses of the seller and buyer and the address and description of the property. The licensee also crossed out words when there were alternatives set out in the property contract.

Also the POA licensee inserted 2 special conditions into the property contract. The first special condition is one the seller gave to the licensee because the property is located within a gated community and the condition related to the standard covenants for the community. The second special condition is about financing and the licensee used a special condition known by the POA licensee to have been prepared by an Australian legal practitioner for another transaction but changed details to ensure the property contract read properly.

(4)A person is not entitled to recover any amount in relation to anything the person did in contravention of subsection (1).

(5)A person may recover from someone else (the other person), as a debt due to the person, any amount the person paid to the other person for anything the other person did in contravention of subsection (1).

(6)A regulation may make provision about the application, with or without stated changes, of provisions of this Act to persons engaged in legal practice of a kind mentioned in subsection (2) other than paragraphs (a) and (b).

(7)In this section—

other document means—

(a)an approved form, under an Act, relevant to a POA licensee’s work; or

(b)a document provided, prepared or completed as part of a POA licensee’s work in connection with transactions relevant to a property contract;

but does not include a property contract or a document of a kind prescribed under a regulation as mentioned in subsection (3B)(b).

POA employee means a real estate salesperson under the Property Occupations Act 2014, whether or not the real estate salesperson is also a property agent under that Act.

POA licensee means an auctioneer, real estate agent or resident letting agent under the Property Occupations Act 2014.

property contract means—

(a)a form of contract or agreement generally recognised and accepted for use by POA licensees when carrying out activities authorised by the Property Occupations Act 2014 in dealing with real property or an interest in real property; or

(b)a form of contract or agreement, or a proposed contract or agreement, relating to real property or an interest in real property that was previously prepared by an Australian legal practitioner.

trustee company see the Trustee Companies Act 1968, section 4.

s 24 amd 2008 No. 26 s 8; 2014 No. 22 s 287 sch 2 pt 2

24AMoving applications for admission

(1)This section applies to a person who is both a government legal officer and an Australian lawyer, whether or not the person is an Australian legal practitioner.

(2)Also, this section applies to—

(a)a person who—

(i)is an Australian lawyer employed by a corporation other than an incorporated legal practice; and

(ii)holds a practising certificate subject to a condition that the person must not engage in legal practice other than for providing in-house legal services; or

(b)a person who—

(i)is an Australian lawyer; and

(ii)is a volunteer at a community legal service; and

(iii)holds a practising certificate subject to a condition that the person must not engage in legal practice other than as a volunteer at a community legal service.

(3)Despite section 24(1), the person may move an application for admission if, and only if, the board has, under the admission rules, recommended the applicant’s admission without conditions.

(4)The person does not fail to comply with any of the following conditions of the person’s practising certificate merely because the person moves an application for admission under subsection (3)—

(a)a condition that the person must not engage in legal practice other than as a government legal officer engaged in government work;

(b)a condition that the person may engage in legal practice other than as a government legal officer engaged in government work if the legal practice is limited to legal practice as a volunteer at a community legal service;

(c)a condition mentioned in subsection (2)(a)(ii) or (b)(iii).

(5)In this section—

volunteer, at a community legal service, means a person who provides legal services for the community legal service under an arrangement that does not entitle the person to be paid an amount of money for the provision of the legal services.

s 24A ins 2020 No. 15 s 136

25Prohibition on representing or advertising entitlement to engage in legal practice when not entitled

(1)A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner.

Maximum penalty—300 penalty units or 2 years imprisonment.

(2)A director, officer, employee or agent of a body corporate must not represent or advertise that the body corporate is entitled to engage in legal practice unless the body corporate is an incorporated legal practice.

Maximum penalty—300 penalty units or 2 years imprisonment.

(3)Subsections (1) and (2) do not apply to a representation or advertisement about a person being entitled to engage in legal practice as mentioned in section 24(2).

(4)Also, subsection (1) does not apply to a representation or advertisement about a person being entitled to engage in legal practice as mentioned in section 24(3).

(5)A reference in this section to a person—

(a)representing or advertising that the person is entitled to engage in legal practice; or

(b)representing or advertising that a body corporate is entitled to engage in legal practice;

includes a reference to the person doing anything that states or implies the person or the body corporate is entitled to engage in legal practice.

s 25 amd 2010 No. 42 s 139

26Associates who are disqualified or convicted persons

(1)A law practice must not have a lay associate whom any principal or legal practitioner associate of the practice knows to be either of the following unless the lay associate is approved by the law society under subsection (2)—

(a)a disqualified person;

(b)a person who has been convicted of a serious offence.

(2)The law society may, on application, approve a person as a lay associate for this section.

(3)An approval under this section may be subject to stated conditions.

(4)If the law society refuses an application mentioned in subsection (2) or imposes a condition on the approval—

(a)the law society must give the applicant an information notice about the decision to refuse the application or to impose the condition; and

(b)the applicant may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

(5)A disqualified person, or a person convicted of a serious offence, must not seek to become a lay associate of a law practice unless the person first informs the law practice of the disqualification or conviction.

Maximum penalty—200 penalty units.

(6)This section does not apply in circumstances prescribed under a regulation.

(7)In this section—

lay associate, in relation to a law practice, includes a consultant to the law practice, however described—

(a)who is not an Australian legal practitioner; and

(b)who provides legal or related services to the law practice, other than services prescribed under a regulation.

Note—

The term ‘lay associate’ is also defined in section 7(3).

s 26 amd 2009 No. 24 s 1480

27Professional discipline

(1)A contravention of this part by an Australian lawyer who is not an Australian legal practitioner is capable of constituting unsatisfactory professional conduct or professional misconduct.

(2)Nothing in this part affects any liability that a person who is an Australian lawyer but not an Australian legal practitioner may have under chapter 4, and the person may be punished for an offence under this part as well as being dealt with under chapter 4 in relation to the same matter.

28Main purposes of pt 2.3

The main purposes of this part are as follows—

(a)in the interests of the administration of justice and for the protection of consumers of legal services, to provide a system under which only applicants who have appropriate academic qualifications and practical legal training and who are otherwise fit and proper persons to be admitted to the legal profession are qualified for admission to the legal profession under this Act;

(b)to provide for the recognition of equivalent qualifications and training that apply to applicants for admission to the legal profession in other jurisdictions.

29Definitions for pt 2.3

In this part—

admission rules means the rules under the Supreme Court of Queensland Act 1991, section 85, for admission to the legal profession under this Act and for associated matters.

s 29 def admission rules amd 1991 No. 68 s 122 sch 1C renum as 1991 No. 68 s 96 sch 4 (amd 2011 No. 45 ss 207, 209)

applicant for admission means a person who makes an application for admission.

application for admission means an application under section 34 for admission to the legal profession under this Act.

Supreme Court, in relation to an exercise of power of the court, means—

(a)if the admission rules provide that the power may be exercised by a single Supreme Court judge—a single Supreme Court judge; or

(b)otherwise—the Court of Appeal.

30Eligibility for admission to the legal profession under this Act

(1)A person is eligible for admission to the legal profession under this Act only if the person—

(a)is a natural person aged 18 years or more; and

(b)has attained approved academic qualifications or corresponding academic qualifications; and

(c)has satisfactorily completed approved practical legal training requirements or corresponding practical legal training requirements.

(2)In this section—

approved academic qualifications means academic qualifications that are approved under the admission rules for admission to the legal profession under this Act.

approved practical legal training requirements means legal training requirements that are approved under the admission rules for admission to the legal profession under this Act.

corresponding academic qualifications means academic qualifications that would qualify the person for admission to the legal profession in another jurisdiction if the board is satisfied that substantially the same minimum criteria apply for the approval of academic qualifications for admission in the other jurisdiction as apply in this jurisdiction.

corresponding practical legal training requirements means legal training requirements that would qualify the person for admission to the legal profession in another jurisdiction if the board is satisfied that substantially the same minimum criteria apply for the approval of legal training requirements for admission in the other jurisdiction as apply in this jurisdiction.

Note—

The board is the Legal Practitioners Admissions Board.

31Suitability for admission

(1)A person is suitable for admission to the legal profession under this Act only if the person is a fit and proper person to be admitted.

(2)In deciding if the person is a fit and proper person to be admitted, the Supreme Court must consider—

(a)each of the suitability matters in relation to the person to the extent a suitability matter is appropriate; and

(b)other matters that the Supreme Court considers relevant.

(3)However, the Supreme Court may consider a person to be a fit and proper person to be admitted to the legal profession under this Act despite a suitability matter because of the circumstances relating to the matter.

32Early consideration of suitability

(1)This section applies if a person considers a matter may adversely affect an assessment as to whether the person is a fit and proper person to be admitted to the legal profession under this Act.

(2)The person may apply, in the approved form, to the board for a declaration that a matter stated in the application, including, for example, a suitability matter, will not, without more, adversely affect the board’s assessment as to whether the person is a fit and proper person to be admitted to the legal profession under this Act.

(3)The board must consider the application and do 1 of the following—

(a)make the declaration;

(b)refer the application to the tribunal for a direction if the board considers a direction would be appropriate;

(c)refuse to make the declaration.

(4)A declaration made under subsection (3)(a), or under a direction mentioned in subsection (3)(b), is binding on the board unless the applicant failed to make a full and fair disclosure of all matters relevant to the declaration sought.

(5)If the board decides to refuse to make the declaration sought—

(a)the board must give the applicant an information notice about the refusal; and

(b)the applicant may appeal to the Supreme Court against the refusal within 28 days after the day the information notice is given to the applicant.

s 32 amd 2009 No. 24 s 1481

33Involvement of tribunal and Supreme Court

(1)If an application under section 32(2) is referred to the tribunal as mentioned in section 32(3)(b), the tribunal may give a direction to the board as the tribunal considers appropriate.

(2)If the applicant appeals to the Supreme Court against the decision of the board to refuse to make the declaration, the appeal is to be by way of rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the board may be given on the appeal.

(3)On an appeal under this section, the Supreme Court may make an order as it considers appropriate.

s 33 amd 2009 No. 24 s 1482

34Application for admission to the legal profession

(1)A person may apply to the Supreme Court to be admitted to the legal profession under this Act.

(2)The application must be made in the approved form and under the admission rules.

35Role of Supreme Court relating to application for admission

(1)The Supreme Court must hear and decide each application for admission in the way the court considers appropriate.

(2)Without limiting subsection (1), the court may—

(a)make an order admitting the applicant to the legal profession as a lawyer if the court is satisfied the applicant for admission is—

(i)eligible for admission to the legal profession under this Act; and

(ii)a fit and proper person to be admitted to the legal profession under this Act; or

(b)refuse the application if the court is not satisfied as mentioned in paragraph (a).

(3)The court’s order as mentioned in subsection (2)(a) may be made unconditionally or on conditions the court considers appropriate.

(4)In deciding the application, the court may rely on a recommendation of the board under section 39.

s 35 amd 2009 No. 24 s 1483

36Conditions

(1)This section applies to a person admitted to the legal profession if—

(a)the person’s admission under this Act or a previous Act was subject to a condition, whether or not the condition has been amended since it was imposed; and

(b)the condition as imposed or amended has not lapsed or been revoked.

(2)The Supreme Court may do any of the following in relation to the condition—

(a)revoke or vary the condition on which the person was admitted to the legal profession, whether on application of the person or on the court’s own initiative;

(b)order the removal of the person’s name from the local roll for contravening the condition.

(3)Without limiting subsection (2)(b), a contravention of a condition is capable of constituting unsatisfactory professional conduct or professional misconduct.

37Roll of persons admitted to the legal profession as a lawyer

(1)The Supreme Court must keep a roll of persons admitted to the legal profession, as a lawyer, under this Act.

(2)The local roll must include—

(a)the roll of solicitors and roll of barristers, as kept by the Supreme Court and as in existence immediately before 1 July 2004; and

(b)the roll of legal practitioners, as kept by the Supreme Court from 1 July 2004 to immediately before the commencement of this section.

(3)After the Supreme Court makes an order admitting a person to the legal profession under this Act—

(a)the registrar for the Supreme Court district at which the Supreme Court is sitting must, under the admission rules, enter the person’s name on the local roll; and

(b)the person must sign the local roll.

(4)The person’s admission to the legal profession under this Act takes effect when the person signs the local roll.

(5)Subject to the admission rules, the Brisbane registrar may give written directions to any other registrar about keeping the local roll.

38Local lawyer is officer of Supreme Court

(1)A person becomes an officer of the Supreme Court on being admitted to the legal profession under this Act.

(2)A person who immediately before the commencement of this section was an officer of the Supreme Court, because of the person’s admission as a barrister, solicitor or legal practitioner continues to be an officer of the court.

(3)A person ceases to be an officer of the Supreme Court under this section if the person’s name is removed from the local roll.

39Role of the board relating to application for admission

(1)The board’s role is to help the Supreme Court by making a recommendation about each application for admission.

(2)The board must consider each application and, in particular, whether or not—

(a)the application is made under the admission rules; and

(b)the applicant is eligible for admission to the legal profession under this Act; and

(c)the applicant is a fit and proper person for admission to the legal profession under this Act, including having regard to all suitability matters in relation to the applicant to the extent appropriate; and

(d)there are other matters the Supreme Court may consider relevant.

(3)The board makes a recommendation to the Supreme Court about the application by giving the recommendation to the Brisbane registrar and a copy of it to the applicant.

40Consideration of applicant’s eligibility and suitability

(1)To help the board to consider an application for admission, the board may, by notice to the applicant for admission, require the applicant—

(a)to give the board stated documents or information; or

(b)to cooperate with any inquiries by the board that it considers appropriate.

(2)An applicant’s failure to comply with a notice under subsection (1) by the date stated in, and in the way required by, the notice is a ground for recommending to the Supreme Court that the applicant not be admitted to the legal profession under this Act.

(3)However, if the board considers it appropriate to apply to the Supreme Court for a direction about a matter concerning an application, the board may do so.

41Board may appear before Supreme Court

The board, by a member of the board or by an Australian legal practitioner acting for the board, is entitled to appear before and be heard by the Supreme Court at a hearing about any application made under this part or a reference of an application for a direction of the court.

42Fees payable

The board must charge the fee prescribed under a regulation for matters under this part or for matters dealt with in the admission rules.

43Main purposes of pt 2.4

The main purposes of this part are as follows—

(a)to facilitate the national practice of law by ensuring that Australian legal practitioners can engage in legal practice in this jurisdiction and to provide for the certification of Australian lawyers whether or not admitted to the legal profession in this jurisdiction;

(b)to provide a system for the granting and renewing of local practising certificates.

44Entitlement to practise in this jurisdiction

(1)An Australian legal practitioner is, subject to this Act, entitled to engage in legal practice in this jurisdiction.

(2)Also, a government legal officer engaged in government work is, subject to this Act, entitled to engage in legal practice in this jurisdiction as a government legal officer even though the government legal officer is not an Australian legal practitioner.

(3)Subsection (2) does not prevent a government legal officer from being the holder of a local practising certificate.

45Local practising certificates generally

(1)Practising certificates may be granted under this part.

(2)A regulatory authority may decide the categories of local practising certificates to be granted by it.

(3)It is a statutory condition of a local practising certificate that the holder must not hold another local practising certificate, or an interstate practising certificate, that is in force during the currency of the first-mentioned certificate.

46Suitability to hold local practising certificate

(1)This section has effect for the purposes of section 51 and any other provision of this Act where the question of whether or not a person is a fit and proper person to hold, or to continue to hold, a local practising certificate is relevant.

(2)A regulatory authority of this jurisdiction, in considering whether a person is, or is no longer, a fit and proper person to hold a local practising certificate, may take into account any suitability matter relating to the person, and any of the following, whether happening before or after the commencement of this section—

(a)whether the person obtained an Australian practising certificate because of incorrect or misleading information;

(b)whether the person has contravened a condition of an Australian practising certificate held by the person;

(c)whether the person has contravened a relevant law or a corresponding law;

(d)whether the person has contravened—

(i)an order of a disciplinary body or the Supreme Court; or

(ii)an order of a corresponding disciplinary body, or of a court or tribunal of another jurisdiction exercising jurisdiction or powers by way of appeal or review of an order of a corresponding disciplinary body;

(e)without limiting any other paragraph, whether the person has failed to pay an amount for which the person is or was liable under a relevant law or a corresponding law, including, for example, an amount payable to the fidelity fund or other costs or expenses for which the person is liable under a relevant law;

(f)whether, without limiting paragraph (e), the person has contravened a provision of a relevant law or a corresponding law about professional indemnity insurance;

(g)whether the person is or was a legal practitioner director of an incorporated legal practice while the practice is or was insolvent;

(h)whether the person is or was a director of a corporation while the corporation is or was insolvent;

(i)other matters the authority thinks are appropriate.

(3)A person may be considered a fit and proper person to hold, or to continue to hold, a local practising certificate even though the person is within any of the categories of the matters mentioned in subsection (2), if the relevant authority considers that the circumstances warrant the decision.

(4)If a matter was—

(a)disclosed in an application for admission to the legal profession in this or another jurisdiction; and

(b)decided by the Supreme Court or the board, or a Supreme Court of another jurisdiction or corresponding authority of another jurisdiction corresponding to the board, not to be sufficient for refusing admission to the legal profession;

the matter can not be taken into account as a ground for refusing to grant or renew, or for suspending or cancelling, a local practising certificate, but the matter may be taken into account when considering other matters in relation to the person concerned.

s 46 amd 2020 No. 15 s 137

47Duration of local practising certificates

(1)A local practising certificate granted under this Act is in force from the date stated in it until the end of the financial year in which it is granted, unless the certificate is sooner suspended or cancelled.

(2)A local practising certificate renewed under this Act is in force until the end of the financial year following its previous period of currency, unless the certificate is sooner suspended or cancelled.

(3)If an application for the renewal of a local practising certificate is received before the time stated in the regulatory authority’s administration rules for applying for a renewal but the application has not been decided by the following 1 July, the certificate—

(a)continues in force on and from that 1 July until 1 of the following happens—

(i)the authority renews or refuses to renew the certificate;

(ii)the local legal practitioner withdraws the application for renewal;

(iii)the certificate is suspended or cancelled; and

(b)if renewed, is taken to have been renewed on and from that 1 July.

48Local legal practitioner is officer of Supreme Court

A person who is not already an officer of the Supreme Court becomes an officer of the Supreme Court on being granted a local practising certificate.

49Application for grant or renewal of local practising certificate

(1)An Australian lawyer may apply to a regulatory authority for the grant or renewal of a local practising certificate if eligible to do so under this section.

(2)An Australian lawyer is eligible to apply for the grant or renewal of a local practising certificate if the lawyer complies with all provisions of a regulation and the legal profession rules relating to eligibility for the practising certificate and—

(a)in the case of a lawyer who is not an Australian legal practitioner at the time of making the application—

(i)the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for; or

(ii)if subparagraph (i) does not apply to the lawyer or it is not reasonably practical to decide whether it applies to the lawyer—the lawyer’s place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia; or

(b)in the case of a lawyer who is an Australian legal practitioner at the time of making the application—

(i)the jurisdiction in which the lawyer engages in legal practice solely or principally is this jurisdiction; or

(ii)the lawyer holds a current local practising certificate and engages in legal practice in another jurisdiction under an arrangement of a temporary nature; or

(iii)the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for; or

(iv)if subparagraphs (i), (ii) and (iii) do not apply to the lawyer or it is not reasonably practical to decide whether subparagraph (i), (ii) or (iii) applies to the lawyer—the lawyer’s place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia.

(3)For subsection (2)(b), the jurisdiction in which an Australian lawyer engages in legal practice solely or principally is to be decided by reference to the lawyer’s legal practice during the certificate period current at the time—

(a)the application is made; or

(b)in the case of a late application—the application should have been made.

(4)An Australian lawyer is not eligible to apply for the grant or renewal of a local practising certificate in relation to a financial year if the lawyer would also be the holder of another Australian practising certificate for that year, but this subsection does not limit the factors deciding ineligibility to apply for the grant or renewal of a local practising certificate.

(5)An Australian lawyer must not apply for the grant or renewal of a local practising certificate if the lawyer is not eligible to make the application.

(6)An Australian legal practitioner who—

(a)engages in legal practice solely or principally in this jurisdiction during a financial year; and

(b)reasonably expects to engage in legal practice solely or principally in this jurisdiction in the following financial year;

must apply for the grant or renewal of a local practising certificate in relation to the following financial year.

(7)Subsection (6) does not apply to an interstate legal practitioner who applied for the grant or renewal of an interstate practising certificate on the basis that the practitioner reasonably expected to engage in legal practice solely or principally in this jurisdiction under an arrangement that is of a temporary nature.

(8)However, subsection (7) ceases to operate in relation to an interstate legal practitioner at the end of the period prescribed by a regulation for the subsection.

(9)A reference in this section to engaging in legal practice principally in this or any other jurisdiction applies only to legal practice in Australia and, accordingly, an Australian lawyer who is engaged or expects to be engaged in legal practice principally in a foreign country is nevertheless eligible to apply for the grant or renewal of a local practising certificate if the lawyer otherwise meets the requirements of this section.

Note—

The purpose of subsection (9) is to deal with a case where a person practises both in Australia and overseas. In that case, overseas practice is to be disregarded (even if it forms the principal portion of the person’s overall practice), so that eligibility is decided by reference to the person’s practice in Australia.

50Manner of application

(1)An application for the grant or renewal of a local practising certificate must be—

(a)made in the approved form of the relevant regulatory authority; and

(b)made in the way provided for under the administration rules of the relevant regulatory authority; and

(c)for an application for renewal—made within the period stated in the administration rules of the relevant regulatory authority.

(2)The approved form may require the applicant to disclose matters that may affect the applicant’s eligibility for the grant or renewal of a local practising certificate or the question whether the applicant is a fit and proper person to hold a local practising certificate.

(3)The approved form may indicate that particular kinds of matters previously disclosed in a particular way need not be disclosed for the purposes of the current application.

51Grant or renewal of local practising certificate

(1)A regulatory authority must consider an application that has been made to it for the grant or renewal of a local practising certificate and may—

(a)grant or refuse to grant the certificate; or

(b)renew or refuse to renew the certificate.

(2)The regulatory authority may, when granting or renewing a certificate, impose conditions as mentioned in section 53.

(3)The regulatory authority may refuse—

(a)to consider an application if—

(i)it is not made under this Act; or

(ii)fees and costs payable under this Act have not been paid; or

(b)to grant or renew a local practising certificate if the applicant has not complied with the administration rules of the authority relating to the application.

(4)The regulatory authority must not grant a local practising certificate unless it is satisfied that the applicant—

(a)was eligible to apply for the grant when the application was made; and

(b)is a fit and proper person to hold the certificate.

(5)The regulatory authority must not renew a local practising certificate if it is satisfied that the applicant—

(a)was not eligible to apply for the renewal of the certificate when the application was made; or

(b)is not a fit and proper person to continue to hold the certificate.

Note—

See section 46 (Suitability to hold local practising certificate).

(6)Also, the regulatory authority must not grant or renew a local practising certificate if the authority considers the applicant’s circumstances have changed since the application was made and the applicant would, having regard to information that has come to the authority’s attention, not have been eligible to make the application when the application is being considered.

(7)If the regulatory authority grants or renews a local practising certificate, the authority must give the applicant—

(a)for the grant of a certificate—a local practising certificate; or

(b)for the renewal of a certificate—a new local practising certificate or a notice of renewal.

(8)The regulatory authority must give the applicant an information notice if the authority—

(a)refuses to grant or renew a local practising certificate; or

(b)imposes a condition on the certificate and the applicant does not agree to the condition.

(9)The applicant may apply, as provided under the QCAT Act, to the tribunal for a review of the decision to refuse to grant or renew the local practising certificate as mentioned in subsection (8).

Note—

For matters relevant to the imposition of conditions, see section 54.

s 51 amd 2009 No. 24 s 1484

52Conditions generally

A local practising certificate is subject to the following—

(a)a condition imposed by the relevant regulatory authority at the time the certificate is granted unless the condition is revoked at a later time;

(b)a statutory condition as mentioned in section 45, 55, 56 or 57;

(c)a condition imposed or amended under division 6 or 7;

(d)a condition imposed or amended under chapter 4 or under a corresponding law;

(e)a condition imposed or amended under a regulation, the legal profession rules or the administration rules.

53Conditions imposed by law society or bar association

(1)At the time a regulatory authority grants a local practising certificate, the authority may impose any reasonable and relevant condition on the practising certificate.

(2)A condition may be about any of the following—

(a)requiring the certificate holder to undertake or complete—

(i)continuing legal education; or

(ii)stated legal education or training;

(b)limiting the certificate holder to supervised legal practice in the way stated in the condition or to the practice of areas of law stated in the condition;

(c)controlling, restricting or prohibiting the operation of a trust account;

(d)restricting the certificate holder to particular conditions concerning employment or supervision;

(e)a matter agreed to by the certificate holder.

(3)Subsection (2) does not limit the matters about which a condition may be imposed under this section.

(4)The regulatory authority must not impose a condition requiring the certificate holder to undertake and complete stated legal education or training unless—

(a)the regulatory authority is satisfied that it is reasonable to require the stated legal education or training to be undertaken, having regard to—

(i)when the holder undertook his or her previous academic studies or legal training, or obtained the previous legal experience; or

(ii)the certificate holder’s conduct; or

(b)the condition is 1 that is imposed generally on certificates holders or a class of certificates holders.

(5)A regulatory authority’s power to impose a condition mentioned in subsection (2)(a) is not limited by, and does not limit, the regulatory authority’s power to impose a condition under its administration rules about a matter mentioned in section 231(2)(e).

54Applications relating to conditions

(1)This section applies if a regulatory authority imposes a condition on a practising certificate, other than a condition applying in relation to a practising certificate under the authority’s legal profession rules or administration rules.

(2)If the applicant did not apply for a practising certificate to be subject to the condition—

(a)the regulatory authority must give the applicant an information notice about the decision to impose the condition; and

(b)the applicant may apply, as provided under the QCAT Act, to the tribunal for a review of the decision to impose the condition.

(3)The regulatory authority may revoke a condition imposed on a practising certificate, on application of the certificate holder in the approved form or on its own initiative, by giving written notice about the revocation to the certificate holder.

(4)If a certificate holder applies for the revocation of a condition and the relevant regulatory authority refuses to grant the application—

(a)the authority must give the applicant an information notice about the decision refusing the application; and

(b)the applicant may, within 28 days after the information notice is given to the applicant, apply, as provided under the QCAT Act, to the tribunal for a review of the decision to impose the condition.

s 54 amd 2009 No. 24 s 1485

55Statutory condition regarding conditions imposed on interstate admission

It is a statutory condition of a local practising certificate that the certificate holder must not contravene the following—

(a)a condition that was imposed on the holder’s admission to the legal profession under a corresponding law (an imposed condition) if the imposed condition is still in force;

(b)an imposed condition as amended from time to time.

56Statutory condition regarding practice as solicitor

(1)It is a statutory condition of a local practising certificate for a solicitor that the certificate holder must engage in supervised legal practice only, until the certificate holder has completed—

(a)if the certificate holder completed supervised legal training to qualify for admission to the legal profession in this or another jurisdiction—a period or periods equivalent to 18 months supervised legal practice, worked out under a regulation, after the day the holder’s first practising certificate was granted; or

(b)if the holder completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction—a period or periods equivalent to 2 years supervised legal practice, worked out under a regulation, after the day the holder’s first practising certificate was granted.

(2)Subsection (1) has effect subject to any other conditions that relate to engaging in supervised legal practice as a solicitor after a period or periods mentioned in that subsection.

(3)The law society may exempt a person or class of persons from the requirement for supervised legal practice under subsection (1) or may reduce a period mentioned in that subsection for a person or class of persons, if satisfied the person or persons do not need to be supervised or need to be supervised only for a shorter period, having regard to—

(a)the length and nature of any legal practice previously engaged in by the person or persons; and

(b)the length and nature of any legal practice engaged in by the supervisors, if any, who previously supervised the legal practice engaged in by the person or persons.

(4)An exemption under subsection (3) may be given unconditionally or subject to conditions the law society considers appropriate.

(5)In this section—

supervised legal training means practical legal training principally under the supervision of an Australian lawyer, whether involving articles of clerkship or otherwise.

57Statutory condition regarding notification of offence

(1)It is a statutory condition of a local practising certificate that the certificate holder must give notice to the relevant regulatory authority if the certificate holder is—

(a)convicted of an offence that would have to be disclosed under the admission rules for an application for admission; or

(b)charged with a serious offence.

(2)The notice must be in the approved form and given to the regulatory authority within 7 days after—

(a)if the certificate holder is convicted of an offence—the day the person is convicted; or

(b)if the certificate holder is charged with an offence—the day the person is charged.

(3)The regulatory authority’s administration rules may state the person to whom, or the address to which, the notice is to be given.

(4)This section does not apply to a show cause event to which division 7 applies.

58Compliance with conditions

The holder of a current local practising certificate must not contravene, in this jurisdiction or elsewhere, a condition to which the certificate is subject.

Example—

If a person engages in unsupervised legal practice and the relevant practising certificate states the certificate holder may only engage in supervised legal practice, the person contravenes a condition of the certificate. The contravention may constitute unsatisfactory professional conduct or professional misconduct under section 420.

59Application of this division

This division does not apply to a show cause event in relation to which a regulatory authority may exercise a power under division 7.

60Grounds for amending, suspending or cancelling a local practising certificate

Each of the following is a ground for amending, suspending or cancelling a local practising certificate—

(a)the certificate holder is no longer a fit and proper person to hold the certificate;

Note—

See section 46 (Suitability to hold local practising certificate).

(b)the certificate holder does not have, or no longer has, professional indemnity insurance that complies with this Act in relation to the certificate;

(c)if a condition of the certificate is that the certificate holder is limited to legal practice stated in the certificate—the certificate holder is, or has been, engaging in legal practice that the holder is not entitled to engage in under this Act.

61Amending, suspending or cancelling a local practising certificate

(1)If the relevant regulatory authority believes a ground exists to amend, suspend or cancel a person’s local practising certificate (the proposed action), the authority must give the person a notice (the show cause notice) that—

(a)states the proposed action and—

(i)if the proposed action is to amend the certificate—states the proposed amendment; and

(ii)if the proposed action is to suspend the certificate—states the proposed suspension period; and

(b)states the grounds for proposing to take the proposed action; and

(c)outlines the facts and circumstances that form the basis for the authority’s belief; and

(d)invites the certificate holder to make written representations to the authority, within a stated time of not less than 28 days, as to why the proposed action should not be taken.

(2)If, after considering all written representations made within the stated time or, in its discretion after the stated time, the regulatory authority still believes a ground exists to take the proposed action, the authority may—

(a)if the show cause notice stated the proposed action was to amend the practising certificate—amend the certificate in the way stated, or in a less onerous way the authority considers appropriate because of the written representations; or

(b)if the show cause notice stated the proposed action was to suspend the practising certificate for a stated period—

(i)suspend the certificate for a period no longer than the stated period; or

(ii)amend the certificate in a less onerous way the authority considers appropriate because of the written representations; or

(c)if the show cause notice stated the proposed action was to cancel the practising certificate—

(i)cancel the certificate; or

(ii)suspend the certificate for a period; or

(iii)amend the certificate in a less onerous way the authority considers appropriate because of the written representations.

(3)If the regulatory authority decides to amend, suspend or cancel the local practising certificate—

(a)the authority must give the certificate holder an information notice about the decision; and

(b)the certificate holder may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

(4)In this section—

amend, in relation to a local practising certificate, means amend or impose a condition that a regulatory authority may impose at the time of granting a local practising certificate, as mentioned in section 53, otherwise than at the request of the holder of the certificate.

s 61 amd 2009 No. 24 s 1486

62Operation of amendment, suspension or cancellation of local practising certificate

(1)This section applies if a decision is made to amend, suspend or cancel a local practising certificate under section 61 or 69.

(2)Subject to subsections (3) and (4), the amendment, suspension or cancellation takes effect on the later of the following—

(a)the day that the information notice about the decision is given to the certificate holder;

(b)the day stated in the information notice.

(3)If the practising certificate is amended, suspended or cancelled because the certificate holder has been convicted of an offence—

(a)the tribunal may, on application of the certificate holder as provided under the QCAT Act, order that the amendment, suspension or cancellation be stayed until—

(i)the end of the time to appeal against the conviction; or

(ii)if an appeal is made against the conviction—the appeal is finally decided, lapses or otherwise ends; and

(b)the amendment, suspension or cancellation does not have effect during any period for which the stay is in force.

(4)If the practising certificate is amended, suspended or cancelled because the certificate holder has been convicted of an offence and a court quashes the conviction—

(a)the amendment or suspension ceases to have effect when the court quashes the conviction; or

(b)the cancellation ceases to have effect when the court quashes the conviction and the certificate is restored as if it had merely been suspended.

s 62 amd 2009 No. 24 s 1487

63Immediate amendment or suspension of local practising certificate

(1)This section applies if the relevant regulatory authority in relation to a local legal practitioner considers it necessary in the public interest to take action under this section in relation to that legal practitioner, whether or not action in relation to the legal practitioner has been started otherwise than under this division or division 7.

(2)The relevant regulatory authority may immediately amend a local practising certificate of the legal practitioner to provide for either of the following—

(a)imposing or amending conditions about controlling or otherwise regulating conditions about the legal practitioner’s trust account;

(b)suspending stated operations in relation to the certificate holder’s trust account or directing the certificate holder not to operate the account.

(3)The relevant regulatory authority may immediately suspend the local practising certificate of the legal practitioner for any of the following reasons, whether it happened before or after the commencement of this section—

(a)there is a show cause event in relation to the legal practitioner;

(b)the regulatory authority believes there is any ground mentioned in section 60 that would justify the suspension or cancellation of the local practising certificate under section 61;

(c)any other ground that the regulatory authority considers warrants suspension of the local practising certificate in the public interest.

(4)The relevant regulatory authority amends or suspends a local practising certificate by giving an information notice to the local legal practitioner about the regulatory authority’s decision to amend or suspend.

(5)The information notice must also state that the local legal practitioner may make written representations to the regulatory authority about the amendment or suspension.

(6)Subject to subsection (9), the practising certificate continues to be subject to the amendment or suspension until the earlier of the following—

(a)the time at which the regulatory authority informs the local legal practitioner of the authority’s decision by information notice under section 61(3);

(b)the end of 56 days after the information notice is given to the local legal practitioner under this section.

(7)If the local legal practitioner makes written representations to the regulatory authority about the amendment or suspension, the authority must consider the written representations.

(8)The regulatory authority may revoke the amendment or suspension at any time, whether or not because of written representations made to it by the local legal practitioner.

(9)Also—

(a)the regulatory authority may apply, as provided under the QCAT Act, to the tribunal for an order extending the period of the amendment or suspension; and

(b)if the tribunal considers it appropriate and the amendment or suspension has not ended under subsection (6), the tribunal may extend the period of the amendment or suspension for a further period of not more than 56 days after the date of the tribunal’s order.

(10)The regulatory authority must give the certificate holder an information notice about its decision to apply under subsection (9) for an order extending the period of the suspension or amendment.

s 63 amd 2009 No. 24 s 1488

64Removal from local roll

(1)If a local legal practitioner’s name is removed from the local roll or a local legal practitioner ceases to be an Australian lawyer, the regulatory authority must cancel the practising certificate by information notice given to the legal practitioner.

(2)Section 61 does not apply in a case to which this section applies.

65Consensual amendment or cancellation etc.

(1)Subsection (2) applies if—

(a)a local legal practitioner applies, in the approved form, to the regulatory authority to amend or cancel the practitioner’s practising certificate; or

(b)the regulatory authority proposes to amend a local legal practitioner’s practising certificate—

(i)only for a formal or clerical reason or in another way that does not adversely affect the practitioner’s interests; and

(ii)the practitioner agrees in writing to the amendment.

(2)The authority may amend or cancel the local practising certificate as mentioned in subsection (1) by written notice given to the legal practitioner.

(3)Section 61 does not apply in a case to which this section applies.

66Relationship of div 6 with ch 6

(1)An investigator appointed by a regulatory authority may exercise powers under chapter 6 for a matter under this division, as if the matter were the subject of a complaint.

(2)Accordingly, the provisions of chapter 6 apply in relation to a matter under this division, and so apply with any necessary changes.

(3)Nothing in this division prevents—

(a)a regulatory authority from making a complaint about a matter to which this division relates; or

(b)the commissioner from investigating or referring a matter for investigation as mentioned in section 435.

67Application for local practising certificate if show cause event happened after first admission

(1)This section applies if—

(a)a person is applying for the grant of a local practising certificate under this Act; and

(b)a show cause event in relation to the person happened, whether before or after the commencement of this section, after the person was first admitted to the legal profession, however the admission was expressed at the time of that admission.

(2)As part of the application, the person must give to the relevant regulatory authority a written statement—

(a)about the show cause event; and

(b)explaining why, despite the event, the person considers himself or herself to be a fit and proper person to hold a local practising certificate.

(3)However, a person need not give a statement under subsection (2) if the person (as a previous applicant for a local practising certificate or as the holder of a local practising certificate previously in force) has previously given the regulatory authority—

(a)a statement under this section or under the Legal Profession Act 2004, section 62; or

(b)a notice and statement under section 68, or under the Legal Profession Act 2004, section 63, for the show cause event;

explaining why, despite the event, the person considers himself or herself to be a fit and proper person to hold a local practising certificate.

(4)The regulatory authority must give a copy of a statement under subsection (2) to the commissioner.

68Requirement if show cause event

(1)If a show cause event happens in relation to a local legal practitioner, the practitioner must give to the relevant regulatory authority both of the following—

(a)within 7 days after the date of the event—notice, in the approved form, that the event happened;

(b)within 28 days after the date of the event—a written statement explaining why, despite the event, the practitioner continues to be a fit and proper person to hold a local practising certificate.

(2)The regulatory authority must give a copy of the notice and the statement under subsection (1) to the commissioner.

(3)However, if a written statement is given after the 28 days mentioned in subsection (1)(b), the regulatory authority may accept the statement and take it into consideration.

69Refusal, amendment, suspension or cancellation of local practising certificate because of failure to show cause

(1)The relevant regulatory authority may refuse to grant or renew, or may amend, suspend or cancel, a local practising certificate if the applicant or certificate holder—

(a)is required by section 67 or 68 to give a written statement relating to a matter to the regulatory authority and the applicant or certificate holder has not done so; or

(b)has given a written statement under section 67 or 68 but the authority does not consider that the applicant or certificate holder has shown in the statement that the person is a fit and proper person to hold or to continue to hold a local practising certificate.

(2)For subsection (1)(b), a written statement accepted by the regulatory authority as mentioned in section 68(3) is taken to be given under section 67.

(3)If the regulatory authority decides to refuse to grant or renew, or to amend, suspend or cancel, a local practising certificate—

(a)the authority must give the applicant or certificate holder an information notice about the decision; and

(b)the applicant or certificate holder may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

(4)Also, the regulatory authority must give a copy of the information notice to the commissioner.

s 69 amd 2009 No. 24 s 1489

70Restriction on making further application

(1)This section applies if a regulatory authority decides under section 69 to refuse to grant or renew a local practising certificate or to cancel a local practising certificate.

(2)The authority may also decide that the applicant or certificate holder is not entitled to apply for the grant of a local practising certificate for a stated period of not more than 5 years.

(3)If the authority makes a decision under subsection (2), the authority must include the decision in the information notice required under section 69(3)(a) and the applicant or certificate holder may also apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

(4)Subject to—

(a)a successful application for review of a decision under this section; or

(b)a successful appeal against a decision under this section (as in force before the commencement of this subsection), the Legal Profession Act 2004, section 65, or under a corresponding law;

a person against whom the decision has been made is not entitled to apply for the grant of a local practising certificate during the period stated in the decision.

s 70 amd 2009 No. 24 s 1490

71Relationship of div 7 with ch 6

(1)An investigator appointed by a regulatory authority may exercise powers under chapter 6 for a matter under this division, as if the matter were the subject of a complaint.

(2)Accordingly, the provisions of chapter 6 apply in relation to a matter under this division, and so apply with any necessary changes.

(3)Nothing in this division prevents—

(a)a regulatory authority from making a complaint about a matter to which this division relates; or

(b)the commissioner from investigating or referring a matter for investigation as mentioned in section 435.

72Surrender and cancellation of local practising certificate

(1)The holder of a local practising certificate may surrender the certificate to the relevant regulatory authority.

(2)The relevant regulatory authority to which the local practising certificate is surrendered may cancel the certificate.

73Return of local practising certificate

(1)This section applies if a local practising certificate is amended, suspended or cancelled by a relevant regulatory authority under division 6 or 7.

(2)The regulatory authority may—

(a)give the certificate holder a notice requiring the holder to return the certificate to the authority in the way stated in the notice within a stated period of not less than 14 days; or

(b)include in an information notice that the authority must give to the certificate holder under division 6 or 7 a further notice requiring the holder to return the certificate to the authority in the way stated in the notice within a stated period of not less than 14 days.

(3)The certificate holder must comply with the requirement, unless the holder has a reasonable excuse.

Maximum penalty—50 penalty units.

(4)The regulatory authority must return the practising certificate to the certificate holder—

(a)if the certificate is amended—after amending it; or

(b)if the certificate is suspended and is still current at the end of the suspension period—at the end of the suspension period.

74Requirement for interstate practising certificate and professional indemnity insurance

(1)An interstate legal practitioner must not engage in legal practice in this jurisdiction, or represent or advertise that the practitioner is entitled to engage in legal practice in this jurisdiction, unless the practitioner—

(a)is covered by professional indemnity insurance that—

(i)covers legal practice in this jurisdiction; and

(ii)has been approved under, or complies with the requirements of, the corresponding law of the practitioner’s home jurisdiction; and

(iii)is for at least $1.5m inclusive of defence costs unless, without affecting subparagraph (i) or (ii), the practitioner engages in legal practice solely as or in the manner of a barrister; or

(b)is employed by a corporation, other than an incorporated legal practice, and the only legal services provided by the practitioner in this jurisdiction are in-house legal services.

Maximum penalty—300 penalty units or 2 years imprisonment.

(2)A regulation may require an interstate legal practitioner to disclose information about professional indemnity insurance to clients or prospective clients.

(3)This section does not apply to an interstate legal practitioner who—

(a)is a government legal officer; and

(b)is engaged in legal practice in this jurisdiction only to the extent that the practitioner is engaging in government work; and

(c)has an indemnity or immunity, whether provided by law or governmental policy, that is applicable in relation to that practice.

s 74 amd 2010 No. 42 s 138 sch

75Extent of entitlement of interstate legal practitioner to practise in this jurisdiction

(1)This part does not authorise an interstate legal practitioner to engage in legal practice in this jurisdiction to a greater extent than a local legal practitioner could be authorised under a local practising certificate.

(2)Also, an interstate legal practitioner’s right to engage in legal practice in this jurisdiction—

(a)is subject to—

(i)specific provisions under this Act applying to interstate legal practitioners; and

(ii)any conditions imposed by the relevant regulatory authority under section 76 in relation to the interstate legal practitioner; and

(b)is, to the greatest practicable extent and with all necessary changes—

(i)the same as the practitioner’s right to engage in legal practice in the practitioner’s home jurisdiction; and

(ii)subject to any condition applicable to the practitioner’s right to engage in legal practice in that jurisdiction, including any conditions imposed on his or her admission to the legal profession in this or another jurisdiction.

(3)If there is an inconsistency between conditions mentioned in subsection (2)(a) and conditions mentioned in subsection (2)(b), the conditions the relevant regulatory authority considers more onerous prevail to the extent of the inconsistency.

(4)An interstate legal practitioner must not engage in legal practice in this jurisdiction in a way that is not authorised under this Act or in contravention of any condition mentioned in this section.

76Additional condition on interstate legal practitioner engaging in legal practice in this jurisdiction

(1)The relevant regulatory authority may impose a condition on an interstate legal practitioner engaged in legal practice in this jurisdiction that the authority may impose under this Act on a local practising certificate at the time it is granted or renewed.

(2)However, conditions imposed under this section must not be more onerous than conditions applying to local legal practitioners.

(3)If the regulatory authority imposes a condition on an interstate legal practitioner engaged in legal practice in this jurisdiction—

(a)the authority must give the interstate legal practitioner an information notice about the decision to impose the condition; and

(b)the interstate legal practitioner may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

(4)An interstate legal practitioner must not contravene a condition imposed under this section.

s 76 amd 2009 No. 24 s 1491

77Special provision about interstate legal practitioner engaging in unsupervised legal practice in this jurisdiction

(1)An interstate legal practitioner must not engage in unsupervised legal practice in this jurisdiction unless—

(a)if the practitioner completed supervised legal training to qualify for admission to the legal profession—the practitioner has undertaken a period or periods equivalent to 18 months supervised legal practice, worked out under a regulation, after the date the practitioner’s first practising certificate was granted; or

(b)if the interstate legal practitioner completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction—the practitioner has undertaken a period or periods equivalent to 2 years supervised legal practice, worked out under a regulation, after the date the practitioner’s first practising certificate was granted.

(2)However, subsection (1)—

(a)does not apply if the interstate legal practitioner is exempt from the requirement for supervised legal practice in the practitioner’s home jurisdiction; or

(b)applies to the interstate legal practitioner only to the extent of a shorter period if the required period of supervised legal practice has been reduced for the practitioner in the practitioner’s home jurisdiction.

(3)In this section—

supervised legal training means practical legal training principally under the supervision of an Australian lawyer, whether involving articles of clerkship or otherwise.

78Interstate legal practitioner is officer of Supreme Court

An interstate legal practitioner engaged in legal practice in this jurisdiction has all the duties and obligations of an officer of the Supreme Court, and for those duties and obligations, is subject to the jurisdiction of the Supreme Court.

79Protocols

(1)A regulatory authority may enter into arrangements (jurisdiction protocols) with regulatory authorities of other jurisdictions about deciding—

(a)the jurisdiction in which an Australian lawyer practises law principally or can reasonably expect to practise law principally; or

(b)the circumstances in which an arrangement under which an Australian legal practitioner practises in a jurisdiction—

(i)may be regarded as being of a temporary nature; or

(ii)ceases to be of a temporary nature; or

(c)the circumstances in which an Australian legal practitioner may reasonably expect to practise law principally in a jurisdiction during the currency of the practitioner’s practising certificate.

(2)For this Act, and to the extent that jurisdiction protocols are relevant, a matter mentioned in subsection (1)(a), (b) or (c) must be decided under the jurisdiction protocols.

(3)The regulatory authority may enter into an arrangement that amends, revokes or replaces a jurisdiction protocol.

(4)A jurisdiction protocol, or an amendment, revocation or replacement of a jurisdiction protocol, has effect in this jurisdiction only to the extent it is approved under a regulation.

80Consideration of applicant for local practising certificate and certificate holder

(1)The purpose of this section is to enable a regulatory authority to obtain a document or information, or a person’s cooperation, to the extent necessary for the authority to consider whether or not—

(a)to grant or renew a local practising certificate; or

(b)to amend, suspend or cancel a local practising certificate.

(2)The relevant regulatory authority may, by written notice to the applicant or certificate holder, ask the applicant or certificate holder—

(a)to give it a stated document or information that the authority believes is necessary for the authority’s consideration about a local practising certificate; or

(b)to cooperate in a stated way with the authority in an investigation or inquiry that the authority believes is necessary for the authority’s consideration about a local practising certificate.

(3)The regulatory authority may decide not to grant or renew a local practising certificate, or to amend, suspend or cancel a local practising certificate, if the applicant or the certificate holder fails—

(a)to give the stated documents or information as requested under subsection (2); or

(b)to cooperate with the authority in its investigations or inquiries as requested under subsection (2).

81Register of local practising certificates

(1)A regulatory authority must, in the way it considers appropriate, keep a register of the names of Australian lawyers to whom it grants local practising certificates.

(2)The register must—

(a)state conditions, if any, imposed on a local practising certificate relating to the certificate holder engaging in legal practice; and

(b)include other particulars prescribed under a regulation.

(3)A regulatory authority must ensure that an up-to-date version of its register is available, without charge, for public inspection—

(a)at the authority’s principal place of business during normal working hours; or

(b)on the authority’s internet site or an internet site identified on the authority’s internet site.

(4)However, a regulation may provide for a person’s name not to be included in the register or for that person’s name as it appears in the register not to be available for public inspection.

Example of a regulation—

A regulation may provide for a system of applying to a regulatory authority for the suppression of a person’s name if the person is being stalked by a previous client or has been otherwise threatened with violence by someone.

82Supreme Court orders about conditions

(1)A regulatory authority may apply to the Supreme Court for an order that an Australian lawyer not contravene a condition imposed under this part.

(2)The Supreme Court may make any order it considers appropriate on the application.

83Regulatory authority may charge reasonable fees

(1)A regulatory authority may charge fees for services that it provides, including, for example, the services provided by the authority as part of performing its functions under this Act.

Example of a service that a regulatory authority provides as part of performing its functions under this Act—

granting or renewing a practising certificate

(2)The fee for a service must be reasonable having regard to the cost to the regulatory authority of performing all of its functions under this Act and the funding that the authority has received under this Act, and a fee for a service is not unreasonable only because the particular fee is more than the cost of providing the specific service.

(3)The fees set by a regulatory authority must be included in its administration rules.

(4)Despite subsection (1), a regulatory authority may not charge a fee for a service provided to another entity that has functions under this Act except so far as the other entity has arranged, on a commercial basis, for the regulatory authority to perform a service associated with the functions of the other entity.

84Main purpose of pt 2.5

The main purpose of this part is to ensure police reports and health assessment reports may be obtained when this Act has provided for the reports or assessments.

85Definitions for pt 2.5

In this part—

commissioner of police means the commissioner of the police service.

interstate registration means registration under a corresponding law as a locally registered foreign lawyer under that law.

Note—

A person granted interstate registration would be an interstate-registered foreign lawyer under this Act.

legal practice includes the practice of foreign law in this jurisdiction by a foreign lawyer.

local registration means registration under this Act as a locally registered foreign lawyer.

registration means local registration or interstate registration.

relevant authority means—

(a)for an applicant for admission—the board; or

(b)for an applicant for the grant or renewal of a local practising certificate or local registration, for the holder of a local practising certificate or for a locally registered foreign lawyer—the relevant regulatory authority.

subject person means—

(a)an applicant for admission; or

(b)an applicant for the grant or renewal of a local practising certificate; or

(c)the holder of a local practising certificate; or

(d)an applicant for registration as a locally registered foreign lawyer; or

(e)a locally registered foreign lawyer.

suitability report means a police report or health assessment report prepared under this part, the Legal Profession Act 2004, chapter 7, part 1, or a corresponding law, and includes a copy of a report or a part of a report or copy.

86Relevant authority may ask for police report

(1)A relevant authority may ask the commissioner of police for a written report about whether a subject person has any convictions for offences.

(2)However, a regulatory authority must not ask for a report about a local legal practitioner or a locally registered foreign lawyer unless the authority considers it appropriate.

(3)Subsection (2) applies to the regulatory authority in relation to a local legal practitioner whether or not the practitioner is applying for the renewal of the local practising certificate or applying for another practising certificate.

(4)The commissioner of police must give the report to the authority.

(5)The report must contain only information in the possession of the commissioner of police or to which the commissioner has access.

87Health assessment

(1)This section applies if a relevant authority believes a subject person currently is unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner.

(2)The relevant authority may require the subject person to undergo a health assessment by a person appointed by the relevant authority.

(3)If the relevant authority decides to require the health assessment, the authority must give the subject person an information notice about the decision to require the assessment that includes—

(a)the name and qualifications of the person appointed by the authority to conduct the assessment; and

(b)a stated date, and a stated time and place, for the assessment that must be reasonable having regard to the circumstances of the subject person as known to the relevant authority.

(4)The stated date must be no sooner than 28 days after the information notice is given to the subject person unless the person and the relevant authority agree, in writing, to an earlier date.

(5)The subject person may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

s 87 amd 2009 No. 24 s 1492

88Appointment of health assessor

(1)The relevant authority may appoint 1 or more appropriately qualified persons (health assessors) to conduct all or part of a health assessment under this division of a subject person.

(2)At least 1 health assessor must be a registered medical practitioner.

(3)If the relevant authority considers the subject person’s criminal history is relevant to the assessment, the authority may disclose the history to the health assessor.

(4)The Criminal Law (Rehabilitation of Offenders) Act 1986 does not apply to the disclosure.

(5)Before appointing a person as a health assessor, the relevant authority must be satisfied the person does not have a personal or professional connection with the subject person that may prejudice the way in which the person conducts the assessment.

(6)In this section—

appropriately qualified, in relation to a registered medical practitioner or other person conducting a health assessment, includes having the qualifications, experience, skills or knowledge appropriate to conduct the assessment.

89Health assessment report

(1)A health assessor conducting all or part of a health assessment of a subject person must prepare a report about the assessment (health assessment report).

(2)The health assessment report must include—

(a)the health assessor’s findings as to whether the person is currently unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner; and

(b)if the health assessor finds that the person is unable to do so, the health assessor’s recommendations, if any, as to a condition—

(i)the Supreme Court could impose on the person’s admission to the legal profession that would make, or would be likely to make, the person suitable to engage in legal practice; or

(ii)the relevant authority could impose on the person’s practising certificate or local registration that would make, or would be likely to make, the person suitable to engage in legal practice.

(3)The health assessor must give the health assessment report to the relevant authority and a copy to the subject person.

90Payment for health assessment and report

(1)The relevant authority that appoints a health assessor to conduct all or part of a health assessment is liable for the cost of the assessment conducted by, and the report prepared by, the health assessor.

(2)However, if the report of the health assessor is adverse to a person, the relevant authority may ask the person, by written notice, to pay the authority the amount of the cost of the assessment.

(3)The amount requested is a debt to the regulatory authority.

91Use of health assessment report

(1)A report about a subject person is not admissible in any proceeding, and a person can not be compelled to produce the report or to give evidence about the report or its contents in any proceeding.

(2)Subsection (1) does not apply in relation to—

(a)a proceeding relating to an application by the subject person for admission to the legal profession under this Act, for local registration, for admission to the legal profession in another jurisdiction or for interstate registration; or

(b)a proceeding on an appeal by the subject person against, or on an application by the subject person for a review of, a decision of a relevant authority of this or another jurisdiction—

(i)refusing to grant or renew a practising certificate or registration; or

(ii)imposing conditions on a practising certificate or registration; or

(iii)amending or cancelling a practising certificate or registration.

(3)Subsection (1) does not apply if the report is admitted or produced, or evidence about the report or its contents is given, in a proceeding with the consent of—

(a)the health assessor who prepared the report; and

(b)the subject person to whom the report relates.

(4)In this section—

report means a health assessment report prepared under this division, the Legal Profession Act 2004, chapter 7, part 1, division 3, or a corresponding law, and includes a copy of a report or a part of a report or copy.

s 91 amd 2009 No. 24 s 1493

92Confidentiality of suitability report

(1)A member, officer, employee or agent of a relevant authority must not, directly or indirectly, disclose to anyone else a suitability report, or information in a suitability report, given to the relevant authority whether before or after the commencement of this section.

Maximum penalty—200 penalty units.

(2)A member, officer, employee or agent of the board does not contravene subsection (1) if—

(a)disclosure of the suitability report or information in it to someone else is authorised by the board to the extent necessary to perform a function or exercise a power under this Act relating to an application for admission; or

(b)disclosure of the report or information in it is made to the corresponding authority for the board of another jurisdiction in which the person has applied for admission to the legal profession; or

(c)the disclosure is made with the consent of the person to whom it relates and, in the case of a health assessment, the health assessor; or

(d)the disclosure is otherwise required or permitted by law.

(3)A member, officer, employee or agent of a regulatory authority does not contravene subsection (1) if—

(a)disclosure of the suitability report or information in it to someone else is authorised by the regulatory authority to the extent necessary to perform a function or exercise a power under this Act in relation to—

(i)an application for the grant or renewal of a local practising certificate or for the grant or renewal of local registration; or

(ii)the imposition or proposed imposition of conditions on a local practising certificate or local registration; or

(iii)the amendment, suspension or cancellation or the proposed amendment, suspension or cancellation, of a local practising certificate or local registration; or

(b)disclosure of the suitability report or information in it is made to the regulatory authority of another jurisdiction when the person to whom it relates is an applicant for the grant or renewal of a practising certificate or the grant or renewal of interstate registration, or the holder of an interstate practising certificate or an interstate-registered foreign lawyer, under a corresponding law of the other jurisdiction; or

(c)the disclosure is made with the consent of the person to whom it relates and, in the case of a health assessment, the health assessor; or

(d)the disclosure is otherwise required or permitted by law.

(4)The relevant authority must ensure a suitability report is destroyed after—

(a)the application concerned is finally decided or is withdrawn; or

(b)other action relating to the imposition of conditions on a practising certificate or local registration, or the amendment, suspension or cancellation of a practising certificate or local registration, is taken or a decision is taken not to proceed with any other action.

(5)Subsection (1) does not apply to information in a suitability report if that information was given or obtained by the relevant authority other than as part of the suitability report.

Example for subsection (5)—

A suitability report may contain information that an applicant may have already disclosed, including name, address, or some information about previous convictions or a previous disqualification from being a lawyer.

93Operation of pt 2.5

(1)Nothing in this part authorises the board to seek a suitability report about—

(a)an applicant for the grant or renewal of a local practising certificate; or

(b)the holder of a local practising certificate.

(2)Nothing in this part authorises a relevant authority to seek a suitability report about an applicant for admission.

94Main purpose of pt 2.6

The main purpose of this part is to provide for the notification of and response to action taken by courts and other regulatory authorities in relation to the admission of persons to the legal profession and their right to engage in legal practice in Australia.

95Relationship of this part with ch 4

This part does not affect a function or power under chapter 4.

96Notification to other jurisdictions about application for admission

(1)This section applies to each application for admission.

(2)The board may give the corresponding authority of another jurisdiction written notice of any of the following to the extent that it is relevant to the corresponding authority’s functions or powers—

(a)the making of the application;

(b)the board’s recommendation under section 39 in relation to the application;

(c)the withdrawal of the application after an investigation or inquiry is made or started, or a suitability report is sought or obtained, in relation to the application or the applicant;

(d)the refusal of the Supreme Court to admit the applicant to the legal profession under this Act.

(3)The notice must state the applicant’s name and address as last known to the board and may contain other relevant information.

97Notification to other jurisdictions about removal from local roll

(1)This section applies if a person’s name is removed from the local roll, except if the removal happens under section 103.

(2)The Brisbane registrar must give the corresponding authority of each other jurisdiction, and the registrar or other proper officer of the High Court of Australia, written notice of the removal.

(3)The notice must state the following—

(a)the person’s name and address as last known to the Brisbane registrar;

(b)the date the person’s name was removed from the roll;

(c)the reason for removing the person’s name;

(d)other information prescribed under a regulation.

98Law society and bar association to notify other jurisdictions about particular matters

(1)Subsection (2) applies if—

(a)a regulatory authority takes any of the following actions in relation to an Australian lawyer—

(i)a refusal to grant or renew a local practising certificate for the lawyer;

(ii)a suspension or cancellation of the lawyer’s local practising certificate; or

(b)the lawyer is successful in an application to the tribunal for a review of a decision to take an action mentioned in paragraph (a).

(2)The regulatory authority must give the corresponding authorities written notice of the action taken or the result of the review.

(3)The notice must state each of the following—

(a)the lawyer’s name and address as last known to the regulatory authority;

(b)particulars of—

(i)the action taken and the reasons for it; or

(ii)the result of the review;

(c)other relevant information that the authority considers should be included in the notice.

(4)The regulatory authority may give the corresponding authorities written notice of a condition imposed on an Australian lawyer’s local practising certificate.

s 98 amd 2009 No. 24 s 1494

99Lawyer to give notice of removal in another jurisdiction

(1)If a local lawyer’s name has been removed from an interstate roll, the lawyer must give the Brisbane registrar written notice of the removal.

Maximum penalty—100 penalty units.

(2)If a local legal practitioner’s name has been removed from an interstate roll, the practitioner must give the relevant regulatory authority written notice of the removal.

Maximum penalty—100 penalty units.

(3)This section does not apply if the name has been removed from an interstate roll under a corresponding law to section 103.

100Lawyer to give notice of interstate orders

(1)This section applies if an order is made under a corresponding law recommending that the name of a local lawyer be removed from the local roll.

(2)As soon as practicable (but not more than 7 days) after the local lawyer is given notice of the action or otherwise becomes aware of it, the lawyer must give the Brisbane registrar written notice of the order.

Maximum penalty—200 penalty units.

(3)If an order is made under a corresponding law in relation to a local legal practitioner that—

(a)the practitioner’s local practising certificate be suspended or cancelled; or

(b)a local practising certificate not be granted to the practitioner for a period; or

(c)an order that conditions be imposed on the practitioner’s local practising certificate;

the practitioner must, as soon as practicable (but not more than 7 days) after the practitioner is given notice of the order or otherwise becomes aware of it, give the regulatory authority who granted or renewed the practitioner’s local practising certificate written notice of the order.

Maximum penalty—200 penalty units.

101Lawyer to give notice of foreign regulatory action

(1)This section applies if a foreign regulatory action has been taken in relation to a person.

(2)If the person is a local lawyer, as soon as practicable (but not more than 7 days) after the person is given notice of the action or otherwise becomes aware of it, the person must give the Brisbane registrar written notice of the action taken.

Maximum penalty—200 penalty units.

(3)If the person is a local legal practitioner, as soon as practicable (but not more than 7 days) after the person is given notice of the action or otherwise becomes aware of it, the person must give the regulatory authority who granted or renewed the practitioner’s local practising certificate written notice of the action taken.

Maximum penalty—200 penalty units.

102Provisions relating to requirement to notify

A notice to be given under this division by a person must—

(a)state his or her name and address; and

(b)disclose full details of the action to which the notice relates, including the date on which that action was taken; and

(c)be accompanied by a copy of any official notification given to him or her in connection with the action.

103Peremptory removal of local lawyer’s name from local roll following removal in another jurisdiction

(1)This section applies if the Brisbane registrar is satisfied that—

(a)a local lawyer’s name has been removed from an interstate roll; and

(b)no order under section 107(1)(a) is, at the time of that removal, in force in relation to the lawyer’s name.

(2)The Brisbane registrar must remove, or arrange with another registrar for the removal of, the lawyer’s name from the local roll.

(3)The Brisbane registrar may, but need not, give the lawyer written notice of the date on which the registrar proposes to remove the name from the local roll.

(4)The Brisbane registrar must give the former local lawyer written notice of the removal of the name from the local roll, unless notice of the date of the proposed removal was previously given.

(5)The name of the former local lawyer is, on his or her application to the Brisbane registrar or on the registrar’s own initiative, to be restored to the local roll if the name is restored to the interstate roll.

(6)Nothing in this section prevents the former local lawyer from afterwards making an application for admission.

104Peremptory cancellation of local practising certificate following removal of name from interstate roll

(1)This section applies if—

(a)a person’s name is removed from an interstate roll but he or she remains an Australian lawyer; and

(b)the person is the holder of a local practising certificate; and

(c)no order under section 107(1)(b) is, at the time of that removal, in force in relation to the person’s local practising certificate.

(2)The relevant regulatory authority must cancel the local practising certificate.

(3)The relevant regulatory authority may, but need not, give the person notice of the date on which it proposes to cancel the local practising certificate.

(4)The relevant regulatory authority must give the person notice of the cancellation, unless notice of the date of the proposed cancellation was previously given.

(5)Nothing in this section prevents the former local lawyer from applying for a local practising certificate at a later time.

105Show cause procedure for removal of lawyer’s name from local roll following foreign regulatory action

(1)This section applies if the appropriate authority is satisfied that—

(a)foreign regulatory action has been taken in relation to a local lawyer, whether before or after the commencement of this section; and

(b)no order mentioned in section 107(1)(a) is in force in relation to the action taken.

(2)The appropriate authority may give the local lawyer a notice stating that the appropriate authority will apply to the Supreme Court for an order that the local lawyer’s name be removed from the local roll unless the lawyer shows cause to the appropriate authority why his or her name should not be removed.

(3)If the local lawyer does not satisfy the appropriate authority that his or her name should not be removed from the local roll, the appropriate authority may apply to the Supreme Court for an order that the local lawyer’s name be removed from the local roll.

(4)Before applying for an order that the local lawyer’s name be removed, the appropriate authority must afford the local lawyer a reasonable opportunity to show cause why his or her name should not be removed.

(5)The Supreme Court may, on application made under this section, order the local lawyer’s name be removed from the local roll or may refuse to do so.

(6)The local lawyer is entitled to appear before and be heard by the Supreme Court at a hearing relating to an application under this section.

(7)In this section—

appropriate authority means—

(a)if the local lawyer holds a local practising certificate—the relevant regulatory authority in relation to the local lawyer; or

(b)if the local lawyer does not hold a local practising certificate but holds an interstate practising certificate—the regulatory authority as agreed between the regulatory authorities; or

(c)if the local lawyer holds neither a local practising certificate nor an interstate practising certificate—the law society.

106Show cause procedure for cancellation of local practising certificate following foreign regulatory action

(1)This section applies if a regulatory authority that granted or renewed a practising certificate is satisfied that—

(a)foreign regulatory action has been taken in relation to a the local legal practitioner, whether before or after the commencement of this section; and

(b)no order mentioned in section 107(1)(b) is in force in relation to the foreign regulatory action.

(2)The regulatory authority may give the local legal practitioner a notice stating that the regulatory authority proposes to cancel the local practising certificate unless the practitioner shows cause to the authority why the certificate should not be cancelled.

(3)The regulatory authority must afford the person a reasonable opportunity to show cause why his or her practising certificate should not be cancelled.

(4)If the local legal practitioner does not satisfy the regulatory authority that the practising certificate should not be cancelled, the regulatory authority may cancel the certificate.

(5)The regulatory authority must give the local legal practitioner an information notice about its decision to cancel the practising certificate.

(6)The person may appeal to the Supreme Court against a decision of the relevant regulatory authority to cancel his or her practising certificate.

(7)The Supreme Court may make any order it considers appropriate on the appeal.

107Order for non-removal of name or non-cancellation of local practising certificate

(1)If an Australian lawyer reasonably expects his or her name will be removed from an interstate roll or foreign regulatory action will be taken against him or her, the lawyer may apply to the Supreme Court for either or both of the following—

(a)an order that his or her name not be removed from the local roll under section 103 or 105;

(b)an order that his or her local practising certificate not be cancelled under section 104 or 106.

(2)The Supreme Court—

(a)may make the order or orders applied for if satisfied about each of the following—

(i)the Australian lawyer’s name is likely to be removed from the interstate roll or the foreign regulatory action is likely to be taken;

(ii)the reason for the removal of the name, or the taking of the foreign regulatory action, will not involve disciplinary action or the possibility of disciplinary action; or

(b)may refuse to make an order.

(3)An order under this section may be made subject to any conditions the Supreme Court considers appropriate and remains in force for the period stated in it.

(4)The Supreme Court may revoke an order made under this section.

(5)If the Supreme Court revokes an order made under this section, to the extent relevant, when the revocation takes effect the other provisions of this division apply as if the Australian lawyer’s name were removed from the interstate roll or the foreign regulatory action were taken.

(6)Nothing in this section affects action being taken in relation to the Australian lawyer under other provisions of this Act.

108Local authority may give information to other local authority

(1)A local authority that receives information from an authority of another jurisdiction under provisions of a corresponding law that correspond to this part may give the information to any other local authority.

(2)In this section—

local authority means an entity relevant to this jurisdiction that has functions or powers under this Act.

109Main purposes of pt 2.7

The main purposes of this part are as follows—

(a)to regulate the provision of legal services by corporations in this jurisdiction;

(b)to regulate the provision of legal services in this jurisdiction in conjunction with the provision of other services, whether by a corporation or persons acting in partnership together.

110Definitions for pt 2.7

In this part—

corporation means—

(a)a company within the meaning of the Corporations Act; or

(b)a body corporate prescribed under a regulation.

director means—

(a)in relation to a company within the meaning of the Corporations Act—a director as defined in section 9 of that Act; or

(b)in relation to another body corporate prescribed under a regulation—a person stated or described in the regulation as a director.

legal practitioner director means a director of an incorporated legal practice who is an Australian legal practitioner holding a practising certificate entitling the practitioner to practise as a principal of a law practice.

legal practitioner partner means a partner of a multi-disciplinary partnership who is an Australian legal practitioner holding a practising certificate entitling the practitioner to practise as a principal of a law practice.

officer means—

(a)in relation to a company within the meaning of the Corporations Act—an officer as defined in section 9 of that Act; or

(b)in relation to any other body corporate, or a body corporate of a kind, prescribed under a regulation—a person stated or described in the regulation.

professional obligations, of an Australian legal practitioner, include—

(a)duties to the Supreme Court; and

(b)obligations in connection with conflicts of interest; and

(c)duties to clients, including disclosure; and

(d)ethical rules the legal practitioner must observe.

related body corporate means—

(a)in relation to a company within the meaning of the Corporations Act—a related body corporate within the meaning of section 50 of that Act; or

(b)in relation to another body corporate prescribed under a regulation—a person prescribed under a regulation as a related body corporate.

111Nature of incorporated legal practice

(1)A corporation is an incorporated legal practice if it engages in legal practice in this jurisdiction, whether or not it provides services that are not legal services.

(2)However, a corporation is not an incorporated legal practice if the only legal services that the corporation provides are either or both of the following—

(a)in-house legal services;

(b)services that are not legally required to be provided by an Australian legal practitioner and that are provided by an officer or employee of the corporation who is not an Australian legal practitioner.

(3)Also, a corporation that provides legal services is not an incorporated legal practice if the corporation is prescribed under a regulation as a corporation that is not an incorporated legal practice.

(4)Despite subsection (2) and (3), a corporation that is not an incorporated legal practice as mentioned in those subsections must comply with any regulation applying provisions of this part, with or without changes, to that corporation.

(5)Nothing in this part affects or applies to the provision by an incorporated legal practice of legal services in 1 or more other jurisdictions.

112Non-legal services and businesses of incorporated legal practices

(1)An incorporated legal practice may provide any service and conduct any business that the corporation may lawfully provide or conduct, except as provided by this section.

(2)An incorporated legal practice, or a related body corporate of an incorporated legal practice, must not conduct a managed investment scheme.

(3)Also, if a regulation prohibits an incorporated legal practice, or a related body corporate of the practice, from providing a service or conducting a business of a kind stated in the regulation, the practice must not provide the service or conduct the business.

Note—

Contravention of this section or a regulation mentioned in subsection (3) is a ground for banning an incorporated legal practice under section 132.

113Corporations eligible to be incorporated legal practices

(1)Subject to this part, a corporation is eligible to be an incorporated legal practice.

(2)This section does not authorise a corporation to provide legal services if the corporation is prohibited from doing so under an Act or law, whether of this jurisdiction, the Commonwealth or another jurisdiction, under which the corporation is incorporated or its affairs are regulated.

(3)An incorporated legal practice is not required to hold an Australian practising certificate.

114Notice of intention to start providing legal services

(1)Before a corporation starts to engage in legal practice in this jurisdiction, the corporation must give the law society notice, in the law society approved form, of its intention to do so.

(2)A corporation must not engage in legal practice in this jurisdiction if it has not given a notice under subsection (1).

Maximum penalty—

(a)for a person guilty under the Criminal Code, chapter 2, of an offence—300 penalty units; or

(b)for a corporation—1,500 penalty units.

(3)A corporation that starts to engage in legal practice in this jurisdiction without giving a notice under subsection (1) is in default of this section until it gives the law society notice, in the law society approved form, of the failure to comply with that subsection and the fact that it has started to engage in legal practice.

(4)The giving of a notice under subsection (3) does not affect a liability under subsection (1) or (2).

(5)A corporation is not entitled to recover any amount for anything the corporation did in contravention of subsection (2).

(6)A person may recover from a corporation, as a debt due to the person, any amount the person paid to or at the direction of the corporation for anything the corporation did in contravention of subsection (2).

(7)This section does not apply to a corporation mentioned in section 111(2) or (3).

s 114 amd 2013 No. 51 s 92

115Prohibition on corporations or directors etc. representing that corporation is incorporated legal practice

(1)A corporation must not, without a reasonable excuse, represent or advertise that the corporation is an incorporated legal practice unless a notice in relation to the corporation has been given under section 114.

Maximum penalty—300 penalty units.

(2)A director, officer, employee or agent of a corporation must not, without a reasonable excuse, represent or advertise that the corporation is an incorporated legal practice unless a notice in relation to the corporation has been given under section 114.

Maximum penalty—300 penalty units or 2 years imprisonment.

(3)A reference in this section to representing or advertising that a corporation is an incorporated legal practice includes—

(a)for the corporation—the corporation doing anything that states or implies that the corporation is entitled to engage in legal practice; or

(b)for a director, officer, employee or agent of a corporation—the director, officer, employee or agent of the corporation doing anything that states or implies that the corporation is entitled to engage in legal practice.

116Notice of termination of provision of legal services

(1)A corporation must, within the period prescribed under a regulation after it stops engaging in legal practice in this jurisdiction as an incorporated legal practice, give the law society notice, in the law society approved form, of that fact.

Maximum penalty—

(a)for a person guilty under the Criminal Code, chapter 2, of an offence—20 penalty units; or

(b)for a corporation—100 penalty units.

(2)A regulation may make provision about circumstances that may be taken into account when deciding whether and when a corporation stops engaging in legal practice in this jurisdiction.

(3)Circumstances prescribed under a regulation are examples, and do not limit, whether and when a corporation stops engaging in legal practice in this jurisdiction.

s 116 amd 2013 No. 51 s 93

117Incorporated legal practice must have legal practitioner director

(1)An incorporated legal practice is required to have at least 1 legal practitioner director.

(2)Each legal practitioner director of an incorporated legal practice is, for the purposes of this Act, responsible for the management of the legal services provided in this jurisdiction by the practice.

(3)Each legal practitioner director of an incorporated legal practice must ensure that appropriate management systems are implemented and kept to enable the provision of legal services by the practice—

(a)under the professional obligations of Australian legal practitioners and other obligations imposed under this Act; and

(b)so that the obligations of the Australian legal practitioners who are officers or employees of the practice are not affected by other officers or employees of the practice.

(4)If it ought reasonably to be apparent to a legal practitioner director of an incorporated legal practice that the provision of legal services by the practice will result in breaches of the professional obligations of an Australian legal practitioner or other obligations imposed under this Act, the director must take all reasonable action available to the director to ensure that—

(a)the breaches do not happen; and

(b)if a breach has happened—appropriate remedial action is taken in relation to the breach.

(5)Nothing in this part derogates from the obligations or liabilities of a director of an incorporated legal practice under another law.

(6)The reference in subsection (1) to a legal practitioner director does not include a reference to a person who is not validly appointed as a director, but this subsection does not affect the meaning of the expression ‘legal practitioner director’ in other provisions of this Act.

118Obligations of legal practitioner director relating to misconduct

(1)Each of the following is capable of constituting unsatisfactory professional conduct or professional misconduct by a legal practitioner director—

(a)unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the incorporated legal practice;

(b)conduct of another director, not being an Australian legal practitioner, of the incorporated legal practice that adversely affects the provision of legal services by the practice;

(c)the unsuitability of another director, not being an Australian legal practitioner, of the incorporated legal practice to be a director of a corporation that provides legal services.

(2)A legal practitioner director is not guilty of unsatisfactory professional conduct or professional misconduct under subsection (1) if the director establishes that he or she took all reasonable steps to ensure the following as the case requires—

(a)Australian legal practitioners employed by the incorporated legal practice did not engage in conduct or misconduct mentioned in subsection (1)(a);

(b)directors, other than Australian legal practitioners, of the incorporated legal practice did not engage in conduct mentioned in subsection (1)(b);

(c)unsuitable directors, not being Australian legal practitioners, of the incorporated legal practice were not appointed or holding office as mentioned in subsection (1)(c).

(3)A legal practitioner director of an incorporated legal practice must ensure that all reasonable action available to the legal practitioner director is taken to deal with any unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the practice.

119Incorporated legal practice without legal practitioner director

(1)An incorporated legal practice contravenes this subsection if it does not have a legal practitioner director for the corporation for a period exceeding 7 days.

(2)If an incorporated legal practice stops having a legal practitioner director, the practice must give notice to the law society of that fact, in the law society approved form, as soon as possible after the practice stops having a legal practitioner director.

Maximum penalty—

(a)for a person guilty under the Criminal Code, chapter 2, of an offence—60 penalty units; or

(b)for a corporation—300 penalty units.

(3)An incorporated legal practice must not provide legal services in this jurisdiction during any period it is taken to be in default of legal practitioner director requirements as mentioned in subsection (4).

Maximum penalty—

(a)for a person guilty under the Criminal Code, chapter 2, of an offence—180 penalty units; or

(b)for a corporation—900 penalty units.

(4)An incorporated legal practice that contravenes subsection (1) is taken to be in default of legal practitioner director requirements under this section for the period from the end of the period of 7 days until—

(a)it has at least 1 legal practitioner director; or

(b)a person is appointed under this section, or the provisions of a corresponding law, in relation to the practice.

(5)The law society may, if it considers it appropriate, appoint an Australian legal practitioner who is an employee of the incorporated legal practice or another person nominated by the law society, in the absence of a legal practitioner director, to perform or discharge the functions or duties conferred or imposed on a legal practitioner director under this part.

(6)An Australian legal practitioner is not eligible to be appointed under this section unless the legal practitioner holds an unrestricted practising certificate.

(7)The appointment under this section of a person to perform or discharge functions or duties of a legal practitioner director does not, for any other purpose, confer or impose on the person any of the other functions or duties of a director of the incorporated legal practice.

(8)An incorporated legal practice does not contravene subsection (1) during any period during which a person holds an appointment under subsection (5) in relation to the practice.

(9)The reference in this section to a legal practitioner director does not include a reference to a person who is not validly appointed as a director, but this subsection does not affect the meaning of the expression ‘legal practitioner director’ in other provisions of this Act.

s 119 amd 2013 No. 51 s 94

120Obligations and privileges of an Australian legal practitioner who is an officer or employee

(1)An Australian legal practitioner who provides legal services for an incorporated legal practice in the capacity of an officer or employee of the incorporated legal practice—

(a)is not excused from compliance with the professional obligations, or any obligations under any law, of an Australian legal practitioner; and

(b)does not lose the professional privileges of an Australian legal practitioner.

(2)For the purpose only of subsection (1), the professional obligations and professional privileges of an Australian legal practitioner apply as if—

(a)for an incorporated legal practice with 2 or more legal practitioner directors—the practice were a partnership of the legal practitioner directors and the employees of the practice were employees of the legal practitioner directors; and

(b)for an incorporated legal practice with only 1 legal practitioner director—the practice were a sole practitioner and the employees of the practice were employees of the legal practitioner director.

(3)To remove any doubt, it is declared that the law relating to client legal privilege, or other legal professional privilege, is not excluded or otherwise affected because an Australian legal practitioner is acting in the capacity of an officer or employee of an incorporated legal practice.

(4)The directors of an incorporated legal practice do not breach their duties as directors merely because legal services are provided pro bono by the Australian legal practitioners employed by the practice.

121Professional indemnity insurance

(1)An incorporated legal practice must not engage in legal practice in this jurisdiction unless it has professional indemnity insurance that complies with the requirements prescribed under a regulation about professional indemnity insurance for an incorporated legal practice.

Maximum penalty—

(a)for a person guilty under the Criminal Code, chapter 2, of an offence—300 penalty units or 2 years imprisonment; or

(b)for a corporation—1,500 penalty units.

(2)An incorporated legal practice engaging in legal practice in this jurisdiction must comply with its obligations under the indemnity rules.

Maximum penalty—

(a)for a person guilty under the Criminal Code, chapter 2, of an offence—300 penalty units or 2 years imprisonment; or

(b)for a corporation—1,500 penalty units.

(3)Failure by a legal practitioner director of an incorporated legal practice to ensure that the incorporated legal practice complies with subsection (1) or (2) is capable of constituting professional misconduct.

s 121 amd 2013 No. 51 s 95

122Conflicts of interest

(1)For the application of any law (including the common law) or the legal profession rules relating to conflicts of interest to the conduct of an Australian legal practitioner who is—

(a)a legal practitioner director of an incorporated legal practice; or

(b)an officer or employee of an incorporated legal practice;

the interests of the incorporated legal practice or any related body corporate are also taken to be those of the practitioner (in addition to any interests that the practitioner has apart from this subsection).

(2)Legal profession rules may be made for or in relation to additional duties and obligations in connection with conflicts of interest arising out of the conduct of an incorporated legal practice.

123Disclosure obligations

(1)This section applies if a person engages an incorporated legal practice to provide services that the person might reasonably assume to be legal services, but does not apply if the practice provides only legal services in this jurisdiction.

(2)Each legal practitioner director of the incorporated legal practice, and any employee who is an Australian legal practitioner and who provides the services for the practice, must ensure that a disclosure, complying with the requirements of this section and a regulation, is made for this section to the person about the services.

Maximum penalty—100 penalty units.

(3)The disclosure must be made by giving the person a written notice—

(a)setting out the services to be provided; and

(b)stating whether or not all the legal services will be provided by an Australian legal practitioner; and

(c)if some or all of the legal services to be provided will not be provided by an Australian legal practitioner—identifying those services and indicating the status or qualifications of the person or persons who will provide the legal services; and

(d)stating that this Act applies to the provision of legal services but not to the provision of the non-legal services.

(4)A regulation may provide for the following matters—

(a)the way in which a disclosure is to be made;

(b)additional matters required to be disclosed in connection with the provision of legal services or non-legal services by an incorporated legal practice.

(5)Without limiting subsection (4), the additional matters may include the kind of services provided by the incorporated legal practice and whether those services are or are not covered by the provisions of this Act, including, for example, provisions about insurance.

(6)A disclosure under this section to a person about the provision of legal services may relate to the provision of legal services on 1 occasion, on more than 1 occasion or on an on-going basis.

124Effect of non-disclosure on provision of particular services

(1)This section applies if—

(a)section 123 applies to a service that is provided to a person who has engaged an incorporated legal practice to provide the service and that the person might reasonably assume to be a legal service; and

(b)a disclosure has not been made under that section about the service.

(2)The standard of care owed by the practice in relation to the service is the standard that would be applicable if the service had been provided by an Australian legal practitioner.

125Application of legal profession rules

Legal profession rules, so far as they apply to an Australian legal practitioner, apply to an Australian legal practitioner who is an officer or employee of an incorporated legal practice, unless the rules otherwise provide.

126Requirements relating to advertising

(1)A restriction imposed under this Act or another Act in connection with advertising by Australian legal practitioners applies to advertising by an incorporated legal practice in relation to the provision of legal services.

(2)If a restriction mentioned in subsection (1) is limited to a particular branch of the legal profession or persons who practise in a particular style of legal practice, the restriction applies only to the extent that the incorporated legal practice carries on the business of that branch of the legal profession or in that particular style of legal practice.

(3)An advertisement made in contravention of a restriction under this section is, for the purposes of a disciplinary proceeding taken against an Australian legal practitioner, taken to have been authorised by each legal practitioner director of the incorporated legal practice.

(4)This section does not apply if the provision by which the restriction is imposed expressly excludes the application of the restriction to incorporated legal practices.

127Extension to incorporated legal practice of vicarious liability relating to failure to account and dishonesty

(1)This section applies to any of the following, being a proceeding based on the vicarious liability of an incorporated legal practice—

(a)a civil proceeding relating to a failure to account for, pay or deliver money or other property received by, or entrusted to, the practice or to any officer or employee of the practice in the course of the provision of legal services by the practice, being money or other property under the direct or indirect control of the practice;

(b)a civil proceeding for any other debt owed, or damages payable, to a client because of a dishonest act or omission by an Australian legal practitioner who is an employee of the practice in connection with the provision of legal services to the client.

(2)If the incorporated legal practice would not, apart from this section, be vicariously liable for any acts or omissions of its officers and employees in the proceeding, but would be liable for those acts or omissions if the practice and those officers and employees were carrying on business in partnership, the practice is taken to be vicariously liable for those acts or omissions.

128Sharing of receipts, revenue or other income

(1)Nothing under this Act prevents an Australian legal practitioner from sharing with an incorporated legal practice receipts, revenue or other income arising from the provision of legal services by the practitioner.

(2)This section does not extend to the sharing of receipts, revenue or other income in contravention of section 129, and has effect subject to section 220.

129Disqualified persons

(1)An incorporated legal practice commits an offence if a person who is a disqualified person—

(a)is an officer or employee of the incorporated legal practice, whether or not the person provides legal services, or is an officer or employee of a related body corporate; or

(b)is a partner of the incorporated legal practice in a business that includes the provision of legal services; or

(c)shares the receipts, revenue or other income arising from the provision of legal services by the incorporated legal practice; or

(d)is engaged or paid for the provision of legal services by the incorporated legal practice.

Maximum penalty—

(a)for a person guilty under the Criminal Code, chapter 2, of an offence—60 penalty units; or

(b)for a corporation—300 penalty units.

(2)Failure by a legal practitioner director of an incorporated legal practice to ensure that the incorporated legal practice complies with subsection (1) is capable of constituting unsatisfactory professional conduct or professional misconduct.

s 129 amd 2013 No. 51 s 96

130Commissioner or law society may audit incorporated legal practice

(1)An ILP authority may conduct an audit of an incorporated legal practice about—

(a)the compliance of the practice, and of its officers and employees, with the requirements of—

(i)this part; or

(ii)a regulation, the legal profession rules or the administration rules, so far as they apply to incorporated legal practices; and

(b)the management of the provision of legal services by the incorporated legal practice, including the supervision of officers and employees providing the services.

(2)An audit may be conducted whether or not a complaint has been made against a person in relation to the provision of legal services by the incorporated legal practice.

(3)A report of the audit—

(a)must be given to the incorporated legal practice concerned; and

(b)may be given to another ILP authority; and

(c)may be provided by an ILP authority to a corresponding authority; and

(d)may be taken into account for—

(i)a discipline application involving legal practitioner directors or other persons; or

(ii)the grant, renewal, amendment, suspension or cancellation of a practising certificate.

131Application of chapter 6

Chapter 6 applies to an audit under this division.

132Banning of incorporated legal practices

(1)The Supreme Court may, on application of an ILP authority, make an order disqualifying a corporation from providing legal services in this jurisdiction for the period the court considers appropriate if the court is satisfied that—

(a)a ground for disqualifying the corporation under this section has been established; and

(b)the disqualification is justified.

(2)If the Supreme Court considers it appropriate, an order under this section may be made—

(a)subject to conditions as to the conduct of the incorporated legal practice; or

(b)subject to conditions as to when or in what circumstances the order is to take effect; or

(c)together with orders to safeguard the interests of clients or employees of the incorporated legal practice.

(3)Action may be taken against an incorporated legal practice on any of the following grounds—

(a)a legal practitioner director or an Australian legal practitioner who is an officer or employee of the corporation is found guilty of professional misconduct under a law of this jurisdiction or another jurisdiction;

(b)an ILP authority is satisfied, after conducting an audit of the incorporated legal practice, that the incorporated legal practice has failed to implement satisfactory management and supervision of its provision of legal services;

(c)the incorporated legal practice, or a related body corporate, has contravened section 112 or a regulation made under that section;

(d)the incorporated legal practice has contravened section 129;

(e)an officer of the incorporated legal practice who is acting in the management of the incorporated legal practice is the subject of an order—

(i)under section 133 or provisions of a corresponding law that correspond to that section; or

(ii)under section 158 or provisions of a corresponding law that correspond to that section.

(4)If a corporation is disqualified under this section, the ILP authority that applied for the order must notify the corresponding authority of every other jurisdiction.

(5)If a corporation is disqualified from providing legal services in another jurisdiction under a corresponding law, the commissioner may decide that the corporation is taken to be disqualified from providing legal services in this jurisdiction for the same period, but nothing in this subsection prevents an ILP authority from instead applying for an order under this section.

(6)A corporation that provides legal services in contravention of a disqualification under this section commits an offence.

Maximum penalty—

(a)for a person guilty under the Criminal Code, chapter 2, of an offence—180 penalty units; or

(b)for a corporation—900 penalty units.

(7)A corporation that is disqualified under this section ceases to be an incorporated legal practice.

(8)Conduct of an Australian legal practitioner who provides legal services on behalf of a corporation in the capacity of an officer or employee of the corporation is capable of being unsatisfactory professional conduct or professional misconduct if the practitioner ought reasonably to have known that the corporation is disqualified under this section.

(9)A regulation may provide for the publication and notification of orders made under this section, including notification of corresponding authorities of other jurisdictions.

s 132 amd 2013 No. 51 s 97

133Disqualification from managing incorporated legal practice

(1)The Supreme Court may, on application of an ILP authority, make an order disqualifying a person from managing a corporation that is an incorporated legal practice for the period the court considers appropriate if the court is satisfied that—

(a)the person is a person who could be disqualified under the Corporations Act, section 206C, 206D, 206E or 206F, from managing corporations; and

(b)the disqualification is justified.

(2)The Supreme Court may, on application of a person subject to a disqualification order under this section, revoke the order.

(3)A disqualification order made under subsection (1) has effect for the purposes only of this Act and does not affect the application or operation of the Corporations Act.

(4)A regulation may provide for the publication and notification of orders made under this section.

(5)A person who is disqualified from managing a corporation under provisions of a corresponding law that correspond to this section is taken to be disqualified from managing a corporation under this section.

134Disclosure of information to the Australian Securities and Investments Commission

(1)This section applies if an ILP authority, in connection with performing functions or exercising powers under this Act, acquired information concerning a corporation that is or was an incorporated legal practice.

(2)The ILP authority may disclose to the Australian Securities and Investments Commission information concerning the corporation that is relevant to the commission’s functions.

(3)Information may be provided under subsection (2) despite any law relating to secrecy or confidentiality, including any provisions of this Act.

135External administration proceedings under Corporations Act

(1)This section applies to a proceeding in any court under the Corporations Act, chapter 5—

(a)relating to a corporation that is a chapter 5 body corporate and that is or was an incorporated legal practice; or

(b)relating to a corporation that is or was an incorporated legal practice becoming a chapter 5 body corporate.

(2)Each ILP authority is entitled to intervene in the proceeding, unless the court decides that the proceeding does not concern or affect the provision of legal services by the incorporated legal practice.

(3)The court may, when exercising its jurisdiction in the proceeding, have regard to the interests of the clients of the incorporated legal practice who have been or are to be provided with legal services by the practice.

(4)Subsection (3) does not authorise the court to make any decision that is contrary to a specific provision of the Corporations Act.

(5)Subsections (2) and (3) are declared to be Corporations legislation displacement provisions for the purposes of the Corporations Act, section 5G, in relation to the provisions of chapter 5 of that Act.

Note—

The Corporations Act, section 5G, provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not apply to the extent necessary to avoid the inconsistency.

s 135 amd 2020 No. 15 s 138

136External administration proceedings under other legislation

(1)This section applies to a proceeding for the external administration, however expressed, of an incorporated legal practice but does not apply to a proceeding to which section 135 applies.

(2)Each ILP authority is entitled to intervene in the proceeding, unless the court decides that the proceeding does not concern or affect the provision of legal services by the incorporated legal practice.

(3)The court may, when exercising its jurisdiction in the proceeding, have regard to the interests of the clients of the incorporated legal practice who have been or are to be provided with legal services by the practice.

(4)Subsection (3) does not authorise the court to make any decision that is contrary to a specific provision of any legislation applicable to the incorporated legal practice.

137Incorporated legal practice that is subject to receivership under this Act and external administration under Corporations Act

(1)This section applies if an incorporated legal practice is the subject of both—

(a)the appointment of a chapter 5 receiver; and

(b)the appointment of a Corporations Act administrator.

(2)The chapter 5 receiver is under a duty to notify the Corporations Act administrator of the appointment of the chapter 5 receiver, whether the appointment precedes, follows or is contemporaneous with the appointment of the Corporations Act administrator.

(3)The chapter 5 receiver or the Corporations Act administrator, or both of them jointly, may apply to the Supreme Court for the resolution of issues arising from or in connection with the dual appointments and their respective powers, except if a proceeding mentioned in section 135 has been started.

(4)The Supreme Court may make any orders it considers appropriate, and no liability attaches to the chapter 5 receiver or the Corporations Act administrator for any act or omission done by the receiver or administrator in good faith for the purpose of carrying out or acting under the orders.

(5)Each ILP authority is entitled to intervene in the proceeding, unless the court decides that the proceeding does not concern or affect the provision of legal services by the incorporated legal practice.

(6)The provisions of subsections (3) and (4) are declared to be Corporations legislation displacement provisions for the purposes of the Corporations Act, section 5G, in relation to the provisions of chapter 5 of that Act.

(7)In this section—

chapter 5 receiver means a receiver appointed under section 512.

Corporations Act administrator means—

(a)a receiver, receiver and manager, liquidator (including a provisional liquidator), controller, administrator or deed administrator appointed under the Corporations Act; or

(b)a person who is appointed to exercise powers under that Act and who is prescribed under a regulation for this definition.

138Incorporated legal practice that is subject to receivership under this Act and external administration under other legislation

(1)This section applies if an incorporated legal practice is the subject of both—

(a)the appointment of a chapter 5 receiver; and

(b)the appointment of an external administrator.

(2)The chapter 5 receiver is under a duty to notify the external administrator of the appointment of the chapter 5 receiver, whether the appointment precedes, follows or is contemporaneous with the appointment of the external administrator.

(3)The chapter 5 receiver or the external administrator, or both of them jointly, may apply to the Supreme Court for the resolution of issues arising from or in connection with the dual appointments and their respective powers.

(4)The Supreme Court may make any orders it considers appropriate, and no liability attaches to the chapter 5 receiver or the external administrator for any act or omission done by the receiver or administrator in good faith for the purpose of carrying out or acting under the orders.

(5)Each ILP authority is entitled to intervene in the proceeding, unless the court decides that the proceeding does not concern or affect the provision of legal services by the incorporated legal practice.

(6)In this section—

chapter 5 receiver means a receiver appointed under section 512.

external administrator means a person who is—

(a)appointed to exercise powers under an Act other than this Act, or under an Act of the Commonwealth or another jurisdiction; and

(b)prescribed under a regulation for this definition.

139Cooperation between courts

Courts of this jurisdiction may make arrangements for communicating and cooperating with other courts or tribunals in connection with the exercise of powers under this part.

140Relationship of Act to constitution of incorporated legal practice

A provision under this Act that applies in relation to an incorporated legal practice prevails, to the extent of any inconsistency, over the constitution or other constituent documents of the practice.

141Relationship of Act to legislation establishing incorporated legal practice

(1)This section applies to a corporation, established by or under a law whether or not of this jurisdiction, that is an incorporated legal practice but is not a company under the Corporations Act.

(2)The provisions of this Act that apply to an incorporated legal practice prevail, to the extent of any inconsistency, over provisions of the legislation under which the corporation is established or regulated that are prescribed under a regulation.

142Relationship of Act to Corporations legislation and certain other instruments

(1)A regulation may declare a provision under this Act that relates to an incorporated legal practice to be a Corporations legislation displacement provision for the purposes of the Corporations Act, section 5G.

(2)A regulation may declare a matter relating to an incorporated legal practice that is prohibited, required, authorised or permitted under this Act to be an excluded matter for the purposes of the Corporations Act, section 5F, in relation to—

(a)the whole of the Corporations legislation; or

(b)a stated provision of the Corporations legislation; or

(c)the Corporations legislation other than a stated provision; or

(d)the Corporations legislation other than to a stated extent.

(3)In this section—

matter includes act, omission, body, person or thing.

143Undue influence

A person, whether or not an officer or employee of an incorporated legal practice, must not cause or induce, or attempt to cause or induce, a legal practitioner director, or another Australian legal practitioner who provides legal services for the practice, to contravene this Act or the practitioner’s professional obligations as an Australian legal practitioner.

Maximum penalty—300 penalty units.

144Nature of multi-disciplinary partnership

(1)A partnership is a multi-disciplinary partnership if it is a partnership between 1 or more Australian legal practitioners and 1 or more other persons who are not Australian legal practitioners, and the partnership business includes the provision of legal services in this jurisdiction as well as other services.

(2)However, a partnership consisting only of 1 or more Australian legal practitioners and 1 or more Australian-registered foreign lawyers is not a multi-disciplinary partnership.

(3)Nothing in this part affects or applies to the provision by a multi-disciplinary partnership of legal services in 1 or more other jurisdictions.

145Conduct of multi-disciplinary partnerships

(1)An Australian legal practitioner may be in partnership with a person who is not an Australian legal practitioner, if the partnership business includes the provision of legal services.

(2)Subsection (1) does not prevent an Australian legal practitioner from being in partnership with a person who is not an Australian legal practitioner, if the partnership business does not include the provision of legal services.

(3)A regulation may prohibit an Australian legal practitioner from being in partnership with a person providing a service or conducting a business of a kind stated under the regulation, if the partnership business includes the provision of legal services.

146Notice of intention to start practice in multi-disciplinary partnership

(1)Before an Australian legal practitioner starts to provide legal services in this jurisdiction as a partner in a multi-disciplinary partnership, the practitioner must give the law society notice, in the law society approved form, of his or her intention to do so.

Maximum penalty—100 penalty units.

(2)A regulation may prescribe particulars to be included in the law society approved form.

147General obligations of legal practitioner partners

(1)Each legal practitioner partner of a multi-disciplinary partnership is, for the purposes only of this Act, responsible for the management of the legal services provided in this jurisdiction by the partnership.

(2)Each legal practitioner partner must ensure that appropriate management systems are implemented and kept to enable the provision of legal services by the multi-disciplinary partnership—

(a)under the professional obligations of Australian legal practitioners and other obligations imposed under this Act; and

(b)so that the obligations of legal practitioner partners, and employees who are Australian legal practitioners, are not affected by other partners and employees of the partnership.

148Obligations of legal practitioner partner relating to misconduct

(1)Each of the following is capable of constituting unsatisfactory professional conduct or professional misconduct by a legal practitioner partner of a multi-disciplinary partnership—

(a)unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the multi-disciplinary partnership;

(b)conduct of another partner, not being an Australian legal practitioner, of the multi-disciplinary partnership that adversely affects the provision of legal services by the partnership;

(c)the unsuitability of another partner, not being an Australian legal practitioner, of the multi-disciplinary partnership to be a member of a partnership that provides legal services.

(2)A legal practitioner partner of a multi-disciplinary partnership must ensure that all reasonable action available to the legal practitioner partner is taken to deal with any unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner employed by the partnership.

149Actions of partner who is not an Australian legal practitioner

(1)A partner of a multi-disciplinary partnership who is not an Australian legal practitioner does not contravene a provision of this Act merely because of any of the following—

(a)the partner is a member of a partnership and the partnership business includes the provision of legal services;

(b)the partner receives a fee, gain or reward for business of the partnership that is the business of an Australian legal practitioner;

(c)the partner holds out, advertises or represents himself or herself as a member of a partnership where the partnership business includes the provision of legal services;

(d)the partner shares with another partner the receipts of business of the partnership that is the business of an Australian legal practitioner.

(2)Subsection (1) is subject to any other provision that expressly applies to a partner of a multi-disciplinary partnership who is not an Australian legal practitioner.

150Obligations and privileges of Australian legal practitioner who is partner or employee

(1)An Australian legal practitioner who provides legal services in the capacity of a partner or an employee of a multi-disciplinary partnership—

(a)is not excused from compliance with the professional obligations, or other obligations under any law, of an Australian legal practitioner; and

(b)does not lose the professional privileges of an Australian legal practitioner.

(2)To remove any doubt, it is declared that the law relating to client legal privilege, or other legal professional privilege, is not excluded or otherwise affected because an Australian legal practitioner is acting in the capacity of a partner or employee of a multi-disciplinary partnership.

151Conflicts of interest

(1)For the application of any law (including the common law) or the legal profession rules relating to conflicts of interest to the conduct of an Australian legal practitioner who is—

(a)a legal practitioner partner of a multi-disciplinary partnership; or

(b)an employee of a multi-disciplinary partnership;

the interests of the partnership or any partner of the multi-disciplinary partnership are also taken to be the interests of the practitioner concerned (in addition to any interests that the practitioner has apart from this subsection).

(2)Legal profession rules may be made for or in relation to additional duties and obligations in connection with conflicts of interest arising out of the conduct of a multi-disciplinary partnership.

152Disclosure obligations

(1)This section applies if a person engages a multi-disciplinary partnership to provide services that the person might reasonably assume to be legal services.

(2)Each legal practitioner partner of the multi-disciplinary partnership, and any employee of the partnership who is an Australian legal practitioner and who provides the services on behalf of the partnership, must ensure that a disclosure that complies with the requirements of this section and a regulation made for this section is made to the person about the services.

Maximum penalty—100 penalty units.

(3)The disclosure must be made by giving the person a written notice—

(a)setting out the services to be provided; and

(b)stating whether or not all the legal services will be provided by an Australian legal practitioner; and

(c)if some or all of the legal services to be provided will not be provided by an Australian legal practitioner—identifying those services and indicating the status or qualifications of the person or persons who will provide the legal services; and

(d)stating that this Act applies to the provision of legal services but not to the provision of the non-legal services.

(4)A regulation may provide for the following matters—

(a)the way in which a disclosure is to be made;

(b)additional matters required to be disclosed in connection with the provision of legal services or non-legal services by a multi-disciplinary partnership.

(5)Without limiting subsection (4), the additional matters may include the kind of services provided by the multi-disciplinary partnership and whether those services are or are not covered by the provisions of this Act, including, for example, provisions about insurance.

(6)A disclosure under this section to a person about the provision of legal services may relate to the provision of legal services on 1 occasion, on more than 1 occasion or on an on-going basis.

153Effect of non-disclosure on provision of particular services

(1)This section applies if—

(a)section 152 applies in relation to a service that is provided to a person who has engaged a multi-disciplinary partnership to provide the service and that the person might reasonably assume to be a legal service; and

(b)a disclosure has not been made under that section in relation to the service.

(2)The standard of care owed by the multi-disciplinary partnership in relation to the service is the standard that would be applicable if the service had been provided by an Australian legal practitioner.

154Application of legal profession rules

Legal profession rules, so far as they apply to an Australian legal practitioner, apply to the following unless the rules otherwise provide—

(a)an Australian legal practitioner who is a legal practitioner partner of a multi-disciplinary partnership;

(b)an Australian legal practitioner who is an employee of a multi-disciplinary partnership.

155Requirements relating to advertising

(1)A restriction imposed under this Act or another Act in connection with advertising by Australian legal practitioners applies to advertising by a multi-disciplinary partnership in relation to the provision of legal services.

(2)If a restriction mentioned in subsection (1) is limited to a particular branch of the legal profession or persons who practise in a particular style of legal practice, the restriction applies only to the extent that the multi-disciplinary partnership carries on the business of that branch of the legal profession or that particular style of legal practice.

(3)An advertisement by a multi-disciplinary partnership about the provision of services that include legal services is, for the purposes of a disciplinary proceeding against an Australian legal practitioner, taken to have been authorised by each legal practitioner partner of the multi-disciplinary partnership.

(4)This section does not apply if the provision by which the restriction is imposed expressly excludes its application to multi-disciplinary partnerships.

156Sharing of receipts, revenue or other income

(1)Nothing under this Act prevents a legal practitioner partner of a multi-disciplinary partnership, or an Australian legal practitioner who is an employee of a multi-disciplinary partnership, from sharing with a partner of the partnership who is not an Australian legal practitioner, receipts, revenue or other income arising from the provision of legal services by the partner or practitioner.

(2)This section does not extend to the sharing of receipts, revenue or other income in contravention of section 157, and has effect subject to section 220.

157Disqualified persons

A legal practitioner partner of a multi-disciplinary partnership must not knowingly—

(a)be a partner of a disqualified person in the multi-disciplinary partnership; or

(b)share with a disqualified person the receipts, revenue or other income arising from the provision of legal services by the multi-disciplinary partnership; or

(c)employ or pay a disqualified person in connection with the provision of legal services by the multi-disciplinary partnership.

158Prohibition on partnership with particular partner who is not an Australian legal practitioner

(1)This section applies to a person who—

(a)is not an Australian legal practitioner; and

(b)is or was a partner of an Australian legal practitioner.

(2)The Supreme Court may, on application by the commissioner or the law society, make an order prohibiting an Australian legal practitioner from being a partner of a person to whom this section applies and who is stated in the order in relation to a business that includes the provision of legal services if the court is satisfied that—

(a)the person is not a fit and proper person to be a partner; or

(b)the person has been found guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct; or

(c)for a corporation—the corporation has, under section 132, been disqualified from providing legal services in this jurisdiction or there are grounds for disqualifying the corporation from providing legal services in this jurisdiction.

(3)An order made under this section may be revoked by the Supreme Court on application by the law society, the commissioner or by the person against whom the order was made.

(4)The death of an Australian legal practitioner does not prevent an application being made for, or the making of, an order under this section in relation to a person who was a partner of the practitioner.

(5)A regulation may make provision about the publication and notification of orders made under this section.

159Undue influence

A person, whether or not a partner or employee of a multi-disciplinary partnership, must not cause or induce, or attempt to cause or induce, either of the following persons to contravene this Act or the person’s professional obligations as an Australian legal practitioner—

(a)a legal practitioner partner of a multi-disciplinary partnership;

(b)an employee of a multi-disciplinary partnership who provides legal services and who is an Australian legal practitioner.

Maximum penalty—300 penalty units.

160Obligations of practitioners not affected

Except as provided by this part, nothing in this part affects an obligation imposed on—

(a)a legal practitioner director of an incorporated legal practice, or an Australian legal practitioner who is an employee of an incorporated legal practice, under this Act or another Act in his or her capacity as an Australian legal practitioner; or

(b)a legal practitioner partner of, or an Australian legal practitioner who is an employee of, a multi-disciplinary partnership under this Act or another Act in his or her capacity as an Australian legal practitioner.

161Regulation

(1)A regulation may provide for the following—

(a)the legal services provided by incorporated legal practices or legal practitioner partners or employees of multi-disciplinary partnerships;

(b)other services provided by incorporated legal practices or legal practitioner partners or employees of multi-disciplinary partnerships in circumstances where a conflict of interest relating to the provision of legal services may arise.

(2)A regulation prevails over any inconsistent provision of the legal profession rules.

(3)A regulation may provide that a breach of a provision of a regulation is capable of constituting unsatisfactory professional conduct or professional misconduct—

(a)for an incorporated legal practice—by a legal practitioner director, or by the Australian legal practitioner responsible for the breach, or both; or

(b)for a multi-disciplinary partnership—by a legal practitioner partner of the multi-disciplinary partnership, or by the Australian legal practitioner responsible for the breach, or both.

162Main purpose of pt 2.8

The main purpose of this part is to encourage and facilitate the internationalisation of legal services and the legal services sector by providing a framework for regulation of the practice of foreign law in this jurisdiction by foreign lawyers as a recognised aspect of legal practice in this jurisdiction.

163Definitions for pt 2.8

In this part—

Australia includes the external Territories.

Australian law means law of the Commonwealth or of a jurisdiction.

foreign law practice means a partnership or corporate entity that is entitled to engage in legal practice in a foreign country.

foreign registration authority means an entity in a foreign country having the function, conferred by the law of the foreign country, of registering persons to engage in legal practice in the foreign country.

local registration certificate means a registration certificate given under this part.

overseas-registered foreign lawyer means an individual who is properly registered to engage in legal practice in a foreign country by the foreign registration authority for the country.

practise foreign law means doing work, or transacting business, in this jurisdiction concerning foreign law, being work or business of a kind that, if it concerned the law of this jurisdiction, would ordinarily be done or transacted by an Australian legal practitioner.

registered, when used in connection with a foreign country, means having all necessary licences, approvals, admissions, certificates or other forms of authorisation (including practising certificates) required under legislation for engaging in legal practice in that country.

164This part does not apply to Australian legal practitioners

(1)This part does not apply to an Australian legal practitioner, including an Australian legal practitioner who is also an overseas-registered foreign lawyer.

(2)Accordingly, nothing in this part requires or enables an Australian legal practitioner, including an Australian legal practitioner who is also an overseas-registered foreign lawyer, to be registered as a foreign lawyer under this Act in order to practise foreign law in this jurisdiction.

165Requirement for registration

(1)A person must not practise foreign law in this jurisdiction unless the person is—

(a)an Australian-registered foreign lawyer; or

(b)an Australian legal practitioner.

Maximum penalty—200 penalty units.

(2)However, a person does not contravene subsection (1) if the person is an overseas-registered foreign lawyer—

(a)who—

(i)practises foreign law in this jurisdiction for 1 or more periods that do not exceed in aggregate 90 days in any period of 12 months; or

(ii)is subject to a restriction imposed under the Migration Act 1958 (Cwlth) that has the effect of limiting the period during which work may be done, or business transacted, in Australia by the person; and

(b)who—

(i)does not keep an office for the purpose of practising foreign law in this jurisdiction; or

(ii)does not become a partner or director of a law practice.

166Entitlement of Australian-registered foreign lawyer to practise in this jurisdiction

An Australian-registered foreign lawyer is, subject to this Act, entitled to practise foreign law in this jurisdiction.

167Scope of practice

(1)An Australian-registered foreign lawyer may provide only the following legal services in this jurisdiction—

(a)doing work, or transacting business, concerning the law of a foreign country if the lawyer is registered by the foreign registration authority for the country;

(b)legal services, including appearances, in relation to an arbitration proceeding of a kind prescribed under a regulation;

(c)legal services, including appearances, in relation to a proceeding before a body other than a court, being a proceeding in which the body concerned is not required to apply the rules of evidence and in which knowledge of the foreign law of a country mentioned in paragraph (a) is essential;

(d)legal services for conciliation, mediation and other forms of consensual dispute resolution of a kind prescribed under a regulation.

(2)Nothing in this part authorises an Australian-registered foreign lawyer to appear in any court, except on the lawyer’s own behalf, or to practise Australian law in this jurisdiction.

(3)Despite subsection (2), an Australian-registered foreign lawyer may advise on the effect of an Australian law if—

(a)the giving of advice on Australian law is necessarily incidental to the practice of foreign law; and

(b)the advice is expressly based on advice given on the Australian law by an Australian legal practitioner who is not an employee of the foreign lawyer.

168Form of practice

(1)An Australian-registered foreign lawyer may, subject to any conditions attaching to the foreign lawyer’s registration, practise foreign law—

(a)on the foreign lawyer’s own account; or

(b)in partnership with 1 or more Australian-registered foreign lawyers or 1 or more Australian legal practitioners, or both, in circumstances where, if the Australian-registered foreign lawyer were an Australian legal practitioner, the partnership would be permitted under a law of this jurisdiction; or

(c)as a director or employee of an incorporated legal practice or a partner or employee of a multi-disciplinary partnership that is permitted by a law of this jurisdiction; or

(d)as an employee of an Australian legal practitioner or law firm in circumstances where, if the Australian-registered foreign lawyer were an Australian legal practitioner, the employment would be permitted under a law of this jurisdiction; or

(e)as an employee of an Australian-registered foreign lawyer.

(2)An affiliation mentioned in subsection (1)(b) to (e) does not entitle the Australian-registered foreign lawyer to practise Australian law in this jurisdiction.

169Application of Australian professional ethical and practice standards

(1)An Australian-registered foreign lawyer must not engage in any conduct in practising foreign law that would, if the conduct were engaged in by an Australian legal practitioner in practising Australian law in this jurisdiction, be capable of constituting unsatisfactory professional conduct or professional misconduct.

(2)Chapter 4 applies to a person who—

(a)is an Australian-registered foreign lawyer; or

(b)was an Australian-registered foreign lawyer when the relevant conduct allegedly happened, but is no longer an Australian-registered foreign lawyer (in which case chapter 4 applies as if the person were an Australian-registered foreign lawyer);

and so applies as if references in chapter 3 to an Australian legal practitioner were references to a person of that kind.

(3)A regulation may make provision in relation to the application, with or without changes, of the provisions of chapter 4 for the purposes of this section.

(4)Without limiting the matters that may be taken into account in deciding whether a person should be disciplined for a contravention of subsection (1), the following matters may be taken into account—

(a)whether the conduct of the person was consistent with the standard of professional conduct of the legal profession in any foreign country where the person is registered;

(b)whether the person contravened the subsection wilfully or without reasonable excuse.

(5)Without limiting another provision of this section or the orders that may be made under chapter 4 as applied by this section, the following orders may be made under that chapter as applied by this section—

(a)an order that a person’s registration under this Act as a foreign lawyer be cancelled;

(b)an order that a person’s registration under a corresponding law as a foreign lawyer be cancelled.

170Designation

(1)An Australian-registered foreign lawyer may use only the following designations—

(a)the lawyer’s own name;

(b)a title or business name that the lawyer is authorised by law to use in a foreign country where the lawyer is registered by a foreign registration authority;

(c)subject to this section, the name of a foreign law practice with which the lawyer is affiliated or associated whether as a partner, director, employee or otherwise;

(d)if the lawyer is a principal of any law practice in Australia whose principals include both 1 or more Australian-registered foreign lawyers and 1 or more Australian legal practitioners—a description of the practice that includes reference to both Australian legal practitioners and Australian-registered foreign lawyers.

Examples for paragraph (d)—

•solicitors and locally registered foreign lawyers

•Australian solicitors and US attorneys

(2)An Australian-registered foreign lawyer who is a principal of a foreign law practice may use the practice’s name in or in connection with practising foreign law in this jurisdiction only if—

(a)the lawyer indicates, on the lawyer’s letterhead or another document used in this jurisdiction to identify the lawyer as an overseas-registered foreign lawyer, that the foreign law practice practises only foreign law in this jurisdiction; and

(b)the lawyer has provided the law society with acceptable evidence that the lawyer is a principal of the foreign law practice.

(3)An Australian-registered foreign lawyer who is a principal of a foreign law practice may use the name of the practice as mentioned in this section whether or not other principals of the practice are Australian-registered foreign lawyers.

(4)This section does not authorise the use of a name or other designation that contravenes any requirements of the law of this jurisdiction concerning the use of business names or that is likely to lead to any confusion with the name of any established domestic law practice or foreign law practice in this jurisdiction.

171Letterhead and other identifying documents

(1)An Australian-registered foreign lawyer must indicate, in each public document distributed by the lawyer in connection with the lawyer’s practice of foreign law, the fact that the lawyer is an Australian-registered foreign lawyer and is restricted to the practice of foreign law.

(2)Subsection (1) is satisfied if the lawyer includes in the public document the words—

(a)‘registered foreign lawyer’ or ‘registered foreign practitioner’; and

(b)‘entitled to practise foreign law only’.

(3)An Australian-registered foreign lawyer may, but need not, include any or all of the following on any public document—

(a)an indication of all foreign countries in which the lawyer is registered to engage in legal practice;

(b)a description of himself or herself, and any law practice with which the lawyer is affiliated or associated, in any of the ways designated in section 170.

(4)In this section—

public document includes any business letter, statement of account, invoice, business card, and promotional and advertising material.

172Advertising

(1)An Australian-registered foreign lawyer is required to comply with any advertising restrictions imposed by the law society or by law on the legal practice engaged in by an Australian legal practitioner that are relevant to the practice of law in this jurisdiction.

(2)Without limiting subsection (1), an Australian-registered foreign lawyer must not advertise, or use any description on the lawyer’s letterhead or another document used in this jurisdiction to identify the lawyer as a lawyer, in any way that—

(a)might reasonably be regarded as—

(i)false, misleading or deceptive; or

(ii)suggesting that the Australian-registered foreign lawyer is an Australian legal practitioner; or

(b)contravenes a regulation.

173Foreign lawyer employing Australian legal practitioner

(1)An Australian-registered foreign lawyer may employ 1 or more Australian legal practitioners.

(2)Employment of an Australian legal practitioner does not entitle an Australian-registered foreign lawyer to practise Australian law in this jurisdiction.

(3)An Australian legal practitioner employed by an Australian-registered foreign lawyer may practise foreign law.

(4)An Australian legal practitioner employed by an Australian-registered foreign lawyer must not do either of the following—

(a)provide advice on Australian law to, or for use by, the Australian-registered foreign lawyer;

(b)otherwise practise Australian law in this jurisdiction in the course of that employment.

(5)Subsection (4) does not apply to an Australian legal practitioner employed by a law firm, a partner of which is an Australian-registered foreign lawyer, if at least 1 other partner is an Australian legal practitioner.

(6)Any period of employment of an Australian legal practitioner by an Australian-registered foreign lawyer can not be used to satisfy a requirement imposed by a condition on a local practising certificate to complete a period of supervised legal practice.

174Trust money and trust accounts

(1)Subject to this section, the provisions of part 3.3 and any other provisions under this Act relating to requirements about trust money and trust accounts apply to Australian-registered foreign lawyers in the same way as they apply to law practices and Australian legal practitioners.

(2)A regulation may make provision in relation to the application, with or without changes, of the provisions of this Act relating to trust money and trust accounts for the purposes of this section.

(3)In this section—

money includes money other than in this jurisdiction.

175Professional indemnity insurance

(1)An Australian-registered foreign lawyer must, at all times while practising foreign law in this jurisdiction, comply with 1 of the following—

(a)the foreign lawyer must have professional indemnity insurance that conforms with the requirements for professional indemnity insurance applicable for Australian legal practitioners in any jurisdiction;

(b)if the foreign lawyer does not have professional indemnity insurance that complies with paragraph (a), the foreign lawyer—

(i)must have professional indemnity insurance that covers the practice of foreign law in this jurisdiction and that complies with the relevant requirements of a foreign law or foreign registration authority; and

(ii)if the insurance is for less than $1.5m (inclusive of defence costs), must provide a disclosure statement to each client disclosing the level of cover;

(c)if the foreign lawyer does not have professional indemnity insurance that complies with paragraph (a) or (b), the foreign lawyer must provide a disclosure statement to each client stating that the lawyer does not have complying professional indemnity insurance.

(2)A disclosure statement must be made in writing before, or as soon as practicable after, the foreign lawyer is retained in the matter.

(3)A disclosure statement provided to a person before the foreign lawyer is retained in a matter is taken to be provided to the person as a client for the purposes of this section.

(4)A disclosure statement is not valid unless it is given under, and complies with, any applicable requirements of a regulation.

s 175 amd 2010 No. 42 s 138 sch

176Fidelity cover

A regulation may provide that provisions of part 3.6 apply to prescribed classes of Australian-registered foreign lawyers and so apply with any changes stated in the regulation.

177Local registration of foreign lawyers

Overseas-registered foreign lawyers may be registered as foreign lawyers under this Act.

178Duration of registration

(1)Registration as a foreign lawyer granted under this Act is in force from the day stated in the local registration certificate until the end of the financial year in which it is granted, unless the registration is sooner suspended or cancelled.

(2)Registration as a foreign lawyer renewed under this Act is in force until the end of the financial year following its previous period of currency, unless the registration is sooner suspended or cancelled.

(3)If an application for the renewal of registration as a foreign lawyer has not been decided by the following 1 July, the registration—

(a)continues in force on and from that 1 July until the law society renews or refuses to renew the registration or the holder withdraws the application for renewal, unless the registration is sooner suspended or cancelled; and

(b)if renewed, is taken to have been renewed on and from that 1 July.

179Local registered foreign lawyer is not officer of Supreme Court

A locally registered foreign lawyer is not an officer of the Supreme Court.

180Application for grant or renewal of registration

An overseas-registered foreign lawyer may apply to the law society for the grant or renewal of registration as a foreign lawyer under this Act.

181Manner of application

(1)An application for the grant or renewal of registration as a foreign lawyer must be—

(a)made in the law society approved form; and

(b)accompanied by the fees prescribed under a regulation.

(2)Different fees may be set according to different factors decided by the law society.

(3)The fees are not to be greater than the maximum fees for a local practising certificate.

(4)The law society may also require the applicant to pay any reasonable costs and expenses incurred by it in considering the application, including, for example, costs and expenses of making inquiries and obtaining information or documents about whether the applicant meets the criteria for registration.

(5)The fees and costs must not include any component for compulsory membership of any professional association.

(6)The law society approved form may require the applicant to disclose—

(a)matters that may affect the law society’s consideration of the application for the grant or renewal of registration; and

(b)particulars of any offences for which the applicant has been convicted in Australia or a foreign country, whether before or after the commencement of this section.

(7)The law society approved form may indicate that convictions of a particular kind need not be disclosed for the purposes of the current application.

(8)The law society approved form may indicate that stated kinds of matters or particulars previously disclosed in a particular way need not be disclosed for the purposes of the current application.

182Requirements regarding applications for the grant or renewal of registration

(1)An application for the grant of registration as a foreign lawyer under this Act must state the applicant’s educational and professional qualifications.

(2)An application for the grant or renewal of registration must—

(a)state that the applicant is registered to engage in legal practice by 1 or more stated foreign registration authorities in 1 or more foreign countries; and

(b)state that the applicant is not an Australian legal practitioner; and

(c)state that the applicant is not the subject of any disciplinary proceeding in Australia or a foreign country, including any preliminary investigations or action that might lead to a disciplinary proceeding in his or her capacity as—

(i)an overseas-registered foreign lawyer; or

(ii)an Australian-registered foreign lawyer; or

(iii)an Australian lawyer; and

(d)state whether the applicant has been convicted of an offence in Australia or a foreign country, and if so—

(i)the nature of the offence; and

(ii)how long ago the offence was committed; and

(iii)the applicant’s age when the offence was committed; and

(e)state that the applicant’s registration is not cancelled or currently suspended in any place as a result of any disciplinary action in Australia or a foreign country; and

(f)state—

(i)that the applicant is not otherwise personally prohibited from engaging in legal practice in any place or bound by any undertaking not to engage in legal practice in any place; and

(ii)whether or not the applicant is subject to any special conditions in engaging in legal practice in any place;

      as a result of any criminal, civil or disciplinary proceeding in Australia or a foreign country; and

(g)state any special conditions imposed in Australia or a foreign country as a restriction on legal practice engaged in by the applicant or any undertaking given by the applicant restricting the applicant’s practice of law; and

(h)give consent to the making of inquiries of, and the exchange of information with, any foreign registration authorities that the law society considers appropriate regarding the applicant’s activities in engaging in legal practice in the places concerned or otherwise regarding matters relevant to the application; and

(i)state which provisions under section 175(1) the applicant proposes to rely on and be accompanied by supporting proof of the relevant matters; and

(j)provide the information, or be accompanied by the other information or documents, or both, that is stated in the application form or in material accompanying the application form.

(3)The application must, if the law society so requires, be accompanied by an original instrument, or a copy of an original instrument, from each foreign registration authority stated in the application that—

(a)verifies the applicant’s educational and professional qualifications; and

(b)verifies the applicant’s registration by the authority to engage in legal practice in the foreign country concerned and the date of registration; and

(c)describes anything done by the applicant in engaging in legal practice in that foreign country of which the authority is aware and that the authority believes has had or is likely to have had an adverse effect on the applicant’s professional standing within the legal profession of that place.

(4)The applicant must, if the law society so requires, certify in the application that the accompanying instrument is the original or a complete and accurate copy of the original.

(5)The law society may require the applicant to verify the statements in the application by statutory declaration or by other proof acceptable to the law society.

(6)If the accompanying instrument is not in English, it must be accompanied by a translation in English that is authenticated or certified to the satisfaction of the law society.

183Grant or renewal of local registration

(1)The law society must consider an application that has been made for the grant or renewal of registration as a foreign lawyer and may—

(a)grant or refuse to grant the registration; or

(b)renew or refuse to renew the registration.

(2)The law society may, when granting or renewing registration, impose conditions as mentioned in section 203.

(3)If the law society grants or renews the registration, the law society must give the applicant a registration certificate or a notice of renewal.

(4)If the law society decides not to grant or renew the registration, or imposes a condition on the registration that the applicant has not agreed to as part of the grant or renewal of the registration—

(a)the law society must give the person an information notice about the law society’s decision; and

(b)the person may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

(5)A notice of renewal may be in the form of a new registration certificate or another form the law society considers appropriate.

s 183 amd 2009 No. 24 s 1495

184Requirement to grant or renew registration if criteria satisfied

(1)The law society must grant an application for registration as a foreign lawyer if the law society—

(a)is satisfied the applicant is registered to engage in legal practice in 1 or more foreign countries and is not an Australian legal practitioner; and

(b)considers an effective system exists for regulating engaging in legal practice in 1 or more of the foreign countries; and

(c)considers the applicant is not, as a result of a criminal, civil or disciplinary proceeding, subject to—

(i)any special conditions in engaging in legal practice in any of the foreign countries; and

(ii)any undertakings concerning engaging in legal practice in any of the foreign countries;

that would make it inappropriate to register the person; and

(d)is satisfied the applicant demonstrates an intention to commence practising foreign law in this jurisdiction within a reasonable period if registration were granted;

unless the law society refuses the application under this part.

(2)The law society must grant an application for renewal of an applicant’s registration, unless the law society refuses renewal under this part.

(3)Residence or domicile in this jurisdiction is not to be a prerequisite for or a factor in entitlement to the grant or renewal of registration.

185Refusal to grant or renew registration

(1)The law society may refuse to consider an application that purports to be an application if it is not made under this Act.

(2)The law society may refuse to grant or renew an applicant’s registration if—

(a)the application is not accompanied by, or does not contain, the information required under this part; or

(b)the applicant has contravened this Act or a corresponding law; or

(c)the applicant has contravened an order of a disciplinary body or a corresponding disciplinary body, including but not limited to an order to pay any fine or costs; or

(d)the applicant has contravened an order of a regulatory authority of any jurisdiction to pay any fine or costs; or

(e)the applicant has failed to comply with a requirement under this Act to pay a contribution to, or levy for, the fidelity fund; or

(f)the applicant has contravened a requirement under this Act about professional indemnity insurance; or

(g)the applicant has failed to pay any expenses of external intervention payable under this Act; or

(h)the applicant’s foreign legal practice is in receivership (however described).

(3)The law society may refuse to grant or renew an applicant’s registration if the regulatory authority of another jurisdiction has under a corresponding law—

(a)refused to grant or renew the applicant’s registration; or

(b)suspended or cancelled the applicant’s registration.

(4)The law society may refuse to grant registration if satisfied that the applicant is not a fit and proper person to be registered after considering—

(a)the nature of any offence for which the applicant has been convicted in Australia or a foreign country, whether before or after the commencement of this section; and

(b)how long ago the offence was committed; and

(c)the person’s age when the offence was committed.

(5)The law society may refuse to renew registration if satisfied that the applicant is not a fit and proper person to continue to be registered after considering—

(a)the nature of any offence for which the applicant has been convicted in Australia or a foreign country, whether before or after the commencement of this section, other than an offence disclosed in a previous application to the law society; and

(b)how long ago the offence was committed; and

(c)the person’s age when the offence was committed.

(6)The law society may refuse to grant or renew registration on any ground on which registration could be suspended or cancelled.

(7)If the law society refuses to grant or renew an application for registration as a locally registered foreign lawyer under this section—

(a)the law society must give the person an information notice about the law society’s decision; and

(b)the person may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

(8)Nothing in this section affects the operation of division 7.

s 185 amd 2009 No. 24 s 1496

186Application of pt 2.8, div 6

This part does not apply to a matter mentioned in division 7.

187Grounds for amending, suspending or cancelling registration

(1)Each of the following is a ground for amending, suspending or cancelling a person’s registration as a foreign lawyer—

(a)the registration was obtained because of incorrect or misleading information;

(b)the person fails to comply with a requirement of this part;

(c)the person fails to comply with a condition imposed on the person’s registration;

(d)the person becomes the subject of disciplinary proceedings, including any preliminary investigations or action that might lead to disciplinary proceedings, in Australia or a foreign country in his or her capacity as—

(i)an overseas-registered foreign lawyer; or

(ii)an Australian-registered foreign lawyer; or

(iii)an Australian lawyer;

(e)the person has been convicted of an offence in Australia or a foreign country;

(f)the person’s registration is cancelled or currently suspended in any place as a result of any disciplinary action in Australia or a foreign country;

(g)the person does not meet the requirements of section 175;

(h)another ground the law society considers sufficient.

(2)Subsection (1) does not limit the grounds on which conditions may be imposed on registration as a foreign lawyer under section 203.

188Amending, suspending or cancelling registration

(1)If the law society believes a ground exists to amend, suspend or cancel a person’s registration in this jurisdiction as a foreign lawyer (the proposed action), the law society must give the person a notice (the show cause notice) that—

(a)states the proposed action and—

(i)if the proposed action is to amend the person’s registration—the proposed amendment; or

(ii)if the proposed action is to suspend the person’s registration—the proposed suspension period; and

(b)states the grounds for proposing to take the proposed action; and

(c)states an outline of the facts and circumstances that form the basis for the law society’s belief; and

(d)invites the person to make written representations to the law society, within a stated time of not less than 28 days, as to why the proposed action should not be taken.

(2)If, after considering all written representations made within the stated time or, in its discretion, after the stated time, the law society still believes a ground exists to take the proposed action, the law society may—

(a)if the show cause notice stated the proposed action was to amend the person’s registration—amend the registration in the way stated, or in another way the law society considers appropriate because of the written representations; or

(b)if the show cause notice stated the proposed action was to suspend the person’s registration for a stated period—suspend the registration for a period no longer than the stated period; or

(c)if the show cause notice stated the proposed action was to cancel the person’s registration—

(i)cancel the registration; or

(ii)suspend the registration for a period; or

(iii)amend the registration in a less onerous way the law society considers appropriate because of the written representations.

(3)If the law society decides to amend, suspend or cancel the person’s registration—

(a)the law society must give the person an information notice about the law society’s decision; and

(b)the person may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

(4)In this section—

amend, in relation to registration, means amend the registration under section 203 during its currency, otherwise than at the request of the foreign lawyer concerned.

s 188 amd 2009 No. 24 s 1497

189Operation of amendment, suspension or cancellation of registration

(1)This section applies if a decision is made to amend, suspend or cancel a person’s registration under section 188.

(2)Subject to subsections (3) and (4), the amendment, suspension or cancellation of the person’s registration takes effect on the later of the following—

(a)the day the information notice about the decision is given to the person;

(b)the day stated in the information notice.

(3)If the person’s registration is amended, suspended or cancelled because the person has been convicted of an offence—

(a)the tribunal may, on application by the person as provided under the QCAT Act, order that the amendment, suspension or cancellation be stayed until—

(i)the end of the time to appeal against the conviction; or

(ii)if an appeal is made against the conviction—the appeal is finally decided, lapses or otherwise ends; and

(b)the amendment, suspension or cancellation does not have effect during any period for which the stay is in force.

(4)If the person’s registration is amended, suspended or cancelled because the person has been convicted of an offence and the conviction is quashed—

(a)the amendment or suspension ceases to have effect when the conviction is quashed; or

(b)the cancellation ceases to have effect when the conviction is quashed and the person’s registration is restored as if it had merely been suspended.

s 189 amd 2009 No. 24 s 1498

190Other ways of amending or cancelling registration

(1)This section applies if—

(a)a locally registered foreign lawyer requests the law society to amend or cancel the person’s registration and the law society proposes to give effect to the request; or

(b)the law society proposes to amend a locally registered foreign lawyer’s registration only for a formal or clerical reason or in another way that does not adversely affect the person’s interests.

(2)The law society may amend or cancel the registration as mentioned in subsection (1) by written notice given to the person.

(3)Section 188 does not apply to an amendment or cancellation under this section.

191Relationship of this division with ch 4

Nothing in this division prevents a complaint being made or an investigation matter being started under chapter 4 about a matter to which this division relates.

192Applicant for local registration—show cause event

(1)This section applies if—

(a)a person is applying for registration as a foreign lawyer under this Act; and

(b)a show cause event in relation to the person happened, whether before or after the commencement of this section, after the person first became an overseas-registered foreign lawyer.

(2)As part of the application, the applicant must give the law society a written statement, as required under a regulation—

(a)about the show cause event; and

(b)explaining why, despite the event, the applicant is a fit and proper person to be a locally registered foreign lawyer.

(3)However, the applicant need not give a statement under subsection (2) if the applicant has previously given the law society a statement under this section, or a notice and statement under section 193, for the event explaining why, despite the event, the applicant is a fit and proper person to be a locally registered foreign lawyer.

193Locally registered foreign lawyer—show cause event

(1)This section applies to a show cause event that happens in relation to a locally registered foreign lawyer.

(2)The locally registered foreign lawyer must give the law society both of the following—

(a)within 7 days after the day of the event—notice, in the law society approved form, that the event happened;

(b)within 28 days after the day of the event—a written statement explaining why, despite the event, the person considers himself or herself to be a fit and proper person to be a locally registered foreign lawyer.

(3)However, if a written statement is provided after the 28 days mentioned in subsection (2)(b), the law society may accept the statement and take it into consideration.

194Refusal, amendment, suspension or cancellation of local registration—failure to show cause

(1)The law society may refuse to grant or renew, or may amend, suspend or cancel, local registration if the applicant for registration or the locally registered foreign lawyer—

(a)is required by section 192 or 193 to give a written statement relating to a matter to the law society and the applicant or foreign lawyer has not done so; or

(b)has given a written statement under section 192 or 193 but the law society does not consider the applicant or foreign lawyer has shown in the statement that, despite the show cause event concerned, he or she is a fit and proper person to be a locally registered foreign lawyer.

(2)For subsection (1)(b), a written statement accepted by the law society as mentioned in section 193(3) is taken to have been given under section 193.

(3)If the law society decides to refuse to grant or renew an application for local registration, or to amend, suspend or cancel the registration of, a locally registered foreign lawyer—

(a)the law society must give the person an information notice about the decision; and

(b)the person may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

s 194 amd 2009 No. 24 s 1499

195Restriction on making further applications

(1)If the law society decides under this division to cancel a person’s registration, the law society may also decide that the person is not entitled to apply for registration under this part for a stated period of not more than 5 years.

(2)A person in relation to whom a decision has been made under this section, or under a provision of a corresponding law that corresponds to this section, is not entitled to apply for registration under this part during the period stated in the decision.

(3)If the law society makes a decision under this section—

(a)the law society must give the person an information notice about the decision; and

(b)the person may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

s 195 amd 2009 No. 24 s 1500

196Relationship of this division with pt 4.6 and ch 6

(1)The law society has and may exercise powers under part 4.6 and chapter 6, in relation to a matter under this division, as if the matter were the subject of a complaint under chapter 4.

(2)Accordingly, the provisions of part 4.6 and chapter 6, apply in relation to a matter under this division, and so apply with any necessary changes.

(3)Nothing in this division prevents a complaint being made or an investigation matter being started under chapter 4 about a matter to which this part relates.

197Immediate suspension of registration

(1)This section applies, despite sections 188 and 189, if the law society considers it necessary in the public interest to immediately suspend a person’s registration as a foreign lawyer.

(2)The law society may immediately suspend the person’s registration for any of the following reasons, whether they happened before or after the commencement of this section—

(a)the locally registered foreign lawyer has become an insolvent under administration;

(b)the locally registered foreign lawyer has been convicted of a serious offence or tax offence;

(c)a ground exists on which the certificate could be suspended or cancelled under section 188.

(3)The law society suspends the person’s registration by giving an information notice to the person about the law society’s decision to suspend.

(4)The information notice must also state that the person may make written representations to the law society about the suspension.

(5)Subject to subsection (8), the person’s registration continues to be suspended until the earlier of the following—

(a)the time at which the law society informs the person of the law society’s decision by information notice under section 188;

(b)the end of 56 days after the information notice is given to the person under this section.

(6)If the person makes written representations to the law society about the suspension, the law society must consider the written representations.

(7)The law society may revoke the suspension at any time, whether or not because of written representations made to it by the person.

(8)Also—

(a)the law society may apply, as provided under the QCAT Act, to the tribunal for an order extending the period of the suspension; and

(b)if the tribunal considers it appropriate and the suspension has not ended under subsection (5), the tribunal may extend the period of the suspension for a further period of not more than a further 56 days after the date of the tribunal’s order.

(9)The law society must give the person written notice about its decision to apply under subsection (8) for an order extending the period of the suspension.

s 197 amd 2009 No. 24 s 1501

198Surrender of local registration certificate and cancellation of registration

(1)A person registered as a foreign lawyer under this part may surrender the local registration certificate or notice of renewal to the law society.

(2)If a local registration certificate or notice of renewal is surrendered, the law society may cancel the registration.

199Automatic cancellation of registration on grant of practising certificate

A person’s registration under this part is taken to be cancelled if the person becomes an Australian legal practitioner.

200Suspension or cancellation of registration not to affect disciplinary processes

The suspension or cancellation of a person’s registration as a foreign lawyer under this part does not affect any disciplinary processes in relation to matters happening before the suspension or cancellation.

201Return of local registration certificate on amendment, suspension or cancellation of registration

(1)This section applies if a person’s registration as a foreign lawyer under this part is amended, suspended or cancelled.

(2)The law society may—

(a)give the person a notice requiring the person to return the registration certificate or notice of renewal to the law society in the way stated in the notice within a stated period of not less than 14 days; or

(b)include in an information notice, that the law society must give to the person under this part, further notice requiring the person to return the registration certificate or notice of renewal to the law society in the way stated in the notice within a stated period of not less than 14 days.

(3)The person must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(4)The law society must return the registration certificate or notice of renewal to the person—

(a)if the certificate or notice is amended—after amending it; or

(b)if the certificate or notice is suspended and is still current at the end of the suspension period—at the end of the suspension period.

202Conditions generally

The registration of a person as a foreign lawyer under this part is subject to the following—

(a)any conditions imposed by the law society;

(b)any statutory conditions imposed under this Act or another Act;

(c)any conditions imposed under the legal profession rules;

(d)any conditions imposed under chapter 4 or under provisions of a corresponding law that correspond to chapter 4.

203Conditions imposed by law society

(1)The law society may impose conditions on a person’s registration as a foreign lawyer—

(a)when it is granted or renewed; or

(b)at any time during its currency.

(2)A condition imposed under this section—

(a)may be about any matter in relation to which a condition could be imposed on a local practising certificate or any other matter agreed to by the foreign lawyer; and

(b)must be reasonable and relevant.

(3)The law society must not impose a condition under subsection (2)(a) that is more onerous than a condition that it would impose on a local practising certificate of a local legal practitioner in the same or similar circumstances.

(4)The law society may vary or revoke a condition imposed by it under this section.

204Statutory condition regarding notification of offence

(1)It is a statutory condition of a registration as a foreign lawyer that the lawyer must give notice, in a law society approved form, to the law society if the lawyer is—

(a)convicted of an offence that would have to be disclosed in relation to an application for registration as a foreign lawyer; or

(b)charged with a serious offence.

(2)The notice must be given to the law society within 7 days after the conviction or the day the lawyer is charged.

(3)A regulation may state the person to whom, or the address to which, the notice is to be given.

(4)This section does not apply to an offence to which division 7 applies.

205Conditions imposed by regulation

A regulation may make provision in relation to an Australian-registered foreign lawyer, including, for example—

(a)imposing conditions on the registration of persons as foreign lawyers or any class of foreign lawyers; or

(b)authorising conditions to be imposed on the registration of persons as foreign lawyers or any class of foreign lawyers.

206Compliance with conditions

A locally registered foreign lawyer must not contravene a condition to which the person’s registration is subject.

Maximum penalty—50 penalty units.

207Extent of entitlement of interstate-registered foreign lawyer to practise in this jurisdiction

(1)This part does not authorise an interstate-registered foreign lawyer to practise foreign law in this jurisdiction to a greater extent than a locally registered foreign lawyer could be authorised under a local registration certificate.

(2)Also, an interstate-registered foreign lawyer’s right to practise foreign law in this jurisdiction—

(a)is subject to any conditions imposed by the law society under section 208, and any conditions imposed under the legal profession rules as mentioned under that section; and

(b)is to the greatest extent and with all necessary changes—

(i)the same as the interstate-registered foreign lawyer’s right to practise foreign law in the lawyer’s home jurisdiction; and

(ii)subject to any condition on the interstate-registered foreign lawyer’s right to practise foreign law in that jurisdiction.

(3)If there is an inconsistency between conditions mentioned in subsection (2)(a) and conditions mentioned in subsection (2)(b), the conditions that the law society believes are the more onerous prevail to the extent of the inconsistency.

(4)An interstate-registered foreign lawyer must not practise foreign law in this jurisdiction in a way that is not authorised by this Act or in contravention of any condition mentioned in this section.

208Additional conditions on practice of interstate-registered foreign lawyers

(1)An interstate-registered foreign lawyer’s right to practise foreign law in this jurisdiction is subject to any condition imposed under this Act.

(2)Without limiting subsection (1), the law society may impose any condition on the interstate-registered foreign lawyer’s practice of foreign law in this jurisdiction that it may impose under this Act in relation to a locally registered foreign lawyer.

(3)Conditions imposed under a regulation, the legal profession rules or subsection (2) must not be more onerous than conditions applying to locally registered foreign lawyers in the same or similar circumstances.

(4)If the law society imposes a condition under subsection (1)—

(a)the law society must give the interstate-registered foreign lawyer an information notice about the law society’s decision; and

(b)the person may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.

s 208 amd 2009 No. 24 s 1502

209Consideration and investigation of applicants and locally registered foreign lawyers

(1)To help it consider whether or not to grant, renew, amend, suspend or cancel registration under this part, the law society may, by notice to the applicant or a locally registered foreign lawyer, require the applicant or locally registered foreign lawyer—

(a)to give it stated documents or information; or

(b)to cooperate with any inquiries that it considers appropriate.

(2)A failure to comply with a notice under subsection (1) by the date stated in the notice and in the way required by the notice is a ground for making an adverse decision in relation to the action being considered by the law society.

210Register of locally registered foreign lawyers

(1)The law society must keep a register of the names of locally registered foreign lawyers.

(2)The register must—

(a)state any conditions imposed by it on a foreign lawyer’s registration; and

(b)otherwise include the particulars prescribed under a regulation.

(3)The register may be kept in the way the law society decides.

(4)The law society must ensure that an up-to-date version of the register is available, without charge, for public inspection—

(a)at the law society’s principal place of business during normal working hours; or

(b)on the law society’s internet site or an internet site identified on the law society’s internet site.

211Publication of information about locally registered foreign lawyers

The law society may publish, in circumstances that it considers appropriate, the names of persons registered by it as foreign lawyers under this part and any relevant particulars concerning those persons.

212Supreme Court orders about conditions

(1)The law society may apply to the Supreme Court for an order that an Australian-registered foreign lawyer not contravene a condition imposed under this part.

(2)The Supreme Court may make any order it considers appropriate relating to the application.

213Exemption by law society

(1)The law society may exempt an Australian-registered foreign lawyer, or class of Australian-registered foreign lawyers, from compliance with a stated provision under this Act that would otherwise apply to the Australian-registered foreign lawyer or class of Australian-registered foreign lawyers.

(2)An exemption may be granted unconditionally or subject to conditions stated in writing.

(3)The law society may revoke or vary a condition imposed under this section or impose new conditions.

214Membership of professional association

(1)An Australian-registered foreign lawyer is not required to join any professional association.

(2)However, subsection (1) does not prevent an Australian-registered foreign lawyer joining a professional association if the person is eligible to do so.

215Refund of fees

(1)A regulation may provide for the refund of a portion of a fee paid in relation to registration as a foreign lawyer if the registration is suspended or cancelled during its currency.

(2)Without limiting subsection (1), a regulation may state—

(a)the circumstances in which a refund is to be made; and

(b)the amount of the refund or the way in which the amount of the refund is to be decided.

216Simplified outline of ch 3

(1)This chapter contains provisions regulating various aspects of the legal profession with the aim of ensuring that law practices and lawyers operate effectively in the interests of justice, their clients and the public interest.

(2)The following is a general outline of the contents of this chapter—

(a)part 3.2 provides for the making of legal profession rules to regulate persons who may engage in legal practice, or the practice of foreign law, in this jurisdiction and for the regulatory bodies to provide for administrative matters in administration rules (including indemnity rules);

(b)part 3.3 regulates the receipt, handling of and accounting for trust money by law practices;

(c)part 3.4 sets out the requirements for law practices for disclosures to clients regarding legal costs, the making and setting aside of costs agreements in relation to legal services, the billing of costs for legal services and the assessment of legal costs;

(d)part 3.5 requires particular lawyers and foreign lawyers to obtain professional indemnity insurance covering their legal practice in this jurisdiction;

(e)part 3.6 establishes a system for compensation for defaults by law practices arising from acts or omissions of associates.

(3)Subsection (2) is intended only as a guide to readers as to the general scheme of this chapter.

217Main purposes of pt 3.2

The main purposes of this part are as follows—

(a)to promote the maintenance of high standards of professional conduct by providing for legal profession rules to regulate persons who may engage in legal practice, or the practice of foreign law, in this jurisdiction;

(b)to allow each regulatory authority to provide for administrative matters by providing for administration rules.

218Definitions for pt 3.2

In this part—

barristers rules means rules made by the bar association under this part.

legal profession rules means solicitors rules or barristers rules.

solicitors rules means rules made by the law society under this part.

s 218 amd 2010 No. 42 s 138 sch

219Rules for Australian legal practitioners engaged in practice as solicitors and others

(1)The law society may make rules about legal practice in this jurisdiction engaged in by Australian legal practitioners as solicitors.

(2)The law society may make rules about engaging in legal practice in this jurisdiction as an Australian-registered foreign lawyer.

220Rules for Australian legal practitioners engaged in practice in the manner of barristers

(1)The bar association may make rules about legal practice in this jurisdiction engaged in by Australian legal practitioners as barristers.

(2)The barristers rules may provide for a barrister to be prohibited from any or all of the following—

(a)engaging in legal practice—

(i)otherwise than as a sole practitioner; or

(ii)in partnership with any person; or

(iii)as the employee of an entity;

(b)holding office as a legal practitioner director of an incorporated legal practice;

(c)being a legal practitioner partner in a multi-disciplinary partnership.

221Legal profession rules may provide for application to government legal officers

Legal profession rules may provide that the rules apply to government legal officers.

222Subject matter of legal profession rules

(1)Legal profession rules may make provision about any aspect of legal practice, including standards of conduct expected of the following persons to whom they apply—

(a)for solicitors rules—Australian legal practitioners, government legal officers and Australian-registered foreign lawyers;

(b)for barristers rules—Australian legal practitioners and government legal officers.

(2)The power to make legal profession rules is not limited to matters for which this Act specifically authorises the making of legal profession rules or administration rules.

223Public notice of proposed legal profession rules

(1)A regulatory authority that, after the commencement of this section, proposes to make a legal profession rule under this division must ensure that a notice is published in a daily newspaper circulating in this jurisdiction—

(a)explaining the object of the proposed rule; and

(b)advising where or how a copy of the proposed rule may be accessed, obtained or inspected; and

(c)inviting comments and submissions within a stated period of not less than 21 days from the date of first publication of the notice.

(2)The regulatory authority must ensure that a copy of the proposed rule is given to the Minister and the commissioner before the notice is published.

(3)The regulatory authority must—

(a)ensure that any comments and submissions received within the period stated in the notice for making comments and submissions are appropriately considered; and

(b)give advice to the Minister about the comments and submissions and, if requested, give copies of the submission to the Minister.

(4)After the end of the period stated in the notice for making comments and submissions, the regulatory authority may make legal profession rules.

(5)However, subsections (1) to (4) do not apply if the Minister is consulted about the proposal and decides, by written notice to the regulatory authority, that publication is not warranted because of the urgent nature, or minor or technical nature, of the proposed legal profession rules.

224Rules

(1)The law society may make legal profession rules in relation to the following matters—

(a)the provision of legal services by or in connection with incorporated legal practices or multi-disciplinary partnerships, and in particular the provision of legal services by—

(i)officers or employees of incorporated legal practices; or

(ii)partners or employees of multi-disciplinary partnerships;

(b)the provision of services that are not legal services by or in connection with incorporated legal practices or multi-disciplinary partnerships, but only if the provision of those services by—

(i)officers or employees of incorporated legal practices; or

(ii)partners or employees of multi-disciplinary partnerships;

may give rise to a conflict of interest relating to the provision of legal services.

(2)Without limiting subsection (1), legal profession rules may be made in relation to professional obligations relating to legal services provided by or in connection with incorporated legal practices or multi-disciplinary partnerships.

(3)However, the legal profession rules can not—

(a)regulate any services that an incorporated legal practice may provide or conduct (other than the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services); or

(b)regulate or prohibit the conduct of officers or employees of an incorporated legal practice (other than in connection with the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services); or

(c)regulate any services that a multi-disciplinary partnership or partners or employees of a multi-disciplinary partnership may provide or conduct (other than the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services); or

(d)regulate or prohibit the conduct of partners or employees of a multi-disciplinary partnership (other than in connection with the provision of legal services or other services that may give rise to a conflict of interest relating to the provision of legal services).

(4)The power to make rules is not limited to matters for which this Act specifically authorises the making of legal profession rules or administration rules.

225Minister to give notice of solicitors and barristers rules

(1)The following have no effect unless the Minister notifies the making of them—

(a)solicitors rules;

(b)barristers rules.

(2)A notice under subsection (1) is subordinate legislation.

s 225 amd 2010 No. 42 s 138 sch

226Monitoring role of committee

(1)The committee may make a recommendation to the Minister in relation to legal profession rules.

(2)For subsection (1), the committee is—

(a)to monitor the adequacy of legal profession rules; and

(b)to consider any particular matter about which the Minister asks the committee to make a recommendation for legal profession rules.

227Binding nature of legal profession rules

(1)Legal profession rules are binding on Australian legal practitioners, Australian-registered foreign lawyers and government legal officers to whom they apply.

(2)Failure to comply with legal profession rules is capable of constituting unsatisfactory professional conduct or professional misconduct.

228Legal profession rules may prohibit practices relating to mortgage financing

(1)Legal professional rules may prohibit Australian legal practitioners and Australian-registered foreign lawyers from engaging in mortgage financing and activities and practices relating to mortgage financing.

(2)Subsection (1) applies despite anything to the contrary in this Act, including, for example, section 224.

229Relationship of legal profession rules to this Act and regulation

(1)A regulation may be made in relation to any matter for which legal profession rules may be made.

(2)A provision of legal profession rules does not have effect to the extent that it is inconsistent with this Act or a regulation.

230Availability of rules

A regulatory authority must ensure that an up-to-date version of the legal profession rules made by it, and about which notice has been given under section 225, is available, without charge, for public inspection—

(a)at the authority’s principal place of business during normal working hours; or

(b)on the authority’s internet site or on an internet site identified on the authority’s internet site.

231Rules other than legal profession rules

(1)To the extent a regulatory authority does not have power under another Act or otherwise to make rules for a matter mentioned in subsection (2) or (3) and no provision under another Act prevents rules being made about the matter, the regulatory authority may make rules about the matter that apply to—

(a)Australian legal practitioners, including interstate legal practitioners practising in this jurisdiction; and

(b)if the regulatory authority is the law society—an incorporated legal practice, a multi-disciplinary partnership or Australian-registered foreign lawyers.

(2)The matters about which a regulatory authority may make rules are as follows—

(a)types of practising certificates that the regulatory authority may grant or renew;

(b)the courses of study that an Australian lawyer is required to complete for different types of practising certificates, including, for example—

(i)a practising certificate by the law society for unsupervised legal practice or for practice as a principal; or

(ii)a practising certificate by the bar association for practice as a barrister;

(c)matters relating to the courses of study mentioned in paragraph (b) including enrolment procedures, fees payable, minimum course attendance requirements, examinations, assessments and procedures for the review of assessments, and appeals against assessments;

(d)exempting, indefinitely or for a particular period, a person who applies for a type of practising certificate from the requirement to have completed a course of study for the type, as mentioned in paragraph (b), given the length and nature of the person’s experience in legal practice;

(e)requiring a local legal practitioner to undertake education or training for the purpose of continuing professional development as a condition for the grant or renewal of a type of practising certificate;

(f)the nature of, and the standards for, education or training required under paragraph (e), and by whom and when it may be provided;

(g)exempting, in whole or part, a local legal practitioner from a requirement to undertake education or training required under paragraph (e);

(h)exempting a person who applies for the grant or renewal of a practising certificate from requirements under section 56 to complete supervised legal practice or reducing the required period of supervised legal practice;

(i)approved forms to be used for an application to the regulatory authority and the way an approved form is to be given to the authority, including the time for giving the form to it;

(j)setting fees, contributions and levies, other than levies imposed by the law society as mentioned in section 369, the payment of the fees, contributions and levies including the levies imposed by the law society under that section, and other matters relating to payments, including the timing and way of making payments;

(k)other matters that may be approved by the regulatory authority under this Act;

(l)matters relating to indemnity against loss arising from claims in relation to every description of civil liability incurred by any of the following—

(i)a local legal practitioner in connection with the practitioner’s practice or in connection with any trust of which the practitioner is or was a trustee;

(ii)a former local legal practitioner, including a person who was a solicitor at any time before the commencement of this section, in connection with the practitioner’s practice or in connection with any trust of which the practitioner is or was a trustee;

(iii)an incorporated legal practice in connection with it engaging in legal practice in this jurisdiction or in connection with any trust of which it, or 1 of its associates, is or was a trustee;

(iv)an incorporated legal practice in connection with it formerly engaging in legal practice in this jurisdiction or in connection with any trust of which it, or 1 of its associates, is or was a trustee;

(v)an Australian-registered foreign lawyer in connection with the lawyer’s practice of foreign law in this jurisdiction or in connection with any trust of which the lawyer is or was a trustee;

(vi)a former Australian-registered foreign lawyer in connection with the lawyer’s practice of foreign law in this jurisdiction or in connection with any trust of which the lawyer is or was a trustee.

(3)Without limiting subsection (2)(j), a regulatory authority may make rules setting fees for assessing an application for an exemption mentioned in subsection (2)(d), (g) or (h).

(4)Rules about a matter mentioned in subsection (2) or (3) are administration rules, whether or not the rules are made—

(a)under this section; or

(b)if the regulatory authority has power under another Act or otherwise to make the rules for the matter—under that other Act or otherwise.

(5)Administration rules about a matter mentioned in subsection (2)(l) are indemnity rules.

(6)This division does not affect a regulatory authority’s power under another Act or otherwise to make rules but rules made under another Act or otherwise that are administration rules are taken to be made under this Act.

Example—

If a provision of this Act provides that the right to engage in legal practice is subject to provisions under this Act, the right of practice is subject to relevant administration rules.

(7)To remove any doubt, it is declared that administration rules are statutory instruments under the Statutory Instruments Act 1992.

Note—

Under the Statutory Instruments Act 1992, sections 24 and 25, administration rules may provide for a fee in relation to specified exceptions and factors or different persons or matters.

(8)Rules made under subsection (2)(b) or (f) must allow for the provision of educational or training programs to be open to all service providers meeting a standard approved by the regulatory authority.

(9)Rules made under subsection (2) about education or training for the purpose of continuing professional development must have—

(a)sufficient regard to opportunities for participation by legal practitioners in rural and regional areas; and

(b)provisions for exemptions having regard to hardship.

s 231 amd 2020 No. 15 s 139

232Indemnity rules

(1)Indemnity rules—

(a)may authorise or require the regulatory authority to establish and keep a fund or funds; or

(b)may authorise or require the regulatory authority to take out and keep insurance with insurers carrying on insurance business and approved by the authority for the purposes of the insurance; or

(c)may require local legal practitioners holding practising certificates granted or renewed by the authority, or a class of certificate holders, to take out and keep insurance with insurers carrying on insurance business and approved by the authority for the purposes of the insurance; or

(d)may require any of the following to take out and keep insurance with insurers carrying on insurance business and approved by the law society for the purposes of the insurance—

(i)an incorporated legal practice engaged in legal practice in this jurisdiction;

(ii)a legal practitioner director of the incorporated legal practice;

(iii)an Australian legal practitioner who is an officer or employee of the incorporated legal practice; or

(e)may make provision in relation to insurance for Australian-registered foreign lawyers engaged in the practice of foreign law in this jurisdiction.

(2)Indemnity rules—

(a)may state the terms and conditions on which indemnity is to be available and any circumstances in which the right to indemnity is to be excluded or modified; and

(b)may provide for the management, administration and protection of any fund established and kept under the indemnity rules, and require certificate holders of practising certificates granted or renewed by the authority, or a class of certificate holders, to make payments to a fund; and

(c)may require certificate holders of practising certificates granted or renewed by the regulatory authority, or a class of certificate holders, to make payments (by way of levy) on any insurance policy taken out and kept by the authority under the indemnity rules; and

(d)may require an Australian legal practitioner or incorporated legal practice required to be insured under the rule, or an Australian-registered foreign lawyer with or applying for insurance under the rule, to disclose the following—

(i)information about professional indemnity insurance to clients or prospective clients;

(ii)information to the regulatory authority that is necessary for the regulatory authority to calculate insurance levies applicable to the practitioner, practice or lawyer; and

(e)may prescribe terms and conditions with which an insurance policy, required by the indemnity rules made for the purposes of subsection (1)(c), must comply; and

(f)may authorise the regulatory authority to decide the amount of a payment required by the indemnity rules, subject to limits under the rules; and

(g)may authorise the regulatory authority or insurer to take a proceeding against a certificate holder or former certificate holder for amounts paid by way of indemnity in connection with a matter in relation to which he or she has failed to comply with the indemnity rules, and may state circumstances in which the proceeding may be taken; and

(h)may empower the regulatory authority to take steps as it considers necessary or expedient to find out whether or not the indemnity rules are being complied with.

(3)Indemnity rules may provide in relation to a law practice for any matter that it may, under subsection (2), provide in relation to a certificate holder.

(4)Insurance levies or other amounts payable under the indemnity rules by a law practice may be decided by reference to the total number of Australian legal practitioners employed by the practice and other relevant matters.

(5)This section does not limit section 231(2)(l).

s 232 amd 2010 No. 42 s 138 sch

233Relationship of administration rules to this Act and regulation

(1)A regulation may be made in relation to any matter mentioned in section 231(2) or (3) for which administration rules may be made.

(2)A provision of a regulatory authority’s administration rules does not have effect to the extent that it is inconsistent with this Act, a regulation or legal profession rules relevant to the authority.

(3)Despite another Act, administration rules can not provide that a contravention of the rules—

(a)is an offence; or

(b)is capable of constituting unsatisfactory professional conduct or professional misconduct.

Note—

Under the Statutory Instruments Act 1992, section 23, a regulation may apply, adopt or incorporate administration rules.

s 233 amd 2020 No. 15 s 140

234Relationship between legal profession rules and administration rules

(1)A regulation may identify a provision of administration rules as a provision that the holder of a practising certificate, granted or renewed by the regulatory authority that made the administration rules, must comply with.

(2)If a provision is identified as mentioned in subsection (1), a contravention of the provision is capable of constituting unsatisfactory professional conduct or professional misconduct.

235Availability of administration rules

A regulatory authority must ensure that an up-to-date version of the administration rules of the regulatory authority is available, without charge, for public inspection—

(a)at the authority’s principal place of business during normal working hours; or

(b)on the authority’s internet site or an internet site identified on the authority’s internet site.

ch 3 pt 3.3 div 6 hdg om 2016 No. 59 s 18

ch 3 pt 3.3 div 6 hdg om 2016 No. 59 s 18

ch 3 pt 3.3 div 6 hdg om 2016 No. 59 s 18

ch 3 pt 3.3 div 6 hdg om 2016 No. 59 s 18

ch 3 pt 3.3 div 6 hdg om 2016 No. 59 s 18

236Main purposes of pt 3.3

The main purposes of this part are as follows—

(a)to ensure trust money is held by law practices in a way that protects the interests of persons for whom money is held, both inside and outside this jurisdiction;

(b)to minimise compliance requirements for law practices that provide legal services within and outside this jurisdiction;

(c)to ensure the law society can work effectively with corresponding authorities in other jurisdictions in relation to the regulation of trust money and trust accounts.

237Definitions for pt 3.3

(1)In this part—

approved ADI means an ADI approved under section 280 by the chief executive.

s 237 def approved ADI amd 2016 No. 59 s 14

controlled money means money received or held by a law practice for which the practice has a written direction to deposit the money in an account, other than a general trust account, over which the practice has or will have exclusive control.

Note—

Section 251(6) prevents pooling of controlled money.

controlled money account means an account kept by a law practice with an ADI for the holding of controlled money received by the practice.

deposit record includes a deposit slip or duplicate deposit slip.

general trust account means an account kept by a law practice with an approved ADI for the holding of trust money received by the practice, other than controlled money or transit money.

permanent form, in relation to a trust record, means printed or, on request, capable of being printed, in English on paper or other material.

transit money means money received by a law practice subject to instructions to pay or deliver it to a third party, other than an associate of the practice.

trust account means an account kept by a law practice with an approved ADI to hold trust money.

trust money means money entrusted to a law practice in the course of or in connection with the provision of legal services by the practice, and includes—

(a)money received by the practice on account of legal costs in advance of providing the services; and

(b)controlled money received by the practice; and

(c)transit money received by the practice; and

(d)money received by the practice, that is the subject of a power, exercisable by the practice or an associate of the practice, to deal with the money for another person.

trust records includes the following documents—

(a)receipts;

(b)cheque butts or cheque requisitions;

(c)records of authorities to withdraw by electronic funds transfer;

(d)deposit records;

(e)trust account ADI statements;

(f)trust account receipts and payments cash books;

(g)trust ledger accounts;

(h)records of monthly trial balances;

(i)records of monthly reconciliations;

(j)trust transfer journals;

(k)statements of account required to be given under a regulation;

(l)registers required to be kept under a regulation;

(m)monthly statements required to be kept under a regulation;

(n)files relating to trust transactions or bills of costs or both;

(o)written directions, authorities or other documents required to be kept under this Act or a regulation;

(p)supporting information required to be kept under a regulation in relation to powers to deal with trust money.

(2)A reference in this part to a law practice’s trust account or trust records includes a reference to an associate’s trust account or trust records.

(3)A reference in this part to a power given to a law practice or an associate of the practice to deal with money for another person is a reference to a power given to the practice or associate that is exercisable by—

(a)the practice alone; or

(b)an associate of the practice alone, otherwise than in a private and personal capacity; or

(c)the practice or an associate of the practice jointly or severally, or jointly and severally, with either or both of the following—

(i)1 or more associates of the practice;

(ii)the person, or 1 or more nominees of the person, for whom or on whose behalf the money may or is to be dealt with under the power.

238Money involved in financial services or investments

(1)Money that is entrusted to or held by a law practice in connection with either of the following is not trust money under this Act—

(a)a financial service provided by the practice or an associate of the practice in circumstances in which the practice or associate is required to hold an Australian financial services licence covering the provision of the service (whether or not the licence is held at any relevant time);

(b)a financial service provided by the practice or an associate of the practice in circumstances in which the practice or associate provides the service as a representative of another person who carries on a financial services business (whether or not the practice or associate is an authorised representative at any relevant time).

(2)Without limiting subsection (1), money that is entrusted to or held by a law practice for a managed investment scheme, or mortgage financing, undertaken by the practice is not trust money under this Act.

(3)Without limiting subsections (1) and (2), money that is entrusted to or held by a law practice for investment purposes, whether on its own account or as agent, is not trust money under this Act, unless—

(a)the money was entrusted to or held by the practice—

(i)in the ordinary course of legal practice; and

(ii)primarily in connection with the provision of legal services to or at the direction of the client; and

(b)the investment is or is to be made—

(i)in the ordinary course of legal practice; and

(ii)for the ancillary purpose of keeping or enhancing the value of the money or property pending completion of the matter or further stages of the matter or pending payment or delivery of the money or property to or at the direction of the client.

239Decisions about status of money

(1)This section applies to money received by a law practice if the law society considers that there is doubt or a dispute as to whether the money is trust money.

(2)The law society may decide that the money is or is not trust money.

(3)Under the Acts Interpretation Act 1954, section 24AA, the law society may amend or repeal a decision under this section.

(4)While a decision under this section is in force that money is trust money, the money is taken to be trust money under this Act.

(5)While a decision under this section is in force that money is not trust money, the money is taken not to be trust money under this Act.

(6)This section has effect subject to a decision of a court made in relation to the money concerned.

240Application of part to law practices and trust money

(1)This part applies to the following law practices in relation to trust money received by them in this jurisdiction—

(a)a law practice that has an office in this jurisdiction, whether or not the practice has an office in another jurisdiction;

(b)a law practice that does not have an office in any jurisdiction at all.

Note—

It is intended that a law practice that receives trust money in this jurisdiction, that does not have an office in this jurisdiction, but has an office in another jurisdiction, must deal with the money under the corresponding law of the other jurisdiction.

(2)This part applies to the following law practices in relation to trust money received by them in another jurisdiction—

(a)a law practice that has an office in this jurisdiction and in no other jurisdiction;

(b)a law practice that has an office in this jurisdiction and in one or more other jurisdictions but not in the jurisdiction in which the trust money was received, unless the money is dealt with under the corresponding law of another jurisdiction.

(3)However, this part does not apply to law practices or kinds of trust money prescribed under a regulation.

(4)A reference in this section to having an office in a jurisdiction is a reference to having, or engaging in legal practice from, an office or business address in the jurisdiction.

Note—

Section 174 applies this part to Australian-registered foreign lawyers.

241Protocols for deciding where trust money is received

(1)The law society may enter into arrangements (trust money protocols) with corresponding authorities about any or all of the following—

(a)deciding the jurisdiction where a law practice receives trust money;

(b)sharing information about whether, and if so how, trust money is being dealt with under this Act or a corresponding law.

(2)For this Act, to the extent that a trust money protocol is relevant, the jurisdiction where a law practice receives trust money must be decided under the relevant protocol.

(3)The law society may enter into arrangements that amend, revoke or replace a trust money protocol.

(4)A trust money protocol, or an amendment, revocation or replacement of a trust money protocol, has effect in this jurisdiction only to the extent it is approved under a regulation.

242When money is received

(1)For this Act, a law practice receives money when—

(a)the practice obtains possession or control of it directly; or

(b)the practice obtains possession or control of it indirectly as a result of its delivery to an associate of the practice; or

(c)the practice, or an associate of the practice (otherwise than in a private and personal capacity) is given a power to deal with the money on behalf of another person.

(2)For this Act, a law practice or associate is taken to have received money if the money is available to the practice or associate by means of an instrument or other way of authorising an ADI to credit or debit an amount to an account with the ADI, including, for example, an electronic funds transfer, credit card transaction or telegraphic transfer.

243Discharge by legal practitioner associate of obligations of law practice

(1)The following actions, if taken by a legal practitioner associate of a law practice on behalf of the practice in relation to trust money received by the practice, discharge the corresponding obligations of the practice in relation to the money—

(a)the establishment of a trust account;

(b)the keeping of a trust account;

(c)the payment of trust money into and out of a trust account and other dealings with trust money;

(d)the keeping of trust records;

(e)engaging an external examiner to examine trust records;

(f)an action of a kind prescribed under a regulation.

(2)If the legal practitioner associate keeps a trust account in relation to trust money received by the law practice, this part and a regulation made under this part apply to the associate in the same way as they apply to a law practice.

(3)Subsection (1) does not apply to the extent that the associate is prevented under a regulation from taking any action mentioned in that subsection.

s 243 amd 2016 No. 59 s 15

244Liability of principals of law practice

(1)A provision of this part or a regulation made under this part expressed as imposing an obligation on a law practice imposes the same obligation on the principals of the law practice jointly and severally, but discharge of the practice’s obligation also discharges the corresponding obligation imposed on the principals.

(2)A reference in this part or a regulation made under this part to a law practice includes a reference to the principals of the law practice.

245Former practices, principals and associates

This part applies in relation to former law practices and former principals and associates of law practices in relation to conduct occurring while they were respectively law practices, principals and associates in the same way as it applies to law practices, principals and associates, and so applies with any necessary changes.

246Barristers not to receive trust money

(1)A barrister is not, in the course of practising as a barrister, to receive trust money.

(2)Subsection (1) does not—

(a)prevent a barrister receiving money in payment of legal services that the barrister has performed; and

(b)limit the bar association’s power to make legal profession rules in relation to banking arrangements for fees received in advance by a barrister.

ch 3 pt 3.3 div 2 hdg amd 2014 No. 46 s 57

247Keeping general trust account

(1)A law practice that receives trust money to which this part applies must keep a general trust account in this jurisdiction.

Maximum penalty—100 penalty units.

(2)A law practice that is required to keep a general trust account in this jurisdiction must establish and keep the account in the way prescribed under a regulation.

Maximum penalty—100 penalty units.

(3)Subsection (1) does not apply to a law practice in relation to any period during which the practice receives or holds only either or both of the following—

(a)controlled money;

(b)transit money received in a form other than cash.

(4)Subject to any requirements under a regulation, a requirement of this section for a law practice to keep, or establish and keep, a general trust account in this jurisdiction does not prevent the practice from keeping, or establishing and keeping, more than one general trust account in this jurisdiction, whether during the same period or during different periods.

(5)Without limiting the other provisions of this section, a regulation may provide that a law practice must not close a general trust account except as permitted under the regulation.

248Certain trust money to be deposited in general trust account

(1)Subject to section 255, as soon as practicable after receiving trust money, a law practice must deposit the money in a general trust account of the practice unless—

(a)the practice has a written direction by an appropriate person to deal with it otherwise than by depositing it in the account; or

(b)the money is controlled money; or

(c)the money is transit money; or

(d)the money is the subject of a power given to the practice or an associate of the practice to deal with the money for or on behalf of another person.

Maximum penalty—100 penalty units.

(2)Subject to section 255, a law practice that has received money that is the subject of a written direction mentioned in subsection (1)(a) must deal with the money in accordance with the direction—

(a)within the period, if any, stated in the direction; or

(b)subject to paragraph (a), as soon as practicable after it is received.

Maximum penalty—100 penalty units.

(3)The law practice must keep a written direction mentioned in subsection (1)(a) for the period prescribed under a regulation.

Maximum penalty—100 penalty units.

(4)A person is an appropriate person for this section if the person is legally entitled to give the law practice directions in relation to dealings with the trust money.

249Holding, disbursing and accounting for trust money

(1)A law practice must—

(a)hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received; and

(b)disburse the trust money only under a direction given by the person.

Maximum penalty—50 penalty units.

(2)Subsection (1) applies subject to an order of a court of competent jurisdiction, division 2A or as otherwise authorised by law.

(3)Subject to division 2A, the law practice must account for the trust money in the way prescribed under a regulation.

Maximum penalty—50 penalty units.

s 249 amd 2014 No. 46 s 58

250Withdrawing trust money from general trust account

(1)A law practice must not withdraw trust money from a general trust account otherwise than by—

(a)cheque; or

(b)if the practice is authorised by the law society to withdraw trust money from a general trust account by electronic funds transfer—electronic funds transfer.

Maximum penalty—50 penalty units.

(2)Without limiting subsection (1), the following are specifically prohibited by the subsection—

(a)cash withdrawals;

(b)ATM withdrawals or transfers;

(c)telephone banking withdrawals or transfers;

(d)unless the law practice is authorised by the law society to withdraw trust money from a general trust account by electronic funds transfer—withdrawals by electronic funds transfer.

(3)A regulation may make provision in relation to withdrawals by cheque or electronic funds transfer, including, for example, the matters the law society must have regard to in deciding to authorise a law practice to withdraw trust money from a general trust account by electronic funds transfer.

(4)This section has effect despite anything to the contrary in a direction given to the law practice concerned, even if the direction is given by a person who is otherwise legally entitled to give the law practice directions in relation to dealings with the trust money.

251Controlled money

(1)As soon as practicable after receiving controlled money, a law practice must deposit the money in the account stated in the written direction relating to the money.

Maximum penalty—50 penalty units.

(2)The law practice must hold controlled money deposited in a controlled money account under subsection (1) exclusively for the person on whose behalf it was received.

Maximum penalty—50 penalty units.

(3)The law practice that holds controlled money deposited in a controlled money account under subsection (1) must not disburse the money other than under—

(a)the written direction mentioned in that subsection; or

(b)a later written direction given by or on behalf of the person on whose behalf the money was received.

Maximum penalty—50 penalty units.

(4)The law practice must keep the controlled money account, and account for the controlled money, in the way prescribed under a regulation.

Maximum penalty—50 penalty units.

(5)The law practice must keep a written direction mentioned in this section for the period prescribed under a regulation.

Maximum penalty—50 penalty units.

(6)The law practice must ensure that the controlled money account is used for the deposit of controlled money received on behalf of the person mentioned in subsection (2), and not for the deposit of controlled money received on behalf of any other person, except to the extent that a regulation otherwise permits.

Maximum penalty—50 penalty units.

(7)Subsection (3) applies subject to an order of a court of competent jurisdiction or as authorised by law.

252Withdrawing controlled money from controlled money account

(1)A law practice must not withdraw controlled money from a controlled money account otherwise than by—

(a)cheque; or

(b)if the practice is authorised by the law society to withdraw controlled money from a controlled money account by electronic funds transfer—electronic funds transfer.

Maximum penalty—50 penalty units.

(2)Without limiting subsection (1), the following are specifically prohibited by the subsection—

(a)cash withdrawals;

(b)ATM withdrawals or transfers;

(c)telephone banking withdrawals or transfers;

(d)unless the law practice is authorised by the law society to withdraw controlled money from a controlled money account by electronic funds transfer—withdrawals by electronic funds transfer.

(3)A regulation may make provision in relation to withdrawals by cheque or electronic funds transfer, including, for example, the matters the law society must have regard to in deciding to authorise a law practice to withdraw controlled money from a controlled money account by electronic funds transfer.

(4)This section has effect despite anything to the contrary in a direction given to the law practice concerned even if the direction is given by a person who is otherwise legally entitled to give the law practice directions in relation to dealings with the controlled money.

253Transit money

(1)Subject to section 255, a law practice that has received transit money must pay or deliver the money as required by the instructions relating to the money—

(a)within the period, if any, stated in the instructions; or

(b)subject to paragraph (a), as soon as practicable after it is received.

Maximum penalty—50 penalty units.

(2)The law practice must account for the money in the way prescribed under a regulation.

Maximum penalty—50 penalty units.

254Trust money subject to specific powers

(1)Subject to section 255, a law practice must ensure that trust money that is the subject of a power given to the practice or an associate of the practice is dealt with by the practice or associate only under the power relating to the money.

Maximum penalty—50 penalty units.

(2)The law practice must account for the money in the way prescribed under a regulation.

Maximum penalty—50 penalty units.

255Trust money received in the form of cash

(1)A law practice must deposit general trust money received in the form of cash in a general trust account of the practice.

Maximum penalty—100 penalty units.

(2)If the law practice has a written direction by an appropriate person to deal with general trust money received in the form of cash otherwise than by first depositing it in a general trust account of the practice—

(a)the money must nevertheless be deposited in a general trust account of the practice under subsection (1); and

(b)after it is deposited in the general trust account, the money is to be dealt with under the applicable terms of the direction so far as those terms are not inconsistent with paragraph (a).

(3)Controlled money received in the form of cash must be deposited in a controlled money account under section 251.

(4)A law practice must deposit transit money received in the form of cash in a general trust account of the practice before the money is otherwise dealt with under the instructions relating to the money.

Maximum penalty—100 penalty units.

(5)A law practice must deposit trust money that is received in the form of cash and is the subject of a power in a general trust account, or a controlled money account in the case of controlled money, of the practice before the money is otherwise dealt with under the power.

Maximum penalty—100 penalty units.

(6)This section has effect despite anything to the contrary in any relevant direction, instruction or power.

(7)In this section—

appropriate person, in relation to trust money, means a person who is legally entitled to give the law practice concerned directions in relation to dealings with the money.

general trust money means trust money, other than—

(a)controlled money; and

(b)transit money; and

(c)money that is the subject of a power.

256Protection of trust money

(1)Money standing to the credit of a trust account kept by a law practice is not available for the payment of debts of the practice or any of its associates.

(2)Money standing to the credit of a trust account kept by a law practice is not liable to be attached or taken in execution for satisfying a judgment against the practice or any of its associates.

(3)This section does not apply to money to which a law practice or associate is entitled.

257Intermixing money

(1)A law practice must not, otherwise than as permitted under subsection (2), mix trust money with other money.

Maximum penalty—100 penalty units.

(2)A law practice is permitted to mix trust money with other money to the extent only that is authorised by the law society and under any conditions imposed by the law society in relation to the authorisation.

258Dealing with trust money—legal costs and unclaimed money

(1)A law practice may do any of the following in relation to trust money held in a general trust account or controlled money account of the practice for a person—

(a)exercise a lien, including a general retaining lien, for the amount of legal costs reasonably due and owing by the person to the practice;

(b)withdraw money for payment to the practice’s account for legal costs owing to the practice if the relevant procedures or requirements under this Act or prescribed under a regulation are complied with;

(c)after deducting any legal costs properly owing to the practice, deal with the balance as unclaimed money under section 713.

(2)Subsection (1) applies despite any other provision of this part but has effect subject to part 3.4.

259Deficiency in trust account

(1)An Australian legal practitioner must not, without reasonable excuse, cause—

(a)a deficiency in any trust account or trust ledger account; or

(b)a failure to pay or deliver any trust money.

Maximum penalty—200 penalty units.

(2)A reference in subsection (1) to an account includes a reference to an account of the practitioner or of the law practice of which the practitioner is an associate.

(3)In this section—

cause includes be responsible for.

deficiency, in a trust account or trust ledger account, includes the non-inclusion or exclusion of the whole or any part of an amount that is required to be included in the account.

260Reporting certain irregularities and suspected irregularities

(1)As soon as practicable after a legal practitioner associate of a law practice becomes aware that there is an irregularity in any of the practice’s trust accounts or trust ledger accounts, the associate must give written notice of the irregularity to—

(a)the law society; and

(b)if a corresponding authority is responsible for the regulation of the accounts concerned—the corresponding authority.

Maximum penalty—50 penalty units.

(2)If an Australian legal practitioner believes on reasonable grounds that there is an irregularity in connection with the receipt, recording or disbursement of any trust money received by a law practice of which the practitioner is not a legal practitioner associate, the practitioner must, as soon as practicable after forming the belief, give written notice of it to—

(a)the law society; and

(b)if a corresponding authority is responsible for the regulation of the accounts relating to the trust money concerned—the corresponding authority.

Maximum penalty—50 penalty units.

(3)An Australian legal practitioner is not liable for any loss or damage suffered by another person as a result of the practitioner’s compliance with subsection (1) or (2).

261Keeping trust records

(1)A law practice must keep in permanent form trust records in relation to trust money received by the practice.

Maximum penalty—100 penalty units.

(2)The law practice must keep the trust records—

(a)in the way prescribed under a regulation; and

(b)in a way that at all times discloses the true position in relation to trust money received for any person; and

(c)in a way that enables the trust records to be conveniently and properly investigated or externally examined; and

(d)for the period prescribed under a regulation.

Maximum penalty—100 penalty units.

262False names

(1)A law practice must not knowingly receive money or record receipt of money in the practice’s trust records under a false name.

Maximum penalty—100 penalty units.

(2)If a person on whose behalf trust money is received by a law practice is commonly known by more than one name, the practice must ensure that the practice’s trust records record all names by which the person is known.

Maximum penalty—100 penalty units.

ch 3 pt 3.3 div 2A hdg ins 2014 No. 46 s 59

262AApplication of div 2A

(1)This division applies if—

(a)a law practice holds an amount for the sale of a lot or proposed lot in the practice’s trust account; and

(b)before the amount is paid out under division 2, the law practice becomes aware of a dispute, or considers a dispute may arise, between persons having an interest in the amount about entitlement to the amount.

Example of when a law practice may consider a dispute may arise—

A party to the contract does not take the required action to complete the contract and does not make contact with the other party or law practice to explicitly state a dispute has arisen.

(2)In subsection (1)—

amount includes part of the amount.

lot means land the boundaries of which are shown on a plan of survey—

(a)registered under the Land Act 1994 or Land Title Act 1994; or

(b)registered by the registrar of titles as provided under the South Bank Corporation Act 1989.

person, having an interest in an amount for the sale of a proposed lot, does not include an entity acting for a person in relation to the sale or purchase of the proposed lot.

proposed lot means—

(a)a proposed lot within the meaning of the Land Sales Act 1984; or

(b)a proposed lot within the meaning of the Body Corporate and Community Management Act 1997; or

(c)land that will be shown as a lot on a building units plan or group titles plan registered under the Building Units and Group Titles Act 1980; or

Note—

See the Building Units and Group Titles Act 1980, section 5A about the limited operation of that Act.

(d)a proposed lot within the meaning of the South Bank Corporation Act 1989, section 97B.

s 262A ins 2014 No. 46 s 59

262BWhen amount held for sale of lot or proposed lot may be paid

(1)This section applies if the law practice considers that a person is entitled to an amount mentioned in section 262A(1)(a).

(2)The law practice may give all persons having an interest in the amount a written notice to the following effect—

(a)the practice considers that a stated person is entitled to the amount;

(b)the practice is authorised, under this Act, to pay the amount to the stated person on or after a stated date (at least 60 days after the notice is given) unless—

(i)a proceeding disputing the stated person’s entitlement to the amount is started and the practice is advised of the start of the proceeding; or

(ii)all persons having an interest in the amount authorise payment of the amount to the stated person before the stated date.

(3)The practice may pay the amount to the stated person if—

(a)after the stated date, the law practice is unaware of the start of a proceeding claiming an entitlement to the amount; or

(b)on or before the stated date, the law practice receives written notice under subsection (2)(b)(ii) authorising payment of the amount to the stated person.

(4)The practice does not contravene section 249 by disbursing trust money as provided under this section.

(5)The practice is not liable civilly or under an administrative process in relation to the payment of the amount as provided under this section if it is subsequently found that the stated person was not entitled to the amount.

(6)To remove any doubt, it is declared that this section—

(a)provides a process for the payment of an amount mentioned in section 262A(1)(a); and

(b)does not decide legal entitlement to the amount or prevent a person legally entitled to the amount recovering it from the person to whom it was paid.

(7)Nothing in this section requires the practice to give notice under subsection (2) if the practice decides to retain the amount until payment of the amount is authorised by all persons having an interest in the amount or entitlement to the amount is decided by the court.

s 262B ins 2014 No. 46 s 59

263Investigations

(1)The law society may, on its own initiative or if asked by the commissioner, investigate the affairs of a law practice under this division.

(2)The investigation—

(a)may be in relation to a particular allegation or suspicion regarding trust money, trust property, a trust account or another aspect of the affairs of the law practice; or

(b)may be carried out as a routine investigation.

(3)The principal purposes of an investigation are—

(a)to find out whether the law practice has complied with or is complying with this part; and

(b)to detect and prevent defaults in relation to the law practice.

(4)Subsection (3) does not limit the scope of the investigation or the powers of the investigator conducting the investigation.

(5)An investigation of the affairs of a law practice under this division is a part 3.3 investigation.

Note—

Chapter 6 applies to a part 3.3 investigation—see section 540.

s 263 amd 2020 No. 15 s 141

264Investigator’s report

(1)As soon as practicable after completing a part 3.3 investigation, the investigator must give a written report of the investigation to the law society.

(2)If the part 3.3 investigation relates to a complaint or investigation matter, or was started at the request of the commissioner, the law society must as soon as practicable give a copy of the report to the commissioner.

s 264 amd 2020 No. 15 s 218 sch 1

265When costs of investigation are debt

(1)If—

(a)an investigator states in his or her report of a part 3.3 investigation that there is evidence that a breach of this Act has been committed or that a default has happened in relation to the law practice whose affairs are under investigation; and

(b)the law society is satisfied that the breach or default is wilful or of a substantial nature;

the law society may decide that the whole or part of the costs of carrying out the investigation is payable to the society and may decide the amount payable.

(2)The amount decided by the law society is a debt payable to the society by the law practice whose affairs are under investigation.

(3)The law society must, before seeking to recover the amount payable, give the law practice an information notice about the decision and the amount payable.

(4)The law practice may appeal, to a court having jurisdiction for the amount payable, against the decision within 28 days after the day the information notice is given to the practice.

s 265 amd 2020 No. 15 s 218 sch 1

266Law society or commissioner may give information to professional accounting association

(1)This section applies if, on considering a report given under section 264 about a law practice, the law society or the commissioner is satisfied the report discloses conduct that shows an external examiner may have breached the professional accounting or audit standards in relation to an external examination of the practice’s trust records.

(2)The law society or commissioner may give to the professional accounting association of which the external examiner is, or was, a member—

(a)a copy of the report or the part of the report relevant to the disclosure of the conduct; or

(b)another document the law society or commissioner considers relevant to the disclosure of the conduct.

(3)If the professional accounting association investigates the conduct of the external examiner—

(a)the investigator who gave the report may, with the approval of the law society, give information to the association about the part 3.3 investigation to which the report relates; and

(b)an officer or employee of the law society may, with the approval of the law society, give information to the association about the content of the report.

(4)However, a report or a part of a report, or another document or information given under subsection (2) or (3), must not include confidential information about a law practice.

(5)In this section—

confidential information, about a law practice, means information that identifies a client of the practice or a party to a matter in which the practice acts.

professional accounting association means—

(a)CPA Australia ACN 008 392 452; or

(b)The Institute of Chartered Accountants in Australia ARBN 084 642 571; or

(c)another entity prescribed under a regulation.

professional accounting or audit standards means—

(a)the accounting standards issued by the Australian Accounting Standards Board; or

(b)the auditing standards issued by the Auditing and Assurance Standards Board.

s 266 amd 2020 No. 15 s 218 sch 1

267Appointment and qualifications of external examiner

(1)A law practice must, within 14 days after becoming a law practice to which this part applies, appoint an individual as the external examiner for the practice.

Maximum penalty—50 penalty units.

(2)If an individual appointed as a law practice’s external examiner stops being the practice’s external examiner, the law practice must, within 14 days after the individual stops being the external examiner, appoint another individual as the external examiner for the practice.

Maximum penalty—50 penalty units.

(3)A law practice may appoint an individual as an external examiner for the practice under this section only if satisfied the individual—

(a)has the qualifications or experience prescribed under a regulation; and

(b)is not disqualified from being an external examiner under section 278.

268Law practice must have trust records externally examined

(1)A law practice must, for each financial period for the practice and within 60 days after the end of the period, have its trust records externally examined by the practice’s external examiner.

Maximum penalty—100 penalty units.

(2)If the law society is satisfied a law practice has not had its trust records externally examined under this section or that an external examination of the practice’s trust records has not been carried out in the way prescribed under a regulation, the law society may appoint an external examiner to examine the practice’s trust records.

(3)Without limiting the generality of section 298, this section has effect subject to any exemptions provided by or given under a regulation from the requirement to have trust records examined as otherwise required by this section.

(4)In this section—

financial period, for an entity that is a law practice, means—

(a)for the first period after the entity becomes a law practice—the period of not more than 12 months starting on the day the entity becomes a law practice and ending on 31 March; or

(b)otherwise—12 months ending on 31 March.

269Restriction on appointment of associates as external examiner

(1)The law society may appoint an associate of a law practice as an external examiner under this division only if satisfied it is appropriate to do so.

(2)However, an associate of a law practice can not be appointed as an external examiner under this division to examine the practice’s trust records.

270Law practice to give notice of external examiner

(1)A law practice must, within 30 days after becoming a law practice to which this part applies, give the law society notice in the approved form of the practice’s external examiner.

Maximum penalty—50 penalty units.

(2)A law practice must, immediately after an individual stops being the practice’s external examiner, give the law society written notice of the fact.

Maximum penalty—50 penalty units.

(3)A law practice must, within 30 days after an individual stops being the practice’s external examiner, give the law society notice in the approved form of the practice’s external examiner appointed under section 267(2) (the replacement external examiner).

Maximum penalty—50 penalty units.

(4)A notice given under subsection (1) or (3) must be signed by the external examiner or replacement external examiner.

271Notice if person stops being external examiner

If an individual stops being the external examiner for a law practice, the individual must immediately give the law society notice of the fact in the approved form.

Maximum penalty—50 penalty units.

272Examination of affairs in examining trust records

(1)An external examiner appointed to examine a law practice’s trust records may, in carrying out an examination of the trust records, examine the affairs of the practice.

(2)If the law practice is an incorporated legal practice or multi-disciplinary partnership, the reference in subsection (1) to the affairs of the law practice extends to the affairs of the incorporated legal practice or multi-disciplinary partnership or of an associate, so far as they are relevant to trust money, trust records and associated matters.

(3)A reference in this division to trust records includes a reference to the affairs of a law practice that may be examined under this section in the carrying out of an examination of the practice’s trust records.

273Carrying out external examination

(1)An external examination of a law practice’s trust records is to be carried out in the way prescribed under a regulation.

(2)Without limiting subsection (1), a regulation may provide for the following—

(a)the standards to be adopted and the procedures to be followed by external examiners;

(b)the form and content of an external examiner's report on an external examination.

274External examiner’s report on external examination

(1)If a law practice has its trust records examined by an external examiner under section 268(1), the practice must, within 60 days after the end of the period to which the examination relates, give to the law society a copy of the external examiner’s report on the examination, unless the practice has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)If an external examiner appointed by the law society carries out an external examination of a law practice’s trust records, the external examiner must give to the law society a copy of the external examiner’s report on the examination.

Maximum penalty—50 penalty units.

275External examiner to give other reports

(1)This section applies if, in carrying out an external examination of a law practice’s trust records, an external examiner becomes aware of a matter that—

(a)is reasonably likely—

(i)to adversely affect the financial position of the law practice to a material extent; or

(ii)to constitute a breach of this part by the law practice; or

(b)is otherwise an irregularity in relation to the trust records or trust accounts of the law practice of which the law society ought reasonably to be made aware.

(2)The external examiner must, within 7 days after becoming aware of the matter, give the law society a written report on the matter.

Maximum penalty—100 penalty units.

276Final examination of trust records

(1)This section applies if a law practice—

(a)ceases to be authorised to receive trust money; or

(b)ceases to engage in legal practice in this jurisdiction.

(2)The law practice must appoint an individual as an external examiner to examine the practice’s trust records—

(a)in relation to the period since an external examination of the practice’s trust records was last conducted; and

(b)in relation to each period after the period mentioned in paragraph (a), comprising a completed period of 12 months or any remaining partly completed period, during which the practice continued to hold trust money.

Maximum penalty—50 penalty units.

(3)The law practice must give to the law society—

(a)a report of each examination under subsection (2) within 60 days after the end of the period to which the examination relates; and

(b)a statutory declaration in the law society approved form within 60 days of ceasing to hold trust money.

Maximum penalty—20 penalty units.

(4)If an Australian legal practitioner dies, the practitioner’s legal personal representative must comply with this section as if the representative were the practitioner.

(5)Nothing in this section affects any other requirements under this part.

277Law practice liable for costs of examination

(1)A law practice whose trust accounts have been externally examined must pay the costs of the examination.

(2)If the law society appointed the external examiner to carry out the examination, the law society may decide the reasonable amount payable as the costs of the examination, and the amount is a debt payable to it by the law practice.

(3)The law society must, before seeking to recover an amount mentioned in subsection (2), give the law practice an information notice about the decision stating the amount payable.

(4)The law practice may appeal, to a court having jurisdiction for the amount payable, against the decision within 28 days after the day the information notice is given to the practice.

278Disqualification of person as external examiner

(1)This section applies if the law society is satisfied that an individual who is an external examiner—

(a)has not carried out an external examination in an appropriate way; or

(b)does not have the qualifications or experience prescribed under a regulation for section 267(3)(a).

(2)The law society may, by information notice given to the individual, disqualify the individual from being an external examiner.

(3)The disqualification has effect on the day the individual receives the information notice.

(4)If the disqualification is for a period, the information notice must state the period of the disqualification.

(5)If an individual who is disqualified under subsection (2) was appointed as an external examiner by a law practice, the law society must give the practice a notice stating—

(a)the individual has been disqualified from being an external examiner under this section; and

(b)if the disqualification is for a period—the period of the disqualification.

(6)An individual who is disqualified under subsection (2) may apply, as provided under the QCAT Act, to the tribunal for a review of the decision to disqualify the individual.

s 278 amd 2009 No. 24 s 1503

279Offence about carrying on external examination

An individual who is disqualified from being an external examiner under section 278 must not carry out, or help another person to carry out, an external examination.

Maximum penalty—50 penalty units.

280Approval of ADIs

(1)The chief executive may approve ADIs at which trust accounts to hold trust money may be kept.

(2)However, the chief executive may give an ADI an approval under subsection (1) only if the ADI has entered into an arrangement with the chief executive under section 287.

(3)In giving an approval under subsection (1), the chief executive may have regard to, and impose conditions on the approval, about—

(a)the way in which the law society and the chief executive are informed of amounts held in trust accounts; and

(b)the auditing of trust accounts; and

(c)other matters relating to the law society’s supervision of trust accounts under this Act; and

(d)other relevant matters prescribed under a regulation.

(4)The chief executive—

(a)may impose a condition under subsection (3) when the approval is given or during the currency of the approval; and

(b)may amend or revoke any conditions imposed.

s 280 amd 2016 No. 59 s 16

281ADIs not subject to certain obligations and liabilities

(1)An ADI at which a trust account is kept by a law practice—

(a)is not under an obligation to control or supervise transactions in relation to the account or to oversee the application of money disbursed from the account; and

(b)does not have, in relation to any liability of the law practice to the ADI, any recourse or right, whether by way of set-off counterclaim, charge or otherwise, against money in the account.

(2)Subsection (1) does not relieve an ADI from any liability to which it is subject apart from this Act.

282Reports, records and information

(1)An ADI at which a trust account is kept must, as soon as practicable after becoming aware that the account is overdrawn, report the fact to the law society.

Maximum penalty—50 penalty units.

(2)An ADI at which a trust account is kept must report a suspected offence in relation to the trust account to the law society as soon as practicable after forming the suspicion.

Maximum penalty—50 penalty units.

(3)An ADI must give to the law society reports about trust accounts as required under a regulation.

Maximum penalty—50 penalty units.

(4)An ADI at which a law practice’s trust account is kept must, if asked by an investigator or external examiner and on production to the ADI of evidence of the appointment of the investigator or external examiner in relation to the law practice—

(a)produce for inspection or copying by the investigator or external examiner any records relating to the trust account or trust money deposited in the trust account; and

(b)provide the investigator or external examiner with full details of any transactions relating to the trust account or trust money.

Maximum penalty—50 penalty units.

(5)An ADI must produce the records and provide the details under subsection (4) without charge.

(6)Subsections (1) to (4) apply despite any duty of confidence to the contrary.

(7)An ADI or an officer or employee of an ADI is not liable to any action for any loss or damage suffered by another person as a result of—

(a)reporting a matter under subsection (1); or

(b)making or giving a report under subsection (2) or (3); or

(c)producing records or providing details under subsection (4).

287Arrangement with ADI

The chief executive may enter into an arrangement with an ADI about the ADI paying interest to the department on trust accounts kept by law practices.

s 287 amd 2016 No. 59 s 17 (1)–(2)

reloc 2016 No. 59 s 17 (3)

292Restrictions on receipt of trust money

(1)A law practice, other than an incorporated legal practice, must not receive trust money unless a principal holds an Australian practising certificate authorising the receipt of trust money.

Maximum penalty—200 penalty units.

(2)An incorporated legal practice must not receive trust money unless—

(a)at least one legal practitioner director of the practice holds an Australian practising certificate authorising the receipt of trust money; or

(b)a person is holding an appointment under section 119 in relation to the practice and the person holds an Australian practising certificate authorising the receipt of trust money; or

(c)if money is received during a period in which the practice does not have a legal practitioner director—

(i)the practice is not in default of director requirements under section 119; and

(ii)there was, immediately before the start of that period, at least one legal practitioner director of the practice who held an Australian practising certificate authorising the receipt of trust money.

Maximum penalty—200 penalty units.

293Application of Act to incorporated legal practices and multi-disciplinary partnerships

(1)The obligations imposed on a law practice under this Act relating to trust money and trust accounts apply to an incorporated legal practice or multi-disciplinary partnership only in relation to legal services provided by the practice or partnership.

(2)A regulation may provide that a provision of this Act, a regulation or the legal profession rules, relating to trust money and trust accounts, does not apply to incorporated legal practices or multi-disciplinary partnerships or both or applies to them with stated changes.

294Disclosure to clients—money not received or held as trust money

(1)If money entrusted to a law practice is or becomes non-trust money, the practice must notify the person who entrusted the money to the practice that—

(a)the money is not treated as trust money under this Act and is not subject to any supervision, investigation or audit requirements of this Act; and

(b)a claim against the fidelity fund can not be made in relation to the money.

Maximum penalty—50 penalty units.

(2)The notification must be in writing and given to the person—

(a)if the money is non-trust money when it is entrusted to the law practice—when the money is entrusted to the practice; or

(b)if the money was trust money when it was entrusted to the practice but becomes non-trust money because of a decision under section 239—as soon as practicable after the decision is made.

(3)The notification must be given in the way, and contain the information, prescribed under a regulation, if any, for this section.

(4)In this section—

non-trust money means money that is not trust money under this Act because of section 238 or because of a decision under section 239.

295Disclosure of accounts used to hold money entrusted to legal practitioners

(1)A law practice must notify the law society of each account kept at an ADI in which the law practice or a legal practitioner associate of the law practice holds money entrusted to the law practice or legal practitioner associate.

Maximum penalty—50 penalty units.

(2)Subsection (1) applies to a law practice whether or not the money is trust money and whether or not section 238 or 239 applies to the money.

(3)The law society must notify the chief executive about the matters the law society is given notice of by law practices under subsection (1).

(4)A notification under this section must be given in the way, and include the details, prescribed by regulation.

s 295 amd 2016 No. 59 s 19

296Report about law society’s functions

(1)The chief executive may, by written notice, ask the law society to give to the chief executive or commissioner a report at any time, for a period stated in the chief executive’s request, about the law society’s functions under this part.

(2)The report must include the information the chief executive considers appropriate, including, for example, information about a law practice’s compliance with section 268.

(3)If the chief executive makes a request under subsection (1), the law society must comply with the request and give the relevant report to the chief executive or commissioner by the day stated in the notice for that purpose.

s 296 amd 2016 No. 59 s 20

297Report about law practice

(1)The commissioner may, by written notice, ask the law society to give to the commissioner a report about a law practice’s compliance with this part.

(2)The report must be prepared from relevant information in the law society’s possession.

(3)If the commissioner makes a request under subsection (1), the law society must comply with the request and give the report to the commissioner by the day stated in the notice for that purpose.

298Regulation-making power relating to trust money and trust accounts

(1)The Governor in Council may make regulations about a matter to which this part applies.

(2)A regulation may provide for the following—

(a)the establishment, keeping and closure of general trust accounts and controlled money accounts;

(b)the manner of receiving, depositing, withdrawing, making records about and otherwise dealing with and accounting for trust money;

(c)without limiting paragraph (a) or (b)—

(i)the keeping and reconciliation of trust records; and

(ii)the establishment and keeping of trust ledger accounts; and

(iii)the establishment and keeping of records about controlled money and transit money; and

(iv)the establishment and keeping of registers of powers and estates in relation to trust money; and

(v)the recording of information about the investment of trust money; and

(vi)the giving of statements regarding trust money;

(d)the notification to the law society of information relating directly or indirectly to matters to which this part relates, including information about—

(i)trust accounts, trust money and trust records; and

(ii)the proposed or actual termination of a law practice that holds trust money; and

(iii)the proposed or actual termination of engaging in legal practice in this jurisdiction by a law practice that holds trust money; and

(iv)the proposed or actual restructuring of the business of a law practice so that it no longer holds or no longer will hold trust money;

(e)the carrying out of unannounced examinations of a law practice’s trust records by an external examiner;

(f)the creation and exercise of liens over trust money;

(g)exemptions, or the giving of exemptions, from all or any stated requirements of this part.

299Main purposes of pt 3.4

The main purposes of this part are as follows—

(a)to provide for law practices to make disclosures to clients regarding legal costs;

(b)to regulate the making of costs agreements relating to legal services, including conditional costs agreements;

(c)to regulate the billing of costs for legal services;

(d)to provide a mechanism for the assessment of legal costs and the setting aside of particular costs agreements;

(e)to provide for the maximum payment for a law practice’s conduct of a speculative personal injury claim, other than practice as or in the manner of a barrister.

300Definitions for pt 3.4

In this part—

associated third party payer see section 301(2).

conditional costs agreement means a costs agreement that provides that the payment of some or all of the legal costs is conditional on the successful outcome of the matter to which those costs relate, as mentioned in section 323, but does not include a costs agreement to the extent to which section 325(1) applies.

costs agreement means an agreement about the payment of legal costs.

costs application means an application under section 335, 336 or 337 for an assessment of the whole or any part of legal costs.

costs assessment means an assessment of legal costs under division 7.

costs assessor means a person appointed under the Uniform Civil Procedure Rules as a cost assessor.

disbursements includes outlays.

itemised bill means a bill stating, in detail, how the legal costs are made up in a way that would allow the legal costs to be assessed under division 7.

litigious matter means a matter that involves, or is likely to involve, the issue of proceedings in a court or tribunal.

Note—

A matter is litigious matter when proceedings are initiated or at any stage when proceedings are reasonably likely.

lump sum bill means a bill that describes the legal services to which it relates and specifies the total amount of the legal costs.

non-associated third party payer see section 301(3).

public authority means an authority or body, whether a body corporate or not, established or incorporated for a public purpose by a law of a jurisdiction or of the Commonwealth, and includes a body corporate incorporated under a law of a jurisdiction or of the Commonwealth in which a jurisdiction or the Commonwealth has a controlling interest.

scale of costs includes the costs for a court prescribed under the Supreme Court of Queensland Act 1991 in relation to a matter.

sophisticated client means a client to whom, because of section 311(1)(c) or (d), disclosure under section 308 or 309(1) is not or was not required.

third party payer see section 301(1).

uplift fee means additional legal costs, excluding disbursements, payable under a costs agreement on the successful outcome of the matter to which the agreement relates.

301Terms relating to third party payers

(1)A person is a third party payer, in relation to a client of a law practice, if the person is not the client and—

(a)is under a legal obligation to pay all or any part of the legal costs for legal services provided to the client; or

(b)being under that obligation, has already paid all or a part of those legal costs.

(2)A third party payer is an associated third party payer if the legal obligation mentioned in subsection (1)(a) is owed to the law practice, whether or not it is also owed to the client or another person.

(3)A third party payer is a non-associated third party payer if the legal obligation mentioned in subsection (1)(a) is owed to the client or another person but not the law practice.

(4)A legal obligation mentioned in subsection (1) can arise by or under contract or legislation or otherwise.

(5)A law practice that retains another law practice on behalf of a client is not on that account a third party payer in relation to that client.

302Application of part—first instructions rule

This part applies to a matter if the client first instructs the law practice in relation to the matter in this jurisdiction.

303Part also applies by agreement or at client’s election

(1)This part applies to a matter if—

(a)either—

(i)this part does not currently apply to the matter; or

(ii)it is not possible to decide the jurisdiction in which the client first instructs the law practice in relation to the matter; and

(b)either or both of the following—

(i)the legal services are or will be provided wholly or primarily in this jurisdiction;

(ii)the matter has a substantial connection with this jurisdiction; and

(c)either—

(i)the client accepts, in writing or by other conduct, a written offer to enter into an agreement under subsection (2)(a) for the matter; or

(ii)the client gives notice under subsection (2)(b) for the matter.

(2)For subsection (1)(c), the client may—

(a)accept, in writing or by other conduct, a written offer that complies with subsection (3) to enter into an agreement with the law practice that this part is to apply to the matter; or

(b)notify the law practice in writing that the client requires this part to apply to the matter.

(3)An offer mentioned in subsection (2)(a) must clearly state—

(a)that it is an offer to enter into an agreement that this part is to apply to the matter; and

(b)that the client may accept it in writing or by other conduct; and

(c)the type of conduct that will constitute acceptance.

(4)A notice has no effect for subsection (2)(b) if it is given after the period of 28 days after the law practice discloses to the client, under a corresponding law, information about the client’s right to give notice of that kind, but nothing in this subsection prevents an agreement mentioned in subsection (2)(a) from coming into effect at any time.

304Displacement of part

(1)This section applies if this part applies to a matter under section 302 or 303.

(2)This part ceases to apply to the matter if—

(a)either or both of the following apply—

(i)the legal services are or will be provided wholly or primarily in another jurisdiction;

(ii)the matter has a substantial connection with another jurisdiction; and

(b)either—

(i)the client, under the corresponding law of the other jurisdiction, enters into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter; or

(ii)the client notifies, under the corresponding law of the other jurisdiction and within the time allowed by the corresponding law, the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter.

(3)Nothing in this section prevents the application of this part to the matter by means of a later agreement or notice under section 303.

305How and where does a client first instruct a law practice

A client first instructs a law practice in relation to a matter in a particular jurisdiction if the law practice first receives instructions from or on behalf of the client in relation to the matter in that jurisdiction, whether in person or by post, telephone, fax, email or other form of communication.

306When does a matter have a substantial connection with this jurisdiction

A regulation may prescribe the circumstances in which, or the rules to be used to decide whether, a matter has or does not have a substantial connection with this jurisdiction for the purposes of this part.

307What happens when different laws apply to a matter

(1)This section applies if this part applies to a matter for a period and a corresponding law applies for another period.

(2)If this part applied to a matter for a period and a corresponding law applies to the matter afterwards, this part continues to apply in relation to legal costs, if any, incurred while this part applied to the matter.

(3)If a corresponding law applied to a matter for a period and this part applies to the matter afterwards, this part does not apply in relation to legal costs, if any, incurred while the corresponding law applied to the matter, so long as the corresponding law continues to apply in relation to those costs.

(4)However—

(a)the client may enter into a written agreement with the law practice that the cost assessment provisions of this part are to apply in relation to all legal costs incurred in relation to the matter, and division 7 accordingly applies in relation to those legal costs; or

(b)if the client enters into a written agreement with the law practice that the cost assessment provisions of a corresponding law are to apply in relation to all legal costs incurred in relation to the matter, division 7 accordingly does not apply in relation to those legal costs.

(5)A written agreement mentioned in subsection (4) need not be signed by the client but in that case the client’s acceptance must be communicated to the law practice by fax, email or some other written form.

(6)If a corresponding law applied to a matter for a period and this part applies to the matter afterwards, this part does not require disclosure of any matters to the extent that they have already been disclosed under a corresponding law.

(7)This section has effect despite any other provisions of this part.

308Disclosure of costs to clients

(1)A law practice must disclose to a client under this division—

(a)the basis on which legal costs will be calculated, including whether a scale of costs applies to any of the legal costs; and

(b)the client’s right to—

(i)negotiate a costs agreement with the law practice; and

(ii)receive a bill from the law practice; and

(iii)request an itemised bill after receipt of a lump sum bill; and

(iv)be notified under section 315 of any substantial change to the matters disclosed under this section; and

(c)an estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable, a range of estimates of the total legal costs and an explanation of the major variables that will affect the calculation of those costs; and

(d)details of the intervals, if any, at which the client will be billed; and

(e)the rate of interest, if any, that the law practice charges on overdue legal costs, whether that rate is a stated rate of interest or is a benchmark rate of interest as mentioned in subsection (2); and

(f)if the matter is a litigious matter, an estimate of—

(i)the range of costs that may be recovered if the client is successful in the litigation; and

(ii)the range of costs the client may be ordered to pay if the client is unsuccessful; and

(g)the client’s right to progress reports under section 317; and

(h)details of the person whom the client may contact to discuss the legal costs; and

(i)the following avenues that are open under this Act to the client in the event of a dispute in relation to legal costs—

(i)costs assessment under division 7;

(ii)the setting aside of a costs agreement under section 328; and

(j)any time limits that apply to the taking of any action mentioned in paragraph (i); and

(k)that the law of this jurisdiction applies to legal costs in relation to the matter; and

(l)information about the client’s right—

(i)to accept under a corresponding law a written offer to enter into an agreement with the law practice that the corresponding provisions of the corresponding law apply to the matter; or

(ii)to notify under a corresponding law, and within the time allowed by the corresponding law, the law practice in writing that the client requires the corresponding provisions of the corresponding law to apply to the matter.

Note for paragraph (l)—

The client’s right to enter into an agreement or give a notification as mentioned in paragraph (l) will be under provisions of the law of the other jurisdiction that correspond to section 303.

(2)For subsection (1)(e), a benchmark rate of interest is a rate of interest for the time being equal to or calculated by reference to a rate of interest that is stated or decided from time to time by an ADI or another body or organisation, or by or under other legislation, and that is publicly available.

(3)A regulation may make provision for the use of benchmark rates of interest, and in particular in relation to permitting, regulating or preventing the use of particular benchmark rates or particular kinds of benchmark rates.

(4)For subsection (1)(f), the disclosure must include—

(a)a statement that an order by a court for the payment of costs in favour of the client will not necessarily cover the whole of the client’s legal costs; and

(b)if applicable, a statement that disbursements may be payable by the client even if the client enters a conditional costs agreement.

(5)A law practice may disclose any or all of the details mentioned in subsection (1)(b)(i), (ii) and (iii), (g), (i), (j) and (l) in or to the effect of a form approved by the chief executive for this subsection, and if it does so the practice is taken to have complied with this section in relation to the details so disclosed.

309Disclosure if another law practice is to be retained

(1)If a law practice intends to retain another law practice on behalf of a client, the first law practice must disclose to the client the details mentioned in section 308(1)(a), (c) and (d) in relation to the other law practice, in addition to any information required to be disclosed to the client under section 308.

(2)A law practice retained or to be retained on behalf of a client by another law practice is not required to make disclosure to the client under section 308, but must disclose to the other law practice the information necessary for the other law practice to comply with subsection (1).

(3)This section does not apply if the first law practice ceases to act for the client in the matter when the other law practice is retained.

Example—

If a barrister is retained by a firm of solicitors on behalf of a client of the firm, the barrister must disclose to the firm details of the barrister’s legal costs and billing arrangements, and the firm must disclose those details to the client. The barrister is not required to make a disclosure directly to the client.

310How and when must disclosure be made to a client

(1)Disclosure under section 308 must be made in writing before, or as soon as practicable after, the law practice is retained in the matter.

(2)Disclosure under section 309(1) must be made in writing before, or as soon as practicable after, the other law practice is retained.

(3)Disclosure made to a person before the law practice is retained in a matter is taken to be disclosure to the client for sections 308 and 309.

311Exceptions to requirement for disclosure

(1)Disclosure under section 308 or 309(1) is not required to be made in any of the following circumstances—

(a)if the total legal costs in the matter, excluding disbursements, are not likely to exceed $750 exclusive of GST or, if a higher amount is prescribed under a regulation, the prescribed amount;

(b)if—

(i)the client has received 1 or more disclosures under section 308 or 309(1) from the law practice in the previous 12 months; and

(ii)the client has agreed in writing to waive the right to disclosure; and

(iii)a principal of the law practice decides on reasonable grounds that, having regard to the nature of the previous disclosures and the relevant circumstances, the further disclosure is not warranted;

(c)if the client is—

(i)a law practice or an Australian legal practitioner; or

(ii)a public company, a subsidiary of a public company, a large proprietary company, a foreign company, a subsidiary of a foreign company or a registered Australian body, each within the meaning of the Corporations Act; or

(iii)a financial services licensee within the meaning of the Corporations Act; or

(iv)a liquidator, administrator or receiver, as mentioned in the Corporations Act; or

(v)a partnership that carries on the business of providing professional services if the partnership consists of more than 20 members or if the partnership would be a large proprietary company, within the meaning of the Corporations Act, if it were a company; or

(vi)a proprietary company, within the meaning of the Corporations Act, formed for the purpose of carrying out a joint venture, if any shareholder of the company is a person to whom disclosure of costs is not required; or

(vii)an unincorporated group of participants in a joint venture, if—

(A)1 or more members of the group are persons to whom disclosure of costs is not required; and

(B)1 or more members of the group (the relevant members) are persons to whom disclosure is required; and

(C)all relevant members have indicated that they waive their right to disclosure; or

(viii)a Minister of the Crown in right of a jurisdiction or the Commonwealth acting in his or her capacity as a Minister, or a government department or public authority of a jurisdiction or the Commonwealth; or

(ix)a trustee within the meaning of the Bankruptcy Act 1966 (Cwlth), section 5(1), definition the trustee, paragraphs (a) to (c);

(d)if the legal costs or the basis on which they will be calculated have or has been agreed as a result of a tender process;

(e)if the client will not be required to pay the legal costs or they will not otherwise be recovered by the law practice;

Example of paragraph (e)—

if the law practice acts in the matter on a pro bono basis

(f)in any circumstances prescribed under a regulation.

(2)Despite subsection (1)(a), if a law practice becomes aware that the total legal costs are likely to exceed $750 or a higher prescribed amount, the law practice must disclose the matters under section 308 or 309, as required, to the client as soon as practicable.

(3)A law practice must ensure that a written record of a principal’s decision that further disclosure is not warranted as mentioned in subsection (1)(b) is made and kept with the files relating to the matter concerned.

(4)The reaching of a decision mentioned in subsection (3) otherwise than on reasonable grounds is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of the principal.

(5)Nothing in this section affects or takes away from any client’s right—

(a)to progress reports under section 317, unless section 317(5) applies; or

(b)to obtain reasonable information from the law practice in relation to any of the matters stated in section 308; or

(c)to negotiate a costs agreement with a law practice and to obtain a bill from the law practice.

s 311 amd 2017 No. 17 s 159

312Additional disclosure—settlement of litigious matters

(1)If a law practice negotiates the settlement of a litigious matter on behalf of a client, before the settlement is executed, the law practice must disclose the following to the client—

(a)a reasonable estimate of the amount of legal costs payable by the client if the matter is settled, including any legal costs of another party that the client is to pay;

(b)a reasonable estimate of any contributions towards those costs likely to be received from another party.

(2)However, a regulation may provide for matters relevant to subsection (1) when there is more than 1 law practice acting on behalf of a client.

313Additional disclosure—uplift fees

(1)If a costs agreement involves an uplift fee, the law practice must, before entering into the agreement, disclose to the client in writing—

(a)the law practice’s legal costs; and

(b)the uplift fee, or the basis of calculation of the uplift fee; and

(c)the reasons why the uplift fee is warranted.

(2)A law practice is not required to make a disclosure under subsection (1) to a sophisticated client.

314Form of disclosure

(1)Written disclosures to a client under this division—

(a)must be expressed in clear plain language; and

(b)may be in a language other than English if the client is more familiar with that language.

(2)If the law practice is aware that the client is unable to read, the law practice must arrange for the information required to be given to a client under this division to be conveyed orally to the client in addition to providing the written disclosure.

315Ongoing obligation to disclose

A law practice must, in writing, disclose to a client any substantial change to anything included in a disclosure already made under this division as soon as is reasonably practicable after the law practice becomes aware of that change.

316Effect of failure to disclose

(1)If a law practice does not disclose to a client or an associated third party payer anything required by this division to be disclosed, the client or associated third party payer, as the case may be, need not pay the legal costs unless they have been assessed under division 7.

Note—

Under section 341, the costs of an assessment in these circumstances are generally payable by the law practice.

(2)A law practice that does not disclose to a client or an associated third party payer anything required by this division to be disclosed may not maintain proceedings against the client or associated third party payer, as the case may be, for the recovery of legal costs unless the costs have been assessed under division 7.

(3)If a law practice does not disclose to a client or an associated third party payer anything required by this division to be disclosed and the client or associated third party payer has entered into a costs agreement with the law practice, the client or associated third party payer may also apply under section 328 for the costs agreement to be set aside.

(4)If a law practice does not disclose to a client or an associated third party payer anything required by this division to be disclosed, then, on an assessment of the relevant legal costs, the amount of the costs may be reduced by an amount considered by the costs assessor to be proportionate to the seriousness of the failure to disclose.

(5)If a law practice retains another law practice on behalf of a client and the first law practice fails to disclose something to the client solely because the retained law practice failed to disclose relevant information to the first law practice as required by section 309(2), then subsections (1) to (4)—

(a)do not apply to the legal costs owing to the first law practice on account of legal services provided by it, to the extent that the non-disclosure by the first law practice was caused by the failure of the retained law practice to disclose the relevant information; and

(b)do apply to the legal costs owing to the retained law practice.

(6)In a matter involving both a client and an associated third party payer if disclosure has been made to 1 of them but not the other—

(a)subsection (1) does not affect the liability of the 1 to whom disclosure was made to pay the legal costs; and

(b)subsection (2) does not prevent proceedings being maintained against the 1 to whom the disclosure was made for the recovery of those legal costs.

(7)Failure by a law practice to comply with this division is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any Australian legal practitioner, or Australian-registered foreign lawyer, involved in the failure.

317Progress reports