Legal Practitioners (Amendment) Act 1979 (ACT)
N o . 20 of 1979
An Ordinance relating to Legal Practitioners
I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Ordinance under the Seat of Government (Administration) Act 1910.
Dated this eighteenth day of July 1979.
ZELMAN COWEN
Governor-General
By His Excellency's Command,
P. DURACK
Attorney-General
| LEGAL | PRACTITIONERS | ( A M E N D M E N T ) | ORDINANCE | 1979 |
| 1. This Ordinance may be cited as the Legal Practitioners | (Amend |
ment) Ordinance 1979.'
2. In this Ordinance, "Principal Ordinance" means the Legal
Practitioners Ordinance 1970.2
3. Section 5 of the Principal Ordinance is amended—
| (a) | by inserting after the definition of "barrister and solicitor" the following definition: | |
| (b) | by omitting from sub-sections (2) and (3) "other than the Judge" ; | |
| (c) |
|
" 'Chief Judge ' has the same meaning as in the Australian Capital Territory Supreme Court Act 1933;"; and
| (b) | by omitting the definition of " the Judge" . |
4. Section 7 of the Principal Ordinance is amended—
| (a) | by omitting sub-section (1) and substituting the following sub-section: |
" ( 1 ) There shall be a Barristers and Solicitors Admission Board of the Australian Capital Territory consisting of 5 members, being barristers and solicitors, appointed by the Chief Judge." ;
(d) by inserting after sub-section (4) the following sub-section: "(4A) The performance of the functions and the exercise of the powers of the Admission Board is not affected by reason only of there being a vacancy or vacancies in the membership of the Board.".
5. Section 8 of the Principal Ordinance is amended—
(a) by omitting from sub-section (1) " , other than the Judge,"; and (b) by omitting from sub-section ( 2 ) " , other than the Judge" .
6. Section 9 of the Principal Ordinance is repealed and the following section substituted:
" 9 . (1) At a meeting of the Admission Board, 3 members constitute
a quorum.
" ( 2 ) At the first meeting of the Board in each year the members present shall elect 1 of their number to be Chairman.
" ( 3 ) The Chairman shall preside at all meetings of the Board at which he is present.
" ( 4 ) In the absence of the Chairman from a meeting, the members present shall elect 1 of their number to preside at the meeting.
" ( 5 ) The Admission Board shall hold meetings at such times and places as the Chairman or, if for any reason the Chairman is unable to act or there is a vacancy in the office of Chairman, the Secretary to the Board, directs or the Board determines.".
7. Section 15 J of the Principal Ordinance is amended—
(a) by inserting after sub-section (2) the following sub-section:
"(2A) A barrister and solicitor who—
(a) resides in the Territory; and
(b) would, but for section 15E, be entitled, on making an application under section 15c, to have an unre
stricted practising certificate issued to him,
may apply to the Court for an order under sub-section (7 ) . " ;
and
(b) by adding at the end thereof the following sub-sections: " ( 7 ) Where, on an application under sub-section (2A), the Court is satisfied that the applicant has gained such experience that an unrestricted practising certificate should be issued to him. the Court may direct the Law Society to issue to the appli cant an unrestricted practising certificate.
" ( 8 ) On an application under sub-section (2A), the Court shall, on the application of the Law Society, order that the costs incurred by the Law Society in connexion with the application under sub-section (2A) be paid by the applicant unless the Court is satisfied that, in the circumstances of the case, it would not be just and reasonable to do so.".
8. The Principal Ordinance is amended by inserting after section 15N the following section:
" 15NA. The holder of a practising certificate who—
(a) commences to practise at an address, or under a name, other than that stated in the application for the practising certificate; (b) commences to practise, as a member of a partnership, under a name different from the name stated in the application for the practising certificate; or (c) ceases to practise at an address at which he was previously practising,
shall, within 14 days of commencing or ceasing so to practise, notify the Law Society of the fact and of the new name or address as the case requires.".
9. After section 4 0 of the Principal Ordinance the following section is inserted in Division 2 of Part V:
" 4 0 A . ( 1 ) Where -
(a) the Disciplinary Committee has made an order under sub
section 3 6 ( 1 ) ; (b)
the period of 21 days after the date on which the order was made has expired; and
(c) either—
(i) no appeal has been instituted under section 42 in relation to the order; or
(ii) such an appeal having been instituted, the appeal has been withdrawn or struck out or has been determined otherwise than by a decision of the Supreme Court after
a hearing,
a person who publishes a fair and accurate report of the prescribed mat ters in relation to the order has the same protection, in relation to the publication of that report, as he would have if—
(d) the Disciplinary Committee were a court of justice; and (e) the proceedings in which the order was made had been public- proceedings of the Disciplinary Committee.
" ( 2 ) For the purposes of sub-section ( 1). the prescribed matters in
relation to an order made by the Disciplinary Committee under sub
section 3 6 ( 1 ) are—
(a)
the name of the barrister and solicitor against whom the order was made;
(b)
the address at which, when the order was made, the barrister and solicitor was practising;
(c) the findings of the Disciplinary Committee; and
(d) the terms of the order.".
10. Section 47 of the Principal Ordinance is amended by adding at the end thereof the following sub-section:
" ( 2 ) Where 2 or more solicitors practise in partnership in the Territory, it is sufficient compliance with sub-section (1) if a trust bank account is opened and maintained on behalf of the partnership under a title that includes—
(a) the name or style of the partnership; (b) the full name of each partner in the partnership; and (c) words that indicate that it is the general trust bank account of the partnership.".
11. Section 55 of the Principal Ordinance is amended by adding at the end thereof the following sub-section:
" ( 4 ) Where 2 or more solicitors practise in partnership in the Terri
tory, it is sufficient compliance with this section if the accounting or other
records are kept on behalf of the partnership.".
12. Section 58 of the Principal Ordinance is repealed and the follow ing section substituted:
"5 8 . (1) A solicitor shall, not later than 7 days after the end of each year, engage an auditor or firm of auditors to audit his records in respect of trust moneys held in that year and shall, within 1 month after the date on which he engages the auditor or firm, notify the Law Society of the name of the auditor or of the firm, as the case requires.
" ( 2 ) Where 2 or more solicitors practise in partnership in the Terri
tory and keep accounting or other records on behalf of the partnership, it is sufficient compliance with sub-section (1) if the auditor or firm of auditors is engaged to audit the records kept on behalf of the
| partnership. |
" ( 3 ) A reference in this Ordinance, other than in this section or in section 59, to an auditor shall, where a firm of auditors has been appointed under this section, be deemed to include a reference to the firm of auditors.".
13. Section 59 of the Principal Ordinance is amended by adding at the end thereof the following sub-section:
" ( 2 ) A firm of auditors shall not be engaged to conduct an audit under this Division unless—
(a) at least 1 member of the firm is ordinarily resident in Australia; (b)
all the members of the firm ordinarily so resident are registered company auditors within the meaning of the Companies Ordinance 1962; and
(c) no member of the firm is— (i) an employee of the solicitor by whom the records are kept;
(ii) the spouse of the solicitor by whom the records are kept; or
(iii) an employee of another solicitor.".
14. Section 63 of the Principal Ordinance is amended—
(a) by omitting from paragraph (1) (e) " a n d " ; and (b) by adding after paragraph (1) (f) the following paragraphs:
" ( g )
where he holds trust moneys within the meaning of sec tion 46—that there is in a bank to the credit of a trust bank account kept in accordance with Part VII, and on deposit with the Law Society, a sum or sums sufficient to pay all moneys received by him or, in the case of a solici tor who practises with 1 or more solicitors in partnership in the Territory, received by the partnership, for or on be half of a person and not previously paid by him, or paid on behalf of the partnership, to that person or in accord ance with directions given by him; and
(h) where he does not hold any trust moneys within the meaning of section 46—that fact.''.
15. Section 65 of the Principal Ordinance is repealed and the follow ing section substituted:
" 6 5 . (1) A person who conducts an audit under this Part shall not communicate to any person any matter that comes to his knowledge in the course of the audit unless the communication is made—
(a) in accordance with this Ordinance;
(b) in or for the purpose of proceedings in a Court; (c) to the Attorney-General; (d) at an inquiry by the Disciplinary Committee; or (e) to a member of the Commonwealth Police Force or of the Police Force of the Territory, where the member is acting in the course of his duties as a member. " ( 2 ) A member or former member of the Council of the Law Society
shall not communicate to any person, not being a member of the Coun cil, a matter contained in a report referred to in section 61 or section 62 unless the communication is made—
(a) in accordance with this Ordinance;
(b) in or for the purpose of proceedings in a Court; (c) to the Attorney-General;
(d) at an inquiry by the Disciplinary Committee; or (e)
to a member of the Commonwealth Police Force or of the Police Force of the Territory, where the member is acting in the course of his duties as a member.
Penalty: $250.".
16. Section 66 of the Principal Ordinance is amended by omitting sub-section (5) and substituting the following sub-section:
" ( 5 ) Where, as a result of an examination of records under this
section—
(a) a solicitor is convicted of an offence against this Ordinance or any other law in force in the Territory; or (b) an order is made against a solicitor under Part V,
the Law Society may recover the costs of the examination from that sol icitor as a debt due to the Society and any amount so recovered shall be paid into the Fidelity Fund." .
17. Section 67 of the Principal Ordinance is amended by omitting sub-section (1) and substituting the following sub-sections:
" ( 1 ) For the purposes of this Division, sub-section 60 (1) applies as
if-
(a) a reference in that sub-section to an auditor were a reference to a person appointed under sub-section 66 (1); and (b) a reference in that sub-section to an audit were a reference to an examination under section 66.
" ( l A ) A solicitor shall comply with a requirement made in pursu ance of sub-section 60 (1) by a person appointed under sub-section 6 6 ( 1 ) .
Penalty: $1,000.".
| 18. Section 68 of the Principal Ordinance is repealed and the follow ing section substituted: |
"6 8 . (1) A person who conducts an examination under section 66 shall not communicate to any person any matter that comes to his knowl edge in the course of the examination unless the communication is made—
(a) in accordance with this Ordinance;
(b) in or for the purpose of proceedings in a Court; (c) to the Attorney-General;
(d ) at an inquiry by the Disciplinary Committee; or (e)
to a member of the Commonwealth Police Force or of the Police Force of the Territory, where the member is acting in the course of his duties as a member.
| " ( 2 ) | A member or former member of the Council of the Law Society |
shall not communicate to any person, not being a member of the Coun cil, any matter contained in a report referred to in section 66 unless the communication is made—
(a) in accordance with this Ordinance;
| (b) | in or for the purpose of proceedings in a Court; |
(c) to the Attorney-General;
| (d ) | at an inquiry by the Disciplinary Committee; or |
| (e) | to a member of the Commonwealth Police Force or of the Police Force of the Territory, where the member is acting in the course of his duties as a member. |
| Penalty: | $250." . |
19. Section 71 of the Principal Ordinance is amended—
| (a) | by omitting from sub-section (1) "Three thousand dol lars" and | |
| ||
| (b) | by omitting from paragraph (2) (a ) "Three thousand dol lars" and substituting "$3 ,000" . |
20. Section 74A of the Principal Ordinance is amended by omitting
sub-section (1) and substituting the following sub-section:
" ( 1 ) Moneys deposited with the Law Society by a solicitor in ac
cordance with this Division shall be invested by the Law Society—
| (a) | on interest bearing deposit with a bank in the Territory; or |
| (b) | with the consent of the Attorney-General, in an investment authorized by the Trustee Ordinance 1957.". |
21. Section 93 of the Principal Ordinance is amended—
| (a) | by omitting from paragraph (1) (a) " o r " (last occurring); |
| (b ) | by inserting after paragraph (1) (a ) the following paragraph: |
" ( a b ) that a solicitor has failed or refused to comply with
the requirement of an auditor or a person appointed under sub-section 66 (1) made in pursuance of sub section 60 (1); o r" ;
(c) by omitting sub-paragraph (1) (b) (iii);
| (d) | by inserting after sub-section (1) the following sub-section: |
" (1 A ) Where an unrestricted practising certificate issued to a solicitor has been cancelled, the Court may, if it thinks the cir cumstances so warrant, by order appoint a person specified in the order to be receiver of the trust property of the solicitor or, if the solicitor carried on practice in partnership with other solici tors, of the partnership."; and
| (e) | by omitting from sub-section (3) the words "either of the last two preceding sub-sections" and substituting the words "sub | |
|
22. (1) A member of the Admission Board holding office immedi ately before the commencement of this Ordinance, other than the member who was the Judge within the meaning of the Principal Ordi nance, continues to hold office after the commencement of this Ordi nance as if—
(a ) this Ordinance had been in force at the date of his appointment; and (b ) his appointment had been made under the Principal Ordinance as amended by this Ordinance.
(2) Where a report or requirement had been made or an approval given on an application before the date of commencement of this Ordi nance, the Principal Ordinance as amended by this Ordinance applies to and in relation to that report, requirement or approval as if—
(a)
this Ordinance had been in force when the report or require ment was made, or the approval given; and
(b)
the report or requirement had been made, or the approval given, by the Admission Board constituted in accordance with the Principal Ordinance as amended by this Ordinance.
NOTES
1. Notified in the Commonwealth of Australia Gazette on 26 July 1979.
2. Ordinance No. 43, 1970 as amended by No. 51, 1970; No. 9,1971; No. 4, 1972; No. 2, 1973; No. 5, 1974; Nos. 1, 22 and 45, 1975; Nos. 28 and 68, 1976; Nos. 20,55 and 62,1977; and Nos. 8 and 46,1978.
0
0
0