Legal Profession Act 2004 (NSW)
An Act to provide for the regulation of legal practice in New South Wales and to facilitate the regulation of legal practice on a national basis, to repeal the Legal Profession Act 1987; and for other purposes.
This Act is the Legal Profession Act 2004.
This Act commences on a day or days to be appointed by proclamation.
The purposes of this Act are as follows:
(a) to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of clients of law practices and the public generally,
(b) to facilitate the regulation of legal practice on a national basis across State and Territory borders.
In this Act:
(a) a lawyer, or
(b) a legal practitioner, or
(c) a barrister, or
(d) a solicitor, or
(e) a barrister and solicitor, or
(f) a solicitor and barrister,
under this Act or a corresponding law, but does not include the grant of a practising certificate under this Act or a corresponding law; and
(a) all accounts and records required under this Act or the regulations to be maintained by the practice or an associate or former associate of the practice,
(b) other records of the practice or an associate or former associate of the practice,
(c) any transaction:
(i) to which the practice or an associate or former associate of the practice was or is a party, or
(ii) in which the practice or an associate or former associate of the practice has acted for a party.
(a) in relation to a practising certificate:
(i) impose a condition on the certificate, and
(ii) amend or revoke a condition already imposed on the certificate, and
(b) in relation to registration as a foreign lawyer:
(i) amend the lawyer’s registration certificate, and
(ii) impose a condition on the registration, and
(iii) amend or revoke a condition already imposed on the registration.
(a) in relation to matters relating to barristers or former barristers (including an application for a practising certificate to practise as a barrister)—the Bar Council, or
(b) in relation to matters relating to solicitors or former solicitors (including an application for a practising certificate to practise as a solicitor)—the Law Society Council.
(a) a local legal practitioner who holds a current local practising certificate to practise as a barrister, or
(b) an interstate legal practitioner who holds a current interstate practising certificate that entitles the practitioner to engage in legal practice only as or in the manner of a barrister.
(a) the legal profession rules made by the Bar Council, and
(b) the joint rules so far as they apply to barristers.
(a) a person or body having powers or functions under a corresponding law, or
(b) when used in the context of a person or body having powers or functions under this Act (the
local authority ):(i) a person or body having corresponding powers or functions under a corresponding law, and
(ii) without limiting subparagraph (i), if the powers or functions of the local authority relate to local lawyers or local legal practitioners generally or are limited to any particular class of local lawyers or local legal practitioners—a person or body having corresponding powers or functions under a corresponding law regardless of whether they relate to interstate lawyers or interstate legal practitioners generally or are limited to any particular class of interstate lawyers or interstate legal practitioners.
(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 any Australian lawyers, or
(ii) its jurisdiction or powers to make orders under a corresponding law of the other jurisdiction in relation to any Australian lawyers.
(a) a law of a foreign country that corresponds to the relevant provisions of this Act or, if a regulation is made declaring a law of the foreign country to be a law that corresponds to this Act, the law declared under that regulation for the foreign country,
(b) if the term is used in relation to a matter that happened before the commencement of the law of a foreign country that, under paragraph (a), is the corresponding law for the foreign country, a previous law applying to legal practice in the foreign country.
(a) a law of another jurisdiction that corresponds to the relevant provisions of this Act or, if a regulation is made declaring a law of the other jurisdiction to be a law that corresponds to this Act, the law declared under that regulation for the other jurisdiction,
(b) if the term is used in relation to a matter that happened before the commencement of the law of another jurisdiction that, under paragraph (a), is the corresponding law for the other jurisdiction, a previous law applying to legal practice in the other jurisdiction.
(a) a person whose name has (whether or not at his or her own request) been removed from an Australian roll and who has not subsequently been admitted or re-admitted to the legal profession under this Act or a corresponding law, or
(b) a person whose Australian practising certificate has been suspended or cancelled under this Act or a corresponding law and who, because of the cancellation, is not an Australian legal practitioner or in relation to whom that suspension has not finished, or
(c) a person who has been refused a renewal of an Australian practising certificate under this Act or a corresponding law, and to whom an Australian practising certificate has not been granted at a later time, or
(d) a person who is the subject of an order under this Act or a corresponding law prohibiting a law practice from employing or paying the person in connection with the relevant practice, or
(e) a person who is the subject of an order under this Act or a corresponding law prohibiting an Australian legal practitioner from being a partner of the person in a business that includes the practitioner’s practice, or
(f) a person who is the subject of an order under section 154 (Disqualification from managing incorporated legal practice) or section 179 (Prohibition on partnerships with certain partners who are not Australian legal practitioners) or under provisions of a corresponding law that correspond to section 154 or 179.
(a) anything on which there is writing, and
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, and
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, and
(d) a map, plan, drawing or photograph,
and a reference in this Act to a document (as so defined) includes a reference to:
(e) any part of the document, and
(f) any copy, reproduction or duplicate of the document or of any part of the document, and
(g) any part of such a copy, reproduction or duplicate.
(a) a country other than Australia, or
(b) a state, province or other part of a country other than Australia.
(a) a person who is an undischarged bankrupt within the meaning of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory), or
(b) a person who has executed a deed of arrangement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if the terms of the deed have not been fully complied with, or
(c) a person whose creditors have accepted a composition under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if a final payment has not been made under that composition, or
(d) a person for whom a debt agreement has been made under Part IX of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) if the debt agreement has not ended or has not been terminated, or
(e) a person who has executed a personal insolvency agreement under Part X of the Bankruptcy Act 1966 of the Commonwealth (or the corresponding provisions of the law of a foreign country or external territory) but not if the agreement has been set aside or terminated or all of the obligations that the agreement created have been discharged.
(a) Australian legal practitioners, or
(b) one or more Australian legal practitioners and one or more Australian-registered foreign lawyers.
(a) an Australian legal practitioner who is a sole practitioner, or
(b) a law firm, or
(c) a multi-disciplinary partnership, or
(d) an incorporated legal practice, or
(e) a complying community legal centre.
(a) any instrument of a kind that is prescribed by the regulations as being a mortgage, and
(b) a proposed mortgage.
(a) acting as an intermediary to match a prospective lender and borrower, or
(b) arranging the loan, or
(c) receiving or dealing with payments for the purposes of, or under, the loan,
but does not include providing legal advice or preparing an instrument for the loan.
(a) legal training by participation in course work, or
(b) supervised legal training, whether involving articles of clerkship or otherwise,
or a combination of both.
(a) the officer of the Supreme Court with that title, except where paragraph (b) applies, or
(b) a registrar or other officer of the Supreme Court prescribed by rules of the Supreme Court in relation to specified provisions of this Act.
(a) in relation to this jurisdiction:
(i) an authority having functions under this Act, or
(ii) a person or body prescribed by the regulations as a regulatory authority of this jurisdiction, or
(b) in relation to another jurisdiction, means:
(i) an authority having functions under a corresponding law of that jurisdiction, or
(ii) a person or body prescribed by the regulations as a regulatory authority of that jurisdiction.
(a) if the person is 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) if the person is not a company with the meaning of that Act—a person specified or described in the regulations.
(a) an indictable offence against a law of the Commonwealth or any jurisdiction (whether or not the offence is or may be dealt with summarily), or
(b) an offence against a law of another jurisdiction that would be an indictable offence against a law of this jurisdiction if committed in this jurisdiction (whether or not the offence could be dealt with summarily if committed in this jurisdiction), or
(c) an offence against a law of a foreign country that would be an indictable offence against a law of the Commonwealth or this jurisdiction if committed in this jurisdiction (whether or not the offence could be dealt with summarily if committed in this jurisdiction).
(a) his or her 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) his or her presentation (as a debtor) of 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 his or her presentation (as a debtor) of such a petition under section 55 of that Act, or
(c) his or her 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) his or her conviction for a serious offence or a tax offence, whether or not:
(i) the offence was committed in or outside this jurisdiction, or
(ii) the offence was committed while the person was engaging in legal practice as an Australian legal practitioner or was practising foreign law as an Australian-registered foreign lawyer, as the case requires, or
(iii) other persons are prohibited from disclosing the identity of the offender.
(a) a local legal practitioner who holds a current local practising certificate to practise as a solicitor and barrister, or
(b) an interstate legal practitioner who holds a current interstate practising certificate that does not restrict the practitioner to engage in legal practice only as or in the manner of a barrister.
(a) the legal profession rules made by the Law Society Council, and
(b) the joint rules so far as they apply to solicitors.
(a) as an employee of, or other person working under supervision in, a law practice, where:
(i) at least one partner, legal practitioner director or other employee of the law practice is an Australian legal practitioner who holds an unrestricted practising certificate, and
(ii) the person engages in legal practice under the supervision of an Australian legal practitioner referred to in subparagraph (i), or
(b) as a partner in a law firm, where:
(i) at least one other partner is an Australian legal practitioner who holds an unrestricted practising certificate, and
(ii) the person engages in legal practice under the supervision of an Australian legal practitioner referred to in subparagraph (i), or
(c) in a capacity approved under a legal profession rule.
Notes included in this Act do not form part of this Act.
For the purposes of this Act:
(a) an
Australian lawyer is a person who is admitted to the legal profession under this Act or a corresponding law, and(b) a
local lawyer is a person who is admitted to the legal profession under this Act (whether or not the person is also admitted under a corresponding law), and(c) an
interstate lawyer is a person who is admitted to the legal profession under a corresponding law, but not under this Act.
For the purposes of this Act:
(a) an
Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate, and(b) a
local legal practitioner is an Australian lawyer who holds a current local practising certificate, and(c) an
interstate legal practitioner is an Australian lawyer who holds a current interstate practising certificate, but not a local practising certificate.
The application of Chapter 4 (Complaints and discipline) to conduct of Australian legal practitioners is broadened by Division 2 of Part 4.1 of that Chapter.
For the purposes of this Act, an
(a) an Australian legal practitioner who is:
(i) a sole practitioner (in the case of a law practice constituted by the practitioner), or
(ii) a partner in the law practice (in the case of a law firm), or
(iii) a legal practitioner director in the law practice (in the case of an incorporated legal practice), or
(iv) a legal practitioner partner in the law practice (in the case of a multi-disciplinary partnership), or
(v) an Australian legal practitioner whose services are made use of by the law practice to provide legal services (in the case of a complying community legal centre), or
(vi) an employee of, or consultant to, the law practice, or
(b) an agent of the law practice who is not an Australian legal practitioner, or
(c) an employee of, or person paid in connection with, the law practice who is not an Australian legal practitioner, or
(d) an Australian-registered foreign lawyer who is a partner in the law practice, or
(d1) a person (not being an Australian legal practitioner) who is a partner in a multi-disciplinary partnership, or
(e) an Australian-registered foreign lawyer who has a relationship with the law practice, being a relationship that is of a class prescribed by the regulations, or
(f) a person (not being an Australian legal practitioner) who is a partner in a business that includes the law practice, or
(g) a person (not being an Australian legal practitioner) who shares the receipts, revenue or other income arising from the law practice.
For the purposes of this Act:
(a) a
legal practitioner associate of a law practice is an associate of the practice who is an Australian legal practitioner, and(b) a
lay associate of a law practice means an associate of the practice who is not an Australian legal practitioner.
For the purposes of this Act, a
(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 law firm), or
(c) a legal practitioner director in the law practice (in the case of an incorporated legal practice), or
(d) a legal practitioner partner in the law practice (in the case of a multi-disciplinary partnership), or
(e) the person who is generally responsible for the provision of legal services by the law practice (in the case of a complying community legal centre).
For the purposes of this Act, an
(a) a person who is a partner, agent or employee of the Australian lawyer, or
(b) a person who is an associate of a law practice of which the Australian lawyer is also an associate.
This section has effect for the purposes of this Act.
The
The
The
(a) where only one jurisdiction is the home jurisdiction for the only associate of the practice who is an Australian legal practitioner or for all the associates of the practice who are Australian legal practitioners—that jurisdiction, or
(b) where no one jurisdiction is the home jurisdiction for all the associates of the practice who are Australian legal practitioners:
(i) the jurisdiction in which the office is situated at which the associate performs most of his or her duties for the law practice, or
(ii) if a jurisdiction cannot be determined under subparagraph (i)—the jurisdiction in which the associate is enrolled under a law of the jurisdiction to vote at elections for the jurisdiction, or
(iii) if a jurisdiction can be determined under neither subparagraph (i) nor subparagraph (ii)—the jurisdiction determined in accordance with criteria specified or referred to in the regulations.
Each of the following is a suitability matter in relation to a natural person:
(a) whether the person is currently of good fame and character,
(b) whether the person is or has been an insolvent under administration,
(c) whether the person has been convicted of an offence in Australia or a foreign country, and if so:
(i) the nature of the offence, and
(ii) how long ago the offence was committed, and
(iii) the person’s age when the offence was committed,
Note— The rules may make provision for the convictions that must be disclosed by an applicant and those that need not be disclosed. Section 11 (References to convictions for offences) provides that reference to a conviction includes a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction is recorded.
(d) whether the person engaged in legal practice in Australia:
(i) when not admitted, or not holding a practising certificate, as required under this Act or a previous law of this jurisdiction that corresponds to this Act or under a corresponding law, or
(ii) if admitted, in contravention of a condition on which admission was granted, or
(iii) if holding an Australian practising certificate, in contravention of a condition of the certificate or while the certificate was suspended,
(e) whether the person has practised law in a foreign country:
(i) when not permitted by or under a law of that country to do so, or
(ii) if permitted to do so, in contravention of a condition of the permission,
(f) whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following:
(i) this Act or a previous law of this jurisdiction that corresponds to this Act, or
(ii) a corresponding law or corresponding foreign law,
(g) whether the person:
(i) is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country, or
(ii) has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt,
(h) whether the person’s name has been removed from:
(i) a local roll, and whether the person’s name has since been restored to or entered on a local roll, or
(ii) an interstate roll, and whether the person’s name has since been restored to or entered on an interstate roll, or
(iii) a foreign roll,
(i) whether the person’s right to engage in legal practice has at any time been suspended or cancelled in Australia or a foreign country,
(j) whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts,
(k) whether, under this Act, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person,
(l) whether the person is or has been subject to an order, under this Act, a law of the Commonwealth or a corresponding law, disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice,
(m) whether the person is currently unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner.
A matter is a suitability matter even if it happened before the commencement of this section.
For the purposes of this Act, an
(a) the decision, and
(b) the reasons for the decision, and
(c) the rights of appeal or review available to the person in respect of the decision and the period within which any such appeal or review must be made or applied for.
A reference in this Act to a conviction includes a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction is recorded.
Without limiting subsection (1), a reference in this Act to the quashing of conviction for an offence includes a reference to the quashing of:
(a) a finding of guilt in relation to the offence, or
(b) the acceptance of a guilty plea in relation to the offence.
However, a reference in this Act to the quashing of a conviction for an offence does not include a reference to the quashing of a conviction where:
(a) a finding of guilt in relation to the offence, or
(b) the acceptance of a guilty plea in relation to the offence,
remains unaffected.
This Chapter sets out general requirements for engaging in legal practice in this jurisdiction.
The following is a general outline of the contents of this Chapter:
• Part 2.2 provides for the reservation of legal work and legal titles to properly qualified persons and bodies,
• Part 2.3 sets out the qualifications and procedure for admission to legal practice in this jurisdiction,
• Part 2.4 provides for the grant, renewal, amendment, suspension and cancellation of practising certificates in this jurisdiction and sets out the entitlements of holders of interstate practising certificates to engage in legal practice in this jurisdiction,
• Part 2.5 provides a scheme for notification of and response to action taken by courts and other authorities in this and other jurisdictions regarding admission to the legal profession and the right to engage in legal practice,
• Part 2.6 regulates the provision of legal services in this jurisdiction by corporations (which are called “incorporated legal practices”) and by partnerships that provide legal services and non-legal services (called “multi-disciplinary partnerships”),
• Part 2.7 regulates the practice of the law of a foreign country in this jurisdiction,
• Part 2.8 regulates community legal centres.
Subsection (2) is intended only as a guide to readers as to the general scheme of this Chapter.
The purposes of this Part are as follows:
(a) to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified to do so,
(b) to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so.
A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner.
Maximum penalty: 200 penalty units.
Subsection (1) does not apply to engaging in legal practice of the following kinds:
(a) legal practice engaged in under the authority of a law of this jurisdiction or of the Commonwealth,
(b) legal practice engaged in by an incorporated legal practice in accordance with Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships),
(c) the practice of foreign law by an Australian-registered foreign lawyer in accordance with Part 2.7 (Legal practice by foreign lawyers),
(d) legal practice engaged in by a complying community legal centre,
(e) conveyancing work carried out in accordance with a licence in force under the Conveyancers Licensing Act 2003,
(f) (Repealed)
(g) the drawing of instruments by an officer or employee in the service of the Crown (including the Public Service) in the course of his or her duty,
(h) legal practice of a kind prescribed by the regulations.
Subsection (1) does not apply to:
(a) a person who as an employee provides legal services to his or her employer or a related entity if he or she:
(i) so acts in the ordinary course of his or her employment, and
(ii) receives no fee, gain or reward for so acting other than his or her ordinary remuneration as an employee, or
(b) a person or class of persons declared by the regulations to be exempt from the operation of subsection (1).
A person is not entitled to recover any amount in respect of anything the person did in contravention of subsection (1) and must repay any amount so received to the person from whom it was received.
A person may recover from another person, as a debt due to the person, any amount the person paid to the other person in respect of anything the other person did in contravention of subsection (1).
The regulations may make provision for or with respect to the application (with or without specified modifications) of provisions of this Act to persons engaged in legal practice of a kind referred to in subsection (2) (other than subsection (2) (b)–(f)) or persons referred to in subsection (3).
A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner.
Maximum penalty: 100 penalty units.
A director, officer, employee or agent of a body corporate must not represent or advertise that the body corporate is entitled to engage in legal practice unless the body corporate is an incorporated legal practice or a complying community legal centre.
Maximum penalty: 100 penalty units.
Subsections (1) and (2) do not apply to a representation or advertisement about being entitled to engage in legal practice of a kind referred to in section 14 (2) (Prohibition on engaging in legal practice when not entitled) by a person so entitled.
A reference in this section to a person:
(a) representing or advertising that the person is entitled to engage in legal practice, or
(b) representing or advertising that a body corporate is entitled to engage in legal practice,
includes a reference to the person doing anything that states or implies that the person or the body corporate is entitled to engage in legal practice.
This section applies to the following names, titles and descriptions:
• lawyer, legal practitioner, barrister, solicitor, attorney, counsel, Queen’s Counsel, King’s Counsel, Her Majesty’s Counsel, His Majesty’s Counsel, Senior Counsel
The regulations may specify the kind of persons who are entitled, and the circumstances in which they are entitled, to take or use a name, title or description to which this section applies.
For the purposes of section 15 (1) (Prohibition on representing or advertising entitlement to engage in legal practice when not entitled), the taking or using of a name, title or description to which this section applies by a person who is not entitled to take or use that name, title or description gives rise to a rebuttable presumption that the person represented that they are entitled to engage in legal practice.
For the purposes of section 15 (2), the taking or using of a name, title or description to which this section applies by a person in relation to a body corporate, of which the person is a director, officer, employee or agent, gives rise to a rebuttable presumption that the person represented that the body corporate is entitled to engage in legal practice.
A law practice must not have a lay associate whom any principal or legal practitioner associate of the law practice knows to be:
(a) a disqualified person, or
(b) a person who has been convicted of a serious offence,
unless the associate is approved by the relevant authority under subsection (3).
A contravention by a law practice of subsection (1) is capable of being unsatisfactory professional conduct or professional misconduct on the part of a principal or legal practitioner associate of the law practice involved in the contravention.
The
(a) in the case of a disqualified person who is an associate of a barrister—the Bar Council, or
(b) in the case of a disqualified person who is an associate of a solicitor—the Law Society Council, or
(c) in the case of a person who has been convicted of a serious offence—the Tribunal.
If a Council decides to refuse an application by a person for approval under subsection (3) (a) or (b) or to grant the approval subject to conditions, the person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision.
An approval under this section may be subject to specified conditions.
A disqualified person, or a person convicted of a serious offence, must not seek to become a lay associate of a law practice unless the person first informs the law practice of the disqualification or conviction.
Maximum penalty: 100 penalty units.
Proceedings for an offence under subsection (6) may only be brought within 6 months after discovery of the offence by the law practice.
This section does not apply in circumstances prescribed by the regulations.
In this section:
(a) is not an Australian legal practitioner, and
(b) provides legal or related services to the law practice, other than services of a kind prescribed by the regulations.
This section applies to a person who is not an Australian legal practitioner and who is or was a lay associate of a law practice that:
(a) engages in legal practice principally in this jurisdiction, or
(b) employs or employed the person to work principally in this jurisdiction,
and so applies whether or not the law practice subsequently ceased to exist or engage in legal practice principally in this jurisdiction and whether or not any person ceases, by death or otherwise, to be a legal practitioner associate of the law practice.
On application by a Council, the Tribunal may make an order prohibiting (without approval under section 17 (Associates who are disqualified or convicted persons)) any law practice from employing or paying in connection with the legal practice engaged in by the law practice a specified person to whom this section applies, if:
(a) the Tribunal is satisfied that the person is not a fit and proper person to be employed or paid in connection with that legal practice, or
(b) the Tribunal is satisfied that the person has been guilty of conduct that, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct.
An order under this section may apply to a specified law practice or specified class of law practices or may apply to law practices generally.
An order under this section may be revoked by the Tribunal on application by a Council or the person against whom the order was made.
This section applies to a person who is not an Australian legal practitioner and who:
(a) is or was a partner of a local legal practitioner, or
(b) is or was a partner of an Australian legal practitioner and engaged in a business conducted by the partnership principally in this jurisdiction.
On application by a Council, the Tribunal may make an order prohibiting (without approval under section 17 (Associates who are disqualified or convicted persons)) any Australian legal practitioner from being a partner, in a business that includes the practitioner’s practice, of a specified person to whom this section applies if:
(a) the Tribunal is satisfied that the person is not a fit and proper person to be such a partner, or
(b) the Tribunal is satisfied that the person has been guilty of conduct which, if the person were an Australian legal practitioner, would have constituted unsatisfactory professional conduct or professional misconduct.
An order made under this section may be revoked by the Tribunal on application by a Council or by the person against whom the order was made.
The death of an Australian legal practitioner does not prevent an application being made for, or the making of, an order under this section in relation to a person who was a partner of the practitioner.
(Repealed)
A Council must:
(a) retain in its office a register of orders made under section 18 or 19 on its application or approvals given by it under section 17, and
(b) permit the register to be inspected during office hours and without charge, but only if the inspection is made by an Australian legal practitioner.
(Repealed)
A contravention of this Part by an Australian lawyer who is not an Australian legal practitioner is capable of being professional misconduct.
Nothing in this Part affects any liability that a person who is an Australian lawyer but not an Australian legal practitioner may have under Chapter 4 (Complaints and discipline), and the person may be punished for an offence under this Part as well as being dealt with under Chapter 4 in relation to the same matter.
The purpose of this Part is, in the interests of the administration of justice and for the protection of clients of law practices, to provide a system under which only applicants who have appropriate academic qualifications and practical legal training and who are otherwise fit and proper persons become qualified for admission and are admitted to the legal profession in this jurisdiction.
A person is admitted to the legal profession in this jurisdiction by being admitted as a local lawyer.
In this Part:
A person is eligible for admission only if the person is a natural person aged 18 years or over and:
(a) the person has attained:
(i) approved academic qualifications, or
(ii) corresponding academic qualifications, and
(b) the person has satisfactorily completed:
(i) approved practical legal training requirements, or
(ii) corresponding practical legal training requirements.
In this section:
The admission rules must not require a person to satisfactorily complete before admission a period of supervised training that exceeds in length a period or periods equivalent to one full-time year (as determined in accordance with the admission rules).
The Admission Board may exempt a person from the requirements of subsection (1) (a) or (b) or both if satisfied that the person has:
(a) sufficient academic qualifications, or
(b) sufficient relevant experience in legal practice or relevant service with a government department or government agency,
or both so as to render the person eligible for admission, whether the qualifications or experience were obtained wholly or partly in Australia or overseas.
An exemption under subsection (4) may be given unconditionally or subject to such conditions relating to the obtaining of further academic qualifications or further legal training as the Admission Board thinks appropriate.
For the purposes of subsection (2), the Admission Board may satisfy itself regarding the minimum criteria for the approval of academic qualifications, or legal training requirements, for admission in another jurisdiction by considering appropriate advice from an authority of the other jurisdiction that those criteria were established consistently with relevant agreed standards, and accordingly the Admission Board need not examine (in detail or at all) the content of courses of legal study or legal training requirements prescribed in the other jurisdiction. The regulations may identify or provide a means of identifying those agreed standards.
In deciding if an applicant is a fit and proper person to be admitted, the Admission Board:
(a) must consider each of the suitability matters in relation to the applicant to the extent a suitability matter is appropriate, and
(b) may consider any other matter it considers relevant.
However, the Admission Board may consider a person to be a fit and proper person to be admitted despite a suitability matter because of the circumstances relating to the matter.
A person may apply to the Admission Board for a declaration that matters disclosed by the person will not, without more, adversely affect an assessment by the Board as to whether the person is a fit and proper person to be admitted.
The Admission Board is to consider each application under this section and make the declaration sought or refuse to do so.
(Repealed)
An applicant for admission may appeal to the Supreme Court against the refusal of the Admission Board to give a compliance certificate in respect of the applicant.
An applicant for a declaration sought under section 26 (Early consideration of suitability) may appeal to the Supreme Court against the refusal of the Admission Board to make the declaration.
A Council may appeal to the Supreme Court against the giving of a compliance certificate.
A Council may appeal to the Supreme Court against the making of a declaration under section 26 (Early consideration of suitability).
An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the Admission Board may be given on the appeal, and the decision of the Supreme Court is taken to be a decision of the Admission Board.
On an appeal under this section, the Supreme Court may make an order or declaration as it thinks fit.
On an appeal under this section, the Supreme Court may make an order as to costs as it thinks fit, other than:
(a) an order against the Admission Board in favour of an applicant where the appeal was not successful, and
(b) an order against the Admission Board in favour of a Council.
A declaration made under section 26, or an order or declaration under section 28, is binding on the Admission Board unless the applicant failed, on the application or appeal, to make a full and fair disclosure of all matters relevant to the declaration sought.
A Council and the applicant concerned are entitled:
(a) to make representations in writing to the Admission Board in relation to any matter under consideration by the Board under this Division, and
(b) to be represented and heard at any inquiry or appeal under this Division.
The Admission Board must notify each Council in accordance with the admission rules of:
(a) any application for a declaration under section 26 (Early consideration of suitability), and
(b) any declaration made under that section.
The Admission Board may notify a Council of any application for admission.
The Admission Board is entitled to be represented and heard at any appeal under section 28.
The Supreme Court may admit persons as lawyers in accordance with this Part.
The Supreme Court may admit an applicant as a lawyer if the Admission Board advises the Court that the Board considers that the applicant:
(a) is eligible for admission, and
(b) is a fit and proper person to be admitted.
The advice of the Admission Board is to be given by means of a compliance certificate in the form prescribed by the admission rules.
The Supreme Court is to maintain a roll of persons admitted as lawyers under this Act (referred to in this Act as the
When a person is admitted under this Act, the Supreme Court is to cause the person’s name to be entered on the local roll.
A person admitted as a lawyer under this Act must sign the local roll.
The admission of a person as a lawyer under this Act is effective from the time the person signs the local roll.
The local roll must be available for inspection, without charge, during normal business hours.
The Supreme Court may publish the name of persons admitted as lawyers under this Act and any relevant particulars concerning those persons.
The Supreme Court’s functions under this section may be exercised by a person or body designated by the Court for the purpose.
The regulations may make provision for or with respect to:
(a) the information that may or must be included in the local roll,
(b) publication of information contained in the local roll.
A person becomes an officer of the Supreme Court on being admitted as a lawyer under this Act.
A person ceases to be an officer of the Supreme Court under subsection (1) if the person’s name is removed from the local roll.
The Supreme Court can only admit or enrol persons as lawyers, and cannot admit or enrol persons as barristers, solicitors or legal practitioners.
Any inherent power or jurisdiction of the Supreme Court to admit or enrol persons as barristers, solicitors or legal practitioners is and remains revoked.
The Supreme Court Charter is and remains revoked in New South Wales in so far as it relates to the admission of barristers, advocates, proctors, solicitors and attorneys.
In this section:
Provisions for the constitution of the Admission Board are located in Part 7.1 and Schedule 2.
The Admission Board is to consider whether or not:
(a) an applicant for admission is:
(i) eligible for admission (under section 24), and
(ii) a fit and proper person to be admitted (in accordance with section 25), and
(b) the application is made in accordance with any applicable admission rules and the applicant has complied with any applicable requirements of the admission rules.
The Admission Board may refuse to consider the application if the application was not made in accordance with the admission rules.
The Admission Board may require an applicant to provide such further information as it considers relevant to its consideration of the application within such time as it specifies.
The Admission Board is to complete its processing of an application for admission by giving a compliance certificate under this section for the applicant or by refusing to give such a certificate.
If, after considering an application for admission, the Admission Board considers:
(a) the applicant:
(i) is eligible for admission, and
(ii) is a fit and proper person to be admitted, and
(b) the application is made in accordance with any applicable admission rules and the applicant has complied with any applicable requirements of the admission rules, and
(c) there are no grounds for refusing to give a certificate for the applicant,
the Board must, within 7 days of its decision or within the time specified in or determined in accordance with the admission rules, advise the Supreme Court to that effect by filing with the Prothonotary a certificate in the approved form (a
The Admission Board must refuse to give a compliance certificate for an applicant unless the Board is satisfied that the applicant:
(a) is eligible for admission, and
(b) is a fit and proper person to be admitted.
The Admission Board may refuse to give a compliance certificate for an applicant if it is not satisfied that:
(a) the application is made in accordance with the admission rules, or
(b) the applicant has complied with any applicable requirements of the admission rules.
If the Admission Board refuses to give a compliance certificate for the applicant, the Board must, as soon as practicable after its decision or within the time specified in or determined in accordance with the admission rules, give the Prothonotary and the applicant an information notice about the refusal.
For the purposes of section 28 (1), the Admission Board is taken to have refused to give a compliance certificate for an applicant if a compliance certificate has been neither given nor refused for the applicant within 6 months after:
(a) the application for admission was lodged, or
(b) if the Board has given the applicant a notice under section 37 (1)—the applicant has complied with the notice to the Board’s satisfaction.
To help it consider whether or not an applicant is eligible for admission or is a fit and proper person to be admitted, the Admission Board may, by notice to the applicant, require:
(a) the applicant to give it specified documents or information, or
(b) the applicant to co-operate with any inquiries by the Board that it considers appropriate.
An applicant’s failure to comply with a notice under subsection (1) by the date specified in the notice and in the way required by the notice is a ground for refusing to approve the applicant as a suitable candidate for admission.
The Admission Board may refer a matter to the Supreme Court for directions.
Without limiting any other functions that it has to seek or obtain information, the Admission Board may communicate with and obtain relevant information from such Australian or overseas authorities as it thinks appropriate in connection with an application under this Part.
Without limiting any other power that it has to disclose information under this Act, the Admission Board may disclose information to such Australian and overseas authorities as it thinks appropriate in response to a request for relevant information, but may do so only if satisfied that it is not likely that the information provided will be inappropriately disclosed by such an authority.
Section 722 (1) extends to the disclosure of information received under subsection (1).
The Admission Board may make rules for the admission of persons as lawyers under this Act.
Without limiting subsection (1), rules may be made about any of the following:
(a) the procedure for admission, including:
(i) how an application is to be made, and
(ii) giving notice of the application to an entity or public notice of the application, and
(iii) the affidavits or certificates the applicant must provide with or for the application,
(b) admission requirements regarding, and the approval of, academic qualifications and practical legal training,
(c) the examination of applicants for admission and the assessment of their qualifications,
(d) the disclosure of matters that may affect consideration of the eligibility of an applicant for admission, or affect consideration of the question whether the applicant is a fit and proper person to be admitted, including convictions that must be disclosed and those that need not be disclosed,
(e) applications for admission under the trans-Tasman mutual recognition legislative scheme,
(f) the assessment of the qualifications and practical legal training of overseas qualified or trained applicants against the academic requirements and practical legal training requirements that apply to local applicants,
(g) the conferral of a right of objection to an applicant’s admission on persons of appropriate standing,
(h) the procedure to be adopted in the conduct of inquiries under this Part,
(i) registration and deregistration as, and the discipline of, students-at-law and the qualifications for registration,
(j) the examination and assessment in academic subjects of candidates for registration, students-at-law or applicants for admission,
(k) the establishment and conduct of boards or other bodies with functions concerning:
(i) the examination of applicants for admission, and
(ii) the assessment of applicants as to whether they are eligible for admission and as to whether they are fit and proper persons to be admitted,
(l) the exemption by the Board of a person from the requirements of section 24 (1) (a) or (b) as provided by section 24 (4),
(m) accreditation of legal education and practical legal training courses,
(n) fees and costs payable under the rules and the refund or remission of fees,
(o) any other matters relating to the functions of the Board.
Without limiting subsection (1), the rules may provide for abridging, in specified circumstances, any period of practical legal training required by the rules.
Without limiting subsection (1) or the power of the Admission Board to delegate functions under section 718, the rules may:
(a) provide for the establishment, dissolution and procedures of committees and subcommittees of the Board, and
(b) confer or provide for conferring functions on any such committee or subcommittee, including any functions of the Board, and
(c) provide that a committee or subcommittee exercises any of its functions in an advisory capacity or as delegate of the Board.
The rules must be published in the Gazette.
Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to the rules in the same way as they apply to a statutory rule.
A person referred to in section 601 (Protection from liability) is not compellable in any legal proceedings to give evidence or produce documents in respect of any matter in which the person was involved in the course of the administration of this Part.
This section does not apply to:
(a) proceedings under Part 3 of the Royal Commissions Act 1923, or
(b) proceedings before the Independent Commission Against Corruption, or
(c) a hearing under the Special Commissions of Inquiry Act 1983, or
(d) an inquiry under the Ombudsman Act 1974.
The purposes of this Part are as follows:
(a) to facilitate the national practice of law by ensuring that Australian legal practitioners can engage in legal practice in this jurisdiction and to provide for the certification of Australian lawyers whether or not admitted in this jurisdiction,
(b) to provide a system for the granting and renewing of local practising certificates.
An Australian legal practitioner is, subject to this Act, entitled to engage in legal practice in this jurisdiction.
Practising certificates may be granted under this Part.
The Bar Council may, on application, grant a practising certificate to an Australian lawyer authorising the lawyer to practise as a barrister.
The Law Society Council may, on application, grant a practising certificate to an Australian lawyer authorising the lawyer to practise as a solicitor and barrister.
It is a statutory condition of a local practising certificate that the holder must not hold another local practising certificate, or an interstate practising certificate, that is in force during the currency of the first-mentioned local practising certificate.
(Repealed)
This section has effect for the purposes of section 48 (Grant or renewal of local practising certificate) or any other provision of this Act where the question of whether or not a person is a fit and proper person to hold a local practising certificate is relevant.
A Council may, in considering whether or not the person is a fit and proper person to hold a local practising certificate, take into account any suitability matter relating to the person, and any of the following, whether happening before or after the commencement of this section:
(a) whether the person obtained an Australian practising certificate because of incorrect or misleading information,
(b) whether the person has contravened a condition of an Australian practising certificate held by the person,
(c) whether the person has contravened this Act or a corresponding law or the regulations or legal profession rules under this Act or a corresponding law,
(d) whether the person has contravened:
(i) an order of the Tribunal, or
(ii) an order of a corresponding disciplinary body or of another court or tribunal of another jurisdiction exercising jurisdiction or powers by way of appeal or review of an order of a corresponding disciplinary body,
(e) without limiting any other paragraph:
(i) whether the person has failed to pay a required contribution or levy to the Fidelity Fund, or
(ii) whether the person has contravened a requirement imposed by a Council about professional indemnity insurance, or
(iii) whether the person has contravened a requirement of this Act or the regulations about trust money, or
(iv) whether the person has failed to pay other costs, expenses or fines for which the person is liable under this Act or the regulations,
(f) other matters the Council thinks appropriate.
A person may be considered a fit and proper person to hold a local practising certificate even though the person is within any of the categories of the matters referred to in subsection (2), if the Council considers that the circumstances warrant the determination.
If a matter was:
(a) disclosed in an application for admission to the legal profession in this or another jurisdiction, and
(b) determined by a Supreme Court or by the Admission Board or a corresponding authority not to be sufficient for refusing admission,
the matter cannot be taken into account as a ground for refusing to grant or renew or for suspending or cancelling a local practising certificate unless the matter was a pre-admission event (whether it happened before or after the commencement of this section), but the matter may be taken into account when considering other matters in relation to the person concerned.
A Council may decide to take no action or no further action in connection with a pre-admission event, if satisfied that it is appropriate to do so given the passage of time and other circumstances the Council considers relevant.
A local practising certificate granted under this Act is in force from the date specified in it until the end of the financial year in which it is granted, unless the certificate is sooner suspended or cancelled.
A local practising certificate renewed under this Act is in force until the end of the financial year following its previous period of currency, unless the certificate is sooner suspended or cancelled.
If an application for the renewal of a local practising certificate as a solicitor has been properly made as required by this Act but has not been determined by the Law Society Council by the following 1 July, the certificate:
(a) continues in force on and from that 1 July until the Law Society Council renews or refuses to renew the certificate or the holder withdraws the application for renewal, unless the certificate is sooner cancelled or suspended, and
(b) if renewed, is taken to have been renewed on and from that 1 July.
A person who is not already an officer of the Supreme Court becomes an officer of the Supreme Court on being granted a local practising certificate.
An Australian lawyer may apply to the appropriate Council for the grant or renewal of a local practising certificate if eligible to do so under this section.
An Australian lawyer is eligible to apply for the grant or renewal of a local practising certificate if the lawyer complies with any regulations and legal profession rules relating to eligibility for the practising certificate and if:
(a) in the case of a lawyer who is not an Australian legal practitioner at the time of making the application:
(i) the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for, or
(ii) if subparagraph (i) does not apply to the lawyer or it is not reasonably practicable to determine whether it applies to the lawyer—the lawyer’s place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia, or
(b) in the case of a lawyer who is an Australian legal practitioner at the time of making the application:
(i) the jurisdiction in which the lawyer engages in legal practice solely or principally is this jurisdiction, or
(ii) the lawyer holds a current local practising certificate and engages in legal practice in another jurisdiction under an arrangement that is of a temporary nature, or
(iii) the lawyer reasonably expects to be engaged in legal practice solely or principally in this jurisdiction during the currency of the certificate or renewal applied for, or
(iv) if subparagraphs (i), (ii) and (iii) do not apply to the lawyer or it is not reasonably practicable to determine whether subparagraph (i), (ii) or (iii) applies to the lawyer—the lawyer’s place of residence in Australia is this jurisdiction or the lawyer does not have a place of residence in Australia.
For the purposes of subsection (2) (b), the jurisdiction in which an Australian lawyer engages in legal practice solely or principally is to be decided by reference to the lawyer’s legal practice during the certificate period current at the time:
(a) the application is made, or
(b) in the case of a late application—the application should have been made.
An Australian lawyer is not eligible to apply for the grant or renewal of a local practising certificate in respect of a financial year if the lawyer would also be the holder of another Australian practising certificate for that year, but this subsection does not limit the factors determining ineligibility to apply for the grant or renewal of a local practising certificate.
An Australian lawyer must not apply for the grant or renewal of a local practising certificate if the lawyer is not eligible to make the application.
An Australian legal practitioner who:
(a) engages in legal practice solely or principally in this jurisdiction during a financial year, and
(b) reasonably expects to engage in legal practice solely or principally in this jurisdiction in the following financial year,
must apply for the grant or renewal of a local practising certificate in respect of the following financial year.
Subsection (6) does not apply to an interstate legal practitioner who applied for the grant or renewal of an interstate practising certificate on the basis that the practitioner reasonably expected to engage in legal practice solely or principally in this jurisdiction under an arrangement that is of a temporary nature.
The exemption provided by subsection (7) ceases to operate at the end of the period prescribed by the regulations for the purposes of this subsection.
A reference in this section to engaging in legal practice principally in this or any other jurisdiction applies only to legal practice in Australia. Accordingly, an Australian lawyer who is engaged or expects to be engaged in legal practice principally in a foreign country is nevertheless eligible to apply for the grant or renewal of a local practising certificate if the lawyer otherwise meets the requirements of this section.
The purpose of this subsection is to deal with a case where a person practises both in Australia and overseas. In that case, overseas practice is to be disregarded (even if it forms the principal portion of the person’s overall practice), so that eligibility is determined by reference to the person’s practice in Australia.
An Australian lawyer is also eligible to apply for the grant or renewal of a local practising certificate if the lawyer is of a class or description prescribed by the regulations. The regulations may provide that a Council has a discretion as to whether or not to grant or renew a local practising certificate to a person in his or her capacity as an Australian lawyer of that class or description.
The purpose of this subsection is to enable regulations to be made conferring eligibility on an Australian lawyer who is not otherwise eligible to apply for a local practising certificate. Regulations could be made conferring eligibility, for example, on an Australian lawyer who practises exclusively overseas, or an Australian lawyer who holds a public office of a specified kind.
An application for the grant or renewal of a local practising certificate must be:
(a) made in accordance with the regulations and must provide or be accompanied by such information as may be required by the regulations, and
(b) accompanied by the appropriate fees.
The regulations may require the applicant to disclose matters that may affect the applicant’s eligibility for the grant or renewal of a local practising certificate or the question whether the applicant is a fit and proper person to hold a local practising certificate.
The regulations may indicate that particular kinds of matters previously disclosed in a particular manner need not be disclosed for the purposes of the current application.
Without limiting subsection (2), the regulations may require the applicant to disclose details of, or details of the nature of, pre-admission events.
The appropriate Council may require an applicant to provide such further information as it considers relevant to its determination of the application within such time as it specifies.
An application for the renewal of a local practising certificate must be made within:
(a) the period prescribed by the regulations as the standard renewal period, or
(b) a later period prescribed by the regulations as the late fee period.
Those periods must be within the currency of the local practising certificate being renewed.
The appropriate Council may reject an application for renewal made during the late fee period, and must reject an application for renewal made outside those periods.
Section 92 authorises the charging of a late fee for applications received during the late fee period. If an application is rejected under subsection (3), the applicant will have to apply for the grant of a new practising certificate.
The appropriate Council must consider an application that has been made for the grant or renewal of a local practising certificate and may:
(a) grant or refuse to grant the certificate, or
(b) renew or refuse to renew the certificate.
The appropriate Council may, when granting or renewing a certificate, impose conditions as referred to in section 50 (Conditions imposed by Council).
The Council may refuse:
(a) to consider an application if:
(i) it is not made in accordance with this Act, the regulations or the legal profession rules, or
(ii) the required fees and costs have not been paid, or
(iii) further information has not been provided as required under section 46 (5), or
(b) to grant or renew a local practising certificate if the applicant has not complied with the regulations or the legal profession rules in relation to the application.
The Council must not grant a local practising certificate unless it is satisfied that the applicant:
(a) was eligible to apply for the grant when the application was made, and
(b) is a fit and proper person to hold the certificate.
Section 42 (Suitability to hold local practising certificate) deals with the question of whether or not a person is a fit and proper person to hold a practising certificate.
The Council must not renew a local practising certificate if it is satisfied that the applicant:
(a) was not eligible to apply for the renewal when the application was made, or
(b) is not a fit and proper person to continue to hold the certificate.
The Council must not grant or renew a local practising certificate if the Council considers the applicant’s circumstances have changed since the application was made and the applicant would (having regard to information that has come to the Council’s attention) not have been eligible to make the application when the application is being considered.
Without limiting any other provision of this section, the Council may refuse to grant or renew a local practising certificate if a finding of unsatisfactory professional conduct or professional misconduct has been made in respect of the applicant and:
(a) a fine imposed because of the finding has not been paid, or
(b) costs awarded against the applicant because of the finding have been assessed but have not been paid or, if an arrangement for their payment has been made, the applicant is in default under the arrangement.
Without limiting any other provision of this section, the Council may refuse to grant or renew a local practising certificate if:
(a) any costs of an investigation or examination payable under Part 3.1 by or in respect of the applicant have not been paid, or
(b) any fees, costs or expenses of external intervention payable under Chapter 5 by or in respect of the applicant have not been paid, or
(c) the applicant is required by this Act to contribute to the Indemnity Fund and the application is not accompanied by the contribution payable under that section, or
(d) the applicant is required by this Act to contribute to the Fidelity Fund and the application is not accompanied by the contribution payable under that section, or
(e) any levy payable by the applicant under Part 3.3 or 3.4 or Schedule 7 is unpaid, or
(f) the required application fees and costs have not been paid.
Without limiting any other provision of this section, the Council may refuse to grant or renew a local practising certificate on any ground on which the local practising certificate could be suspended or cancelled.
Without limiting any other provision of this section, the Bar Council may refuse to grant a local practising certificate for a barrister if the applicant has not successfully completed any examination required by the Bar Council to be passed as a prerequisite to undertaking a reading program.
This section does not affect any other provision of this Act that provides for the refusal to grant a local practising certificate.
Sections 403 and 406 provide for the refusal to grant a local practising certificate if any required professional indemnity insurance has not been obtained. Section 485 provides for the refusal to grant a local practising certificate if any required fidelity cover in respect of regulated mortgages has not been obtained.
If the Council grants or renews a local practising certificate, the Council must, as soon as practicable, give the applicant:
(a) for the grant of a certificate—a local practising certificate, or
(b) for the renewal of a certificate—a new local practising certificate.
If the Council refuses to grant or renew a local practising certificate, the Council must, as soon as practicable, give the applicant an information notice.
If an application made for the grant of a local practising certificate is not determined within:
A special annual contribution or levy that is payable under this clause:
(a) is to be paid to the Company on account of the Indemnity Fund, and
(b) is recoverable by the Company as a debt in a court of competent jurisdiction, and
(c) if payable by an insurable solicitor, is payable in addition to any contribution or levy that is payable under section 411 (Contributions) or 412 (Levies).
(Section 490)
Expressions used in this Schedule have the same meanings as in Part 3.5 of this Act.
Without limiting Part 2 of this Schedule, Part 3.5 (Mortgage practices and managed investment schemes) of this Act extends to mortgages that were entered into before the commencement of that Part.
Anything done or omitted to be done under Part 9 of the Legal Profession Act 1987 before the commencement of Part 3.5 of this Act continues to have the same effect as if done or omitted to be done under Part 3.5 of this Act.
Part 3.5 of this Act has effect and is to be construed as if it included the provisions of this Schedule.
This Part substantially re-enacts the provisions of Division 4 of Part 9 of the Legal Profession Act 1987.
Except as provided by this Part, Part 3.5 (Mortgage practices and managed investment schemes) of this Act extends to mortgages that were entered into before 7 September 2001 (the date of commencement of section 117 of the Legal Profession Act 1987, as inserted by the Legal Profession Amendment (Mortgage Practices) Act 2000).
Section 482 (Solicitor to have fidelity cover in respect of regulated mortgages) does not apply in respect of a regulated mortgage that was entered into before the relevant commencement date.
Despite subclause (1), section 482 applies in respect of a solicitor if money entrusted to the solicitor by a client (whether before, on or after the relevant commencement date) is advanced or proposed to be advanced on or after the relevant commencement date to a borrower for a regulated mortgage entered into before the relevant commencement date. In such a case:
(a) the solicitor must ensure that a policy of fidelity insurance is in force in respect of the advance in accordance with section 482, and comply with section 484 (Notification of insurance arrangements for regulated mortgage), and
(b) section 483 (Bar on claims against Fidelity Fund relating to regulated mortgages) applies to any claim against the Fidelity Fund in so far as it relates to such an advance.
For the purpose of applying section 484 (1) (Notification of insurance arrangements for regulated mortgage) in such a case, the date that money is entrusted to the solicitor by a client is taken to be the relevant commencement date, or the date on which the money is entrusted to the solicitor, whichever is the later.
This clause is subject to clause 6 (Substitution of lender or contributor under run-out mortgage) (which allows solicitors to substitute lenders under a run-out mortgage without obtaining fidelity insurance).
In this section:
A solicitor must not, in the solicitor’s capacity as solicitor for a lender or contributor:
(a) advance any money entrusted to the solicitor to a borrower for a run-out mortgage, or
(b) do any work for the purpose of extending the term of a run-out mortgage, or
(c) accept any money from a client for the purpose of advancing that money to a borrower for a run-out mortgage, or
(d) do anything else with respect to a run-out mortgage in contravention of the regulations or the solicitors rules relating to run-out mortgages.
A contravention of this clause is capable of being professional misconduct.
A solicitor may, despite clause 5 (No further action to be taken in respect of run-out mortgages), accept money from a client, and do any other work that is necessary, solely for the purpose of substituting a lender or contributor under a run-out mortgage.
Section 482 (Solicitor to have fidelity cover in respect of regulated mortgages) does not apply in respect of such action. Accordingly, the solicitor is not required to obtain fidelity insurance for the purpose of compensating the substitute lender or contributor for any pecuniary loss.
If a client entrusts or proposes to entrust money to a solicitor for the purpose of substituting a lender or contributor under a run-out mortgage, the solicitor must give the client a notice in writing that advises the client:
(a) of the effect of clause 7 (No claims against Fidelity Fund by substitute lenders), and
(b) that the solicitor is not required to have fidelity insurance in respect of the run-out mortgage.
The solicitor must not advance the money to a borrower for a run-out mortgage unless the solicitor has given the client the notice referred to in subclause (3).
A contravention of this clause is capable of being professional misconduct.
A person who becomes a lender or contributor under a run-out mortgage on or after 7 September 2001 (the commencement of section 117 of the Legal Profession Act 1987, as inserted by the Legal Profession Amendment (Mortgage Practices) Act 2000), is not entitled to make a claim against the Fidelity Fund for the purpose of obtaining compensation for a pecuniary loss if the claim relates to that mortgage.
The provisions of Part 9 of the Legal Profession Act 1987 continue to apply in respect of a claim against the Fidelity Fund in so far as the claim relates to:
(a) a pecuniary loss resulting from an act or omission that occurred before the repeal of that Part, or
(b) money entrusted to a solicitor before the repeal of that Part.
(Section 737)
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
• this Act
• Courts Legislation Amendment Act 2005
• Legal Profession Amendment Act 2006
• Legal Profession Further Amendment Act 2006
• Courts and Crimes Legislation Amendment Act 2008
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
A reference to the Tribunal in a provision of this Schedule that was inserted before the establishment day (within the meaning of the Civil and Administrative Tribunal Act 2013) is a reference to the former Administrative Decisions Tribunal.
In this Part:
(a) the date of commencement of this Act, except as provided by paragraph (b), or
(b) if this Act commences on different days because of one or more proclamations under section 2:
(i) the date of commencement of the relevant provision or provisions of this Act, unless subparagraph (ii) applies, or
(ii) the date specified or referred to in the regulations.
If anything of a kind required or permitted to be done under a provision of this Act was done under a corresponding provision of the old Act and still had effect immediately before the commencement day, the thing continues in effect on and after that day as if:
(a) this Act had been in force when it was done, and
(b) it had been done under this Act.
If subclause (1) applies in relation to the execution, lodgment, issue or publication of a written instrument, any reference in the instrument to a provision of the old Act is, for the purposes of that subclause, to be read as a reference to the corresponding provision of this Act.
Without limiting subclauses (1) and (2), if a provision of the old Act that corresponds to a provision of this Act would, but for its repeal by this Act, have applied in relation to anything done or being done or in existence before the commencement day, the provision of the new Act applies in relation to that thing, and so applies with any necessary adaptations.
This clause does not have effect to the extent that other provision is made by this Schedule or that the context or subject-matter otherwise indicates or requires, and has effect subject to the regulations.
Regulations under clause 1 relating to this Act have effect despite any provisions of this Part or Schedule 8 (Mortgage practices and managed investment schemes—provisions relating to old mortgages).
The Roll of Legal Practitioners kept by the Supreme Court before the commencement day is taken to be, or to form part of, the Roll of Local Lawyers under this Act.
A person:
(a) who was admitted by the Supreme Court as a legal practitioner before the commencement day, and
(b) whose enrolment by the Supreme Court was current or pending immediately before the commencement day,
is taken to have been admitted by the Supreme Court as a lawyer under this Act on the day on which the person was admitted as a legal practitioner.
Schedule 8 to the old Act provided that a person who was enrolled by the Supreme Court as a barrister or solicitor at the date of commencement of Schedule 1 (2) to the Legal Profession Reform Act 1993 (1 July 1994) was taken to be enrolled as a legal practitioner on the day on which the person was first admitted. This clause preserves that day as the date of admission as a lawyer for the purposes of this Act.
An application for admission as a legal practitioner that was pending immediately before the commencement day is taken to be an application for admission as a lawyer under this Act.
The applicant may be admitted as a lawyer under this Act if the applicant could have been admitted as a legal practitioner under the old Act if this Act had not been enacted, and the admission requirements of this Act are taken to have been satisfied in relation to the applicant.
A declaration made under Division 3 of Part 2 of the old Act and in force immediately before the commencement day is taken to have been made under this Act.
An application for a declaration under Division 3 of Part 2 of the old Act that was pending immediately before the commencement day is taken to be an application for a declaration under Part 2.3 of this Act.
A practising certificate granted under the old Act and:
(a) in force immediately before the commencement day, or
(b) expressed to take effect on a date that is on or after the commencement day,
is taken to be granted under this Act.
An application for a practising certificate under the old Act that was pending immediately before the commencement day is taken to be an application for a practising certificate under this Act.
Applications for practising certificates under this Act made during the period of 6 months commencing on the commencement day may be made in the form used for applications for practising certificates under the old Act, but are to be dealt with under this Act.
This clause applies if:
(a) an Australian lawyer would, but for this subclause, be required to hold an Australian practising certificate in relation to carrying out an activity, and
(b) the lawyer would not be required to hold a practising certificate in relation to that activity had this Act not been enacted.
The lawyer does not commit an offence under Part 2.2 of this Act, and is taken not to have engaged in unsatisfactory professional conduct or professional misconduct under that Part, in relation to the activity.
Subclause (2) does not apply to an activity when carried out after 12 months after the commencement of Part 2.2 of this Act.
(Repealed)
In this clause:
Division 1AA continues to apply in relation to an application for a practising certificate pending immediately before the commencement of the new provisions.
Anything commenced or under consideration by the Commissioner or a Council under Division 1AA immediately before the commencement of the new provisions may, subject to any directions of the Commissioner:
(a) be continued under Division 1AA as if this Act had not been commenced, or
(b) be continued under the new provisions.
For the purposes of subclause (3) (b), anything done or omitted under Division 1AA may be regarded as having been done or omitted under the new provisions or may be taken into consideration for the purposes of the new provisions, or both.
An incorporated legal practice providing legal services in accordance with the old Act immediately before the commencement day is not required to comply with section 137 (Notice of intention to start providing legal services).
Section 146 (Disclosure obligations) does not apply in respect of any matter for which services are first provided before the commencement day.
A disqualification imposed under section 47F of the old Act is to have effect as if it were imposed under section 154 and this Act applies accordingly.
An Australian legal practitioner providing legal services as a member of a multi-disciplinary partnership in accordance with the old Act immediately before the commencement day is not required to comply with section 167 (Notice of intention to start practice in multi-disciplinary partnership).
Section 173 (Disclosure obligations) does not apply in respect of any matter for which services are first provided before the commencement of that section.
Registration as a locally registered foreign lawyer granted under the old Act and:
(a) in force immediately before the commencement day, or
(b) expressed to take effect on or after the commencement day,
is taken to be granted under this Act.
An application for registration as a locally registered foreign lawyer under the old Act that was pending immediately before the commencement day is taken to be an application for registration as a locally registered foreign lawyer under this Act.
Nothing in subclause (1) permits a person registered as a foreign lawyer under the old Act immediately before the commencement day to continue to provide any services that are not permitted to be provided under Part 2.7 of this Act.
This clause applies to a complaint that was made under the old Act and in respect of which proceedings instituted under the old Act in the Tribunal were pending immediately before the commencement day.
The complaint is to be dealt with as if this Act had not been enacted.
This clause applies to a complaint that was pending under the old Act immediately before the commencement day, but does not apply to a complaint in respect of which proceedings were instituted in the Tribunal before that day.
The complaint is to be dealt with as if this Act had not been enacted, except in relation to proceedings in the Tribunal in respect of the complaint.
Part 4.8 of this Act, and any other relevant provisions of this Act, apply to the commencement of proceedings in the Tribunal in relation to the complaint, and so apply with any necessary adaptations.
Chapter 4 of this Act, and any other relevant provisions of this Act, apply to those proceedings, and so apply with any necessary adaptations.
However, the Tribunal may not make any determination or order of a disciplinary nature against the person in respect of whom the complaint was made that is more onerous than could have been made under the old Act.
This clause applies to conduct that occurred or is alleged to have occurred before the commencement day and that could have been the subject of a complaint under the old Act.
A complaint about the conduct may be made, and dealt with, under this Act, even if the conduct could not be the subject of a complaint if it had occurred after the commencement day.
Chapter 4 of this Act, and any other relevant provisions of this Act, apply to and in respect of such a complaint and any proceedings relating to it, and so apply with any necessary adaptations.
However, the Commissioner, a Council or the Tribunal may not make any determination or order of a disciplinary nature against the person in respect of whom the complaint was made that is more onerous than that which could have been made under the old Act.
Proceedings before the Tribunal that were instituted on or after 1 October 2005 but before the commencement of this clause in respect of a complaint about conduct occurring before 1 October 2005 are to be dealt with in accordance with:
(a) this Act (including clauses 16 and 17 of this Schedule), and
(b) the Administrative Decisions Tribunal Act 1997 (as in force on or after 1 October 2005),
except in so far as a direction of the President of the Tribunal under this clause otherwise provides.
The President of the Tribunal may direct that the proceedings be dealt with in accordance with:
(a) the old Act, or
(b) the old Act and this Act as regards different aspects of the proceedings, as indicated in the direction.
The President of the Tribunal may, for the purposes of this clause, direct that the Tribunal be constituted as determined by the President or the Divisional Head of the Legal Services Division, being a determination that is consistent with requirements for the constitution of the Division under the Administrative Decisions Tribunal Act 1997 at or at any time before the commencement of this clause.
The President of the Tribunal may give any such direction at any stage of the proceedings.
Any decisions of the Tribunal or directions of the President of the Tribunal that:
(a) were made or given before the commencement of this clause, and
(b) would have been valid had the Legal Profession Amendment Act 2006 (which inserted this clause and omitted clause 41 (2) (Pending proceedings) of Schedule 5 (Savings and transitional provisions) to the Administrative Decisions Tribunal Act 1997) been in force at the relevant time,
are taken to have been validly made or given.
The purpose of clause 17A is to provide for determining how disciplinary proceedings commenced in the Tribunal on or after 1 October 2005 but before the commencement of the clause are to be dealt with.
Clauses 16 and 17 in effect provide that those proceedings are to be dealt with substantially in accordance with this Act. However, clause 41 (2) of Schedule 5 to the Administrative Decisions Tribunal Act 1997 in effect provided that those proceedings are to be initiated and dealt with in accordance with the Legal Profession Act 1987 and in accordance with the Administrative Decisions Tribunal Act 1997 as in force before the commencement of clause 41. Clause 41 (2) was repealed by the Legal Profession Amendment Act 2006.
Clause 17A provides that the proceedings are to be dealt with in accordance with this Act and the Administrative Decisions Tribunal Act 1997 as currently in force, subject to any directions that the President is authorised to give under the clause.
Subject to subclauses (2) and (3), Part 3.2 of this Act applies to a matter if the client first instructs the law practice on or after the commencement day, and Part 11 of the old Act continues to apply to a matter if the client first instructed the law practice in the matter before that day.
Part 3.2 of 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 day in relation to a matter in which the other law practice was retained by the client before that day, and in that case Part 11 of the old Act continues to apply.
If:
(a) an application for assessment of costs was referred to a costs assessor for assessment under Part 11 of the old Act, and
(b) the assessment was not commenced or completed before that day,
the application may be dealt with under that Part as if that Part had not been repealed.
(Repealed)
The Legal Profession Admission Board constituted under this Act is taken to be a continuation of and the same legal entity as the Legal Practitioners Admission Board constituted under the old Act.
The persons holding office as nominated members of the Legal Practitioners Admission Board immediately before the commencement day are taken to have been nominated under this Act as members of the Legal Profession Admission Board.
(Repealed)
The person holding office as Legal Services Commissioner immediately before the commencement day is taken to be appointed under this Act on the same terms and conditions on which, and for the balance of the term for which, the person was appointed.
An appeal or review that was pending under or in relation to any matter under the old Act immediately before 1 October 2005 is to be dealt with as if this Act had not been enacted, except in so far as a direction of the Supreme Court or the President of the Tribunal, as the case requires, under this clause otherwise provides.
The Supreme Court or the President of the Tribunal, as the case requires, may direct that the appeal or review proceedings be dealt with in accordance with the provisions of:
(a) this Act, or
(b) the old Act and this Act as regards different aspects of the proceedings, as indicated in the direction.
Those provisions apply accordingly, and so apply with any necessary adaptations.
The President of the Tribunal may, for the purposes of this clause, direct that the Tribunal be constituted as determined by the President or the Divisional Head of the Legal Services Division, being a determination that is consistent with requirements for the constitution of the Division under the Administrative Decisions Tribunal Act 1997 at or at any time before the commencement of this clause.
The Supreme Court or the President of the Tribunal, as the case requires, may give any such direction at any stage of the proceedings.
The Supreme Court or the Tribunal, as the case requires, may make orders declaring how the decision on the appeal or review is to have effect in relation to the provisions of this Act.
Any decisions of the Supreme Court or the Tribunal or directions of the Supreme Court or the President of the Tribunal that:
(a) were made or given before the commencement of this clause, and
(b) would have been valid had the Legal Profession Amendment Act 2006 (which substituted this clause) been in force at the relevant time,
are taken to have been validly made or given.
A matter arising under the old Act may be the subject of an appeal or review made or applied for on or after 1 October 2005 if the appeal or review could have been made or applied for had this Act not been enacted.
The appeal or review may be made or applied for under the provisions of either the old Act or this Act (even if the matter could not otherwise be the subject of appeal or review under this Act if the matter had arisen on or after 1 October 2005).
The appeal or review may be dealt with under this Act (even if the matter could not otherwise be the subject of appeal or review under this Act if the matter had arisen after 1 October 2005), except in so far as a direction of the Supreme Court or the President of the Tribunal, as the case requires, under this clause otherwise provides.
The Supreme Court or the President of the Tribunal, as the case requires, may direct that the appeal or review proceedings be dealt with in accordance with the provisions of:
(a) the old Act, or
(b) the old Act and this Act as regards different aspects of the proceedings, as indicated in the direction.
Those provisions apply accordingly, and so apply with any necessary adaptations.
The President of the Tribunal may, for the purposes of this clause, direct that the Tribunal be constituted as determined by the President or the Divisional Head of the Legal Services Division, being a determination that is consistent with requirements for the constitution of the Division under the Administrative Decisions Tribunal Act 1997 at or at any time before the commencement of this clause.
The President may give any such direction at any stage of the proceedings.
The Supreme Court or the Tribunal, as the case requires, may make orders declaring how the decision on the appeal or review is to have effect in relation to the provisions of this Act.
Any decisions of the Supreme Court or the Tribunal or directions of the Supreme Court or the President of the Tribunal that:
(a) were made or given before the commencement of this clause, and
(b) would have been valid had the Legal Profession Amendment Act 2006 (which inserted this clause) been in force at the relevant time,
are taken to have been validly made or given.
The Public Purpose Fund established under the old Act is taken to be established under this Act.
If the Conveyancers Licensing Act 2003 is not in force, the costs of the Commissioner or the Tribunal in relation to the administration of Chapter 4 of this Act as applied by section 82 of the Conveyancers Licensing Act 1995 are payable from the Public Purpose Fund, and payments may accordingly be made from that Fund.
Any rules made by the Legal Practitioners Admission Board constituted under the old Act and in force immediately before the commencement day are taken to have been made under Part 2.3, and have effect with any necessary adaptations.
Any rules made by a Council separately or jointly with the other Council and in force before the commencement day are taken to have been made under Part 7.5, and have effect with any necessary adaptations.
If the Conveyancers Licensing Act 2003 is not in force, a reference to it in this Act (except this Schedule) is taken to include a reference to the Conveyancers Licensing Act 1995.
A reference in another Act or statutory rule enacted or made before the commencement day to:
(a) a barrister is to be read as a reference to a barrister within the meaning of this Act, and
(b) a solicitor, or a solicitor and barrister, is to be read as a reference to a solicitor within the meaning of this Act, and
(c) a legal practitioner (where the term is expressed to be as defined in or within the meaning of the old Act) is to be read:
(i) as a reference to a local lawyer within the meaning of this Act, and
(ii) as including a reference to a barrister or a solicitor respectively within the meaning of this Act, and
(d) a legal practitioner (where the term is not so expressed) of a specified period of standing is to be read as a reference to an Australian lawyer of that period of standing,
except where the regulations otherwise provide or the context or subject-matter indicates that the term is to have a different meaning.
Without limiting subclause (1) or the power to make regulations under this Schedule, the regulations may provide that a reference in another Act or statutory rule or other document to:
(a) a legal practitioner (where the term is expressed to be as defined in or within the meaning of the old Act), or
(b) a legal practitioner (where the term is not so expressed), or
(c) a lawyer, an attorney, counsel or similar term,
is to be read as a reference to an Australian legal practitioner or Australian lawyer or to an Australian legal practitioner or Australian lawyer of a class specified in the regulations.
An offence is not committed under the provisions of Part 3.1 or of the regulations made for the purposes of that Part for anything done or omitted to be done in good faith during the period of 3 months after the commencement of this clause, if:
(a) it was done for the purpose of attempting to comply with any of those provisions, or
(b) it was done in substantial conformity with the requirements of the old Act or the regulations under the old Act had that Act and those regulations continued in force.
This clause applies to a solicitor corporation that was formed under Division 1 of Part 10A of the old Act and that was in existence immediately before the repeal of that Part by the Legal Profession Amendment (Incorporated Legal Practices) Act 2000.
Any such solicitor corporation in existence immediately before 1 October 2005 is taken for all purposes to have continued in existence on and from that date, and Part 10A of the old Act continues to apply to the solicitor corporation (despite its repeal), until:
(a) the registration of the corporation as a company under the Corporations Act 2001 of the Commonwealth, or
(b) the winding up of the corporation in accordance with that Part or with the regulations made under this Schedule.
Any such regulations may apply provisions of the Corporations Act 2001 of the Commonwealth or any other Act, with or without modification.
Solicitor corporations are taken to be, and to have been on and after 1 October 2005, law practices within the meaning of this Act. The regulations may modify the operation of this Act in relation to solicitor corporations.
The transfer, in accordance with the Corporations Act 2001 of the Commonwealth, of the incorporation of any such solicitor corporation to incorporation under that Act is authorised.
This clause applies to a corporation that is registered as a company under the Corporations Act 2001 of the Commonwealth and that immediately before its registration as such a company was a solicitor corporation to which clause 28 applied.
The corporation:
(a) ceases to be a solicitor corporation when it is registered as a company under the Corporations Act 2001 of the Commonwealth, and
(b) becomes an incorporated legal practice (subject to and in accordance with section 134 of this Act and any other relevant provisions of Part 2.6 of this Act).
Part 10A of the old Act ceases to apply to the corporation.
The corporation must, within the period of 7 days commencing with the day on which the corporation becomes registered as a company, give:
(a) the Law Society Council, and
(b) the Commissioner for Fair Trading in the Department of Commerce or (if that position does not exist) the Director-General of the Department of Commerce,
a written notice of that fact.
Maximum penalty: 50 penalty units.
Sections 137 and 138 do not apply, and are taken not to have applied, to the corporation if it gives the Law Society Council the notice referred to in subclause (4) within the required period and in the approved form.
Section 353 (3) (Application for assessment of party/party costs) does not affect, and is taken never to have affected, rules of court, or the power to make rules of court, under section 253 (Court may order payment of costs) of the Criminal Procedure Act 1986 in connection with criminal proceedings in any court.
The Land and Environment Court Rules (Amendment No 16) 2005 (the
References in Division 3 of Part 16 of the Land and Environment Court Rules 1996 as inserted by the amending Rules to provisions of the old Act are taken to include references to the corresponding provisions of this Act.
Despite clause 26, an amendment made by Schedule 9.11 or 9.12 [1], [2] or [5] to the Legal Profession Amendment Act 2006 is taken to have effect on and from the commencement day.
Applications for the grant or renewal of a local practising certificate made in accordance with section 45 as in force immediately before the commencement of section 45 as substituted by the Legal Profession Further Amendment Act 2006 and pending immediately before that commencement are taken to be made in accordance with this Act and are to be dealt with accordingly.
Section 48 (13) as substituted by the Legal Profession Further Amendment Act 2006 applies to applications pending immediately before the commencement of that substituted subsection as well as to applications made after that commencement.
The Legal Profession Advisory Council is abolished with effect on and from 7 December 2006.
An appeal to the Supreme Court for which a hearing date had been allocated before the commencement of Schedule 14 to the Courts and Crimes Legislation Amendment Act 2008 is to be determined as if that Act had not been enacted.
The reference to an appeal in subclause (1) extends to an appeal made to the Supreme Court under section 208L (Appeal against decision of costs assessor as to matter of law) of the Legal Profession Act 1987.
Section 302B (as inserted by the Courts Legislation Amendment Act 2010) extends to any applications for the assessment of costs made (but not determined) before the commencement of that section.
However, section 302B does not extend to any application for a review of, or any appeal against, an assessment of costs by a costs assessor (whether the application for review or the appeal is made before or after the commencement of that section) if the assessment of costs was determined by the costs assessor before that commencement.
For the purposes of this clause, an assessment of costs has been determined by a costs assessor if a certificate setting out the cost assessor’s determination has been issued under section 368.
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