Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA)

South Australia

Legal Practitioners (Miscellaneous) Amendment Act 2013

An Act to amend the Legal Practitioners Act 1981; and to make related amendments to the Fair Work Act 1994, the Freedom of Information Act 1991 and the Legal Services Commission Act 1977.

The Parliament of South Australia enacts as follows:

Part 1Preliminary1Short title

This Act may be cited as the Legal Practitioners (Miscellaneous) Amendment Act 2013.

2Commencement

This Act will come into operation on a day to be fixed by proclamation.

3Amendment provisions

In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2Amendment of Legal Practitioners Act 19814Amendment of section 5 – Interpretation

(1)
Section 5(1)—after the definition of approved auditor insert:
associate—see section 5A;
(2)
Section 5(1), definition of Board—delete the definition and substitute:
Chief Executive of the Society means the principal executive officer employed by the Society and includes any person who is, for the time being, discharging the duties of that officer;
(3)
Section 5(1), definition of community legal centre—delete the definition and substitute:
Commissioner means the person holding or acting in the office of Legal Profession Conduct Commissioner under Part 6 Division 2;
community legal centre means a body that provides legal services to the community, or a section of the community, on a non‑profit basis, and includes the Aboriginal Legal Rights Movement, but does not include the Legal Services Commission;
(4)
Section 5(1), definition of company—delete the definition
(5)
Section 5(1)—after the definition of conduct insert:
conviction includes a formal finding of guilt;
corporation means—
(a)
a company within the meaning of the Corporations Act 2001 of the Commonwealth; or
(b)
any other body corporate, or body corporate of a kind, prescribed by the regulations;
corresponding disciplinary body means—
(a)
a court or tribunal having powers or functions under a corresponding law that correspond to any of the powers and functions of the Tribunal; or
(b)
the Supreme Court of another jurisdiction exercising—
(i)
its inherent jurisdiction or powers in relation to the control and discipline of legal practitioners; or
(ii)
its jurisdiction or powers to make orders under a corresponding law of the other jurisdiction in relation to legal practitioners;
(6)
Section 5(1), definition of director—delete the definition and substitute:
director, in relation to—
(a)
a company within the meaning of the Corporations Act 2001 of the Commonwealth—means a director as defined in section 9 of that Act; or
(b)
any other body corporate, or body corporate of a kind, prescribed by the regulations—means a person specified or described in the regulations;
(7)
Section 5(1),definition of the Executive Director—delete the definition and substitute:
Fidelity Fund means the Legal Practitioners Fidelity Fund maintained by the Society under Part 4;
(8)
Section 5(1), definition of fiduciary or professional default—delete "a firm" wherever occurring and substitute in each case:
an incorporated legal practice or firm
(9)
Section 5(1), definition of the guarantee fund—delete the definition and substitute:
incorporated legal practice has the same meaning as in Schedule 1;
(10)
Section 5(1)—after the definition of interstate practising certificate insert:
jurisdiction means a State or Territory of the Commonwealth;
law practice means—
(a)
a legal practitioner who is a sole practitioner; or
(b)
a firm of legal practitioners; or
(c)
an incorporated legal practice; or
(d)
a community legal centre;
(11)
Section 5(1), definition of legal practitioner or practitioner, (b)—delete paragraph (b)
(12)
Section 5(1)—after the definition of legal practitioner or practitioner insert:
legal practitioner director means a director of an incorporated legal practice who is a legal practitioner holding an unrestricted practising certificate;
legal profession rules means—
(a)
the Society's professional conduct rules;
(b)
any other rules prescribed by the regulations for the purposes of this definition;
legal services means work done, or business transacted, in the ordinary course of engaging in legal practice;
(13)
Section 5(1)—after the definition of mortgage financing insert:
officer means—
(a)
in relation to a company within the meaning of the Corporations Act 2001 of the Commonwealth—an officer as defined in section 9 of that Act; or
(b)
in relation to any other body corporate, or body corporate of a kind, prescribed by the regulations—a person specified or described in the regulations;
(14)
Section 5(1), definition of practise the profession of the law, legal practice or practise—delete the definition and substitute:
practise the profession of the law, in relation to a legal practitioner or incorporated legal practice—see section 21 (and engage in legal practice and practise have the same meaning);
(15)
Section 5(1)—after the definition of practising certificate insert:
principal—see section 5A;
professional mentoring agreement—see section 90B;
professional misconduct—see section 69;
professional obligations of a legal practitioner or an incorporated legal practice 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 required to be observed by legal practitioners;
Regulator means—
(a)
in relation to this jurisdiction—the Commissioner; or
(b)
in relation to another jurisdiction—the person or body defined as the Regulator in relation to that jurisdiction by the corresponding law of that jurisdiction or, if there is no such definition, the person or body with functions or powers under the corresponding law that correspond to those of the Commissioner under this Act;
(16)
Section 5(1), definition of regulatory authority, (a)—delete "Board" and substitute:
Commissioner
(17)
Section 5(1)—after the definition of regulatory authority insert:
related body corporate means—
(a)
in relation to a company within the meaning of the Corporations Act 2001 of the Commonwealth—a related body corporate within the meaning of section 50 of that Act; or
(b)
in relation to any other body corporate, or body corporate of a kind, prescribed by the regulations—a person specified or described in the regulations.
serious offence means an offence, whether committed in or outside this State, that is—
(a)
an indictable offence against a law of this State, the Commonwealth or a State or Territory of the Commonwealth (whether or not the offence is or may be dealt with summarily); or
(b)
an offence against a law of a State or Territory of the Commonwealth that would be an indictable offence against a law of this State if committed in this State (whether or not the offence could be dealt with summarily if committed in this State); or
(c)
an offence against a law of a foreign country that would be an indictable offence against a law of the Commonwealth or this State if committed in this State (whether or not the offence could be dealt with summarily if committed in this State);
show cause event, in relation to a person, means the person—
(a)
becoming bankrupt or being served with notice of a creditor's petition presented to the Court under section 43 of the Bankruptcy Act 1966 of the Commonwealth; or
(b)
presenting (as a debtor) a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 of the Commonwealth of his or her intention to present a debtor's petition or presenting (as a debtor) such a petition under section 55 of that Act; or
(c)
applying to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounding with his or her creditors or making an assignment of his or her remuneration for their benefit; or
(d)
being convicted of a serious offence or a tax offence, whether or not—
(i)
the offence was committed in or outside this State; or
(ii)
the offence was committed while the person was practising the law as a legal practitioner; or
(iii)
other persons are prohibited from disclosing the identity of the offender;
sole practitioner means a legal practitioner who practices the profession of the law on his or her own account;
(18)
Section 5(1)—after the definition of the statutory interest account insert:
tax offence means an offence under the Taxation Administration Act 1953 of the Commonwealth, whether committed in or outside this State;
(19)
Section 5(1), definition of trust account—delete the definition and substitute:
trust account has the meaning given in Schedule 2;
(20)
Section 5(1), definition of trust money—delete the definition and substitute:
trust money has the meaning given in Schedule 2;
(21)
Section 5(1), definition of unprofessional conduct—delete the definition
(22)
Section 5(1), definition of unsatisfactory conduct—delete the definition and substitute:
unrestricted practising certificate means a practising certificate that is not subject to any condition under this Act or a corresponding law requiring the holder to engage in supervised legal practice or restricting the holder to practise as, or in the manner of, a barrister;
unsatisfactory professional conduct—see section 68.
(23)
Section 5(4) and (5)—delete subsections (4) and (5) and substitute:
(4)
Nothing in this Act or the legal profession rules affects the exercise by the Director of Public Prosecutions, the Crown Solicitor or a prosecutor instructed by the Director of Public Prosecutions or the Crown Solicitor of any discretion in the context of a prosecution.

5Insertion of section 5A

After section 5 insert:
5A—Terms relating to associates and principals of law practices
(1)
For the purposes of this Act, an associate of a law practice is—
(a)
a legal practitioner who is—
(i)
a sole practitioner (in the case of a law practice constituted by the practitioner); or
(ii)
a partner in the law practice (in the case of a firm of legal practitioners); or
(iii)
a legal practitioner director in the law practice (in the case of an incorporated legal practice); or
(iv)
an employee of, or consultant to, the law practice; or
(b)
an agent of the law practice who is not a legal practitioner; or
(c)
an employee of the law practice who is not a legal practitioner.
(2)
For the purposes of this Act, a legal practitioner associate of a law practice is an associate of the practice who is a legal practitioner.
(3)
For the purposes of this Act, a principal of a law practice is a legal practitioner who is—
(a)
a sole practitioner (in the case of a law practice constituted by the practitioner); or
(b)
a partner in the law practice (in the case of a firm of legal practitioners); or
(c)
a legal practitioner director in the law practice (in the case of an incorporated legal practice); or
(d)
a legal practitioner who is generally responsible for the provision of legal services by the law practice (in the case of a community legal centre).

6Amendment of section 6 – Fusion of legal profession

Section 6(3a)—after ""Queen's Counsel"" insert:
, "King's Counsel" or "Senior Counsel"

7Amendment of section 8 – Officers and employees of Society

(1)
Section 8(2)—delete "an Executive Director" and substitute:
a Chief Executive
(2)
Section 8(3)—delete "Executive Director" and substitute:
Chief Executive

8Amendment of section 12 – Minutes of proceedings

Section 12(2) and (6)—delete "Executive Director" wherever occurring and substitute in each case:
Chief Executive

9Amendment of section 13 – Society's right of audience

(1)
Section 13(2)(c)—delete "unprofessional or unsatisfactory conduct" and substitute:
unsatisfactory professional conduct or professional misconduct
(2)
Section 13—after subsection (2) insert:
1. (3)
  The Society must, as soon as practicable after appointing a legal practitioner to appear before a court, commission or tribunal under subsection (1), notify the Attorney‑General of the appointment.

10Amendment of section 14AB – Certain matters to be reported by Society

(1)
Section 14AB(1)(a)—delete "an inspector under Division 5 of Part 3" and substitute:
an investigator or external examiner under Schedule 3
(2)
Section 14AB(1) and (2)—delete "Board" wherever occurring and substitute in each case:
Commissioner
(3)
Section 14AB(1)(c)—delete "unprofessional or unsatisfactory conduct" and substitute:
unsatisfactory professional conduct or professional misconduct

11Amendment of section 14B – Establishment of LPEAC

Section 14B(5)—after paragraph (e) insert:
(ea)
the Dean (or acting Dean) of the faculty or school of law at the University of South Australia; and
(eb)
the presiding member of the Board of Examiners; and

12Amendment of section 14C – Functions of LPEAC

Section 14C(1)(a)—after subparagraph (ii) insert:
and
(iii)
the categories (if any) of practising certificate to be issued by the Supreme Court under Part 3 and the limitations on the practice of the profession of the law that apply in relation to those categories;

13Amendment of section 14E – Procedures of LPEAC

Section 14E(1)—delete "Seven" and substitute:
Eight

14Amendment of section 15 – Entitlement to admission

(1)
Section 15(1)(a)—delete paragraph (a) and substitute:
1. (a)
  that he or she is a fit and proper person to practise the profession of the law; and
(2)
Section 15—after subsection (1) insert:
1. (1a)
  The Supreme Court must refer each application for admission and enrolment by a person whose name has been removed from the roll of legal practitioners maintained under this Act to the Attorney‑General, the Commissioner and the Society, each of whom is entitled to be heard by the Court on the application in accordance with the rules of the Court.

15Amendment of section 16 – Issue of practising certificate

(1)
Section 16(2), (3) and (4)—delete subsections (2), (3) and (4) and substitute:
1. (2)
  If LPEAC has made rules prescribing different categories of practising certificate and a legal practitioner has applied for a particular category of certificate under subsection (1), the practising certificate issued by the Supreme Court in the practitioner's name may be of that category.
(2)
Section 16(6)—delete subsection (6) and substitute:
1. (6)
  If LPEAC has made rules prescribing different categories of practising certificate, the regulations may prescribe different fees and levies for different categories of certificate.

16Amendment of section 18 – Term and renewal of practising certificates

Section 18—after subsection (2) insert:
(2a)
If the Supreme Court is satisfied that any particulars appearing on a practising certificate are incorrect, the Court may cancel the practising certificate and issue a replacement practising certificate.

17Insertion of Part 3 Divisions 2A to 2C

Part 3—after Division 2 insert:
Division 2A—Amendment, suspension or cancellation of practising certificates
20AB—Application of Division
This Division does not apply in relation to matters referred to in Division 2B.
20AC—Grounds for amending, suspending or cancelling practising certificate
Each of the following is a ground for amending, suspending or cancelling a practising certificate:
(a)
the holder of the certificate is not a fit and proper person to hold the certificate;
(b)
if a condition of the certificate is that the holder of the certificate is or has been limited to legal practice specified in the certificate—the holder of the certificate is engaging in legal practice that the holder is not entitled to engage in under this Act.
Note—
Such conditions could be imposed under section 17A(1)(b) or by the Commissioner or the Tribunal under Part 6. A particular category of certificate may also limit the holder of the certificate to specified legal practice.
20AD—Amending, suspending or cancelling practising certificates
(1)
The Supreme Court may, on the application of the Attorney‑General, the Society or the Commissioner, make an order amending, suspending or cancelling a practising certificate if the Court considers that a ground exists for the amendment, suspension or cancellation.
(2)
An application under this section—
(a)
must be served on the holder of the certificate in accordance with the rules of the Supreme Court; and
(b)
must—
(i)
specify the order sought by the applicant (including details of any amendment or suspension period proposed in the application); and
(ii)
state the ground for seeking the proposed order; and
(iii)
invite the holder to make written representations to the Court, within a time specified by the Court of not less than 7 days and not more than 28 days, as to why the order should not be made.
(3)
If, after considering all written representations made within the specified time and, in its discretion, written representations made after the specified time, the Supreme Court considers that a ground exists to—
(a)
make an order amending, suspending or cancelling the certificate as proposed in the application; or
(b)
make an order for the amendment or suspension of the certificate that is less onerous than the order proposed in the application,
the Court may make the order.
(4)
If the Supreme Court makes an order amending, suspending or cancelling the practising certificate, the Court must give the holder a written notice about the order setting out—
(a)
the terms of the order; and
(b)
the reasons for the order.
Note—
Under some provisions of this Act, a practising certificate is taken to be suspended by force of the provision. See, for example, section 19(1) and Schedule 1 clause 12(2).
This section does not derogate from the power of LPEAC to cancel a practising certificate under section 17A.
20AE—Operation of amendment, suspension or cancellation of practising certificate
(1)
This section applies if an order is made to amend, suspend or cancel a practising certificate under section 20AD.
(2)
Subject to subsections (3) and (4), the amendment, suspension or cancellation of the practising certificate takes effect on the later of the following:
(a)
the day notice of the order is given to the holder of the certificate;
(b)
the day specified in the notice.
(3)
If the practising certificate is amended, suspended or cancelled because the holder of the certificate has been convicted of an offence—
(a)
the Supreme Court may, on the application of the holder, order that the operation of the amendment, suspension or cancellation of the practising certificate be stayed until—
(i)
the end of the time to appeal against the conviction; and
(ii)
if an appeal is made against the conviction—the appeal is finally decided, lapses or otherwise ends; and
(b)
the amendment, suspension or cancellation does not have effect during any period in respect of which the stay is in force.
(4)
If the practising certificate is amended, suspended or cancelled because the holder has been convicted of an offence and the conviction is quashed—
(a)
the amendment or suspension ceases to have effect when the conviction is quashed; or
(b)
the cancellation ceases to have effect when the conviction is quashed and the certificate is restored as if it had merely been suspended.
20AF—Revocation of amendment, suspension or cancellation of practising certificate
(1)
The holder of a practising certificate that has been amended, suspended or cancelled under section 20AD may make written representations to the Registrar of the Supreme Court about the amendment, suspension or cancellation and the Court must consider the representations.
(2)
The Supreme Court may revoke the amendment, suspension or cancellation at any time, whether or not in response to any written representations made to it by the holder.
Division 2B—Special powers in relation to practising certificates—show cause events
20AG—Applicant for practising certificate—show cause event
(1)
This section applies if—
(a)
a person is applying for a practising certificate; and
(b)
a show cause event in relation to the person happened, whether before or after the commencement of this section, after the person was first admitted to the legal profession in this or another jurisdiction (however the admission was expressed at the time of the admission).
(2)
As part of the application, the person must provide to the Supreme Court a written statement, in accordance with any prescribed requirements—
(a)
setting out particulars of the show cause event; and

(b)
explaining why, despite the show cause event, the applicant considers himself or herself to be a fit and proper person to hold a practising certificate.
(3)
However, the applicant need not provide a statement under subsection (2) if the person (as a previous applicant for a practising certificate or as the holder of a practising certificate previously in force) has previously provided to the Supreme Court—
(a)
a statement under this section; or
(b)
a notice and statement under section 20AH,
explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to hold a practising certificate.
(4)
A notice or written statement provided to the Supreme Court under this section must be served by the applicant on the Commissioner and the Society, each of whom may make written representations to the Court in relation to the holder of the practising certificate within the time, and in accordance with the procedure, prescribed by rules of the Court.
20AH—Holder of practising certificate—show cause event
(1)
This section applies to a show cause event that happens in relation to the holder of a practising certificate.
(2)
The holder must provide to the Supreme Court both of the following:
(a)
within 7 days after the happening of the event—notice, in the form approved by the Court, that the event happened;
(b)
within 28 days after the happening of the event—a written statement explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to hold a practising certificate.
(3)
If a written statement is provided after the 28 days mentioned in subsection (2)(b), the Supreme Court may accept the statement and take it into consideration.
(4)
A notice and written statement provided to the Supreme Court under this section must be served by the holder on the Commissioner and the Society, each of whom may make written representations to the Court in relation to the holder of the practising certificate within the time, and in accordance with the procedure, prescribed by rules of the Court.
20AI—Refusal, amendment, suspension or cancellation of practising certificate—failure to show cause
(1)
The Supreme Court may refuse to issue or renew, or may amend, suspend or cancel, a practising certificate if the applicant or holder—
(a)
is required by section 20AG or 20AH to provide a written statement relating to a matter and has failed to provide a written statement in accordance with that requirement; or
(b)
has provided a written statement in accordance with section 20AG or 20AH but the Court does not consider that the applicant or holder has shown in the statement that, despite the show cause event concerned, he or she is a fit and proper person to hold a practising certificate.
(2)
For the purposes of this section only, a written statement accepted by the Supreme Court under section 20AH(3) is taken to have been provided in accordance with section 20AH.
(3)
If the Supreme Court makes a determination under this section, the Court must, as soon as practicable, give the applicant or holder written notice of the determination.
Division 2C—Further provisions relating to practising certificates
20AJ—Immediate suspension of practising certificate
(1)
This section applies, despite Division 2A and Division 2B, if the Supreme Court considers, on application by the Attorney‑General, the Society or the Commissioner, or on the Court's own initiative, that it is necessary in the public interest to immediately suspend a practising certificate on—
(a)
any of the grounds on which the certificate could be suspended or cancelled under Division 2A; or
(b)
the ground of the happening of a show cause event in relation to the holder; or
(c)
any other ground that the Court considers warrants suspension of the certificate in the public interest,
whether or not any action has been taken or commenced under Division 2A or Division 2B in relation to the holder.
(2)
The Supreme Court may, by written notice given to the holder, immediately suspend the practising certificate until the earlier of the following:
(a)
the time at which the Court informs the holder of the Court's decision by notice under section 20AD;
(b)
the end of the period of 56 days after the notice is given to the holder under this section.
(3)
The notice under this section must—
(a)
include a statement of—
(i)
the decision to suspend the practising certificate; and
(ii)
the reasons for the decision; and
(b)
state that the practitioner may make written representations to the Supreme Court about the suspension.
(4)
The holder may make written representations to the Supreme Court about the suspension, and the Court must consider the representations.
(5)
The Supreme Court may revoke the suspension at any time, whether or not in response to any written representations made to it by the holder.
20AK—Surrender and cancellation of practising certificate
(1)
The holder of a practising certificate may surrender the certificate to the Supreme Court.
(2)
The Supreme Court may cancel the certificate.

18Amendment of section 21 – Entitlement to practise

(1)
Section 21(1)—delete subsection (1) and substitute:
1. (1)
  A natural person must not practise the profession of the law, or hold himself or herself out, or permit another to hold him or her out, as being entitled to practise the profession of the law unless the person—
  (a)
  is a local legal practitioner; or
  (b)
  is an interstate legal practitioner.
Maximum penalty: $50 000.
(2)
Section 21(2)(c)—delete "memorandum or articles of association" and substitute:
constitution
(3)
Section 21—after subsection (4) insert:
1. (4a)
  In proceedings for an offence against subsection (1), a certificate purporting to be signed by the Chief Executive and stating that a person is not a local legal practitioner or not an interstate legal practitioner is, in the absence of proof to the contrary, prima facie evidence of that fact.

19Amendment of section 23AA – Employment of disqualified person

Section 23AA(7)—delete "Board" wherever occurring and substitute in each case:
Commissioner

20Amendment of section 23B —Limitations or conditions on practice under laws of participating States

Section 23B(4)—delete "unprofessional conduct" and substitute:
professional misconduct

21Amendment of section 23D – Notification of establishment of office required

Section 23D(4)—delete "Board" and substitute:
Commissioner

22Insertion of Part 3 Division 3B

Part 3—after Division 3A insert:
Division 3B—Provisions relating to community legal centres
23E—Community legal centres
(1)
A community legal centre does not contravene this Act merely because—
(a)
it employs, or otherwise uses the services of, legal practitioners to provide legal services; or
(b)
it has a contractual relationship with a person to whom those legal services are provided.
(2)
The regulations may modify or exclude the application of a provision of this Act to community legal centres or legal practitioners employed by community legal centres.
(3)
This section has effect despite anything to the contrary in this Act.
23F—Obligations and privileges of practitioners who are officers or employees
(1)
A legal practitioner who provides legal services on behalf of a community legal centre—
(a)
is not excused from compliance with professional obligations as a legal practitioner, or any obligations as a legal practitioner under any law; and
(b)
does not lose the professional privileges of a legal practitioner.
(2)
The regulations may make further provision in relation to the application of the professional obligations and professional privileges of a legal practitioner for the purposes of subsection (1).
(3)
The law relating to client legal privilege (or other legal professional privilege) is not excluded or otherwise affected because a legal practitioner is providing legal services on behalf of a community legal centre.
(4)
A legal practitioner who is providing legal services on behalf of a community legal centre may, for any proper purpose, disclose a matter to the officers of the centre (whether or not those officers are legal practitioners) and such disclosure will be taken not to affect the operation of client legal privilege (or other legal professional privilege).
23G—Undue influence
A person must not cause or induce or attempt to cause or induce a legal practitioner who is providing legal services on behalf of a community legal centre to contravene this Act, the regulations, the legal profession rules or his or her professional obligations as a legal practitioner.
Maximum penalty: $50 000.
23H—Application of legal profession rules
The legal profession rules, so far as they apply to legal practitioners, also apply to legal practitioners who provide legal services on behalf of a community legal centre, unless the rules otherwise provide.
23I—Costs
If legal assistance has been provided to a person by a community legal centre, the centre is subrogated to the rights of the assisted person to costs in respect of that legal assistance.

23Substitution of Part 3 Division 4

Part 3 Division 4—delete Division 4 and substitute:
Division 4—Provisions regulating legal practice by corporations
24—Application of Schedule 1
The provisions set out in Schedule 1 apply in relation to a corporation that engages in legal practice in this jurisdiction.

24Substitution of Part 3 Division 5

Part 3 Division 5—delete Division 5 and substitute:
Division 5—Provisions regulating trust money and trust accounts
25—Application of Schedule 2
The provisions set out in Schedule 2 apply to law practices in respect of trust money and associated matters as specified in clause 4 of the Schedule.

25Amendment of section 39 – Delivery up of legal papers

(1)
Section 39(1)—delete subsection (1) and substitute:
1. (1)
  A court may, on the application of any person, order a legal practitioner or former legal practitioner, or an incorporated legal practice, to deliver up documents—
  (a)
  held by the practitioner, former practitioner or legal practice on behalf of the applicant; or
  (b)
  relating to proceedings taken or work done by the practitioner, former practitioner or legal practice on behalf of the applicant.
(2)
Section 39(3)—delete "Supreme Court" and substitute:
court
(3)
Section 39(3)—delete " or former legal practitioner to costs for legal work done by the practitioner" and substitute:
, former practitioner or legal practice to costs for legal work done by the practitioner or practice

26Substitution of Part 3 Division 8

Part 3 Division 8—delete Division 8 and substitute:
Division 8—Costs disclosure and adjudication
41—Application of Schedule 3
The provisions set out in Schedule 3 apply in relation to the recovery of legal costs and adjudication of legal costs.

27Amendment of section 43A – Interpretation

Section 43A, definition of legal practitioner—after paragraph (b) insert:
or
(c)
an incorporated legal practice.

28Amendment of section 48 – Remuneration etc of persons appointed to exercise powers conferred by this Division

Section 48(3)—delete "taxed" and substitute:
adjudicated

29Substitution of heading to Part 3 Division 10

Heading to Part 3 Division 10—delete the heading and substitute:
Division 10—Restriction on practice if corporation wound up

30Amendment of section 49 – Supreme Court may grant authority permitting director to practise

(1)
Section 49(1)(a)—delete paragraph (a)
(2)
Section 49(1)(b)—delete "practitioner during the winding up of the company" and substitute:
practice during the winding up of the corporation
(3)
Section 49(1a)—delete "or is about to become bankrupt or subject to a composition or deed of arrangement or assignment with or for the benefit of creditors or who is "
(4)
Section 49(1a)—delete "incorporated legal practitioner" and substitute:
incorporated legal practice
(5)
Section 49—after subsection (1a) insert:
1. (1b)
  An application for an authority under this section must be served on the Commissioner and the Society, each of whom is entitled to be heard by the Supreme Court on the application in accordance with the rules of the Court.

31Amendment of section 50 – Supreme Court may authorise personal representative etc to carry on legal practice

Section 50(3)—delete "a company that is a legal practitioner may, with the authority of the Supreme Court, carry on the practice of the company" and substitute:
an incorporated legal practice may, with the authority of the Supreme Court, carry on the practice of the incorporated legal practice

32Amendment of section 51 – Right of audience

(1)
Section 51(1)(ca)—delete "Australian Securities Commission" and substitute:
Australian Securities and Investments Commission
(2)
Section 51(1)(g)—delete paragraph (g) and substitute:
(g)
the Commissioner (if he or she is a legal practitioner) and a legal practitioner employed by the Commissioner; and
(h)
the Independent Commissioner Against Corruption and a legal practitioner engaged by the Independent Commissioner Against Corruption.

33Amendment of section 52 – Professional indemnity insurance scheme

(1)
Section 52(1)—after "legal practitioners" insert:
and law practices
(2)
Section 52(2)—after "legal practitioner" wherever occurring insert:
or law practices
(3)
Section 52(3)(b)—after "legal practitioners" insert:
and law practices
(4)
Section 52(5), definition of legal practitioner, (a)—after "university;" insert:
and
(5)
Section 52(5), definition of legal practitioner—after paragraph (b) insert:
and
1. (c)
  an interstate legal practitioner;
(6)
Section 52(5), definition of professional indemnity insurance, (b)—after "legal practitioner" insert:
or law practice

34Substitution of section 52AA

Section 52AA—delete the section and substitute:
52AA—Professional indemnity insurance required by interstate practitioners etc
(1)
A prescribed practitioner or practice must not engage in legal practice in this jurisdiction unless there is in force approved professional indemnity insurance in respect of that practitioner or practice.
Maximum penalty:
(a)
for an offence committed by an interstate legal practitioner—$10 000;
(b)
in any other case—$50 000.
(2)
If an interstate legal practitioner fails to comply with this section, the Supreme Court may, on application by the Attorney‑General or the Society, suspend the practitioner's right to practise the profession of the law in this State until this section is complied with.
(3)
If an incorporated legal practice fails to comply with this section, the Supreme Court may, on application by the Attorney‑General or the Society, suspend any legal practitioner director's right to practise the profession of the law in this State until this section is complied with.
(4)
The Supreme Court must give notice of a suspension imposed under subsection (3) to any regulatory authority that is authorised to seek or impose a corresponding suspension in a State in which the practitioner is admitted as a legal practitioner.
(5)
In this section—
approved professional indemnity insurance means insurance—
(a)
that has been approved by the Attorney‑General; or
(b)
that is of a class or kind that has been approved by the Attorney‑General.
prescribed practitioner or practice means—
(a)
an interstate legal practitioner who—
(i)
establishes an office in this State; and
(ii)
if he or she were a local legal practitioner, would be covered by a scheme providing professional indemnity insurance; or
(b)
an incorporated legal practice that is not required to be insured under a scheme established under section 52;

35Substitution of section 53

Section 53—delete the section and substitute:
52B—Application to incorporated legal practices
The regulations may provide that specified provisions of this Division, and any other provisions of this Act, the regulations or the legal profession rules relating to this Division, do not apply to incorporated legal practices (or a specified class of incorporated legal practices) or apply to them with specified modifications.
53—Duty to deposit trust money in combined trust account
(1)
A law practice must, within 14 days after 31 May, and within 14 days after 30 November, in each year, out of trust money held in the practice's general trust account, deposit the appropriate amount in the combined trust account.
(2)
The appropriate amount is the amount (if any) necessary to ensure that the following formula is satisfied:
Where—
A1 is the amount held on the practice's behalf in the combined trust account
A2 is the lowest aggregate (determined by reference to the relevant ADI statements) of the amount held in the practice's general trust account and the amount (if any) simultaneously held in the combined trust account on the practice's behalf during the period of 6 months ending on 31 May or 30 November (as the case requires).
(3)
The combined trust account is a composite account consisting of separate accounts established by the Society at each approved ADI.
(4)
If a law practice maintains 2 or more general trust accounts, those accounts will, for the purposes of this section, be taken to be a single trust account the balance of which is the aggregate of the respective balances of each of those trust accounts.
(5)
A law practice—
(a)
may withhold money from deposit under subsection (1) if—
(i)
the money is necessary to meet an immediate claim on the practice's general trust account or to establish or maintain a reasonable balance in the general trust account sufficient to meet claims reasonably expected in the ordinary course of legal practice in the near future; and
(ii)
the practice has, on or before the day on which a deposit under subsection (1) is required to be made, given written notice to the Society accordingly; and
(b)
is not obliged to deposit money under subsection (1) in relation to a particular period of 6 months if the lowest aggregate referred to in subsection (2) was, during that period, less than $10 000 (or some other sum fixed by regulation for the purposes of this subsection).
(6)
If a general trust account is maintained by a firm of legal practitioners, the general trust account will, for the purposes of this section, be taken to be the general trust account of each member of the firm, and the members of the firm are each liable to perform the obligations imposed by this section, but the discharge by 1 member of the firm of the obligations under this section in relation to the general trust account will be taken as a discharge by all the members of the firm of their obligations in relation to that general trust account.
(7)
If the Council has reasonable cause to suspect that a law practice has not complied with the obligations of this section, it may, by notice in writing served on the practice, require the practice to attend before it and to produce evidence of the trust money received by the practice, the amount from time to time standing to the credit of the general trust account, and such other relevant matters as may be specified in the notice.
(8)
If a law practice establishes a general trust account and has, at the time of establishing the account, no other trust account, the balance of the general trust account during the first month after its establishment is, for the purposes of this section, to be ignored.
(9)
A law practice that fails to make the appropriate deposit by the last date for payment is liable to pay the Society, for the credit of the statutory interest account, interest on the outstanding amount at the prescribed rate for the period of the default but, if the appropriate deposit is made within 7 days after that date, no liability for interest arises under this subsection.
(10)
A law practice may withdraw money held on the practice's account in the combined trust account if, and only if, the withdrawal is necessary to meet an immediate claim on the practice's general trust account or to establish a reasonable balance in the general trust account sufficient to meet claims reasonably expected in the ordinary course of legal practice in the near future.
(11)
If a law practice withholds money from deposit under subsection (5)(a) or withdraws money under subsection (10), the external examiner for the law practice must, in the external examiner's report for the relevant year, express an opinion on whether the withholding or withdrawal was justified, and if the amount exceeds the amount that could, in the external examiner's opinion, be reasonably justified, on the amount of the excess (but before the external examiner includes a statement expressing such an opinion in the report, the external examiner must allow the practice a reasonable opportunity to comment on the proposed statement and may make any modification to the proposed statement that the external examiner considers justified in the light of the practice's comments).

(12)
If the withholding or withdrawal of money is not justified, or exceeds an amount that could be reasonably justified, the law practice is liable to pay to the Society, for the credit of the statutory interest account, interest at the prescribed rate on the amount withheld or withdrawn, or the amount of the excess, (as the case requires), from the date of the withholding or withdrawal until the amount on deposit in the combined trust account is restored to the level required by this section.
(13)
The Society may, for any proper reason, remit interest payable under subsection (9) or (12) wholly or in part.
(14)
The Society—
(a)
may approve an ADI for the purposes of this section if satisfied that the ADI is prepared to pay a reasonable rate of interest on money deposited in the combined trust account; and
(b)
may revoke an approval previously given under this subsection.
(15)
If the Society revokes the approval of an ADI undersubsection (14) the combined trust account, so far as it was kept at that ADI, must be transferred to an ADI that continues as an approved ADI.
(16)
In this section—
general trust account has the same meaning as in Schedule 2.

36Substitution of heading to Part 4 Division 3

Heading to Part 4 Division 3—delete the heading and substitute:
Division 3—Legal Practitioners Fidelity Fund

37Amendment of section 57 – Fidelity Fund

(1)
Section 57(1)—delete subsection (1) and substitute:
(1)
The Society must continue to maintain the Legal Practitioners Fidelity Fund (formerly known as the legal practitioners' guarantee fund).
(2)
Section 57(2), (3), (5) and (6)—delete "guarantee fund" wherever occurring and substitute in each case:
Fidelity Fund
(3)
Section 57(3)(d)—delete "Board" and substitute:
Commissioner
(4)
Section 57(3)(da)—delete "Board" and substitute:
Commissioner
(5)
Section 57(4)—delete subsection (4) and substitute:
(4)
Subject to subsection (5), money in the Fidelity Fund may be applied for any of the following purposes:
(a)
meeting any expenses incurred by LPEAC or members of LPEAC in exercising functions and powers under this Act;
(b)
meeting any expenses incurred by the Board of Examiners or members of the Board of Examiners in exercising functions and powers under this Act;
(c)
meeting any expenses incurred by the Tribunal or members of the Tribunal in exercising functions and powers under this Act;
(d)
meeting any expenses incurred by the Commissioner in exercising the Commissioner's functions and powers under this Act;
(e)
the costs incurred by the Society in appointing a legal practitioner to appear in proceedings in which a person seeks admission as a legal practitioner;
(f)
the costs of investigating complaints under this Act and of disciplinary proceedings under this Act;
(g)
the costs of conducting an audit or bringing proceedings under Schedule 1;
(h)
the costs of proceedings instituted by the Commissioner for the adjudication of legal costs;
(i)
the costs of prosecutions for offences against this Act;
(j)
costs consequent on the appointment of a supervisor or manager under this Act;
(k)
the costs of an investigation or examination under Schedule 2 Part 3;
(l)
the payment of honoraria, approved by the Attorney‑General, to members of LPEAC and the Tribunal;
(m)
the legal costs payable by any person in relation to any action arising from an honest act or omission in the exercise or purported exercise of powers or functions under Schedule 2 or 4 or by the Commissioner or delegated by the Commissioner;
(n)
the payment of money towards the costs of an arrangement under Part 3 Division 13 to the extent that those costs are, in accordance with the terms of the scheme and with the approval of the Attorney‑General, to be paid from the Fidelity Fund;
(o)
the costs of processing claims under Part 5 and of paying out those claims to the extent authorised by that Part;
(p)
defraying any management fee or other expenditure relating to the management or administration of the Fidelity Fund;
(q)
educational or publishing programs conducted for the benefit of legal practitioners or members of the public.
(6)
Section 57(6)—delete "Board" and substitute:
Commissioner

38Amendment of section 60 – Claims

(1)
Section 60—after subsection (1) insert:
(1a)
In determining whether there is a reasonable prospect of recovering the full amount of a loss for the purposes of subsection (1)(b), potential action for the recovery of the amount that would not be taken by an ordinarily prudent, self‑funded litigant is to be disregarded.
(2)
Section 60(5)(a)—delete paragraph (a) and substitute:
(a)
a claim can only be made in relation to a fiduciary or professional default by—
(i)
an interstate legal practitioner; or
(ii)
an incorporated legal practice that is not required to be insured under a scheme established under section 52,
in circumstances provided for by an agreement or arrangement made by the Society with the approval of the Attorney‑General under section 95AA; and

39Amendment of section 61 – Limitation of claims

Section 61(1)—delete "three" and substitute:
6

40Amendment of section 64 – Satisfaction of claims

Section 64(2)—delete "the prescribed percentage" and substitute:
a percentage (which must not be less than 20%) prescribed by regulation for the purposes of this subsection

41Insertion of section 64A

After section 64 insert:
64A—Advance payments
(1)
The Society may, at its absolute discretion, make payments to a claimant in advance of the determination of a claim if satisfied that—
(a)
the claim is likely to be allowed; and
(b)
payment is warranted to alleviate hardship.
(2)
A payment may be made under this section even if there is some prospect that the whole or a part of the claimant's pecuniary loss will be recovered from another source.
(3)
Any payments made in advance are to be taken into account when the claim is determined.
(4)
Payments under this section are to be made from the Fidelity Fund.
(5)
If the claim is disallowed, the amounts paid under this section are recoverable by the Society as a debt due to the Fidelity Fund.
(6)
If the claim is allowed but the amount payable is less than the amount paid under this section, the excess paid under this section is recoverable by the Society as a debt due to the Fidelity Fund.

42Amendment of section 66 – Claims by legal practitioners and incorporated legal practices

(1)
Section 66(1)—delete subsection (1) and substitute:
1. (1)
  A legal practitioner or incorporated legal practice who has paid compensation to any person for pecuniary loss suffered in consequence of a fiduciary or professional default by a partner, director, clerk, officer or employee of the legal practitioner or legal practice may make a claim under this Part in respect of the payment provided that, in the case of a fiduciary or professional default by a partner or a legal practitioner director, the default consisted of a defalcation, misappropriation or misapplication of trust money or dishonest conduct.
(2)
Section 66(2)(b)—after "legal practitioner" insert:
or incorporated legal practice

43Amendment of section 67A – Annual report

Section 67A(2)—delete subsection (2) and substitute:
(2)
The report must—
(a)
state the amount of the payments from the Fidelity Fund during the financial year and the nature of the claims in respect of which payments were made; and
(b)
contain the audited statement of accounts of the Fidelity Fund for the period to which the report relates.

44Substitution of Part 6 Divisions 1 and 2

Part 6 Divisions 1 and 2—delete Divisions 1 and 2 and substitute:
Division 1—Preliminary
68—Unsatisfactory professional conduct
In this Act—
unsatisfactory professional conduct includes conduct of a legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
69—Professional misconduct
In this Act—
professional misconduct includes—
(a)
unsatisfactory professional conduct of a legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)
conduct of a legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to practise the profession of the law.
70—Conduct capable of constituting unsatisfactory professional conduct or professional misconduct
Without limiting section 68 or 69, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct:
(a)
conduct consisting of a contravention of this Act, the regulations or the legal profession rules;
(b)
charging of excessive legal costs in connection with the practice of law;
(c)
conduct in respect of which there is a conviction for—
(i)
a serious offence; or
(ii)
a tax offence; or
(iii)
an offence involving dishonesty;
(d)
conduct of a legal practitioner as or in becoming an insolvent under administration;
(e)
conduct of a legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth;
(f)
conduct of a legal practitioner in failing to comply with an order of the Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law);
(g)
conduct of a legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law;
(h)
conduct of a legal practitioner in failing to comply with the terms of a professional mentoring agreement entered into with the Society.
Division 2—Legal Profession Conduct Commissioner
Subdivision 1—Legal Profession Conduct Commissioner
71—Legal Profession Conduct Commissioner
(1)
There will be a Legal Profession Conduct Commissioner.
(2)
The Commissioner will be appointed by the Governor, following consultation about the appointment by the Attorney‑General with the Society and the South Australian Bar Association Incorporated, and is an agency of the Crown.
(3)
Although a person appointed as Legal Profession Conduct Commissioner need not be a legal practitioner, the Commissioner must be a person who, in the opinion of the Attorney‑General—
(a)
is familiar with the nature of the legal system and legal practice; and
(b)
possesses sufficient qualities of independence, fairness and integrity.
72—Functions
(1)
The functions of the Commissioner are—
(a)
to investigate suspected unsatisfactory professional conduct or professional misconduct by legal practitioners in accordance with Subdivision 2; and
(b)
following an investigation, to take action authorised under Subdivision 3 or to lay charges before the Tribunal; and
(c)
to receive and deal with complaints of overcharging in accordance with Subdivision 4; and
(d)
to arrange for the conciliation of complaints in accordance with Subdivision 5; and
(e)
to commence disciplinary proceedings against legal practitioners or former legal practitioners in the Supreme Court on the recommendation of the Tribunal or under section 88A or 89; and
(f)
to carry out such other functions as are assigned to the Commissioner under this Act.
(2)
The Commissioner may, with the approval of the Attorney‑General, fix, and require the payment of, fees in connection with the performance of functions of the Commissioner under this Act.
(3)
The Commissioner may exercise any of his or her functions or powers in relation to a person who is a former legal practitioner if, at the time of the alleged unsatisfactory professional conduct, professional misconduct or overcharging, the person was a legal practitioner.
(4)
The Commissioner may be represented in proceedings before any court or tribunal by a legal practitioner employed or engaged by the Commissioner.
73—Terms and conditions of appointment
(1)
The Commissioner will be appointed for a term not exceeding 5 years and on conditions determined by the Governor and, at the end of a term of appointment, will be eligible for reappointment.
(2)
The appointment of the Commissioner may be terminated by the Governor on the ground that the Commissioner—
(a)
has been guilty of misconduct; or
(b)
has been convicted of an offence punishable by imprisonment; or
(c)
has become bankrupt or has applied to take the benefit of a law for the relief of insolvent debtors; or
(d)
has been disqualified from managing corporations under Chapter 2D Part 2D.6 of the Corporations Act 2001 of the Commonwealth; or
(e)
has, because of mental or physical incapacity, failed to carry out duties of the position satisfactorily; or
(f)
is incompetent or has neglected the duties of the position.
(3)
The appointment of the Commissioner is terminated if the Commissioner—
(a)
becomes a member, or a candidate for election as a member, of the Parliament of this State or any other State of the Commonwealth or of the Commonwealth or of a Legislative Assembly of a Territory of the Commonwealth; or
(b)
is sentenced to imprisonment for an offence.
(4)
The Commissioner may resign by notice in writing to the Minister of not less than 3 months (or such shorter period as is accepted by the Minister).
74—Acting Commissioner
(1)
The Minister may appoint a person (who may be a Public Service employee) to act as the Commissioner during any period for which no person is for the time being appointed as the Commissioner or the Commissioner is absent from, or unable to discharge, official duties.
(2)
The terms and conditions of appointment of a person appointed to act as the Commissioner will be determined by the Minister.
75—Honesty and accountability
The Commissioner and any person appointed to act as the Commissioner are senior officials for the purposes of the Public Sector (Honesty and Accountability) Act 1995.
76—Staff of Commissioner
The Commissioner may appoint staff to assist in carrying out the Commissioner's functions.
77—Delegation
(1)
The Commissioner may delegate to a person (including a person for the time being performing particular duties or holding or acting in a particular position) a function or power under this or any other Act.
(2)
A delegation—
(a)
must be by instrument in writing; and
(b)
may be absolute or conditional; and
(c)
does not derogate from the power of the delegator to act in a matter; and
(d)
is revocable at will.
(3)
A delegated function or power may, if the instrument of delegation so provides, be further delegated in accordance with that instrument.
77A—Exchange of information between Commissioner and Council
(1)
The Commissioner and the Council may enter into an agreement or arrangement providing for the exchange of information relating to legal practitioners.
(2)
An agreement or arrangement must be reduced to writing and be approved by the Attorney‑General.
Subdivision 2—Investigation of unsatisfactory professional conduct and professional misconduct
77B—Investigations by Commissioner
(1)
The Commissioner may, on his or her own initiative, make an investigation into the conduct of a legal practitioner or former legal practitioner who the Commissioner has reasonable cause to suspect has been guilty of unsatisfactory professional conduct or professional misconduct.
(2)
Subject to section 77C, the Commissioner must make an investigation into the conduct of a legal practitioner or former legal practitioner if—
(a)
the Commissioner has been directed to make the inquiry by the Attorney‑General or the Society; or
(b)
a complaint has been received in relation to the conduct of the legal practitioner or former legal practitioner.
(3)
No direction may be given to the Commissioner under this section unless the Attorney‑General or the Society (as the case may require) has reasonable cause to suspect that the legal practitioner or former legal practitioner to whom the proposed investigation relates has been guilty of unsatisfactory professional conduct or professional misconduct.
(4)
The provisions of Schedule 4 apply in relation to an investigation under this section.
77C—Closure of whole or part of complaint
(1)
At any stage after receipt of a complaint, the Commissioner may close the complaint without further consideration of its merits for any of the following reasons to the extent they are applicable:
(a)
the complaint is vexatious, misconceived, frivolous or lacking in substance;
(b)
the complainant has not responded, or has responded inadequately, to a request for further information or has unreasonably failed to cooperate in the investigation or conciliation of the complaint;
(c)
the subject‑matter of the complaint has been or is already being investigated, whether by the Commissioner or another authority;
(d)
the subject‑matter of the complaint would be better investigated or dealt with by police or another investigatory or law enforcement body;
(e)
the subject‑matter of the complaint is the subject of civil proceedings, except so far as it is a disciplinary matter;
(f)
the complaint is not one that the Commissioner has power to deal with;
(g)
the Commissioner is satisfied that it is otherwise in the public interest to close the complaint.
(2)
A complaint may be closed under this section without an investigation or without completing an investigation.
(3)
The Commissioner is not required to give a complainant, a legal practitioner, a former legal practitioner, a law practice or the Legal Services Commission an opportunity to be heard or make a submission to the Commissioner before determining whether or not to close a complaint under this section.
(4)
The power to close a complaint under this section extends to closure of part of a complaint.
77D—Notification of complaint to practitioner
(1)
The Commissioner—
(a)
may, after receiving a complaint about a legal practitioner or former legal practitioner, notify the practitioner or former practitioner of the complaint or give the practitioner or former practitioner a summary or details of the complaint; and
(b)
subject to section 77F, must, as soon as practicable after the Commissioner decides to investigate a complaint about a legal practitioner or former legal practitioner under section 77B and if he or she has not already done so, give the practitioner or former practitioner a summary or details of the complaint and a notice informing the practitioner or former practitioner of the right to make submissions; and
(c)
must, before making a determination and if he or she has not already done so, give the legal practitioner or former legal practitioner a summary or details of the complaint and a notice informing the practitioner or former practitioner of the right to make submissions.
(2)
The Commissioner must—
(a)
subject to section 77F, as soon as practicable after deciding on his or her own initiative to make an investigation into the conduct of a legal practitioner or former legal practitioner or being directed to make an inquiry into the conduct of a legal practitioner or former legal practitioner by the Attorney‑General or the Society, give the practitioner or former practitioner a summary or details of the reasons for the investigation and a notice informing the practitioner or former practitioner of the right to make submissions; and
(b)
before making a determination and if he or she has not already done so, give the legal practitioner or former legal practitioner a summary or details of the reasons for the investigation and a notice informing the practitioner or former practitioner of the right to make submissions.
(3)
A notice informing the legal practitioner or former legal practitioner of the right to make submissions must specify a period of 21 days in which submissions must be received or a shorter or longer period if the Commissioner reasonably believes a different period is warranted in the circumstances.
77E—Submissions by legal practitioner
(1)
A legal practitioner or former legal practitioner who has received a notice of a decision or direction to make an investigation into his or her conduct may, within the period specified under section 77D, make submissions to the Commissioner about the subject‑matter of the investigation, unless the matter has been closed.

(2)
The Commissioner may, at his or her discretion, extend the period in which submissions may be made.
(3)
The Commissioner must consider any submissions made by the legal practitioner or former legal practitioner within the specified period in response to the notice before deciding what action is to be taken in relation to the matter, and may consider submissions received afterwards.
77F—Exceptions to requirement for notification of complaint
(1)
Section 77D(1)(b) and (2)(a) do not require the Commissioner to give a legal practitioner or former legal practitioner a summary or details of a complaint or the reasons for an investigation or a notice about making submissions if the Commissioner reasonably believes that to do so will or is likely to—
(a)
prejudice the investigation; or
(b)
prejudice an investigation by the police or another investigatory or law enforcement body of any matter with which the Commissioner's investigation is concerned; or
(c)
in the case of an investigation of a complaint—place the complainant or another person at risk of intimidation or harassment; or
(d)
prejudice pending court proceedings.
(2)
In that case, the Commissioner—
(a)
may postpone giving the legal practitioner or former legal practitioner the summary or details and the notice until of the opinion that it is appropriate to do so; or
(b)
may at his or her discretion give the legal practitioner or former legal practitioner the notice and a statement of the general nature of the complaint or reasons for investigation.
Subdivision 3—Action following investigation
77G—Interpretation
In this Subdivision—
complainant means—
(a)
in the case of an investigation made into the conduct of a legal practitioner or former legal practitioner because of a direction by the Attorney‑General or the Society—the Attorney‑General or the Society, as required; and
(b)
in the case of an investigation made into the conduct of a legal practitioner or former legal practitioner because of a complaint—the person who made the complaint.
77H—Report on investigation
(1)
If, in the course or in consequence of an investigation under this Division, the Commissioner is satisfied that there is evidence of professional misconduct by a legal practitioner or former legal practitioner, the Commissioner must make a report on the matter to the Attorney‑General and the Society.
(2)
If, in the course or in consequence of an investigation under this Division, the Commissioner comes into possession of information or evidence suggesting to the Commissioner that a criminal offence may have been committed, the Commissioner must pass the information or evidence on to the Crown Solicitor.
(3)
The Commissioner must, at the request of the Crown Solicitor or a prosecution authority, furnish the Crown Solicitor or authority with any material in the Commissioner's possession relevant to the investigation or prosecution of the suspected offence.
(4)
If it appears to the Crown Solicitor or a prosecution authority from a report or material furnished under this section that criminal proceedings should be taken against a person, the Crown Solicitor or authority may take any action that may be appropriate for that purpose.
77I—Commissioner to notify persons of suspected loss
If, in the course or in consequence of an investigation under this Division, the Commissioner has reason to believe that a person has suffered loss as a result of unsatisfactory professional conduct or professional misconduct by a legal practitioner or former legal practitioner, the Commissioner may notify the person.
77J—Powers of Commissioner to deal with certain unsatisfactory professional conduct or professional misconduct
(1)
If, after conducting an investigation into conduct by a legal practitioner under this Division, the Commissioner is satisfied that there is evidence of unsatisfactory professional conduct and that the conduct in question can be adequately dealt with under this subsection—
(a)
the Commissioner may determine not to lay a charge before the Tribunal and may instead exercise any 1 or more of the following powers:
(i)
the Commissioner may reprimand the legal practitioner;
(ii)
the Commissioner may order the legal practitioner to apologise to any person affected by the practitioner's conduct;
(iii)
the Commissioner may order the legal practitioner—
(A)
to redo the work that is the subject of the investigation at no cost or to waive or reduce the fees for the work; or
(B)
to pay the costs of having the work that is the subject of the investigation redone;
(iv)
the Commissioner may order the legal practitioner to undertake training, education or counselling or be supervised;
(v)
the Commissioner may order the legal practitioner to pay a fine not exceeding $5 000;
(vi)
the Commissioner may make an order imposing specified conditions on the practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate)—
(A)
relating to the practitioner's legal practice; or
(B)
requiring that the practitioner, within a specified time, complete further education or training, or receive counselling, of a type specified by the Commissioner;
(vii)
the Commissioner may, with the consent of the legal practitioner, make any other order the Commissioner considers appropriate in the circumstances; or
(b)
the Commissioner may, if the legal practitioner consents to such a course of action, determine not to lay a charge before the Tribunal and may instead exercise any 1 or more of the following powers:
(i)
if the Commissioner believes that the legal practitioner may be suffering from an illness or a physical or mental impairment, disability, condition or disorder (including an addiction to alcohol or a drug, whether or not prescribed) that has detrimentally affected his or her ability to practise the law, the Commissioner may order the legal practitioner to—
(A)
submit to a medical examination by a medical practitioner nominated by the Commissioner and to undertake any treatment recommended by the medical practitioner; or
(B)
receive counselling of a type specified by the Commissioner; or
(C)
participate in a program of supervised treatment or rehabilitation designed to address behavioural problems, substance abuse or mental impairment;
(ii)
the Commissioner may order the legal practitioner to enter into a professional mentoring agreement with the Commissioner and to comply with all conditions of the agreement;
(iii)
the Commissioner may make orders with respect to the examination of the legal practitioner's files and records by a person approved by the Commissioner (at the expense of the legal practitioner) at the intervals, and for the period, specified in the order;
(iv)
the Commissioner may order the legal practitioner to pay a fine not exceeding $10 000;
(v)
the Commissioner may make an order suspending the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) until the end of the period specified in the order (not exceeding 3 months);
(vi)
the Commissioner may make an order requiring that the legal practitioner make a specified payment (whether to a client of the practitioner or to any other person) or do or refrain from doing a specified act in connection with legal practice.
(2)
If, after conducting an investigation into conduct by a legal practitioner under this Division, the Commissioner is satisfied that there is evidence of professional misconduct and that the misconduct in question can be adequately dealt with under this subsection, the Commissioner may, if the legal practitioner consents to such a course of action, determine not to lay a charge before the Tribunal and may instead exercise any 1 or more of the following powers:
(a)
the Commissioner may reprimand the legal practitioner;
(b)
the Commissioner may order the legal practitioner to apologise to any person affected by the practitioner's conduct;
(c)
if the Commissioner believes that the legal practitioner may be suffering from an illness or a physical or mental impairment, disability, condition or disorder (including an addiction to alcohol or a drug, whether or not prescribed) that has detrimentally affected his or her ability to practise the law, the Commissioner may order the legal practitioner to—
(i)
submit to a medical examination by a medical practitioner nominated by the Commissioner and to undertake any treatment recommended by the medical practitioner; or
(ii)
receive counselling of a type specified by the Commissioner; or
(iii)
participate in a program of supervised treatment or rehabilitation designed to address behavioural problems, substance abuse or mental impairment;
(d)
the Commissioner may order the legal practitioner to enter into a professional mentoring agreement with the Commissioner and to comply with all conditions of the agreement;
(e)
the Commissioner may make orders with respect to the examination of the legal practitioner's files and records by a person approved by the Commissioner (at the expense of the legal practitioner) at the intervals, and for the period, specified in the order;
(f)
the Commissioner may order the legal practitioner to pay a fine not exceeding $20 000;
(g)
the Commissioner may make an order imposing specified conditions on the practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate)—
(i)
relating to the practitioner's legal practice; or
(ii)
requiring that the practitioner, within a specified time, complete further education or training, or receive counselling, of a type specified by the Commissioner;
(h)
the Commissioner may make an order suspending the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) until the end of the period specified in the order (not exceeding 6 months);
(i)
the Commissioner may make an order requiring that the legal practitioner make a specified payment (whether to a client of the practitioner or to any other person) or do or refrain from doing a specified act in connection with legal practice.
(3)
Despite section 72(3), subsections (1) and (2) do not apply in relation to a former legal practitioner, but if, after conducting an investigation into conduct by a former legal practitioner under this Division, the Commissioner is satisfied that there is evidence of unsatisfactory professional conduct or professional misconduct that occurred while the former legal practitioner remained a legal practitioner and that the conduct in question can be adequately dealt with under this subsection—
(a)
in the case of unsatisfactory professional conduct, the Commissioner may —
(i)
determine not to lay a charge before the Tribunal and may instead order the former legal practitioner to pay a fine not exceeding $5 000; or
(ii)
if the former legal practitioner consents to such a course of action, determine not to lay a charge before the Tribunal and may instead order the former legal practitioner to pay a fine not exceeding $10 000; and
(b)
in the case of professional misconduct, the Commissioner may, if the former legal practitioner consents to such a course of action, determine not to lay a charge before the Tribunal and may instead order the former legal practitioner to pay a fine not exceeding $20 000.
(4)
If the Commissioner proposes to exercise a power under subsection (1), (2) or (3), the Commissioner—
(a)
must provide the complainant (if any) and, in the case of the exercise of a power that does not require the consent of the legal practitioner or former legal practitioner, the legal practitioner or former legal practitioner with details of the proposal and invite them to make written submissions to the Commissioner within a specified period; and
(b)
must take into consideration any written submissions made to the Commissioner within the specified period, and may but need not consider submissions received afterwards; and
(c)
is not required to repeat the process if the Commissioner decides to exercise the power in a different way, or exercise a different power, after taking into account any written submissions received during the specified period.
(5)
The Commissioner may, in determining whether to exercise a power under this section in relation to a legal practitioner or former legal practitioner, take into account—
(a)
any previous action relating to the practitioner under this section or a corresponding previous enactment; or
(b)
any finding relating to the practitioner by the Tribunal, the Supreme Court or a corresponding disciplinary body of—
(i)
professional misconduct or unsatisfactory professional conduct; or
(ii)
unprofessional conduct or unsatisfactory conduct (within the meaning of this Act as in force before the commencement of this Division).
(6)
An order under this section must be reduced to writing and be signed—
(a)
by or on behalf of the Commissioner; and
(b)
if it is an order requiring the consent of the legal practitioner or former legal practitioner—by the legal practitioner or former legal practitioner to whom it applies.
(7)
A condition imposed on a practising certificate by an order under this section may be varied or revoked at any time on application by the legal practitioner to the Tribunal.
(8)
The Commissioner must, as soon as possible after determining to exercise a power under this section, provide the complainant with written notification of the determination.
(9)
An apparently genuine document purporting to be a copy of an order under this section and providing for the payment of a monetary sum by a legal practitioner (other than a fine), will be accepted in legal proceedings, in the absence of proof to the contrary, as proof of such a debt.
(10)
A contravention of an order under this section is professional misconduct.
(11)
If the Commissioner has ordered payment of a fine, a certificate of the fine must be filed in the Supreme Court.
(12)
If a certificate has been filed under subsection (11), proceedings may be taken for the recovery of the fine as if the certificate were a judgment of the Supreme Court.
(13)
The cost of a medical examination, medical treatment, counselling or a program of supervised treatment or rehabilitation undertaken by a legal practitioner pursuant to an order of the Commissioner is to be borne by the practitioner.
(14)
In this section—
medical practitioner means a person registered under the Health Practitioners Regulation National Law to practise in the medical profession (other than as a student).
77K—Appeal against determination of Commissioner
(1)
Subject to subsection (3), an appeal to the Tribunal against a determination of the Commissioner under section 77J(1)(a) or (3)(a)(i) may be instituted by—
(a)
the legal practitioner or former legal practitioner in relation to whom the determination was made; or
(b)
the complainant.
(2)
Subject to subsection (3), an appeal to the Tribunal against a determination of the Commissioner under section 77J(1)(b), (2) or (3)(a)(ii) or (b) after conducting an investigation into the conduct of a legal practitioner or former legal practitioner following receipt of a complaint may be instituted by the person who made the complaint.
(3)
An appeal must be instituted within 1 month of the date on which the appellant is notified of the determination unless the Tribunal is satisfied that there is good reason to dispense with the requirement that the appeal should be so instituted.
(4)
The Tribunal may, on the hearing of the appeal—
(a)
affirm, vary, quash or reverse the determination subject to the appeal and administer any reprimand, or make any order, that should have been administered or made in the first instance; and
(b)
make such orders as to costs as it considers appropriate.
(5)
Section 85(2) to (4) (inclusive) apply in relation to an order as to costs made under subsection (4).
77L—Commissioner must lay charge in certain circumstances
If, after conducting an investigation into conduct by a legal practitioner or former legal practitioner under this Division, the Commissioner is satisfied that—
(a)
there is evidence of unsatisfactory professional conduct or professional misconduct by the practitioner or former practitioner; and
(b)
the conduct in question cannot be adequately dealt with under section 77J,
the Commissioner must, subject to section 82(2a), lay a charge before the Tribunal in relation to the conduct unless the Commissioner determines that it would not be in the public interest to do so.
77M—Commissioner to provide reasons
If the Commissioner determines—
(a)
not to investigate a complaint; or
(b)
to close a complaint under section 77C; or
(c)
after conducting an investigation into conduct by a legal practitioner or former legal practitioner under this Division that is the subject of a direction from the Attorney‑General or the Society or a complaint—
(i)
that there is no evidence of unsatisfactory professional conduct or professional misconduct; or
(ii)
that there is evidence of unsatisfactory professional conduct or professional misconduct but—
(A)
the conduct in question cannot be adequately dealt with under section 77J; and
(B)
it would not be in the public interest to lay a charge in relation to the conduct before the Tribunal,
the Commissioner must provide the complainant and the legal practitioner or former legal practitioner with written reasons for the determination.
Subdivision 4—Complaints of overcharging
77N—Investigation of allegation of overcharging
(1)
Subject to subsections (2) and (3) and section 77C, if a complaint of overcharging is made against a legal practitioner or former legal practitioner, the Commissioner must investigate the complaint unless the complaint is received by the Commissioner more than 2 years after the final bill to which the complaint relates was delivered to the client or the complaint is resolved before the Commissioner commences an investigation.
(2)
The Commissioner may require a complainant to pay a reasonable fee, fixed by the Commissioner, for investigation of the complaint and decline to proceed with the investigation unless the fee is paid.
(3)
The Commissioner may not proceed with the investigation of a complaint of overcharging while the bill to which the complaint relates is the subject of an application for adjudication of costs before the Supreme Court under Schedule 3.
(4)
For the purposes of an investigation the Commissioner may do either or both of the following:
(a)
by notice in writing—
(i)
require the legal practitioner or former legal practitioner to make a detailed report to the Commissioner, within the time specified in the notice, on the work carried out for the client to whom the bill was delivered; and
(ii)
require the legal practitioner or former legal practitioner to produce to the Commissioner, within the time specified in the notice, documents relating to the work;
(b)
arrange for the costs that are the subject of the complaint of overcharging to be assessed by a legal practitioner who is, in the opinion of the Commissioner, qualified to make such an assessment.
(5)
A legal practitioner or former legal practitioner must comply with a requirement under subsection (4)(a).
Maximum penalty: $10 000 or imprisonment for 1 year.
(6)
At the conclusion of the investigation, the Commissioner—
(a)
must report to the complainant and the legal practitioner or former legal practitioner on the results of the investigation; and
(b)
may recommend that the legal practitioner or former legal practitioner reduce a charge or refund an amount to the complainant or the client to whom the bill was delivered.
(7)
If—
(a)
the amount in dispute in a complaint of overcharging is no more than $10 000; and
(b)
the costs the subject of the complaint have been assessed by a legal practitioner in accordance with subsection (4)(b); and
(c)
the Commissioner has, by written notice, given the complainant and the legal practitioner or former legal practitioner details of the assessment and invited them to make written submissions within the period (which must be at least 7 days) specified in the notice,
the Commissioner may, after the end of the specified period and after having regard to any submissions received, make a determination as to whether or not there has been overcharging and, if so, the amount that has been overcharged.

(d)
a person appointed by the Society to conduct an ILP compliance audit;
trust account examination means an external examination of the trust records of a law practice under Schedule 2;
trust account investigation means an investigation of the affairs of a law practice under Schedule 2.
(2)
For the purposes of this Schedule—
(a)
law practice includes the Legal Services Commission; and
(b)
an associate of the Commission is an employee of the Commission (whether or not a legal practitioner) who is not a principal of the Commission; and
(c)
a principal of the Commission is a legal practitioner who is generally responsible for the provision of legal services by the Commission.
Part 2—Requirements relating to documents, information and other assistance
2—Application of Part
This Part applies to—
(a)
trust account investigations; and
(b)
trust account examinations; and
(c)
complaint investigations; and
(d)
ILP compliance audits.
3—Requirements that may be imposed for investigations, examinations and audits under Schedule 2
(1)
For the purpose of carrying out a trust account investigation or trust account examination in relation to a law practice, an investigator may, on production of evidence of his or her appointment, require the practice or an associate or former associate of the practice or any other person (including, for example, an ADI, auditor or liquidator) who has or has had control of documents relating to the affairs of the practice to give the investigator either or both of the following:
(a)
access to the documents relating to the affairs of the practice the investigator reasonably requires;
(b)
information relating to the affairs of the practice the investigator reasonably requires (verified by statutory declaration if the requirement so states).
(2)
A person who is subject to a requirement under subclause (1) must comply with the requirement.
Maximum penalty: $50 000 or imprisonment for 1 year.
4—Requirements that may be imposed for investigations under Part 6
(1)
For the purpose of carrying out a complaint investigation in relation to a legal practitioner or former legal practitioner, an investigator may, by notice served on the practitioner or former practitioner, require the practitioner or former practitioner to do any 1 or more of the following:
(a)
to produce, at or before a specified time and at a specified place, any specified document (or a copy of the document);
(b)
to provide written information on or before a specified date (verified by statutory declaration if the requirement so states);
(c)
to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner.
(2)
For the purpose of carrying out a complaint investigation in relation to a legal practitioner or former legal practitioner, the investigator may, on production of evidence of his or her appointment, require an associate or former associate of a law practice of which the practitioner or former practitioner is or was an associate or any other person (including, for example, an ADI, auditor or liquidator but not including the practitioner) who has or has had control of documents relating to the affairs of the practitioner or former practitioner to give the investigator either or both of the following:
(a)
access to the documents relating to the affairs of the practitioner or former practitioner the investigator reasonably requires;
(b)
information relating to the affairs of the practitioner or former practitioner the investigator reasonably requires (verified by statutory declaration if the requirement so states).
(3)
A person who is subject to a requirement under subclause (1) or (2) must comply with the requirement.
Maximum penalty: $50 000 or imprisonment for 1 year.
(4)
A requirement imposed on a person under this clause is to be notified in writing to the person and is to specify a reasonable time for compliance.
5—Provisions relating to requirements under this Part
(1)
This clause applies to a requirement imposed on a person under this Part.
(2)
The validity of the requirement is not affected, and the person is not excused from compliance with the requirement, on—
(a)
the ground that the giving of the information or access to information may tend to incriminate the person; or
(b)
the ground that a law practice or legal practitioner has a lien over a particular document or class of documents.
(3)
If compliance by a person with a requirement to answer a question or to produce, or provide a copy of, a document or information might tend to incriminate the person or make the person liable to a penalty, then—
(a)
in the case of a person who is required to produce, or provide a copy of, a document or information—the fact of production, or provision of a copy of, the document or the information (as distinct from the contents of the document or the information); or
(b)
in any other case—the answer given in compliance with the requirement,
is not admissible in evidence against the person in proceedings other than disciplinary proceedings under this Act or proceedings—
(c)
for an offence—
(i)
against this Act; or
(ii)
relating to the keeping of trust accounts or the receipt of trust money; or
(d)
in respect of the making of a false or misleading statement.
(4)
The investigator imposing the requirement may—
(a)
inspect any document provided pursuant to the requirement; and
(b)
make copies of the document or any part of the document; and
(c)
retain the document for a period the investigator thinks necessary for the purposes of the investigation in relation to which it was produced.
(5)
The person is not subject to any liability, claim or demand merely because of compliance with the requirement.
(6)
A failure by a legal practitioner to comply with the requirement is capable of constituting unsatisfactory professional conduct or professional misconduct.
(7)
The Supreme Court may, on application by the Commissioner or the Society, or on its own initiative, suspend a legal practitioner's practising certificate while a failure by the practitioner to comply with the requirement continues.
Part 3—Entry and search of premises
6—Application of Part
This Part applies to—
(a)
trust account investigations; and
(b)
complaint investigations;
but does not apply to—
(c)
trust account examinations; or
(d)
ILP compliance audits.
7—Investigator's power to enter premises
(1)
Subject to this clause, for the purpose of carrying out an investigation, an investigator may enter and remain on premises to exercise the powers in clause 9.
(2)
In the case of a trust account investigation—
(a)
the investigator may enter premises, other than residential premises, without the need for consent or a search warrant; and
(b)
the investigator may only enter residential premises as follows:
(i)
the investigator may enter the premises at any time with the consent of the occupier;
(ii)
the investigator may enter the premises under the authority of a search warrant issued under this Part;
(iii)
the investigator may enter the premises at any time without the consent of the occupier and without a warrant, but only if the investigator believes, on reasonable grounds, that it is urgently necessary to do so in order to prevent the destruction of or interference with relevant material.
(3)
In the case of a complaint investigation, the investigator may only enter premises as follows:
(a)
the investigator may enter the premises at any time with the consent of the occupier;
(b)
the investigator may enter the premises under the authority of a search warrant issued under this Part.
(4)
The investigator must not exercise the power in subclause (2)(b)(iii) unless the Society has, when appointing the investigator, authorised the use of that power.
(5)
An investigator may use reasonable force for the purposes of entering premises under subclause (2)(a) or (2)(b)(iii).
(6)
The investigator must, at the reasonable request of a person apparently in charge of the premises or any other person on the premises, produce evidence of his or her appointment.
Maximum penalty: $2 500.
8—Search warrants
(1)
For the purpose of carrying out an investigation, an investigator may apply to a Magistrate for a search warrant.
(2)
A Magistrate may, on application made under this clause, issue a search warrant to an investigator if—
(a)
an investigator satisfies the Magistrate that there are reasonable grounds to suspect that relevant material is located at the premises; and
(b)
the Magistrate is satisfied that there are reasonable grounds for issuing the warrant.
(3)
A search warrant authorises an investigator to enter the premises specified in the warrant, by the use of reasonable force if necessary, at the time or within the period specified in the warrant.
(4)
A search warrant may be executed by the investigator to whom it is issued or by any other investigator engaged in the investigation to which the warrant relates.
(5)
An investigator executing a warrant must, at the reasonable request of a person apparently in charge of the premises or any other person on the premises, produce the warrant.
Maximum penalty: $2 500.
9—Powers of investigator while on premises
(1)
An investigator who enters premises under this Part may exercise any or all of the following powers:
(a)
search the premises and examine anything on the premises;
(b)
search for any information, document or other material relating to the matter to which the investigation relates;
(c)
operate equipment or facilities on the premises for a purpose relevant to the investigation;
(d)
take possession of any relevant material and retain it for as long as may be necessary to examine it to determine its evidentiary value;
(e)
make copies of any relevant material or any part of any relevant material;
(f)
seize and take away any relevant material or any part of any relevant material;
(g)
use (free of charge) photocopying equipment on the premises for the purpose of copying any relevant material;
(h)
with respect to any computer or other equipment that the investigator suspects on reasonable grounds may contain any relevant material—
(i)
inspect and gain access to a computer or equipment;
(ii)
download or otherwise obtain any documents or information;
(iii)
make copies of any documents or information held in it;
(iv)
seize and take away any computer or equipment or any part of it;
(i)
if any relevant material found on the premises cannot be conveniently removed—secure it against interference;
(j)
request any person who is on the premises to do any of the following:
(i)
to state his or her full name, date of birth and address;
(ii)
to answer (orally or in writing) questions asked by the investigator relevant to the investigation;
(iii)
to produce relevant material;
(iv)
to operate equipment or facilities on the premises for a purpose relevant to the investigation;
(v)
to provide access (free of charge) to photocopying equipment on the premises the investigator reasonably requires to enable the copying of any relevant material;
(vi)
to give other assistance the investigator reasonably requires to carry out the investigation;
(k)
do anything else reasonably necessary to obtain information or evidence for the purposes of the investigation.
(2)
Any documents, information or anything else obtained by the investigator may be used for the purposes of the investigation.
(3)
If an investigator takes anything away from the premises, the investigator must issue a receipt and—
(a)
if the occupier or a person apparently responsible to the occupier is present, give it to him or her; or
(b)
otherwise, leave it on the premises in an envelope addressed to the occupier.
(4)
An investigator may be accompanied by any assistants the investigator requires, including persons with accounting expertise and persons to assist in finding and gaining access to electronically stored information.
Part 4—Additional powers in relation to incorporated legal practices
10—Application of Part
(1)
This Part applies to—
(a)
trust account investigations; and
(b)
complaint investigations; and
(c)
ILP compliance audits,
conducted in relation to incorporated legal practices.
(2)
The provisions of this Part are additional to the other provisions of this Schedule.
11—Investigative powers relating to investigations and audits
An investigator conducting an investigation or audit to which this Part applies may exercise the powers set out in this Part.
12—Examination of persons
(1)
The investigator, by force of this clause, has and may exercise the same powers as those conferred on the Australian Securities and Investments Commission by Division 2 of Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth.
(2)
Division 2 of Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth applies to the exercise of those powers, with the following modifications (and any other necessary modifications):
(a)
a reference to the Australian Securities and Investments Commission (however expressed) is taken to be a reference to the investigator;
(b)
a reference to a matter that is being or is to be investigated under Division 1 of Part 3 of that Act is taken to be a reference to a matter that is being or is to be investigated, examined or audited by the investigator;
(c)
a reference in section 19 of that Act to a person is taken to be a reference to a legal practitioner or an incorporated legal practice;
(d)
a reference to a prescribed form is taken to be a reference to a form approved by the Society.
(3)
Sections 22(2) and (3), 25(2) and (2A), 26 and 27 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth do not apply in respect of the exercise of the powers conferred by this clause.
13—Inspection of books
(1)
The investigator, by force of this clause, has and may exercise the same powers as those conferred on the Australian Securities and Investments Commission by sections 30(1), 34 and 37 to 39 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth.
(2)
Those provisions apply to the exercise of those powers, with the following modifications (and any other necessary modifications):
(a)
a reference to the Australian Securities and Investments Commission (however expressed) is taken to be a reference to the investigator;
(b)
a reference to a body corporate (including a body corporate that is not an exempt public authority) is taken to be a reference to an incorporated legal practice;
(c)
a reference to an eligible person in relation to an incorporated legal practice is taken to be a reference to an officer or employee of the incorporated legal practice;
(d)
a reference to a member or staff member is taken to be a reference to the appropriate authority or a person authorised by the appropriate authority who is an officer or employee of the authority;
(e)
a reference in section 37 of that Act to a proceeding is taken to be a reference to an investigation, examination or audit to which this Part applies.
(3)
In this clause—
appropriate authority means—
(a)
in the case of a complaint investigation—the Commissioner; and
(b)
in the case of an ILP compliance audit, a trust account investigation or a trust account examination—the Society.
14—Power to hold hearings
(1)
The investigator may hold hearings for the purposes of an investigation, examination or audit to which this Part applies.
(2)
Sections 52, 56(1), 58, 59(1), (2), (5), (6) and (8) and 60 (paragraph (b) excepted) of the Australian Securities and Investments Commission Act 2001 of the Commonwealth apply to a hearing, with the following modifications (and any other necessary modifications):
(a)
a reference to the Australian Securities and Investments Commission (however expressed) is taken to be a reference to the investigator;
(b)
a reference to a member or staff member is taken to be a reference to the appropriate authority or a person authorised by the appropriate authority who is an officer or employee of the authority;
(c)
a reference to a prescribed form is taken to be a reference to a form approved by the Society.
(3)
In this clause—
appropriate authority has the same meaning as in clause 13.
15—Failure to comply with investigation
The following acts or omissions are capable of constituting unsatisfactory professional conduct or professional misconduct:
(a)
a failure by a legal practitioner to comply with any requirement made by the investigator, or a person authorised by the investigator, in the exercise of powers conferred by this Part;
(b)
a contravention by a legal practitioner of any condition imposed by the investigator in the exercise of powers conferred by this Part;
(c)
a failure by a legal practitioner director of an incorporated legal practice to ensure that the incorporated legal practice, or any officer or employee of the incorporated legal practice, complies with any of the following:
(i)
any requirement made by the investigator, or a person authorised by the investigator, in the exercise of powers conferred by this Part;
(ii)
any condition imposed by the investigator in the exercise of powers conferred by this Part.
Part 5—Miscellaneous
16—Obstruction of investigator
(1)
A person must not, without reasonable excuse, obstruct an investigator exercising a power under this Act.
Maximum penalty: $50 000.
(2)
A person requested to do anything under clause 9(1)(j) must not, without reasonable excuse, fail to comply with the request.
Maximum penalty: $50 000.
(3)
In this clause—
obstruct includes hinder, delay, resist and attempt to obstruct.
17—Obligation of legal practitioners
(1)
The duties imposed on a legal practitioner by this clause are additional to obligations imposed under other provisions of this Schedule, whether or not the legal practitioner is the subject of the investigation, examination or audit concerned.
(2)
A legal practitioner must not mislead an investigator, the Commissioner or the Society in the exercise of—
(a)
any power or function under this Schedule; or
(b)
any power or function under a provision of a corresponding law that corresponds to this Schedule.
(3)
A legal practitioner who is subject to—
(a)
a requirement under clause 4; or
(b)
a requirement under provisions of a corresponding law that correspond to that clause,
must not, without reasonable excuse, fail to comply with the requirement.
18—Protection from liability
No liability attaches to an investigator for any act or omission by the investigator done in good faith and in the exercise or purported exercise of the investigator's powers or duties under this Act.
19—Permitted disclosure of confidential information
(1)
Subject to this clause, the Society, the Commissioner or an investigator, or a person employed or engaged on work related to the affairs of the Society or the Commissioner, must not divulge information that comes to his or her knowledge by virtue of that office or position except—
(a)
in the course of carrying out the duties of that office or position; or
(b)
with the consent of the person to whom the information relates; or
(c)
as may be authorised by or under any law.
Maximum penalty: $50 000.
(2)
The Commissioner or a person employed or engaged on work related to the affairs of the Commissioner may divulge information referred to in subclause (1) as authorised by an agreement or arrangement that has been approved by the Attorney‑General under section 77A.
(3)
A person referred to in subclause (1) may disclose information obtained in the course of a trust account investigation, trust account examination or complaint investigation to any of the following:
(a)
any court, tribunal or other person acting judicially;
(b)
any body regulating legal practitioners in any jurisdiction;
(c)
the Attorney‑General;
(d)
a person authorised to appoint an investigator;
(e)
any officer of or legal practitioner instructed by—
(i)
the Society or Commissioner or any other body regulating legal practitioners in any jurisdiction; or
(ii)
the Commonwealth or a State or Territory of the Commonwealth; or
(iii)
an authority of the Commonwealth or of a State or Territory of the Commonwealth;
(f)
an investigative or prosecuting authority established by or under legislation (for example, the Australian Securities and Investments Commission);
(g)
a law enforcement authority;

(h)
if the subject of the investigation, examination or audit is or was—
(i)
a law practice—a principal of the law practice; or
(ii)
an incorporated legal practice—a director or shareholder in the practice; or
(iii)
a legal practitioner—the practitioner or a principal of the law practice of which the practitioner is or was an associate;
(i)
if the subject of the investigation, examination or audit is or was—
(i)
a law practice—a client or former client of the practice; or
(ii)
a legal practitioner—a client or former client of the law practice of which the legal practitioner is or was an associate,
but only to the extent that the disclosure does not breach legal professional privilege or a duty of confidentiality;
(j)
if the subject of the investigation, examination or audit is or was—
(i)
a law practice—a supervisor, manager or receiver appointed in relation to the law practice; or
(ii)
a legal practitioner—a supervisor, manager or receiver appointed in relation to the law practice of which the legal practitioner is or was an associate;
or a legal practitioner or accountant employed by the supervisor, manager or receiver;
(k)
an investigator carrying out another investigation, examination or audit in relation to the law practice or legal practitioner who is or was the subject of the investigation, examination or audit.
(4)
Nothing in this clause prevents the disclosure of information relating to a complaint to the complainant or a person acting on behalf of the complainant.
(5)
No liability (including liability in defamation) is incurred by a protected person in respect of anything done or omitted to be done in good faith for the purpose of disclosing information under this clause.
(6)
In this clause—
protected person means—
(a)
the Commissioner; or
(b)
an employee or agent of the Commissioner; or
(c)
the Society; or
(d)
the Council; or
(e)
an officer, employee or agent of the Society; or
(f)
an investigator; or
(g)
a person acting at the direction of any person or entity referred to in this definition.

Schedule 1—Further amendments of Legal Practitioners Act 1981

Provision amended	How amended
Section 14AB(1)(b)	Delete "guarantee fund" and substitute: Fidelity Fund
Section 47(2)	Delete "guarantee fund" and substitute: Fidelity Fund
Section 48(2), (5) and (6)	Delete "guarantee fund" wherever occurring and substitute in each case: Fidelity Fund
Section 56(5) and (6)	Delete "guarantee fund" wherever occurring and substitute in each case: Fidelity Fund
Section 57A(2)(b)	Delete "guarantee fund" and substitute: Fidelity Fund
Section 58(2)	Delete "guarantee fund"and substitute Fidelity Fund
Heading to Part 5	Delete "guarantee fund" and substitute: Fidelity Fund
Section 64(1) and (2)	Delete "guarantee fund" wherever occurring and substitute in each case: Fidelity Fund
Section 66(2)(a)	Delete "guarantee fund" and substitute: Fidelity Fund
Section 67(1) and (2)	Delete "guarantee fund" wherever occurring and substitute in each case: Fidelity Fund
Section 95(1)(b)(ii)	Delete "guarantee fund" and substitute: Fidelity Fund
Section 95AA(c)	Delete "guarantee fund" and substitute: Fidelity Fund
Section 95BA(2)	Delete "guarantee fund" and substitute: Fidelity Fund

Schedule 2—Related amendments and transitional provisions

Part 1—Amendment of Fair Work Act 1994

1—Amendment of section 152A—Inquiries into conduct of registered agents or other representative
Section 152A(3)(b)—delete "Legal Practitioners Conduct Board" and substitute:
Legal Profession Conduct Commissioner
Part 2—Amendment of Freedom of Information Act 1991

2—Amendment of Schedule 2—Exempt agencies

Schedule 2—after paragraph (l) insert:
(la)
the Legal Profession Conduct Commissioner;
Part 3—Amendment of Legal Services Commission Act 1977
3—Amendment of section 26—Commission and trust money
Section 26(1)—delete "legal practitioner" and substitute:
law practice
4—Amendment of section 31—Discipline of legal practitioner employed by Commission
Section 31(a)—delete "unprofessional or unsatisfactory conduct" and substitute:
unsatisfactory professional conduct or professional misconduct

Part 4—Transitional provisions

5—Interpretation

(1)
In this Part—
Board means the Legal Practitioners Conduct Board;
Commissioner has the same meaning as in the principal Act;
principal Act means the Legal Practitioners Act 1981;
relevant day means the day on which section 44 comes into operation.
(2)
Unless the contrary intention appears, a term used in this Part and also in the principal Act has the same meaning in this Part as it has in that Act.

6—Practising certificates

Part 3 Divisions 2A to 2C of the principal Act, as inserted by section 17 of this Act, apply in relation to a practising certificate whether issued before, on or after the commencement of that section.

7—Deficiencies in trust accounts

Schedule 2 clauses 23 and 24 of the principal Act (as inserted by this Act) apply to trust money whether the money was received before, on or after the commencement of those clauses.

8—Combined trust account

An ADI that was, immediately before the commencement of this clause, an approved ADI within the meaning of section 53 of the principal Act is, on the commencement of this clause, taken to be an approved ADI for the purposes of section 53 as inserted by this Act.

9—Costs

(1)
Subject to this clause, Schedule 3 of the principal Act (as inserted by this Act) applies to a matter if the client first instructs the law practice in the matter on or after the commencement of that Schedule and Part 3 Division 8 of the principal Act as in force immediately before the relevant day continues to apply to a matter if the client first instructed the law practice in the matter before the commencement of Schedule 3.
(2)
Schedule 3 of the principal Act (as inserted by this Act) does not apply in respect of a law practice that is retained by another law practice on behalf of a client on or after the commencement of that Schedule in relation to a matter in which the other law practice was retained by the client before that commencement and in that case Part 3 Division 8 of the principal Act as in force immediately before that commencement continues to apply.
(3)
If Part 3 Division 8 of the principal Act as in force immediately before the commencement of Schedule 3 of the principal Act (as inserted by this Act) applies to a matter by virtue of subclause (1) or (2), the Division will cease to apply to the matter on the first anniversary of that commencement and Schedule 3 of the principal Act (as inserted by this Act) will then apply to the matter.

10—Fidelity Fund

The legal practitioners' guarantee fund maintained by the Society under Part 4 of the principal Act as in force immediately before the commencement of section 37 continues in existence as the Legal Practitioners Fidelity Fund maintained by the Society under Part 4 of the principal Act as amended by this Act.

11—Claims against Fidelity Fund

(1)
Subsection (1a) of section 60 of the principal Act (as inserted by this Act) does not apply in relation to a claim for compensation served on the Society before the commencement of that subsection.
(2)
Section 64 of the principal Act applies to any claim in relation to a fiduciary or professional default, or a series of fiduciary or professional defaults, in respect of which the Society has published a notice under Part 5 of the principal Act before the commencement of section 40 as if—
(a)
the amendment to section 64(2) made by that section had not been made; and
(b)
the prescribed percentage for the purposes of section 64(2) were 5%.

12—Investigations

An investigation may be undertaken under Schedule 2 Part 3 of the principal Act (as inserted by this Act) in relation to an aspect of the affairs of a law practice whether the investigation relates to matters that occurred before or after the commencement of that Schedule.
13—Transfer of functions from Board to Commissioner
(1)
If a complaint received by the Board in relation to the conduct of a legal practitioner or former legal practitioner has not been resolved before the relevant day, the Commissioner will, on and from that day, assume the conduct of the complaint as if it had been received by the Commissioner.
(2)
If a direction by the Attorney‑General or the Society to the Board to make an investigation into the conduct of a legal practitioner or former legal practitioner has not been resolved before the relevant day, the Commissioner will, on and from that day, assume the conduct of the investigation as if the direction had been given to the Commissioner.
(3)
An investigation commenced by the Board into—
(a)
the conduct of a legal practitioner or former legal practitioner; or
(b)
a complaint of overcharging,
is, if the investigation has not been completed before the relevant day, to be continued by the Commissioner as if the investigation had been commenced under section 77B or (in the case of a complaint of overcharging) 77N of the principal Act as inserted by this Act.
(4)
If a charge laid by the Board under section 82 of the principal Act has not been determined before the relevant day, the Commissioner will, on and from that day, assume the conduct of the charge as if it had been laid by the Commissioner.
(5)
If disciplinary proceedings against a legal practitioner commenced by the Board in the Supreme Court have not been determined before the relevant day, the Commissioner will, on and from that day, assume the conduct of the proceedings as if they had been commenced by the Commissioner.
(6)
A notice issued by the Board under repealed section 76(3)(a) of the principal Act and in force immediately before the relevant day continues as if it were a notice issued by an investigator under Schedule 4 clause 4(1)(a) of the principal Act (as inserted by this Act).
(7)
A notice issued by the Board under repealed section 76(4a) of the principal Act and in force immediately before the relevant day continues as if it were a notice issued by the Commissioner under Schedule 4 clause 4(1)(b) of the principal Act (as inserted by this Act).
(8)
A notice issued by the Board under repealed section 77A(3) of the principal Act and in force immediately before the relevant day continues as if it were a notice issued by the Commissioner under section 77N(4) of the principal Act (as inserted by this Act).
14—Application of principal Act as amended to complaints, investigations, disciplinary proceedings and conduct
(1)
Subject to this Schedule, the principal Act as amended by this Act applies in relation to—
(a)
any complaint received by the Commissioner or for which the Commissioner has assumed the conduct; and
(b)
any investigation commenced or continued by the Commissioner; and
(c)
any disciplinary proceedings commenced by the Commissioner, the Society or another person or for which the Commissioner has assumed the conduct,
whether the conduct to which the complaint, investigation or proceedings relates occurred before or after the relevant day.
(2)
The principal Act as amended by this Act applies in relation to conduct that occurred before the relevant day as if—
(a)
"unsatisfactory professional conduct" were replaced with "unsatisfactory conduct" wherever occurring; and
(b)
"professional misconduct" were replaced with "unprofessional conduct" wherever occurring'; and
(c)
"unsatisfactory conduct" and "unprofessional conduct" had the same respective meanings as in the principal Act as in force immediately before the relevant day.

15—Transfer of employment

(1)
A person who, immediately before the relevant day, was a member of the staff of the Board will, on that day, be a member of the staff of the Commissioner.
(2)
The transfer of a person's employment under subclause (1)—
(a)
will be taken to provide for continuity of employment without termination of the relevant person's service; and
(b)
will not affect—
(i)
existing conditions of employment or existing or accrued rights to leave; or
(ii)
a process commenced for variation of those conditions or rights.
(3)
A person whose employment has been transferred under subclause (1) will be taken to have been appointed by the Commissioner to the Commissioner's staff under section 76 of the principal Act.
(4)
Subclause (1) does not apply in relation to the person occupying the position of Director under section 72 of the principal Act immediately before the relevant day.

16—Contracts, etc

(1)
All assets, rights and liabilities of the Board are transferred to the Commissioner.
(2)
A liability of the Board transferred to the Commissioner under subclause (1) may be paid from the Fidelity Fund.
(3)
The transfer of assets, rights and liabilities under this clause operates by force of this clause and despite the provisions of any other law.
(4)
A reference to the Board in an instrument or agreement that gives rise to or evidences an asset, right or liability under subclause (1) will have effect as if it were a reference to the Commissioner.

17—Continuing obligation of confidentiality

(1)
Section 37 of the principal Act as in force immediately before the commencement of section 24 of this Act continues to apply to the Society and to a person employed or appointed before that commencement as an approved auditor or inspector to make an audit or examination of accounts.
(2)
Section 73 of the principal Act as in force immediately before the commencement of section 44 of this Act continues to apply to a person who was, before that commencement, a member of the Board or employed or engaged on work related to the affairs of the Board.

18—Tribunal members

(1)
The office of all members of the Legal Practitioners Disciplinary Tribunal will become vacant on the commencement of section 45 of this Act.
(2)
A person who ceases to hold office as a member of the Tribunal under subclause (1)—
(a)
may be appointed to the vacant office; or
(b)
may continue to act as a member of the Tribunal for the purpose of completing the hearing and determination of proceedings part‑heard on the commencement of section 45.